GCH Who?

Who?
Who?

 

Watching the debate on government surveillance and citizen privacy play out differently on opposite sides of the Atlantic is both astonishing and depressing.

While the issue has become a hot political topic and an electoral issue leading into the 2014 midterms – with candidates and incumbents lining up to praise Edward Snowden for whistleblowing and revealing the extensive activities of the NSA, or condemn him as a hypocritical traitor – in Britain, the debate has caused barely a murmur.

Despite the fact that as closest allies, the United States and United Kingdom cooperate intensively on surveillance and national security issues, sharing the front-end technology as well as the intelligence results, those responsible from the United Kingdom side have escaped serious political pressure and questioning almost completely.

The closest to uncomfortable scrutiny that anyone from the British security apparatus came was when former GCHQ chief Sir David Omand was asked a softball question at the Home Affairs committee, and used it as an opportunity to bemoan the fact that all of this pesky, pedantic oversight of the intelligence community is harming their morale and making them feel sad.

John Naughton, writing in The Observer, has a theory about this relative lack of interest in Britain. He proposes that people would sit up and pay more attention to the erosion of their right to privacy and protection from unreasonable search if only the technological aspects of the question were explained in a more accessible way:

As someone who is supposed to know about these things, I’m sometimes asked to give talks about computing to non-technical audiences. The one thing I have learned from doing this is that if you want people to understand technological ideas then you have to speak to them in terms that resonate with their experience of everyday things.

Naughton believes that the problem is a lack of technical understanding in the British population – that if only the man on the Clapham omnibus knew what it meant to tap transatlantic fibreoptic cables to eavesdrop on data, to use computer malware to snoop on untargeted citizens or to maintain logs of telephony metadata, he would suddenly take to the streets in anger. This seems somewhat naïve. After all, American citizens are no more technically sophisticated than the British, and yet they managed to generate and sustain a sense of outrage that their privacy was being routinely violated by a government that would have happily continued doing so in secret were they not caught red-handed.

Naughton continues:

One of the things that baffles me is why more people are not alarmed by what Edward Snowden has been telling us about the scale and intrusiveness of internet surveillance. My hunch is that this is partly because – strangely – people can’t relate the revelations to things they personally understand.

The average Brit may not be conversant in the technical details, but they know the broad strokes – that the government is and has long been collecting and sharing data on us all with our international intelligence partners, that this was done without ever bringing the question up for national or parliamentary debate, and that the government is more interested in bullying people who try to report on the truth than in making their activities more transparent and democractically accountable.

The problem is not that the average Brit simply doesn’t understand what it means when GCHQ or the intelligence services collect reams of data indiscriminately with no targeting and no proof or suspicion of ill intent – they understand all too well. The problem is that far too many British people, when asked, simply shrug their shoulders and say something along the lines of “well, if it keeps us safe we should probably keep doing it,” or “if you have nothing to hide you have nothing to worry about.”

And more worrying still is the fact that some elements of the press also seem willing and eager to promulgate this attitude.

The reason for this apathy among both the people and the press is the fact that the British people have no real terms of reference when it comes to thinking about what government actions are good and which are bad. In the United Kingdom, the law of the land is only as cast iron and certain as the whims of the current government and current parliament. Aside from the European Union and European law (which act as brakes on British government ambition in almost every other sphere than this), the British citizen has no real defence against any action taken against him by the elected dictatorship of the day. And where it comes down to interpretation of existing law by the intelligence agencies, the cases are fought in court in a very opaque way that hardly anyone understands.

Contrast this to the situation in our closest ally, the United States of America, where precisely the same debate is playing out but at a much louder volume. The debate is much more accessible to the average American because the US government is structured in a much more understandable way and the powers and limitations of each branch of government are delineated by the Constitution. Though ambiguities and disagreements naturally always occur, the Constitution at least provides a frame of reference.

