Annie Machon

"Subversion" old and new

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?

A Tale of Two Cases

The first case, the one hitting the headlines this week, is that of Jordanian-born alleged terrorist supremo Abu Qatada, who arrived in the UK using a forged passport almost 20 years ago and claimed asylum, and has already been found guilty twice in absentia of terrorist attacks in Jordan. He is reportedly also wanted in seven other countries for terrorist-related offences.  He has been labeled Bin Laden's right-hand man in Europe, and over the last few years in the UK has been variously interned, placed under control order, and held in maximum security prisons.  

The UK courts ruled that he should be deported to stand trial in his native country, but these rulings were recently overturned by the European Court of Human Rights (ECtHR), as it had concerns that Jordanian diplomatic assurances that he would not be tortured could not be relied on, and that evidence against him in any retrial there might have been obtained using torture. 

As a result, Mr Justice Mitting of the Special Immigration Appeals Commission (Siac) has ruled that he should be released under a strict T-PIM (the new control order).  This decision has predictably roused the frothing wrath of the Home Office and the readership of the Daily Mail.  Politicians of all flavours have rushed out their sound bites condemning the ECtHR decision.  

But can they not see that it is the complacency and the very disdain for law that the British political and intelligence infrastructure has displayed for the last decade that has created this mess in the first place?  If, instead of kidnapping, torture, assassination, and indeed internment without trial within the UK, the rule of law had been followed, the country would not currently find itself in this legal quagmire.  

There used to be a notion that you used due process to investigate a terrorist suspect as you would any other suspected criminal: gather the evidence, present the case to the Crown Prosecution Service, hold a trial in front of a jury, and work towards a conviction. 

How quaintly old-fashioned that all seems today.  Instead, since 9/11 and the inception of the hysterically brutal "war on terror" led by the USA, we have seen people in the UK thrown into prison for years on the secret word of anonymous intelligence officers, where even the suspects' lawyers are not allowed to see the information against their clients.  The British legal system has become truly Kafkaesque.

Which leads me to the second case.  This was a quote in yesterday's Guardian about the Abu Qatada ruling:

"The Conservative backbencher Dominic Raab echoed Blunkett's anger: "This result is a direct result of the perverse ruling by the Strasbourg court. It makes a mockery of human rights law that a terrorist suspect deemed 'dangerous' by our courts can't be returned home, not for fear that he might be tortured, but because European judges don't trust the Jordanian justice system.""

In the case of Julian Assange, can we really trust the Swedish justice system? While the Swedish judicial system may have an ostensibly more fragrant reputation than that of Jordan, it has been flagrantly politicised and manipulated in the Assange case, as has been repeatedly well documented. Indeed, the Swedish justice system has the highest rate per capita of cases taken to the ECtHR for flouting Article 6 - the right to a fair trial.

If Assange were extradited merely for questioning by police - he has yet to be even charged with any crime in Sweden - there is a strong risk that the Swedes will just shove him straight on the next plane to the US under the legal terms of a "temporary surrender".  And, to bastardise the above quote, who now really trusts the American justice system?

A secret Grand Jury has been convened in Virginia to find a law - any law - with which to prosecute Assange.  Hell, if the Yanks can't find an existing law, they will probably write a new one just for him.

Forget about the fact that Wikileaks is a ground-breaking new form of high-tech journalism that has exposed corrupt practices across the world over the years.  The US just wants to make an example of Assange in retaliation for the embarrassment he has caused by exposing US double dealing and war crimes over the last decade, and no doubt as a dreadful example to deter others.  

The alleged Wikileaks source, US soldier Private Bradley Manning, has been kept in inhumane and degrading conditions for well over a year and will now be court-martialed.  The general assumption is that this process was designed to break him, so that he would implicate Assange and possibly other Wikileaks associates.  

In my view, that means that any US trial of Assange could essentially be relying on evidence obtained under torture.  And if Assange is extradited and and judicially rendered to the US, he too will face torturous conditions.

So, to summarise, on the one hand we have a man who is wanted in eight countries for terrorist offences, has already been convicted twice in his home country, but who cannot be extradited.

And on the other hand we have a man who has not been charged, tried or convicted of anything, but is merely wanted for questioning on minor and apparently trumped up charges in another country, yet who has also been imprisoned in solitary confinement and held under house arrest.  And it looks like the British authorities are happy to collude in his extradition.

Both these men potentially face a mistrial and both may potentially experience what is now euphemistically known as "degrading and inhumane treatment".

