The announcement today that Sir John Scarlett is retiring as 'C', the head of the Secret Intelligence Service (SIS or MI6), is extremely interesting -- not least because the man who will replace him, Sir John Sawers (52) will be the first 'C' to come from outside the Service since 1968 when (Sir) John Rennie, a deputy under-secretary in the Foreign Office, took over from Sir Dick White.
However, he is not a complete outsider as far as SIS is concerned -- he was recruited into it in 1977 but, according to the government, left the service in the 1980s to become a diplomat and it was as a diplomat that he made his career. His past posts, including Pretoria, Washington and Cairo (where he was appointed ambassador in 2001), and (according to Michael Evans in 'The Times') his particular interest in Iranian nuclear plans, give him the very best qualifications for his new job as 'C'.
The last 8 'C's (Scarlett, Dearlove, Spedding, McColl, Curwen, Figures, Franks and Oldfield) all came directly from within the ranks of SIS. Many observers believed that it proved numerous governments of the day regarded SIS as an institution which was sufficiently mature to generate its own head. One in whose internal integrity the public could trust.
An outside appointment would have been regarded as an indication that there were issues of 'no confidence' within SIS which required sorting by an outsider, not bound by internal loyalties or feuding. It seems fair to assume that the government has today wanted to be seen giving SIS a brisk shake-up. Appointing Sir John Sawyers as the new 'C' will be widely regarded as a fresh start for SIS.
Why might this have been thought necessary?
One phrase that springs to mind is 'public trust'. Rightly or wrongly (we would argue almost certainly wrongly), there is a trust deficit in respect of our secret agencies, particularly as regards SIS.
On the BUCSIS Blog, Lord Carlile QC has pointed out that Britain's Intelligence agencies do not enjoy as much public trust as one might hope; he points a finger at the very WMD controversy (where SIS intelligence was the driver) with which Sir John Scarlett's name will always be associated, in part at any rate. There is no doubt that MI5's reputation is, deservedly, strong at present; it is equally certain that SIS did suffer from the failure to find WMD. It is one thing for a secret service to fail to find something that exists; it is a far worse failure to find something that doesn't exist.
At the same time, there has been no evidence that SIS 'invented' WMD intelligence and although mistakes were made, what we know today suggests they were made in good faith, just as Lord Hutton found. Intelligence services will always get things wrong. However, the WMD failure was a very serious one indeed, perhaps the most serious since the failure to predict Hitler's 1944 Ardennes Offensive.
It has sometimes been asked why Sir John Scarlett did not resign from government service after the Butler Review implied he had not always acted as well as he might have done. The answer supplied was frequently that to get rid of the person in charge is not 'the British way'.
Today, it seems hard to think that it would not have been in the public interest and, above all, in the interests of the SIS if there had been some resignations, starting with the then prime minister Tony Blair. But all this is now water under the bridge.
The prime minister, Gordon Brown, has stated that there was no connection between Sir John's retirement and the Iraq Inquiry which he announced yesterday. Sir John is 60 years old and was appointed in 2004. His departure does not appear to be premature. However, unusually, it has been said that he will continue to work within the UK Intelligence Community although where has not been spelled out. Could he become the head of the Serious Organised Crime Agency, SOCA, whose current head, Sir Stephen Lander (the former director general of MI5) is about to step down?
That said, Sir John will face yet more difficult times as the Inquiry gets underway. He was Chairman of the Joint Intelligence Committee (the JIC) at the time of the 2002 Weapons of Mass Destruction Dossier. So will his predecessor as 'C', Sir Richard Dearlove, and Sir David Omand, now a professor at Kings College London, but at the time of the attack on Iraq, Tony Blair's Security and Intelligence Coordinator. These three men lie at the centre of the debate about the trust we should have in our secret agencies.
