Debate on oversight of intelligence & security services Part 3

On the day that The Guardian's editor is due to appear before the Home Affairs committee I thought it was time to round off my reporting on the parliamentary debate on the of oversight intelligence & security services. The debate is over a month old now and with the exception of the Guardian has, sadly, largely been ignored by the mainstream media.

Dominic Raab made the most telling contribution to the session, as I mentioned in Part 1. Part 2 of my report concluded with Malcolm Rifkind's endeavours to defend the Intelligence and Security Committee (ISC) which he chairs and the intelligence services his committee is tasked with overseeing. The committee has 9 members (7 MPs and two members of the House of Lords) and a part time investigator. The intelligence services have a staff of over 13000 and a 2013/14 budget of £2.1 billion, according to the Guardian.

Picking up again from Mr Rifkind's evidence, he believed -

• there is no interception if it is only done by computers and the data is not seen by a human being
• the Justice & Security Act 2013 has brought a "cultural revolution" to the ISC
• hinted that critics claiming that the ISC didn't know about the Tempora undersea cable interception programme did "not have the faintest idea whether the Committee was aware of programmes of any kind."
• computers are clever
• 99.99% of the data they gather and process is never looked at so describing the activities of the intelligence services as mass surveillance was unconscionable

He then responded to a question from Tom Watson about the dangers of automated mass data analyses:

"the intelligence agencies have far more important things to do than to look at patterns of behaviour, unless they are directly relevant to a terrorist threat or serious crime. That is their function and legal duty, and if they go beyond it, they are committing a crime—even if they had the time, which they do not have, or the inclination to do so...

no other country in the world, including democratic ones, has both substantial intelligence agencies and such a degree of oversight."

He concluded by noting the Justice & Security Act 2013 has given the ISC all the oversight powers that critics have been asking for and the committee should be judged on their use of those powers and

"Right hon. and hon. Members should by all means scrutinise whether we use the powers properly, but they should please do so on the basis of knowledge about the Act"

He's right that Right hon. and hon. Members should understand the Act but an at least rudimentary but preferably deep understanding of the technology and the mathematics is also crucial. Such understanding was not evident in the contributions of the members of the ISC to the debate.

Rodney Buckland (Conservative) was next in line and he raised the need for reform of the Regulation of Investigatory Powers Act (RIPA) and the question of Schedule 7 of the Terrorism Act, widely believed to have been abused in the detention of David Miranda at Heathrow airport. David Anderson QC, the independent reviewer of terrorism legislation, has recently indeed called for an end to detention at borders without suspicion. His note to the Home Affairs select committee on the matter is available at the Parliament website.

Mr Buckland felt "the threshold of reasonable suspicion should come into play at the point when a person is formally detained" under schedule 7. He concluded by criticising the Guardian and saying privacy was important but in a balanced way, so we could catch terrorists too.

At this point Graham Brady who had taken over chairing the session part way through said he was restricting the remaining 3 speakers to 6 minutes each.

Richard Graham paraded his colours as a former diplomat and an anecdote about his first professional stint abroad - his first phone call, he says, got interrupted by a 3rd party asking him to repeat his last sentence. Mr Graham's purpose seemed to be to-

• ridicule Julian Huppert, David Winnick and the anti mass surveillance side of the debate as being motivated by hysteria and naivete
• note the hilarity of the shock at the news that spies actually spy
• defend the honour and impeccable integrity, in addition to the law abiding citizenship and valour, of the chaps and chapesses in the intelligence services
• allow these good folks, without undue interference, the capacity to get on with battling the multitude of "more complicated and more sophisticated" threats we face - including include nuclear proliferation, cyber-attacks, attacks on our intellectual property, organised crime and new weapons - that could destroy us. (Interesting to see intellectual property getting a mention in this context).

Dr Julian Lewis followed Mr Graham. He had three points to make in addition to praising Julian Huppert (anti) and Martin Horwood (pro) -

• It is unacceptable for huge numbers of junior staff to have access to classified material
• It's harder to track people today than it was in the past (seriously!); therefore data on everyone needs to be gathered for post hoc mining; and so what if there are lots of irrelevant data haystacks
• Edward Snowden is no more a whistleblower than Julian Assange. What Snowden did was "irresponsible—" Unfortunately he didn't get to use his prepared label for Mr Snowden since the chairman cut him off, his 6 minutes were up.

