My recent interview on Max Keiser’s excellent RT show, The Keiser Report, apparently now the most watched English language news commentary show across the world.
We were discussing such happy subjects as the war on terror, the war on drugs, but predominantly the war on the internet:
Just a quickie, as this is some sort of holiday season apparently. However, this did annoy me. In the same way that President Obama signed the invidious NDAA on 31st December last year, despite his protestations about vetoing etc, it appears the US government has sneaked/snuck through (please delete as appropriate, depending on how you pronounce “tomato”) yet another draconian law during the festive season, which apparently further erodes the US constitution and the civil rights of all Americans.
Yet another problem for our benighted cousins across the pond, you might think. But as so often happens these days, bonkers American laws can affect us all.
Yesterday the Senate approved an expansion of the terms of the Foreign Intelligence Surveillance Act (FISA). This allows the US intelligence services to hoover up, if you’ll pardon the mild intelligence joke, the emails of god-fearing, law-abiding Americans if they are exchanging emails with pesky foreigners.
Well of course the whole world now knows, post 9/11, that all foreigners are potential terrorists and are now being watched/snatched/extraordinarily rendered/tortured/assassinated with impunity. In Europe we have had many people suffer this way and some have managed to achieve recognition and restitution. That appears to do little to stop the drone wars and blood-letting that the USA has unleashed across the Middle East.
But the NDAA and the extended FISA should at least rouse the ire of Americans themselves: US citizens on US soil can now potentially be targeted. This is new, this is dangerous, right?
Well, no, not quite, as least as far as the interception of communications goes.
The Echelon system, exposed in 1988 by British journalist Duncan Campbell and reinvestigated in 1999, put in place just such a (legally dubious) mechanism for watching domestic citizens. The surveillance state was already in place, even if through a back door, as you can see from this article I wrote 4 years ago, which included the following paragraph:
ECHELON was an agreement between the NSA and its British equivalent GCHQ (as well as the agencies of Canada, Australia, and New Zealand) whereby they shared information they gathered on each others’ citizens. GCHQ could legally eavesdrop on people outside the UK without a warrant, so they could target US citizens of interest, then pass the product over to the NSA. The NSA then did the same for GCHQ. Thus both agencies could evade any democratic oversight and accountability, and still get the intelligence they wanted.
The only difference now is that FISA has come blasting through the front door, and yet people remain quiescent.
My recent interview for the excellent Oxford University Free Speech Debate project, run by Professor Timothy Garton Ash. I discuss whistleblowing, the Official Secrets Act, Wikileaks and much more:
Part Two of my recent interview on the excellent, independent and fearless Real News Network:
Published in The Huffington Post UK, 2 October 2012
Only in the mad world of modern British politics could it be possible to connect MPs, drones and royal breasts. Is this sounding a little too bizarre? Let me explain.…
Way back in 2008 Conservative MP Damien Green, who was at the time the Shadow Minister for Immigration, was arrested on suspicion of eliciting leaks from a Home Office civil servant that appeared to confirm the then Labour government was covering up UK immigration figures.
When I say arrested, this was not the standard, civilised and pre-arranged appointment at the local nick, which the police traditionally allow their political “masters” or, for that matter, their buddies at News International.
Oh no, this was a full-on, Cold War-style arrest, carried out by the Metropolitan Police Counter-Terrorism command (known in the old days as Special Branch). Intriguingly, civil servants appeared to have misleadingly hyped up the need for a heavy-handed police response by stating that they were “in no doubt that there has been considerable damage to national security already as a result of some of these leaks”.
And indeed, the resulting arrests bore all the hall-marks of a national security case: secret police, dawn raids, and counter-terrorism style searches of the family home, the constituency office, and — shock — an invasion of Green’s office in parliament.
Yet Green was not arrested under the terms of the Official Secrets Act. Instead, both he and his hapless whistleblower, Christopher Galley, were only seized on suspicion of breaching some arcane Victorian law (“aiding and abetting misconduct in public office”). I suppose arresting a sitting MP for a breach of the OSA would have been just too politically tricky.
Leaving aside the understandable upset caused to Green’s wife and children by the raid on their home, plus the fact that the police violated not only their personal effects such as bed sheets and love letters but also confidential legal papers about child abuse cases that Mrs Green was working on, what really caused outrage in the media and political classes was the fact that Plod had dared to invade the hallowed ground of parliament.
