Category Archives: Law

New Statesman Article, August 2008

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The new spies

Steph­en Armstrong

When
the Cold War ended, it did­n’t spell cur­tains for the secret agent.
Private espi­on­age is a boom­ing industry and envir­on­ment­al protest
groups are its prime target

                  


 

As you hunker down for the last few days of the Camp for Climate
Action, dis­cuss­ing how to force your way into King­s­north power station
in an attempt to pre­vent the con­struc­tion of a new coal facil­ity, cast
your eyes around your fel­low pro­test­ers. Do they look entirely bona
fide to you? And don’t look for the old-school spe­cial branch officers
— Kent Police are a tiny force. It’s the cor­por­ate spies hired by
private com­pan­ies you need to watch out for.

Accord­ing to the private espi­on­age industry itself, roughly one in four of your com­rades is on a mul­tina­tion­al’s payroll.

Rus­sell Corn, man­aging dir­ect­or of Dili­gence, one of a growing
num­ber of “cor­por­ate intel­li­gence agen­cies”, with offices high in the
Canary Wharf glass tower, says private spies make up 25 per cent of
every act­iv­ist camp. “If you stuck an inter­cept up near one of those
camps, you would­n’t believe the amount of out­go­ing calls after every
meet­ing say­ing, ‘Tomor­row we’re going to cut the fence’,” he smiles.
“Eas­ily one in four of the people there are tak­ing the corporate
shilling.”

In April this year, for instance, the anti-avi­ation cam­paign network
Plane Stu­pid, one of the main organ­isers of the eco-camp built to
protest against the expan­sion of Heath­row Air­port, announced that one
of its act­iv­ists, Ken Tobi­as, was actu­ally called Toby Kend­all, was
work­ing for a cor­por­ate espi­on­age firm called C2i, and had been leaking
inform­a­tion about the group to pay­ing cli­ents and the media. He had
been hired by an as yet unknown private com­pany to provide information
and dis­rupt the group’s campaigning.

When Tobi­as first turned up at Plane Stu­pid’s meet­ings in July 2007,
he seemed a com­mit­ted former Oxford stu­dent ded­ic­ated to reducing
air­craft emis­sions. The group gradu­ally became sus­pi­cious because he
showed up early at meet­ings, con­stantly pushed for increas­ingly drama
tic dir­ect action and — the ulti­mate giveaway — dressed a little too
well for an eco­w­ar­ri­or. When they showed his pic­ture around Oxford they
found an old col­lege pal who iden­ti­fied him as Toby Kend­all. A quick
Google search revealed his Bebo page with a link to a corporate
net­work­ing site, where his job as an “ana­lyst” at C2i International,
work­ing in “secur­ity and invest­ig­a­tions”, was pas­ted in full public
view.

Just a month earli­er, a woman called Cara Schaf­fer had con­tac­ted the
Student/Farmworker Alli­ance, an ideal­ist­ic bunch of Amer­ic­an college
stu­dents who lobby fast-food com­pan­ies to help migrant work­ers in
Flor­ida who har­vest toma­toes. Like the cockle-pick­ers of More­cambe Bay,
many of these work­ers are smuggled into the US by gangs which then take
their pass­ports and force them to work without pay to clear often
fic­ti­tious debts to regain their papers.

Digging up dirt

Again, Schaf­fer­’s excess­ive eager­ness aroused sus­pi­cion, and again,
the inter­net revealed her true iden­tity. She owned Dip­lo­mat­ic Tactical
Ser­vices, a private espi­on­age firm which had pre viously hired as a
sub­con­tract­or one Guillermo Zara bozo, today facing murder charges in
Miami for his role in allegedly execut­ing four crew mem­bers of a
chartered fish­ing boat, an alleg­a­tion he denies. Schaf­fer turned out to
be work­ing for Bur­ger King — the home, per­haps appro­pri­ately, of the
Whopper.

The cute thing about these two bozos is that they got caught pretty
early on, but that was because they were young and had no back­ground in
espionage.

The real mar­ket is in prop­er, old-school spies who are suddenly
enter­ing the private sec­tor. For pro­fes­sion­al spooks, the 1990s were no
fun at all. The Cold War was over, defence spend­ing was down and a
detailed know­ledge of cold-drop tech­niques in cent­ral Ber­lin was
use­less to gov­ern­ments look­ing for Arab­ic speak­ers who knew the Quran.

From New York and Lon­don to Moscow and Beijing, any decent-sized
cor­por­a­tion can now hire former agents from the CIA, FBI, MI5, MI6 and
the KGB. The ex-spooks are selling their old skills and con­tacts to
mul­tina­tion­als, hedge funds and olig­archs, dig­ging up dirt on
com­pet­it­ors, uncov­er­ing the secrets of board­room rivals and exposing
invest­ment tar­gets. They are also keep­ing tabs on journalists,
pro­test­ers and even poten­tial employees.

“MI5 and MI6 in par­tic­u­lar have always guided ex-employ­ees into
secur­ity com­pan­ies,” explains Annie Machon, the former MI5 agent who
helped Dav­id Shayler blow the whistle on the secur­ity ser­vices back in
1997. “It’s always use­ful to them to have friends they can tap for info
or recruit for a job that requires plaus­ible deni­ab­il­ity. The big
change in recent years has been the huge growth in these companies.
Where before it was a hand­ful of private detect­ive agen­cies, now there
are hun­dreds of mul­tina­tion­al secur­ity organ­isa­tions, which operate
with less reg­u­la­tion than the spooks them­selves,” she says.

Corn’s com­pany Dili­gence, for instance, was set up in 2000 by Nick
Day, a former MI5 spy, and an ex-CIA agent, Mike Baker. Before long,
the duo had built up a roster of high-pay­ing cli­ents includ­ing Enron,
oil and phar­ma­ceut­ic­al com­pan­ies, as well as law firms and hedge funds.
In 2001, a small invest­ment by the Wash­ing­ton lob­by­ing com­pany Barbour
Grif­fith & Rogers pro­pelled their growth. How­ever, BGR and Baker
sold their stakes in 2005, shortly before a scan­dal shook Diligence.
KPMG, the glob­al pro­fes­sion­al ser­vices firm, accused Dili­gence staff of
imper­son­at­ing Brit­ish spies to gain inform­a­tion on a cor­por­ate takeover
for a Rus­si­an tele­coms cli­ent called Alfa Group. Dili­gence settled the
law­suit without admit­ting liability.

