It was widely reported today that a number of well-respected British lawyers and civil liberties organisations are questioning the integrity of the much-trumpeted inquiry into UK spy complicity in torture.
And about time too. One hopes this is all part of a wider strategy, not merely a defensive reaction to the usual power play on the part of the British establishment. After all, it has been apparent from the start that the whole inquiry would be questionable when it was announced that Sir Peter Gibson would be chairing the inquiry.
Gibson has certain form. He was until recently the Intelligence Services Commissioner - the very person who for the last five years has been invited into MI5, MI6 and GCHQ for cosy annual chats with carefully selected intelligence officers (ie those who won't rock the boat), to report back to the government that democratic oversight was working wonderfully, and it was all A-OK in the spy organisations.
After these years of happy fraternising, when his name was put forward to investigate potential criminal complicity in torture on the part of the spies, he did the publicly decent thing and resigned as Commissioner to take up the post of chair of the Torture Inquiry.
Well, we know the establishment always like a safe pair of hands.... and this safety has also been pretty much guaranteed by law for the last six years.
Ever since the Inquiries Act 2005 was pushed through as law, with relatively little press awareness or parliamentary opposition, government departments and intelligence agencies have pretty much been able to call the shots when it comes to the scope of supposedly independent inquiries.
Interestingly, Tory grandee Sir Malcolm Rifkind, the former Foreign Secretary who now chairs the Intelligence and Security Committee, has also weighed in to the debate. On BBC Radio 4's Today programme he stated:
"I cannot recollect an inquiry that's been proposed to be so open as we're having in this particular case. When was the last time the head of MI5 and the head of MI6 – the prime minister has made quite clear – can be summoned to this inquiry and be required to give evidence?"
This from the senior politician who has always denied that he was officially briefed about the illegal assassination plot against Colonel Gaddafi of Libya in 1996; this from the man who is now calling for the arming of the very same extremists to topple Gaddafi in the ongoing shambles that is the Libyan War; and this from the man who is also loudly calling for an extension of the ISC's legal powers so that it can demand access to witnesses and documents from the spy organisations.
No doubt my head will stop spinning in a day or two....
The quangocrats charged with overseeing the legality of the work of the UK spies have each produced their undoubtably authoritative reports for 2010.
Sir Paul Kennedy, the commissioner responsible for overseeing the interception of communications, and Sir Peter Gibson, the intelligence services commissioner, both published their reports last week.
Gibson has, of course, honourably now stood down from his 5-year oversight of MI5, MI6, and GCHQ in order to head up the independent enquiry into spy complicity in torture.
And both the reports say, naturally, that it's all hunky-dorey. Yes, there were a few mistakes (well, admistrative errors - 1061 over the last year), but the commissioners are confident that these were neither malign in intent nor an indication of institutional failings.
So it appears that the UK spies gained a B+ for their surveillance work last year.
Both commissioners pad out their reports with long-winded descriptions of what precisely their role is, what powers they have, and the full, frank and open access they had to the intelligence officers in the key agencies.
They seem sublimely unaware that when they visit the spy agencies, they are only given access to the staff that the agencies are happy for them to meet - intelligence officers pushed into the room, primped out in their party best and scrubbed behind the ears - to tell them what they want to hear.
Any intelligence officers who might have concerns have, in the past, been rigorously banned from meeting those charged with holding the spies to democratic account.....
....which is not much different from the oversight model employed when government ministers, the notional political masters of MI6, MI6 and GCHQ, sign off on bugging warrants that allow the aggressive investigation of targets (ie their phones, their homes or cars, or follow them around). Then the ministers are only given a summary of a summary of a summary, an application that has been titrated through many managerial, legal and civil service filters before landing on their desks.
So, how on earth are these ministers able to make a true evaluation of the worth of such an application to bug someone?
They just have to trust what the spies tell them - as do the commissioners.
Below is an article I wrote, published in The Sunday Telegraph a while ago about what it's actually like to enter the wonderful world of spying:
"My so-called life as a spy"
Spies have always loved living in Pimlico: a civilised area in central London, handy for strolling to the office, and wonderfully convenient for that midnight dash to work if your operation suddenly goes live. Plus, the local pubs are pretty good for the customary after-work moan.
I lived there myself when I worked as an intelligence officer for MI5 in the 1990s, so the murder of Gareth Williams in a nearby street gave me a bit of a jolt. While his death remains shrouded in mystery, what has been reported of his life sounds like classic GCHQ.
There are distinct cultures within each of the three major UK spy agencies: MI5, the UK domestic security service; MI6, the overseas intelligence organisation; and GCHQ, the Government Communications HQ.