There was an outcry from politicians about the “encroaching police state”. The case was duly dropped, the senior officer, Assistant Commissioner Bob Quick, had to resign (but only after committing yet another political gaffe), and other stories, such as the MP expenses scandal, grabbed the attention of the mainstream media.
Roll on four years, and Damien Green has now ascended to the giddy heights of Home Office Minister of State for Police and Criminal Justice. Well, meeting his new staff must have been an interesting experience for him.
But what is this man now doing in his eminent role, to stop the slide into the encroaching police state that is the UK? Of all people, one would expect him to be sensitive to such issues.
Sadly, he appears to have already gone native on the job. It was reported yesterday that he is proposing the use of police drones to spy on the UK population, but in an “appropriate and proportionate” manner of course.
The concept of small aerial drones being used by UK police has been mooted for a few years now — indeed some police forces and security agencies have already bought them. But whereas the initial, standard justification was that it would help in the “war on terror” (as it has so ably done in the Middle East, where innocent families are routinely slaughtered in the name of assassinating militants), mission-creep has already set in. Damien Green stated at the launch of the new National Police Air Service (NPAS) that drones could be useful monitoring protests and traffic violations. It has even been reported that the Home Office plans to use non-lethal weapons to do so.
Of course there are problems around the use of drones in UK airspace. Our skies are already very crowded and they could present a hazard to aircraft, although the BBC has reported that drones could be airborne in the next few years. This appears to be the only argument holding the use of drones in check — forget about civil liberties and privacy issues.
This is particularly pertinent as we look at the evolution of drone technology. Currently the UK police are discussing toy-sized drones, but it has already been reported that drones the size of birds or even insects, with autonomous intelligence or swarm capabilities are being developed. And don’t even get me started on the subject of potential militarisation.…
There is a whole debate to be had about what can be viewed and what cannot — where does the public sphere end and the private begin? A couple of years ago I suggested somewhat facetiously that our best hope of defeating the introduction of surveillance drones in the UK might be indignant celebs suing the paparazzi for using the technologies. But perhaps the ante has already been upped in the recent fall-out from the Duchess of Cambridge and her royally papped breasts.
If drone technology becomes widespread, then nobody will have any privacy anywhere. But who knows, before we get to that stage perhaps HM Queen will come out swinging on the side of privacy for her granddaughter-in-law, if not for the rest of her “subjects”. If that were to happen then no doubt Damien Green will abandon his new-found enthusiasm for these airborne surveillance pests; if not to stop the “encroaching police state” of which he must have such colourful recollections, then at least to safeguard any potential knighthood in his rosy ministerial future.
Published in The Huffington Post UK, 30 September 2012
Published in The Real News Network, 30 September 2012
A lot of sound and fury has been expended in the British media over the last few months about the Coalition government’s proposal to enact secret courts via the proposed Justice and Security Bill — purely for terrorist cases, you understand. Which, of course, is OK as we all know terrorists are by definition the Baddies.
Except we need to drill down into the detail of the proposals, have a look at some history, and think through the future implications.
The concept of secret courts emerged from the official UK spook sector — MI5 and MI6 have been lobbying hard for such protection over recent years. Their argument revolves around a number of civil cases, where British victims of extraordinary rendition and subsequent torture have sued the pants off the spies through civil courts and received some recompense for their years of suffering.
The most notorious case was that of Binyam Mohamed, who was repeatedly tortured in a black prison in Morocco, with British spies allegedly contributing to his questioning. And we’re not talking about a few stress positions, awful as they are. Mohamed was strung up and had his penis repeatedly slashed with a razor.
MI5 and MI6 are aggrieved because they could not defend themselves in the resultant civil actions brought against them, and they (and their former political master Jack Straw) are particularly worried about future cases around the MI6-organised Libyan renditions exposed last year. The spies’ argument is that having to produce evidence in their own defence would damage that ever-flexible but curiously vague concept of “national security”.
Well, they would say that, wouldn’t they?
The spooks have traditionally used the “national security” argument as the ultimate get-out-of-jail-free card. It has never been legally defined, but it is unfailingly effective with judges and politicians.
We saw similar arguments during the post‑9/11 security flap, when many terrorist suspects were scooped up and interned in high security British prisons such as Belmarsh on the say-so of faceless intelligence officers. No evidence needed to be adduced, nor could it be challenged. The subsequent control order system was equally Kafkaesque.