Sir John Chilcot, a former permanent secretary at the Northern Ireland office, will chair the Inquiry. He has acted as staff counsellor to the secret services and, amongst other inquiries, has looked at the security of the Royal Family in 2000 (once again a matter of public interest). The details of the Inquiry will be fascinating. It will, for example, be revealing to see where Sir John's Inquiry will be located. Will it be within the Cabinet Office (the key place to be, according to Lord Butler, if one is to have the authority to get at the actual facts)? Or in a sub-prime site which the great and the good can avoid?
Sir John Chilcot is, of course, well acquainted with the world of intelligence-led policy and politics. He is a man of unimpeachable integrity. He will almost certainly find the idea of a secret Inquiry unpalatable. The two academics appointed to the Inquiry, Sir Martin Gilbert (the noted Churchill and Holocaust historian) and Sir Laurence Freedman (a colleague of Sir David Omand's at Kings College, London and author of a history of the Falklands campaign) will have to fight hard to win the public's confidence in this Inquiry which is, in a real sense, the sixth into the origins of the Iraq War but perhaps the first which will consider the failure to plan properly for the occupation of Iraq after Saddam's overthrow. Cynics will be forgiven that, once again, the 'establishment' is inquiring into itself and will, once again, avoid spelling out the truth in ways the public will be able to accept.
Neither Sir Martin nor Sir Laurence have taken a public stand, one way or the other, over the attack on Iraq and, as far as one can tell, neither of them have any research track record in this field.
There is one other important aspect to this matter. As was argued in 'The Open Side of Secrecy' in 2006, the Intelligence and Security Committee (which had two go's at the Iraq War) has failed to convince the public that our intelligence agencies can be trusted.
In happier times, the prime minister promised a thorough review of the UK's intelligence oversight machinery. We have heard not much about it since. Yet a new and better oversight committee is even more vital today than ever before. A strong committee with a team of investigators (the current ISC has none at all) is the best possible remedy for the lack of trust in our intelligence agencies. Yet another Inquiry into the Iraq War, one conducted in secret, for goodness sake, is unlikely to command public confidence, nor does it deserve to.
Sources:
http://www.timesonline.co.uk/tol/news/uk/article6511372.ece
http://news.bbc.co.uk/1/hi/uk/8102745.stm
http://www.number10.gov.uk/Page271
http://news.bbc.co.uk/1/hi/uk/793548.stm
http://www.guardian.co.uk/politics/2004/may/09/davidkelly.uk
Anthony Glees, Philip Davies and John Morrison The Open Side of Secrecy: Britain's Intelligence and Security Committee published by The Social Affairs Unit in 2006 ISBN 1-904863-16-7
Anthony Glees and Philip Davies Spinning The Spies: Intelligence, Open Government and the Hutton Inquiry published by The Social Affairs Unit in 2004 ISBN 1-904863-01-9
Tuesday, 16 June 2009
Terrorism and the British Legal System -- a futher twist -- 16 June 2009
The BBC has reported that Lord West, the Security Minister, has told the House of Lords that some of the control orders on some suspected terrorists may have to be lifted. This comes in response to a unanimous ruling by nine Law Lords that it was unfair that individuals should be kept 'in ignorance' of the case against them.
This decision, which at least one Law Lord (Lord Hoffmann) said he regretted, followed a ruling by the European Court of Human Rights (a Council of Europe and not a European Union institution). The ECHR rejected the notion that secret intelligence in such cases should always remain secret, apparently oblivious to the fact that unless secret intelligence is kept secret, its usefulness will be strongly curtailed in future, and those agents from whom it has been derived risk being killed.
One might be forgiven for thinking that the pull exerted by the European Court of Human Rights is now undermining Britain's capacity to counter terrorism effectively but also lawfully and proportionally. What's more, Britain faces a particuarly grave situation, not shared by many of the other European nations.
Ought our legislators to think more seriously now about how operations in the UK against terrorists can be both lawful and effective? The answer must be 'yes'. But lawfulness should not depend simply on the judgements of the ECHR, a body set up under very different circumstances a long time ago.
Ought secret intelligence in such cases to be kept secret? Again, the answer is 'yes', absolutely.