Since then, it has recruited the former Con­ser­vat­ive Party leader
Michael Howard as chair­man of its European oper­a­tions. And it is that
sort of respect­ab­il­ity and lob­by­ing power that big play­ers are after.
In 2007, the par­ent com­pany of the US private mil­it­ary firm Blackwater,
which hit the head­lines for gun­ning down Iraqi civil­ians in Baghdad
last Septem­ber, entered this mar­ket through Total Intelligence
Solu­tions (TIS), a new CIA-type private oper­a­tion, to provide
intel­li­gence ser­vices to com­mer­cial clients.

Discreet investigations

Black­wa­ter­’s vice-chair­man, J Cofer Black, who runs TIS, spent three
dec­ades in the CIA and the state depart­ment, becom­ing dir­ect­or of the
Coun­terter­ror­ist Centre and co-ordin­at­or for counter ter­ror­ism, a job
with ambas­sad­ori­al rank. He describes the new com­pany as bring­ing “the
intel­li­gence-gath­er­ing meth­od­o­logy and ana­lyt­ic­al skills traditionally
honed by CIA oper­at­ives dir­ectly to the board­room. With a ser­vice like
this, CEOs and their secur­ity per­son­nel will be able to respond to
threats quickly and con­fid­ently — wheth­er it’s determ­in­ing which city
is safest to open a new plant in or work­ing to keep employ­ees out of
harm’s way after a ter­ror­ist attack.”

Black also says TIS will oper­ate a “24/7 intel­li­gence fusion and
warn­ing centre” that will mon­it­or civil unrest, ter­ror­ism, economic
sta­bil­ity, envir­on­ment­al and health con­cerns, and information
tech­no­logy secur­ity around the world.

The estab­lished firms already oper­at­ing in this area include Kroll,
Aegis, Garda, Con­trol Risks, GPW and Hakluyt & Co. More firms are
open­ing every day and there is little reg­u­la­tion of the sector.

Hakluyt & Co was foun­ded in 1995 by former Brit­ish MI6 officers,
with a repu­ta­tion for dis­creet and effect­ive invest­ig­a­tions. The
com­pany but­ler, a former gurkha, greets vis­it­ors to its Lon­don HQ, a
town house off Park Lane. In winter, meet­ings can be con­duc­ted beside
the fire. Com­puters are rarely in sight. Hakluyt’s advis­ory board has
become an exit cham­ber for cap­tains of industry and former government
offi­cials. Mem­bers have included Sir Rod Edding­ton, a former BA CEO,
and Sir Chris­toph­er Gent, former chief exec­ut­ive of Vodafone.

“It is hard to work well for an oil com­pany without know­ing who all
the key decision-makers in a gov­ern­ment are and hav­ing the right
con­tacts to reach them,” explains Stéphane Gérardin, who runs the
French private secur­ity com­pany Géos. “We have an intel­li­gence section
where we employ some invest­ig­at­ive journ­al­ists, people from the finance
sec­tor, from equity banks and some from secur­ity backgrounds.

“It is an import­ant part of image pro­tec­tion for our cli­ents as
well. We have our own track­ing and mon­it­or­ing centre, with analysts
doing risk map­ping and pre­par­ing our cli­ents for every potential
prob­lem. It could be about alert­ing them to loc­al sens­it­iv­it­ies. Or, in
this glob­al­ised inter­net age, it can be a group of stu­dents in
Cam­bridge who have launched a protest web­site, who may be send­ing out a
petition.

“So we need to be able to under­stand and pre­pare our own propaganda
to counter such attacks. This is work we do to pro­tect our clients.”

Trusted friend

Like the state secur­ity ser­vices, which ended up run­ning Class War
in the 1990s after a hugely suc­cess­ful pen­et­ra­tion, these spies work to
become reli­able mem­bers of any protest move­ment. In April 2007, the
Cam­paign Against Arms Trade called in the police after court documents
showed that the weapons man­u­fac­turer BAE Sys­tems had paid a private
agency to spy on the peace group.

BAE admit­ted that it had paid £2,500 a month to LigneDeux
Asso­ci­ates, whose agent Paul Mer­cer — accep­ted as a trus­ted mem­ber of
the cam­paign — passed inform­a­tion, includ­ing a leg­ally privileged
doc­u­ment, to BAE’s dir­ect­or of secur­ity, Mike McGinty.

Unlike the secur­ity ser­vices, how­ever, these ser­vices don’t bother
with pen­et­rat­ing the far left or anti-fas­cist groups. Their cli­ents are
only inter­ested in the protest move­ments that threaten corporations.
And as that is the nature of much protest in these times, it is a wide
field, but with a par­tic­u­lar impact on envir­on­ment­al groups.

At any of this sum­mer­’s green protests the cor­por­ate spies will be
there, out-of-work MI5 agents tap­ping green act­iv­ists’ mobile phones to
sell the inform­a­tion on to inter­ested companies.

Rus­sell Corn knows of incid­ents where a spook at a meet­ing has
sug­ges­ted a high-street bank as a tar­get, then left the meet­ing to
phone the officers of said bank, telling them that he has pen­et­rated an
act­iv­ist camp plan­ning an attack and offer­ing to sell the details. Corn
has no time for such beha­viour, however.

“The thing about a really good private spy,” he tells me, “is that you’ll nev­er know he’s around and he’ll nev­er get caught.

“The fact you can­’t see them … it means noth­ing at all.” 

Lost Document Débâcle

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So anoth­er intel­li­gence offi­cial has mis­laid some highly clas­si­fied doc­u­ments — this time by leav­ing them lying on a com­muter train depart­ing Water­loo sta­tion. And while the Cab­in­et office (his soon to be former employ­er?) is des­per­ately try­ing to down­play the sens­it­iv­ity of these doc­u­ments, let’s not be fooled. “Top Secret – Strap – Can/Aus/UK/US Eyes Only” is very high level clas­si­fic­a­tion indeed.

In this case, it appears that the offi­cial may not even have had per­mis­sion to remove these doc­u­ments in the first place. Cab­in­et Min­is­ter, Ed Miliband, is quoted in the Daily Mail today as say­ing that there had been ‘a clear breach’ of rules for­bid­ding the remov­al of doc­u­ments without author­isa­tion. Then, hav­ing removed these doc­u­ments illeg­ally, the intel­li­gence offi­cial appears to have taken them out of the secur­ity briefcase and read them in pub­lic, before leav­ing them on the train.

