Court Rules UK Secret Agents Can Commit ‘Grave Crimes,’ Including Violence
“Today the investigatory powers tribunal decided that MI5 can secretly give informants permission to commit grave crimes in the UK, including violence.”
A London court on Friday ruled that Britain’s domestic intelligence service MI5 is permitted to commit serious crimes, potentially including murder, torture, and kidnapping, in a decision condemned by civil liberties groups as Prime Minister Boris Johnson’s new government moves to expand the power of U.K. security agencies.
The case focused on a decades-old policy that has allowed MI5 to grant informants legal cover for crimes as serious as murder, torture and sexual assault. The policy, known as “the third direction,” was only revealed to the public last year. British Intelligence agencies wielded third direction policy without oversight until 2012, before former Prime Minister David Cameron “asked a retired judge to oversee the guidelines,” according to the New York Times.
“Mr. Cameron acted shortly before he publicly acknowledged ‘shocking levels of collusion’ by British security forces in the 1989 killing of Patrick Finucane, a Belfast lawyer who defended members of the Irish Republican Army, during the so-called Troubles in Northern Ireland,” wrote the Times. “Unionist paramilitaries shot Mr. Finucane as he was eating at home with his family.”
The Investigatory Powers Tribunal (IPT), the body which hears legal complaints about the country’s intelligence agencies, ruled the third direction guidelines as lawful by a 3-2 majority.
“To accede to [MI5’s] argument would open the door to the lawful exercise of other powers of which we have no notice or notion, creating uncertainty and a potential for abuse,” wrote Prof Graham Zellick QC, one of the dissenting judges, noting that Parliament never approved of the policy.
The civil liberties groups who brought the case forward are similarly concerned about the consequences of allowing intelligence agencies to break the law without oversight: “If no prosecution authority is made aware when such a case occurs, then de facto the informant has been given carte blanche to act as they like,” Dr. Ilia Siatitsa, a legal officer at Privacy International, told the Times.
The Investigatory Powers Tribunal wrote that their ruling is meant to be used as “the service’s explanation and justification of its decision should the criminal activity of the agent come under scrutiny by an external body, eg the police or prosecuting authorities.”
While the court did not grant MI5 absolute immunity, essential details about any restrictions on the intelligence agency’s criminal activity remain secret. “Part of the IPT hearing was held behind closed doors with the media and lawyers for the claimants excluded,” reported the Guardian. “The tribunal has also published a secret or ‘closed’ version of its final judgment.”
The decision comes as Prime Minister Boris Johnson’s new government moves to overhaul espionage law, announcing plans to give MI5, MI6 and GCHQ “the tools they need to disrupt hostile state activity.” Critics like the National Union of Journalists warn that the proposed changes, such as the official secrets legislation, will make it easier to prosecute journalists who report on national security issues.
Notably, Johnson’s government said it wants to update espionage laws in the style of the U.S.
Civil Liberties Groups Pledge To Appeal
The coalition of civil liberty groups that challenged the “third direction” policy – Reprieve, the Pat Finucane Centre, Privacy International and the Committee for the Administration of Justice – have pledged to appeal the decision.
Maya Foa, Reprieve’s director, said: “The IPT’s knife-edge judgment, with unprecedented published dissenting opinions, shows just how dubious the government’s secret policy is. Our security services play a vital role in keeping this country safe, but history has shown us time and again the need for proper oversight and common sense limits on what agents can do in the public’s name.”
Dr. Ilia Siatitsa, a legal officer at Privacy International, similarly pointed to the dissenting opinions as a hopeful sign: “Today the investigatory powers tribunal decided that MI5 can secretly give informants permission to commit grave crimes in the UK, including violence. But two of its five members produced powerful dissenting opinions, seeking to uphold basic rule of law standards.”
Should MI5 Exist?
Professor Ross Anderson of Cambridge University argues that MI5, which was accused of “extraordinary and persistent illegality” by human rights group Liberty earlier this year after a court heard that the agency had lost control of its bulk data storage operations and had been using false information to obtain surveillance warrants, could be replaced by “a uniformed, disciplined service that’s subject to proper parliamentary and judicial oversight.”
“Were I a legislator, I would simply abolish MI5,” Anderson, the head of Cryptography at the University of Cambridge’s Computer Laboratory and a a Fellow of the Royal Society, told Forbes in 2014. Professor Anderson said Britain should transition to more transparent national security institutions like those of Denmark or Norway, where terrorism is dealt with by the police.
“One of the reasons intelligence services survive and get so much money is that politicians have an uncomfortable feeling that the services know something about them,” Anderson told Forbes. “Sometimes this is true, sometimes this is merely hinted at being true.”
Anderson mentioned the F.B.I.’s former leader J. Edgar Hoover as an example. Hoover tried to blackmail Martin Luther King Jr. into suicide, illegally targeted left-wing and civil liberties groups, instigated the murder of Fred Hampton, and committed numerous other crimes, yet Washington leaders refused to challenge the F.B.I chief out of fear that he would retaliate with compromising information.
Harry S Truman wrote during his presidency: “We want no Gestapo or secret police. FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail… Edgar Hoover would give his right eye to take over, and all congressmen and senators are afraid of him.”
“When you get this sort of thing going on at a systemic level in society, it’s not good,” Anderson told Forbes. “Once you start getting secret agencies that act as the Prime Minister’s personal bag of tricks, you are laying yourself open to all sorts of corruption.”