It seems hard to believe that those on control orders are wholly 'ignorant' of the charges against them. They may not know who who has supplied intelligence about them, when it was supplied, and why it was assessed as actionable. But as long as individuals or groups plot and operate in secret, we will need to secretly acquire their secrets. They will feel much safer if our security services are no longer able to do this. We, on the other hand, will be less secure as a result.
An interesting development in the War Crimes debate 15 June 2009
As followers of the BUCSIS Blog will know, BUCSIS takes a particular interest in what happens to those (who are not British citizens) properly suspected of war crimes (in areas outside the jurisdiction of UK courts) against people (who were or are not British citizens) when they come to the UK of their own free will. BUCSIS's Director believes the UK should not be a safe haven for those suspected of war crimes committed after 1945.
It is therefore of considerable interest that the Aegis Trust is reported today by the BBC as wanting new laws to allow British courts to prosecute war criminals seeking safe haven over here.
We will all benefit if Parliament listens carefully to what they have to say.
Source:
Sunday, 14 June 2009
Lord Carlile QC speaks at the BUCSIS-Bletchley Park Conference on 20 May 2009
Lord Carlile QC, the independent reviewer of terrorism legislation, was one of two keynote speakers at the BUCSIS-Bletchley Park Conference, held at Bletchley Park, on 20 May 2009 under the Chatham House Rule. In view of the importance of his comments and our wish that they should receive a wider readership, Lord Carlile has very kindly agreed that they might be published in full on our Blog and attributed to him; we are most grateful to him.
This is what he said:
'He had fulfilled his position for almost eight years and was concerned that intelligence collection and its use should be undertaken in a proper and civilised way. From his vantage point, it had to be stated that two parts of current counter-terrorism legislation were being over-used at present.
The first was Schedule 7 of the Terrorism Act 2000 which allowed the police to stop people at ports, and sometimes to detain them for a maximum of nine hours. Often this is done on intelligence, sometimes on the basis of behavioural analysis (a sophistication of what used to be called 'copper's nose'). This had led to innocent people being detained. Some Muslims in this country felt heavily discriminated against because of this.
The answer, he suggested, lay in gaining ever better intelligence and using it more effectively.
The second problem was Section 44 of the same Act. This allowed the police to stop and search individuals for terrorism material without suspicion of any specific offence. Whilst it was used for its purpose, namely to look for terrorist materials and articles, it was also being used for general policing purposes.
Individuals were thirty time more likely to be stopped by the Met than in other big cities. In Scotland, this section was rarely used apart from during the G8 summit.
In London, however, some 7,500-8,000 people were stopped each month which meant that during over five years there was a statistical chance that everyone would be stopped. 60 per cent of those stopped described themselves as 'White British'.
Yet no one had been prosecuted for a terrorism offence as a result of section 44. It followed that counter-terrorism legislation was being used for purposes other than those intended. This must be reversed if it was to retain public confidence.
The fact was that the British public did not naturally trust their politicians or security services.
The 'WMD Dossier' had certainly affected trust in British intelligence even though it had nothing to do with terrorism.
For this reason there was a requirement to have top quality intelligence. GCHQ [which grew out of Bletchley Park] meets this requirement. It isn't in itself an intelligence service but its work feeds into MI5 and MI6 and it is right that it should do its work effectively and within the Human Rights context.
Its recent public statement about its activities was to be welcomed. Indeed, the message should go out now that 'you should tell us as much as you think you can'.
In respect of data trawling or mining, it was plain that in controlled circumstances it was needed to enable the authorities to follow the travel plans of individuals. But with broader communications data there was a question about what should be done with it, and where and how it should be retained.
In short, he concluded, the themes of this conference were much needed. How the circle might be squared was a question well worth asking.
This is what he said:
'He had fulfilled his position for almost eight years and was concerned that intelligence collection and its use should be undertaken in a proper and civilised way. From his vantage point, it had to be stated that two parts of current counter-terrorism legislation were being over-used at present.