Tobias Elwood was next and immediately undermined his contribution by stating

"The debate is about the balance of individual privacy versus the collective right to security."

No it really is not about balancing privacy and security. It is a completely false assumption to consider privacy and security to be opposites. Reinforcing cockpit doors has not undermined privacy in any way but is probably the single most important security measure brought into aviation since the 9/11 attacks.

Mr Elwood has suffered a personal loss due to a failure of the intelligence services to share information in timely fashion. His brother was killed in the Bali bombing as a result.

Diana Johnson stepped up to have a dig at Nick Clegg -

"Even the Deputy Prime Minister, given his recent comments to the media, appears to have missed the reforms that strengthened the Intelligence and Security Committee. That is surprising, considering he has 19 special advisers."

 - offer her interpretation of RIPA, express her confidence in the ISC and her hopes the committee will show its ability to conduct public hearings and restore public confidence.

At 4.18pm the Parliamentary Under-Secretary of State for the Home Department, James Brokenshire, got to his feet.and delivered a largely monotonal reading from his brief.

• the intelligence services do essential work "confronting the diverse terrorist threat that this country continues to face"
• the importance of scrutiny of the intelligence services is underlined by the loss of Mr Elwood's brother in the Bali bombing
• intelligence work should happen within a strict legal and policy framework and it does and it has strict oversight but the intelligence services need "to maintain an edge in tackling terrorism and stopping criminals"
• much oversight must happen behind closed doors to keep secret information secret
• secrecy is essential  
• intelligence services are overseen by more mechanisms than many other areas of government 
• the ISC is good and got more power this year from the Justice and Security Act
• in response to a question from Tom Watson on why Tempora did not receive parliamentary scrutiny Mr Brokenshire said it "not appropriate" for him to comment on such things in public
• when Mr Brokenshire prevaricated following a question from Dr Huppert on on whether the ISC can investigate on long running operations, Mr Rifkind jumped in to his rescue - the ISC "have completed discussions with the Government, the results of which will appear in a memorandum of understanding that will be published and include details of how these matters will be dealt with. That will ensure that that consideration cannot be used as an improper way of preventing the ISC from obtaining access to operations that—by any normal, common-sense approach—could be considered as completed."
• David Anderson QC, the independent reviewer of terrorism legislation is deserving of praise (mind you this was before Mr Anderson suggested restrictions on the use of Schedule 7 of the Terrorism Act)
• GCHQ doesn't look inside the UK - this is misleading since GCHQ does look inside the UK under section 16 of RIPA

Mr Brokenshire concluded:

"It is this multi-faceted oversight that complements rigorous internal controls within the agencies themselves. The agencies’ recruitment and training procedures are all designed to ensure that those operating within the ring of secrecy can be trusted to do so lawfully and ethically. A culture of compliance with both the letter and the spirit of the law pervades everything that they do...

 This has been an important debate, highlighting the strength of the scrutiny that we have and the different layers of scrutiny that operate in this country. I believe that we have every reason to be proud of those oversight arrangements and of the work of our agencies."

We've no reason to doubt that many of the intelligence agencies' 13,000 plus employees do some terrific work. Mr Brokenshire's claim that we should be proud of the scrutiny of the intelligence services doesn't pass the laugh test in the light of the reports all round the world based on the Snowden documents, however. We have every reason to be concerned that

