Annie Machon

The Case of Gary McKinnon

I've been following the extraordinary case of Gary McKinnon for years now in a long range kind of way, but we are now in the final throes of his prolonged fight against extradition to the USA, and he needs all the support we can give him.  The Daily Mail recently started a campaign against his extradition:  it's not often I agree with the Wail, but I'm wholeheartedly in favour of this initiative. 

For those of you who have been living in a bunker for the last 7 years, Gary McKinnon is the self-confessed geek who went looking for evidence of UFOs and ETs on some of America's most secret computer systems at the Pentagon and NASA. 

And, when I say secret, obviously I don't mean in the sense of encrypted or protected.  The Yanks obviously didn't feel that their national defence warrants even cursory protection, as Gary didn't have to hack his way in past multiple layers of protection.  Apparently the systems didn't even have passwords.

Gary, who suffers from Asperger's Syndrome, is no super hacker.  Using a basic PC and a dial-up connection in his bedroom, he managed to sneak a peek at the Pentagon computers, before kindly leaving a message that the US military might like to have a think about a little bit of basic internet security.   Hardly the work of a malignant, international cyber-terrorist.

UK police investigated Gary soon after this episode, way back in 2002.  All he faced, under the UK's 1990 Computer Misuse Act, would have been a bit of community service if he'd been convicted.  Even that was moot, as the Crown Prosecution Service decided not to prosecute.

And that, as they say, should have been that. 

However, in 2003 the UK government passed yet another draconian piece of law in response to the "war on terror" - the Extradition Act.  Under this invidious, one-sided law, the US authorities can demand the extradition to America of any British citizen, without presenting any evidence of the crime for which they are wanted.  Needless to say, this arrangement only works one way: if the Brits want to extradite a suspect from the US they still have to present prima facie evidence of a crime to an American court.  The Act also enshrines the questionable European arrest warrant system in British law.

So how on earth did the half-wits in Parliament come to pass such an awful law?  Were they too busy totting up their expense fiddles to notice that they were signing away British sovereignty?  This law means that it is easier for a US court to get a Brit in the dock than it is for them to get a US citizen from another state.  In the latter case, evidence is still also required.

Let's get this straight.  The UK authorities decided not to prosecute in this country.  Even if they had, Gary would probably have been sentenced to community service.  However, if he is extradited, he will get up to 70 years in a maximum security prison in the US.

So a year after Gary's bedroom hack, and after the CPS had decided there was no case to answer, the US authorities demanded Gary's extradition retroactively.   The UK government, rather than protecting a British citizen, basically said "Yes, have him!".  Gary has been fighting the case ever since.

He has not been alone.  Many people from across the political spectrum see this unilateral law as invidious.  And the government reckoned without his mum.  Janis Sharp has fought valiantly and indefatigably to protect her son from this unjust extradition. She has lobbied MPs, talked to newspapers, gained the support of many public and celebrity figures.  She even recently met the PM's wife, Sarah Brown, who was reportedly in tears for Gary.  Yet still the majority of the parliamentary half-wits refuse to do anything. 

In fact, it gets worse.  Over the last few years many MPs have signed Early Day Motions supporting Gary's fight against extradition.  But in a recent debate in the House of Commons about the need to revise the provisions of the Extradition Act, 74 of these MPs betrayed him and voted for the government to keep the Act in place.  Only 10 Labour MPs stuck to their guns and defied the party Whip.  One Labour MP, Andrew MacKinley, will stand down at the next election in protest at this hypocrisy.

This week is crunch time: on Friday a final judicial ruling will be made about the case.  It was the last throw of the legal dice for Gary.  If this fails, he will have to rely on political intervention, which is possible, to prevent his harmful, unjust and unnecessary extradition to the USA.  Please visit the Free Gary website and do all you can in support.

Gareth Peirce on Torture, Secrecy and the British State

Leading UK human rights lawyer, Gareth Peirce, has written a powerful and eloquent article in the London Review of Books about the British state's involvement in torture. 

She also broadens out the argument to look at the fundamental societal problems - lack of accountability, secrecy, the use and abuse of the concept of "national security"  - that created a culture that facilitates and condones torture.

Gareth has fought for victims of injustice for four decades, focusing primarily on terrorism and intelligence issues. 

A long piece, but stick with.  It's worth it!

Quick to Miss a Trick

Former Assistant Commissioner of Special Operations at the Metropolitan Police, Bob Quick, has hit the headlines a couple of times in the last few months - for all the wrong reasons. 

Last November he authorised the arrest of Tory MP Damien Green for allegedly encouraging leaks of sensitive government information.  This had the knock-on benefit of waking MPs up to the fact that we are now living in a de facto police state.  Well, I suppose that must have been a welcome distraction for them.  It must be so dull merely to spend your time devising new and ingenious ways of fiddling your parliamentary expenses. 

