11.04.2012
The creep of the secret state
Paul Demarty takes a look at the latest moves towards greater state monitoring of electronic communication
Liberal democracy’ is always a matter of give and take. The ‘inalienable rights’ of bourgeois mythology are, in practice, thoroughly alienable: the state will grant freedoms one minute and withdraw them the next, depending on the general political climate and - crucially - the steps in the great dance of the class struggle.
At the moment, it has to be said that we are living through a very worrying period on this front. In Britain, the general drift of events is exemplified by two proposals from the ruling coalition. The first, the ‘justice and security’ green paper, proposed last October, in practice amounts to the extension of secret trials and the use of secret evidence in court in ‘sensitive cases’. Secondly, the equally euphemistically named ‘communications capability development programme’ will require internet service providers and other communications companies to hold data on telephone and internet usage for the perusal of all varieties of spooks.
Nothing to hide?
The green paper, considering its ominous implications, is notable for its general absence from the news cycle. Interestingly, the government has justified its proposals not on the usual grounds that it will help lock up evil terrorists, but that it will prevent sensitive state secrets from coming out in open court for all - including our fair nation’s enemies - to see, under such circumstances when private individuals bring civil proceedings against the state.
That is not particularly reassuring. Indeed, one does not have to be some kind of leftwing radical to see something wrong with it. The joint parliamentary committee on human rights - a motley crew of MPs and lords supposed to oversee this type of thing - has launched a (by parliamentary committee standards) stinging attack on the green paper, having been reviewing it for some time.
“One of the constant themes,” they write in their report, “in the evidence we have heard has been that the green paper seriously underestimates the extent to which its proposals represent a radical departure from the UK’s constitutional tradition of open justice and fairness, or natural justice.” There is no ambiguity about what is supposed to be meant by ‘natural justice’: “A party has the right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance ... the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses.” [1]
The government has rather attempted to play down the significance of what it would like us all to see as technical changes; yet there is every reason even for the bourgeois establishment to be somewhat concerned by the extension of secrecy provisions. In a constitutional arrangement which so systematically shuts people out, the possibility for many of having your say in court before a notionally impartial judicial system is a key component of the regime’s legitimacy (the ‘rule of law’ so beloved of bourgeois liberals).
That it is an illusory view of the rule of law is only relevant as and when the illusion falls apart. Put another way - the legal system is already quite sufficiently stacked against the sort of people the ruling class does not want to win. In order to force this through, the government will have to tread on the toes of the judiciary, who can make enough of a stink when they want to. Why the hurry? What is it that they are trying to hide?
Some indications as to an answer came from David Davis, the backbench Tory MP who has been a persistent thorn in David Cameron’s side since the latter came out on top in the last party leadership election. Davis, perhaps not entirely inaccurately, is thought of as something of a maverick; but, more importantly, he is a skilled and Machiavellian political operator who knows when to break ranks.
The last major occasion on which he did so - although, like the Tory right in general, he has made his distaste for coalition government quite clear - was over the extension of detention without trial from 28 to 42 days. He stakes out his opposition to secret trials and evidence, however, not by decking himself once again in high-blown libertarian principles, but with a story of farcical infighting in the American secret state.
In brief: in the late 1990s, the Taliban regime set out to build a modern telephone network in Afghanistan. The contract was awarded to an American citizen of Afghan descent by the name of Ehsanollah Bayat, who - unbeknown to the Taliban, was a mole for the Federal Bureau of Investigation. He hired two British telecommunications experts to manage the technical side of things; but part of the job was to implant wiretaps while the work was going on, to enable the Americans to spy on the Taliban.
Then, in 1999, with the job half finished, Bill Clinton imposed trade sanctions on Afghanistan. This turned out to be a play by the Central Intelligence Agency to wrest control of the project; it got moving again only on September 8, 2001. Three days later, Al Qa’eda flew two planes it had hijacked into the twin towers. By Davis’s reckoning - and it is perhaps not too unreasonable an assumption - a farcical turf war cost thousands their lives and America its sanity.