But because one faces being sent back to his home country - now seen for the purposes of his case as a banana republic with a corrupt judicial system that relies on evidence extracted under torture - he shall probably not be extradited.  However, the other faces being sent to an alien country well known as a beacon of civil rights and fair judicial system oops, sorry, as a banana republic with a corrupt judicial system that relies on evidence extracted under torture.

The UK has become a legal laughing stock around the world and our judicial framework has been bent completely out of shape by the requirements of the "war on terror" and the rapidly developing corporate fascism of our government.  

The UK is currently celebrating the bicentenary of the birth of Charles Dickens.  Perhaps the time has come to pause and think about some of the issues he discussed in one of his best-known novels, "A Tale of Two Cities".  Do we want our country to slide further down the path of state terrorism - a phrase adopted from the original Grande Terreur of the French Revolution? 

We need to seize back our basic rights, the due process of law, and justice.

One man's terrorist is another man's activist

Here we go again.  In this heartwarming article in today's Guardian newspaper, British MPs on the Home Affairs Committee have decided that the internet is the most significant factor in the radicalisation of violent extremists and conclude that Something Must Be Done.

One paragraph leapt out at me:

"The Commons home affairs committee says internet service providers need to be as effective at removing material that promotes violent extremism as they are in removing content that is sexual or breaches copyright." (My emphasis.)

Most of us are aware of the recent dogfight in the US about the proposed SOPA and PIPA laws to crack down on copyright infringement and, as a result, there is a somewhat belated but steadily increasing outcry in Europe about the imminent imposition of ACTA across the continent.  

I have written before about how such laws provide the military-intelligence complex with the perfect stalking horse for a panoptic surveillance state, and the campaigning writer, Cory Doctorow, summed it up beautifully when he wrote that "you can't make a system that prevents spying by secret police and allows spying by media giants".

And, lo, it is now apparently coming to pass.  The Parliamentary half-wits are now proposing to use commercial legislation such as the utterly undemocratic ACTA as a benchmark for countering potential terrorists and extremists.  Might they have failed to notice the plethora of existing counter-terrorism and eavesdropping legislation, put in place for this very purpose and already much used and abused by a wide range of public bodies in the UK?

This yet again highlights the mission-creepy Big Brother corporatist group-think.  Rather than having to spell it out in boring old linear text, here is some useful linkage - what I like to think of as 3-D writing: 

Protester = activist = domestic extremist = violent extremist = terrorist  

I'm sure you can see where I am heading.  To name but a few notorious abuses, we already live in a world where western governments and spy agencies collude in the kidnapping, torture and assassination of alleged terrorist suspects; the NDAA now endorses these practices within the US; British police spy on innocent protest groups for years; legitimate protesters can be "kettled", beaten up and maced; activists can be pre-emptively arrested as easily in the UK as in Syria; and where American politicians want to designate the high-tech publishing organisation Wikileaks as a terrorist group.

There is an old aphorism that one man's terrorist was another man's freedom fighter.  I think the time has come for an update:

One man's terrorist is another man's activist.  

And we are all increasingly at risk. 

Fascism 2012 - the ongoing merger of the corporate and the state

I'm gradually coming to after a knock-out blow last October - the unexpected death of my beloved and only brother, Rich.  Words cannot describe.

But looking forward to the delights that 2012 will no doubt offer: Julian Assange remains trapped in a legal spider's web, but all credit to Wikileaks - it keeps on providing the goods.  

The recent publication of the SpyFiles should have been a massive wake-up call, as it it highlighted the increasing use and abuse of mercenary spy tech - all without any effective oversight, as I recently wrote in my article for the Bureau of Investigative Journalism. 

Needless to say, the issue of massive commercial surveillance capabilities usually remains confined to a niche media market, although the Daily Mail did rouse itself to report that shoppers were being tracked via mobile phones as they consumed their way around malls.  Well, I suppose it's a start.

With the growth of mercenary spy companies in our minds, we should be even more concerned about the accelerated shredding of our civil liberties, particularly in the US and UK.  Despite earlier promises that he would veto any such legislation, President Obama signed into law the invidious NDAA on 31st December.  This means that the US military is now empowered to seize and indefinitely detain, with no recourse to traditional due process, not only potentially all non-Americans across the planet a la the Guantanamo/extraordinary rendition model, but can now also do this to US citizens within their own country.

