Extraordinary Popular Delusions

"Men… think in herds … they only recover their senses slowly, and one by one."

Category: UK Politics

GCHQ’s “light oversight regime” as situation comedy

One of the more memorable quotes to have been featured in the Snowden reporting to date for me is the unnamed senior legal official from GCHQ’s briefing note that “We have a light oversight regime compared with the US”.

For an illustration of how this works, I highly recommend reading Intelligence Services Commissioner Sir Mark Waller’s evidence to the Home Affairs Select Committee from last Tuesday. The Committee had to fight to get Waller to appear before it and, seeing what transpired, you can understand why. All the comparisons to Yes, Minister are entirely justified (although, as you may gather from his evidence, Mark Waller is in fact a retired senior judge rather than a career mandarin).

A representative sample:

Sir Mark Waller: …I just thought it was absolutely wrong to publish my report without going down to GCHQ in order to see whether there was anything in the allegation that was being made [in the Snowden reporting]. The allegation that was being made at that time was that GCHQ were taking no notice of UK law. They were doing it all through America and they were behaving unlawfully.

Chair: You went down to GCHQ.

Sir Mark Waller: Yes.

Chair: You went to see who there?

Sir Mark Waller: I saw the second head of the agency, in fact.

Chair: How did you satisfy yourself? It seems, from your comment, that what you did was you had a discussion with them, you heard what they had to say and you have accepted what they had to say.

Sir Mark Waller: Certainly.

Chair: Is that it?

Sir Mark Waller: Certainly.

Chair: Just a discussion?

Sir Mark Waller: Certainly.

Chair: Nothing else?

Sir Mark Waller: Certainly.

Chair: That is the way you were satisfied that there was no circumventing on UK law. You went to see them. You sat round a table. You had a discussion-

Sir Mark Waller: You have to remember that I had done a year and a half’s inspection. I have a very good idea as to what the ethos of this agency is.

Chair: Of course.

Sir Mark Waller: They know perfectly well that they have to make out their case and the legality of their cases and so on and I have absolutely, clearly, accepted that-

Chair: Of course. How many times have you visited GCHQ in the three years and two months that you have been the Commissioner?

Sir Mark Waller: Three years and two months. Well, again, each visit in 2012 is in the report. Effectively, I do two inspections a year.

Chair: So you have been about six times?

Sir Mark Waller: Yes.

Chair: Six times in three years?

Sir Mark Waller: Yes.

Advertisements

UK MPs debate oversight of the security services

Earlier today, MPs took part in a three hour debate on oversight of the security services. Video of today’s three hour debate is now available here, and it’s well worth viewing:

31.10.13 Westminster Hall debate on oversight of the security services

Of particular note are the exchanges between members of the Intellifenge and Security Committee (ISC) and Parliamentary colleagues, which reveal that no scrutiny of Prism or Tempora took place in that committee before Edward Snowden’s disclosures put the existence of those programmes into the public domain. It is not at all clear that members of the committee knew what GCHQ was up to until the Guardian drew their attention to it.

A full transcript of the debate should be available soon (here) and I’ll highlight some of the key passages when it is.

Update (4/11)

I promised to identify the sections of the debate which tackled the degree of information open to the ISC, particularly about the PRISM and Tempora programmes. The first came about in a question from Tom Watson to George Howarth, a member of the ISC:

Mr George Howarth (Knowsley) (Lab):

Let me demonstrate that by reference to the issue that the hon. Gentleman has talked about at some length, and legitimately so. I am talking about the Prism programme—what the UK’s involvement in it was and so on. Not once during his speech, unless I missed it, did he refer to the fact that the Intelligence and Security Committee, which he considers to be inadequate, has already looked at the Prism programme and what our own agencies’, and particularly GCHQ’s, involvement in and knowledge of that was. We issued a statement—an interim statement, I might add—in July. In the course of that statement, which has not been referred to so far, we arrived at some important conclusions. The first one was:

“It has been alleged that GCHQ circumvented UK law by using the NSA’s PRISM programme to access the content of private communications. From the evidence we have seen, we have concluded that this is unfounded.”

