Part Two of my recent interview on the excellent, independent and fearless Real News Network:
The Real News Network on Whistleblowing, Part 2
Part Two of my recent interview on the excellent, independent and fearless Real News Network:
Part Two of my recent interview on the excellent, independent and fearless Real News Network:
An interesting article in yesterday’s Telegraph by political commentator Peter Oborne about Abu Qatada. This case has caused much sound and fury amongst the British political and media classes over the last couple of days. Oborne’s article strips out the bombast and takes us back to basic principles — as did this other recent article in the Independent a day or two ago by Christina Patterson.
However, what really grabbed my attention in Oborne’s article was his reference to David Maxwell Fyfe, the British politician and lawyer who was tasked by Sir Winston Churchill to lay the foundations of the European system of human rights after the atrocities of World War Two — a period when the need for basic rights was seared into people’s minds.
While Maxwell Fyfe laid some good foundations for European law, his name also has resonance to all who worked for the UK domestic Security Service, MI5, during or in the immediate aftermath of the Cold War. It was Maxwell Fyfe’s directive, issued in 1952, that was instrumental in allowing MI5 to spy on British political activists subversives. This directive remained in place until 1989, when MI5 was placed on a legal footing for the first time in its then 80 year history, with the Security Service Act 1989. Here is a segment about the Maxwell Fyfe directive from my old book, “Spies, Lies and Whistleblowers”:
“Background to subversion
At this time MI5 was still using the same criteria for recording individual subversives and their sympathisers as was set out by Home Secretary David Maxwell-Fyfe in 1952. He called on the services to identify any individual engaged in undermining Parliamentary democracy, national security and/or the economic well-being of the UK by violent, industrial or political means. In fact, many would argue that groups who used only political means to get their point across were merely exercising their democratic rights. In fact, MI5 used photos of demonstrations, copies of election lists and even lists of subscribers to radical left-wing book clubs as indicators of subversive sympathy and membership. Of course, the world was a very different place when I joined the section, almost 40 years after Maxwell-Fyfe’s declaration, not least because of the disintegration of the Soviet Union and its Eastern bloc allies.
From Maxwell-Fyfe’s statement to Parliament, which was never made law, MI5 and subsequent governments used to argue that all members of certain parties –such as the Communist Party of Great Britain (CPGB) or later the bewildering array of Trotskyists, with names like the International Marxist Group (IMG), Workers’ Revolutionary Party (WRP) Major and Minor, Revolutionary Communist Party (RCP) and Revolutionary Communist Group (RCG), anarchists and the extreme right — were threats to the security of the state or our democratic system. This in itself is a contentious proposition. None of these Trotskyist groups was cultivating Eastern bloc finance or building bombs in smoky back rooms, but were instead using legitimate democratic methods to make their case, such as standing in elections, organising demonstrations and educating ‘the workers’. They certainly had no allegiance to a foreign power, the primary raison d’etre for the investigation of subversion, because, unlike the Communist Party, they abhorred the Eastern bloc.
Since MI5 was effectively investigating individuals for holding opinions the government did not like — a very un-British position — it was always at pains to point out that it took its responsibilities with regard to human rights very seriously, although not seriously enough to ensure that these activities were regulated by a legal framework. All the service’s phone taps prior to the passing of the Interception of Communications Act (IOCA) in 1985 were unlawful because there was no legislation governing the interception of communications.”
The directive was not a legally binding document, but it was the basis for the work of F Branch, MI5’s massive section tasked with hunting “subversives” during those decades. It allowed intelligence officers great latitude in interpreting what was deemed subversive activity and who were “legitimate’ targets. And yet there were many, many instances of the abuse of this system by paranoid, senior intelligence officers over the years. More information can be found in this chapter on subversion from the book.
So my point is, yes, Britain ostensibly led the way in developing a system to protect human rights in the aftermath of the Second World War. But the very architect of that system then produced the directive that gave British spies carte blanche to investigate political dissidents within their own country, which they abused for decades.
And now we have commentators rightly saying that we should uphold basic human rights’ values in cases such as Abu Qatada. But what about all the UK activists who were illegally investigated by MI5 from 1952 to the 1990s? And, more pertinently today, what about all the activists and protesters who have been aggressively spied upon by the unaccountable, undercover police of the NPOIU since the 1990s, under the illegal category of “domestic extremists”?
I was heartened to see 87 year old artist and peace activist John Catt is suing the NPOIU for intrusive surveillance over the last 6 years. Perhaps he should quote Maxwell Fyfe on human rights during his case?
I have been watching with a certain cynical interest the unfolding of Operation Weeting, one of the plethora of Metropolitan Police investigations into the UK phone hacking scandal, involving many of our favourite players: shady private investigators, predatory journalists, bent coppers, and politicians contorting themselves in an effort to protect both their own reputations and their Friends in High Places. And the ripples are spreading internationally. Nothing like a little bit of globilisation.…
The Guardian newspaper has made most of the early running in exposing the corrupt practices of the now defunct News of the Screws, highlighting all the dubious tabloid practices of hacking, blagging, pinging, and god knows what else. All this done with the help of bottom-feeding private investigators, but also manifestly with the help of corrupt police officers who were not averse to the idea of taking a bribe to help their friends in Wapping. And how far might this “trickle down corruption” might have gone, um, up?
Despite the self-righteousness of other UK newspapers, it has also now become apparent that these dubious and potentially illegal practices were common throughout Fleet Street, and other national newspapers are also under investigation.
And yet it appears that all this could have been nipped in the bud over a decade ago, when Steven Nott, a concerned British citizen, tried to expose the vulnerability of mobile phones after he stumbled across the practice by accident. He took his findings to a variety of national newspapers, all of whom seem to have initially thought there was a good story, but every time the news was buried. Well, I suppose it would be, wouldn’t it — after all, why would hacks expose a practice that could be so useful?