Despite the passionate internet debate, the issue has unsurprisingly been largely ignored by most of the mainstream corporate media.  But the predominantly US-based internet commentary displays a breathtaking hypocrisy: yes, the NDAA is a terrible law with awful implications for American citizens.  However, people around the world have been living with just this fear for a decade, with whole communities afraid of being snatched and disappeared into black CIA torture facilities.   Where was the US outrage then?  The Pastor Martin Niemoeller poem remains as relevant today as when it was written 70 years ago.

That said a couple of brave voices have spoken out: Naomi Wolf recently described how the US legislators could ironically find themselves on the receiving end of this law, if we go by all historic precedents.  Paul Craig Roberts was on frothing good form too, inveighing against the war crimes of the US military, the persecution of Wikileaks for exposing those very crimes, and the evolving totalitarianism of our countries.

In a digital mirror of the NDAA, the entertainment industry and their pet lobbyists are successfully ramming through the invidious SOPA law.   As acclaimed digital rights activist and author, Cory Doctorow, described in his keynote at the recent CCC geekfest in Berlin, these ostensibly commercial laws are in effect a stalking horse for governments to seize control of the internet.  As he wrote in the Guardian "you can't make a system that prevents spying by secret police and allows spying by media giants".  

With this in the back of our minds, the Wikileaks SpyFiles revelations about the increasing globalisation and commercialisation of corporate spy technology are even more alarming.  The government spy agencies work with little effective oversight, but the mercenaries have a completely free legal rein.  Intriguingly, it appears that unlike our own governments Afghanistan is alive to this problem and is reportedly booting out foreign contractors. 

Yet the balance of power in certain western countries is sliding overwhelmingly towards police states -  or, indeed, fascism, if you take into consideration Benito Mussolini's definition: "the merger of state and corporate power".

Our line of defence is slender - organisations like Wikileaks, one or two politicians of conscience, a few remaining real investigative journalists and perhaps the odd whistleblower.  Beyond that, we must individually get to grips with the threat, get informed, teched up, and protect ourselves, as we can no longer rely on our governments to uphold our basic rights - you know, privacy, freedom of expression, habeas corpus, and all those other delightfully old-fashioned ideas.

If we do not act soon, we may no longer be able to act at all in the near future....  So I wish everyone an informed, productive and active 2012!

 

 

Global Investigative Journalism Conference, Kiev

Off to do a keynote at the Global Investigative Journalism Conference in Kiev.   Should be interesting - watch this space.

Libyans caught between a rock and a hard place

This article in today's New York Times, particularly these following two paragraphs, sent a shiver down my spine for the fate of the Libyan people:

"The most powerful military leader is now Abdel Hakim Belhaj, the former leader of a hard-line group once believed to be aligned with Al Qaeda.The growing influence of Islamists in Libya raises hard questions about the ultimate character of the government and society that will rise in place of Col. Muammar el-Qaddafi’s autocracy.....

....Mr. Belhaj has become so much an insider lately that he is seeking to unseat Mahmoud Jibril, the American-trained economist who is the nominal prime minister of the interim government, after Mr. Jibril obliquely criticized the Islamists."

The Libyans, finally free of Gaddafi's 42-year dictatorship, now seem faced with a choice between an Islamist faction that has stated publicly that it wants to base the new constitution on Sharia - a statement that must have caused a few ripples amongst Libya's educated and relatively  emancipated women - or a new government headed up by an American-trained economist. 

And we all know what happens to countries when such economists move in: asset stripping, the syphoning off of the national wealth to transnational mega-corps, and a plunge in the people's living standards.  If you think this sounds extreme, then do get your hands on a copy of Naomi Klein's excellent "Shock Doctrine" - required reading for anyone who wants to truly understand the growing global financial crisis.

Of course, this would be an ideal outcome for the US, UK and other western forces who intervened in Libya. 

Mr Belhaj is, of course, another matter.  Not only would an Islamist Libya be a potentially dangerous result for the West, but should Belhaj come to power he is likely to be somewhat hostile to US and particularly British interests.  

Why?  Well, Abdul Hakim Belhaj has form.  He was a leading light in the Libyan Islamic Fighting Group, a terrorist organisation which bought into the ideology of "Al Qaeda" and which had made many attempts to depose or assassinate Gaddafi, sometimes with the financial backing of the British spies, most notably in the failed assassination plot of 1996.

