UK spies get a B+ for intrusive surveillance in 2010

Black_sheep?The quan­go­crats charged with over­see­ing the leg­al­ity of the work of the UK spies have each pro­duced their undoubt­ably author­it­at­ive reports for 2010. 

Sir Paul Kennedy, the com­mis­sion­er respons­ible for over­see­ing the inter­cep­tion of com­mu­nic­a­tions, and Sir Peter Gib­son, the intel­li­gence ser­vices com­mis­sion­er, both pub­lished their reports last week.  

Gib­son has, of course, hon­our­ably now stood down from his 5‑year over­sight of MI5, MI6, and GCHQ in order to head up the inde­pend­ent enquiry into spy com­pli­city in tor­ture. 

And both the reports say, nat­ur­ally, that it’s all hunky-dorey.  Yes, there were a few mis­takes (well, admis­trat­ive errors — 1061 over the last year), but the com­mis­sion­ers are con­fid­ent that these were neither malign in intent nor an indic­a­tion of insti­tu­tion­al fail­ings. 

So it appears that the UK spies gained a B+ for their sur­veil­lance work last year.

Both com­mis­sion­ers pad out their reports with long-win­ded descrip­tions of what pre­cisely their role is, what powers they have, and the full, frank and open access they had to the intel­li­gence officers in the key agen­cies. 

They seem sub­limely unaware that when they vis­it the spy agen­cies, they are only giv­en access to the staff that the agen­cies are happy for them to meet — intel­li­gence officers pushed into the room, primped out in their party best and scrubbed behind the ears — to tell them what they want to hear. 

Any intel­li­gence officers who might have con­cerns have, in the past, been rig­or­ously banned from meet­ing those charged with hold­ing the spies to demo­crat­ic account.….

.…which is not much dif­fer­ent from the over­sight mod­el employed when gov­ern­ment min­is­ters, the notion­al polit­ic­al mas­ters of MI6, MI6 and GCHQ, sign off on bug­ging war­rants that allow the aggress­ive invest­ig­a­tion of tar­gets (ie their phones, their homes or cars, or fol­low them around).  Then the min­is­ters are only giv­en a sum­mary of a sum­mary of a sum­mary, an applic­a­tion that has been titrated through many mana­geri­al, leg­al and civil ser­vice fil­ters before land­ing on their desks.  

So, how on earth are these min­is­ters able to make a true eval­u­ation of the worth of such an applic­a­tion to bug someone? 

They just have to trust what the spies tell them — as do the com­mis­sion­ers. 

Can the product of bugs be used as court evidence in the UK?

Black_sheep?_textAn inter­est­ing story on Chan­nel 4 TV news today: four Lon­don police officers are being pro­sec­uted for beat­ing up Babar Ahmad in 2003 while arrest­ing him on sus­pi­cion of ter­ror­ism charges.  And it turns out that the key evid­ence for the pro­sec­u­tion comes not from Ahmad’s com­plaint, nor from pho­to­graphs of his injur­ies, but from the product of an eaves­drop­ping device, more com­monly known as a bug, planted in his home by the UK Secur­ity Ser­vice, MI5.

It’s inter­est­ing in itself that MI5 has released this inform­a­tion for court pro­ceed­ings against Met counter-ter­ror­ism officers.  I shall res­ist spec­u­lat­ing now, but shall be watch­ing devel­op­ments with interest.

But the point I want to make quickly today is about the use of inter­cept mater­i­al as leg­al evid­ence in UK courts.  This can poten­tially be cru­cial for law­yers when speak­ing to their cli­ents, journ­al­ists who wish to pro­tect their sources, polticial act­iv­ists, and those who simply wish to pro­tect their inher­ent right to pri­vacy as the encroach­ing elec­tron­ic sur­veil­lance state con­tin­ues to swell.

It can also be poten­tially use­ful inform­a­tion for MPs talk­ing to their con­stitu­ents.  Indeed, return­ing to the years-long case of Babar Ahmad, there was a media furore in 2008 when it was revealed that the Met had author­ised the bug­ging of his con­ver­sa­tions with his MP Sad­iq Khan dur­ing pris­on vis­its.  

And who was the com­mand­ing officer who author­ised this?  Step for­ward former Met Counter Ter­ror­ism supremo, Andy Hay­man, that much esteemed defend­er of Brit­ish civil liber­ties who recently sug­ges­ted “dawn raids” and “snatch squads ” be used against polit­ic­al act­iv­ists.

Unlike most oth­er west­ern coun­tries, the UK does not allow the use of tele­phone inter­cept as evid­ence in a court of law.  As I’ve writ­ten before, it’s a hangover from the cold war spy­ing game.  MI5 has tra­di­tion­ally seen phone taps as a source of intel­li­gence, not evid­ence, des­pite the fact that much of their work is notion­ally more evid­en­tially based in the 21st cen­tury.  It also still remains a sub­ject of debate and a fiercely fought rear­gard action by the spies them­selves, who claim telecheck is a “sens­it­ive tech­nique”. 

As if we don’t all know that our phones can be bugged.….

How­ever, eaves­drop­ping devices that are planted in your prop­erty — your home, your office, even your car — can indeed pro­duce evid­ence that can be used against you in a court of law.   All this requires a Home Office War­rant (HOW) to make it leg­al, but Home Sec­ret­ar­ies are tra­di­tion­ally reluct­ant to refuse a request in the interests of “nation­al secur­ity”.  Moreover, if the own­er of the prop­erty agrees to a bug, even without a HOW, they can be leg­ally used.  So if you live in ren­ted accom­mod­a­tion, befriend your land­lord!

Not a lot of people know all that — but we should.