But back to the dear old OSA and the media.
In yesterday’s Observer newspaper, it was reported that the police have threatened the journalists at The Guardian with the Official Secrets Act (1989) to force them to disclose the identity of their source amongst the police officer(s) in Operation Weeting who leaked useful information to the newspaper to help its exposure of illegal practices. And, rightly, the great and the good are up in arms about this draconian use of a particularly invidious law:
“John Cooper, a leading human rights lawyer and visiting professor at Cardiff University, echoed Evans’s concerns. “In my view this is a misuse of the 1989 act,” Cooper said. “Fundamentally the act was designed to prevent espionage. In extreme cases it can be used to prevent police officers tipping off criminals about police investigations or from selling their stories. In this instance none of this is suggested, and many believe what was done was in the public interest.
“Cooper added: “The police action is very likely to conflict with article 10 of the European Convention on Human Rights, which protects freedom of speech.”
But I think he’s missing a bit of recent legal history here. The UK had the 1911 OSA which was supposed to protect the country from espionage and traitors, who faced 14 years in prison upon conviction. Needless to say this provision was rarely used — most of the cold war Soviet moles in the establishment were allowed to slink off to the USSR, or at the very most be stripped of their “K”.
However, as I’ve written before, the revised 1989 OSA was much more useful for the establishment. It was specifically put in place to stop whistleblowing after the embarrassment of the 1980s Clive Ponting/Belgrano case.
The new act was specifically designed to strip away the “public interest” defence used by Ponting in his trial, and also to penalise journalists who had the temerity to report leaks and whistleblowing from the heart of the establishment. The OSA (1989) has been used extensively since the late 1990s, despite the fact that many senior figures in the former Labour government opposed its provisions when it went through Parliament. Journalists are just as liable as whistleblowers or “leakers” under the provisions of this act (the infamous Section 5).
So, back to The Guardian and its legal champions. I agree with what they are saying: yes, the 1989 OSA has a chilling effect on freedom of speech that unduly victimises both the whistleblower and the journalist; yes, it is a uniquely draconian law for a notional Western democracy to have on its books; yes, there should be a defence of “acting in the public interest”; and yes, the OSA should be deemed to be incompatible with Section 10(2) of the European Convention of Human Rights, guaranteeing free speech, which can only be circumscribed in the interests of “national security”, itself a legally undefined, nebulous, and controversial phrase under British law.
But if all the outraged lawyers read up on their case law, particularly the hearings and legal dogfights in the run up to Regina v Shayler cases, they will see that all these issues have been addressed, apparently to the satisfaction of the honourable m’luds who preside over British courts, and certainly to the establishment figures who like to use the OSA as their “get out of jail free” card.
So I wish The Guardian journalists well in this confrontation. But I have to say, perhaps they would not have found themselves in this situation today vis a vis the OSA if, rather than just a few brave journalists, the media institutions themselves had put up a more robust fight against its provisions during its bastard birth in 1989 and its subsequent abuse.
It has been reported today that the police may have downgraded their investigation to a purely criminal matter, not the OSA. Whatever happens does not obviate the need for the media to launch a concerted campaign to call for reform of the invidious OSA. Just because one of their own is no longer threatened does not mean the chilling threat of this law has gone away. As Martin Luther King said while imprisoned in 1963:
“Injustice anywhere is a threat to justice everywhere.”
I would also suggest the new generation working in the British media urgently read this excellent booklet produced by John Wadham of Liberty and Article 19 way back in 2000 Download Article_19_Liberty_on_OSA_2000, to remind themselves of fundamental arguments against draconian legislation such as the OSA and in favour of the freedom of the press.
A cache of highly classified intelligence documents was recently discovered in the abandoned offices of former Libyan spy master, Foreign Minister and high-profile defector, Musa Kusa.
These documents have over the last couple of weeks provided a fascinating insight into the growing links in the last decade between the former UK Labour government, particularly Tony Blair, and the Gaddafi régime. They have displayed in oily detail the degree of toadying that the Blair government was prepared to countenance, not only to secure lucrative business contracts but also to gloss over embarrassing episodes such as Lockerbie and the false flag MI6-backed 1996 assassination plot against Gaddafi.
These documents have also apparently revealed direct involvement by MI6 in the “extraordinary rendition” to Tripoli and torture of two Libyans. Ironically it has been reported that they were wanted for being members of the Libyan Islamic Fighting Group, the very organisation that MI6 had backed in its failed 1996 coup.
The secular dictatorship of Col Gaddafi always had much to fear from Islamist extremism, so it is perhaps unsurprising that, after Blair’s notorious “deal in the desert” in 2004, the Gaddafi régime used its connections with MI6 and the CIA to hunt down its enemies. And, as we have all been endlessly told, the rules changed after 9/11…
The torture victims, one of whom is now a military commander of the rebel Libyan forces, are now considering suing the British government. Jack Straw, the Foreign Secretary at the time, has tried to shuffle off any blame, stating that he could not be expected to know everything that MI6 does.
Well, er, no — part of the job description of Foreign Secretary is indeed to oversee the work of MI6 and hold it to democratic accountability, especially about such serious policy issues as “extraordinary rendition” and torture. Such operations would indeed need the ministerial sign-off to be legal under the 1994 Intelligence Services Act.
There has been just so much hot air from the current government about how the Gibson Torture Inquiry will get to the bottom of these cases, but we all know how toothless such inquiries will be, circumscribed as they are by the terms of the Inquiries Act 2005. We also know that Sir Peter Gibson himself has for years been “embedded” within the British intelligence community and is hardly likely to hold the spies meaningfully to account.