Of course, after 9/11 and Gaddafi's rapprochement with the West, this collaboration was all air-brushed out of history - to such an extent that in 2004 MI6 was instrumental in  kidnapping Belhaj, with the say-so of the CIA, and "extraordinarily rendering" him to Tripoli in 2004, where he suffered 6 years' torture at the hands of Libya's brutal intelligences services.  After this, I doubt if he would be minded to work too closely with UK companies.

So I'm willing to bet that there is more behind-the-scenes meddling from our spooks, to ensure the ascendency of Jibril in the new government.  Which will be great for Western business, but not so great for the poor Libyans.....

Spy documents found in Libya reveal more British double dealing

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 regime.  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 regime 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....

Spies and the Media - my recent talk at the Centre for Investigative Journalism

Here's the film of my talk at the recent summer school at the Centre for Investigative Journalism in London a month ago:

 

Many thanks to Gavin and the rest of the CIJ team for such a stimulating and thought-provoking weekend!

UK spies get a B+ for intrusive surveillance in 2010

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. 

UK Intelligence and Security Committee to be reformed?

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 regime 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.

Guardian article: the role of the spies in the UK

Here's the text of an article I wrote for The Guardian a while ago, where I suggest we need a fresh perspective and some clear thinking on the role of the spies in the UK. 

Worth reiterating, following the pre-emptive arrest of protesters:

The cascade of revelations about secret policemen, starting with PC Mark Kennedy/environmental activist "Mark Stone", has highlighted the identity crisis afflicting the British security establishment. Private undercover police units are having their James Bond moment – cider shaken, not stirred – while MI5 has become ever more plod-like, yet without the accompanying oversight. How has this happened to our democracy without any public debate?

From the late 19th century the Metropolitan Police Special Branch investigated terrorism while MI5, established in 1909, was a counter-intelligence unit focusing on espionage and political "subversion". The switch began in 1992 when Dame Stella Rimington, then head of MI5, effected a Whitehall coup and stole primacy for investigating Irish terrorism from the Met. As a result MI5 magically discovered that subversion was not such a threat after all – this revelation only three years after the Berlin Wall came down – and transferred all its staff over to the new, sexy counter-terrorism sections. Since then, MI5 has been eagerly building its counter-terrorism empire, despite this being more obviously evidential police work.

Special Branch was relegated to a supporting role, dabbling in organised crime and animal rights activists, but not terribly excited about either. Its prestige had been seriously tarnished. It also had a group of experienced undercover cops – known then as the Special Duties Section – with time on their hands.

It should therefore come as little surprise that Acpo, the private limited company comprising senior police officers across the country, came up with the brilliant idea of using this skill-set against UK "domestic extremists". Acpo set up the National Public Order Intelligence Unit (NPOIU). This first focused primarily on animal rights activists, but mission creep rapidly set in and the unit's role expanded into peaceful protest groups. When this unaccountable, Stasi-like unit was revealed it rightly caused an outcry, especially as the term "domestic extremist" is not recognised under UK law, and cannot legally be used as justification to aggressively invade an individual's privacy because of their legitimate political beliefs and activism. So, plod has become increasingly spooky. What of the spooks?

As I mentioned, they have been aggressively hoovering up the prestigious counter-terrorism work. But, despite what the Americans have hysterically asserted since 9/11, terrorism is not some unique form of "eviltude". It is a crime – a hideous, shocking one, but still a crime that should be investigated, with evidence gathered, due process applied and the suspects on trial in front of a jury.

A mature democracy that respects human rights and the rule of law should not intern suspects or render them to secret prisons and torture them for years. And yet this is precisely what our spooks are now allegedly doing – particularly when colluding with their US counterparts.

Also, MI5 and MI6 operate outside any realistic democratic oversight and control. The remit of the intelligence and security committee in parliament only covers the policy, administration and finance of the spies. Since the committee's inception in 1994 it has repeatedly failed to meaningfully address more serious questions about the spies' role. The spooks are effectively above the law, while at the same time protected by the draconian Official Secrets Act. This makes the abuses of the NPOIU seem almost quaint. So what to do? A good first step might be to have an informed discussion about the realistic threats to the UK. The police and spies huddle behind the protective phrase "national security". But what does this mean?

The core idea should be safeguarding the nation's integrity. A group of well-meaning environmental protesters should not even be on the radar. And, no matter how awful, the occasional terrorist attack is not an existential threat to the fabric of the nation in the way of, say, the planned Nazi invasion in 1940. Nor is it even close to the sustained bombing of government, infrastructure and military targets by the Provisional IRA in the 70s-90s.