One can only spec­u­late wheth­er he was drunk, simply care­less, or wheth­er this was a tim­id attempt to blow the whistle and draw the BBC’s atten­tion to yet fur­ther proof that the “war on ter­ror” is overhyped.

The secur­ity breach is not unusu­al. Over the years, drunk­en spies have mis­laid count­less doc­u­ments in pubs and on the jour­ney home. In 2000 an MI6 officer even left a laptop in a Vaux­hall bar. How­ever, the secret inform­a­tion usu­ally has a degree of low-level pro­tec­tion – the com­puter is encryp­ted or the doc­u­ments are locked in a secur­ity briefcase, not left lying around in an orange folder.

When I was work­ing for the spooks, the drink­ing cul­ture was endem­ic. Seni­or man­agers set the pace, with some going to the pub most days for lunch – one pub was fam­ously called Base Camp Two – sink­ing a few pints, and then doz­ing the after­noon away. Of course, the young­er officers fol­lowed suit, reg­u­larly meet­ing after work for a drink and a moan. Often, they would have secur­ity briefcases with them to take away the next day for work, and it was a mir­acle that more doc­u­ments were not lost.

There is spec­u­la­tion in the media that the man will be dis­cip­lined. He has already been sus­pen­ded. But the media appears to be miss­ing a trick: this is also a breach of the Offi­cial Secrets Act 1989. In this case, Sec­tion 1(1) will apply:

“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.”

So, if this offi­cial was drunk and care­less with the nation’s secrets, he deserves to face the music. The doc­u­ments were seen by a mem­ber of pub­lic and by BBC staff, so the “clear bright line” against dis­clos­ure that is always argued in whis­tleblower tri­als had already been breached.

If this was a cov­ert attempt a get­ting the inform­a­tion to the media, as happened, then this per­son is a whis­tleblower and deserves pro­tec­tion. The law makes no dis­tinc­tion based on intent, as the pub­lic interest defence was removed from the OSA in 1989 (des­pite the fact that Blair, Straw and most of the Labour gov­ern­ment past and present voted against this measure).

How­ever, such an action is clearly mor­ally dif­fer­ent from drunk­en care­less­ness, and if that was indeed his intent, he would have done bet­ter to have had the cour­age of his con­vic­tions and gone dir­ectly to the media. He would still not have had any defence under the OSA for his prin­cipled stance, but the impact and poten­tial for change would have been great­er. Bet­ter to be hung for a sheep than a lamb.

The Media and the Spies

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The UK main­stream media has made much this week of Home Sec­ret­ary Jac­qui Smith’s asser­tion that MI5 had not reques­ted the government’s pro­posed exten­sion of the impris­on­ment without charge of ter­ror­ist sus­pects from 28 to 42 days.

This state­ment has caused a furore in the UK, and there is a chance that the PM may lose the key vote in Par­lia­ment on this amend­ment tomorrow.

In fact, such has been the uproar that the Dir­ect­or Gen­er­al of MI5, Jonath­an Evans, is repor­ted by Reu­ters to have made a rare pub­lic statement:

“Since the secur­ity ser­vice is neither a pro­sec­ut­ing author­ity nor respons­ible for crim­in­al invest­ig­a­tions, we are not, and nev­er have been, the appro­pri­ate body to advise the gov­ern­ment on pre-charge deten­tion time lim­its,” he said in a state­ment on the MI5 website.

“We have not, there­fore, sought to com­ment pub­licly or privately on the cur­rent pro­pos­als, except to say that we recog­nise the chal­lenge posed for the police ser­vice by the increas­ingly com­plex and inter­na­tion­al char­ac­ter of some recent ter­ror­ist cases.”

What par­tic­u­larly strikes me about this is an appar­ently insig­ni­fic­ant phrase, “raised pub­licly or privately”.

In con­trast to the Met­ro­pol­it­an Police Com­mis­sion­er Sir Ian Blair, who admit­ted to “unin­ten­tion­ally mis­lead­ing” the par­lia­ment­ary Joint Com­mit­tee charged with assess­ing the need to increase the deten­tion lim­it, Evans had refused to give evid­ence about the 42 day issue. So he has cer­tainly not raised this in a pub­licly account­able way.

It’s the word “private” that intrigues me. It reeks of sotto voce dis­cus­sions between old school chums at the grander gentlemen’s clubs in Lon­don: of unat­trib­ut­able brief­ings between anonym­ous MI5 officers and chosen journ­al­ists; and of cosy lunches with Fleet Street edit­ors in the DG’s din­ing room at Thames House, MI5’s Lon­don HQ.

While Evans denies using this meth­od­o­logy around the 42 day issue, his state­ment con­firms that such private dis­cus­sions do indeed play a part in influ­en­cing policy decisions and media perception.

I saw this approach first-hand in the 1990s dur­ing the whis­tleblow­ing years. In fact, it was then that MI5 stepped up its charm offens­ive with politi­cians and journ­al­ists. It was dur­ing one of the first of these cosy media lunches in Thames House, hos­ted by the then DG Steph­en Lander, that the respec­ted BBC Dip­lo­mat­ic Edit­or Mark Urb­an asked a fate­ful ques­tion about the Gad­dafi Plot and was reportedly told by Lander that “he was not here to answer half-baked ques­tions from smart-arse journ­al­ists”. So there were cer­tain short­falls in the charm, even if the lack of account­ab­il­ity held up well.

But there are oth­er, more sin­is­ter ways for the spies to manip­u­late pub­lic opin­ion. MI6 has a sens­it­ive sec­tion called Inform­a­tion Oper­a­tions (I/Ops), which exists purely to set the news agenda for the spies. I/Ops man­ages this either by mas­sa­ging the facts, spin­ning the tone of the story or, more wor­ry­ingly, plant­ing false stor­ies in a qui­es­cent press.

In the 1990s there was a fam­ous case. Col­on­el Gaddafi’s son, Saif Al Islam, applied for a visa to come to Bri­tain. I/Ops planted a com­pletely false story in The Sunday Tele­graph that he was involved in money laun­der­ing with Iran and, lo and behold, MI5 had the per­fect excuse to deny him a visa. Al Islam sub­sequently sued the news­pa­per which, faced with Shayler­’s evid­ence, settled out of court.

