Annie Machon

Guardian article: the role of the spies in the UK

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

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

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

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

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

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

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

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

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

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

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

The Age of Transparency?

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

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

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

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

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

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

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

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

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

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

An interesting story on Channel 4 TV news today: four London police officers are being prosecuted for beating up Babar Ahmad in 2003 while arresting him on suspicion of terrorism charges.  And it turns out that the key evidence for the prosecution comes not from Ahmad's complaint, nor from photographs of his injuries, but from the product of an eavesdropping device, more commonly known as a bug, planted in his home by the UK Security Service, MI5.

It's interesting in itself that MI5 has released this information for court proceedings against Met counter-terrorism officers.  I shall resist speculating now, but shall be watching developments with interest.

But the point I want to make quickly today is about the use of intercept material as legal evidence in UK courts.  This can potentially be crucial for lawyers when speaking to their clients, journalists who wish to protect their sources, polticial activists, and those who simply wish to protect their inherent right to privacy as the encroaching electronic surveillance state continues to swell.

It can also be potentially useful information for MPs talking to their constituents.  Indeed, returning to the years-long case of Babar Ahmad, there was a media furore in 2008 when it was revealed that the Met had authorised the bugging of his conversations with his MP Sadiq Khan during prison visits.  

And who was the commanding officer who authorised this?  Step forward former Met Counter Terrorism supremo, Andy Hayman, that much esteemed defender of British civil liberties who recently suggested "dawn raids" and "snatch squads " be used against political activists.

Unlike most other western countries, the UK does not allow the use of telephone intercept as evidence in a court of law.  As I've written before, it's a hangover from the cold war spying game.  MI5 has traditionally seen phone taps as a source of intelligence, not evidence, despite the fact that much of their work is notionally more evidentially based in the 21st century.  It also still remains a subject of debate and a fiercely fought reargard action by the spies themselves, who claim telecheck is a "sensitive technique". 

As if we don't all know that our phones can be bugged.....

However, eavesdropping devices that are planted in your property - your home, your office, even your car - can indeed produce evidence that can be used against you in a court of law.   All this requires a Home Office Warrant (HOW) to make it legal, but Home Secretaries are traditionally reluctant to refuse a request in the interests of "national security".  Moreover, if the owner of the property agrees to a bug, even without a HOW, they can be legally used.  So if you live in rented accommodation, befriend your landlord!

Not a lot of people know all that - but we should. 

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

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

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

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

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