Once we understand the real threats, we as a nation can discuss the steps to take to protect ourselves; what measures should be taken and what liberties occasionally and legally compromised, and what democratic accountability exists to ensure that the security forces do not exceed their remit and work within the law.

The Age of Transparency?

Well, this is an interesting case in the US.  Thomas Drake, a former senior executive at the American National Security Agency (NSA), the US electronic eavesdropping organisation, is being charged under the 1917 US Espionage Act for allegedly disclosing classified information to a journalist about, gasp, the mismanagement, financial waste and dubious legal practices of the spying organisation.  These days it might actually be more newsworthy if the opposite were to be disclosed....

However, under the terms of the Espionage Act, this designates him an enemy of the American people on a par with bona fide traitors of the past who sold secrets to hostile powers during the Cold War.

It strikes me that someone who reports malpractice, mistakes and under-performance on the part of his (secretive) employers might possibly be someone who still has the motivation to try to make a difference, to do their best to protect people and serve the genuine interests of the whole country.  Should such people be prosecuted or should they be protected with a legal channel to disclosure? 

Thomas Drake does not sound like a spy who should be prosecuted for espionage under the USA's antiquated act, he sounds on the available information like a whistleblower, pure and simple.  But that won't necessarily save him legally, and he is apparently facing decades in prison.  President Obama, who made such a song and dance about transparency and accountability during his election campaign, has an even more egregious track record than previous presidents for hunting down whistleblowers - the new "insider threat".

This, of course, chimes with the British experience.  So-called left-of-centre political candidates get elected on a platform of transparency, freedom of information, and an ethical foreign policy (think Blair as well as Obama), and promptly renege on all their campaign promises once they grab the top job. 

In fact, I would suggest that the more professedly "liberal" the  government, the more it feels empowered to shred civil liberties.  If a right-wing government were to attack basic democratic freedoms in such a way, the official opposition (Democrats/Labour Party/whatever) would be obliged to make a show of opposing the measures to keep their core voters sweet.  Once they're in power, of course, they can do what they want.

One stark example of this occured during the passing of the British Official Secrets Act (1989) which, as I've written before, was specifically designed to gag whistleblowers and penalise journalists.  The old OSA (1911) was already in place to deal with real traitors.

And who voted against the passing of this act in 1989?  Yes, you've guessed it, all those who then went on to become Labour government ministers after the 1997 Labour election landslide - Tony Blair, Jack Straw, the late Robin Cook and a scrum of other rather forgettable ministers and Attorney Generals.....  And yet it was this very New Labour government in the UK that most often used the OSA to halt the free-flow of information and the disclosures of informed whistleblowers.  Obama has indeed learnt well.

It's an oldie but still a goodie: as one of my lawyers once wryly told me, it doesn't matter whom you vote for, the government still gets in.....

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

An 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. 

How the Light Gets In - speaking in Hay-on-Wye, May 30 2011

I did two sessions at Hay-on-Wye philosophy and music festival - How the Light gets In in May 2011.

The first was a debate called "An Age of Transparency" with neo-conservative commentator Douglas Murray, and philosopher Nigel Warburton.

The second was my talk about "Spies, Lies, and Life on the Run".

Here's a link to a video of my talk.

So wasn't the royal wedding lovely?

Well, yes, for some perhaps, and no doubt for the happy couple.

However, others spent the glorious day in a bare, concrete police cell, pre-emptively arrested for what they might do and untraceable to their loved ones and lawyers.  Effectively they were "disappeared", taken off the streets in case they uttered something that might mar the great day or, heaven forbid, caused some embarrassment.

A few days ago I wrote a piece highlighting my concerns about the threatened security response to possible protesters - drawing comparisons with the mindset, if not the violent tactics, of the thugs in Syria's security apparatus.  But still, in some deep recess of my mind and against all the accumulated evidence from my last 15 years, I found I still had an emotional, residual echo of the notion of British fair play that, really, we don't do those kinds of things in the UK.  Well, then I was a child, and spoke as a child.... 

In the run up to the happy nuptials, the Metropolitan Police stated that it had no specific intelligence of any terrorist threat from either dissident Irish republicans, nor from any possible grouping emerging from the Middle East.  Despite this, the security forces had launched a massive intelligence-gathering operation to hunt down known "anarchists" who might want to voice their protest against the concept of the monarchy.  Activist pages on Facebook were suddenly deleted with no warning, but the company said it was because of registration issues, and not because of the police.

