By Sherif Elsayed-Ali, Deputy Director of Global Issues at Amnesty International. Follow Sherif on Twitter @sherifea
Just after 4pm yesterday, Amnesty International received an email from the Investigatory Powers Tribunal (IPT), which hears cases related to UK intelligence agencies. The message was brief but it dropped a bombshell.
It said there had been a mistake in the tribunal’s judgment 10 days earlier in a case brought by 10 human rights organizations against the UK’s mass surveillance programmes. Contrary to the original ruling, our communications at Amnesty International had, in fact, been under illegal surveillance by GCHQ, the UK’s signals intelligence agency. Incredibly, the initial judgment had named the wrong organization – the Egyptian Initiative for Personal Rights – and it took 10 days to correct the astonishing mix-up.
The news brought an unexpected and bizarre sense of relief: we had strongly suspected that we were being spied on by GCHQ but having it confirmed in court means we weren’t just being paranoid. Of course, GCHQ and highly likely its US counterpart, the NSA, spy on a range of organizations besides Amnesty. The same IPT judgment had revealed GCHQ’s unlawful surveillance of the South African Legal Resources Centre.
Leaks by NSA whistleblower Edward Snowden show that GCHQ, and the NSA, spied on Doctors of the World and UNICEF. Many more charities may have been spied on – the fact that the IPT did not find in favour of the eight other organizations bringing the case does not necessarily mean their communications were untouched – perhaps they were, but the Tribunal considered it had been done legally.
This whole process brings to light the problem with the so-called “oversight” of UK surveillance programmes. In the UK, a government minister, not a judge, issues surveillance warrants, so from the very start the executive branch of government authorizes its own spying.
As the only judicial body with authority to examine the practices of UK intelligence agencies, the IPT conducts nearly all its deliberations in private. And it simply accepted the government’s position of refusing to publicly confirm or deny any specific surveillance practices or programmes. As claimants against the British government, the 10 organizations, including Amnesty, did not see the secret policies governing surveillance practices, save for a tiny snippet, which was brought before the judges in secret sessions that only the government lawyers could attend.
The only reason we even found out that our communications have been intercepted, accessed and stored, is because GCHQ had stored these communications for longer than its internal guidelines allowed.
The IPT issues only two kinds of findings. One possibility is that it finds in favour of a claimant, like it did with Amnesty, where it considered that our communications were unlawfully intercepted. However, we do not know when this happened, what it was about, how many times it happened, what has been done with the information intercepted, whether it has been shared with other governments, and whether it is still happening. We’re still in the dark.
The other finding that the IPT made – for eight of the 10 organizations – is that it had made no determination of illegality. So, either these organizations’ communications were not intercepted at all, or they were intercepted, but in a manner the Tribunal deems lawful. Again, we’re in the dark about which is true.
This bring us to the urgent need for reform of UK surveillance legislation. Last month, David Anderson, the UK government’s independent reviewer of terrorism legislation, slammed RIPA – the main law underpinning surveillance powers. In his estimation it has been “obscure since its inception, [and] has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates”. He’s called for a new law that is “comprehensible” and judicial authorization of interception warrants.
The government response so far has not been encouraging: Prime Minister David Cameron apparently wants to keep the power to issue warrants within his cabinet. It seems that even one of the most basic principles of the rule of law, judicial warrants, is too much for the British government to accept.
Our concerns about mass surveillance are not limited to human rights organizations, although this is already very worrying. Mass surveillance is invasive and a dangerous overreach of government power into our private lives and freedom of expression. In specific circumstances it can also put lives at risk, be used to discredit people or interfere with investigations into human rights violations by governments.
We have good reasons to believe that the British government is interested in our work. Over the past few years we have investigated possible war crimes by UK and US forces in Iraq, Western government involvement in the CIA’s torture scheme known as the extraordinary rendition programme, and the callous killing of civilians in US drone strikes in Pakistan: it was recently revealed that GCHQ may have provided assistance for US drone attacks.
The obfuscation, secrecy and determination to avoid any meaningful oversight is worthy of a tin-pot dictatorship. It is time for serious public scrutiny of the behaviour of the British government. We need to know what surveillance programmes the government is operating, what spying they consider to be fair game, and why.
We urgently need legislative reform to avoid future excesses by the government and its intelligence agencies.
But there must also be accountability for past actions: how did the government of a country that’s a self-professed champion of human rights and democracy allow its spooks to run a huge mass surveillance programme, and with almost no meaningful oversight? How did it allow spying on medical charities, children’s charities and on human rights organizations? How did the people in government who knew or should have known let this happen?
The UK government must establish an independent inquiry, and quickly.
Note: This blog originally appeared in The Intercept.