Have British Spies been hacking the EU?

First pub­lished by Con­sor­ti­um News.

Just after mid­night on 16 August I was called by LBC in Lon­don for a com­ment on a break­ing story on the front page of The Daily Tele­graph about Brit­ish spies hack­ing the EU. Even though I had just retired to bed, the story was just too irres­ist­ible, but a radio inter­view is always too short to do justice to such a con­vo­luted tale. Here are some longer thoughts.

For those who can­not get past the Tele­graph pay wall, the gist is that that the EU has accused the Brit­ish intel­li­gence agen­cies of hack­ing the EU’s side of the nego­ti­ations. Appar­ently some highly sens­it­ive and neg­at­ive slides about the Brit­ish Prime Minister’s plan for Brexit, the Chequers Plan, had landed in the lap of the Brit­ish gov­ern­ment, which then lob­bied the EU to sup­press pub­lic­a­tion.

Of course, this could be a genu­ine leak from the Brus­sels sieve, as Brit­ish sources are claim­ing (well, they would say that, wouldn’t they?). How­ever, it is plaus­ible that this is the work of the spies, either by recruit­ing a paid-up agent well-placed with­in the Brus­sels bur­eau­cracy, or through elec­tron­ic sur­veil­lance.

Before dis­miss­ing the lat­ter option as con­spir­acy the­ory, the Brit­ish spies do have form. In the run up to the Iraq war in 2003, the USA and UK were des­per­ate to get a UN Secur­ity Coun­cil res­ol­u­tion to invade Iraq, thus provid­ing a fig leaf of appar­ent legit­im­acy to the illeg­al war. How­ever, some coun­tries with­in the UN had their doubts and the USA asked Britain’s listen­ing post, GCHQ, to step up its sur­veil­lance game. Fore­warned is fore­armed in del­ic­ate inter­na­tion­al nego­ti­ations.

How do we know this? A brave GCHQ whis­tleblower called Kath­er­ine Gun leaked the inform­a­tion to The Observ­er. For her pains, she was threatened with pro­sec­u­tion under the dra­coni­an terms of the UK’s 1989 Offi­cial Secrets Act, and faced two years in pris­on. The case was only dropped three weeks before her tri­al was due to begin, partly because of the feared pub­lic out­cry, but mainly because her law­yers threatened to use the leg­al defence of “neces­sity” – a defence won only three years before dur­ing the case of MI5 whis­tleblower, Dav­id Shayler. Tan­gen­tially, a film is this year being made about Gun’s story.

We also have con­firm­a­tion from one of the early 2013 Edward Snowden dis­clos­ures that GCHQ had hacked its way into the Bel­ga­com net­work – the nation­al tele­com­mu­nic­a­tions sup­pli­er in Bel­gi­um. Even back then there was an out­cry from the EU bod­ies, wor­ried that the UK (and by exten­sion its closest intel­li­gence buddy the USA), would gain lever­age with stolen know­ledge.

So, yes, it is per­fectly feas­ible that the UK could have done this, even though it was illeg­al back in the day. GCHQ’s inces­tu­ous rela­tion­ship with the America’s NSA gives it massively great­er cap­ab­il­it­ies than oth­er European intel­li­gence agen­cies, and the EU knows this well, which is why is is con­cerned to retain access to the UK’s defence and secur­ity powers post-Brexit, and also why it has jumped to these con­clu­sions about hack­ing.

But that was then and this is now. On 1st Janu­ary 2017 the UK gov­ern­ment finally signed a law called the Invest­ig­at­ory Powers Act, gov­ern­ing the leg­al frame­work for GCHQ to snoop. The IPA gave GCHQ the most dra­coni­an and invas­ive powers of any west­ern demo­cracy. Oth­er­wise known in the Brit­ish media as the “snoop­ers’ charter”, it had been defeated in Par­lia­ment for years, but Theresa May, then Home Sec­ret­ary, pushed it through in the teeth of leg­al and civil soci­ety oppos­i­tion. This year the High Court ordered the UK gov­ern­ment to redraft the IPA as it is incom­pat­ible with European law.

The IPA leg­al­ised what GCHQ had pre­vi­ously been doing illeg­ally post-9/11, includ­ing bulk metadata col­lec­tion, bulk data hack­ing, and bulk hack­ing of elec­tron­ic devices.

It also notion­ally gave the gov­ern­ment great­er over­sight of the spies’ actions, but these meas­ures remain weak and offer no pro­tec­tion if the spies choose to keep quiet about what they are doing. So if GCHQ did indeed hack the EU, it is feas­ible that the For­eign Sec­ret­ary and the Prime Min­is­ter remained ignor­ant of what was going on, des­pite being leg­ally required to sign off on such oper­a­tions. In which case the spies would be run­ning amok.

It is also feas­ible that they were indeed fully briefed and an argu­ment could be made that they would be cor­rect to do so. GCHQ and the oth­er spy agen­cies are required to pro­tect “nation­al secur­ity and the eco­nom­ic well-being” of Great Bri­tain, and I can cer­tainly see a strong argu­ment could be made that they were doing pre­cisely that, provided they had pri­or writ­ten per­mis­sion for such a sens­it­ive oper­a­tion, if they tried to get advance intel­li­gence about the EU’s Brexit strategy.

