Effective oversight of the global surveillance network requires transparency and trust.
I watched the planes hit the twin towers in September 2001 on a television imported into a meeting of the International Commission of Jurists.
The assembled lawyers were in no doubt about the significance of this outrage – as terrorism and a trigger to repression. Those from Russia, Pakistan and South Africa were particularly acute as to the likely consequences. Informed though the audience was, no one predicted the subsequent invasion of Iraq or the wholesale bugging of the internet.
Both these oversights were forgivable. The specious case for the Iraq war diminishes by the day. The reputations of its apologists will not wear well. And the internet was beyond its infancy but not yet fully formed. No one foresaw how important it was going to be both as a means of communication and, thereby, as a potential source for counter-terrorism agencies.
If you get the chance, see the Laura Poitras film Citizenfour. It is the story of Edward Snowden and his revelation of the total surveillance to which we are all subject. As the trailer puts it, ‘every border you cross, every purchase you make, every call you dial… is in the hands of a system whose reach is unlimited but whose safeguards are not’. It is absolutely apparent in the film that the UK is up to its neck in the US-led global surveillance network. For example, GCHQ’s Tempora project involves processing data taken from interceptors on the 200 fibre optic cables that cross the Atlantic. It generates unimaginable amounts of information – 10 gigabytes a second.
A sorry line of home secretaries from Jack Straw to Theresa May have asserted (though not specifically admitted) that Tempora is, like all of GCHQ’s work, legal. Unsurprisingly, the Investigatory Powers Tribunal (IPT) has recently upheld this – at least in part. After all, the IPT is not renown for its trenchant scrutiny. Its physical location within the Home Office somewhat detracts from justice being seen to be done.
In 2013, Lord Dyson was sufficiently unimpressed to say: ‘There is no guarantee that the procedures adopted by the IPT in any particular case will satisfy the common law requirements of natural justice.’ The Home Affairs Committee has now declared, more broadly, that the Regulation of Investigatory Powers Act 2000 (RIPA), which established the IPT as a supervisor, is ‘not fit for purpose’. This is particularly the case as section 94 of the Telecommunications Act 1984 gives extensive powers to the secretary of state to take action ‘in the interests of national security or relations with the government of any country or territory outside the United Kingdom’.
This lies outside RIPA and, as the committee noted, ‘there is no public disclosure of how this is used and none of our witnesses has been aware of anyone who considers it their role to scrutinise it or have any oversight powers’.
The security of citizens as a first duty of a state is an idea that goes back to Aristotle. Clearly, there are threats of international terrorism, and all but the most intransigent devotee of freedom must accept that the state should have powers of invasive surveillance where required, to quote the unfairly maligned European Convention on Human Rights, ‘in the interests of national security’.
The difficulties are twofold: trust and transparency. On the first, we face the long-term consequences of the ‘sexing up’ or, indeed, complete manufacturing of the case for the Iraq invasion and the revelations of such widespread bugging that even Angela Merkel did not escape. We also live in the aftermath of systemic political hype. If the Labour government had had its way, we would be living with 90-day imprisonment without trial or charge. The case that was put so overwhelmingly by Tony Blair and his ministers evaporated like the dew in the morning sunlight. The judgement of ministers on what is to be done is manifestly fallible.
There are three current inquiries into surveillance, conducted by the Intelligence and Security Committee of parliamentarians: David Anderson QC, the independent reviewer of terrorism (watch this one – he is a heavy hitter); and an Independent Surveillance Review established by Nick Clegg and carried out by the Royal United Services Institute (unpredictable).
Some principles are, however, clear. There must be transparency. Some communication must remain confidential except in the most overwhelming of cases (unless perhaps judicially authorised). For example, clients must be able to have confidentiality in communication with lawyers. Above all, there must be effective oversight.
And, finally, since everyone who cares to watch Citizenfour knows about intelligence capabilities in some detail, perhaps we could also do away with the absurd self-denying ordinance against the use of telephone intercept evidence in section 17 of RIPA.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice