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What and when MI5 knew about torture
Mar 12th
What the former MI5 chief Dame Eliza Manningham-Buller and her colleagues knew
What and when MI5 knew about torture
Mar 12th
What the former MI5 chief Dame Eliza Manningham-Buller and her colleagues knew
GCHQ staff lost 35 laptop computers, report says
Mar 11th
Intelligence security committee says ‘haphazard’ monitoring meant it was not known whether top secret information had been mislaid
Staff at GCHQ, the government’s electronic eavesdropping centre, mislaid 35 laptops and it was not known whether the computers contained top secret information because of the agency’s “haphazard” monitoring system, it emerged today.
The computer disappearances were revealed in the latest report by the parliamentary intelligence security committee (ISC), which also expressed concern about GCHQ’s failure to meet the growing threat of cyber attacks, both state-sponsored and by Islamist terrorists.
Referring to the mislaid laptops, the report described GCHQ’s attitude towards valuable and sensitive assets as “cavalier” and “unacceptable”.
A GCHQ spokesperson today said there was no evidence that any of the material on the laptops had “got into wrong hands”, but admitted: “Given the state of the records, there is no way of confirming that”.
The ISC said work to tackle the threat of electronic attacks was “about one-third below the level planned”.
It added: “We have been told that the shortfall is because of the difficulties GCHQ has had in recruiting and retaining skilled internet specialists in sufficient numbers.”
Unexplained delays in Gordon Brown’s decision to clear the report mean the period covered by it ended eight months ago.
Kim Howells, a former Foreign Office minister and the Labour chairman of the committee said today the report was “therefore considerably out of date”.
He also described as a “matter of great disappointment” an eight-month delay between the time the government promised to hand over guidance given to MI5 and MI6 officers engaged with detainees and terror suspects abroad.
The committee’s views on the guidance, which was eventually handed over in November, have been sent to Brown, who has the power to the censor its reports as well as over the timing of their publication.
Today’s report, which covers a seven-month period up to last July, is studded with asterisks where information considered to be sensitive has been suppressed.
These areas include the money spent by MI5, MI6 and GCHQ. The one figure the report does publish is £2bn, described as the single combined expenditure of the three agencies.
The document refers to “critical weaknesses” in the way GCHQ manages its contracts, including what it describes as very large and unidentified sums involved in providing the Cheltenham-based agency with a “signals intelligence modernisation programme”.
In an attempt to attract more recruits, GCHQ is using video boards on the London underground and “mass marketing along commuter routes into London”, the ISC report said.
MI6, the agency responsible for intelligence-gathering abroad, is also now advertising for recruits on the London underground.
The recent expansion of MI6 has exacerbated the problem of managing data, with an accompanying risk described by the head of the agency as “not knowing what we know”, the report disclosed.
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Our secret service agents deserve better | Andrew Tyrie
Mar 10th
Dame Eliza was right to speak up for the security services, but only an inquiry will raise morale
The comments by former MI5 head Dame Eliza Manningham-Buller, that the US hid from Britain’s security services the torture they were meting out to detainees, at first blush appear extraordinary. They add to the growing mass of confusing and often contradictory information about Britain’s knowledge of the US’s mistreatment of prisoners. But she has done the right thing by speaking up, even if her remarks pose as many questions as they answer. Only an inquiry can sort this out.
Dame Manningham-Buller’s revelations are bizarre on several counts. First, she said she had expressed surprise in 2002-3 to her staff that the US was able to gain so much information from Khalid Sheikh Mohammed, but accepted as an explanation for his loquacity that he was proudly describing his achievements. Second, when she and the security services finally recognised that the US was, after all, torturing detainees, she said: “We did lodge a protest.”
On the first, it seems odd that it did not occur to the security services that Sheikh Mohammed might have been tortured. By the time of his detention, the Bush administration’s coercive interrogation techniques were already the subject of press comment in the US.
As for the protest, the Foreign Office – the BBC has reported – claims it cannot find any details of it. This is consonant with the shoddy record-keeping over the whole rendition issue. We need to know, once the security services did realise the US was using new interrogation tactics, under what guidelines they were operating. The prime minister promised in March 2009 that these would be published. We’ve still not seen them. Furthermore, it is very unsatisfactory that, having known about mistreatment of detainees and having lodged a protest about such treatment, the government still continues to rely on American assurances about rendition.