This week, Quick was photographed entering Downing Street with highly classified documents under his arm about a sensitive UK terrorist investigation, which were clearly visible to waiting photographers.  The clearly visible "Secret" briefing document detailed an MI5-led operation, codenamed Pathway, and bounced the counter-terrorism agencies into making premature arrests of the suspects, many of them young Pakistanis in the UK on student visas.

Outrage followed this massive security lapse.  What on earth was the man doing, openly carrying secret documents?  Protective rules dictate that such papers are not allowed outside HQ unless signed out and in a security briefcase.  The voluntary press censorship committee, the Defence, Press and Broadcasting Advisory Committee, has slapped a 'D' Notice all over the story.  Quick has, of course, resigned.  Reportedly, he may even (gasp) face disciplinary proceedings within the Met.

Is it just me, or people missing a trick here?  This man has disclosed a highly classified intelligence document without permission.  In addition, this document contained information about an ongoing operation AND the names of senior intelligence officers - according to MI5 lore two of the most damaging types of information that could possibly be disclosed.  So, why is Quick not facing prosecution under the draconian 1989 Official Secrets Act?  He clearly falls under Section 1(1) of the Act as a notified person if he is handling Secret documents:

1(1) A person who is or has been—

(a) a member of the security and intelligence services; or

(b) a person notified that he is subject to the provisions of this subsection,

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

Under these provisions, there is no real defence under law.  Legal precedent in recent OSA trials has clearly established that the reason for an unauthorised disclosure of secrets is irrelevant.  (The theoretical and untested subsequent defence of "necessity" has no bearing on this particular case.)  Whether the breach occurs due to principled whistleblowing or a mistake doesn't matter: the clear bright line against disclosure has been crossed and prosecution inexorably follows.

Except if you have sufficiently seniority, it appears.....

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.

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 offense 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 offense 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 defense 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.

Terrorism Act used against Journalist

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.

Cockle Rustlers under Surveillance

Four times in the past three years, powers designed to catch terrorists have been deployed against potential cockle rustlers on the sands outside Poole Harbour in Dorset. I kid you not. The Independent newspaper yesterday reported that Poole Borough Council had used the sweeping surveillance of the Regulation of Investigatory Powers Act (2000), otherwise known as RIPA, to police the cockle fishermen of Dorset.

RIPA was intended (the government told us in 2000) merely to update for the internet age the old Interception of Communications Act (1985) that for the first time had regulated the intrusive surveillance carried out by spooks and police. In fact, the Grim RIPA massively expanded state intrusion into our personal lives, so that nine government organizations, including the security services and police, and 792 public authorities (of which 474 are local councils) now have the powers to snoop on our private communications, and then some.

In fact, documents disclosed under the Freedom of Information Act suggest that Poole Borough Council may have the dubious distinction of being the nosiest in the UK, using RIPA not only to police its waters, but also to check on the residential status of locals, damage caused to traffic barriers or other minor infractions. Hardly the stuff of James Bond.

Inadvertently, Poole Council has provided a classic case of reductio ad absurdum, but this can be useful in highlighting more serious flaws.

In the last decade we have seen a slew of laws passed by our elected representatives in parliament that are potentially dangerous to our democracy and way of life. All these laws have been whipped through parliament, and the media has tended not to give them much consideration.

One such law that springs to mind is the Civil Contingencies Act (2004). This was passed with barely a murmur and, in the wake of the foot and mouth crisis, was deemed to be A Good Thing. However, the devil is always in the detail. This law allows any senior government minister, at the stroke of a pen, to declare a 30 day state of emergency. Under these terms, the authorities can prevent our free association at political meetings or demonstrations, they can quarantine us, or prevent us moving freely around our country. They can even seize our homes, demolish them, and not have to pay a penny in compensation, as this will have been done to protect “national security”.

But the real stinker was the draft of the Legislative and Regulatory Reform Act (2006). If Blair had succeeded in passing this law, it would have spelled the end of 700 years of parliamentary democracy in Britain. Had the original draft been approved, any senior government minister could have abolished any law previously passed by our Houses of Parliament.

Not for nothing was this nicknamed the “Abolition of Parliament Bill” (well, that and the fact that its formal title is a tongue-twister – try saying it out loud!). Following a citizens' campaign, the Bill was watered down as it passed through the Houses of Parliament. However, even though limited safeguards have been introduced, ministers are still in a position to tinker with any British laws except the Human Rights Act. So, the tendency for authoritarian government may have been reined in this time, but we need to remain vigilant.

Many people are aware and are also apprehensive of how these laws could be misused against the citizens of the UK if a more ruthless and draconian government were in power. Many commentators say we are sleep-walking towards a police state. The tragedy is that we are pretty much there – most of the necessary laws are in place. It is time for us all to re-engage in the democratic process and halt this rush towards a completely unaccountable government.