Parliamentary inquisitions: either too soft or too harsh

It’s depressing that parliamentary committees responsible for holding to account such powerful institutions and individuals as the intelligence and security services, the bankers and the police are often either far too soft or far too aggressive.  Some inspire little confidence in their efficacy as watchdogs to ensure that the intelligence and security agencies respect our civil liberties as well as working to protect us.  Others appear to be constrained by no procedural rules governing their powers and objectives, nor by any safeguards to protect those summoned to appear before them to be aggressively interrogated.

After the parliamentary Intelligence and Security Committee (ISC) hearing on 7 November at which the heads of MI5, MI6 and GCHQ testified in public for the first time,  an e-correspondent asked:

Did you watch ‘M’, ‘C’ and the man from GCHQ (he must resent not having a single-letter nom de guerre!) yesterday? I thought it was embarrassingly supine questioning.  And if the MI6 man presents his intelligence material [to ministers and officials] with the same hyperbole as he does when he gives evidence, it must be very difficult to distinguish reality from imagination.

I very much agree.  The committee was deeply unimpressive — conveying the impression, anyway to congenital sceptics, of being in a too-cosy relationship with the official eavesdroppers, sleuths and burglars, too respectful of them to say the softest boo to an elderly goose. Michael White in the following day’s Guardian was spot on when he said that the three top honchos seemed to have summoned the ISC to meet them, not vice versa.  Obviously in an ideal world we should judge people by what they do and say, not by their physical appearance or even by the impression they convey on our television screens.  But what these three powerful officials do and say is almost entirely secret: we have no basis for judging them apart from how they strike us on their rare public appearances.  Did the three men seem roughly like ordinary sensible people, sharing ordinary citizens’ instincts and concerns (and sense of humour)? Did they show evidence of understanding the importance of balancing the demands of national security against the pressing need to protect our fundamental right to freedom from disproportionate state intrusion into our private lives?  Or did they seem dogmatically committed to the principle that security by definition trumps civil liberties whenever and wherever the two collide?  For those who watched the whole hearing last Thursday, those questions answer themselves.

The claim that these people are better equipped than the editors of the Guardian and the New York Times to judge (after extensive consultations and redactions) which bits of the various whistle-blowers’ leaked materials can safely be published seems plainly untenable; indeed laughable.

At the ISC hearing none of them was asked, or explained, why their “opponents” (those who threaten our security) were so pleased by the revelation that in order to identify the odd terrorist needle in their gigantic haystack, the intelligence services were obliged to collect such mindless quantities of hay in the form of all your and my emails and telephone calls and other private records, including access to their content.  None of the three was asked or explained why we should consent to trust them not to read our emails and records or transcripts of our phone calls, so long as we hadn’t been communicating with the enemy — a kind of variant of William Hague’s deeply objectionable “If you’ve done nothing wrong, you have nothing to fear” riff.  None was asked or explained whether the security services were evading bans on eavesdropping on their own nationals by swapping data on other nationals, such as Americans, with sister services, such as the NSA, the US equivalent of our GCHQ.  None was asked or confirmed whether our calendars, address books, or medical and bank records are being collected along with our emails and telephone transcripts.  None was asked or explained how we can be confident that the scale of the surveillance they conduct is not just convenient and helpful to them but also (in the words of Human Rights Watch) “necessary, proportionate, and subject to adequate safeguards against abuse”. None was even asked to comment on the cause of the immense leaks that have occurred in recent months — namely the American practice of giving access to colossal quantities of highly classified material to literally hundreds of thousands of soldiers and civilians, including contractors not even in the public service, without a thought for the basic principle of the “need to know”.  None was asked or volunteered to acknowledge that these leaks had revealed deeply disturbing and gaping holes in the whole system, that the scale of surveillance had got out of hand, and that drastic remedial action was self-evidently and urgently required.

It’s true that if I were a terrorist (which I assure you I’m not), I would be rather reassured to discover that in order to identify a dodgy email I had sent or an indiscreet telephone call I had made, the lads and lasses at Cheltenham would have to sift through billions upon billions of communications that they had inexplicably lumbered themselves with, of which 99.99% would be by definition utterly useless to them (although around 50% might come in handy one day to an aspiring blackmailer, I suppose).  Perhaps that’s why the head of the secret intelligence service was so outraged by the Snowden revelations and so sure that al-Qaeda would be “rubbing their hands with glee”.