We can’t carry on like this. The intelligence and security committee does not seem to have fulfilled its parliamentary role. Did the ISC know about the protest to the US? If it did, it has not told parliament. The revelations reinforce concerns about the ISC’s ability to do its job properly. Reform of the way the committee’s chairman is appointed is essential. A string of appointees has come out of government to chair the committee – only to return to the front bench afterwards. This revolving door should be blocked. The Wright committee’s recommendation that the ISC chairman be elected by MPs, subject to a prime ministerial veto, would bolster accountability.
Whether Britain was complicit or merely ignorant about what was going on is not something that can or should be sorted out as a result of a drip-drip of revelations. Our security services, in particular, deserve better.
As Dame Manningham-Buller said herself, revelations like this will imperil morale; after all, the security services don’t want to be involved in these practices. They are widely held to be counterproductive for obtaining information. The services also want the public to have confidence in them. Accountability is to their benefit. That is why we do them a disservice if we fail to get to the bottom of this. We can then draw a line under this episode and move on. Reading between the lines, I have the impression that this is what Dame Manningham-Buller wants too.
The quickest and most effective way to do this is in a brief, judge-led inquiry. With David Cameron, Nick Clegg, the government’s own independent reviewer of terrorism legislation, Lord Carlile, and many MPs all supporting an inquiry, and Lord Goldsmith also calling for an investigation, only ministers are resisting. Let us hope they soon relent.
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What and when MI5 knew about torture
Mar 10th
Timeline of what the former MI5 chief Dame Eliza Manningham-Buller and her colleagues knew
Dame Eliza Manningham-Buller, the head of MI5 throughout most of the years of the so-called war on terror, insisted yesterday that she had not known that Khalid Shiekh Mohammed was being waterboarded.
In a response to the appeal court’s judgment that MI5 officers had a “dubious record” on torture, she sought to blame the US and maintained that only after she retired in 2007 did she discover that the alleged mastermind of the 9/11 attacks had been waterboarded 160 times.
“The Americans were very keen that people like us did not discover what they were doing,” she said. Critics, though, said the former head of the security service was stretching credulity by claiming the matter had come as such a surprise.
10 January 2002 An MI6 officer, carrying out one of the first British interrogations in Afghanistan after 9/11, reports back to London that the individual was mistreated by Americans before the questioning began. The incident is reported by the Intelligence and Security committee (ISC) , the group of MPs and peers that is supposed to provide oversight of MI5 and MI6.
11 January 2002 Every MI6 and MI5 officer in Afghanistan is issued with legal advice stating that they are under no obligation to intervene to prevent torture, as long as the victim is not in UK “custody or control”, but that British intelligence officers “cannot be party to such ill treatment nor can we be seen to condone it”. Critics of MI5 say this advice failed to meet its obligations under international law, and was subsequently used to facilitate torture. Later in the month, the Pentagon releases pictures taken by US navy photographers, showing hooded and shackled detainees being dragged across the ground at the newly opened detention centre at Guantánamo Bay.
April 2002 The CIA hands MI5 more than 50 classified documents that detail the mistreatment of Binyam Mohamed, a British resident detained at Karachi airport in Pakistan on 10 April. A judicial summary of those documents – released by the court of appeal last month after an 18-month battle by the government to conceal it from the public – shows that MI5 knew Mohamed was being “continuously deprived of sleep”, threatened with being “disappeared”, and that this was “having a marked effect upon him and causing him significant mental stress and suffering”.
Manningham-Buller was deputy director general of MI5 at the time the agency received these CIA documents. Having learned the details of Mohamed’s mistreatment, MI5 sends one of its officers, a man known as Witness B, to Karachi to question Mohamed. The high court later concludes: “The probability is that Witness B read the reports either before he left for Karachi or before he conducted the interview … a briefing document was prepared for sending to him.” Witness B is now the subject of a Scotland Yard investigation.
September 2002 MI5 knows that Binyam Mohamed is no longer in Pakistan, having been “rendered” elsewhere, but, the high court later concludes, continues to supply “information as well as questions which they knew were to be used in interview of [Mohamed] from the time of his arrest whilst he was held incommunicado and without access to a lawyer or review by a court or tribunal”.
