Wednesday, February 06, 2008 

Just fancy that!

Prime Minister Gordon Brown has backed the limited use of intercept evidence in court, after an independent review.

The Chilcot report says phone tap evidence was needed in some cases in England and Wales for security reasons.

But it says material should not be used against the wishes of the agencies collecting it - or if it could have been gained in another way.

Seeing as MI5, MI6 and GCHQ all pathologically oppose any intercept evidence being made admissible, this is the best possible conclusion that both the review and Brown could have reached. Justice will always come second to "national security considerations."

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Wednesday, January 30, 2008 

Not much intelligence from the Intelligence and Security Committee.

Continuing with the security theme, yesterday saw the release of the annual report from the Intelligence and Security Committee. The last report they issued was the gobsmacking whitewash on extraordinary rendition, which decided that MI5's involvement in the CIA kidnapping of Bisher al-Rawi and Jamil el-Banna because they'd changed the definition of what exactly an "extraordinary rendition" is. To quote from the toadying, ridiculously trusting report:

D.Those operations detailed above, involving UK Agencies’ knowledge or involvement, are “Renditions to Justice”, “Military Renditions”and “Renditions to “the Detention”. They are not “Extraordinary Renditions”, which we define as extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system,where there is a real risk of torture or cruel, inhuman or degrading treatment”.

The security services were therefore cleared of any complicit involvement in extraordinary rendition. Aren't our investigating parliamentary committees wonderful?

Just where do you go from issuing such a laughable written record of sycophancy and admiring disregard for anything other than a clean bill of health for our glorious saviours in MI5 and SIS? To an even more hilariously censored account (PDF) which manages to inform you of almost precisely nothing you didn't already know.

Richard Norton-Taylor on CiF has already said it best, but the whole report has to be read to be believed. There isn't a page that goes by that isn't affected in some way by material it's felt to sensitive for the public to read, and so is instead replaced with asterisks. Predictably, we aren't told how much the security services are either spending or being allocated in funding, but some of the removals just make the whole thing completely impossible to understand or make your marvel at just what the point of even bothering to issue a report was. There's this for example:

We are now engaged in a range of counter-terrorism work; direct pursuit of terrorists, ***, capacity-building with key [countries,] and – this is an absolutely vital point
– ***.
***. So put like that and defined like that, this takes up about 56 per cent of our effort… and it is rising.


SIS has improved its *** and its understanding of the factors that have the potential to affect radicalisation and extremism in the UK.

Its what? Its cookery? Its archery? Its performance? Its dick waving?

The media have focused on the fact that GCHQ suffered from flooding last year and the report's inquest into that, but far more interesting is the report's comments on media relations, the stopping of the SFO inquiry into the BAE slush fund and the possibility of intercept evidence being made admissible. These seem to be Dame Eliza Manningham-Buller's comments on the coverage of the Birmingham beheading plot raids:

We were very angry, but it is not clear who we should be angry with, that most of the story of the arrests in Op GAMBLE were in the media very, very fast. Indeed, before the arrests in Birmingham, the press were pre-positioned and before the police had picked up one of the plotters and the surveillance was still out looking for them, the story was in the press.

So the case was potentially jeopardised by the exposure of what the story was. My officers and the police were jeopardised by them being on operations when the story broke. The strategy of the police for interrogating those arrested was blown out of the water, and my staff felt pretty depressed about the fact that this had happened.

We've never got to the bottom of who was behind the leaking, mainly to the Scum, but most of the fingers were being pointed directly at the Home Office. Not that they're the only guilty parties; the Met, the security services themselves and other interested parties have all leaked stories for their own benefit in recent years. The solution to this though doesn't appear to be to ensure that accurate, non-sensationalist information is supplied by the police or others when arrests are made, transparently making the news available to all rather than just a few, but instead to tighten the screw on the media in its entirety, with again predictably the complaint being that "lives are at risk":

The current system for handling national security information through DA-Notices, and the Agencies’ relationships with the media more generally, is not working as effectively as it might and this is putting lives at risk. We recommend that the Government engage with the media to develop a new, effective system, with a view to protecting intelligence work, operations, sources and criminal prosecutions, whilst ensuring that the media continue to report on important matters of public interest.

The government engage with the media? Who is the committee kidding? Either it will put down more chilling legislation which rather than affecting the sensationalism in the aftermath of the foiling of a "plot" will instead stop legitimate reporting and investigation, or it'll do nothing.

The committee's unquestioning approach to the evidence given them by the security services is once again highlighted by their pitiful investigation into whether there really was a threat of the Saudis withdrawing intelligence cooperation if the SFO investigation into corruption continued:

106. We asked the Chief of SIS about the Saudi threat to withdraw co-operation:

There was some suggestion in some of the media coverage that there was no *** threat to our co-operation… that is not true. There were threats made to the existence of the co-operation [and] there was reason to take those threats seriously…

If the committee is well briefed, it would know that the intelligence between all the major western intelligence agencies is now pooled and shared. Even if the Saudis had withdrawn their cooperation with SIS, they would never dare remove their cooperation with the Americans, who in any case would then have submitted the same information to us. If John Scarlett was questioned about that, it sure isn't in the report.

U. The Committee is satisfied that, at the time, there were serious national security considerations which contributed to the Serious Fraud Ofice’s decision to halt the investigation into BAE Systems’ dealings with Saudi Arabia.

Even if there were, it was still the equivalent of giving into blackmail and letting a foreign country dictate to us what we could and could not do in relation to more than substantiated allegations of corruption. We would never give in to such demands from terrorists or the likes of Iran, so why with our supposed friends? The rule of law means nothing when it comes to continuing the arming of a country with one of the worst human rights records in the Middle East.