A few months ago the ex-head of MI6, Sir Richard Dear­love, gave a talk at the LSE about the intel­li­gence agen­cies and the media. I went along to have a laugh, and was gra­ciously allowed to ask a ques­tion. Nat­ur­ally I raised the issue of I/Ops, its rela­tion­ship with the media, and wheth­er such a role was accept­able in a mod­ern democracy.

In the con­text of the talk, what could have been more per­tin­ent? How­ever, Dear­love declined to answer. In fact, he went so far as to say that such a mat­ter was “with­in the ring of secrecy”. At which point a journ­al­ist from a pres­ti­gi­ous nation­al news­pa­per who was sit­ting next to me, turned and said glee­fully that this at last proved that I/Ops exis­ted. Grat­i­fy­ing as this was, I shall reit­er­ate my ques­tion: is the role of I/Ops accept­able in a mod­ern demo­cracy, where we are sup­posed to enjoy free­dom of inform­a­tion, trans­par­ency and account­ab­il­ity from the powers-that-be?

IT Defense Conference, Hamburg January 2008

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In Janu­ary 2008 I spoke at the IT Defense Con­fer­ence in Ham­burg in Janu­ary 2008.  This is a sum­mary of my talk.

The Spy­ing Game? – Annie Machon

I gave a present­a­tion about the role of intelligence
agen­cies in the cur­rent era of the unend­ing “war on ter­ror”, how they
mon­it­or us, and the implic­a­tions for our democracies.

In the name of pro­tect­ing nation­al secur­ity, spy agen­cies are being
giv­en sweep­ing new powers and resources. Their intel­li­gence has been
politi­cised to build a case for the dis­astrous war in Iraq, they are
fail­ing to stop ter­ror­ist attacks, and they con­tin­ue to col­lude in
illeg­al acts of intern­ment and tor­ture, euphemist­ic­ally called
“extraordin­ary rendi­tion”. Most west­ern demo­cra­cies have already given
so many new powers to the spies that we are effect­ively liv­ing in
police states. As an informed com­munity, what can we do about this?
t‑style: nor­mal; font-vari­ant: nor­mal; font-weight: nor­mal; font-size: 7pt; line-height: nor­mal; font-size-adjust: none; font-stretch: nor­mal;”> The illeg­al MI6
assas­sin­a­tion attempt against Col­on­el Gad­dafi of Libya

International Islamic Fair, Malaysia 2007

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In July 2007 I was invited to speak at the Inter­na­tion­al Islam­ic Fair in Malay­sia along with 9/11 hero Wil­li­am Rodrig­uez.

The Fair is designed to increase under­stand­ing and co-oper­a­tion between Islam­ic and non-Islam­ic com­munit­ies.  Politi­cians, dip­lo­mats and cam­paign­ers from around the world are invited to speak.  Thou­sands of people atten­ded the four day event, and the Fair made head­lines across the Far East.

Here is the photo gal­lery of the 2007 IIF Conference.

I was hon­oured to receive a stand­ing ova­tion, and com­ments included:

“Former Brit­ish MI5 agent & Amer­ic­an depleted urani­um expert among best received paper presenters”

and

“The IIF2007 Con­fer­ence ful­filled most of its pre-event prom­ises – as far as con­tent goes. In addi­tion to the pres­ence of Wil­li­am Rodrig­uez (last sur­viv­or of 9/11) as a ses­sion mod­er­at­or, the con­fer­ence par­ti­cipants were also ‘thrilled’ by the lec­tures of oth­er over­seas speak­ers includ­ing Sheikh Imran Hosein (former N.York mosque imam), H.E. Mahdi Ibrahim Muhammad (Ambas­sad­or / mem­ber of Nation­al Assembly, Sudan), Annie Machon (former Brit­ish Intel­li­gence MI5 agent) and Khaled Taha of Aljaz­eera, Qatar.”

Terrorism Act used against Journalist

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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

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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.

Straw Man

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The gov­ern­ment is push­ing through yet anoth­er piece of legis­la­tion designed to provide “pub­lic ser­vice hon­esty, integ­rity and inde­pend­ence” to the Brit­ish people. As part of this strategy, the draft Con­sti­tu­tion­al Renew­al Bill even con­tains a sec­tion to provide pro­tec­tion for gov­ern­ment whis­tleblowers. Need­less to say, spies are auto­mat­ic­ally excluded (see sec­tion 25 (2) of the draft Bill).

The draft Bill states that any whis­tleblowers from with­in the ranks of MI5, MI6 and GCHQ will be dealt with intern­ally. This has always been the case for MI5 and 6 (des­pite the government’s breath­tak­ing lies dur­ing the Shayler case that he could have gone to any crown ser­vant with his con­cerns). How­ever, in the case of GCHQ, this Bill will take away employ­ees’ rights to go to an inde­pend­ent Com­mis­sion­er, to bring it into dra­coni­an line with its sis­ter agencies.

So, to put this bluntly, those in our intel­li­gence agen­cies who exper­i­ence eth­ic­al qualms about their work or, even worse, wit­ness crimes, will have to take their con­cerns to the head of the very agency com­mit­ting these crimes. Let’s guess how far these com­plaints will go.

Now, some might say that it’s naïve to think that the intel­li­gence agen­cies don’t com­mit illeg­al or uneth­ic­al acts. All I can say to that is — grow up. James Bond is a myth. Even the bad old days of the Cold War when, as former MI5 officer Peter Wright put it, MI5 could “bug and burgle its way around Lon­don” with impun­ity are long gone. The 1985 Inter­cep­tion of Com­mu­nic­a­tions Act (and sub­sequent legis­la­tion), the 1989 Secur­ity Ser­vice Act, and the 1994 Intel­li­gence Ser­vices Act, have put paid to that. In line with basic human rights, the spies now have to apply for min­is­teri­al per­mis­sion based on, ahem, a sol­id intel­li­gence case, to aggress­ively invest­ig­ate a target.

Dur­ing the 10 month peri­od of my recruit­ment to MI5 in 1990, I was repeatedly told that the organ­isa­tion had to obey the law; that it was evolving into a mod­ern counter-ter­ror­ism agency. If that is indeed the case, then why is MI5 still to this day not account­able in the same way as the Met­ro­pol­it­an Police Spe­cial Branch, which does the same work?

And who is the brave politi­cian ensur­ing that our intel­li­gence com­munity can remain shrouded in secrecy and pro­tec­ted from cri­ti­cism by the full force of the law? Stand up Justice Min­is­ter Jack Straw.