October 2002 Eliza Manningham-Buller is appointed director general of the Security Service.
4 April 2004 Salahuddin Amin, a terrorism suspect from Luton, is questioned by MI5 officers 11 times after surrendering to a Pakistani intelligence agency whose use of torture is widely documented. An Old Bailey judge later says Amin’s treatment in Pakistan was “physically oppressive” and unlawful, but fell short of torture. Pakistani intelligence officers told Human Rights Watch last year that Amin’s account of being tortured before being questioned by MI5 was “essentially accurate”, and that both British and American officials were “perfectly aware that we were using all means possible to extract information from him and were grateful that we were doing so”.
27 April 2004 Pictures of US troops abusing inmates at Abu Ghraib prison in Baghdad are broadcast on the US television news programme 60 Minutes.
13 May 2004 The New York Times reports that Khalid Sheikh Mohammed was subjected to waterboarding by the CIA. The newspaper says it learned this from current and former counter-terrorism officials, and says the FBI has warned its officers not to become involved in interrogations during which waterboarding was employed, after the bureau’s director, Robert Mueller, was warned they could face prosecution. The newspaper adds: “These techniques were authorised by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the CIA.”
24 May 2004 In an apparent response to the release of the Abu Ghraib pictures, Tony Blair writes to the ISC to tell the committee of changes to the UK interrogation policy that was passed to MI5 officers and MI6 officers in January 2002. One change is that MI5 and MI6 officers are told to inform London whenever they see US counterparts mistreating inmates. They are also told they must not return to question detainees who complain they are being tortured. In practice, according to several torture victims, UK intelligence officers hand over to US interrogators after hearing such a complaint. Other changes to the interrogation policy remain secret. The government refuses to publish the policy, with David Miliband, the foreign secretary, saying that to do so could “give succour” to the UK’s enemies.
22 June 2004 The White House counsel Alberto Gonzalez and the Pentagon general counsel, Jim Haynes, hold a press conference at which they release a series of documents setting out the legal advice justifying the use of abusive interrogation techniques employed at Guantánamo.
15 May 2005 Zeeshan Siddiqui, a terrorism suspect from west London, is arrested in Pakistan, tortured, and then questioned by British intelligence officers. Pakistani intelligence officer later tell Human Rights Watch that these were MI6 officers, who were aware at all times that Siddiqui was being “processed in the traditional way”, and that the British were “effectively” interrogating Siddiqui. When Siddiqui is brought before court, the magistrate orders his immediate hospitalisation. He is eventually deported to the UK and subjected to a control order.
20 August 2005 A medical student from west London is held in a building opposite the British deputy high commission offices in Karachi and tortured, for two months, before being questioned by British intelligence officers. Pakistani agents later tell Human Rights Watch that British officials across the road knew the student was being mistreated and were “breathing down our necks for information”. The student is later released without charge.
7 August 2006 Rashid Rauf, from Birmingham, is arrested in Pakistan for questioning over an alleged plot to blow up several airliners over the Atlantic. He later tells his lawyer he was tortured before being questioned by men with both British and American accents. Human Rights Watch says that both British and Pakistani intelligence officers have told them that he was mistreated.
20 August 2006 An MI6 officer suggests to Pakistani intelligence officers that they might want to detain a British terrorism suspect, Rangzieb Ahmed, after police in Manchester decide to let him leave the UK on a flight to Islamabad. According to statements made in the Commons, Manchester crown court – sitting in secret – learned that UK intelligence officers knew that those Pakistani officials tortured terrorism suspects. MI5 and Greater Manchester police draw up questions to be put to Ahmed, who is beaten, deprived of sleep, and has three of his fingernails removed with pliers.
When Ahmed is deported to the UK to be put on trial, on the basis of evidence largely gathered before he flew to Pakistan, prosecutors attempt to claim that his fingernails were removed before he went to Pakistan. The crown’s own pathologist says the injuries show this is impossible. The judge rules that UK complicity in Ahmed’s torture is not so great that his trial cannot go ahead. The judge’s full ruling on Ahmed’s torture is being kept secret, at the request of the Crown Prosecution Service, following representations by MI5 and Greater Manchester police. Ahmed is now launching an appeal, on the basis of what the judge said in his secret ruling.
