Why the UK GCHQ unlawful spying ruling may force president Obama to take action

Head of MI5 Andrew Parker, Head of MI6 John Sawers and GCHQ Director Iain Lobban.By Simon Davies

Last week, a British court ruled that UK spy agencies had acted unlawfully by partnering with the NSA in conducting mass surveillance through the use of covert interception programmes such as PRISM.

Make no mistake. Despite the bravado-ridden response of the British government to this ruling, the national security ground has shifted – and it has shifted in ways that are only now being understood.

Before discussing the positive outcome for citizen rights, it’s worth putting the ruling in a cold perspective. The news is not all good.

First, the UK government is right to say that the decision by the Investigatory Powers Tribunal (IPT) in favour of Privacy International  is a vindication of the general legality of what the agencies are presently doing. This is not good news for privacy. In some respects the court has taken the path of least damage to the government, and framed its ruling in a politically sustainable way. Only a sliver of PI’s claim has been sustained.

 Despite the bravado-ridden response of the British government to this ruling, the national security ground has shifted – and it has shifted in ways that are only now being understood.

Still, some commentators have taken the view that the court has struck a blow to the heart of state security. Others see it as a “stitch-up” (stitch-up is a wonderful British expression meaning to be fooled or set up).

In this latter view, the IPT’s ruling could be the worst of all possible worlds – providing the image of reform but actually setting a lowest common denominator of protection that inhibits any appeal to the European Court of Human Rights for a stronger pro-rights position.

The overall view expressed by media is that the ruling is a “rebuke” to the services. This would be a joyous outcome were it not for the fact that the government’s response has not reflected any shame that the agencies systematically broke the law and thus made liars from successive ministers who assured the public that all surveillance was being conducted strictly within the law.

It doesn’t help matters though that some media outlets are using the ruling to bash their competitors. The Guardian, for example, sanctimoniously lambasts its opposition for silence and complicity over the spying operations, but forgets that in 1997 it refused to publish evidence of the huge NSA/GCHQ ECHELON spying operation. That courageous disclosure fell eventually to the conservative Daily Telegraph. Media interest in covert operations involves complex and cyclic dynamics.

In one respect the result for current security operations is “Business as usual” as long as some level of basic disclosure is undertaken. That means I can burgle your house as long as I send a generic letter in advance saying that your possessions are at risk. Or I can undertake conspiracy to burgle as long as the documentation is in place.

This position stretches the legal principle of foreseeability to breaking point (foreseeability is a predominately EU protection that empowers individuals to know in advance about a possible violation of rights so they can take action to avoid being a victim).

The ruling was eloquently described by EU security expert Caspar Bowden as “a friendly venomous harpoon IPT hurled at the heart of the margin of appreciation”.

Media is right to point out that this is the first time in the IPT’s fifteen-year history that the court has ruled against the security services. But to imply that this decision is a sea change in the court’s position is like saying that that the notorious Kray Brothers had a Damascus transition because they showed a moment of compassion. As recently as December, the IPT issued (pdf doc) a somewhat dubious ruling that upheld the overall legality of mass surveillance by the security services.

The ruling was eloquently described by EU security expert Caspar Bowden as “a friendly venomous harpoon IPT hurled at the heart of the margin of appreciation”.

Bowden explains: “IPT is showing its true colours. By holding that a few cryptic paragraphs disclosed in the process of making an IPT complaint, it now makes these “safeguards” foreseeable with sufficient quality of law. For the European Court of Human Rights to find these disclosures are too obscure, it would have to overlook the fact that most ECHR states don’t have anything so spelled-out at all.”

The question of what – if anything – the European court can do with the UK ruling is a crucial one. Some experts believe that any appeal by campaigners to the European Courts will illustrate one of the key problems with ECHR doctrine. That is, the court really only reviews the “safeguards” and will not (usually) second-guess the substantive surveillance measures a state undertakes.

It would be folly to fantasise that the UK establishment will somehow be transformed by the latest ruling. Secrecy and obfuscation has sat at the heart of British rule for centuries. After all, this is the country whose intelligence oversight commissioner only last year repeatedly refused to appear before parliament for questioning, forcing the Home Affairs committee to issue a summons against him. It’s the country whose Attorney General doesn’t even bother acknowledging legal communications regarding the security services, such as those from the Privacy Surgeon.

Having said that, the British government’s response to the latest IPT ruling is humiliating in its desperation. True, the ruling of illegality applies only to security operations up until December of last year, after which there was a degree of disclosure, but to argue – as the government has done – that the violations are “historic” sets an absurd twist of language that could never apply to any other criminal action. If the government’s rhetoric was to apply to other crimes, it would imply that any transgression at any point before a court ruling is ‘historic’, and therefore that special considerations should apply. “Historic” conventionally applies to crimes from the distant past. This resort to cheap rhetoric has weakened the government’s moral authority.

On the more positive side, the IPT ruling has triggered an “Al Capone effect” which will expose the security services to further legal challenge and citizen action (you’ll recall that the American gangster Al Capone was brought down by a domino effect of events started by an incompetently worded income admission by one of his lawyers). In the same vein, the IPC ruling could trigger a chain reaction of important consequences.

First among these is that the British security services acted unlawfully. This is a crucial legal development. Once an act of illegality has been established, a series of legal opportunities clicks into place. UK residents – and quite possibly those of other countries – will most likely now be empowered to ask the services whether they have conducted an unlawful interception of communications. PI is also pursuing the idea of a class action for damages, which may also force further disclosure of documents and information from the security services.

Importantly, the ruling may also force President Obama to take action to honour his long-awaited commitment to protect the rights of non-US persons. Now that the NSA is formally complicit in the abuse of rights of overseas residents, the president has a responsibility to take action to mitigate those violations.