So I was particularly intrigued to hear that the the cache of documents showed the case of David Shayler, the intelligence whistleblower who revealed the 1996 Gaddafi assassination plot and went to prison twice for doing so, first in France in 1998 and then in the UK in 2002, was still a subject of discussion between the Libyan and UK governments in 2007. And, as I have written before, as late as 2009 it was obvious that this case was still used by the Libyans for leverage, certainly when it came to the tit-for-tat negotiations around case of the murder in London outside the Libyan Embassy of WPC Yvonne Fletcher in 1984.
Of course, way back in 1998, the British government was all too ready to crush the whistleblower rather than investigate the disclosures and hold the spies to account for their illegal and reckless acts. I have always felt that this was a failure of democracy, that it seriously undermined the future work and reputation of the spies themselves, and particularly that it was such a shame for the fate of the PBW (poor bloody whistleblower).
But it now appears that the British intelligence community’s sense of omnipotence and of being above the law has come back to bite them. How else explain their slide into a group-think mentality that participates in “extraordinary rendition” and torture?
One has to wonder if wily old Musa Kusa left this cache of documents behind in his abandoned offices as an “insurance policy”, just in case his defection to the UK were not to be as comfortable as he had hoped — and we now know that he soon fled to Qatar after he had been questioned about the Lockerbie case.
But whether an honest mistake or cunning power play, his actions have helped to shine a light into more dark corners of British government lies and double dealing vis a vis Libya.…
The Guardian’s spook commentator extraordinaire, Richard Norton-Taylor, has reported that the current chair of the Intelligence and Security Committee (ISC) in the UK Parliament, Sir Malcolm Rifkind, wants the committee to finally grow a pair. Well, those weren’t quite the words used in the Grauny, but they certainly capture the gist.
If Rifkind’s stated intentions are realised, the new-look ISC might well provide real, meaningful and democratic oversight for the first time in the 100-year history of the three key UK spy agencies — MI5, MI6, and GCHQ, not to mention the defence intelligence staff, the joint intelligence committee and the new National Security Council .
For many long years I have been discussing the woeful lack of real democratic oversight for the UK spies. The privately-convened ISC, the democratic fig-leaf established under the aegis of the 1994 Intelligence Services Act (ISA), is appointed by and answerable only to the Prime Minister, with a remit only to look at finance, policy and administration, and without the power to demand documents or to cross-examine witnesses under oath. Its annual reports are always heavily redacted and have become a joke amongst journalists.
When the remit of the ISC was being drawn up in the early 1990s, the spooks were apoplectic that Parliament should have any form of oversight whatsoever. From their perspective, it was bad enough at that point that the agencies were put on a legal footing for the first time. Spy thinking then ran pretty much along the lines of “why on earth should they be answerable to a bunch of here-today, gone-tomorrow politicians, who were leaky as hell and gossiped to journalists all the time”?
So it says a great deal that the spooks breathed a huge, collective sigh of relief when the ISC remit was finally enshrined in law in 1994. They really had nothing to worry about. I remember, I was there at the time.
This has been borne out over the last 17 years. Time and again the spies have got away with telling barefaced lies to the ISC. Or at the very least being “economical with the truth”, to use one of their favourite phrases. Former DG of MI5, Sir Stephen Lander, has publicly said that “I blanche at some of the things I declined to tell the committee [ISC] early on…”. Not to mention the outright lies told to the ISC over the years about issues like whistleblower testimony, torture, and counter-terrorism measures.
But these new developments became yet more fascinating to me when I read that the current Chair of the ISC proposing these reforms is no less than Sir Malcolm Rifkind, crusty Tory grandee and former Conservative Foreign Minister in the mid-1990s.
For Sir Malcolm was the Foreign Secretary notionally in charge of MI6 when the intelligence officers, PT16 and PT16/B, hatched the ill-judged Gaddafi Plot when MI6 funded a rag-tag group of Islamic extremist terrorists in Libya to assassinate the Colonel, the key disclosure made by David Shayler when he blew the whistle way back in the late 1990s.
Obviously this assassination attempt was highly reckless in a very volatile part of the world; obviously it was unethical, and many innocent people were murdered in the attack; and obviously it failed, leading to the shaky rapprochement with Gaddafi over the last decade. Yet now we are seeing the use of similar tactics in the current Libyan war (this time more openly) with MI6 officers being sent to help the rebels in Benghazi and our government openly and shamelessly calling for régime change.
But most importantly from a legal perspective, in 1996 the “Gaddafi Plot” MI6 apparently did not apply for prior written permission from Rifkind — which they were legally obliged to do under the terms of the 1994 Intelligence Services Act (the very act that also established the ISC). This is the fabled, but real, “licence to kill” — Section 7 of the ISA — which provides immunity to MI6 officers for illegal acts committed abroad, if they have the requisite ministerial permission.
At the time, Rifkind publicly stated that he had not been approached by MI6 to sanction the plot when the BBC Panorama programme conducted a special investigation, screened on 7 August 1997. Rifkind’s statement was also reported widely in the press over the years, including this New Statesman article by Mark Thomas in 2002.
That said, Rifkind himself wrote earlier this year in The Telegraph that help should now be given to the Benghazi “rebels” — many of whom appear to be members of the very same group that tried to assassinate Gaddafi with MI6’s help in 1996 — up to and including the provision of arms. Rifkind’s view of the legalities now appear to be somewhat more flexible, whatever his stated position was back in the 90s.
Of course, then he was notionally in charge of MI6 and would have to take the rap for any political fall-out. Now he can relax into the role of “quis custodiet ipsos custodes?”. Such a relief.
I shall be watching developments around Rifkind’s proposed reforms with interest.
Over the last few years there have been a number of egregious cases of police and state cover-ups in the UK around the deaths and wrongful prosecutions of innocent people.
This brings to my mind the appalling miscarriage of justice that occurred in the 1990s when two Palestinian students, a young woman called Samar Alami and a young man called Jawad Botmeh, were both wrongfully convicted of conspiracy to bomb the Israeli embassy in London in July 1994.