23 November 2006 Manningham-Buller tells the ISC that she regrets not asking the CIA for more information about the whereabouts of Binyam Mohamed after he was rendered from Pakistan to Morocco in July 2002. It is a case “where, with hindsight, we would regret not seeking proper full assurances,” she says. In a report published in July 2007, the committee concludes: “Whilst no assurances were sought, this is understandable given the lack of knowledge, at the time, of any possible consequences of US custody of detainees.”
However, almost five years before Manningham-Buller gave evidence to the ISC, MI5 had given its officers legal advice that facilitated the questioning of people being tortured. This was done after the service had been made aware, by an MI6 officer, that detainees were being mistreated. The ISC had been told about this legal advice – and the reasons it was issued – in September 2004, almost three years before it reported that a lack of knowledge of the mistreatment of detainees by the US authorities was understandable.
27 October 2006 The US vice-president, Dick Cheney, confirms that Khalid Sheikh Mohammed was subjected to waterboarding, telling an interviewer that the use of the technique was a “no-brainer”, and that “our ability to interrogate high-value detainees like Khalid Sheikh Mohammed – that’s been a very important tool that we’ve had to be able to secure the nation.” This is widely reported on both sides of the Atlantic.
21 April 2007 Manningham-Buller steps down as director-general of the Security Service.
15 October 2009 Manningham-Buller’s successor, Jonathan Evans, defends MI5’s co-operation with intelligence agencies known to use torture, saying that it thwarted many terrorist attacks after 9/11 and saved British lives. “In my view we would have been derelict in our duty if we had not worked, circumspectly, with overseas liaisons who were in a position to provide intelligence that could safeguard this country from attack,” he says.
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Tortured logic of intelligence chief | Vikram Dodd
Mar 10th
Former MI5 head Eliza Manningham-Buller says she did not know about mistreatment of terror suspects. Wasn’t she reading the papers?
To be fair to Britain’s security services, the gathering of intelligence can be the most difficult of jobs.
The claim on Wednesday from the former head of MI5, Eliza Manningham-Buller, that the US hid from the UK security services the torture they were meting out to the Muslim men they had labelled terrorists, comes as a bit of surprise. In a lecture given in the Palace of Westminster, she related:
“I said to my staff, ‘Why is he [Khalid Sheikh Mohammed] talking?’ because our experience of Irish prisoners and terrorists was that they never said anything …
“They said the Americans say he is very proud of his achievements when questioned about it. It wasn’t actually until after I retired that I read that, in fact, he had been waterboarded 160 times.”
She went on to claim that “The Americans were very keen that people like us did not discover what they were doing.”
It did not require a high degree of James Bond-style espionage for MI5 to realise – much earlier than she says it did – that Guantánamo and other US sites were places where torture was practised.
Before her retirement in 2007, then, all that Ms Manningham-Buller needed to have been doing was read a decent newspaper or use a web search, either of which would have produced headlines and articles that would have pricked the curiosity of even the dullest of minds. Never mind those who see themselves as among the sharpest and brightest.
So, for the benefit of the former intelligence chief, the list of reporting of disturbing allegations and evidence of torture employed by the US and its allies in the war on terror starts here – but please add your own in the thread below:
Guardian: Father fears for son held by US in Afghanistan, 10 February 2003
Guardian: Briton held as terror suspect says CIA threatened torture, 4 October 2003
Guardian: Officials ‘knew of beatings at Guantánamo’, 15 May 2004
Observer: US guards ‘filmed beatings’ at terror camp, 16 May 2004
Guardian: US abuse could be war crime, 5 August 2004
Times: Britons accuse US Government of ‘torture’ at Guantánamo Bay, 28 October 2004
Times: Guantánamo report reveals ‘torture’, 1 December 2004
Guardian: Guantánamo Briton ‘in handcuff torture’, 2 January 2005
Independent: My nightmare of torture and assault, by Briton held in Guantánamo, 30 January 2005
Washington Post: Va. terror suspect testifies to torture, 20 October 2005
Guardian: Hunger strikers allege ‘force feed torture’ at Guantánamo, 21 October 2005
Guardian: Torture claims ‘forced US to cut terror charges’, 25 November 2005
ABC News: History of an interrogation technique: Waterboarding, 29 November 2005
Telegraph: Torture law victory for terror suspects, 9 December 2005
Guardian: US accused of using gangster tactics over terror suspects, 25 January 2006
Washington Post: Guantánamo force-feeding tactics are called torture, 1 March 2006
Guardian: Evidence against terror suspect extracted by torture, hearing told, 10 May 2006
Times: Bush admits that terrorist suspects were held in secret prison network, 7 September 2006
Guardian: Cheney condemned for backing water torture, 28 October 2006
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UK complained to US about terror suspect torture, says ex-MI5 boss
Mar 10th
• Waterboarding of 9/11 suspect was ‘concealed’
• Manningham-Buller criticises Bush staff
The government protested to the US over the torture of terror suspects, the former head of MI5, Dame Eliza Manningham-Buller revealed last night.