That’s not to say that certain interned individuals might not have been an active threat to the UK. However, in the “good” old days (god, I sound ancient), suspects would have had evidence gathered against them, been tried by a jury, convicted and imprisoned. The system was never perfect and evidence could be egregiously withheld, but at least appeals were possible, most notably in the case of the Birmingham Six.
Since 9/11 even breathing the word “terrorist” has meant that all these historic common law principles seem to have been jettisoned. Even before the proposed enshrinement of “secret courts” in the new Bill, they are already being used in the UK — the Special Immigration Appeal Commission (SIAC) tribunals hear secret evidence and the defendant’s chosen lawyer is not allowed to attend. Instead a special, government-approved advocate is appointed to “represent the interests” of the defendant who is not allowed to know what his accusers have to say. And there was no appeal.
But all this is so unnecessary. The powers are already in place to be used (and abused) to shroud our notionally open court process in secrecy. Judges can exclude the press and the public from court rooms by declaring the session in camera for all or part of the proceedings. Plus, in national security cases, government ministers can also issue Public Interest Immunity Certificates (PIIs) that not only bar the press from reporting the proceedings, but can also ban them from reporting they are gagged — the governmental super-injunction.
So the powers already exist to protect “national security”. No, the real point of the new secret courts is to ensure that the defendant and, particularly in my view, their chosen lawyers cannot hear the allegations if based on intelligence of any kind. Yet even the spies themselves agree that the only type of intelligence that really needs to be kept secret involves ongoing operations, agent names, and sensitive operational techniques.
And as for the right to be tried by a jury of your peers — forget it. Of course juries will have no place in such secret courts. The only time we have seen such draconian judicial measures in the UK outside a time of official war was during the Troubles in Northern Ireland — the infamous Diplock Courts — beginning in the 1970s and which incredibly were still in use this year.
I am not an apologist of terrorism although I can understand the social injustice that can lead to it. However, I’m also very aware that the threat can be artificially ramped up and manipulated to achieve preconceived political goals.
I would suggest that the concept of secret courts will prove fatally dangerous to our democracy. It may start with the concept of getting the Big Bad Terrorist, but in more politically unstable or stringent economic times this concept is wide open to mission creep.
We are already seeing a slide towards expanding the definition of “terrorist” to include “domestic extremists”, activists, single issue campaigners et al, as I have written before. And just recently information was leaked about a new public-private EU initiative, Clean IT, that proposes ever more invasive and draconian policing powers to hunt down “terrorists” on the internet. This proposal fails to define terrorism, but does provide for endemic electronic surveillance of the EU. Pure corporatism.
Allowing secret courts to try people on the say-so of a shadowy, unaccountable and burgeoning spy community lands us straight back in the pages of history: La Terreur of revolutionary France, the creepy surveillance of the Stasi, or the disappearances and torture of the Gestapo.
Have we learned nothing?
Whistleblowers want the sun and the moon — or at least they want to get their information out there, they want to make a difference, they want a fair hearing, and they don’t want to pay too high a personal price for doing so.
Is that too much to ask? The decision to expose criminality and bad practice for the public good has serious, life-changing implications.
By going public about serious concerns they have about their workplace, they are jeopardising their whole way of life: not just their professional reputation and career, but all that goes with it, such as the ability to pay the mortgage, their social circle, their family life, their relationship… Plus, the whistleblower can potentially risk prison or worse.
So, with these risks in mind, they are certainly looking for an avenue to blow the whistle that will offer a degree of protection and allow them to retain a degree of control over their own lives. In the old days, this meant trying to identify an honourable, campaigning journalist and a media organisation that had the clout to protect its source. While not impossible, that could certainly be difficult, and becomes increasingly so in this era of endemic electronic surveillance.
Today the other option is the secure, high-tech publishing conduit, as trail-blazed by Wikileaks. While this does not provide the potential benefits of working with a campaigning journalist, it does provide anonymity and a certain degree of control to the modern whistleblower, plus it allows their information to reach a wide audience without either being filtered by the media or blocked by government or corporate injunctions.
As someone who has a nodding acquaintance with the repercussions of blowing the whistle on a secret government agency, I have liked the Wikileaks model since I first stumbled across it in 2009.
As with most truly revolutionary ideas, once posited it is blindingly obvious.
Never before has this been technically possible — the idea that a whistleblower’s information could be made freely available to the citizens of the world, in order to inform their democratic choices, with no blockage, not censorship, no filtering or “interpretation” by the corporate media.
