Friday, February 22, 2008 

A pointless exercise in clearing everyone and questioning no one.

Reading Sir Christopher Rose's report (PDF) into the bugging of Sadiq Khan MP while he visited Babar Ahmed at Woodhill prison, you have to wonder what exactly the point of the whole exercise was. The findings may as well have been written by the police themselves; so unquestioning is Rose of the officers he interviewed who authorised the bugging, that he writes this in the 9th paragraph of the 18-page report:

I have borne in mind, in relation to all of those from whom I have obtained information, the possibility that serving some interest of their own might inspire a departure from candour and that none of them has been subject to the rigour of cross-examination such as a trial process would provide.

In other words they might have told me a complete cock and bull story, but nonetheless I've taken their comments in the spirit in which they were given. This is hardly the way to run any sort of investigation, let alone one into the bugging of an MP.

A good place for Rose to have started his inquiry might have been to talk to the
former detective sergeant Mark Kearney, now facing what appear to be highly trumped up charges for "aiding and abetting gross misconduct in a public office". This is related to how Kearney was a source for local Milton Keynes Citizen journalist Sally Murrer, but the police themselves admit that no money passed between their hands. The Citizen is so dirt poor that its journalists are currently out on strike over pay and conditions; it simply couldn't afford the cheque-book journalism of the nationals. Kearney was just the sort of source those local journalists who get out of their offices on occasion have always had. The charges are supposedly based on stories Kearney told Murrer about a drug dealer and a footballer, but that now seems like the excuse for getting rid of him after he objected to bugging an MP. Kearney has since suffered a nervous breakdown because of the charges, while Murrer, a respected journalist, had her phone bugged, her home raided and was strip-searched after being arrested.

It's therefore rather surprising to read that Rose, who refers to Kearney as "X" in the report, hasn't talked to him. His reasons are as follows:

With regard to the former police officer, identified in the media, awaiting Crown Court trial on serious charges, to whom I shall refer as X, I have taken into account a further factor in addition to those referred to in the last paragraph. He is entitled to a fair trial. It would be highly unfortunate if the conduct of my inquiry were to have, or could be claimed to have, an adverse impact on that right.

Seeing as he's not been charged in relation with the bugging of Khan, how could talking to him possibly have an adverse impact on his right to a fair trial?

I have a statement from the then Deputy Governor of Woodhill (Mr Robert Davis) to whose office X had regular access and with whom Prison Intelligence Officers from Thames Valley Police (TVP) including X, had daily contact. I am also aware that, representing TVP, between mid-2004 and January 2007, X attended a total of about 17 regular meetings, every two or three months, of the ACPO Prison Intelligence Working Group chaired by Commander Sawyer of the Metropolitan Police Service (MPS). Those meetings were attended by, among others of varying ranks from Detective Constable upwards, Detective Superintendent McKinney, Head of the Counter-Terrorism Prisons Intelligence Unit and Detective Superintendent Report of Investigation Deal, Head of the Prison Advisers Section. Furthermore, Detective Superintendent McKinney, in the course of reviewing technical capability at Woodhill Prison, met X and other officers from TVP Prison Intelligence Unit on 3 September 2006, which was only a few weeks after Mr Khan’s last visit to Babar Ahmad in late June. At none of the many meetings which I have identified did X express to anyone concerns of any kind as to how counter-terrorism surveillance in prison was being carried out by him or anyone else. Nor did X take the less formal opportunities of access to Mr Davis to express any such concerns. Nor did he express such concerns to either of his two colleagues in TVP Prison Intelligence Unit based at Woodhill. In the light of these matters, I concluded that it was neither necessary nor appropriate for me either to seek information from X at this time or to delay this report until the criminal proceedings against him have been completed.

Rose doesn't mention if there were minutes taken of any of these meetings, which would show whether Kearney actually had raised his concerns. Instead it seems that he's simply taken the words of the officers at face value that he didn't ask questions about the righteousness of bugging an MP. The latest Private Eye (No. 1204) suggests that a Special Branch detective superintendent specifically thanked Kearney at one of these meetings for bugging Khan. This would presumably be McKinney. Rose has therefore dismissed any need to talk to Kearney, either because it might prejudice his trial but also because his superiors would be in trouble if they admitted that they had knowingly bugged an MP, and they told him that Kearney hadn't said anything to them about it. Brilliant!

