Extraordinary Popular Delusions

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Category: WikiLeaks

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.

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Of names and pronouns

Chelsea Manning

Chelsea Manning’s contribution to our collective moral development was immense even before her announcement of this morning. Notwithstanding that some of the reaction to Chelsea’s coming out was so grotesque that even Louise Mensch felt moved to object, I have a feeling that what happened this morning will be remembered as a watershed moment.

Chelsea is beginning a 35 year term at Fort Leavenworth in Kansas, in a facility that does not offer hormone therapy  – but that may change as a result of Chelsea’s visibility or, failing that, the legal challenge her counsel has promised to launch. Chelsea is also beginning her sentence in a world where a large number of major media organisations do not feel able to respect a very straightforward and clearly expressed request about names and pronouns.

There’s no general rule that can be drawn about the creditable performances and omissions in the media. The Guardian has been good today, but then so has the Daily Mail. Interestingly, both the Washington Post and Politico felt compelled to explain in detail why they had decided not to respect Chelsea Manning’s clearly stated preference.

Just like the non-availability of hormone therapy in US military prisons – a circumstance out of step with developing norms outside that institution – the confusion that reigned today will not, I think, last for much longer. There are enough people who care about Chelsea Manning to ensure that eventually – and maybe not before too much longer – her wishes are respected. I fully expect that to happen and to change things for those with less of a public platform in years to come.

In the meantime, we have those Politico and WaPo pieces to consider. And I think they are worth considering, if only because we’ll be looking back at them in ten years time with absolute incredulity. By then, I think – I hope – they’ll be collectors’ items.

Update (24/8)

It’s already happening. NPR announced yesterday that they had changed their guidelines and will now be using Chelsea’s preferred name and pronoun.

On a slightly different note, Salon has just published a fascinating article comparing the reaction to Manning’s change of name to Muhammad Ali’s – turns out the New York Times were pretty slow to recognise that one too.

Update II (26/8)

This blog, by Lauren and Helen McNamara – on the former’s experience of being interviewed on this subject – outlines the challenges ahead very clearly.

Update III (27/8)

The New York Times has changed its tune.

A response to James Ball

In a piece for the Guardian’s Comment is Free published on Saturday 16th July, James Ball suggests that Bradley Manning’s arrest over a year ago can be primarily attributed to the inherent shortcomings of electronic methods of source protection – rather than, say, the duplicitous and highly unethical conduct of Adrian Lamo.

This is a point of view I have seen expressed before by some of James’ colleagues at the Guardian

and its implicit corollary is that only established media outlets can provide sufficient pastoral support to fully protect sources that have put themselves at great potential risk in order to reveal wrongdoing. If the chat logs are accurate – and of course, in the absence of the record of other side of the conversation, if there is one, we simply can’t say – then Bradley clearly felt the need to confide in someone and, equally clearly, chose the single worst person imaginable.

In this narrow sense, James Ball is quite correct: no amount of technologically-derived protection can guard the identity of someone who decides to send their facebook address to someone they are corresponding with, even if they do so over encrypted protocol. The point of such measures – as I understand them – is to limit the amount of information one reveals involuntarily about identity and location. Ultimately, the security of any information freely volunteered depends on the degree of trust one has in the person it is shared with: but this is true of any method of communication.

The point about the comment attributed to Julian Assange in the chat logs – that he was keen to know as little about his (alleged) sources as possible, to the extent that he would be prefer to be actively misdirected about their identity –  is that freely volunteered information should be as minimised to the same degree as involuntarily revealed information. If this can be achieved, it provides perfect deniability on the part of the publisher.  This is actually important and it is misleading to suggest that this does not provide a certain degree of security that the traditional news media model of source protection cannot. While knowing the identity of a source, getting to know them and establishing a relationship with them might lend itself to a greater degree of personal support, it does mean that the security of that source relies to a large degree on the ability of their confidant to protect them. History tells us that, unfortunately, this cannot always be relied upon.