It just remains for me to say that Straw has a cer­tain his­tory in this area. In 1997, when Shayler blew the whistle, Straw was the Home Sec­ret­ary, the gov­ern­ment min­is­ter charged with over­see­ing MI5. One of Shayler’s early dis­clos­ures was that MI5 held files on a num­ber of politi­cians, includ­ing Straw him­self. Did Straw demand to see his file in angry dis­be­lief? No, he meekly did the spies’ bid­ding and issued a blanket injunc­tion against Shayler and the UK’s nation­al media.

But think about it — this is a clas­sic Catch 22 situ­ation. Either MI5 was right to open a file on Straw because he was a polit­ic­al sub­vers­ive and a danger to nation­al secur­ity – in which case, should he not have imme­di­ately resigned as Home Sec­ret­ary? Or MI5 got it wrong about Straw. In which case he should have been invest­ig­at­ing this mis­take and demand­ing to know how many oth­er inno­cent UK cit­izens had files wrongly and illeg­ally opened on them.

But Straw did neither. Per­haps he was wor­ried about what the spies could reveal about him? It’s inter­est­ing that he is yet again rush­ing to pro­tect their interests….

 

Spies and the Law

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For con­text, here’s a little bit of back­ground inform­a­tion about the UK’s spy agen­cies, and the leg­al con­straints with­in which they are sup­posed to operate.

There are three primary agen­cies: MI5 (the UK Secur­ity Ser­vice), MI6 (Secret Intel­li­gence Ser­vice — SIS) and GCHQ (the Gov­ern­ment Com­mu­nic­a­tions HQ). Bey­ond this inner circle, there is the Met­ro­pol­it­an Police Spe­cial Branch (MPSB), the spe­cial branches of every oth­er police force in the UK, mil­it­ary intel­li­gence, and Cus­toms, amongst others.

MI5 and MI6 were set up in 1909 dur­ing the build up to the First World War, when their remit was to uncov­er Ger­man spies. For the next 80 years they didn’t offi­cially exist and oper­ated out­side the law.

In 1989 MI5 was put on a leg­al foot­ing for the first time when par­lia­ment passed the Secur­ity Ser­vice Act. This stated that it had to work with­in leg­al para­met­ers, and if it wanted to do some­thing that would oth­er­wise be illeg­al, such as break­ing into and bug­ging someone’s house, it had to get the writ­ten per­mis­sion of its polit­ic­al mas­ter, the Home Sec­ret­ary. Without that, MI5 would be break­ing the law just as you or I would be.

MI6 and GCHQ were not put on a leg­al foot­ing until the 1994 Intel­li­gence Ser­vices Act, and are answer­able to the For­eign Sec­ret­ary. The same Act also set up the Intel­li­gence and Secur­ity Com­mit­tee in Par­lia­ment as a sop to demo­crat­ic over­sight. The ISC is respons­ible for over­see­ing the policy, fin­ance and admin­is­tra­tion of the three agen­cies. It has abso­lutely no remit to look at their oper­a­tion­al run­ning, nor can it invest­ig­ate alleged crimes com­mit­ted by them. Even if it could, the ISC has no power to call for wit­nesses or demand doc­u­ments from the spooks. Moreover, the com­mit­tee is appoin­ted by the Prime Min­is­ter, answer­able only to him, and he can vet its find­ings. Much of the ISC’s annu­al reports are blanked out.

When I was recruited by MI5 in the early 1990s, the organ­isa­tion was at great pains to explain that it worked with­in the law, was account­able, and its work was mainly invest­ig­at­ing ter­ror­ism. Once I began work­ing there, this quickly proved to be untrue. MI5 is incom­pet­ent, it breaks the law, con­nives at the impris­on­ment of inno­cent people, illeg­ally bugs people, lies to gov­ern­ment (on whom it holds per­son­al files) and turns a blind eye to false flag ter­ror­ism. This is why I resigned and helped to blow the whistle.

With all this hys­teria about the threat from Al Qaeda, and the ava­lanche of new powers and resources being thrown at the spooks, as well the erosion of our liber­ties, we need to keep a cool head. Why don’t our politi­cians take a step back and ask what pre­cisely are the scale and nature of the threats facing this coun­try, and how can we best police them? As Sir Ian Blair recently showed, we can­not take the secur­ity forces’ words about this at face value.

There’s a lot of his­tor­ic bag­gage attached to MI5 and 6, par­tic­u­larly after their dirty tricks against the left in the 1980s. As they are now primar­ily doing a poli­cing job against ter­ror­ism, why not just clear the decks and start again? Set up a ded­ic­ated counter-ter­ror­ism agency, which is prop­erly account­able to par­lia­ment, as the police already are and the spies are not.

As it stands the UK has the most secret­ive intel­li­gence agen­cies in the west­ern world. They are exempt from the Free­dom of Inform­a­tion Act, and pro­tec­ted by the dra­coni­an Offi­cial Secrets Act. The 1989 OSA makes it a crim­in­al offence for any­one to blow the whistle on crimes com­mit­ted by the spies, and it is no longer pos­sible for a whis­tleblower to argue that they acted in the pub­lic interest.

No oth­er west­ern demo­cracy has spies who are quite so unac­count­able, nor so pro­tec­ted from scru­tiny by the law. The closest ana­lo­gies are prob­ably the intel­li­gence agen­cies of coun­tries such as Libya or Iran. Par­tic­u­larly as we now know that MI5 and MI6 officers are con­niv­ing in extraordin­ary rendi­tion and the use of torture.

Are they leg­al? Yes, now, in the­ory. Do they abide by the law? Only when it suits them. Are they eth­ic­al? Abso­lutely not.

UK Police Chief Misleads MPs

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An inter­est­ing art­icle appeared in The Sunday Times today, stat­ing that Bri­tain’s top police­man, the Com­mis­sion­er of the Met­ro­pol­it­an Police Sir Ian Blair, had “unwit­tingly” misled the par­lia­ment­ary Intel­li­gence and Secur­ity Com­mit­tee about the need to increase the peri­od of deten­tion without charge for ter­ror­ist sus­pects in the UK from 28 to 42 days. Blair claimed that 12 major ter­ror­ist oper­a­tions had been foiled in Bri­tain since 2005. In fact, the art­icle reports that only 6 plots have been stopped. Blair has had to issue a grov­el­ling apo­logy via the Press Asso­ci­ation for this, umm, gaffe.