Khan, in his statement to the inquiry, has quite reasonably expressed his exasperation and anger that the those authorising the bugging of Ahmed didn't know who he was, stating "[I]t beggars belief that [the police and prison authorities] did not know who I was". This isn't just someone with an ego throwing their weight around when they're not recognised; as Khan states, he visited Ahmed in 2004 on a legal visit before he dropped his work as a solicitor and became the Labour parliamentary candidate for Tooting. Khan was well known to the Met especially: for one, he was the National Black Police Association's solicitor, while he performed the same role for detective superintendent Ali Dizaei, who "Sir" Ian Blair was found guilty of overseeing the bugging of. Since the bugging, the police have quite openly said they knew of Khan, even allegedly describing him as a "subversive", presumably because he worked for Liberty. That they hadn't followed his move from lawyer to member of parliament is hardly likely.

The man who ultimately authorised the bugging of Khan was none other than our old friend the head of the Metropolitan police's counter-terrorism unit, Andy Hayman. He presided over the Forest Gate debacle, while he was also the officer severely reprimanded by the second IPCC report into the death of Jean Charles de Menezes. He resigned last December after other allegations were made that he had ran up expenses of £15,000 on police credit cards, and taken a female officer on foreign trips with him. He denies both. Rose writes this of what the bugging of Khan actually contained:

I called for the product of the monitoring on 21 May 2005 and 24 June 2006. It is obvious from the product that the conversation monitored on 21 May contained material plainly showing that Mr Khan was an MP. The record of monitoring on 24 June contains an express reference to him being an MP. It follows that those officers who monitored the visits and reviewed the detail of the product later had knowledge of that fact. There is nothing to suggest that any of these officers believed at the time that this fact was of any significance in relation to the surveillance.

This is important, as Rose goes on to record

That authorisation, subject to monthly review and three monthly renewal, effectively remained in force until December 2006. It was reviewed on 7 June by Mr Fuller and on 14 June 2005 by Mr Hayman. The record of that review indicates that information had been gained that a recently elected Member of Parliament had offered Babar Ahmad help to fight extradition but there is no indication that the Member of Parliament in question was Mr Khan. In relation to 24 June 2006, the authorisation was reviewed on 7 June 2006 by another Detective Constable, recommended to ACPO rank by Detective Superintendent McKinney, agreed to by Deputy Governor Davis and continued by Mr Hayman on 9 June 2006.

Hayman and all the other officers involved in authorising the surveillance would have presumably had the transcript of the first visit from the year previous where it was made obvious that Khan was an MP. Did they actually read it? If they had, they would surely have realised that Khan was the recently elected MP who had offered help to Ahmed to fight his extradition. There are a couple of other possibilities: that they were dealing with so many of these requests to bug terrorist suspects and those convicted alike that they were effectively just rubber-stamping them; or that they knew full well that Khan was an MP, were complicit in the bugging, and lied to Rose that they didn't know who he was.

Khan had submitted his request to visit Ahmed under the Approved Visitors Scheme for Category A prisoners prior to becoming an MP. This entailed him being visited by a detective constable from Special Branch, where he made clear that he had given up being a solicitor and was the Labour parliamentary candidate for Tooting. The DC recorded that Khan was "very affable and forthcoming". The report seems to consider that he was at fault for not thereafter informing the prison service that he was now an MP, where he didn't need to use the scheme at all. It seems if anything that the police and prison service took advantage of Khan's mistake, rather than it being his fault for not announcing himself properly.

Rose is quite right in concluding that the officers actually doing the bugging shouldn't have been expected to either know that Khan was an MP or of the Wilson doctrine, but those who authorised it certainly should have done. What they're relying on, apart from their denials that they knew that Khan was an MP, is that bugging as such isn't covered by the Wilson doctrine, which only deals with intercepts. Therefore, seeing as it was all done legitimately, this has been blown out of all proportion and MPs have been getting out of their prams for no good reason. At least, that seems to be the impression that the government wants to convey and that also the police want to remain. Rose also, despite the notable report in the Telegraph just over a week ago, says that there have been no requests to monitor legal visits to prisoners since 2005. As Spy Blog asks, what about prior to 2005?