In this case a highly sophisticated car bomb as detonated outside the embassy. Thankfully nobody was killed, but a number of people suffered minor injuries. Alami and Botmeh had connections to Palestinian political support groups based in London at the time, many of whom were rounded up during the investigation. Botmeh had naively helped out a shadowy and never-identified figure called Reda Moghrabi, who asked for assistance in buying a second-hand car at auction. This was the car that was used in the explosion.
Why is this case an example of establishment cover-up? Well, this was one of the cases that former MI5 officer David Shayler blew the whistle on during the 1990s. He revealed the existence of two relevant documents that should have been disclosed to the defence but, for some unaccountable reason, were not.
The first, an agent report from a credible and trusted source, pointed to a non-Palestinian group planning the attack before it had even occurred. This report was not acted upon by the MI5 officer responsible, who then tried to cover up her mistake. She was caught out, and there was a much-discussed internal inquiry into the matter within MI5’s G Branch (international terrorism) in late 1994.
But there was another document — one written by G9/1, the senior MI5 officer who oversaw the post-incident investigation. His view was that Mossad, the external Israeli intelligence agency, had carried out a controlled explosion outside its own embassy (the shadowy and unidentified Reda Moghrabi being the potentially crucial missing link) in order to acquire the long-demanded additional security protection around Israeli interests in the UK, and also to shatter the Palestinian support networks in London — a long-term objective of Mossad.
The government at the time tried to dismiss these disclosures. However, the much-missed Private Eye investigative journalist, Paul Foot, and the indefatigable lawyer, Gareth Peirce, followed them up and pursued them tirelessly through the media and the courts.
And guess what? It turns out that these two key documents had indeed not been disclosed to the legal defence team during the trial of Alami and Botmeh — and not just by the hapless spooks. It emerged during the appeal hearing that no fewer than seven people from a variety of police and intelligence organisations had failed to disclose the relevant documentation to the defence. This cannot be explained away as an innocent oversight, a cock-up — it bears all the hallmarks of a deliberate, systemic establishment cover-up.
All this represented, at the very least, a need for a retrial but also a possible gross miscarriage of justice. And yet, while acknowledging that these documents did indeed exist during the appeal hearing and beyond, the presiding m’luds decided to ignore all case law and European law and let those two innocents rot in prison. After all, it would be terribly embarrassing to vindicate the actions of an intelligence whistleblower, wouldn’t it?
As a result, the poor pawns in this sick establishment game, Jawad Botmeh and Samar Alami, ended up serving their full sentences, despite the overwhelming body of evidence proving their innocence, and were finally released in 2008 and 2009 respectively.
For anyone interested in the detailed horror story behind this flagrant miscarriage of justice, here is the relevant chapter from my long-defunct book: Download The_Israeli_Embassy_Case
UK Prime Minister, David Cameron, reportedly made the startling statement recently that the military intervention in Libya “unlike Iraq, is necessary, legal and right”.
Would it not be wonderful if he could take the next logical step towards joined-up thinking and consider sending our esteemed Middle East Peace Envoy, a certain Mr T Blair, over for a spot of porridge at the International Criminal Court in The Hague? After all, Cameron has now clearly implied that the Iraq war was “unnecessary, illegal and wrong”.….
But back to Libya. With the ongoing crisis — now war — much is being written about how the previous UK government collaborated with the Gaddafi régime in the last decade — while tacitly glossing over the last year of Coalition government where, no doubt, similar levels of coöperation and back-slapping and money-grubbing were going on at the highest levels to ensure the continuing flow of oil contracts to the UK.
But, yes, we should be dissecting the Labour/Gaddafi power balance. Gaddafi had New Labour over the proverbial (oil) barrel from the late 1990s, when MI5 whistleblower David Shayler exposed the failed and illegal MI6 assassination plot against Colonel Gaddafi, using as fall-guys a rag-tag group of Islamic extremists. The newly-elected Labour government’s knee-jerk response at the time was to believe the spook’s denials and cover-up for them. Perhaps not so surprising, as the government ministers of the day were uncomfortably aware that the spies held files on them. But this craven response did leave the government position exposed, as Gaddafi well knew.
The CIA was fully cognisant of this failed plot at the time, as were the French intelligence services. The Gaddafi Plot is once again being referenced in the media, including the Telegraph, and a recent edition of the Huffington Post. The details are still relevant, as it appears that our enterprising spooks are yet again reaching out to a rag-tag group of rebels — primarily Islamists and the Senussi royalists based around Benghazi.
The lessons of the reckless and ill-thought out Gaddafi Plot were brushed under the carpet, so history may yet again be doomed to repeat itself. Yes, Gaddafi has been one of the biggest backers of terrorism ever, and yes he has brutalised parts of his own population, but if he were deposed how can the West be sure that those stepping into the power vacuum would not be even more dangerous?
The Libyan government continued to use the 1996 MI6 assassination plot as leverage in its negotiations with the New Labour government right up until (publicly at least) 2009. Musa Kousa, the current Foreign Minister, played a key role throughout. For many years Kousa was the head of the Libyan External Security Organsiation and was widely seen as the chief architect of international Libyan-backed terrorism against the USA, the UK and France.
Another apparent example of this moral blackmail caught my eye recently — this report in the Daily Mail. Saif al-Islam Gaddafi was afforded MI6-backed protection when he was finally allowed into the UK in September 2002 to study at the LSE.
The timing was particularly interesting, as only months earlier Saif had won a libel case against the UK’s Sunday Telegraph newspaper. A grovelling apology was made by the newspaper, but Saif refrained from asking for “exemplary damages” — which he would almost certainly have won. The resulting pay-off for this restraint appears to be that a mere five months later he was welcomed into the UK with MI6-facilitated protection.