MI6 officers, as people who may have to work independently and undercover abroad, tend to be confident, individualistic and “ethically flexible”, while MI5 officers need to co-ordinate a broad range of resources and people to run an operation, which requires greater team-building. Of the three agencies, GCHQ remains the most secretive and inward-looking, and is staffed predominantly with “boffin” types. Williams, with his mathematical skills and loner tendencies, would be a typical employee.
Despite the intelligence community presenting a united front to the outside world, culture clashes between the three agencies are commonplace. Staff on secondment between agencies – as Williams was, from GCHQ to MI6 – can have a rough time fitting into a new environment, working with colleagues who eye them with suspicion, as the divisions jockey for power, prestige and resources within Whitehall.
So what is life like working as a spy? The world of intelligence is not so much isolating as insulating. Even as you proceed through the convoluted recruitment process, you find yourself entering a parallel universe, one that exists alongside your everyday life.
From that first, exploratory meeting with an intelligence officer in an unmarked building in central London, you have to withdraw a little from your old existence. You are asked not to tell your family and friends, and immediately have to sign a notification of the rigorous terms of the Official Secrets Act, whereby if you talk about your work, you risk imprisonment.
The process of induction into this world is intriguing, flattering and seductive. The agencies tend to avoid the James Bond wannabes, and those inspired by the fake glamour of Spooks. The key motivation is generally wanting to do a job that can make a difference, protect the country and potentially save lives. The secret element adds spice and perhaps compensates for the anorexic pay. When I started working for MI5 in 1991, at the fast-track graduate level, the starting salary was £14,500 pa – a good £5,000 less than my peer group from Cambridge earned in their blue-chip jobs. The pay has improved somewhat since then, but you don’t become a spy for the money.
The vetting process is protracted. For MI5, MI6 and GCHQ, officers are required to have the highest clearance – Developed Vetting. This begins with a home visit. Disconcertingly, I soon found myself in the family sitting room being grilled about my sex life by a little, grey-haired lady who looked just like a favourite grandmother, until you looked into her eyes.
Then the process widens. I had to nominate four friends who were willing to be interviewed about me, and they were asked to suggest yet more people… so secrecy becomes impossible. One friend, of a Left-wing hue, disapproved of my recruitment; even those who were supportive were reluctant to ask me too much. As I couldn’t talk to them freely about my life, they felt increasingly shut out, so I lost old friends along the way.
Unsurprisingly, new officers begin to socialise increasingly with their colleagues, and close friendships grow rapidly. Within this clique, we could talk shop at dinner parties, use the same slang and terminology, discuss our work, and whinge about our bosses. With outsiders, we could never be fully ourselves. This, inevitably, often led to more than friendships. What might otherwise be called office romances flourished. I met my former partner, David Shayler, when we were both in our first posting in MI5.
Such relationships were not exactly encouraged, but were generally seen as a good thing by management – unless, of course, it was a clandestine matter that could leave the officer vulnerable to blackmail. Such affairs were seen as vetting offences.
Among spies, an old double standard held firm. There was one couple who were caught in flagrante in the office, not once but twice. The male officer was put on “gardening leave” for six months; the woman was sacked.
For the first few weeks in the job, the feeling of unreality and dislocation is strong. The only solid information you have about your new position, as you walk into the office for the first time, is the grade at which you will be working – nothing else.
My first posting was to the small counter-subversion section, F2. Even though it was a desk job, the information I was dealing with came from sensitive sources: intercepted communications, reports from agents who had penetrated target groups, police reports. And yet, within a few weeks, the handling of such secret and intrusive information became entirely normal.
Investigations can be very fast-paced, particularly in the counter-terrorism sections. Generally, officers work regular hours but occasionally, if an operation goes live, you work around the clock. If it proves a success, there might be a news item on the television about it – but obviously without the full back story. That can be a surreal experience. You feel pride that you’ve achieved what you signed up to do, but you cannot discuss it with anybody outside the office. At such moments, the disconnect from mainstream life is intensely sharp.
However, when something goes wrong – a bomb goes off in which civilians die – the feelings are even more intense. Guilt, anger, frustration, and a scramble to ensure that the blame doesn’t attach to your section. The official motto of MI5 is Regnum Defende – defence of the realm. Staff mordantly used to joke that it should more accurately be Rectum Defende.
Personal security also ensures that there is a constant barrier between you and the normal world. If you meet someone interesting at a party, you cannot say too much about what you do, and such reticence can appear unfriendly. The cover story that MI5 officers use is that they work as civil servants at the Ministry of Defence; for MI6, it is the Foreign Office. This usually stops people from asking too much more, either through discretion or, frankly, boredom. Once or twice, people pushed me for more information, and my paranoia antennae immediately began to twitch: why are they so interested? Are they spies or, God forbid, journalists?