Yes, there may well have been some who wanted to cause violence - after which they could have been arrested legitimately under the terms of the law .  However, what the police did in this case was in an altogether different league.  Using the methodology if not the brutality of the Syrian mukhabarat, they organised house raids and snatch squads.  They banned certain activists from London, and arrested others both in the days before the wedding and on the day itself. 

Those caught in the security sweep included a Professor of Anthropology, Chris Knight, and his friends who were planning a bit of mildly amusing street theatre involving a fake guillotine and a Prince Andrew dummy (is that tautologous?).

Others swept up by the security forces included a bunch of environmentalist squatters who were busily tending their market garden, according to rightly concerned MP John McDonnell, and some random "zombies" who wanted to go to an alternative "not the royal wedding" garden party.  Hardly the stuff of revolutionary nightmares.

And then there's the case of Charlie Veitch, now denounced across the UK media as the known anarchist. Yes, Charlie is anti-royalist and wanted to voice his views, but he runs an internationally-known activist organisation called the Love Police, for chrissakes.  The peaceful intentions of the organisation might possibly be given away by the name....

So what happened? On Thursday evening two police officers, tooled up with proto-Borg tech, muscled their way into the Cambridge home he shares with his girlfriend, Silkie Carlo, declaring that they were there to arrest him and search the place. They had the presence of mind to film the whole process and ask some pertinent questions.

Charlie's alleged pre-crime?  That he had posted a frighteningly prescient video on Youtube saying that he thought he was being spied on, but still critiquing the royal wedding and suggesting that fellow activists get together in Soho Square, London (quite a distance away from the festivities) on the day.  OK, so he had a bit of a rant - but that's what people do on Youtube.  Agree with him or strongly disagree, it's called his freedom of expression - a much-vaunted, traditional British liberty. 

But in the eyes of the police, apparently he was "conspiring to cause a possible breach of the peace", and needed to be locked up.   It's like we've time-travelled back to pre-revolutionary 18th century France, where the king could issue a lettre de cachet to send people to the Bastille.

So at the very time that Prince William and his blushing bride were created Duke and Duchess of Cambridge, a British citizen was raided, locked up and hidden away in a police cell in that very city for exercising free speech. 

On Thursday night he was hauled off to the Cambridge nick, which then refused to confirm to his understandably upset girlfriend where he was being held, before being transfered to the Met Police on Friday morning and held incommunicado for the rest of the day.  Family and lawyers then apparently spent fruitless hours ringing around all the London police stations trying to track him down.  So Charlie had effectively been "disappeared", like a dissident in a totalitarian regime.

So let's get this straight - we're talking about the Metropolitan Police spying on known activists (as we all now know they do, after the undercover cop scandal earlier this year) to prevent them from expressing their legitimate political views about the wedding of Kate and Wills.  The security forces had already stated that there was no specific terrorist threat, so this was all about preventing an embarrassing incident on the big day.  And I'm sorry, but I don't think that Prevention of Embarrassment is covered by the legal code.

Plus, these arrests were pre-emptive to stop a possible crime which might be committed - and let's face it, only breach of the peace at that.  Not a biggy.

So we are basically looking at the police spying on and then pre-emptively arresting campaigners for being potential dissidents, for ThoughtCrime.  How much more Orwellian can it get?

I mentioned the tactics of the Syrian security forces and their brutal crack-down.  I've also previously written about how the slide towards fascism began in Germany in the 1930s with the brutalisation of internal oppositionists and dissidents . 

So let's really stop and think about this - do we really want to let these early indications slide by, uncontested? After all, we have the Olympics and the Diamond Jubilee next year, and no doubt the same, or extended, powers will come into force.  How far will we let it go before we wake up to the threat?

As I've written before, with thanks to Pastor Martin Niemoeller:

First they came for the Irish in the 1980s,

But I was not Irish so I did not speak up.

Then they came for the Muslims after 9/11,

But I was not a Muslim, so I did not speak up.

Then they came for the "domestic extremists",

But I was not an activist, so I did not speak up.

Then they came for me;

and there was nobody left to speak up for me.

 

RTTV interview on the royal wedding and arrest of UK activists

My interview on 29 April 2011 for RTTV about the pre-emptive arrests of UK political activists in the run-up to the royal wedding. 

Thoughtcrime appears to have arrived in the UK - and I accidentally became a royal wedding commentator (sort of). 

Well, never say never in life....