This is where the secrecy aspect comes in. The American state attempted to cover up this embarrassment by using its state secrecy privileges. It had to do so, because - in the meantime - Bayat had attempted to defraud his British advisors out of millions of dollars’ worth of shares. The latter were very much in on the dirty details of the CIA-FBI spat. The CIA berated, bullied and threatened the two, and leaned on the British government to shut down a civil case they brought back home. Now, Davis notes, it is all perfectly fine to talk about this - everyone involved has retired or otherwise moved on. The moral of the story: “giving a government agency an absolute right to secrecy encourages bad behaviour” (understatement of the century, surely ...). [2]
If Davis is right, there are two drivers for the suggestions included in the green paper. The first is the need to conceal instances of manifest incompetence on the part of British state agencies - of which, one can surely be convinced, there are many. The second is to stop secrets that might embarrass the US coming out in British trials.
Yet this is still not the whole story: if the debate between different factions of bourgeois politicians has focused on hypothetical civil cases where official secrets may turn up as evidence, it is clear enough that the broader provisions of the green paper represent a considerable extension of the formal powers of the state to rig trials against the defendant, by denying access to the prosecution’s evidence, removing the right to choose an attorney and hiding the proceedings from public knowledge - in short, by violating all the supposed principles of ‘natural justice’. That is why, as is clear from reading between the lines, the Americans are quite so keen for this to go through - and equally why anyone with a progressive bone in their body should oppose it.
Cyberspooks?
As if that were not enough, there is also the prospect - to which I briefly referred last week [3] - of sweeping new laws relating to internet monitoring. With ISPs and social networks logging all internet activity, it will be possible for all manner of state-employed unsavouries to probe into the minutest details of our lives, increasingly narrated through these media.
This is unlikely to take quite so Orwellian a form as it might first appear. This is not because of due restraint on the part of a prudent government, of course: it is simply a function of the fact that there is so damned much of the internet. One might, here, make a parable out of the police hunt for the Yorkshire Ripper, which was trumpeted as a state-of-the-art, high-tech investigation, with several phone lines and computers in use for data storage. The sheer volume of information, even by late 1970s standards, was rather too much to handle; and in the end, it failed to compensate for the pre-existing inadequacies of the police investigation.
Likewise, there is some debate about exactly how useful state data mining operations actually are, even from the point of view of the state. They have been in operation in the US for some years - it has been widely pointed out that, given the number of personnel employed and the volume of data, there would have to be a million ‘terrorists’ in America for there to be a statistically significant chance of anybody finding one out purely by that method. On the other hand, if you have already made it onto the list of likely terror suspects, you can bet your bottom dollar that MI5 are reading your emails quite regardless of the legal niceties. The inevitable result, then, will be a good handful of falsely-fingered innocents for each ‘terrorist’ (by any definition).
Most will probably be let off, but it is not difficult to imagine an especially unfortunate innocent being pulled up for a dubious off-hand comment (or, indeed, merely sharing a name with a Salafist lunatic), detained for 42 days, then sent to a secret trial, and convicted on the basis of secret ‘evidence’. Franz Kafka did not know the half of it.
Lurking behind both these measures, as noted, is the shadow of the United States. Barack Obama may have made a great play of distancing himself from the more overt swaggering authoritarianism of George Bush, but he is absolutely and steadfastly committed to maintaining the sharp end of the American secret state and its ability to sink its tentacles into anything it likes (indeed, in some areas, he has gone further than Bush dared). Even the most feeble British commitment to transparency is an obstacle to that, and so is any nod in the direction of internet privacy.
That David Cameron is quite as content to grovel before US power as his predecessor should surprise absolutely nobody, of course.
Notes
1. www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/286/28604.htm.
2. http://politicshome.com/uk/article/50009/david_daviss_statement_on_foreign_secret_intelligence_and_state_secrets_privilege.html.
3. ‘Racism as thoughtcrime’ Weekly Worker April 5.