Saif’s relations with the UK had not always been so rosy. As background to this case, in 1995 the Sunday Telegraph had fallen hook, line and sinker for a MI6 classic propaganda operation. As The Guardian reported, the secretive MI6 media manipulation section, Information Operations, (I/Ops), had successfully spun a fake story to hapless spook hack, Con Coughlin, that Gaddafi Junior was involved in currency fraud. This story was fake, but the paper trail it produced was used by the spies as a pretext to prevent Saif from entering the UK at the time.
By 2002 this was all old history, of course. Saif was welcomed to the UK, officially to study for his MA and PhD at the London School of Economics (and showing his gratitude to that august institution with a hefty donation of £1.5 million — it makes the new tuition fees for UK students seem better value for money), and unofficially to chum up to various Establishment enablers to end Libya’s pariah status, open up lucrative trade channels, and get the SAS to train up Libya’s special forces.
The UK military must be just loving that now.….
So I get the feeling that the UK government has over the last decade indeed “danced with the devil”. After decades of viewing Libya and Colonel Gaddafi as a Priority One JIC intelligence target, the UK government fell over itself to appease the Gaddafi régime in the wake of the bungled assassination attempt in 1996 and the libelling of his son. These were the sticks Gaddafi used; the carrots were undoubtedly the Saif/MI6-facilitated oil contracts.
Of course, all this is now pretty much a moot point, following Dave Cameron’s “necessary, legal and right” military intervention. If the wily old Colonel manages to hang on grimly to some semblence of power (and he has an impressive track-record of surviving against the odds), then I doubt if he’ll be happy to coöperate with British oil companies in the future. At the very least.
Gaddafi has already threatened “vengeance” against the West, and it was reported today that MI5 is taking this all-too-preditable risk seriously.
If Gaddafi is deposed, who can realistically predict the intentions and capabilities of those who will fill the power vacuum? We should have learnt from Afghanistan and Iraq: my enemy’s enemy is my friend — until he becomes my enemy again.….
November 5th has long had many levels of resonance for me: Bonfire Night of course, when I was a child — fireworks in the garden and burnt baked potatoes from the fire; since the age of seven, celebrating the birthday of my oldest friend; and, since 2002, the memory of having to stand up in the witness stand in an Old Bailey court room in London to give a mitigation plea at the trial of my former partner, seeing his sentence reduced from the expected thirteen months to a “mere” six, and then having to deal for weeks with the media fall-out. A strange mix of memories.
David Shayler endured a “Kafkaesque trial” in 2002 in the sense that he was not allowed to make a defence due to government-imposed gagging orders, despite all the relevant material already having been widely pubished in the media. The issues were summed up well in this New Statesman article from that time.
But the current debate about control orders used against so-called terrorist suspects — my emphasis — adds a whole new dimension to the notorious phrase.
This recent, excellent article in The Guardian by lawyer Matthew Ryder about control orders sums it up. How can you defend a client if you are not even allowed access to the information that has led to the original accusation?
The Liberal Democrats, in the run-up to the General Election earlier this year, pledged to do away with control orders, as they are an affront to the British model of justice. However, MI5 is putting up a strong defence for their retention, but then they would, wouldn’t they?
Much of the “secret” evidence that leads to a control order appears to come from telephone intercept, but why on earth can this evidence not be revealed in a court of law? It’s not like the notion of telephone bugging is a state secret these days, as I argued in The Guardian way back in 2005.
Bearing all of the above in mind, do have a read of this interview with Paddy Hill, one of the victims of the notorious wrongful convictions for the IRA Birmingham pub bombings in 1974. After being arrested, threatened, tortured and traumatised, he was forced to confess to a terrible crime he had not committed.
As a result, he had to endure sixteen years in prison before his innocence was confirmed. He is still suffering the consequences, despite having found the strength to set up the “Miscarriages of Justice Organisation” to help other victims.
And then have a think about whether we should blindly trust the word of the security forces and the police when they state that we have to give away yet more of our hard-won freedoms and rights in the name of the ever-shifting, ever-nebulous “war on terror”.
Do we really need to hold terrorist suspects in police cells for 28 days without charge? Will we really continue to allow the head of MI6 to get away with blithely asserting, unchallenged, that British intelligence does its very best not to “benefit” from information extracted via unthinkable torture, as former UK ambassador Craig Murray so graphically described in his blog on 29th October?
I’ve said it before, and I shall say it again: the Universal Declaration of Human Rights was put in place for a reason in 1948. Let’s all draw a breath, and remember, remember.….
For the first time in 100 years “C”, the head of the UK foreign intelligence service SIS (commonly known as MI6) has gone public.
Former career diplomat Sir John Sawers (he of Speedo fame) yesterday made a speech to the UK Society of Editors in what appeared to be a professionally diplomatic rear-guard action in response to a number of hot media topics at the moment.
Choosing both his audience wisely and his words carefully, he hit on three key areas:
Torture: Legal cases are currently going through UK courts on behalf of British victims of torture, in which MI5 and MI6 intelligence officers are alleged to have been complicit. The Metropolitan Police are currently investigating a number of cases. Over the last week, a British military training manual on “enhanced” interrogation techniques has also been made public. However, Sawers unblushingly states that MI6 abides by UK and international law and would never get involved, even tangentially, in torture cases. In fact, he goes on to assert that the UK intelligence agencies are training the rest of the world in human rights in this regard.
Whistleblowing: In the week following the latest Wikileaks coup — the Iraq War Diaries, comprising nearly 400,000 documents detailing the everyday horror of life in occupied Iraq, including war crimes such as murder, rape and torture committed by both US and UK forces — Sawers states that secrecy is not a dirty word: the intelligence agencies need to have the confidence that whistleblowers will not emerge to in order to guard agent and staff identities, as well as maintaining the confidence of their international intelligence partners that their (dirty?) secrets will remain, um, secret. One presumes he is advocating against the exposure of war crimes and justice for the victims.