The first was Schedule 7 of the Terrorism Act 2000 which allowed the police to stop people at ports, and sometimes to detain them for a maximum of nine hours. Often this is done on intelligence, sometimes on the basis of behavioural analysis (a sophistication of what used to be called 'copper's nose'). This had led to innocent people being detained. Some Muslims in this country felt heavily discriminated against because of this.
The answer, he suggested, lay in gaining ever better intelligence and using it more effectively.
The second problem was Section 44 of the same Act. This allowed the police to stop and search individuals for terrorism material without suspicion of any specific offence. Whilst it was used for its purpose, namely to look for terrorist materials and articles, it was also being used for general policing purposes.
Individuals were thirty time more likely to be stopped by the Met than in other big cities. In Scotland, this section was rarely used apart from during the G8 summit.
In London, however, some 7,500-8,000 people were stopped each month which meant that during over five years there was a statistical chance that everyone would be stopped. 60 per cent of those stopped described themselves as 'White British'.
Yet no one had been prosecuted for a terrorism offence as a result of section 44. It followed that counter-terrorism legislation was being used for purposes other than those intended. This must be reversed if it was to retain public confidence.
The fact was that the British public did not naturally trust their politicians or security services.
The 'WMD Dossier' had certainly affected trust in British intelligence even though it had nothing to do with terrorism.
For this reason there was a requirement to have top quality intelligence. GCHQ [which grew out of Bletchley Park] meets this requirement. It isn't in itself an intelligence service but its work feeds into MI5 and MI6 and it is right that it should do its work effectively and within the Human Rights context.
Its recent public statement about its activities was to be welcomed. Indeed, the message should go out now that 'you should tell us as much as you think you can'.
In respect of data trawling or mining, it was plain that in controlled circumstances it was needed to enable the authorities to follow the travel plans of individuals. But with broader communications data there was a question about what should be done with it, and where and how it should be retained.
In short, he concluded, the themes of this conference were much needed. How the circle might be squared was a question well worth asking.
Friday, 12 June 2009
Terrorism and the British Legal System
The decision by the European Union Court of Justice (not to be confused with the Council of Europe's Court of Human Rights), reported in The Times today, 12 June 2009, overturning an order freezing the assets of Abu Qatada, the radical Islamist cleric, will add to the confusion which surrounds British counter-terrorism laws.
It follows the decision two days ago by Britain's Law Lords that that suspects held under control orders must be given details of the allegations against them.
Abu Qatada, currently held in a maximum security prison awaiting deportation to the USA, is permitted to gain access to all his accounts and any other assests within a little over two months unless the British government decides to appeal the decision.
Students of security policy and intelligence-led activity will struggle to understand why governments find it hard to deal with terrorism within conditions of lawfulness. There has been a fairly comprehensive failure on the part of politicians and lawyers to set out the facts; frequently the running has been made by lawyers (solicitors and barristers) acting for defendants.
This highlights the need for the government's legal officers to do far more to explain current problems and for academics to undertake cross-disciplinary studies in terrorism and law as well as some empirical analyses of lawyers' political positions.
No one can doubt that the legal profession has not just become more politically active in recent times but seems increasingly to support radical and oppositional positions in respect of Britain's raft of counter-terrorism laws.
With many MPs currently hors de combat because of their own problems understanding democracy's rules, the time for some major public statements and explanations is now overdue.
Sources:
http://business.timesonline.co.uk/tol/business/law/article6479177.ece
http://business.timesonline.co.uk/tol/business/law/reports/article6472457.ece
http://curia.europa.eu/jcms/jcms/Jo1_6308/ecran-d-accueil
http://www.echr.coe.int/echr/Homepage_EN
It follows the decision two days ago by Britain's Law Lords that that suspects held under control orders must be given details of the allegations against them.
Abu Qatada, currently held in a maximum security prison awaiting deportation to the USA, is permitted to gain access to all his accounts and any other assests within a little over two months unless the British government decides to appeal the decision.
Students of security policy and intelligence-led activity will struggle to understand why governments find it hard to deal with terrorism within conditions of lawfulness. There has been a fairly comprehensive failure on the part of politicians and lawyers to set out the facts; frequently the running has been made by lawyers (solicitors and barristers) acting for defendants.