I had the misfortune once of using this cover story at a party, only to find my interlocutor actually worked for the real Ministry of Defence, and wanted to know which section I worked in, who my colleagues were, how long I had been there… Thankfully, the magic word “Box” – slang used to describe MI5 within Whitehall, derived from the organisation’s old PO Box 500 number – brought that line of conversation to an abrupt halt.
As an intelligence officer, you quickly learn to be discreet on the telephone and in emails. Oblique conversations become the norm, and this bleeds into your personal life, too, much to the frustration of friends and family.
The internet is another challenge. As a “spook”, the last thing you want to see is your photograph on a friend’s Facebook page. Or, even worse, holiday snaps showing you in your Speedos, as the current head of MI6, Sir John Sawers, found to his cost last year.
And what about when you come to leave the intelligence service, as I did after five years. Can you ever really have a normal life afterwards, and shake off the mindset?
Many of my former colleagues have left and built careers in a wide variety of areas. But I wonder how many still look automatically over their shoulders as they put their key in the front door; how many tear up paper before throwing it in the bin; and how many are reflexively reticent about their personal life?
Would I want to be a spy these days? No, thank you. I’m happier in the real world.
* Annie Machon is the author of Spies, Lies and Whistleblowers (Book Guild)
Journalist and writer James Bamford, has a new book, "The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America" (Doubleday), which came out this week in the United States.
Bamford is a former producer at ABC News of thirty years' standing, and his book has caused quite a stir. One of his key gripes is the fact that foreign companies try to acquire work in sensitive US departments. He cites in particular the attempt in 2006 of Israeli data security company, Check Point Software Technologies, to buy an American company with existing contracts at the Defence Department and the NSA. This deal was stopped after the FBI objected.
Foreign software and security companies working within intelligence agencies are indeed a problem for any country. It compromises the very notion of national sovereignty. In the UK, MI5 and many other government departments rely on proprietary software from companies like Microsoft, notorious for their vulnerability to hackers, viruses and back door access. Should our nation's secrets really be exposed to such easily avoidable vulnerabilities?
Another section of the book to have hit the headlines is Bamford's claims that bedroom "conversations" of soldiers, journalists and officials in Iraq have been bugged by the National Security Agency (NSA).
Bamford, who is by no means a fan of the NSA in its current rampant form, makes the mistake of thinking that in the innocent days pre-9/11, the agency respected democratic rights enshrined in the US constitution and never snooped on US citizens in their own country.
While technically this might be true, does nobody remember the ECHELON system?
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.
Special relationship, anyone?
The lack of any meaningful oversight of the UK’s intelligence community was highlighted again last week, when The Daily Mail reported that a crucial fax was lost in the run-up to the 7/7 bombings in London in 2005.
There has yet to be an official enquiry into the worst terrorist atrocity on the UK mainland, despite the call for one from traumatised families and survivors and the legitimate concerns of the British public. To date, we have had to make do with an “official narrative” written by a faceless bureaucrat and published in May 2006. As soon as it was published, the then Home Secretary, John Reid, had to correct egregious factual errors when presenting it to Parliament.
The Intelligence and Security Committee (ISC) also did a shoddy first job, when it cleared the security forces of all wrong-doing in its initial report published at the same time. It claimed a lack of resources had hampered MI5's counter-terrorism efforts.
However, following a useful leak, it emerged that MI5 had not only been aware of at least two of the alleged bombers before the attack, it had been concerned enough to send a fax up to West Yorkshire Police Special Branch asking them to investigate Mohammed Sidique Khan and Shehzad Tanweer. This fax was never acted upon.
So the ISC has been forced to produce another report, this time apparently admitting that, yes, there had been intelligence failures, most notably the lost fax. West Yorkshire SB should have acted on it. But the intelligence officer in MI5 responsible for this investigation should have chased it up when no response was forthcoming.
This second ISC report, which has been sitting on the Prime Minister’s desk for weeks already, is said to be “devastating”. However, I’m willing to bet that if/when it sees the light of day, it will be anything but.
The ISC is at best an oversight fig leaf. It was formed in 1994, when MI6 and GCHQ were put on a statutory footing for the first time with the Intelligence Services Act. At the time the press welcomed this as a great step forward towards democratic accountability for the intelligence community. Well, it could not have been worse than the previous set-up, when MI5, MI6 and GCHQ did not officially exist. They were not required to obey the laws of the land, and no MP was allowed to ask a question in Parliament about their activities. As 1980s whistleblower Peter Wright so succinctly put it, the spies could bug and burgle their way around with impunity.
So the establishment of the ISC was a (very) limited step in the right direction. However, it is not a Parliamentary Committee. Its members are selected by the Prime Minister, and it is answerable only to the PM, who can vet its findings. The remit of the ISC only covers matters of spy policy, administration and finance. It is not empowered to investigate allegations of operational incompetence nor crimes committed by the spies. And its annual report has become a joke within the media, as there are usually more redactions than coherent sentences.
