Career opportunities: intelligence services oversight

After much back-and-forth between the Parliament Home Affairs Committee and the Intelligence Services Commissioner, Sir Mark Waller, a little less than an hour was granted to explain whether the activities of British intelligence – MI-5, MI-6, SIS, but in this case, more specifically GCHQ – were appropriately kept in check. Little attention was given to the hearing; even less was awarded to the extremely tedious and tense context in which Sir Mark arrived at Westminster. This is not obscure and somewhat opaque British parliamentary procedure; it is relevant reflection of the difficulty to keep intelligence services, especially outsources to private companies such as GCHQ, under legislative review. On both sides of the pond, the extreme difficulty of bringing mass surveillance activities to review can only show the premises of a constitutional crisis. If Dianne Feinstein made an impassioned speech on the floor of the Senate calling for the CIA to stop spying on her, unleashing a circus of denial, double-speak, entitlement, and complete irresponsibility, the UK has managed to hit the brakes on the unfolding drama. But it wasn’t easy.

Keith Vaz, chairman of the Home Affairs Committee, MP for Leicester East (Labour)

Intelligence services oversight before Parliament: “inappropriate”

Before diving into the hearing itself, the incredible quotes it brought us, and the tenacity of the members of the Home Affairs Committee, let’s remember that initially, Sir Mark did not want to testify. He repeatedly turned down the polite invitation to come to Westminster and discuss his position – the Intelligence Services Commissioner (ISC) has an oversight mission, which is limited to ensuring GCHQ and MI-5 do not overreach the powers granted to them by Parliament, are not in breach of UK law, and act in proportion to a perceived or identified threat. The purpose of the hearing was to determine whether the ISC had detected any wrongdoing on the part of GCHQ, especially in the wake of the Snowden leaks. Sir Mark, at the end of February, sent a letter to Keith Vaz, the Chairman of the Committee, to explain he believed it was “inappropriate” for him to speak before Members of Parliament. Keith Vaz, who is starting to schedule a certain number of hearings on the issues arising from UK counter-terrorism laws, was unamused:

The Intelligence Services Commissioner plays a vital role in keeping under review the way in which the Home Secretary and the intelligence services use the powers which they have been granted by Parliament. This function was conferred on the  Commissioner by Act of Parliament, and Sir Mark must be accountable to Parliament for the way in which he carries it out.

Indeed, he must. In a healthy democracy, where the separation of powers is well enshrined and never contested, powers granted by Parliament to an executive power should be under the scrutiny of said Parliament. There is no escaping the decision made by Keith Vaz today, who several times made it clear that the political climate and legal implications of GCHQ ran amok called for extraordinary measures. A couple of weeks before the clash between the ISC and Parliament, Ed Milliband, leader of the Labour party, had called for the complete overhaul of intelligence services in the UK, referring to GCHQ as an “unaccountable” power:

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 (…) The issue of oversight of the intelligence services and the way they work is definitely part of this agenda. My commitment is that we do need to look at these issues, they are important.

But a mere week later, Sir Mark sent the following to Vaz:

I am afraid I remain of the view that it would not be appropriate for me to do so. As my office informed you previously my function is limited to oversight of the intelligence services which is within the remit of the Intelligence and Security Committee (ISC) who as was explained have broadened their inquiry into privacy and security to consider the “appropriate balance between our individual right to privacy and our collective right to security”. In any oral evidence before your committee I could not go further than anything which is in my open report. The position is quite different before the ISC who are able to receive a wide range of sensitive material. The fair and appropriate place for questions to be put to me is before that committee.

The reasons Sir Mark outlines as a motive not to testify before the Home Affairs Committee are the exact same ones his presence was actually kindly, and in accordance with protocol, offered.

As a result, Vaz summoned Sir Mark. This is an unprecedented event in the history of this parliament. Vaz said the Committee was “disappointed” with Sir Mark, but believed his presence was more than necessary. Turns out, summoning the Intelligence Services Commissioner was also directly proportionate to the perceived threat that GCHQ poses to British civil liberties.

Sir Mark Waller, ISC, yesterday at the hearing. a former Lord Justice of Appeals, he retired from the bench in 2010.

The hearing

Set on Tuesday afternoon, March 18, the hearing was set in three parts: the testimony by Sir Mark, that of Nick Pickles and Rt Hon David Davis MP, from Big Brother Watch; and Brokenshire, the Minister for Immigration. When Sir Mark sat down, he appeared defensive, obviously there against his own free will. Vaz, respectful but extremely acute in his commentary, let every member express themselves on the issues that were dear to them. A broad political spectrum was represented; yet the concern was universal. Aware of the extent of what Snowden revealed, and the constant stream of newspaper coverage on his infamous files, how can the UK pretend there is such a thing as effective and efficient oversight? And if so, how could it be demonstrated?