But the art­icle neg­lects to tell us how and why this new inform­a­tion came to light. So allow me to speculate.

The Met, along with its shad­owy cohorts in MI5, is entrus­ted with pro­tect­ing Bri­tain from ter­ror­ist threats. Since 9/11 and the all-per­vas­ive war on ter­ror, Bri­tain’s secur­ity forces have been gran­ted sweep­ing new powers, resources and a huge increase in staff­ing levels to do this job. To ensure this is jus­ti­fied, they are con­tinu­ally telling us of the huge threat we face from ter­ror­ism and how suc­cess­ful they are in pro­tect­ing us. It is in their interests to talk this up.

Mean­while, over on the south bank of the river, MI6 con­tin­ues to suf­fer from the loss of prestige brought about by its mis­takes and lack of good intel­li­gence in the run-up to the Iraq inva­sion. There is no love lost between these three agen­cies, as they com­pete for power and resources. So, to use a good civil ser­vice phrase, I can­not rule out the pos­sib­il­ity that someone in MI6 leaked this inform­a­tion to have a pop at the Met and MI5.

How­ever, there is a more ser­i­ous aspect to this incid­ent. But for this inform­a­tion emer­ging, MPs and pub­lic alike would have had no way of know­ing that the per­ceived threat from ter­ror­ism had been grossly inflated in order for the police to gain yet more powers. We would have had to take Sir Ian’s word.

Well, we’ve been here before many, many times, most notori­ously when the intel­li­gence agen­cies would have us believe that Sad­dam had WMD that could attack Brit­ish interests with 45 minutes. This, of course, led to the Iraq war and the deaths of hun­dreds of thou­sands of inno­cent men, women and children.

So how can we ensure we are told the truth by the spies? Well, great­er account­ab­il­ity and effect­ive par­lia­ment­ary over­sight would be a step in the right dir­ec­tion. But we don’t just need the cor­rect mech­an­isms in place in par­lia­ment. We also need MPs with the know­ledge, intel­li­gence and integ­rity to ask the dif­fi­cult ques­tions when faced with bogus assertions.

The UK Spies: Ineffective, Unethical and Unaccountable

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The text of my art­icle for e‑International Rela­tions, March 2008:

The UK Intel­li­gence Com­munity: Inef­fect­ive, Uneth­ic­al and Unaccountable

The USA and the UK are enmeshed in an appar­ently unend­ing war of attri­tion – sorry peace­keep­ing — in Iraq.  Why? Well, we may remem­ber that the UK was assured by former Prime Min­is­ter Tony Blair, in sin­cere terms, that Sad­dam Hus­sein pos­sessed weapons of mass destruc­tion which could be deployed again Brit­ish interests with­in 45 minutes.  Indeed the press was awash with “45 minutes from Armaged­don” head­lines on 18th March 2003, the day of the cru­cial war debate in the Brit­ish par­lia­ment. The implic­a­tion was that Bri­tain was dir­ectly at threat from the evil Iraqis.

The US var­ied the diet.  George Bush, in his State of the Uni­on address before the war, assured his nation that Iraq had been attempt­ing to buy mater­i­al to make nuc­le­ar weapons from Niger.  The Amer­ic­an media and pub­lic fell for this claim, hook, line and sinker.

What do these two erro­neous claims have in com­mon?  Well, both were “sexed up” for pub­lic consumption.

We all know now that there nev­er were any WMDs to be found in Iraq.  After 10 years of pun­it­ive sanc­tions, the coun­try simply didn’t have the cap­ab­il­ity, even if it had the will, to devel­op them.  The Niger claim is even more tenu­ous.  This was based on an intel­li­gence report eman­at­ing from the Brit­ish Secret Intel­li­gence Ser­vice (com­monly know as SIS or MI6), which was based on forgeries.

We have had head­line after scream­ing head­line stat­ing that yet anoth­er ter­ror­ist cell has been roun­ded up in Bri­tain. The Ricin plot? The behead­ing of a Brit­ish Muslim ser­vice­man? The liquid bombs on air­planes?  Yet, if one reads the news­pa­pers care­fully, one finds that charges are dropped quietly after a few months.

So, why is this hap­pen­ing?  I can haz­ard a few guesses.  In the 1990s I worked for 6 years as an intel­li­gence officer for MI5, invest­ig­at­ing polit­ic­al “sub­vers­ives”, Irish ter­ror­ists, and Middle East­ern ter­ror­ism.  In late 1996 I, with my then part­ner and col­league Dav­id Shayler, left the ser­vice in dis­gust at the incom­pet­ent and cor­rupt cul­ture to blow the whistle on the UK intel­li­gence estab­lish­ment.  This was not a case of sour grapes – we were both com­pet­ent officers who reg­u­larly received per­form­ance related bonuses.

How­ever, we had grown increas­ingly con­cerned about breaches of the law; ineptitude (which led to bombs going off that could and should have been pre­ven­ted); files on politi­cians; the jail­ing of inno­cent people; illeg­al phone taps; and the illeg­al spon­sor­ing of ter­ror­ism abroad, fun­ded by UK tax-payers.

The key reas­on that we left and went pub­lic is prob­ably one of the most hein­ous crimes – SIS fun­ded an Islam­ic extrem­ist group in Libya to try to assas­sin­ate Col­on­el Gad­dafi in 1996.  The attack failed, but killed inno­cent people.  The attack was also illeg­al under Brit­ish law.  The 1994 intel­li­gence Ser­vices Act, which put SIS on a leg­al foot­ing for the first time in its 80 year his­tory, stated that its officers were immune from pro­sec­u­tion in the UK for illeg­al acts com­mit­ted abroad, if they had the pri­or writ­ten per­mis­sion of its polit­ic­al mas­ter – ie the For­eign Sec­ret­ary.  In this case they did not.

So, the assas­sin­a­tion attempt was not only immor­al, uneth­ic­al and highly reck­less in a volat­ile area of the world, but also illeg­al under Brit­ish law.

In August 1997 we went pub­lic in a nation­al Brit­ish news­pa­per about our con­cerns.  We hoped that the newly-elec­ted Labour gov­ern­ment would take our evid­ence and begin an invest­ig­a­tion of the intel­li­gence agen­cies.  After all, many Labour MPs had been on the receiv­ing end of spook invest­ig­a­tions in their rad­ic­al youth.  Many had also opposed the dra­coni­an UK law, the Offi­cial Secrets Act (OSA 1989), which deprived an intel­li­gence whis­tleblower of a pub­lic interest defence.