The ISC's first big test came in the 1990s following the Shayler and Tomlinson disclosures. These involved detailed allegations of illegal investigations, bungled operations and assassination attempts against foreign heads of state. It is difficult to conceive of more heinous crimes committed by our shadowy spies.
But how did the ISC react? If one reads the reports from the relevant years, the only aspect that exercised the ISC was Shayler’s information that MI5 had on many MPs and government ministers. The ISC was reassured by MI5 that would no longer be able to use these files. That’s it.
Forget about files being illegally held on hundreds of thousands of innocent UK citizens; forget about the illegal phone taps, the preventable deaths on UK streets from IRA bombs, innocent people being thrown in prison, and the assassination attempt against Colonel Gaddafi of Libya. The fearless and eternally vigilant ISC MPs were primarily concerned about receiving reassurance that their files would no longer be vetted by MI5 officers on the basis of membership to "subversive" organisations. What were they afraid of – that shameful evidence of early left-wing activity from their fiery youth might emerge? Heaven forbid under New Labour.
Barely a day goes by when newspaper headlines do not remind us of terrible threats to our national security. Only in the last week, the UK media has reported that the threat of espionage from Russia and China is at its highest since the days of the Cold War; that resurgent Republican terror groups in Northern Ireland pose a graver danger to us even than Al Qaeda; that radicalised British Muslim youth are returning from fighting with the Taliban to wage war on the streets of the UK. We have to take all this on trust, despite the intelligence community's appalling track record of bending the truth to gain more powers and resources. This is why meaningful oversight is so vitally important for the health of our democracy. The ISC is a long way from providing that.
According to the Daily Mail this week, Russian security expert, Andrei Soldatov, reckons the UK is wide open to the threat of the Russian mafia. He primarily blames the froideur that has blighted Anglo-Russian relations since the Litvinenko affair. However, he also states that MI5 no longer has a role to play in investigating organised crime, and that has contributed to our vulnerability.
Naturally resisting the temptation to say that MI5’s involvement would not necessarily have afforded us any meaningful protection, I would say that this is down to a fundamental problem in how we organise our response to threats to the national security of this country.
The security infrastructure in the UK has evolved over the last century into a terribly British muddle. For historic reasons, we have a plethora of intelligence agencies, all competing for funding, power and prestige: MI5, MI6, GCHQ, the Metropolitan Police Special Branch (MPSB), special branches in every other police force, military intelligence, and HM Revenue and Customs et al. Each is supposed to work with the other, but in reality they guard their territory and intelligence jealously. After all, knowledge is power.
MI5 and MPSB have always been the lead intelligence organisations operating within the UK. As such, their covert rivalry has been protracted and bitter, but to the outside world they appeared to rub along while MI5 was primarily focusing on espionage and political subversion and the Met concentrated on the IRA. However, after the end of the Cold War, MI5 had to find new targets or lose staff, status and resources.
In 1992 the then Home Secretary, Ken Clarke, announced that MI5 was taking over the lead responsibility for investigating IRA activity on the UK mainland - work that had been done by MPSB for over 100 years. Victory was largely credited to clever Whitehall manoeuvering on the part of the head of MI5, Stella Rimington. The Met were furious, and the transfer of records was fractious, to say the least.
Also, there was a year’s delay in the handover of responsibility. So MI5 artificially maintained the perceived threat levels posed by political subversion in order to retain its staff until the transition was complete. This meant that there was no real case for the aggressive investigation of subversive groups in the UK – which made all such operations illegal. Staff in this section, including me, vociferously argued against this continued surveillance, rightly stating that such investigations were thereby flagrantly illegal, but the senior management ignored us in the interests of preserving their empires.
However, in the mid-1990s, when peace appeared to be breaking out in Northern Ireland and beyond, MI5 had to scout around for more work to justify its existence. Hence, in 1996, the Home Secretary agreed that they should play a role in tackling organised crime – but only in a supporting role to MPSB. This was never a particularly palatable answer for the spooks, so it is no surprise that they have subsequently dropped this area of work now that the threat from “Al Qaeda” has grown. Terrorism has always been perceived as higher status work. And of course this new threat has led to a slew of increased resources, powers and staff for MI5, not to mention the opening of eight regional headquarters outside London.
But should we really be approaching a subject as serious as the protection of our national security in such a haphazard way, based solely on the fact that we have these agencies in existence, so let’s give them some work?
If we are really faced with such a serious terrorist threat, would it not be smarter for our politicians to ask the basic questions: what is the realistic threat to our national security and the economic wellbeing of the state, and how can we best protect ourselves from these threats? If the most effective answer proves to be a new, dedicated counter-terrorism organisation, so be it. We Brits love a sense of history, but a new broom will often sweep clean.
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….
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.
Thankyou!