She also said the Americans concealed from Britain the waterboarding of Khalid Sheikh Mohammed, the alleged mastermind of the September 2001 attacks.
“The Americans were very keen that people like us did not discover what they were doing,” Lady Manningham-Buller told a meeting at the House of Lords.
She also admitted MI5 were slow to recognise that the US was torturing detainees. Asked if Britain protested, she replied: “We did lodge a protest.” She declined to elaborate but it is believed that the protests were made at ministerial level.
Manningham-Buller was answering questions after delivering a lecture in parliament sponsored by the Mile End study group set up by Queen Mary, University of London.
She said that in 2002 or 2003 she questioned how the US was able to supply Britain with intelligence gleaned from Sheikh Mohammed.
“I said to my staff, ‘Why is he talking?’ because our experience of Irish prisoners and terrorists was that they never said anything,” she said.
“They said the Americans say he is very proud of his achievements when questioned about it. It wasn’t actually until after I retired that I read that, in fact, he had been waterboarded 160 times,” Manningham-Buller said.
She criticised senior figures in the Bush administration, including the president himself, Dick Cheney, the vice-president, and Donald Rumsfeld, the defence secretary for their attitude towards the treatment of terror suspects. She added: “Nothing, even saving lives, justifies torture.”
Referring to criticism of MI5, and notably evidence in the mistreatment of the UK resident Binyam Mohamed, she said in her speech: “The allegations of collusion in torture and lack of respect for human rights will wound [MI5 officers] personally and collectively and, in some respects, whether proven or not, will make it harder for them to do their job.”
Last month, Lord Neuberger, the master of the rolls, said MI5’s insistence in a court case that it was unaware of the harsh treatment of some detainees held overseas in CIA custody was unreliable.
Manningham-Buller confirmed that Britain was aware of mistreatment cases before she left office.
In an original draft of a ruling, Neuberger also criticised MI5’s supposed lax attitude toward the mistreatment of detainees. Manningham-Buller’s successor as MI5 director, Jonathan Evans, has rejected the claims, and warned that the courts risk being exploited by those seeking to undermine British counterterrorism work.
But Manningham-Buller said she believes the allegations of complicity in torture could disrupt the future work of MI5 staff.
She spent 33 years in British intelligence, and was head of MI5 between 2002 and 2007. She said British spies are proud to be quietly effective, unlike the “gung-ho UK” intelligence officers portrayed in TV dramas.
“One of the sad things is Cheney, Rumsfeld and Bush all watched 24.” Manningham-Buller said, referring to the popular TV show about a counterterrorist agent. She said future terrorist attacks would involve chemical, biological and radioactive weapons. “After the next terrorist attack, there will be cause for fresh legislation, which should be resisted. The criminal law as it stands is enough. We have masses of legislation that deals with terrorism.”
She predicted the parliamentary intelligence and security committee, which was heavily criticised recently for its failure to hold MI5 to account, would be turned into a fully-fledged committee in the House of Commons.
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Britain fends off flood of foreign cyber-attacks
Mar 7th
Government and business computers regularly targeted by hackers, says security minister
Foreign states and terrorist groups are regularly launching cyber-attacks on the UK’s computer systems with the potential to cause widespread damage, according to the government’s security tsar.
Lord West of Spithead, who is parliamentary under-secretary for security and counter-terrorism, told the Observer that the UK was under daily cyber attack, often from agencies working on behalf of foreign governments.
He said there had been “300 significant attacks” on the government’s core computer networks in the last year and warned of chaotic scenes if one successfully targeted infrastructure such as the UK’s communications systems.