This, one also presumes, is the justification for US politicians who propose cyber-attacks against Wikileaks and the declaration by some US political insiders that Julian Assange, spokesman of the organisation, should be treated as an unlawfully designated “unlawful combatant”, subject to the full rigour of extra-judicial US power, up to and including assassination.
Spurious media claims of unverified “damage” are the hoary old chestnuts always dragged out in whistleblower cases. After Wikileaks released its Afghan War Blog in July, government and intelligence commentators made apocalyptic predictions that the leak had put military and agent lives at risk. US Defense Secretary Robert Gates has since gone on the record to admit that this was simply not true.
During the Shayler whistleblowing case a decade ago, the government repeatedly tried to assert that agent lives had been put at risk, and yet the formal judgement at the end of his trial stated that this was absolutely not the case. And again, with the recent Wikileaks Iraq War Blog, government sources are using the same old mantra. When will they realise that they can only cry wolf so many times and get away with it? And when will the journalists regurgitating this spin wake up to the fact they are being played?
Accountability: Sawers goes on to describe the mechanisms of accountability, such as they are. He accurately states, as I have previously described ad nauseam, that under the 1994 Intelligence Services Act, he is notionally responsible to his political “master”, the Foreign Secretary, who has to clear in advance any legally dubious foreign operations (up to and including murder – the fabled “licence to kill” is not fiction, as you can see here).
The 1994 ISA also established the Prime Minister’s Intelligence and Security Committee (ISC) in Parliament, which many commentators seem to believe offers meaningful oversight of the spies. However, as I have detailed before, this is a mere fig leaf to real accountability: the ISC can only investigate issues of policy, finance and administration of the spy agencies. Disclosures relating to crime, operational incompetence or involvement in torture fall outside its remit.
But what happens if intelligence officers decide to operate beyond this framework? How would ministers or the ISC ever know? Other spy masters have successfully lied to their political masters in the past, after all.
Sir John has the gall to say that, if an operation is not cleared by the Foreign Secretary, it does not proceed. But what about the Gadaffi Plot way back in 1996, when MI6 was sponsoring a group of Islamic extremist terrorists in Libya to try to assassinate Colonel Gadaffi without, it has been asserted, the prior written approval of the then-Foreign secretary, Tory politician Malcom Rifkind? This was reported extensively, including in this article by Mark Thomas in the New Statesman. What happens if rogue MI6 officers blithely side-step this notional accountability — because they can, because they know they will get away with it — because they have in the past?
In the interests of justice, UK and international law, and accountability, perhaps a new Conservative/Coalition government should now reassess its approach to intelligence whistleblowers generally, and re-examine this specific disclosure about Libya, which has been backed up by international intelligence sources, both US and French, in order to achieve some sort of closure for the innocent victims in Libya of this MI6-funded terrorist attack? And it is finally time to hold the perpetrators to account — PT16, Richard Bartlett, and PT16B, David Watson, who were the senior officers in MI6 responsible for the murder plot.
As civilised countries, we need to rethink our approach to the issue of whistleblowing. Lies, spin, prosecutions and thuggish threats of assassination are beneath us as societies that notionally adhere to the principles of democracy. If we can only realistically hope that the actions of our governments, military forces, and intelligence agencies are transparent and accountable via whistleblowers, then we need to ensure that these people are legally protected and that their voices are heard clearly.
So Colonel Gaddafi of Libya has been dishing out the diplomatic gifts generously to the former US administration. Listed in the public declaration are even such items as a diamond ring presented to former Secretary of State, Condaleeza Rice, and other gifts to the value of $212,000.
This seems a slightly uneven distribution of largesse from the Middle East to the West. Before 9/11 and the ensuing war on terror, Gaddafi was still seen by the west as the head of a “rogue state”. Bombs, rather than gifts, were more likely to rain down on him.
However, since 2001 he has come back into the fold and is as keen as the coalition of the “willing” to counter the threat from Islamic extremist terrorists. So now he’s the new bestest friend of the US and UK governments in this unending fight.
But that was kind of inevitable, wasn’t it? As a secular Middle Eastern dictator, Gaddafi has traditionally had more to fear from Islamists than has the West. Particularly when these same Islamist groups have received ongoing support from those very governments that are now cosying up to Gaddafi.
Just to remind you, the reason I helped David Shayler in his whistleblowing on the crimes of MI5 and MI6 was because of just such a plot- the attempted assassination of Gaddafi in 1996 that was funded by the UK external intelligence gathering agency, MI6. In 1995 Shayler, then the head of the Libyan section in MI5, was officially briefed by his counterpart in MI6, David Watson (otherwise known as PT16/B), about an unfolding plot to kill Gaddafi. A Libyan military intelligence officer, subsequently code-named Tunworth, walked in to the British embassy in Tunis and asked to speak to the resident spook.
Tunworth said he was the head of a “ragtag group of Islamic extremists” (who subsequently turned out to have links to Al Qaeda — at a time when MI5 had begun to investigate the group), who wanted to effect a coup against Colonel Gaddafi. They needed funding to do this, and that was where MI6 came in. As a quid pro quo, Tunworth promised to hand over the two Lockerbie supsects for trial in Europe , which had for years been one of MI6’s priority targets — not to mention all those juicy oil contracts for BP et al.
Over the course of about 5 months, MI6 paid Tunworth’s group over $100,000, thereby becoming conspirators in a murder plot. Crucially, MI6 did not get the prior written permission of their political master, the Foreign Secretary, making this action illegal under the terms of the 1994 Intelligence Services Act.
Manifestly, this coup attempt did not work — Gaddafi is now a strong ally of our western governments. In fact, an explosion occurred beneath the wrong car in a cavalcade containing Gaddafi as he returned from the Libyan People’s Congress in Sirte. But innocent people died in the explosion and the ensuing security shoot-out.