The difficulty resided in not making this hearing an indictment of Sir Mark, whose testimony revealed but one thing – that the system is not adapted to the powers granted to intelligence; that he does not benefit from the necessary resources; and that he might, in effect, be complacent as to the activities of GCHQ. Sir Mark brought figures – in 2013, he was handed about 1,600 warrants to review. His job description, he stressed, was not to green light or obstruct: he is reviewing the necessity and proportionality of the action taken. Out of those 1,600 warrants on his desk, only 200 went effectively through his hands and were subjected to actual oversight. Basic math: that’s approximatively 6%. Vaz, firing questions rapidly, calling Sir Mark on any possible inconsistency, was not to be toyed with: several times, the ISC said the criticism thrown at him was “unfair”. In his view, the intrusion of privacy – as far as he could review – had been justified. Things took a rapid turn to the surreal.

Sir Mark: I went down to GCHQ, I went there…

Vaz: How many times did you go?

Sir Mark: Six times in three years.

Vaz: And that’s enough, twice a year?

Sir Mark: Twice a year, yes.

Vaz: And who did you see, at GCHQ?

Sir Mark: I saw, erm, I saw, he – I saw the number two of GCHQ.

Vaz: And what did you say?

Sir Mark: We had a conversation, and…

Vaz: And you were satisified?

Sir Mark: I was satisfied, yes.

Vaz: Is that how you satisfy yourself, by having a discussion with GCHQ? That was enough? You sat around a table, had a chat, and there was no circumventing UK law?

The issue of holding GCHQ accountable was brought forward on two points: one, whether there was an actual mechanism that made GCHQ’s “cases” – their justification for privacy breaches – themselves submitted to scrutiny, or whether the arguments brought forward by the agency could be relied upon to be truthful and trustworthy. Second, the relationship Sir Mark himself entertained with the heads and officials at the intelligence services, a question brought forward by Blackwood, who expressed at concern at the cordial, maybe even friendly tone he seemed to have with his colleagues at Whitehall. Maybe some distance would be necessary to properly appreciate the work of intelligence services and whether their work is, in its entirety, brought to review, in a manner that is compelling and independent.

Blackwood: How would you describe the relationship you have with the services you oversee?

Sir Mark: I know them quite well, I do.

Blackwood: Would you say you have sufficient authority?

Sir Mark: Well, yes, I do.

Blackwood: With the number you gave us, the little number of cases you actually oversee, compared to the wide range of services?

Sir Mark: You know, they have to take into consideration the fact that, for every case they submit, there is the possibility of a judge looking at it.

Which, for the number of cases that Sir Mark is effectively looking at, hardly constitutes a deterrent.

GCHQ headquarters in Cheltenham, England, where you can apparently go and have a chat (if you’re Sir Mark).

The question of oversight is not a simple judicial one. It boils down to the very concept of trust, that must exist in-between state actors, but also, as members of parliament, must reside between the Committee and the executive, so members of the public feel reassured that there is a working system of checks and balances that ensures them protection of the law is always present. Winnick, as for himself, could not hide his disdain and contempt for GCHQ; he was rocked by the Snowden leaks, as many members of Parliament were, and believes the culture of secrecy well extends to members of government – and that, for every case that is officially submitted to Sir Mark, many may not even be sent for review at all. Ellis himself was more direct:

Ellis: Do you look at specifically selected warrants, or do you receive a random number?

Sir Mark: You can look at them specifically if you want.

Ellis: How do you know you are looking at all the cases open by GCHQ?

Sir Mark: Ah, this is a question I get all the time.

Ellis: So what’s the answer?

Sir Mark: Listen… It is a big… Everyone knows what everyone else is doing at GCHQ… And if… if it could happen, it would be a huge conspiracy.

A conspiracy, by definition, is something that is hidden, that remains in the shadow, that has to be purely speculative due to partial or complete lack of information. Thanks to the Snowden  leaks, explained Winnick, we know those are no longer a conspiracy, but actual facts. Winnick, a senior member of the Committee, said he took the information released by the Guardian “very seriously”: “There was no investigation. There was no probe. You took their word. I took the Snowden report very seriously – there should be an investigation.” Ellis insisted at length on the respect he had for Sir Mark and his position; for the utmost necessity of an oversight commissioner for intelligence services; for the complexity of his task when he seems to be charged with the impossible. But the problem is, Snowden opened a door into the massive double tanker that is the intelligence services in the UK, and now the information will not stop coming out, one way or another. He raised more concerns: “We keep hearing reports of mass shredding at the Metropolitan Police, of documents disappearing, and we want to make sure you are not by-passed.” At this point in the hearing, it was hard for Sir Mark not to feel like the responsibility for GCHQ abuses rested on his shoulders, for overlooking the immensity of the futuristic plot of the NSA/GCHQ domestic and foreign intelligence capabilities. It seemed that, as he enunciated that the ominous Section 94 of the Telecommunications Act was not under his purview, that he simultaneously admitted his powers of oversight were in essence and in effect of extremely and dangerously limited scope.

