01 October 2020
A Licence to Kill?
The CHIS Bill.
By Neil Tidmarsh
There have been a number of inflamed headlines about threats to our liberty this week. The front page of The Times on Tuesday yelled about “Big Brother Covid Fines” (the new offences and penalties are “prompting comparisons with George Orwell’s 1984”). Tory rebels claim that this is what dictatorship looks like. Angry protestors insist that having to wear masks in shops and to download government apps onto our phones are the thin end of a totalitarian wedge. While some concerns are serious (the use of government decree rather than parliamentary approval is certainly dubious), most of the possibly misguided and potentially dangerous government directives prompting the protests are silly rather than sinister, Nanny State rather than Big Brother, the result of floundering inefficiency rather than authoritarian ambition. (My colleague Lynda Goetz takes a more robust and possibly less naive view, however – see her piece Compromise For Now.)
But an absolutely crucial debate this week about the delicate balance between individual liberty and collective welfare has gone largely unreported so far. And it has nothing to do with Covid-19. It’s about defining the legal limits on the powers of our security services.
The Intelligence Services Act of 1994 permits agents of our security services to commit crimes outside the UK. But what they are permitted to do within the UK remained a mystery. To shed some light on this worrying grey area, two human rights groups (Reprieve and Privacy International) took a case to the Investigative Powers Tribunal in 2018. The case revealed that the prime minister can give secret directions authorising criminal offences here in the UK on behalf of state agents tackling serious threats to our security.
Director General of MI5 Ken McCallum described this power as “vital”, and security minister James Brokenshire said this week that “this critical capability… is subject to robust independent oversight.” The court also heard that the security service’s internal guidelines did not give agents immunity. Nevertheless, it also heard that the service’s policy and guidelines were so secretive that offences rarely came to the notice of prosecutors and the courts. Nor was it clear how far the security services might go beyond the law. As far as murder? Torture? Abduction?
Last year, the Tribunal ruled that this “vital power” should be subject to law rather than merely to secretive internal guidelines and policy. So the Covert Human Intelligence Sources (CHIS) Bill, to be revealed in parliament this week, will attempt to create a legal framework for it.
Some might argue that an “implied power” is sufficient here without making it explicit in the statute books and making those who use it answerable to the law, that it’s unlikely to be abused in this country, that we’re not Russia or China or Belarus or Venezuela. But such an argument would be wrong. We don’t have to look as far as Russia or China or Belarus or Venezuela for cautionary tales about the liberties any security force and its agents might be willing to take in the absence of adequate oversight and restraint. Right on cue, stories from much closer to home – from France and Germany – appeared in the news this week to underline the importance of the CHIS Bill.
Action Service is the department of the DGSE (France’s secret intelligence service – the General Directorate of External Security) tasked with anti-terrorist activities, sabotage, abduction, assassination and other black operations. They were criticised this week for trespassing on the French army’s operational territory. General Christophe Gomart, former commander of the French version of the SAS, has just published a book which claims that Action Service is “not properly supervised” or trained and has an arrogant belief that it is “alone in the world” and so thinks it does not have to co-operate or liaise with or even notify France’s armed forces when it’s operating in war zones. He said that this can lead to disasters such as an attempt in 2013 to rescue a Frenchman held hostage in Somalia by Islamists (the agents killed four civilians, and the Islamists killed the hostage and two agents) and the deaths of three agents when their helicopter was shot down in Libya in 2016 (the French military was blamed for the tragedy, even though it had no idea that the civilian agents were operating alongside it in the conflict against Islamic State). General Gomart writes that “the DGSE uses supposed membership of our (ie the military’s) special forces as a cover without the slightest authorisation”. He also claims that “the number of fatal accidents in training is unacceptable”.
Even more disturbing was the arrest earlier this year in Paris of three Action Service agents (two of them carrying guns and travelling in a stolen car) who have since been charged with attempted murder and conspiracy. The agents claim they were on an official mission, but the service is barred from operating on French soil, and telling the police that they work for the service was a breach of the service’s rules. And their alleged target – a female hypnotherapist who works as a corporate coach – doesn’t appear to be any kind of threat to national security. She doesn’t seem to have any connection with the agents, so some sort of personal vendetta doesn’t seem to be an explanation, either. Investigators are exploring a theory that they were moonlighting as hit men and were hired to kill her by a third party with a fatal grudge against her.
Rather ironically, the agency was originally under military command but President Mitterrand put it under civilian orders in 1988 to make it more transparent and answerable after it killed a photographer and sank Greenpeace’s ship The Rainbow Warrior in New Zealand.
In Germany, a draft of a report into right-wing extremism in the country’s security forces was leaked this week. In recent years the authorities have been accused of turning a blind eye or covering up or even colluding with a neo-Nazi presence in the police force and intelligence agencies. Der Spiegel has reported that there have been as many as 400 suspected cases of extremism in the police force in the last five years, for instance, and personal information from police computers in Hesse, Berlin and Hamburg appears to have been used by a murderous terrorist group, the National Socialist Underground, to allegedly threaten a number of public figures. The report by the BfV (the Federal Office for the Protection of the Constitution – Germany’s MI5) won’t be completed for another month, but already the head of the military intelligence agency MAD has been forced to resign and a company of the country’s elite special forces has been disbanded.
Whether the UK’s CHIS Bill will make this country’s security services more transparent and answerable to the rule of law remains to be seen (it’s still uncertain which offences could be permitted under any new law and which would be prohibited). But possibly the most surprising aspect of the issue is how rational, measured, broad-minded and intelligent – and undegraded by media hysteria – the debate has been so far. “Our intelligence agencies do a vital job in keeping us safe, but there must be common sense limits on agents’ activities, and we hope MPs will ensure these limits are written into the legislation” said Maya Foa, director of Reprieve. “No murder, no torture, no sexual exploitation, no secret detention.” How refreshingly fair-minded, a civilized and courteous throw-back to pre-Twitter days.