The salient point that should have emerged from the ISC hearing, but didn’t, is surely this.  It is utterly unacceptable that any state organ — or any other institution, come to that — should be allowed secretly to collect and store and be able to read the contents of the personal electronic communications of entire national populations.  Knowledge is power, and no conceivable institution should be allowed to possess and potentially to exercise such overwhelming power over a whole population and more.  Sooner or later, if this industrial-scale intrusion is permitted to continue, that colossal power will be abused, and by then it will be too late to stop it.  As far as I could tell, watching the proceedings live, not one of the three witnesses at the ISC hearing, and none of the committee’s members, showed the slightest sign of awareness of that monstrous problem with which the latest revelations confront us.  That is seriously frightening.

Oversight of these power-hungry characters’ activities by a parliamentary committee manifestly unwilling to ask hard questions is clearly of questionable value. Even allowing for the constraints imposed by holding the hearing in public and on television, it’s very difficult to imagine any of the ISC members, hand-picked by the prime minister, seriously challenging the spooks even in their closed and secret sessions. A senior judge also has investigatory and supervisory powers over the three security and intelligence agencies but he or she reports in secret to the prime minister, so we aren’t allowed to know what malpractices the judge may have unearthed and what, if anything, the prime minister is doing about them.  I don’t know how else these largely unaccountable officials can be brought under control, and restrained from stealing and storing everything just because they can, at mind-blowing public expense.  Any independent invigilator, even a suitably sceptical judge, is liable to be immediately co-opted into the cosy magic circle of those who are, or who are encouraged to believe they are, in the know.  The security services charm, intimidate and control those tasked with supervising them by sharing a careful selection of their secrets with them, thus in effect gagging them as well as flattering them.  Somehow, though, these scandalous practices have got to be stopped, or we can say goodbye to some of our most fundamental liberties.  Remember the Stasi!

The basic jobs of the security service, the secret intelligence service and GCHQ are unquestionably vital and indispensable.  There’s no serious doubt that a huge majority of those who work in them are honest and committed, and often brave.  Much (but not all) of what they do obviously has to be kept secret.  But it is now clear that secrecy has come to mask abuse of power on a vast scale.  The Americans and other democracies are taking this seriously and debating possible remedies.  President Obama is trying to overcome NSA resistance to his plan to rein in their ability to harvest Americans’ data without any constraint.  Other democracies are overhauling their oversight systems.  It’s time we in Britain did the same, instead of furiously denouncing Mr Snowden and threatening the Guardian for telling us what we were entitled to know all along.

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At the other end of the scale, power is being abused in a different way.  We need to pay more attention to the growing habit of chairs (and some members) of certain parliamentary select committees — you know the ones I mean — of bullying and humiliating those summoned to appear before them as if conducting the Grand Inquisition, giving their defendants absolutely none of the protections and safeguards, such as the right to be legally represented, demanded by due process and the rule of law – in a word, by justice.  At some of these hearings there are apparently no rules of admissible or inadmissible evidence, no Fifth Amendment right to refuse to answer if the answer might tend to incriminate the accused, no protection from an impartial presiding judge or defence counsel against bullying by the prosecution, no right to receive, before the hearing, full details of the prosecution’s case. The Grand Inquisitor is judge, jury and prosecutor rolled into one: the defendant is on his own.

A hearing like this is not just an aggressive probing interview of the kind we watch on the BBC Newsnight programme or hear on the BBC Today programme. It is much more like a kangaroo court mated with a show trial, and on national television into the bargain: wonderful entertainment, but at a shocking price  Lawyers respect the principle of Equality of Arms in a proper trial, but in these virtual trials by parliamentary committee there’s no such thing.  Justice is not served by such one-sided proceedings and it’s deeply distasteful, however unsavoury some of the victims might be.

Some of our MPs are beginning to act like pit bull terriers and rottweilers.  Others behave like neutered pussy-cats. There really needs to be a middle way.

Brian

Grateful acknowledgements to the Huffington Post for the (slightly doctored) picture, which bears no resemblance to any real persons living or dead.