This is particularly relevant in an age when the global media has been consolidated in the hands of a few multinationals, and when these multinationals have a certain, shall we say “cosy”, relationship with many of top our politicians and power elites.
The control of the mainstream media by the spooks and governments has been the focus of many of my recent talks. These corrupt inter-relationships have also been recently laid bare with the News International phone-hacking scandals.
The days of garnering news from one favoured paper or TV bulletin are long gone. Few people now trust just one media outlet — they skip across a variety of news sources, trying to evaluate the truth for themselves. But even that can be problematic when something big occurs, such as the “justification” for the invasion of Iraq or Libya, and the current beat of war drums against Iran, when the corporate media mysteriously achieves a consensus.
Hence the democratic disconnect, hence the distrust, and hence (in part) the plummeting profits of the old media.
Wikileaks is based on a simple concept — it allows the people to read the source material for themselves and make up their own minds based on real information. This led to exposure of all kinds of global nasties way before the massive 2010 US data-dump.
Despite this approach, the impact was initially subdued until Wikileaks collaborated with the old media. This, as we all know, did indeed produce the coverage and awareness of those issues deemed important as it was filtered through the MSM. This has also inevitably lead to tensions between the new model hacktivists and the old-school journalists.
No government, least of all the USA, likes to have demands for justice and transparency forced upon it, and the push back since 2010 has been massive across the world in terms of an apparently illegal financial blockade, opaque legal cases and a media backlash. Certain of Wikileaks’s erstwhile media partners have collaborated in this, turning on one of their richest sources of information in history.
However, Wikileaks is more than a media source. It is a whole new model — a high-tech publisher that offers a safe conduit for whistleblowers to cache and publicise their information without immediately having to overturn (and in some cases risk) their lives.
For this work, Wikileaks has over the years won a number of internationally prestigious journalism awards.
Inevitably, critics in the mainstream media seem to want to have their cake and eat it too: one early partner, the New York Times, has written that it doesn’t recognise Wikileaks as a journalist organisation or a publisher — it is a source, pure and simple.
Either way, by saying this the media are surely shooting themselves in the corporate feet with both barrels. If Wikileaks is indeed “just” a source (the NYT seems to be blithely forgetting that good journalism is entirely dependent on its sources), then the media are breaking their prime directive: protect a source at all costs.
However, if Wikileaks is a journalism or publishing organisation and as such is being targeted by the US government, then all other media are surely equally at risk in the future?
By not standing up for Wikileaks in either capacity, it appears that the old media have a death wish.
Over the years whistleblowers around the world have demonstrated their trust in Wikileaks, as it was set up by someone emerging from the original bona fide hacker community. And rightly so — let’s not forget that no source has been exposed through the failure of the organisation’s technology.
Many media organisations rushed to emulate its success by trying to set up their own “secure” whistleblowing repositories. What the media execs failed to understand was the hacker ethos, the open source mentality: they went to their techie department or commercial IT service providers and said “we want one”, but failed to understand both the ethos and the security concerns around closed, proprietary software systems, often channelled through the post-Patriot Act, post-CISPA USA.
Other, apparently well-meaning organisations, also tried to emulate the Wikileaks model, but most have died a quiet death over the last year. Perhaps, again, for want of real trust in their origin or tech security?
Why on earth would any security-conscious whistleblower, emerging out of a government, military or intelligence organisation, trust such a set-up? If someone comes out of such an environment they will know all-too-well the scale of the push-back, the possible entrapments, and the state-level resources that will be used to track them down. They either need an über-secure whistleblowing platform, or they need journalists and lawyers with fire in their belly to fight the fight, no matter what.
So now to OpenLeaks — apparently the brainchild of Wikileaks defector Daniel Domsheit-Berg. He and the shadowy “Architect” famously fell out with Julian Assange in late 2010, just when the political heat was ramping up on the organisation. They left, reportedly taking some of the crucial coding and a tranche of files with them, and Domsheit-Berg decided to set up a rival organisation called OpenLeaks. As a result of his actions, Domsheit-Berg was uniquely cast out of the international hacker group, the CCC in Berlin.
He now seems to have been welcomed back into the fold and OpenLeaks appears, finally, to be ready to receive whistleblower information.