It is not irrelevant to this discussion that Lamo – again, if the chatlogs are an accurate representation of a conversation that took place – assured Bradley Manning that their conversation would be covered by journalistic standards of source protection:

“I’m a journalist and a minister. You can pick either, and treat this as a confession or an interview (never to be published) & enjoy a modicum of legal protection.”

Adrian Lamo appears to have violated this promise without much compunction, but it is well to realise that actual  journalists, equipped with a sense of professional integrity and ethical awareness, can also come under immense pressure to compromise the assurances they give their own sources. In the US, New York Times reporter James Risen has been subpoenaed to testify at the trial of suspected whistleblower Jeffrey Sterling. Should Risen continue to protect his alleged source in a courtroom (which he has shown every sign of doing) then he is risking a term in prison. This is a great testament to James Risen’s personal and professional integrity, but it does also show that traditional models of source protection rely on an enormous degree of trust. It also indicates that these relationships are made more vulnerable by traditional journalists having to operate in a national context, which is less of a problem for an organisation like WikiLeaks.

Finally, while it may long predate James Ball (and even David Leigh’s!) time at the Guardian, it is probably worth noting that the paper did not withstand political pressure to compromise a source back in 1983. Sarah Tisdall was a junior clerk at the Foreign Office who anonymously sent the Guardian a set of photocopied documents about the presence of US nuclear weapons in the UK. The Guardian, following a court order, handed those documents over to the Government, allowing Tisdall to be identified and prosecuted under the Official Secrets Act.

In conclusion, those who would release information of critical importance at great potential risk to themselves face a difficult dilemma: to decide to trust in true anonymity – with all the personal resilience that involves – or to have their hands held by someone who might ultimately have the power to slip the handcuffs over them.  Should the Manning/Lamo chatlogs be an accurate reflection of what Bradley was feeling last May, then it is clear he needed someone trustworthy to reach out to. Nevertheless, given the extraordinary pressure that has been brought to bear on Bradley himself over the past year, the continuing US investigations into those who would support him and the treatment the case has received in the mainstream media, I am far from persuaded that that person should have been a journalist.

WikiLeaks and the Espionage Act – how will the US press line up?

Considering that news broke this week of multiple subpoenas being issued by the federal Grand Jury in Virginia investigating WikiLeaks, it surprising how little attention this piece from the Wall Street Journal has attracted, not least as it went to press the day before the subpoenas (maybe just the latest round of them) were issued.  It deserves attention, not because it’s a particularly well-reasoned or thoughtful piece, but because it provides a clue as to how the US press might manage to support US legal action against WikiLeaks and Julian Assange, even though any such action could – in theory – be equally applicable to them:

The Espionage Act requires willfully endangering the U.S. It may seem unusual to consider intent in the context of how information flows, but without focusing on intent, the law would raise serious First Amendment issues. Many academics and media commentators—and perhaps overly cautious prosecutors—have missed the point that WikiLeaks is different from the New York Times. It’s the political motivation of Mr. Assange that qualifies him to be prosecuted. The publisher is not liable for its reporting.

We could, unfortunately, see more of this although from the legal documents themselves it looks as though other avenues are also being explored.  From the Washington Post:

“If the Justice Department concludes that a crime has been committed, it will twist itself like a pretzel to avoid using the Espionage Act, not only because it is old and vague but because it raises a number of First Amendment problems for prosecutors,” said Abbe D. Lowell, a Washington defense attorney who has handled leak cases.

U.S. officials would not comment on any subpoenas but indicated that prosecutors are likely to carefully weigh any decision to file charges under the Espionage Act, in part because of First Amendment concerns.

The April 21 letter, first reported by Salon.com, indicated that the individual served with the subpoena was to appear next month before a grand jury to answer questions concerning “possible violations of criminal law.” Possible violations include conspiracy to “knowingly [access] a computer without authorization” and to “knowingly [steal] any record or thing of value” belonging to the government.

“What they are trying to do is find proof that the WikiLeaks people were in a conspiracy with the leaker to get the information,” Lowell said. “If WikiLeaks is involved in the theft or improper access to the information, that’s not protected under the First Amendment.