 

A tale of two countries - pre-emptive policing in Britain and Syria

What a difference a mere month makes in the UK media.  At the end of March The Independent newspaper produced this article in the wake of the huge TUC anti-cuts protest in London, where the British Home Secretary was castigated for considering greater police powers to prevent such "trouble" again, with particular reference to the forthcoming royal wedding. 

At the time former assistant commissioner at Scotland Yard, Andy Hayman, who had served as the head of the Metropolitan Police Counter-Terrorism squad and was, umm,  reportedly a much-esteemed officer before his early resignation, adopted a muscular tone by calling for "snatch squads" and "dawn raids" to be carried out by police against suspected troublemakers.  How terribly un-British.

Perhaps I'm starting at shadows, but with the above in mind two interesting aricles appeared in that very same newspaper today. 

The first article that caught my eye confirmed there was indeed just such a security crackdown against suspected dissidents in the UK on the eve of the royal wedding.  Lynne Owens, the Metropolitan Police assistant commissioner in charge of the royal policing operation, is quoted as saying:

""We have to be absolutely clear. If anyone comes to London intending to commit criminal acts, we will act quickly, robustly and decisively." She said the Met was working with forces across the country and would use "spotters" to identify those causing trouble."

The article goes on to say:

"As police teams step up their process of "pre-event investigation" and "intelligence gathering", reports have come in from protesters that plain-clothed police are turning up at their homes to warn them against attending Friday's event."

It seems that the poor old Met is having conniptions about potentially embarrassing protesters sullying the pageantry of the royal wedding and is putting our money where its mouth is.  Last week The Telegraph also reported that counter-intelligence operations were being conducted against "anarchists" to prevent trouble on 29th April. 

Interesting use of language, but I suppose that one newspaper's "protester" will always be another's "anarchist"....

So what of the second article that concerned me?  This described the brutal security crackdown in Syria, where the secret police were pre-emptively hunting down and arresting suspected dissidents:

"Syria's feared secret police raided hundreds of homes yesterday as authorities stepped up attempts to crush the pro-reform movement....."

UK Foreign Secretary, William Hague is quoted as saying that:

"Syria is now at a fork in the road... it can choose ever-more violent repression which can only ever bring short-term security for the authorities there."

How much more need I say?  Putting aside the fact that Hague seems to have acquired his very own fork(ed tongue), the only discernable difference at this stage is in the sheer scale of the brutality and repression, not the mind-set or intent. 

It's a slippery slope.....

Frontline Club/New Statesman (FCNS) whistleblower debate with Julian Assange

"This house believes whistleblowers make the world a safer place."

I was honoured to be asked to say a few words at the recent debate about the value of whistleblowers in London on 9th April 2011.

The Frontline Club and the left-wing New Statesman magazine jointly hosted the event, which starred Julian Assange, editor in chief of Wikileaks.  Here is the debate in full:

   

Needless to say, the opposition had an uphill battle arguing not only against logic, the fair application of law, and the meaning of a vibrant and informed democracy, but also against the new realities in the worlds of journalism and technology. 

The first more diplomatically-minded oppositionist adopted a policy of appeasement towards the audience, but the last two had to fall back on the stale and puerile tactics of name-calling and ad hominem attacks.  So good to see that expensive educations are never a waste....

The proposition was supported enthusiatically by the sell-out crowd, a resounding vote of confidence in the democratic notions of accountability and transparency.

Here's a snippet of my (brief) contribution to a fantastic afternoon:

 

If you've done nothing wrong, you have nothing to hide....

"Well, if you've done nothing wrong, you have nothing to hide.  Why object to increasing state surveillance powers?"

I speak regularly at international events about basic freedoms, civil liberties and encroaching police states, and this is one of the most frequently asked questions.

This question is usually posed in the context of the ubiquitous CCTV cameras that infest the streets of Britain, where it is estimated that you can be photographed hundreds of times a day going about your daily business in London. 

Not to mention the talking CCTV cameras in the North of England, nor the increasing use of spy drones (as yet, reportedly, unweaponised - at least lethally)  over the skies of Britain.  Nor the fact that the police officers in charge of CCTV units admit that the technology is only useful as evidence in 3% of cases, and that violent crime has actually gone up since the spread of CCTV, so we're certainly no safer on our streets.

Nor do the well-meaning people asking this question (who, one presumes, have never-ever done anything wrong in their lives, even to the extent of not dropping litter) seem to grasp the historical evidence: they retain an optimistic faith in the long-term benign intentions of our governments.