The security service, MI5, has warned that tackling espionage conducted by Chinese and Russian agents is taking up an increasing amount of its time.
West declined to identify the states carrying out the cyber-attacks on UK computer systems, but it is clear that he shares the service’s fears that some states are using communications systems and computer networks to seek confidential information held by government agencies and private companies in the UK.
“There is no doubt some state actors have sucked out huge amounts of intellectual copyright, designs to whole aero engines, things that have taken years and years of development,” West said.
“The moment you mention a particular state, they will deny it,” West added. “The problem with cyberspace is that attribution is extremely difficult. It’s almost impossible to do it in terms of evidence that would be necessary in a court of law.”
However, he said the UK government had sufficient intelligence to be confident that it knew who the main perpetrators were. Russia has been widely blamed for launching debilitating cyber-attacks on Estonia and Georgia. West said such actions prompted new questions.
“If I went and bombed a power station in France, that would be an act of war,” he said. “If I went on to the net and took out a power station, is that an act of war? One could argue that it was.”
And he warned that there might come a time when the UK would feel compelled to retaliate. “If some state sponsor keeps trying to get into your systems, probably for industrial espionage, are you going to go back into their system and bugger it up? We’re all capable of doing these things. At the moment we wouldn’t do that, but maybe this is where we need to have discussions.”
He suggested that the UK needed to be prepared to tackle a spectrum of threats in cyberspace, including those posed by criminal gangs and terrorists. “I’m very worried they [terrorists] may start becoming cuter and try to use our connectivity to have a go at our critical infrastructure, things [that control] our services, our food [distribution] and water supply,” he said. Terrorists were currently “not brilliant” at attempting this sort of attack on infrastructure, he added, but they would learn fast and “we’ve got to be ahead of them”.
As an example of the potential effects, he talked about what would happen if time signals from global positioning system satellites were disabled. “Not a single cash machine would work, the Docklands Light Railway wouldn’t work, you wouldn’t be able to berth oil tankers, great chunks of our transport infrastructure would stop,” West said.
He drew comparisons with ice storms in the Canadian capital, Ottawa, several years ago. “All the power went down; there were riots with people smashing into stores,” he said.
The government is so concerned at the evolving threats in cyberspace that this month it launched the Office of Cyber Security, which draws on expertise from organisations such as GCHQ, the Ministry of Defence, the Home Office and the Serious and Organised Crime Agency.
The OCS is engaged in planning exercises looking at warfare in 2015 and 2040. Another part of its remit will be tackling online fraud. West described the rise of “malicious” computer code as “exponential” and “mindboggling”. “The more you realise the malicious elements that are out there trying things, the more horrifying it becomes,” he said.
Last week Spanish investigators arrested three alleged ringleaders of the so-called “Mariposa” botnet, which had infected and controlled up to 12.7m PCs. West acknowledged that the 2012 Olympics would be a target for cyber-attacks. “People will be trying to get into the Olympics [ticketing] site to see what they can do,” he said.
His comments come days after the director of the FBI, Robert Mueller, warned that militant groups, foreign states and criminal organisations posed a growing threat to US security as they targeted government and private computer networks. “Apart from the terrorist threat, nation states may use the internet as a means of attack,” Mueller said. “They seek our technology, our intelligence, our intellectual property, even our military weapons and strategies.”
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Can I refuse an electronic strip search at an airport without being detained?
Mar 4th
Similar to stop and search, it seems that Elidor’s privacy before boarding a plane can only be protected with a legal challenge
Elidor asks:
“What are my rights when I refuse to submit to a recorded electronic strip search at an airport? Do they have any right to detain me? Could they single me out for scanning a second time, or are they forced to stick to their alleged “random” sampling?
I’m not going to put up with this sort of harassment from the authorities, but as long as they’re still at the low-level random sampling stage of it, I’m willing to attempt to fly knowing I’ve got a 95%-odd chance of making my flight. I just want to know where I stand if I get unlucky on the day.”
The introduction of body scanners in the wake of the failed Christmas Day attack was clearly a rushed attempt to show that something was being done. We at Liberty are far from convinced that this expensive and intrusive technology is necessary or that it will be deployed in a lawful, proportionate and sensitive manner. But the first point to make is that their introduction (so far only at Manchester and Heathrow airports, I believe) did not come with any additional legal obligations on passengers; like all other airport security measures, compliance is simply a condition of flying. So Elidor can refuse to go through the scanner at the expense of missing the flight.