So, MI6 funded an illegal, highly reckless plot in a volatile part of world that resulted in the deaths of innocent people. How more heinous a crime could there be? But to this day, despite a leaked MI6 document that proved they knew the existence of the proposed plot, and despite other intelligence sources backing up Shayler’s disclosures, the UK government has still refused to hold an enquiry. Quite the opposite — they threw the whistleblower in prison twice and tried to prosecute the investigating journalists.
Some people may call me naïve for thinking that the intelligence agencies should not get involved in operations like this. Putting aside the retort that the spies often conflate the idea of the national interest with their own, short-sighted careerism, I would like to remind such cynics that we are supposed to be living in modern democracies, where even the secret state is supposed to operate within the rule of law and democratic oversight. Illegal assassination plots, the use of torture, and false flag, state-sponsored terrorism should remain firmly within the retro, pulp-fiction world of James Bond.
The lack of any meaningful oversight of the UK’s intelligence community was highlighted again last week, when The Daily Mail reported that a crucial fax was lost in the run-up to the 7/7 bombings in London in 2005.
There has yet to be an official enquiry into the worst terrorist atrocity on the UK mainland, despite the call for one from traumatised families and survivors and the legitimate concerns of the British public. To date, we have had to make do with an “official narrative” written by a faceless bureaucrat and published in May 2006. As soon as it was published, the then Home Secretary, John Reid, had to correct egregious factual errors when presenting it to Parliament.
The Intelligence and Security Committee (ISC) also did a shoddy first job, when it cleared the security forces of all wrong-doing in its initial report published at the same time. It claimed a lack of resources had hampered MI5’s counter-terrorism efforts.
However, following a useful leak, it emerged that MI5 had not only been aware of at least two of the alleged bombers before the attack, it had been concerned enough to send a fax up to West Yorkshire Police Special Branch asking them to investigate Mohammed Sidique Khan and Shehzad Tanweer. This fax was never acted upon.
So the ISC has been forced to produce another report, this time apparently admitting that, yes, there had been intelligence failures, most notably the lost fax. West Yorkshire SB should have acted on it. But the intelligence officer in MI5 responsible for this investigation should have chased it up when no response was forthcoming.
This second ISC report, which has been sitting on the Prime Minister’s desk for weeks already, is said to be “devastating”. However, I’m willing to bet that if/when it sees the light of day, it will be anything but.
The ISC is at best an oversight fig leaf. It was formed in 1994, when MI6 and GCHQ were put on a statutory footing for the first time with the Intelligence Services Act. At the time the press welcomed this as a great step forward towards democratic accountability for the intelligence community. Well, it could not have been worse than the previous set-up, when MI5, MI6 and GCHQ did not officially exist. They were not required to obey the laws of the land, and no MP was allowed to ask a question in Parliament about their activities. As 1980s whistleblower Peter Wright so succinctly put it, the spies could bug and burgle their way around with impunity.
So the establishment of the ISC was a (very) limited step in the right direction. However, it is not a Parliamentary Committee. Its members are selected by the Prime Minister, and it is answerable only to the PM, who can vet its findings. The remit of the ISC only covers matters of spy policy, administration and finance. It is not empowered to investigate allegations of operational incompetence nor crimes committed by the spies. And its annual report has become a joke within the media, as there are usually more redactions than coherent sentences.
The ISC’s first big test came in the 1990s following the Shayler and Tomlinson disclosures. These involved detailed allegations of illegal investigations, bungled operations and assassination attempts against foreign heads of state. It is difficult to conceive of more heinous crimes committed by our shadowy spies.
But how did the ISC react? If one reads the reports from the relevant years, the only aspect that exercised the ISC was Shayler’s information that MI5 had on many MPs and government ministers. The ISC was reassured by MI5 that would no longer be able to use these files. That’s it.
Forget about files being illegally held on hundreds of thousands of innocent UK citizens; forget about the illegal phone taps, the preventable deaths on UK streets from IRA bombs, innocent people being thrown in prison, and the assassination attempt against Colonel Gaddafi of Libya. The fearless and eternally vigilant ISC MPs were primarily concerned about receiving reassurance that their files would no longer be vetted by MI5 officers on the basis of membership to “subversive” organisations. What were they afraid of – that shameful evidence of early left-wing activity from their fiery youth might emerge? Heaven forbid under New Labour.
Barely a day goes by when newspaper headlines do not remind us of terrible threats to our national security. Only in the last week, the UK media has reported that the threat of espionage from Russia and China is at its highest since the days of the Cold War; that resurgent Republican terror groups in Northern Ireland pose a graver danger to us even than Al Qaeda; that radicalised British Muslim youth are returning from fighting with the Taliban to wage war on the streets of the UK. We have to take all this on trust, despite the intelligence community’s appalling track record of bending the truth to gain more powers and resources. This is why meaningful oversight is so vitally important for the health of our democracy. The ISC is a long way from providing that.
A worrying article in today’s Guardian by the indefatigable Duncan Campbell, in which he reports that police are using the Terrorism Act (2000) to try to force a journalist to hand over information from a source.
This issue is the scared cow of journalism – that they never reveal their sources. To do so would immediately deter whistleblowers from speaking in confidence to the media, and government crimes and lies would remain secret. The protection of journalistic sources contributes to safeguarding our democracy, as legislation such as the Freedom of Information Act (2000) is effectively toothless when up against the inner workings of the state.
Because of this, journalists with integrity in this country and abroad are willing to risk prison rather than hand over their notes. As Campbell remarks, this happened to Martin Bright in 2000 when he was Home Affairs Editor at The Observer. The Metropolitan Police Special Branch went crashing into the offices on Farringdon Road, demanding that he hand over all his notes on the Shayler case. More bizarrely, they also demanded a letter Shayler had sent to The Guardian, even though it had already been published in the newspaper. Thankfully for Martin, the National Union of Journalists supported him, and the police eventually backed off.