For obvious reasons, it is impossible for me to go into detail about all the evidence that we were able to look at, but we did look in detail at very important pieces of information and we were able also to look at what authorisations were involved in the process of accessing the information, particularly the communications within it. The law has not been broken.

Mr Watson: I am reassured by my right hon. Friend’s thoroughness in the investigation. Was July the first time that the Committee had examined Prism, and was that after the Guardian revelations? [Laughter.]

Mr Howarth: It was after the Guardian revelations. The hon. Member for Cambridge seems to think that that is funny. Actually, he would still be sitting here today if we had not gone and looked at this matter after the allegations emerged. He would be accusing us of being inadequate in our responsibilities.

So, the ISC did not examine GCHQ’s involvement in PRISM before information about the programme’s existence reached the public domain. That could mean that the committee didn’t know about it, or knew about it and chose not to concern itself with it. George Howarth was pressed on the issue of whether the ISC knew about the programme by Rory Stewart – and his answer is incredibly evasive.

Rory Stewart: Will the right hon. Gentleman clarify why the Committee did not look into Prism before The Guardian published its allegations?

Mr Howarth: Let me answer the hon. Gentleman very carefully; I hope that he will forgive me for being none too specific in my answer. Part of our responsibility, which did not just emerge after the revelations about Prism, is to look at what the agencies do, what their capacities are and how they use those capacities. It is a continuous process. We have in the head of GCHQ. We take evidence. We probe what it is doing and what it is capable of doing. Therefore, it is not that we did not have any concerns or any interest in what GCHQ was capable of. That is an ongoing process, but inevitably, when something new emerges, it is appropriate that, as a Committee, we look into it.

I have answered the hon. Gentleman’s question perhaps not as accurately as he would have liked, but—I am not being evasive when I say this—if I went any further, I would be going into detail that at this stage I do not think is relevant.

The issue was later put to the chair of the committee, Sir Michael Rifkind, who refused to answer the question:

Mr Meacher: Will the right hon. and learned Gentleman explain why the Committee did not find out about the Tempora programme when it began to operate?

Sir Malcolm Rifkind: The right hon. Gentleman does not have the faintest idea whether the Committee was aware of programmes of any kind. We are given classified information, and the whole point of an independent Committee having access to top secret information, whatever that is, is that we do not announce what such information is. If he can devise a system whereby secret information can be made available to all law-abiding British citizens, without its being simultaneously made available to the rest of the world, I am interested in hearing about it, but I do not think that he is likely to meet that requirement.

Also of note was the question put by Julian Huppert to the Under-Secretary of State James Brokenshire – but answered by Michael Rifkind:

Dr Huppert: The Minister makes the extremely good point that it is “past operations” that can be looked at, and there are constraints on what the ISC can look at; it does not have a completely free rein on operational matters. What happens if an operation lasts for many, many years? At what stage is there any sort of scrutiny of that?

James Brokenshire: To be fair to the hon. Gentleman, he took part in the consideration of the Justice and Security Act 2013, although he did not make then a number of the points that he has made this afternoon. However, we need to be very careful to ensure that scrutiny does not seek to cut across into direct, ongoing operational activity. I am quite sure that, given the robustness of the new powers that the ISC itself will hold, that consideration is very much in the forefront of the minds of the Committee members.

Sir Malcolm Rifkind: In response to the perfectly reasonable issue raised by the hon. Member for Cambridge (Dr Huppert), I must say that this point was seized on by the ISC itself. We 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.

Finally, as a reminder of the quality of rhetoric that tends to prevail when issues are not subjected to proper scrutiny:

Mr Adam Holloway (Gravesham) (Con): If in the last few weeks, we had lost a city to nuclear terrorism or there had been a gigantic mass casualty, I wonder whether the hon. Gentleman’s constituents would see Edward Snowden as a trendy, cool whistleblower or as a traitor.