I am doubtful whether the idea of joining the back of the queue and trying a second time would work. The interim code of practice issued by the Department for Transport does not limit the use of body scanners to any strict random method. It simply says that passengers must not be selected on the basis of personal characteristics. I don’t see anything unlawful (or even objectionable) in selecting a passenger for a security check on the grounds that they had refused to comply with one moments earlier.
Elidor is also free to leave the airport if he refuses to be scanned, subject to one caveat. schedule 7 of the Terrorism Act 2000 gives the police additional powers at ports (including airports) to detain and question for up to nine hours anyone who they believe is using the port to travel, in order to determine whether that person is a terrorist – as in, is “concerned in the commission, preparation or instigation of acts of terrorism”. An officer can question a person on whether or not there are any grounds for suspecting that the person is a terrorist, and can also search the person or anything he owns or is carrying, provided the object to be searched is on a ship or aircraft or the officer believes it has been or will be. The officer can seize anything he finds during his searches for up to seven days, or for as long as he believes it will be needed as evidence in a criminal trial or a deportation decision – whichever is longer. It is a criminal offence to refuse to comply with a search or questioning. The detained person is entitled to telephone a solicitor, but cannot delay answering questions until a solicitor arrives.
These powers are incredibly broad and subject to very few safeguards. The Home Office code of practice says that officers “must use the powers proportionately and should make every reasonable effort to minimise causing embarrassment or offence to a person who has no terrorist connections.” It also says that the powers “should not be exercised in a way which unfairly discriminates against a person” on any of a number of grounds, including race or religion, and that the examining officer should bear in mind that the primary reason for using the powers is “to maximise disruption of terrorist movements into and out of the United Kingdom.” The breadth of the power, however, means that it will be almost impossible to challenge its use in any individual case.
If Elidor were detained under schedule 7 immediately after refusing to be scanned, and it appeared that this was done as a sanction for failing to comply with security officers or as a deterrent to other passengers, then it could be argued that the detention was unlawful. But since the power could also be used lawfully on someone in these circumstances (indeed it would arguably be sensible to do so if a passenger appears nervous and runs away the moment he or she is selected), it will be very difficult to prove in an isolated case that the officer had an improper motive.
More broadly, it might be possible to argue that the power under schedule 7 is incompatible with article 5 of the European convention on human rights, which states that everyone has the right to liberty and security and that no one shall be deprived of his liberty except in certain limited circumstances. Liberty made a similar argument in respect of stop and search powers under section 44 of the Terrorism Act in the case of Gillan v Metropolitan Police. The House of Lords decided, however, that any deprivation of liberty involved in such a search would not violate article 5 because it would be “in order to secure the fulfilment of any obligation prescribed by law” – a type of detention permitted by article 5(1)(b). Lord Bingham said that the relevant “obligation” was the obligation on all members of the public not to obstruct a constable exercising lawful powers under section 44 of the Terrorism Act. This reasoning is supported by a 1981 European commission case (McVeigh and others v UK) which concerned a power to detain at ports very similar to the power under schedule 7, but in my view it is circular and open to challenge.
The framers of the convention cannot have envisaged that “any obligation prescribed by law” under article 5(1)(b) could include the simple obligation not to obstruct a constable; otherwise, article 5 would permit any police power of detention however broad or unreasonable. Further, although the European court did not rule on article 5 when it considered the Gillan case, it did decide that the sweeping powers created by section 44 violated article 8 (the right to respect for private and family life). Since one of the key factors in the court’s decision was the fact that there were inadequate safeguards against abuse – a charge that also applies to schedule 7 – it may now be worth seeking to challenge schedule 7 under both articles 5 and 8.
I suspect, however, that the prospect of a legal challenge, which would probably need to be taken through all of the domestic courts and on to the European court in order to overturn the reasoning in Gillan and McVeigh, is not the type of reassurance that Elidor was after.