The fact that the police are using the Terrorism Act as is a worrying new development. But it’s not just production orders from the police that journalists and newspapers have to be worried about. The authorities have a range of weapons in their arsenal if they choose to suppress information emanating from inner government circles or the intelligence world. And yet it is within these very circles that the most heinous crimes and violations are committed, and whence the most significant whistleblowers tend to emerge. Think Dr David Kelly, David Shayler, Katherine Gun.
So, what else can the authorities use to suppress valid criticism? Well, firstly and most notoriously, we have the Official Secrets Act in the UK. This does not just prevent intelligence officers and notified government officials from ever speaking to anyone outside the agency about anything, ever (Section 1(1)). Slightly less well known is Section 5, which makes it a crime for any journalist to receive or elicit information from these whistleblowers that damages “national security” (the term to this day remains undefined). Of course, as we saw in the Shayler case, the government is always extremely reluctant to cross the media and enforce this, so it is usually just the unfortunate whistleblower who is hung out to dry.
If the threat of the OSA fails, the government can always find a tame judge to issue an emergency injunction. Again, this happened in the Shayler case, when an injunction was taken out both against him and the UK’s national media. Needless to say, the injunction against the media was dropped (even this government quailed at the prospect of taking on News International and the Mail group), but remains in place to this day against the hapless whistleblower.
This injunction is no small thing. The government’s lawyers have used it to frighten off publishers from even looking at a novel (that’s right – a work of fiction) that Shayler wrote in 1998. Letters winged their way from government lawyers to UK publishers in London in 1999. And when Shayler built a website, hosted by Tabnet in California, the government wrote to them pointing out that there was an injunction in place and asking for the site to be taken down. Tabnet gently pointed out that perhaps the British government had forgotten about 1776, and continued to host the site.
If the OSA and injunctions are not enough, we also have the notorious D Notice Committee (now rebranded as the Defence Press and Broadcasting Advisory Committee), a body that can block publication of a story by issuing a notice at the say-so of the government. Very appropriate in a so-called democracy. What makes it worse is that the Committee is made up of volunteers from amongst the great and the good from the media world, as well as representatives from government departments. These guys, senior editors and TV executives, enter the charmed inner circle and start to police their own industry. It’s amazing how quickly new appointees go native and fight the government’s corner.
So there you have it – a whole battery of laws to protect the British Establishment from the scrutiny and constructive criticism of the media. When a journalist of integrity stands up to the authorities, we should all support them. They are providing a crucial service of ventilation and accountability for our retreating democracy. I wish Shiv Malik, the freelancer at the eye of the current storm, the very best.
Thanks to Wikileaks the concept of whistleblowing is once again, rightly, back in the prime-time news slots.
To highlight the British legal doublethink when it comes to whistleblowing cases, I reproduce below an article I wrote in 2006 for the excellent UK Campaign for Press and Broadcasting Freedom organisation (CPBF).
Basically, the ruling stated that a whistleblower cannot repeat their own disclosures in public, even though anyone else in the world can:
In 2006 I hadn’t heard of Mr “Justice” Eady (he had yet to reach his maximum velocity), but he seems to have built up of bit of form since then. He is now most notorious for his punitive rulings in many “libel tourism” cases and celeb sex scandals, not to mention the odious concept of the super-injunction, startlingly exemplified in the Trafigura case about allegations of dumping toxic waste off the Ivory Coast — one of Wikileaks’s earlier media successes.
Obviously Eady, the man in charge of ruling on UK freedom of expression cases, was the person to go to if you had something to hide.
Thankfully he was replaced earlier this year by Michael Tugendhat QC, who fluently represented the media’s corner during the Shayler whistleblowing years, and some of Eady’s most egregious decisions have already been overturned by his successor.
Another success for British justice — Annie Machon (31÷7÷06)
It was another resounding success for British justice, according to Annie Machon. Mr Justice Eady granted a permanent injunction against David Shayler in the High Court today (Friday 28 July). In a breathtaking ruling, Eady stated that David was not entitled to present evidence or cross-examine his accusers (again), but instead issued a summary judgement based on assertions made by MI5.
This means that David can now only talk about a restricted range of disclosures — specifically what appeared in the Mail on Sunday on 24 August 1997. This means that he cannot talk about a whole range of topics which are in the public domain and have already been cleared via the injunction and for the publication of my book, Spies, Lies and Whistleblowers.
Specifically, this means that, while I and the rest of the world can talk about state-sponsored false-flag terrorism, including the Gaddafi plot, David is banned. Very convenient when the 911 campaign is taking off.
The temporary injunction was issued in September 1997 on the explicit understanding that a full legal hearing would be needed before it could be made permanent. David has now been denied this.
Also, the injunction has been abused repeatedly, for example allowing the government to spin lies against him when he wished to reveal the wrongful conviction of two innocent Palestinians, Samar Alami and Jawad Botmeh, for the bombing of the Israeli embassy in London in 1994. Also, when he tried to alert the government to murder and a major terrorist attack organised by MI6 officers in the Gaddafi plot, he did so legally via the injunction.
For his pains, he was the one thrown in prison in Paris in 1998.
The injunction has also repeatedly been used to intimidate journalists (one of whom was tried and convicted) and to stop the media investigating the criminality of MI5 and MI6. With this ruling, the judge has also abolished at one stroke the media’s right to publish whistleblowers’ testimony if they can argue it caused no damage to national security.
If any future whistleblower emerges from the intelligence services, and is injuncted, the media has lost this defence, enshrined by parliament in criminal law (Section 1.5 of the OSA). And why is an injunction necessary anyway? There already exists a criminal sanction under the Official Secret Act. The judge was kind enough to say that the injunction was for David’s own good and would stop him having to break the OSA again! We are through the looking glass.
Yours in wonderland, Annie