Flynn then spoke up.

Flynn: We have been misinformed. We have been lied to – in Iraq, in  Afghanistan, and on the CIA rendition program. There is a record of this misinformation. You seem to be satisfied – but I, as a Member of Parliament, I have been lied to; mistakes, or complete lies. I think you have been complacent.

Sir Mark: It’s unfair.

Flynn: But who is supposed to inform us then? Who can we believe?

For all his faults in domestic policies, Ed Milliband however hit the nail on intelligence oversight – a system of accountability is the only way to restore a democratic balance in government, between powers granted by the executive in application of its power, and by the legislative in representation of the population’s need for security, safety and law enforcement. Any abuses must be held under strict scrutiny by the other two branches – legislative and judicial – so not only would the abuses be prosecuted, but the laws themselves could be modified or restricted in light of dysfunction. That the very clause making data surveillance possible is taken  away from the oversight of the ISC is, in itself, an abuse of power, a legal – but not lawful – means to ensure that the executive power is not entirely kept in check, and that some agencies will be left to keep running and functioning even if the government changes, modifies, or is somewhat suspended.  Flynn’s last question may seem a little naive, perhaps a little childish. But the concept of trust between those entrusted with representing the interests of the population and those with the power of protecting them is the only safeguard in a system that survives on friction and tension. Without oversight, and without the possibility for a Committee such as this one to access, hear, and question a man in the position of Sir Mark, the legislative and judicial branch are merely decorative in the fight against terrorism.

David Anderson QC, the Independent Reviewer of Terrorism Legislation in the UK, has followed the Sir Mark / Keith Vaz relation closely, and his commentary can only be taken in so the testimony brought forward by Sir Mark revealed the gripping, indeed, necessity to overhaul the ISC, its prerogatives, its powers, and most importantly, its staff. The ISC is created  by RIPA 2000, which Shadow Home Secretary Yvette Cooper denounced as being insufficient and not up to date on the recent and evolving challenges brought by digital privacy. RIPA was, in fact, written in 2000, at the same time of the very first introduction of the anti-terrorism act (ATCSA, also revised in 2001) and current oversight come from the Intelligence Services Act (ISA), dating back to… 1994.

Edward Snowden, NSA whistleblower, “in Putin’s Russia” according to Ellis.

Big Brother Watch, present in the second part of the hearing, reiterated the necessity to update, upgrade and adapt current oversight legislation to the actual capacities of GCHQ – capable of bulk data collection, metadata storage, extensive methods of developing and installing malware – that otherwise escape this obsolete system. It took several minutes and an extremely tense back-and-forth between Nick Prickles and Ellis to establish that the Snowden leaks were in the public interest; that they refused to see it any other way, and that they were, in fact, looking at provisions of the Human Rights Act to defend their position to fight against privacy intrusion (this provoked a little sneer from Ellis, which is unsurprising). If Rt Hon Davis MP seemed content of a recent meeting with Sen Feinstein, whose oversight powers he found “very robust”, both men were quick, concise, yet powerful by stating that none of the activities of GCHQ were in fact linked to deterring acts of terrorism or halting any ongoing plot. The justification for mass surveillance does not stand the test of oversight, they believe, and the UK would do well to transfer the debate on intelligence services into the more public sphere. And this conversation – to refer to Sir Mark and GCHQ, if there is to be a conversation around a table – between Big Brother Watch and the Committee revealed more than both sides probably expected.

Rt Hon Davis MP: Feinstein made the greatest speech in the Senate last week, denouncing CIA bullies. She provides robust oversight.

Winnick: She only went after the CIA once she found out she was a victim of the CIA. This is not “robust”.

Is there value into comparing the US platform on debating NSA and CIA activities into the UK? The US, much like the UK, was forced into this debate. It was thrown upon both countries upon revelations from a third party that, as Ellis said, “stole documents from his employers and fled to Putin’s Russia” (the reference to Russia being Putin’s and being Russia carried on for a certain amount of time, deflected by Prickles who evidently showed tiredness at having to assert this was way beyond the point).  There is no disputing the damaging status of the Snowden disclosures. But damaging to whom, exactly? To an image of brilliance and rule of law that was shining across the globe? To a self-created idea of unchecked but unaccountable power in a system purporting to be democratic? Prickles re-affirmed: the leaks were in the public interest. The knowledge they gave was invaluable.  Rt Hon Davis MP ended his part of the hearing:

Rt Hon David Davis MP: British people tend to be more trusting of their establishment. But this is changing. And that’s because of what we were told.

This is a statement released by Sir Mark in the month following the Snowden leaks, expressing his communications with GCHQ and his satisfaction they were acting appropriately.


About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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