When issues such as bulk collection of telephony metadata or the recording of international telephone calls or the intercepting of emails come up, Americans can point to the Fourth Amendment to the United States Constitution, which clearly states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There it is, in black and white. And it protects Americans in perpetuity until such time as it may be repealed or replaced with a new amendment (for which the bar for passage is prohibitively high).

That’s not to say that the US Constitution has done anything much to help American citizens defend themselves from unwarranted government intrusion. The Obama administration, and the Bush administration before, are able to come up with all manner of tortured (no pun intended) interpretations of the law to justify both the illegal things that they do and the fact that they try so hard to keep them secret.

But the mere fact that the highest echelon of law concerning search and seizure of property is so comparatively well known in the United States means that shady government activities suspected of falling on the wrong side of the line between legality and unconstitutional overreach are noticed much sooner and debated much more vigorously. By contrast, it would be astounding if any more than one in a thousand Britons of voting age could point to the relevant laws and statutes which define the British government’s legal powers to monitor the communications and data of its citizens.

The sad irony is that the Fourth Amendment protections enjoyed (or at least referred to) by American citizens derive largely from British legal doctrine, and yet it is the former colony which now tenuously keeps alive something which has been slowly and deliberately extinguished in the mother country.

John Naughton is right to be alarmed at public apathy toward the growing British surveillance state – it is perhaps the greatest threat to our democracy and free speech currently in existence. But public opinion will not be inflamed by holding a national technology seminar to explain the small print; there will only ever be opposition to government overreach on spying or anything else when we sit down together as a country and agree exactly what should be the limits on government power.

Holding a constitutional convention for the United Kingdom – as this blog has consistently advocated – to determine once and for all the powers that we are willing to grant the government and those which we would keep for ourselves may not be popular or sexy. But it is needed now more than ever.

Spare A Thought For Those Who Spy On Us

Today saw a rare moment of insight into the workings of Britain’s intelligence services and the mindset of those who lead them. It was but a fleeting glimpse, though – provided by a former employee, summoned to give evidence to the Home Affairs Committee in Parliament.

Unrepentant.
Unrepentant.

The Guardian provides a concise summary of former GCHQ chief Sir David Omand’s testimony, but the real showstopper is this question, posed by Conservative MP Michael Ellis, and the response he receives from Sir David:

Q: Have the unauthorised leaks have a negative effect on morale?

Omand says that his impression, from the outside, is that it has been a bitter blow.

There have been concerns about reputation.

And they have been accused of breaking the law. They have been accused of using the US as a backdoor, to circumvent UK law. Omand says he does not think that is true.

There has been an impact on families too, he says.

And he suggests there has been an impact on recruitment. Would parents encourage their children to join an organisation accused of acting like this.

In other words, as far as David Omand is concerned, the problem is not that the all-powerful British security agencies have been collecting bulk data on the personal communications of British citizens without reasonable suspicion of criminal intent. No, the real outrage is the fact that in protesting the draconian steps taken in the name of our safety (but without our knowledge or consent), having found out about them, we have hurt the feelings of the people who have actually been doing the spying. Never mind the right to privacy – the fragile egos of our intelligence analysts are apparently at stake.

Also of interest is Omand’s opinion on whistleblowing in general, as revealed in his response to a question from Labour MP Paul Flynn:

Q: Don’t we need whistleblowers?

Omand says he supports the free press. In a well-regulated society, you don’t need whistleblowers.

So there we have it. If society is well regulated – meaning, as far as I can tell, if the elites are free to do whatever they think needs to be done under a secret gentlemen’s agreement, and the public are willing to be docile and credulous and to relinquish any expectations of oversight or checks on power – then there would be no need for whistleblowers such as Edward Snowden.

And in a sense, Sir David Omand is right. A “well-regulated” society such as this would not need whistleblowers, because it would have sacrificed so much of its integrity and worth that there would be nothing left for an honourable whistleblower to defend.

