The problem with the secret service – is the secrecy

Today the British intelligence agencies and the Ministers responsible for them will be under the spotlight in a historic case to determine whether mass communications surveillance is lawful.

Thanks to the revelations of whistle-blower Edward Snowden, made public last year, we know that the US and UK intelligence agencies were conducting wide-ranging surveillance programmes, involving the interception and collection of people’s private correspondence.

This week’s hearing will be the first time that these UK government agencies, including the notoriously shady GCHQ, have appeared in a public hearing to answer direct allegations and state their position on the mass surveillance operations as a whole, since those revelations.

The problem with the secret services, though, is the secrecy.

It is very difficult to interrogate the legality of a programme of surveillance, when the people having done it, refuse to acknowledge it happened.

The UK programme, called ‘TEMPORA’ has been a bone of contention since the start of these proceedings. GCHQ refuses to acknowledge that it exists, despite tacitly acknowledging it exists, by defending the legal basis for its existence.

They will, therefore, be defending the necessity of having carried out a programme of surveillance they do not acknowledge they carried out. Curiouser and curiouser.

It puts me in mind of Billy Bunter’s confession-denial; “I never saw your ghastly cream cake, and when I did I didn’t eat it.”

GCHQ – UK Government Communications Headquarters ©David Goddard/Getty Images
GCHQ – UK Government Communications Headquarters ©David Goddard/Getty Images

That’s not to say they completely deny it. Nor that they confirm it. The first rule about Tempora, it seems, is …. You can neither confirm nor deny the existence of Tempora.

This is a popular refrain from the intelligence agencies, who are unable to ‘confirm or deny’ very much at all. It verges on the ridiculous.

Wired reported that at a preliminary hearing in February, there was some jovial discussion over the pronunciation of Tempora and whether the emphasis should be on the “Tem” or the “por”. When called on to advise as to whether they were pronouncing the code name correctly, government counsel could… neither confirm nor deny.

While all this will be hammered out in the courts this week, meanwhile in Parliament, there will be a ‘debate’ on Tuesday, on the newly proposed ‘emergency’ Data Retention and Investigation Powers Bill, we saw hurried out last week.

I say ‘debate’ – because the Bill has apparently already got cross-party approval from the entire political establishment. I say ‘emergency’ because there was ample time to consult on this legislation, but clearly the government would prefer a quiet back room deal.

So is the timing of this new legislation – which coincides with this historic legal scrutiny on surveillance – just a coincidence? Professor Heather Brooke who was set to sit on the panel of an Independent Surveillance Review, briefed to examine what’s happened in the past and advise on future policy, thinks not. She told the Evening Standard: “A legal case begins on Monday in which Liberty, Privacy International and Amnesty International are challenging GCHQ’s mass interception and data collection.

“The Government seems very worried that the Investigatory Powers Tribunal might find what they’ve done to be illegal.”

An interesting theory about our government’s motive there from Professor Brooke. One that, personally, I could neither confirm, nor deny.