However, there is a crucial difference between the two organisations. Where Wikileaks wants to lay the information out there for public evaluation, OpenLeaks will merely act as a repository for certain approved mainstream media organisations to access. We are back to the original blockage of the corporate media deciding what information we, the people, should be allowed to ingest.
I would not wish to comment on Domsheit-Berg’s motivation, but to me this seems to be an even worse option for a whistleblower than directly contacting a campaigning journalist with a proven track record of covering hard-core stories and fighting for the cause.
With OpenLeaks, the whistleblower loses not only the automatic widespread dissemination of their information, but also any semblance of control over which journalists will be working on their story. Their information will be parked on the website and anyone from pre-selected media organisations will be able to access, use and potentially abuse it.
One could say that OpenLeaks operates as a secure staging platform where a whistleblower can safely store sensitive documents and information.… but the founder allegedly removed and destroyed sensitive files from Wikileaks when he jumped ship in 2010. Could any whistleblower really trust that OpenLeaks would not similarly “disappear” shit-hot information in the future?
Plus, there is the added worry for any rightly-paranoid whistleblower that the founder of OpenLeaks so easily abandoned Wikileaks when under pressure. Who’s to say that this would not happen again, if the full might of the Pentagon were brought to bear on OpenLeaks?
OpenLeaks offers neither the personal support of working with a trusted journalist and a media organisation with the clout to fight back, nor does it provide full disclosure to the wider public to side-step potential media self-censorship and government law suits, as the original Wikileaks model does.
As such OpenLeaks seems, at least to this particular whistleblower, to be an evolutionary blip — a retrograde step — in the quest for justice and accountability.
I had an immensely stimulating time during my recent mini-tour of Scandinavian investigative journalism conferences, meeting informed, interesting, and interested people.
The focus of my talks was the nexus between the intelligence world and the media — lessons I had learned, researched and deduced during the whistleblowing years and beyond. I have heard so many hair-raising media stories over the years.…
And, having listened to the experiences of journalists from a wide variety of other countries, it seems I am on the right track.
First stop was the Grav conference in Sweden, where I gave a talk and had the pleasure of meeting investigative journalists who confirmed what I was saying, even if some of them didn’t think I had quite gone far enough! We also had fun at the “mingel” evening.
Next stop, next day, was the SKUP conference in Norway where I did a talk, and also a debate about the media and whistleblowers. Note to self: never, ever agree to do a morning debate after the legendary SKUP party the night before.
Finally, last weekend, I visited the Tutki 2012 journalism conference in Finland (Download Helsinki_Talk). The response was overwhelmingly positive, and once again I had confirmation of what I was saying from the journalists themselves.
So what can we do about this situation? I shall keep spreading the word, and the journalists themselves just need to keep saying a resounding “no” to the inducements, at least if they want to work on meaningful investigations. And what real journalist doesn’t, au fond?
Next stop Geneva, which is why I’m limbering up with the French.
My grand tour around Scandinavia continues next weekend, when I shall be giving the opening keynote at the Tutki!2012 investigative journalism conference in Helsinki. Looking forward to the conference!
Outrage continues to swell about the peremptory extradition of British citizens to face trial on tenuous charges abroad.
Thanks to the tireless campaigning of distraught family members, a growing anger in the UK press, and indignant questions and debates in Parliament — even our somnambulant MPs have roused themselves to state that Something Must be Done — the Extradition Act 2003 is now centre stage, and reform of the law will no doubt occur at some point.
As there is a growing consensus, why the delay? I have a theory, but first let’s review some of the most troubling recent cases.
The case that really brought the issue to widespread public attention is the decade-long extradition battle of Gary McKinnon. With this sword of Damocles hanging over his head for so long, poor Gary has already effectively served a 10-year sentence, uncertain of his future and unable to work in his chosen profession. Thanks to the indefatigable campaigning of his mother, Janis Sharp, his case has received widespread support from the media and politicians alike.
Despite this the Home Secretary, Theresa May (who has recently been working so hard in Jordan to protect the rights of Abu Qatada), has dragged her feet abominably over making a decision about whether Gary should be extradited to the US to face a possible 70-year prison sentence — even though the UK investigation into his alleged crime was abandoned way back in 2002.
Then there is the more recent case of student Richard O’Dwyer, wanted in the US even though he lives in the UK and has broken no British laws. He is facing a 10 year maximum security sentence if extradited. Once again, his mother, Julia, is tirelessly fighting and campaigning for her son.