This Parliamentary performance by the former head of GCHQ provides a very revealing insight into the self-entitled mind of our political and national security elites. In their worldview, not only are they perfectly entitled to treat the average citizen with suspicion and intercept their personal communications at will, but they should also be allowed to do so with total impunity, and without ever being made to feel the slightest bit bad about their actions, either through having their clandestine work revealed by a whistleblower, or by reading a negative newspaper editorials on the subject in the aftermath.

Omand is essentially telling us that our first thought as members of the public, when confronted with proof of massive government surveillance by whistleblowers such as Edward Snowden, should not be for ourselves, the people whom the security services supposedly exist to protect and serve, but rather for the sensitive feelings of the GCHQ operatives and their political masters.

If that strikes you as being slightly ludicrous, that’s good, because it should.

A fearsome building, apparently filled with very sensitive souls.
A fearsome building, apparently filled with very sensitive souls.

 

The impact of the Snowden revelations on morale within GCHQ should not be our overriding concern at this time. The organisation has been flagrantly violating the privacy of fellow British citizens – who should not be their target – unknown and unopposed, and a certain dose of guilt and shame for having done so is probably quite appropriate.

Of course, ultimate responsibility for the actions of the intelligence services rests with the government and the elected politicians who sanctioned the draconian use of surveillance practices without ever seeking the consent of the people. It is true that people working for GCHQ and the intelligence services are given orders and must carry those orders out as part of the job, and I also appreciate the power of organisational or institutional loyalty, and the corrosive effects of groupthink, both of which may play a part in allowing intelligence agency operatives to justify some of the actions that they take. But this does not absolve them of all responsibility.

Yes, the buck stops with the Prime Minister and the Home Secretary, but good men and women at all levels within the hierarchy who knew of what was taking place should have stood up and said something. The sad fact is that were it not for a disgruntled and outraged American citizen blowing the whistle and releasing incriminating documents to the media, the British public would still be blissfully unaware of what has been taking place.

So where is this well-regulated society of which Omand speaks? In Britain, it clearly does not exist, as The Guardian’s summary of another of his responses makes clear:

Omand says a whistleblower has to have exhausted his other options. Edward Snowden could have gone to his employers, or to Congress. Imagine if he had walked into Congress, flanked by the editor of the Guardian, saying you have been lied to. He could have achieved his objectives, without having had to take more than 50,000 documents.

Is it not striking that when pressed to come up with an alternative to releasing sensitive intelligence documents to the media, the only alternative scenario to whistleblowing offered by Omand occurs in the context of the US government, and not the British?

Firstly, it is somewhat ludicrous to suggest that Edward Snowden could have followed this course of action. There were those in Congress, after all, who were aware of the NSA’s activities but who felt bound not to talk about them. And with unrepentant national security fanatics such as Peter King and Mike Rogers in the House, Snowden would likely have been disappeared before he had finished uttering his first sentence.

And secondly, how does Omand picture the same scenario playing out in the United Kingdom? Clearly not well, as he doesn’t expand upon the scenario during his testimony. So the concerned GCHQ analyst walks into Parliament flanked by Alan Rusbridger of the Guardian, and tells MPs that they had been lied to. What happens next? How, in any way, would that analyst’s objectives of raising awareness of the malpractice be accomplished? It wouldn’t.

Whistleblowing actions of the type carried out by Edward Snowden are sadly necessary, because it is simply not enough to flag misbehaviour by the national security complex to elected representatives in Parliament or Congress. In the US Congress there are a sufficient number of cheerleaders for Bush-era, PATRIOT Act-style security that the whistleblower could almost certainly expect immediate reprisal and persecution, and in the case of the British Parliament, there sadly exists a lazy general consensus that the security services should be left in peace to do whatever they think is reasonable to keep us safe.

In neither country, Britain or America, is there a plausible scenario where a concerned citizen could approach elected politicians with evidence of wrongdoing by the state and expect that their personal privacy and liberty to be respected and guaranteed in the aftermath. We know this because time and again, we see the majority of public officials (with a significant but outnumbered minority of brave dissenters) closing ranks to defend the intelligence agencies and the status quo. Therefore, the only way to bring a halt to these practices is by releasing information into the public sphere – which, it should be acknowledged, has been done in a very measured and sensitive way by Snowden, and is certainly no indiscriminate data dump – to increase public awareness and concern.

