FacebookTwitterGoogle+RedditEmail

The Realms of Impunity

by BINOY KAMPMARK

It will only get worse, but the last few days have been interesting in the accumulating annals of massive surveillance. Britain’s equivalent of the National Security Agency, GCHQ, has been placed under the legal microscope, and found wanting.

The legal briefs who have been advising 46 members of the all-party parliamentary group on drones has handed down a sobering assessment of the GCHQ mass surveillance program: It is, for the most part, illegal. In some cases, it may well patently criminal.

According to barristers Jemima Stratford QC and Tom Johnston, the behaviour of GCHQ staffers, in many instances, potentially violates the privacy safeguards laid out in the European Convention on Human Rights (ECHR), largely due to the sheer vagueness of its remit. Such lack of clarity has enabled GCHQ staffers to rely “on the gaps in the current statutory framework to commit serious crime with impunity.”

Some of these are worth noting. Mass, bulk surveillance would be in contravention of privacy protections under EU law. “We consider the mass interception of external contents and communications data as unlawful. The indiscriminate interception of data, solely by reference to the request of the executive, is a disproportionate interference with the private life of the individuals concerned.”

Interception of bulk metadata (phones, email addresses) is treated as a measure “disproportionate” and in violation of Article 8 of the ECHR. That in itself was of little surprise. Of even greater interest was how the barristers dealt with the musty, archaic nature of existing legislation which the executive has been all too keen on using.

Much of this expansive, illegal behaviour lies in the way the Regulation of Investigatory Powers Act 2000 (Ripa) has been left in the technological lurch. Use, retention and destruction protocols on metadata are deemed inadequate, given the few restrictions on the practice. For one, Ripa distinguishes between metadata itself and the content of the messages, a clearly anachronistic form of reasoning that has yet to change.

The act, for example, provides too broad a discretion to the foreign secretary, currently William Hague, while providing “almost no meaningful restraint on the exercise of executive discretion in respect of external communications.”

The rather deft way GCHQ has also gone about intercepting communications – via transatlantic cables – cannot be accepted as legal, and would make no difference “even if some or all of the interception is taking place outside UK territorial waters.”

A troubling, though hardly astonishing feature of the brief is accountability of GCHQ staffers to potential criminal liability. The spectre of this rises for the information gathered and subsequently shared for use by allies, notably the United States. Intelligence used for targeting non-combatants with drone strikes is taken as one specific, and troubling example.

“An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility.” The transfer itself, suggests the advice, would be unlawful for that reason. Nor can UK officials rely on the obtuse notion of “anticipatory self-defence” which is used by Washington to justify drone strikes in areas where they are not officially involved. Britain has yet to succumb, at least in that area, to flights of legal fancy.

The way such data is used in drone strikes is hardly an academic issue. It has been the subject of legal deliberations by the Court of Appeal and the High Court. The Court of Appeal’s decision in the Noor Khan case (Dec 2013) involved evidence dealing with GCHQ’s alleged supply of information to the CIA in a drone strike. The claimant’s father, in that case, had been killed by such a strike in the Federally Administered Tribal Areas of Pakistan.

Unfortunately, the Court of Appeal proved all too reluctant to venture into operational matters, feeling that doing so would ask the court to “condemn the acts of the persons who operate the drone bombs.” In Lord Dyson’s view, “It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here.” More’s the pity.

The advice will find itself the subject of scrutiny by the Parliamentary Intelligence and Security Committee, a body that has come surprisingly late to the game. After all, it took a committee on drones and their questionable deployments, not one dealing with intelligence and security, to produce some sound observations on mass surveillance.

How far the views achieve traction is anybody’s guess. Committees have a habit of making a hash of sound observations and it may well fall to others, such as the Joint Committee on Human Rights, to man the decks for reform. But the words of Labour MP Tom Watson, who chairs the committee on drones, are worth nothing. “If ministers are prepared to allow GCHQ staffers to be potential accessories to murder, they must be very clear that they are responsible for allowing it.”

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Weekend Edition
April 29-31, 2016
Andrew Levine
What is the Democratic Party Good For? Absolutely Nothing
Roberto J. González – David Price
Anthropologists Marshalling History: the American Anthropological Association’s Vote on the Academic Boycott of Israeli Institutions
Robert Jacobs
Hanford, Not Fukushima, is the Big Radiological Threat to the West Coast
Ismael Hossein-Zadeh
US Presidential Election: Beyond Lesser Evilism
Dave Lindorff
The Push to Make Sanders the Green Party’s Candidate
Ian Fairlie
Chernobyl’s Ongoing Toll: 40,000 More Cancer Deaths?
Pete Dolack
Verizon Sticks it to its Workers Because $45 Billion isn’t Enough
Richard Falk
If Obama Visits Hiroshima
Margaret Kimberley
Dishonoring Harriet Tubman
Deepak Tripathi
The United States, Britain and the European Union
Peter Linebaugh
Marymount, Haymarket, Marikana: a Brief Note Towards ‘Completing’ May Day
Eva Golinger
My Country, My Love: a Conversation with Gerardo and Adriana of the Cuban Five
Moshe Adler
May Day: a Trade Agreement to Unite Third World and American Workers
Vijay Prashad
Political Violence in Honduras
Paul Krane
Where Gun Control Ought to Start: Disarming the Police
David Anderson
Al Jazeera America: Goodbye to All That Jazz
Rob Hager
Platform Perversity: More From the Campaign That Can’t Strategize
Pat Williams
FDR in Montana
Dave Marsh
Every Day I Read the Book (the Best Music Books of the Last Year)
David Rosen
Job Satisfaction Under Perpetual Stagnation
John Feffer
Big Oil isn’t Going Down Without a Fight
Murray Dobbin
The Canadian / Saudi Arms Deal: More Than Meets the Eye?
Gary Engler
The Devil Capitalism
Brian Cloughley
Is Washington Preparing for War Against Russia?
Manuel E. Yepe
The Big Lies and the Small Lies
Robert Fantina
Vice Presidents, Candidates and History
Mel Gurtov
Sanctions and Defiance in North Korea
Howard Lisnoff
Still the Litmus Test of Worth
Dean Baker
Big Business and the Overtime Rule: Irrational Complaints
Ulrich Heyden
Crimea as a Paradise for High-Class Tourism?
Ramzy Baroud
Did the Arabs Betray Palestine? – A Schism between the Ruling Classes and the Wider Society
Halyna Mokrushyna
The War on Ukrainian Scientists
Joseph Natoli
Who’s the Better Neoliberal?
Ron Jacobs
The Battle at Big Brown: Joe Allen’s The Package King
Wahid Azal
Class Struggle and Westoxication in Pahlavi Iran: a Review of the Iranian Series ‘Shahrzad’
David Crisp
After All These Years, Newspapers Still Needed
Graham Peebles
Hungry and Frightened: Famine in Ethiopia 2016
Robert Koehler
Opening the Closed Political Culture
Missy Comley Beattie
Waves of Nostalgia
Thomas Knapp
The Problem with Donald Trump’s Version of “America First”
Georgina Downs
Hillsborough and Beyond: Establishment Cover Ups, Lies & Corruption
Jeffrey St. Clair
Groove on the Tracks: the Magic Left Hand of Red Garland
Ben Debney
Kush Zombies: QELD’s Hat Tip to Old School Hip Hop
Charles R. Larson
Moby Dick on Steroids?
David Yearsley
Miles Davis: Ace of Baseness
FacebookTwitterGoogle+RedditEmail