Yet as we've seen time and time again in history, more dubious, totalitarian and malignant governments can indeed gain power, and will abuse and extend the surveillance laws and available technology against their own peoples.  And I'm not just talking about Hitler's rise to power in the 1930s or the East German Stasi, although I'm in agreement with UK Education Secretary Michael Gove at the moment in saying that history lessons are never a waste....

But we also need to learn more recent lessons: the UK in the 1970s-1990s, where the Irish community as a whole was targeted because of fringe Republican terrorism; or the Muslim community post-9/11, which lives with the real fear of of being arrested, extraordinarily rendered, tortured, or even assassinated on the say-so of unaccountable intelligence agencies; or even peaceful protest groups in the USA and UK who are infiltrated and aggressively investigated by Stasi-like police officers.

The Universal Declaration of Human Rights was put in place for a very good reason in 1948: to prevent the horrors of state terrorism, violence and genocide from ever happening again.  Amongst the essential, internationally-agreed core principles are the right to life, the right not to be tortured, freedom of expression, and the right to individual privacy. 

Which brings me neatly back to the start of this article.  This is precisely why increasing state surveillance is a problem.  Because of the post-9/11, over-inflated, hyped-up threat from soi-disant terrorist groups, we are all being penalised.  The balance of power is shifting overwhelmingly in favour of the Big Brother state.

Well, almost.  The Wikileaks model is helping to level the playing field, and whatever happens to this trail-blazing organisation, the principles and technology are out there and will be replicated.  The genie cannot be put back in the bottle.

So, why not pose the very question in the title of this piece back on those who want to turn back the clock and eradicate Wikileaks - the governments, mega-corporations, and intelligence agencies which have been outed, shamed and embarrassed, and which are now trying to suppress its work?

If you've done nothing wrong, you have nothing to hide.....

UK spies continue to lie about torture

What a difference a year makes in the mayfly minds of the old media. 

In February 2010 The Guardian's resident spook watcher, Richard Norton-Taylor, reported that the serving head of MI5, Jonathan Evans, had been forced in 2008 to confess to the credulous and compliant Intelligence and Security Committee in Parliament that the spies had lied, yet again, about their complicity in torture.

This confession came shortly after the ISC had released its "authoritative" report about rendition and torture, asserting that there had been no such complicity.  How did the ISC get this so utterly wrong?

It turns out that in 2006 Baroness Eliza Manningham-Buller, Evans's predecessor in the MI5 hot-seat, had misled the ISC about MI5's awareness of the use of torture against terrorist suspects, particularly the hapless Binyam Mohamed, whose case was wending its way through the British courts.  Bullying-Manner (as she is known in the corridors of power) appears to have been covering up for her predecessor, Sir Stephen Lander, who was quoted in The Telegraph in March 2001 as saying "I blanche at some of the things I declined to tell the committee [ISC] early on".....

But Evans had to come clean to the ISC because of the Mohamed court case, and Norton-Taylor wrote, by the Grauny's standards, his fairly hard-hitting article last year. 

Yesterday, however, he seems to be back-tracking frantically.  Following an interview by the BBC with former Pakistani President Pervez Musharraf appearing to confirm that MI5 did indeed turn a blind eye to the use of torture, Richard Norton-Taylor and other members of our esteemed Fourth Estate are once again quoting Baroness Manningham-Buller's dicredited li(n)es to the ISC as gospel truth, and forgeting both the serving head of MI5's unavoidable confession and the evidence from the Mohamed court case itself.

The ISC was put in place following the 1994 Intelligence Services Act as a democratic fig-leaf: it is not a fully-functioning, independent oversight committee, as it is only able to report on matters of spy policy, finance and administration.  It has no powers to investigate properly allegations of crime, torture or operational incompetence, is unable to demand documents or interview witnesses under oath, and is appointed by and answerable only to the Prime Minister.  It has been lied to by the spies and senior police time and time again - the very people it notionally oversees.  As I have written before, the ISC has since its inception failed to address many key intelligence matters of the day, instead spending its time nitpicking over details.

In the face of this utter lack of intelligence accountability and transparency, is it any wonder that sites like Wikileaks have caught the public's imagination?  Wikileaks is an obvious and necessary reaction to the endemic secrecy, governmental back-scratching and cover-ups that are not only wrong in principle in a notional democracy, but have also resulted directly in illegal wars, torture and the erosion of our traditional freedoms.