Seeing as Jacqui Smith has since said that the law and guidelines covering bugging will be reviewed and that all visits by MPs to constituents must be confidential, is that the end of the matter? Well, no. The report is simply inadequate. As David Davis said, Rose concluded that there was "no useful purpose" in explaining the series of police authorisations, which on the contrary would have opened up why junior officials knew that Khan was an MP yet those authorising it claimed not to. Not to interview Kearney is frankly astonishing. It was also completely beyond the inquiry's remit to ask exactly why it was necessary to bug Ahmed in the first place. He's never faced any charges in this country, but is continuing to bring a civil case against the Met, alleging he was assaulted during his original arrest; something attested to by photos showing his injuries, but the officers were cleared by the Independent Police Complaints Commission. Was that the real reason why he was bugged, or was it at the request of the US? The report shows that almost 20 people, mostly with names of Middle Eastern origin were on his visitor list, but that hardly on its own justifies the continuing bugging of everyone who visits him on the grounds of "ascertaining the extent of Babar Ahmad’s terrorist activities and contacts within the United Kingdom." It also does nothing about the situation that Kearney himself and Murrer are still in; if every police officer were being charged purely for being a local newspaper journalist's source, there'd be even less on the streets than there currently are. If this isn't a whitewash, it's hardly got anywhere near to the bottom of just a small section of our fast expanding surveillance society.

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Monday, February 04, 2008 

We still need the Wilson doctrine.

In light of the revelations that the Labour MP Sadiq Khan was bugged (claims in the Daily Mail tomorrow and on Newsnight right now that he's been bugged for years and while he was working for Liberty, supposedly considered a "subversive" by some within Scotland Yard) while visiting his constituent and friend Babar Ahmed at Woodhill prison, some are asking why the Wilson doctrine is still in place, with MPs considered above us mere mortals, especially with the report released last week that showed 250,000 requests for various intercepts within a 9-month period.

While some have pointed out that there's a reason why it's known as the Wilson doctrine
, due to his own paranoia (somewhat justified) that the security services were out to get him, the number one reason why it should stay in place is that it protects both radical and maverick MPs from the attention of those so often and historically opposed to them. Of course, in this day and age radical and MP when put together seem to be an oxymoron, but we also ought to be aware that under an even less scrupulous government than this one, collaboration between politicians and security services would certainly not rule out spying on the opposition.

If the Wilson doctrine were to be even slightly modified or abandoned, there needs to judicial oversight, as Unity eloquently outlines. That this is still left to either politicians or a police officer is archaic and and clearly in need of urgent reform.

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Tuesday, February 20, 2007 

Swinton Thomas offers a mixed bag.

The revelations provided by Sir Swinton Thomas, in the latest report (PDF) from the Interceptions of Communications Commissioner are little short of extraordinary. Last year, various state organisations made a stunning 439,000 requests to monitor in some way the activities of citizens of the realm. It's true that some of these are simple requests for phone numbers or e-mail addresses, but even so, this seems to suggest that there is snooping being carried out on a grand scale. Of these 439,000, at least 4,000 mistakes were made, with 66 involving information being wrongly intercepted from those who had nothing to do with whatever investigations were being pursued. Thomas calls these mistakes unacceptable, but due to the level of secrecy involved, those who were wrongly tapped or otherwise are unlikely to find out about the breach of their privacy.

The next target for the Communications Commissioner is the ban on the wire-tapping or spying on members of parliament and the lords. While Thomas has a reasonable case in suggesting that no one should be above the law in this regard, the introduction of the "Wilson doctrine" was because of the unaccountability of the security services, not to mention the motives of those behind the decision to spy on MPs. We're still unclear on just how far, if at all, an MI5 plot went to undermine Harold Wilson. It's quite true that we've moved on from the 70s, MI5 has to an extent been reformed, but as the rendition scandal has made clear, we're still in the dark over how far the security services go, and they're still completely opposed to having any formal watchdog imposed upon them.