Most recently, Chris Tappin, a retired businessman and golf club president, has been shipped off to a Texas high security penitentiary following what sounds like a US entrapment operation (a technique not legally admissable in UK courts), and faces a 35 year sentence if convicted.
Despite having turned himself in, this elderly gent, who walks with the aid of a cane, is considered such a flight risk that he was last week denied bail. Once again, his wife Elaine has come out fighting.
My heart goes out to all these women, and I salute their tenacity and bravery. I remember living through a similar, if mercifully briefer, four months back in 1998 when the UK government tried and failed to extradite David Shayler from France to the UK to stand trial for a breach of the OSA. I remember with crystal clarity the shock of the arrest, the fear when he disappeared into a foreign legal system without trace, the anguish about his life in an alien prison.
And I remember the frightening moment when I realised I had to step up and fight for him — the legal case, dealing with MPs and the endless media work, including the terror of live TV interviews. And all this when you are worried sick about the fate of a loved one. Shall I just say it was a steep learning curve?
In the wake of the recent extradition cases, there have been questions in Parliament, motions, debates, reviews (Download Review), and there is an ongoing push for an urgent need for reform. And no doubt this will come, in time.
So why the delay? Why not change the law now, and prevent McKinnon, O’Dywer and many others being sacrificed on the American legal altar — the concept of “judicial rendition”, as I have mentioned before.
Well, I have a theory, one derived from personal experience. The British media — most notably the Daily Mail — inveigh against the unilateral extradition of UK citizens to the USA’s brutal prison régime. There is also some concern about extradition to other European jurisdictions — usually on the fringes to the south and east of the continent, regions where the British seem to have a visceral fear of corrupt officials and kangaroo courts.
But what many commentators seem to miss is the crucial legal connection — the extradition arrangements that ensure Brits can be shipped off to the US and many other legal banana republics comparable legal systems to face outrageous sentences are, in fact, embedded within the Extradition Act 2003. This is the act that enshrined the power of the European Arrest Warrant, the the act that was rushed through Parliament in the midst of the post‑9/11 terrorism flap.
And, of course, this is the very act that is currently being used and abused to extradite Julian Assange to Sweden merely for police questioning (he has not even been charged with any crime), whence he can be “temporarily surrendered” to the delights of the US judicial process. Hmm, could this possibly be the reason for the delay in reforming the Act?
Let me guess, you think this is beginning to sound a bit tin-foil hat? Surely it is inconceivable that the British politicians and judges would delay righting a flagrant legal wrong that manifestly results in innocent people being unjustly extradited and prosecuted? Surely our government would move swiftly to protect its citizens?
As I mentioned, my theory stems from personal experience. Once again delving into the mists of time, in 1997 David Shayler blew the whistle on the wrongful conviction on terrorist charges of two innocent Palestinian students, Samar Alami and Jawad Botmeh. Their lawyer, the excellent Gareth Peirce, was immediately on the case, but the UK government dragged its heels for a year. Why?
During that time, the UK government tried to have Shayler extradited from France to the UK to stand trial. Government lawyers were confident of victory and delayed a decision on the students’ appeal against their convictions until the whistleblower was safely incarcerated in HMP Belmarsh, awaiting trial.
Except it all went wrong, and the French freed Shayler for being manifestly a political whistleblower, which in their legal opinion was not an extradictable offence. Only at that point did the UK government lawyers begin to work with Peirce on the Palestinian case, details of which can be found here.
So my theory is that the UK is dragging its feet about reforming the preposterous Extradition Act until it has Assange safely over in Sweden. However, they may be counting their chickens prematurely — and they should never, ever overlook the determination of the campaigning mother, in this case Christine Assange.
But in the meantime, while the UK continues to prostitute itself to the USA, how many more innocent people will have to suffer unjust and unjustifiable extradition?
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?
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.
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.
Here is a recent article I wrote for The Bureau of Investigative Journalism, about our slide into a surveillance state.
TBIJ supported Wikileaks during the release of the SpyFiles. The issue is of such crucial importance for our democracy, I was disappointed that more of the mainstream media did not follow up on the stories provided.
Here’s the text:
Analysis: the slide into a surveillance state
Fifty years ago, President Eisenhower warned of the ‘disastrous rise’ of the military-industrial complex. His fears proved all too accurate.
Now in the post‑9/11 world, the threat goes even further: the military-industrial complex is evolving into the military-intelligence complex. It is a world, I fear, that is propelling us into a dystopian surveillance nightmare.