#Miranda: some additional notes on reliability, legality and security

The past few days have turned up some articles that shed further light on the subject of David Miranda’s detention (which I have previously blogged on here and here).

The reliability of Oliver Robbins

Ryan Chittum, a writer for the Columbia Journalism Review, was cited in Oliver Robbins’ witness statement. In another piece for CJR, Chittum takes issue with the way his writing was used by Robbins and demonstrates how selective quoting meant that the original sense of his piece was lost:

Here’s Robbins:

In an article published on the same day by the Columbia Journalism Review (“Guardian bombshells in an escalating battle against journalism”) Ryan Chittum wrote that the claimant “was serving as a human passenger pigeon, shuttling encrypted files on USB drives between filmmaker Laura Poitras and Greenwald”.

And here’s what I actually wrote:

Miranda was serving as a human passenger pigeon, shuttling encrypted files on USB drives between filmmaker Laura Poitras and Greenwald because, as the whole world now knows, the Internet is fully bugged by the US and UK governments.

Chittum’s conclusion on the reliability of Oliver Robbins’ statement is worth noting:

If it were just a clipped quote, there wouldn’t be much to protest here. But that kind of thing raises questions about what else in Robbins’s testimony isn’t all there. It turns out that Robbins uses selective quotes, specious reasoning, questionable numbers, and flat-out disingenuous claims to make his case that journalists merely possessing secrets was a grave danger to the United Kingdom.

UN Special Rapporteurs question the legality of Miranda’s detention

The Guardian reports that two UN Special Rapporteurs, Frank La Rue (who holds the UN’s free expression brief) and Ben Emmerson (human rights and counter-terrorism) have written to David Cameron to request further information on the grounds for David Miranda’s detention under Schedule 7 powers which, as Ben Emmerson notes, are currently the subject of challenge in the European Court of Human Rights.

This follows a similar move from the Council of Europe, whose Secretary General Thorbjorn Jagland wrote to Home Secretary Theresa May a few days after David Miranda was detained, questioning whether UK actions might have a “chilling effect” on journalists’ freedom of expression, as guaranteed in Article 10 of the European Convention on Human Rights,

TrueCrypt

One of the more important practical conclusions to be drawn from my analysis of the UK Government’s witness statements in Home Office v Miranda, one I maybe should have drawn out more clearly, is that – as far as we can tell – encryption works. Despite the presumably rather large resources UK authorities have dedicated to this problem, they have only been able to decrypt, and read the contents of, the encrypted file they had the password for.

Related to this, and prompted by another series of Washington Post articles sourced by Edward Snowden, Bruce Schneier wrote a very interesting article for Wired this week on what the NSA (probably) can and can’t do.

So learning to use TrueCrypt is a worthwhile use of your time. For those wondering where to start, the tutorial on the TrueCrypt website tries to ensure that you understand the process before taking any major steps. Alternatively, attending a CryptoParty – like this one proposed for Mozfest in London next month – may be useful if you want to discuss the process with someone face to face. Journalists working with extraordinarily sensitive data may want to bear this in mind too.

Update (6/9)

If you’re wondering where yesterday’s Snowden stories in the Guardian, New York Times and ProPublica leave my statements above, this post will explain more.

Update II (7/9)

Glenn Greenwald discussed David Miranda’s detention and what the UK Government had to say about it on yesterday’s edition of Democracy Now. Here’s what Glenn said regarding the UK witness statements:

He hasn’t gotten any of his belongings back. And one of the things that happened is that the U.K. government just outright lied about what took place that day. They claimed he was carrying a password that allowed them access to 58,000 classified documents. He was not carrying any password that allowed them access to any documents. They actually filed an affidavit the same day they made that claim, saying—asking the court to let them continue to keep his belongings on the ground that all of the material he was carrying was heavily encrypted, that they couldn’t break the encryption, and they only got access to 75 of the documents that he was carrying, most of which are probably ones related to his school work and personal use. But, of course, media outlet has just uncritically repeated what the U.K. government had said, as though it were true. It wasn’t true; it was a pack of lies. But even if it were true, the idea that you’re going to detain somebody under a terrorism law who you think is working with journalists is incredibly menacing, as menacing as anything the U.K. government denounces when other countries do it.