This argu­ment becomes even more power­ful when you con­sider the prob­lems around the fraught issue of the bor­der between North­ern Ire­land and Ire­land, an issue about which the EU is being par­tic­u­larly intransigent. If a deal is not made then the 1998 Good Fri­day Agree­ment could be under threat and civil war might again break out in North­ern Ire­land. You can­not get much more “nation­al secur­ity” than that and GCHQ would be jus­ti­fied in this work, provided it has acquired the neces­sary leg­al sign-offs from its polit­ic­al mas­ters.

How­ever, these argu­ments will do noth­ing to appease the enraged EU offi­cials. No doubt the UK gov­ern­ment will con­tin­ue to state that this was a leak from a Brus­sels insider and oil will, pub­licly at least, be seen to have been poured on troubled dip­lo­mat­ic waters.

How­ever, behind the scenes this will mul­tiply the mutu­al suspicion,and will no doubt unleash a witch hunt through the cor­ridors of EU power, with top civil ser­vant Martin Sel­mayr (aka The Mon­ster) cast as Witchfind­er Gen­er­al. With him on your heels, you would have to be a very brave leak­er, whis­tleblower, or even paid-up agent work­ing for the Brits to take such a risk.

So, per­haps this is indeed a GCHQ hack. How­ever jus­ti­fi­able this might be under the leg­ally neb­u­lous concept of “nation­al secur­ity”, this will pois­on fur­ther the already tox­ic Brexit nego­ti­ations. As Angela Merkal fam­ously if dis­en­gen­ously said after the Snowden rev­el­a­tion that the USA had hacked her mobile phone: “no spy­ing among friends”. But per­haps this is an out­dated concept – nor has the EU exactly been entirely friendly to Brexit Bri­tain.

I am just wait­ing for the first hys­ter­ic­al claim that it was the Rus­si­ans instead or, fail­ing them, former Trump strategist-in-chief, Steve Ban­non, reportedly cur­rently on a mis­sion to build a divis­ive Alt-Right Move­ment across Europe…..

The US Election

No doubt you, as well as I, have been watch­ing the 2016 USA pres­id­en­tial elec­tion with a sense of appalled fas­cin­a­tion — has ever a cam­paign been fought so viciously in mod­ern West­ern polit­ics?

But the Amer­ic­ans have made their choice (between the dev­il and the deep blue sea), and will have to live with it. I hope it works out well for them.

How­ever, my focus is more on the implic­a­tions for the rest of the world. As a post-Brexit Brit based in Brus­sels, these are many-layered.

From the Brexit per­spect­ive the Trump vic­tory could be good for the UK — he appears to be more sym­path­et­ic to the so-called “spe­cial rela­tion­ship” than Obama.  He is also prob­ably more likely to try to cut deals with Rus­sia over Ukraine and the ongo­ing war in Syr­ia than the ultra-hawk­ish Hil­lary Clin­ton could ever bring her­self to do.

This can only be good for Europe, as the sanc­tions put in place after the US-backed Ukraine coup in 2014 are hurt­ing European trade.  Yet again, Europe has been caught between Rus­sia and the USA.

Also, let us not for­get the infam­ous quote from Assist­ant Sec­ret­ary of State, Vic­tor­ia Nuland, who said in 2014 “fuck the EU”, when it came to decision mak­ing in plan­ning the Ukrain­i­an coup.

But my main point is the European establishment’s response to the Trump pres­id­en­tial vic­tory. And let us not deceive ourselves here — this was an emphat­ic vic­tory. The Amer­ic­an people wanted a can­did­ate for change, for a push-back against the per­ceived Wash­ing­ton polit­ic­al élite.

Per­haps the elec­tion could have swung in anoth­er dir­ec­tion towards anoth­er can­did­ate for change — if Bernie Sanders had been the Demo­crat nom­in­ee.  Alas, as we know from the DNC files leaked to and pub­lished by Wikileaks, his cam­paign was under­mined by his own party in favour of Hil­lary Clin­ton, while pro­mot­ing Trump as the Repub­lic­an can­did­ate that Clin­ton could beat.

Hillary_Clinton_Pant_Suits_2016Hubris is nev­er a good look, just like “pant” suits.

What pains me most is the European main­stream media’s report­ing of Trump’s vic­tory: “lib­er­al demo­cracy” is under threat no less, and pop­u­lism is on the rise.

How­ever, those most wor­ried about “lib­er­al demo­cracy” tend to be the tech­no­crat­ic Euro­crats such as European Coun­cil Pres­id­ent Don­ald Tusk and European Com­mis­sion Pres­id­ent Jean-Claude Jun­ck­er.  And they are the very people try­ing to ram through the thor­oughly *neo*-liberal agen­das of CETA and  the Trans-Atlantic Trade Invest­ment Part­ner­ship — oth­er­wise known as TTIP, widely res­isted across Europe as a rape of our demo­cra­cies.

TTIP, if passed, would elim­in­ate any mean­ing­ful nation­al sov­er­eignty, repla­cing it with a glob­al cor­por­at­ist hege­mony that could sue our nation­al gov­ern­ments if they passed laws that could con­ceiv­ably — some­time in the future — pass laws that could — con­ceiv­ably in the future — inhib­it the profit-mak­ing cap­ab­il­it­ies of the cor­por­a­tions.

That, and nation­al asset-strip­ping, is the pure defin­i­tion of neo-lib­er­al­ism, and that is what our European over­lords want to enact.  Yet, at the same time, they are inveigh­ing against the death of “lib­er­al demo­cracy” after the elec­tion of Don­ald Trump.

Am I miss­ing some­thing here?