Onto intercept evidence. Surprise, surprise, the agencies are firmly against, and the committee certainly isn't convinced either:

113. The Agencies, however, are adamant that their intercept capabilities must not be disclosed in court. If they were, criminals and terrorists would quickly learn what the Agencies can and cannot do, and would emd means of avoiding detection, which would then damage their capability and coverage. Other countries, however, allow the use of intercept as evidence without any adverse impact on their security and intelligence capability, so what makes the UK different?

GCHQ points to a unique combination of factors in the UK:

The UK is the only country which has all three of the following things: an adversarial legal system, subordination to [the European Convention on Human Rights] and a strategic intercept and SIGINT capacity that is worth protecting.

The tabloids' aversion to the HRA seems to be contagious; even the security agencies are now making spurious allusions to the ECHR somehow making it obvious how intercept evidence can't possibly be made admissible. The next paragraph is completely open about how poor some of the intercept evidence is, rather than "strategic" and "worth protecting":

In practice, because of the UK’s adversarial legal system, the defence would be able to test the validity of evidence and thereby explore how it was obtained. As communications technology evolves (particularly internet protocol), we understand it may be dificult for the Agencies to be able to prove intercept to an evidential standard.

So there you are. Admittance that the evidence which currently means those on control orders can't be prosecuted is so flaky or unable to back-up that it would be unlikely to stand up in court. No wonder that the agencies are against it; the last thing they want to look is either stupid or for it to be shown that men innocent of any crime have been held under the equivalent of house arrest for years on their say so.

117. The Director of GCHQ summarised the test for allowing intercept:

… a change to allow intercept as evidence should be introduced only when doing so would have a net benfeit in securing the safety and the security of the UK. By that I mean not just convicting and imprisoning criminals, but also preventing crimes and terrorist actions.

Which just happens to be a test which you'll never be able to come to a definitive conclusion about. Best not to even try then; after all, who cares about those stuck in the eternal limbo of the control order regime, driven to severe depression like Cerie Bullivant, whose only crime seems to have been to have associated with relatives of the fertiliser bomb plotter Anthony Garcia, who had his order quashed yesterday by a judge who was heavily critical of the Home Office.

Its conclusion then:

V. Intercept is of crucial importance to the capability of the Agencies to protect the UK, its citizens and its interests overseas. Any move to permit the use of intercept evidence in court proceedings must be on a basis that does not jeopardise that capability.

In other words, more blackmail. Introduce this and we won't be able to do our jobs properly. Never mind that numerous other countries in Europe also signed up to the ECHR manage it, and that the security services are more than happy with the results of their bugging, crucial to the Crevice trial and now the beheading plot being made available as evidence, intercept would be a step too far. Just what are they so scared of?

The only real showing of teeth by the committee was being denied access to a document prepared for ministers about "an important matter", apparently related to a foreign operation, which the foreign secretary at the time was happy to be given them. The prime minister didn't agree, and the committee said that doesn't say much about his previous pledge to make the committee more transparent.

Indeed, Brown and this government's intentions of doing just that could not be more summed up than in the choice of who to replace Paul Murphy, previous chairman and now the Welsh secretary after Peter Hain's resignation. Margaret Beckett, whose previous performance in her last two jobs, as head of DEFRA and then foreign secretary were both execrable, could not be either more establishment or less likely to ask the pertinent questions needed of the security services. So much too for the independent investigator that the committee was promised. The only way the security services will ever be held properly to account will be if a watchdog similar to the Independent Police Complaints Commission or the Information Commissioner were to be set-up. Why for instance should the head of MI5 be able to make doommongering statements about the terrorist threat in public and then refuse to give evidence to a parliamentary committee under the same scrutiny? Just how far the inroads into everyday life the security services are making were revealed in statistics released this week by Sir Paul Kennedy, which showed that more than 250,000 requests were made to monitor phone-calls, emails and post in just 9 months. The surveillance state is ever growing, yet there is not even the slightest attempt to provide accountability. That simply has to change.

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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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Saturday, February 17, 2007 

Prosecute? Why bother?

The facade surrounding the need for control orders is slowly but surely crumbling. Yesterday a judge, quashing one only for John Reid to impose a slightly less stringent one within minutes, suggested that the man should have been prosecuted rather than be under house arrest.

In the first challenge to a control order in which the court heard full evidence, Mr Justice Beatson quashed the order on a Tunisian, E.

The home secretary issued a new order with less restrictive terms, pending an appeal, but he claimed this would increase E's likelihood of absconding.

"To protect the public, I have today made a new control order. Inevitably this is weaker than the original one, which means it is more difficult for the police to supervise him."

The stupidity of this is manifest. If he was to be prosecuted, it's likely that he'd be remanded in custody due to the potential risk he poses. Instead, John Reid would rather continue with a policy which is not only illiberal but also ineffective.

E was mentioned as a co-conspirator in a terrorism trial in Belgium. The case relied heavily on intercept evidence, which is only inadmissible in UK courts if the interception happens here.

Mr Justice Beatson said the home secretary's decision to maintain the control order on E was tainted by his failure to keep the issue of prosecution under review. The judge also quashed the control order on the grounds that the cumulative effect of the restrictions, particularly the requirement to have all visitors and anyone E met outside the home vetted, deprived him of his liberty, in breach of the European human rights convention.

This is how ridiculous the current situation is. We can use the intercept evidence collated by the security services' of other countries, but we can't of our own. Joined-up thinking at its finest. The judge should know whether there's enough evidence to prosecute, and in this case it seems apparent that there is. One has to wonder if they aren't simply because of the bind it would put the security services in, with reports from the trial likely to embarrass both the government and MI5/6 through the idiocy of the continuing farce.

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