How­ever, it was not to be.  I have no proof, but I can spec­u­late that the Labour gov­ern­ment did the spies’ bid­ding for fear of what might be on their MI5 files. They issued an injunc­tion against Dav­id and the nation­al press.  They failed to extra­dite him from France in 1998 but, when he returned vol­un­tar­ily to face trail in the UK in 2000, they lynched him in the media.  They also ensured that, through a series of pre-tri­al leg­al hear­ings, he was not allowed to say any­thing in his own defence and was not able to freely ques­tion his accusers.  Indeed the judge ordered the jury to convict.

The whole sorry saga of the Shayler affair shows in detail how the Brit­ish estab­lish­ment will always shoot the mes­sen­ger to pro­tect its own interests.  If the Brit­ish gov­ern­ment had taken Shayler’s evid­ence, invest­ig­ated his dis­clos­ures, and reformed the ser­vices so that they were sub­ject to effect­ive over­sight and had to obey the law, they may well be work­ing more effi­ciently to pro­tect us from threats to our national’s secur­ity.  After all, the focus of their work is now counter-ter­ror­ism, and they use the same resources and tech­niques as the police.  Why should they not be sub­ject to the same checks and balances?

Instead, MI5 and SIS con­tin­ue to oper­ate out­side mean­ing­ful demo­crat­ic con­trol.  Their cul­tures are self-per­petu­at­ing olig­arch­ies, where mis­takes are glossed over and repeated, and where ques­tions and inde­pend­ent thought are dis­cour­aged.  We deserve better.

 

Lecture: What can we do to counter the Spies?

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My CCC talk in Ber­lin in Decem­ber 2007 about the role of Intel­li­gence agen­cies in society.

In the name of pro­tect­ing nation­al secur­ity, spy agen­cies are being giv­en sweep­ing new powers and resources. Their intel­li­gence has been politi­cised to build a case for the dis­astrous war in Iraq, they are fail­ing to stop ter­ror­ist attacks, and they con­tin­ue to col­lude in illeg­al acts of intern­ment and tor­ture, euphemist­ic­ally called “extraordin­ary rendi­tion”. Most west­ern demo­cra­cies have already giv­en so many new powers to the spies that we are effect­ively liv­ing in police states. As an informed com­munity, what can we do about this?

Here is the present­a­tion page on the CCC-2007-web­site. A video of the talk can be down­loaded from the talk-page or watched dir­ectly through Google-video. I was hon­oured to receive a stand­ing ova­tion at the end of my talk.  A write-up of the talk can be found here.  Enjoy!

AltVoices Article, June 2007

Posted on by Annie Machon
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My art­icle in Alt​Voices​.org, June 2007:

THE OFFICIAL SILENCING ACT

Last month the UK’s dra­coni­an secrecy laws were again used to crim­in­al­ise two hon­our­able whis­tleblowers. The UK’s supine main­stream media failed both to ques­tion the valid­ity of these con­vic­tions and to hold the gov­ern­ment to account.

by Annie Machon

On May 9 Dav­id Keogh, a 50-year-old com­mu­nic­a­tions officer in the Cab­in­et Office, and Leo O’Con­nor, 44, a research­er for an anti-war Labour MP, were con­victed of breach­ing the Offi­cial Secrets Act (1989).

Keogh’s crime was to have leaked an “extremely sens­it­ive” memo to O’Connor, detail­ing a con­ver­sa­tion about Iraq between Tony Blair and George W. Bush in April 2004.

Keogh passed the doc­u­ment to O’Connor to give to his MP in the hope it would reach the pub­lic domain, expose Bush as a “mad­man”, and lead to ques­tions in Par­lia­ment. The memo was deemed to be so secret that much of the tri­al was held in camera.

Keogh was found guilty of two breaches of the OSA, O’Connor of one, and they received sen­tences of six months and three months respectively.

This bald sum­mary of the case was all that appeared in the main­stream UK media. No doubt many people will have taken this case at face value. After all, the UK should be able to pro­tect its nation­al secur­ity and impose tough leg­al sanc­tions for treach­ery, shouldn’t it?

Except that this was not treach­ery. Keogh and O’Connor were not passing the UK’s secrets to an enemy power. They acted from con­science to expose pos­sible wrong­do­ing at the highest level.

The media should have use this tri­al to address the ongo­ing debate in the UK about the con­tinu­al use and abuse of the OSA. Unfor­tu­nately for the Brit­ish people, the media toed the offi­cial line and kept quiet.

The UK’s secrecy laws are a very Brit­ish muddle. The first OSA was enacted in 1911 to pro­sec­ute trait­ors. This law remained in place until the 1980s, when the Thatch­er gov­ern­ment was rocked by the alleg­a­tions of civil ser­vant Clive Pont­ing about a cov­er-up over the attack on the Argen­tine ship the Gen­er­al Bel­grano dur­ing the Falk­lands War.

Dur­ing his tri­al, Pont­ing relied on the pub­lic interest defence avail­able under the 1911 Act. He was acquit­ted, and the Con­ser­vat­ive gov­ern­ment imme­di­ately drew up a new law, the 1989 OSA. This new law was designed primar­ily to intim­id­ate and silence whis­tleblowers. Treach­ery is still pro­sec­uted under the 1911 Act.

The 1989 Act, opposed at the time by Tony Blair and most of the cur­rent Labour gov­ern­ment, ensures that any­one who is or has been a mem­ber of the intel­li­gence com­munity faces two years in pris­on if they dis­close inform­a­tion relat­ing to their work without per­mis­sion, regard­less of wheth­er they are blow­ing the whistle on crim­in­al activity.

Since com­ing to power in 1997, Blair’s gov­ern­ment has repeatedly used this Act to sup­press legit­im­ate dis­sent, silence polit­ic­al oppos­i­tion and pro­tect crim­in­als with­in the intel­li­gence establishment.

In 1997, MI6 whis­tleblower Richard Tom­lin­son had no option but to plead guilty dur­ing his tri­al, and was sen­tenced to six months in prison.

Around the same time MI5 whis­tleblower Dav­id Shayler dis­closed the illeg­al 1995 MI6 plot to assas­sin­ate Col­on­el Gad­dafi of Libya, as well as a string of oth­er crimes com­mit­ted by MI5.