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The war on terror: taking Jihad Jane | Marina Hyde
Mar 12th
Posted by Marina Hyde in Politics
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A civilised justice system might have seen Colleen LaRose’s eccentricities as requiring help. Instead, she may face life in prison
Without wishing to undermine her twin commitments to holy war and talking to cats, the self-styled Jihad Jane might be the war on terror’s least effective bogeywoman. In fact, let’s not be gender specific. She might well be its least effective bogeyperson, making “shoe bomber” Richard Reid, as we refer to that chap who couldn’t even set a match to his own trainers, look like the KGB’s deadliest agent.
Jihad Jane’s real name is Colleen LaRose, and in between caring for her partner’s sick father, this suburban Pennsylvanian is alleged to have put postings on YouTube in which she made herself available for any fundamentalist situations vacant. Last year she travelled to Ireland, where she met some people allegedly plotting to kill a cartoonist, before flying home and being arrested on her return. She has been in custody since, according to federal documents unsealed this week – and when the news broke, LaRose’s neighbours forewent the usual cliches about her having “kept herself to herself”, declaring instead that she talked to cats a lot. Mm. As our leaders are given to telling us, tapping their nose in reference to their security clearance: if you saw what I saw, it would curdle your blood.
Even Lars Vilks – the Swedish artist whose sensationally witty cartoon of Muhammad’s head on a dog sparked the alleged plot with which LaRose is accused of being associated – appears dismissively amused, pitching the affair as a caper movie, “with this fantastic name Jihad Jane”. Vilks described his alleged nemeses as not exactly professionals and “rather low-tech”, hitting a note of ironic understatement indiscernible in what we know of his work.
The movie Colleen was presumably thinking about as she settled on her nickname was GI Jane, in which a super-buff Demi Moore trains as a Navy Seal and has to retrieve some weapons-grade plutonium from the Libyans. As a 4ft 11 Christine Hamilton lookalike so luminously inept she’d already been warned once by the FBI before she was finally arrested, you have to marvel at Colleen’s self-delusion. However, I’d prefer for the authorities to conjure up footage of her at one of those terrorist training camps in the Hindu Kush, where disaffected westerners have to scramble under rope nets and suchlike, even though their missions are only ever going to consist of doing something antisocial in an aisle seat. As a rare woman at boot camp, Colleen would be a shoo-in for Jihad Benjamin, a winsome modern reboot of the Private Benjamin franchise.
The trailer line for the Goldie Hawn original was “The army was no laughing matter till Judy Benjamin joined it”, and you might agree that the forces of evil ranked against us were similarly mirthless until a pint-sized cat-lady brought the funny. Yet according to the US justice department, the fact that “a woman from suburban America agreed to carry out murder overseas and to provide material support to terrorists, underscores the evolving nature of the threat we face”. Does it? I yield to no one in my admiration for the calibre of evildoers paraded before us in the cause of justifying ever higher anti-terrorism spending and the systematic erosion of individual liberties, but the LaRose business appears yet another instance of a sledgehammer being used to crack a nut.
Just as in the case of Pentagon hacker Gary McKinnon, and on a much smaller level in that of Jack Straw heckler Walter Wolfgang, one has to question the moral wisdom (and the PR nous) of deploying the full force of anti-terror laws against the demonstrably weak or eccentric. A truly strong society would have the sense merely to leave oddballs out there – partly because the world is full of them, and partly to undermine the myth of a crack network of brilliant extremists who walk among us.
Jurists have long been fascinated by the so-called doctrine of impossible attempt, the question of whether someone can really be punished for attempted crimes that have infinitesimal or no chance of succeeding. Classic examples are trying to pick an empty pocket, or an attempt to murder a man by voodoo. It remains to be seen precisely how cackhanded were LaRose’s bunglings in what she imagined to be the world of international terrorism, but it doesn’t exactly have the flavour of the Mossad’s recent trip to Dubai.
What has come to light since the news broke, however, are police records of LaRose’s 2005 suicide attempt, reports of alcohol problems, and friends’ accounts of the depression caused by the death of her father. Presumably all of this was picked up by the FBI during their lengthy surveillance of her, and in a more civilised and intelligent justice system LaRose might have been identified as a person with a case of something or other, who could be reasonably handled by a couple of hours a week with a mental health professional. Yet she now faces life in prison if convicted.
Having said all that, I see I’ve made the textbook error of ignoring the fabled deterrent argument that governments like to advance. Do forgive me. If there are any troubled catwomen out there thinking of auditioning for Ocean’s Jihad, this case will no doubt give them pause.