This highlights the need for the government's legal officers to do far more to explain current problems and for academics to undertake cross-disciplinary studies in terrorism and law as well as some empirical analyses of lawyers' political positions.
No one can doubt that the legal profession has not just become more politically active in recent times but seems increasingly to support radical and oppositional positions in respect of Britain's raft of counter-terrorism laws.
With many MPs currently hors de combat because of their own problems understanding democracy's rules, the time for some major public statements and explanations is now overdue.
Sources:
http://business.timesonline.co.uk/tol/business/law/article6479177.ece
http://business.timesonline.co.uk/tol/business/law/reports/article6472457.ece
http://curia.europa.eu/jcms/jcms/Jo1_6308/ecran-d-accueil
http://www.echr.coe.int/echr/Homepage_EN
War Criminals and the British Legal System
Students of security policy will have been following the discussion on the BUCSIS Blog as to how the law can, and cannot, be used to bring to justice those guilty of war crimes.
This issue matters to all students of public policy in any democratic state because the ultimate purpose of security policy is to make liberal democracy safe by bringing to justice those who use the powers, weapons and technical resources of the modern state to annihilate real or imagined opponents under the cover of war.
This is what countless genocidal dictators have done in the 20th century, Hitler, Stalin, Mao Zedong and Pol Pot to name but a few.
Before 1991 had any of them or any of their murderous helpers come to Britain, they could not have been put on trial because their crimes were not committed against British citizens, not committed in Britain -- and they themselves were not British.
All liberal democracies are made more secure if none of them harbour war criminals.
After the passing of the War Crimes Act in 1991, many people believed that Britain had ceased to be a safe haven for war criminals.
This belief was confirmed by the fact that on 18 July 2005 an Afghani 'warlord' by the name of Faryadi Sarwar Zardad was convicted by a British court for what were clearly war crimes, including the abduction, imprisonment and torture of his victims. Zardad had been unwise enough to regard London as a safe haven.
We were told, at the time, that this conviction was secured under the 1991 War Crimes Act (and although this may have been an error, Zardad was clearly convicted under some other law which had the same effect). The 'Independent' reported that he was the 'first foreign national to be convicted for torture offences committed abroad'. Indeed, the Director of Public Prosecutions at the time (Sir Ken Macdonald) commented: 'Zardad's actions and those of his men were horrific. Through our witnesses we were able to tell the jury of his reign of terror'. The DPP added: 'By securing this conviction, we have shown there is no hiding place for torturers and hostage takers'.
However, on 8 April 2009, the High Court on 8 April 2009 allowed four Rwandans accused of appalling acts of genocide to walk free in London because, the Court said, they could not be extradited to Rwanda nor could they be tried in Britain.
On 18 May 2009 three leading lawyers (Lord Falconer, Sir Ken Macdonald and Baroness Kennedy) wrote to The Times about this. They were plainly perplexed at the above decision and argued that there should be a legal remedy to this problem.
But they did not explain why existing legislation was deficient. Since their letter had no follow-up we still lack a public explanation.
Sir Ken Macdonald has responded to the BUCSIS Forum discussion by pointing out that the War Crimes Act did not establish a more general principle and applied only to the (extensive) territories controlled by the Third Reich during the Second World War.
He did not explain, and has not explained, how Faryadi Sarwar Zardad who was self-evidently a war criminal had been successfully convicted.
What the position today seems to be is that it is not possible to try in British courts those responsible for war crimes committed outside the context of the Second World War and before 2003. The Rwandan massacres which led to the murder of some 1 million people in 1994 represent a gap in lawfulness.
This ought to be seen as a totally unacceptable state of affairs. However, it might make good sense if our lawyers were to explain precisely what the current legal position is and how it might best be remedied. They are failing to do so at the moment – at any rate in public.
Whether the issue at stake is how we should deal with suspected war criminals or suspected terrorists under control orders, the laws which seek to make our democratic way of life baffle many well-informed citizens who, taken together, create public opinion.