It would have been foolish to expect the former head of GCHQ to offer anything other than a full-throated defence of the work that he and his agency were so deeply involved in for so long. And so, in that sense, we learned nothing new from Sir David’s testimony to the Home Affairs committee today. There will be no immediate change of policy and no deathbed confessions of wrongdoing from anyone in power just yet.

And yet there was progress today. As well as the softball questions lobbed by sympathetic MPs with a similarly authoritarian outlook, Sir David Omand also had to face some tough and awkward questions. Even in centralised, deferential Britain, there are some MPs willing to do their job and represent the interests of their constituents.

Take this small ray of hope and combine it with Ed Miliband’s curious new-found interest in ensuring that the intelligence agencies receive more thorough public scrutiny and oversight, and you have the makings of what now passes for a good week for civil liberties and citizen privacy in 21st century Britain.

The Day We Fight Back

thedaywefightback

 

Sometimes help comes from the most unlikely places. That was certainly the case today when Ed Miliband used his speech at the Hugo Young memorial lecture to call for major changes to the oversight of Britain’s intelligence and security agencies.

The Guardian reports:

A major overhaul of the oversight of Britain’s intelligence agencies, which could lead to an opposition politician chairing parliament’s intelligence and security committee and reform of the intelligence commissioners, needs to be introduced, Ed Miliband has said.

The Labour leader praised Barack Obama for starting an “important debate” in the US – after the White House appointed a panel in the wake of the Edward Snowden leaks – and called for a similar debate in Britain.

In some of his most extensive comments on the NSA leaks, Miliband told a Guardian audience that reforming the oversight of GCHQ, MI5 and MI6 was “definitely” part of his campaign to challenge “unaccountable power”.

Though the details remain sketchy, it appears that Miliband envisions quite a far-reaching review, looking not just at the methods used by the security services but also the degree to which the agencies are funded, the scope of their responsibilities and the granting of a more formal role in oversight to the main opposition party:

Miliband made clear that his challenge to “unaccountable power” would include Britain’s intelligence agencies as he said that reform should focus on two areas. These are parliament’s all party intelligence and security committee, which is always chaired by a senior MP from the governing party, and the commissioners who oversee the intelligence agencies.

The Labour leader said: “I already believe, and this is what my Labour colleagues have been saying, that there are clearly changes that are going to need to be made in relation to the intelligence and security committee and the oversight it provides.

“That is everything from the resources they have at their disposal, who chairs the committee and whether it should be somebody from the government party or the opposition party, their power to compel witnesses – a range of issues.

While this may warm the heart of many a weary libertarian, it must be noted that Miliband has barely scratched the surface in terms of confronting the growth of the British national security apparatus – after all, even miracles have their limits.

Miliband praises US President Barack Obama for starting what he calls an “important debate” but neglects to mention that Obama would have quite happily allowed the NSA to continue to violate the privacy of US and world citizens in secrecy and in perpetuity, and that he is actively seeking to extradite the person who really started the debate – Edward Snowden – back to America to face charges of treason. Thus restated in the proper context, Obama’s carefully cultivated philosopher-king image begins to lose some of its sheen, as does Miliband’s boyish admiration of him.

It should also be noted that Miliband sees the answer to concerns about privacy and civil liberties very much in terms of incremental changes to the existing framework, and certainly not in creating cast-iron rules about powers that the government should rightly have and those which should be reserved by the people.  In particular, he sees the fact of ministerial oversight and sign-off of interception requests by the security agencies as a good thing and a solid check on power, rather than the rubber stamp that it really is:

On the ministerial oversight of interception, he said: “It is worth saying also that there is in this country … ministerial sign off when intercept and so on takes place. That is a very, very important safeguard. I do believe the intelligence services do important work. But I absolutely endorse the idea that there are important issues of liberty and liberty is an important part of Labour’s agenda.”