This is what has to be kept in mind when considering whether MPs should be "above the law". While Thomas makes clear that he doesn't believe that any MPs are involved in terrorism or serious crime, we also don't know how far in cahoots the government itself is with the security services. Those with the most to fear are those of the more radical bent who manage to make it to parliament: it doesn't take much imagination to know that Sinn Fein MPs, if they took their seats, would probably be the most likely to be under suspicion, even now. If any BNP members were, god forbid, elected, they would also be likely targets. George Galloway could be another possible MP to be bugged, although seeing as he spends little time actually in the house, it might not provide much decent information on what he/Respect are up to. This is without considering whether the government itself could use such taps to spy on the opposition's plans. This might seem laughable now, even under a New Labour government that thinks nothing of stripping civil liberties to the bone, but it's still not conspiratorial to worry than an even worse government may one day be elected.

We therefore have to take a lot on trust if we're going to accept that our representatives should be allowed to be bugged. The Sun, being the Sun, has paedos on the brain and seems to think that the whole matter is about MPs not wanting their computers to be scanned for illegal material:

MPs love laying down the law — as long as they are not on the receiving end.

They fix their own pensions, perks and salaries. They set rules on freedom of information but insist on being exempt.

Now they want immunity from computer checks against paedophiles.

Have they got something to hide?

I don't know Rebekah, but I do know that you're far more obsessed with paedophiles than with anything else. Have you got something to hide?

It's quite true that MPs are just as human as the rest of us, probably even less so, but if this is to be implemented then at the very least the evidence that makes the case for a MP to be tapped should have to be presented to a judge, who could then authorise the operation. The current authorisation has to be given only by a secretary of state. There are so many potential ways that such tapping could be abused, that without a similar process being put in place Thomas's recommendation should be rejected.

Finally, Thomas takes aim at those who have been arguing for years now that intercept evidence should be made admissible in UK courts. His arguments are far from convincing:

If terrorists and criminals, most particularly those high up in the chain of command, know that interception would be used in evidence against them, they will do everything possible to stop providing the material which is so very valuable as intelligence. It is sometimes said: “but surely they know now that their communications will be intercepted?” They may suspect that their communications may be intercepted, but they do not know that they will be. This uncertainty is invaluable and they continue to provide immensely valuable intelligence material which would be lost if they ceased to communicate as they do now. Like everybody else they have to communicate to forward their enterprises, and there is a real danger that they will find means of doing so which are much more difficult or impossible to decipher if they know that the material would be used in evidence, so that valuable intelligence material leading to successful investigation and eventual prosecution will be lost.

This is pitiful on a number of levels. Firstly, it assumes that terrorists don't know that their messages are being intercepted, when those who are committed to the cause would know only too well to expect that their communications are. Secondly, the whole point of having the security services is so they monitor "subversives" and partly keep up with the methods they are using to communicate. This is no more than an handy excuse, which relies on the suspects themselves not changing their methods of communication in the first place.

Successive reviews on this subject over the last decade have been unable to show that the claimed benefits of using intercept product in evidence to secure more prosecutions (or to shorten trials) would be worth the risks that this entails for the operational effectiveness and capabilities of the agencies involved in fighting terrorism and serious crime. The last and most comprehensive review, the conclusions of which were reported in the then Home Secretary’s written Ministerial Statement of 26th January 2005 found that a modest increase in convictions of some serious criminals, but not terrorists, would come with serious risks to the continued effectiveness of the agencies.

The matter here though is that we simply don't know how effective it would be because we haven't tried. It's also worth remembering the judgment last week by Mr Justice Beaton, who made clear that he thought E, a Tunisian wanted in connection with an alleged conspiracy in Belgium, should have been prosecuted on the basis of the evidence in the intercept evidence obtained abroad, rather than put under a control order.

The workload for the intelligence and law enforcement agencies in preserving and presenting intercept product as evidence would be very severe indeed, and very expensive, and would distract them from the work which they should be doing, and also from the work they are actually doing, so greatly reducing as opposed to increasing the value of the intercept. This would be counter-productive. I give one example. In a recent case a Court felt it had to order that 16,000 hours of eavesdropping (not intercept) material must be transcribed at the request of the Defence. I believe that the cost was of the order of £1.9 million. The work and cost in intercept cases would be very great indeed, and quite disproportionate to any perceived advantage. This may explain why some who tend to act on behalf of defendants in terrorist and serious criminal cases appear to be supporting the concept of a change in the law.