Dur­ing his tri­al Shayler argued that, under Art­icle 10 of the European Con­ven­tion of Human Rights, legis­la­tion such as the OSA is only pro­por­tion­ate in sup­press­ing a whistleblower’s right to speak out in order to pro­tect “nation­al security”.

How­ever, his judges effect­ively ruled that this right should also be cur­tailed for “nation­al interest” con­sid­er­a­tions. This neb­u­lous concept, undefined for the pur­poses of the OSA, is routinely wheeled out to spare the blushes of politi­cians and incom­pet­ent spy agencies.

In 2002 Shayler did win from the courts the defence of “neces­sity”. How­ever, the Law Lords spe­cific­ally denied him this defence without hear­ing his evid­ence. Shayler was con­victed in Novem­ber 2002 of three breaches of the OSA and sen­tenced to six months in prison.

In 2003 the late Dr Dav­id Kelly would also have faced an OSA tri­al for his alleged com­ments about the gov­ern­ment “sex­ing up” the notori­ous dodgy dossier before the war in Iraq.

The 1989 OSA does not just apply to those in and around the intel­li­gence com­munity. Oth­er civil ser­vants, as well as journ­al­ists who pub­lish their dis­clos­ures, face the same pris­on sen­tence if the pro­sec­u­tion can prove “dam­age to nation­al secur­ity”. Keogh and O’Connor were con­victed under these pro­vi­sions, although the pro­sec­u­tion reportedly relied only on the “nation­al interest” argument.

The UK gov­ern­ment is increas­ingly con­cerned about secur­ity leaks dur­ing the unend­ing “war on ter­ror”, and is now talk­ing about doub­ling to four years the sen­tence for whistleblowing.

By fail­ing to chal­lenge this or to cam­paign for the res­tor­a­tion of the pub­lic interest defence, journ­al­ists are com­pli­cit in crim­in­al­ising hon­our­able people. The media’s craven atti­tude allows the gov­ern­ment and intel­li­gence agen­cies to con­tin­ue lit­er­ally to get away with murder.

Legal doublethink re whistleblowers — my CPBF article, July 2006

Posted on by Annie Machon
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Thanks to Wikileaks the concept of whis­tleblow­ing is once again, rightly, back in the prime-time news slots.

To high­light the Brit­ish leg­al double­think when it comes to whis­tleblow­ing cases, I repro­duce below an art­icle I wrote in 2006 for the excel­lent UK Cam­paign for Press and Broad­cast­ing Free­dom organ­isa­tion (CPBF).

Basic­ally, the rul­ing stated that a whis­tleblower can­not repeat their own dis­clos­ures in pub­lic, even though any­one else in the world can:

Hogarth_judge In 2006 I had­n’t heard of Mr “Justice” Eady (he had yet to reach his max­im­um velo­city), but he seems to have built up of bit of form since then.  He is now most notori­ous for his pun­it­ive rul­ings in many “libel tour­ism” cases and celeb sex scan­dals, not to men­tion the odi­ous concept of the super-injunc­tion, start­lingly exem­pli­fied in the Trafigura case about alleg­a­tions of dump­ing tox­ic waste off the Ivory Coast — one of Wikileak­s’s earli­er media suc­cesses.

Obvi­ously Eady, the man in charge of rul­ing on UK free­dom of expres­sion cases, was the per­son to go to if you had some­thing to hide.

Thank­fully he was replaced earli­er this year by Michael Tugend­hat QC, who flu­ently rep­res­en­ted the medi­a’s corner dur­ing the Shayler whis­tleblow­ing years, and some of Eady’s most egre­gious decisions have already been over­turned by his successor.

 

CPBF_Logo  Anoth­er suc­cess for Brit­ish justice — Annie Machon (31÷7÷06)

It was anoth­er resound­ing suc­cess for Brit­ish justice, accord­ing to Annie Machon. Mr Justice Eady gran­ted a per­man­ent injunc­tion against Dav­id Shayler in the High Court today (Fri­day 28 July). In a breath­tak­ing rul­ing, Eady stated that Dav­id was not entitled to present evid­ence or cross-exam­ine his accusers (again), but instead issued a sum­mary judge­ment based on asser­tions made by MI5.

This means that Dav­id can now only talk about a restric­ted range of dis­clos­ures — spe­cific­ally what appeared in the Mail on Sunday on 24 August 1997. This means that he can­not talk about a whole range of top­ics which are in the pub­lic domain and have already been cleared via the injunc­tion and for the pub­lic­a­tion of my book, Spies, Lies and Whis­tleblowers.

Spe­cific­ally, this means that, while I and the rest of the world can talk about state-sponsored false-flag ter­ror­ism, includ­ing the Gad­dafi plot, Dav­id is banned. Very con­veni­ent when the 911 cam­paign is tak­ing off.

The tem­por­ary injunc­tion was issued in Septem­ber 1997 on the expli­cit under­stand­ing that a full leg­al hear­ing would be needed before it could be made per­man­ent. Dav­id has now been denied this.

Also, the injunc­tion has been abused repeatedly, for example allow­ing the gov­ern­ment to spin lies against him when he wished to reveal the wrong­ful con­vic­tion of two inno­cent Palestini­ans, Samar Alami and Jawad Bot­meh, for the bomb­ing of the Israeli embassy in Lon­don in 1994. Also, when he tried to alert the gov­ern­ment to murder and a major ter­ror­ist attack organ­ised by MI6 officers in the Gad­dafi plot, he did so leg­ally via the injunction.

For his pains, he was the one thrown in pris­on in Par­is in 1998.

The injunc­tion has also repeatedly been used to intim­id­ate journ­al­ists (one of whom was tried and con­victed) and to stop the media invest­ig­at­ing the crimin­al­ity of MI5 and MI6. With this rul­ing, the judge has also abol­ished at one stroke the medi­a’s right to pub­lish whis­tleblowers’ testi­mony if they can argue it caused no dam­age to nation­al security.

If any future whis­tleblower emerges from the intel­li­gence ser­vices, and is injunc­ted, the media has lost this defence, enshrined by par­lia­ment in crim­in­al law (Sec­tion 1.5 of the OSA). And why is an injunc­tion neces­sary any­way? There already exists a crim­in­al sanc­tion under the Offi­cial Secret Act. The judge was kind enough to say that the injunc­tion was for David’s own good and would stop him hav­ing to break the OSA again! We are through the look­ing glass.

Yours in won­der­land, Annie