Perhaps Miliband (or indeed David Cameron or Theresa May) would care to set out a scenario – any scenario at all – where the British intelligence services might approach the government to get sign-off for a communication intercept on a surveillance target and actually be rebuffed by a skeptical minister. It simply would never happen.

Elected politicians, weighing the likely fallout of two different courses of action, are almost always going to follow the path that chips away at civil liberties by approving the intercept request rather than defending privacy and denying the request on grounds of insufficient evidence, and later being implicated in a security failure. Decisions on the authorisation of communications intercepts should rest with the judiciary, not the executive.

It is certainly true that public opinion in Britain has not swelled with outrage at the revelations of NSA and GCHQ collaboration in collecting and viewing private communications data with no reason for suspicion and no warrant.

And so Miliband’s contribution to the British debate on privacy and (remarkably) constraints on the power of the state – a very muted, anaemic debate compared to that now taking place in many other countries – is welcome, and very important. In America, politicians from both main parties and of all temperaments have spoken out in condemnation of secret government surveillance, raising public awareness and, in some cases, making continued support for these draconian surveillance measures an electoral liability. Meanwhile, the British political establishment has largely closed ranks in defence of the national security complex, and against the people.

berniesandersNSA

Contrast this quote from the independent Vermont Senator, Bernie Sanders, with Prime Minister David Cameron’s dismissive and aloof response to concerns about the practices of MI5, MI6 and GCHQ:

“We have very good rules in this country. If a telephone call is going to be listened in to, that has to be signed off by the Home Secretary personally. There are very good safeguards in place,” Cameron told ITV’s The Agenda. “You get asked, ‘What are the rules’? I’m satisfied we have pretty strong safeguards. I thought part of the reaction to the The Guardian story was – big surprise, spies learn to spy…it’s to help keep us safe.”

Does the fact that Ed Miliband took the first tentative step in support of civil liberties and dared to suggest the state should not be all-powerful over us mean that the torch has been passed to a new generation of leaders on the issue? Of course not. Miliband seems to place his complete faith in the power of the state to accomplish a whole range of other matters relating to the personal and private lives of the British people, and it is far from certain a this early stage that he is not simply using his Hugo Young lecture to score a few cheap political points with no intention of pursuing the matter any further.

But for perhaps the first time in his senior political career, Miliband spoke out in favour of the private citizen over the government, when the issue of government surveillance has been met with nothing more than dismissal and condescension by Number 10 Downing Street and the rest of the government. And for that action, he must be given some credit.

Today, February 11th 2014, has been labelled The Day We Fight Back against mass surveillance. Numerous websites are carrying links to the organisation, which is supported by more than 360 organisations in 70 countries, and which plans to petition lawmakers in these countries to take action on the serious issue of government surveillance and constitutional overreach.

The Day We Fight Back has been well-marked in the United States, with many prominent politicians adding their voices to the chorus of protest. In the UK, on the other hand, there has been a deadly silence. The focus of the British news media and the political class remains fixed on the issues of flooding in southern England, with elected politicians falling over themselves to be seen in photo opportunities surveying the damage and taking decisive action. Taking any kind of action in support of our right to privacy and freedom from government oversight is far down the list of priorities, where it even features at all.

Former Texas Congressman Ron Paul is not right about everything, but his warning about the loss of liberty, echoing Franklin, is pertinent and timeless:

ronpaulwarning

People in Britain who truly appreciate the importance of the right to privacy and the need to place constraints of any kind on government seem to be few and far between, and consequently we must look for allies in unlikely corners.

Ed Miliband’s is certainly the very unlikeliest of corners. But perhaps the Labour leader’s taking a stand for civil liberties will shame others – those who should have been holding this issue aloft all along, and warning of the dangers of an omniscient, omnipotent government – into finally doing the same.

 

Concerned readers can visit The Day We Fight Back website and add their name to a petition here.