Without their support, however, it will be hard to convince our politicians there is a real need to change the law.
Sources: http://www.independent.co.uk/news/uk/crime/british-court-makes-history-with-conviction-of-afghan-warlord-499344.htmlhttp://news.bbc.co.uk/go/em/fr/-/1/hi/uk/4693239.stm >
http://news.bbc.co.uk/1/hi/world/africa/1288230.stm
http://www.opsi.gov.uk/acts/acts1991.
This issue matters to all students of public policy in any democratic state because the ultimate purpose of security policy is to make liberal democracy safe by bringing to justice those who use the powers, weapons and technical resources of the modern state to annihilate real or imagined opponents under the cover of war.
This is what countless genocidal dictators have done in the 20th century, Hitler, Stalin, Mao Zedong and Pol Pot to name but a few.
Before 1991 had any of them or any of their murderous helpers come to Britain, they could not have been put on trial because their crimes were not committed against British citizens, not committed in Britain -- and they themselves were not British.
All liberal democracies are made more secure if none of them harbour war criminals.
After the passing of the War Crimes Act in 1991, many people believed that Britain had ceased to be a safe haven for war criminals.
This belief was confirmed by the fact that on 18 July 2005 an Afghani 'warlord' by the name of Faryadi Sarwar Zardad was convicted by a British court for what were clearly war crimes, including the abduction, imprisonment and torture of his victims. Zardad had been unwise enough to regard London as a safe haven.
We were told, at the time, that this conviction was secured under the 1991 War Crimes Act (and although this may have been an error, Zardad was clearly convicted under some other law which had the same effect). The 'Independent' reported that he was the 'first foreign national to be convicted for torture offences committed abroad'. Indeed, the Director of Public Prosecutions at the time (Sir Ken Macdonald) commented: 'Zardad's actions and those of his men were horrific. Through our witnesses we were able to tell the jury of his reign of terror'. The DPP added: 'By securing this conviction, we have shown there is no hiding place for torturers and hostage takers'.
However, on 8 April 2009, the High Court on 8 April 2009 allowed four Rwandans accused of appalling acts of genocide to walk free in London because, the Court said, they could not be extradited to Rwanda nor could they be tried in Britain.
On 18 May 2009 three leading lawyers (Lord Falconer, Sir Ken Macdonald and Baroness Kennedy) wrote to The Times about this. They were plainly perplexed at the above decision and argued that there should be a legal remedy to this problem.
But they did not explain why existing legislation was deficient. Since their letter had no follow-up we still lack a public explanation.
Sir Ken Macdonald has responded to the BUCSIS Forum discussion by pointing out that the War Crimes Act did not establish a more general principle and applied only to the (extensive) territories controlled by the Third Reich during the Second World War.
He did not explain, and has not explained, how Faryadi Sarwar Zardad who was self-evidently a war criminal had been successfully convicted.
What the position today seems to be is that it is not possible to try in British courts those responsible for war crimes committed outside the context of the Second World War and before 2003. The Rwandan massacres which led to the murder of some 1 million people in 1994 represent a gap in lawfulness.
This ought to be seen as a totally unacceptable state of affairs. However, it might make good sense if our lawyers were to explain precisely what the current legal position is and how it might best be remedied. They are failing to do so at the moment – at any rate in public.
Whether the issue at stake is how we should deal with suspected war criminals or suspected terrorists under control orders, the laws which seek to make our democratic way of life baffle many well-informed citizens who, taken together, create public opinion.
Without their support, however, it will be hard to convince our politicians there is a real need to change the law.
Sources: http://www.independent.co.uk/news/uk/crime/british-court-makes-history-with-conviction-of-afghan-warlord-499344.htmlhttp://news.bbc.co.uk/go/em/fr/-/1/hi/uk/4693239.stm >
http://news.bbc.co.uk/1/hi/world/africa/1288230.stm
http://www.opsi.gov.uk/acts/acts1991.
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