Annie Machon

Gareth Peirce talks to Moazzam Begg

An interview between Guantanamo detainee, Moazzam Begg, and human rights lawyer Gareth Peirce.

I have written before about the appalling treatment of people like Moazzam, who are kidnapped, tortured, and held illegally without charge in America's secret prison camps and Gitmo. Here he has the chance to interview Gareth about this and the wider implications:

 

Gareth Peirce has worked indefatigably over many years to defend victims of miscarriages of justice in the UK courts and beyond. The roll call of those she has helped, not just legally but also with emotional support and a gentle and humane approach, includes: the Guildford Four, the Birmingham Six, Samar Alami and Jawed Botmeh (the Israeli Embassy Two), David Shayler, the Belmarsh internees, Judith Ward, the family of Jean Charles de Menezes, and now the Guantanamo victims.

Gareth is a true hero of our times.

Poor Bloody Infantry

There is an ongoing campaign to save Bletchley Park for the nation, in the teeth of government opposition. As historic British monuments go, the question of whether to preserve it for posterity should be a no-brainer. Bletchley is not only where Hitler's Enigma code machine was decrypted, along with many other systems, which arguably gave the Allies the intelligence advantage that led to victory in World War 2, it is also where the first digital electronic computers, codenamed Colossus, were operated. Two landmark events of the 20th century.

Recently The Times reported on this campaign. The article also the dwells at some length on how long Bletchley's secrets were kept by the 10,000 people who worked there during the war. Although this information was declassified after 30 years, the habit of secrecy was so deeply ingrained that many former employees never breathed a word. The article laments the passing of this habit of discretion from British life, stating that politicians and senior intelligence officers now appear to view the possession of insider knowledge as a good pension fund when they come to write their memoirs.

Over the last decade we have see a myriad of books emerging for the upper echelons of government and intelligence in the UK: Alastair Campbell, Robin Cook, Washington Ambassador Sir Christopher Meyer, ex-MI5 chief Dame Stella Rimington. Even Tony Blair has apparently signed a six figure deal for his memoirs.

All these books have a number of characteristics in common: they are lengthy, but say little of relevance about the burning issues of the day; they appear to have been written for profit and not in the public interest; and not one of these writers has ever even been arrested under the Official Secrets Act, even when there is clear prima facie evidence of a breach.

Yet these diligent authors are the very people who are the first to use the OSA to stifle legitimate disclosure of crime, corruption and incompetence in the highest levels of government and intelligence by real whistleblowers, who risk their careers and their freedom. The hypocrisy is breathtaking.

But was the old-fashioned, blanket discretion, vaunted by The Times, really such a good thing? The code of “loose talk costs lives” may have made sense during the Second World War, when this nation was fighting for its life. The work at Bletchley was manifestly a success, obviating any need to blow the whistle. But who can tell how these patriotic men and women would have reacted had they witnessed crimes or incompetence that damaged our nation's security, led to the deaths of our soldiers, or even possible defeat?

Also, was the 30-year non-disclosure rule around the work of Bletchley really necessary? After all, the war had been won, so how could disclosure benefit the enemy? This unthinking application of the standard rules cost the UK dearly. In fact, it would be accurate to say that it severely damaged the UK's economic wellbeing – something the OSA is supposed to protect.

In 1943 the British were the world leaders in digital electronic computing. The draconian Official Secrets Act precluded the development and commercial use of this knowledge in Britain after the war. In fact, mindbogglingly, the Colossus computers were dismantled and the research destroyed.

There were no similar provisions affecting the American cryptographers who had been stationed at Bletchley. Consequently, after the war they enthusiastically applied British research and technology to develop the US computer research programme and eventually the market, paving the way to the success of Silicon Valley and the domination of the world's IT markets for decades. What price the famed British stiff upper lip and discretion then?

Of course, there need to be legal provisions to protect real secrets that could affect Britain's national security. However, this should be proportionate and balanced, and should not prevent the development of new research and technologies, the exposure in the public interest of crime, and certainly not the fact our country was taken into war on the basis of lies.

Realistically, however, in the age of the internet such legal provisions are increasingly meaningless. Despite this, more and more countries appear to be adopting Britain's model of antiquated and draconian secrecy legislation.

We live in a country that criminalises any disclosure of sensitive information – unless it comes in the form of memoirs from senior politicians, Whitehall officials or spooks of course. As always, there is one rule for the generals and one for the poor bloody infantry.

For the good of our country, we need to rethink this legislation.

NSA Spying Cartoon

As the writer, G K Chesterton said:

"Art, like morality, consists of drawing the line somewhere."

Save Our Free Speech

The Guardian today reported that the United Nations Committee on Human Rights had issued a damning indictment of the British government's use of legislation to suppress a right that is fundamental to all functioning democracies: freedom of expression.

This is not news to me. But it's interesting that freedom of expression is now being curtailed in so many varied, interesting and imaginative ways: libel laws, terrorism laws and official secrecy. That's quite an arsenal.

Britain is now infamous for being the “libel capital” of the world. Wealthy individuals can use our courts to suppress publication of critical books and articles anywhere in the world, if they can prove that the book has been sold in the UK – even if it's just one, second-hand copy on Amazon. The magazine, Private Eye, has been commenting on this extensively over the last year.

Then, under the slew of new counter-terrorism legislation that the Labour government has introduced since 2001, it is now an offence to say anything that might “encourage” terrorism. That definition is so broad that, say, you or I made an innocent comment about the Palestinian or Iraqi situation, and this could be misconstrued by another person as encouraging them to violence, this could be assessed subjectively as a criminal offence by the prosecuting authorities. This is third party thought-crime.

These sort of laws have a negative impact on free speech, as publishers, editors and journalists begin to self-censor rather than run informed risks for the public good.

But it's the third area of law that resonates most with me, for obvious reasons: the 1989 Official Secrets Act, which criminalises any unauthorised disclosure by serving or former intelligence officers, notified persons, and other crown servants and officials. These people are the most likely to witness high crimes and misdemeanors on the part of government, police and the intelligence services, and yet they are the most criminalised in this country for speaking out. Whistleblowers in other areas of work are specifically protected by the law under the Public Interest Disclosure Act (1998).

How did this happen? Ever since the 1911 Official Secrets Act came into force, there has been legislation to protect this nation's genuine secrets against the actions of traitors. Under this law, crown servants face 14 years in prison if they betray information to hostile powers. Of course we need to protect genuine secrets, and this is certainly safeguard enough.

The change in this law was specifically designed to gag genuine whistleblowers in sensitive areas, not protect national security. This came about in the 1980s after the notorious failed prosecution of Ministry of Defense civil servant, Clive Ponting. In 1984 he blew the whistle on the fact the British government knew that the Argentinian warship, the General Belgrano, was sailing away from the exclusion zone during the Falklands War in 1982. Despite this, the order was still given to attack it, and many were killed. Ponting was rightly outraged by this, and went public. His actions were manifestly in the public interest, and this was precisely the successful defense he ran in court. Furious, the Conservative government of the time re-wrote the secrecy laws, removing the public interest defense to deter such principled whistleblowers in the future. And this is the current Official Secrets Act criticised so strongly by the UN.

Interestingly, at the time the Labour party strongly opposed this change, rightly thinking that this would curtail crucial information reaching the public domain. At this point, of course, many of them correctly suspected that they were on the receiving end of illegal investigations by MI5.

The roll call of Labour MPs who voted against the proposed Act as it passed through Parliament in 1988 includes such luminaries as Tony Blair, Jack Straw and the former Attorney General John Morris. All these people went on to use the 1989 OSA to threaten and prosecute the intelligence whistleblowers of the last decade.

The blanket ban on freedom of expression for intelligence personnel appears to be illegal under the terms of the European Convention of Human Rights. Sure, Article 10(2) does give nations the limited right to curtail freedom of expression in a proportionate way to protect national security. However, the term “national security” has never been defined for legal purposes in this country and is used as a catch-all phrase to prevent disclosure of anything embarrassing to the government and the intelligence agencies. Plus, during these cases, lawyers and judges have consistently confused the notion of the national interest with national security – two very different beasts. And freedom of expression cannot be legally curtailed under the Convention merely for reasons of “the national interest”.

So I was heartened to read the UN's verdict on this legal mess: “Powers under the Official Secrets Act have been "exercised to frustrate former employees of the crown from bringing into the public domain issues of genuine public interest, and can be exercised to prevent the media from publishing such matters"."

Let's hope this leads to the reinstatement of the public interest defence at the very least. During this time of the unending “war on terror”, governments lying to take us into illegal wars, and the use of torture and internment, whistleblowers play an important role in upholding and defending our democratic values. We need to protect them, not prosecute them.

The Rise of the Mercenary

Stephen Armstrong published an interesting article in today's New Statesman magazine. Based on his new book War plc: the Rise of the New Corporate Mercenary, it examines the rise of the corporate security consultant. Or in basic English – mercenaries.

I met Stephen when I was invited by James Whale to review the book on Press TV. I was impressed with his research and depth of knowledge on this subject. It was an unusually harmonious talk show - rather than arguing, we all took a broadly similar approach to the issue of mercenaries, oversight and accountability.

The increasing privatisation of intelligence is an insidious development in the world of espionage and war. For many decades there have existed on the fringes of the official intelligence world a few private security companies; think Kroll, Blackwater, Aegis. These companies are often the last refuge of ...... former intelligence officers of the western spook organisations.

These people, often frustrated at the overly bureaucratic nature of the governmental spy organisations, resign and are gently steered towards these corporations. That, or the relocation officers get them nice juicy jobs at merchant banks, arms companies or international quangos. It's always useful to have reliable chaps in useful places, after all.

In the last decade, however, we have seen an explosion in the number of these companies. One of my former colleagues is a founder of Diligence, which is going from strength to strength. These kinds of companies specialise in corporate spying, the neutralisation of opposition and protest groups, and security. The latter usually boils down to providing military muscle in hot spots like Iraq. While I can see the attraction for soldiers leaving crack regiments and wondering what on earth they can do with their specialised expertise, and who then decide that earning £10,000 a week risking their lives in Baghdad is a good bet, this has worrying implications for the rule of law.

Leaving aside the small matter that, under international and domestic UK law, all wars of aggression are illegal, our official British military presence in Afghanistan and Iraq is at least to a certain degree accountable. The most egregious war crimes have resulted in court martials. But the new mercenaries live in a legal no-man's land, and in this territory anything goes. Or can at least be covered up.

This is the same principle that has guided these unofficial spook companies over the years – plausible deniability. What little democratic oversight there is in the UK of the intelligence community still does give them limited pause for thought: what if the media hears about it? What if an MP asks an awkward question? By using former colleagues in the corporate intelligence world, MI5, MI6 et al can out source the risk.

The oversight and accountability for the official spooks and the army are bad enough. The privatisation of intelligence and military might makes a further mockery of the feeble oversight provisions in place in this country. This is a worrying development in legal and democratic terms; more importantly, it has a direct, daily impact on the rights of innocent men, women and children around the world. We need to ensure that the official and unofficial spooks and military are accountable under the law.

Fig Leaf to the Spies

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.