Thanks to those in the comments here and on twitter who alerted me to this interview.

Quotes of the day

The fact is that a lot of the arguments over this could give succour to the [Assad] regime.

Craig Oliver, David Cameron’s Director of Communications, via ITV, before tonight’s vote

It is very clear tonight that, while the House has not passed a motion, it is clear to me that the British parliament, reflecting the views of the British people, does not want to see British military action. I get that and the government will act accordingly.

David Cameron’s reaction to the vote, confirming that he would not use the royal prerogative and take action against Parliament’s wishes

One senior Whitehall figure talked about how the UK had “handed back its deputy sheriff badge” to the United States and would pay a heavy price in esteem and cooperation in the future with the US.

via Channel 4

The abrupt halt in British momentum towards military action left the diplomatic choreography in chaos and US officials “livid” with the British, according to Western diplomatic sources at the United Nations in New York.

via Business Insider

What happened in the House of Commons tonight was significant. It is not often that I feel that our Parliamentary system does much to provide a check on executive powers and adequately represent public feeling, but this evening – in voting against the Government’s motion on military action in Syria – it has done so.

It is a rare enough event for a British Prime Minister to lose a three-line-whipped Parliamentary vote – in theory, it’s an event that can bring down a government – but to lose a vote on an issue of foreign policy is almost unprecedented.

There will be a great deal of comment in the coming week about what this vote means, but a few things are clear now. First, and most obviously, it is clear that the Afghanistan and especially Iraq Wars have had a significant and lasting effect on our politics. Opposition to military action is much more widespread than it used to be – in fact, that much was already evident in opinion polling on UK action in Libya.

More than that, though, there is a widespread scepticism about official cases for war, intelligence dossiers, improvised legal arguments… in short, all the official paraphernalia introduced by Blair to bolster public support for wars of dubious legality.  What we’re seeing is a tearing away of the mystique of the state and the magical thinking of “national security” – and that is to be welcomed. It’s also a useful reminder that, despite lukewarm response to the Snowden revelations about GCHQ’s industrial-scale surveillance, things are changing in the UK. In at least some respects, people are more sceptical these days.

Secondly, tonight’s vote has constitutional significance. Parliament voted against the executive’s plans for the use of force and Cameron has agreed that “the government will act accordingly” – that is, he has agreed that prerogative powers will not be used to initiate military action regardless of what Parliament thinks. It is now inconceivable that, should a situation like this arise again, Parliamentary approval would not be sought. (One caveat: it’s not entirely clear that British non-involvement in military action against Syria extends to the non-involvement of British military bases abroad. It may be significant that tonight Deputy PM Nick Clegg did not rule out US use of the UK’s base in Cyprus).  Still, in the haphazard and inadequate way the British state develops, this counts as a constitutional moment of some significance. Remarkably, it’s actually a move in the right direction.

Finally, tonight’s vote marks a divergence between the foreign policy of the United States and the usual determination of the UK to entertain it at all costs. While it is not clear whether the UK’s withdrawal from action in Syria will make much difference to Obama’s plans (the New York Times and the London Times have differing takes on this), the absence of one of the regular former imperial fig leaves for US unilateralism can’t help but make the latter seem more exposed. Given that so much of the Whitehall conception of the UK’s “national interest” seems to rely on being some kind of dodgy subcontractor for the US, it’s really extraordinary that this has happened. It would be nice to be able to think of this as the start of something bigger… but I’ll try to keep those hopes buttoned down for now.

Update (30/8)

The Parliamentary vote did, in fact, make a great deal of difference to Obama’s plans.