I have seen this nightmare unfold from close quarters. In the mid-90s I was an intelligence officer for MI5, the UK domestic security service. That is, until I resigned to help my former partner and colleague David Shayler blow the whistle on a catalogue of incompetence, cover-ups and crimes committed by spies. We naively hoped that this would lead to an inquiry, and a review of intelligence work and accountability within the notoriously secretive British system.
The blunders and illegal operations that we witnessed in our six years at MI5 took place at what is probably the most ethical and accountable decade in the British spying service’s 100-year history.
Even then, they were getting away with pretty much whatever they wanted.
Since the attacks of 9/11, I have watched with increasing dismay as more powers, money and resources have been pumped into the international intelligence community to combat the nebulous ‘war on terror’. As a result, civil liberties have been eroded in our own countries, and countless innocent people have been killed, maimed and displaced across the Middle East.
The Regulation of Investigatory Powers Act (RIPA), which was designed to allow our spy agencies to lawfully intercept our communications to counter terrorism and organised crime, has been routinely used and abused by almost 800 public bodies. MI5 admitted to making 1,061 mistakes or ‘administrative errors’ this year alone in its application of RIPA, according to the Interception of Communications Commissioner, Sir Paul Kennedy.
Intelligence creep extends to the police, as we saw with the undercover police scandal earlier this year, where the unaccountable National Public Order Intelligence Unit was discovered to be infiltrating harmless and legitimate protest groups for years on end.
It is a world, I fear, that is propelling us into a dystopian surveillance nightmare.
Even beyond the undercover cops, we have seen an explosion in corporate spying. This involves mercenary spy companies such as Xe (formerly Blackwater), Kroll, Aegis and Diligence offering not just security muscle in hotspots around the world, but also bespoke operations enabling big corporations to check out staff or to infiltrate and investigate protest groups that may embarrass the companies.
The mercenary spy operates without any oversight whatsoever, and can even be granted immunity from prosecution, as Xe enjoyed when operating in Iraq.
The last decade has also been a boom time for companies providing high-tech surveillance capabilities. One aspect of this in the UK – the endemic CCTV coverage – is notorious. Local councils have invested in mobile CCTV smart spy cars, while cameras that bark orders to you on the street have been trialled in Middlesbrough.
Drones are increasingly used for aerial surveillance – and the potential for militarisation of these tools is clear.
All this despite the fact that the head of the Metropolitan Police department that is responsible for processing all this surveillance information stated publicly that CCTV evidence is useless in helping to solve all but 3% of street robberies in London. In fact, since CCTV has been rolled out nationally, violent crime on the streets of Britain has increased.
But, hey, who cares about facts when security is Big Business? Someone, somewhere, is getting very rich by rolling out ever more Orwellian surveillance technology. And while the technology might not be used against the wider UK citizenry in a particularly malignant manner – yet – the same companies are certainly allowing their technologies to find their way to the more violent and repressive Middle Eastern states.
That would never happen in Britain – would it? We retain an optimistic faith in the long-term benign intentions of our government, while tut-tutting over Syrian police snatch squads pre-emptively arresting suspected dissidents. Yet this has already happened in the UK: before the royal wedding in April, protesters were pre-emptively arrested to ensure that they would not cause embarrassment. The intent is the same in Syria and Britain. Only the scale and brutality differs – at the moment.
When I worked for MI5 in the 1990s I was appalled how easily telephone interception could be used illegally, and how easily the spies could hide their incompetence and crimes from the government. In the last decade it has become much worse, with senior spies and police officers repeatedly being caught out lying to the toothless Intelligence and Security Committee in Parliament. And this is only the official intelligence sector.
How much worse is the endemic surveillance carried out by the corporate spy industry?
The balance of power, bolstered by new technologies, is shifting overwhelmingly in favour of the Big Brother state – well, almost. The WikiLeaks model is helping level the playing field, and whatever happens to this trailblazing organisation, the principles and technology are out there and will be replicated. This genie cannot be put back in the bottle. This – combined with the work of informed MPs, investigative journalists and potentially the occasional whistleblower – gives me hope that we can halt this slide into a Stasi state.
Annie Machon is a former spy with MI5, the British intelligence agency working to protect the UK’s national security against threats such as terrorism and espionage.
You can read Annie Machon’s blog ‘Using Our Intelligence’ here.