1. 850,000 people have access to classified UK and US government material
2. the UK and US governments through the NSA and GCHQ have been complicit in the clandestine construction of an electronic infrastructure of mass surveillance
3. government intelligence & security services with the aid of large commercial organisations engage in mass surveillance - indiscriminately collecting, processing and storing the personal data - of that large proportion of the population using and/or visible to communications networks
4. the NSA and GCHQ have been systematically undermining encryption technology that underpins privacy and the security of commerce on the internet by encouraging vendors and standards bodies to build back doors into their systems
5. the notion that only the good guys will exploit such security holes is naive; they have through this process effectively destroyed trust in these systems
6. large technology companies have been quietly cooperating with all this, though once it became public they changed their PR approach to claim victimhood along with the masses
7. the laws to facilitate this mass surveillance are already in place and where they do interfere the NSA and GCHQ have operational methods for circumventing such inconveniences ('what not to say' rules when dealing with overseers)
8. those engaged in the formal oversight mechanisms of the intelligence services work have little or no understanding of the technologies involved, what exactly they are being used for and what the consequences might be
9. the UK government - with echoes of the Spanish Inquisition's, Nazi Germany's and Mao Zedong's book burning - is prepared to be responsible for the physical destruction of mainstream press equipment 
10. the UK government is prepared to threaten the press with D notices and prior restraint through the courts 
11. UK government ministers including the Prime Minister David Cameron are prepared to threaten the press (e.g in the debate on the European Council, Hansard Official Report, 28 October 2013; Vol. 569, c. 667.)
12. the NSA’s own internal auditors found its agents broke privacy rules thousands of times each year
13. the US government via the NSA reportedly route significant funds ($100 million) to the UK government intelligence service GCHQ 
14. GCHQ appreciate their "light oversight regime compared to the US" 
15. the secret US FISA Court's ability to oversee US spy agencies is very limited
16. US intelligence chief James Clapper lied (responded in the "least untruthful manner") to Congress about the extent of NSA surveillance
17. we have expanded secret courts in the UK
18. some of the regulations and laws governing the operations of the intelligence and security services are themselves secret
19. politicians are all too willing to demonise the messengers and trot out poisonous soundbites - the innocent have nothing to fear; our critics comfort/support our enemies/terrorists; government's first duty is to protect the public; be afraid but give us the power and we'll protect you; move on there's nothing to see; ...national security...; trust us we're acting within the law - to defend the indefensible and sate their ambitions
20. the fourth estate - mainstream broadcasters and press - in the UK has largely been content to ignore or marginalise Guardian revelations, allowing that publication to plow an isolated furrow on the Snowden affair; worse still the Murdoch press and the Daily Mail, in particular, have actively attacked and sought to undermine the Guardian reporting on the Snowden affair; fueling the government's political attack dogs' outrageous accusations that the Guardian is aiding terrorism by publishing Snowden's revelations
21. the UK is prepared to detain people (e.g. Glenn Greenwald's partner, David Miranda) at borders without suspicion to the limits of Schedule 7 of the Terrorism Act
22. the Secretary General of the Council of Europe, Thorbjørn Jagland, was sufficiently concerned to write to the UK Home Secretary about Mr Miranda's detention and the destruction of the Guardian's computers
23. the information consuming public take an essentially soporific attitude to all this
24. the US has been tapping the phones of world leaders including Angela Merkel, the German Chancellor
25. the surveillance infrastructure has been used for industrial espionage
26. the strong incentives now pushing towards the balkanisation of the internet

I would repeat, therefore, that the reporting of the Snowden documents, the behaviour of the US and UK governments and our respective intelligence & security services and the subsequent reaction to this have raised fundamental questions of public interest (even if, in our world of short attention spans, the public is only superficially and transitionally interested, if at all) about -

• security (no top secret can be secure if nearly a million people have access to it as a routine part of their jobs)
• privacy (you have none on the internet)
• anonymity (again you have none on the internet)
• free speech (when does a whistleblower become a traitor?; why and how is is ok to smash up a computer in the offices of the Guardian in the UK in 2013?)
• management and oversight of the police, intelligence and security services (what are the political, legal, environmental, societal, economic, technical and architectural checks and balances, if any and are they fit for purpose?)
• the size, power and reach of the security/intelligence/surveillance/anti-terror industrial complex
• secret courts (FISA, FISAAA 2008; the UK now has its own secret courts courtesy of the Justice and Security Act 2013 which came into force in June)
• circumvention of human rights laws and constitutional protections (Prism, Tempora, XKeyscore, GCHQ-NSA data sharing?)
• dangerous normalisation of activities that would have horrified earlier generations and been condemned as the actions & infrastructure of a despotic police state if connected with the Soviet Union, East Germany, China et al
• the surveillance activities implicated by the Snowden documents are a breach of international law not matter how carefully or effectively GCHQ or the NSA has circumvented their own domestic laws
• activities excused as efforts to secure the safety of citizens of one country should not violate fundamental human rights of citizens of another country
• Finally for now, as Brazilian president, H.E. Dilma Rousseff, said at the UN General Assembly recently, 

""The arguments that the illegal interception of information and data aims at protecting nations against terrorism cannot be sustained...

In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among Nations.

We face, Mr. President, a situation of grave violation of human rights and of civil liberties; of invasion and capture of confidential information concerning corporate activities, and especially of disrespect to national sovereignty...

Friendly governments and societies that seek to build a true strategic partnership, as in our case, cannot allow recurring illegal actions to take place as if they were normal. They are unacceptable."