This sounds suspiciously like the justification made by the government for not having an independent inquiry into the 7/7 bombings, the specious reasoning being that it would distract or hinder the work being done now. If the problem is a lack of resources, then the resources should be made available. The situation at the moment is that we have men held under control orders which are both illiberal and ineffective, when it's quite possible that they could be prosecuted. The amount of money being spent on keeping them monitored should be compared to the amount spent trying them. Besides, money should not be an issue when we are considering such important rights as both justice and liberty. Additionally, Thomas's remark that this might be the reason why defense lawyers are supporting the introduction of intercept evidence is offensive. Why should they not have the full information available on which to defend their clients? In the cases of those on control orders, the very evidence against their clients is not being presented either to them or those they are representing. They're at a disadvantage when what they are simply trying to do is defend their clients to the best of their ability.

Criminals and terrorists do not speak in a language which is readily comprehensible to juries, even if their native language is English. Many conversations are in foreign languages or slang. In those that are not, they use their own particular language. In every case interpreters and translators would be required. In many languages and dialects there are very few capable of translating and interpreting. I give one example. In an intercept case which I saw recently, the participants were speaking in a tongue which is spoken by significantly less than 1000 people in the world.

In other words, juries are thick. Take that, members of the public performing your duty!

Some of those who favour a change in the law take the view that if the terrorist or criminal makes a clear confession in a telephone conversation, then why should it not be admissible as evidence. That is an understandable point of view and the converse may at first sight seem to be counter-intuitive. However real life is not so simple as that and criminals and terrorists do not behave like that. Apart from the matters that I have already referred to, I know from years of experience, particularly when dealing with foreign languages that interpreters and translators very rarely agree upon the meaning of anything, and there is never any difficulty in finding one interpreter who will disagree with another.

And? Juries should be given the chance to decide for themselves what they believe.

The Communications Service Providers (CSPs) are very important in this process and their staff do essential work. They are very co-operative and dedicated. I talk to them regularly and they are totally opposed to the concept of intercept being admissible in Court. The present regime provides a high degree of protection to the CSPs and particularly to those members of their staff who work in this sensitive field, and their strong co-operation referred to could easily be undermined.

They're very co-operative, except when it comes to their work being made admissible. No one is suggesting making their identities public, or questioning their work. It should be more than possible to make the evidence admissible while keeping both the methods used and those involved in its preparation secret.

The problems with the criminal process. I have made some reference to these, with examples, above. Having looked at this problem with great care, it is abundantly clear to me that it would be exceedingly difficult to prove that a conversation is taking place between A and B. The warrants would have to be proved. How is the material received at source? How is it transferred to the Agencies? How is it transcribed? What does it mean? Lawyers will inevitably challenge every connection and every issue, because that is their job. Admitting intercept evidence would take a very long time, and would greatly increase the length of already over-long trials and the expense involved. These problems are going to increase in the future because of the huge changes taking place in telecommunications technology as CSPs change to internet protocol networks. There is a real danger of criminal trials being aborted. I know that work has been done in an attempt to surmount these problems and the problems relating to European Community and Human Rights law, but I have not seen any system proposed which would successfully overcome these problems.
The problems are very great and should not be understated.

We're going to have to mostly take Thomas at his word here, as I make no claim to know properly how making intercept evidence admissible would affect the length of trials. One thing that is worth mentioning is the evidence presented in the trial of those accused of potentially targeting the Ministry of Sound nightclub, where those involved had their houses bugged. The evidence was reasonably damning, and as far as I'm aware, the defense has made no attempt to question it.

I'm not pretending to know for certain that introducing intercept evidence would do more good than harm, yet the reasons presented so far for not doing so are certainly not a "slam-dunk", to quote George Tenet. Especially considering that foreign agencies have no problems with making intercept evidence admissible, it's worth turning the Sun's question about MPs full-circle and ask what it is that MI5/6 have to hide.

Related post:
Spy Blog - Sir Swinton Thomas on the "Wilson Doctrine"

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