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Wednesday, 19 May 2010

Time to stop blaming the Human Rights Act and get over our secrecy hang-ups

What a difference a new government makes. The front page of the Daily Mail was not screaming that Britain has gone soft on terrorists (... from its front page, at least...) despite alleged al-Qaeda terrorists yesterday winning their appeal against deportation to Pakistan (BBC news, video) owing to the risk they could be tortured or killed if returned to their home country.

According to the Guardian the court ruled the Pakistani students caused a 'serious threat' to national security.  But this court was a Special Immigration Appeals Court (Siac), which can hear some evidence in secret but only has the power to rule over immigration and deportation issues.

For me this case raises several extremely important issues, yet the muted response from the mainstream media has focussed on the obvious scapegoat - the Human Rights Act.

The country does find itself in a predicament which probably deserves to be front-page news.  This case highlights a loophole whereby dangerous people could escape unpunished, remaining free in society to plausibly try again.

But in this case the Human Rights Act is a herring redder than Bob Quick's face when he was embarrassingly snapped clutching clearly visible secret documents relating to this case.  This blunder accelerated the initial police action against the men appearing in front of Siac yesterday, and this fact is pertinent.

The glaringly obvious issue is whether deportation is ever a fitting "punishment" for individuals who allegedly pose a serious threat to national security having, allegedly, been involved in the preparation of a terrorist attack against the UK, planned and to be executed from within the UK.

One of the reasons often given for our war in Afghanistan was to prevent oversees terrorists using the country to plan and train for attacks against the UK.  The war continues, presumably the battle against the terrorists there is not yet won.  So it's a mystery to me why any government would want to deport seemingly dangerous individuals to a neighbouring country sharing a famously porous border with Afghanistan - the hotbed of international terrorist activity (as we're told).

Ok, it's not a mystery to me. I'm guessing the reason deportation was chosen over a UK criminal prosecution for terrorist offences is that some of the evidence against the men is secret.

Siac can hear evidence in secret in deportation cases for non-EU nationals.  The same evidence would not be admissible in secret to a UK criminal court.  Bob Quick's blunder could also play a role here, if the timing of police action against these men was brought forward, cutting-short covert evidence-gathering against the alleged plotters.

The reason UK criminal courts can't hear evidence in secret probably does lead us back to the Human Rights Act and related constitutional rights, but denying right to a fair trial where the defendant can test the evidence against them in a court of law open to public scrutiny is perhaps just as wrong as allowing a man or woman to be sent abroad to be tortured or killed.

True, imprisonment due to a miscarriage of justice is certainly preferable to torture for the individuals concerned in this kind of scenario, but subverting the legal system in this way is dangerous to society as a whole.

The issue at the heart of this and several related terrorist cases, including controversial control orders, is secrecy.  Secrecy, not the Human Rights Act, should now be under the microscope.

A short article on the One Show (BBC 1, 10th May) looked at Russian maps of the UK from the cold war era.  The maps drawn in the 60s, 70s and 80s by Russian cartographers based on intelligence and (presumably) spy plane and spy satellite photographs contained an extraordinary level of detail, especially in respect to key civilian and military sites.

Map expert John Davies of sovietmaps.com pinpointed one now defunct naval dockyard that was censored from contemporary Ordnance Survey maps of the same area.  The Russian intelligence maps showed not only the establishment's buildings in great detail, but also the connecting rail and service roads.

I use this example to highlight that information, methods, details etc. that we think must be kept secret from our enemies may already be known by our enemies.

I read another more modern example describing how a certain police force from an unnamed country failed to bring prosecutions against key drug dealers because they didn't want to disclose the methods used to link the multiple mobile phone SIM cards used by each of the individual dealers, only to find that drug dealers had already learned of this method and adopted further precautions.  But on the surface this sounded quite like a plot-line from The Wire so please treat this second example with caution.

In any case it's clear, to me at least, that instead of eroding rights to be treated fairly under the law with due legal process and protected from torture or death, we must instead examine our attitudes to secrecy, and whether much of the information our police and security services feel must be kept secret from open court really does need to remain secret.

And finally... Many cryptographers believe that public scrutiny of the algorithms used to encrypt data actually make the resulting encryption more secure.  At first this seems to defy logic - why should publishing a major component of the encryption "machinery" make the machinery more secure?  Surely as many details as possible should be kept secret?

First and  foremost public scrutiny allows weaknesses to be found.  Many encryption algorithms have lived a thankfully short life due to flaws being discovered early in the development cycle thanks to public consultation.  This consultation has prevented flawed algorithms being used to protect personal data and prevent e.g. electronic fraud.

Time and time again, researchers and hackers have shown that one doesn't always need access to the encryption algorithm to uncover flaws, but early publication of the algorithm does help the good guys minimise the possibility of such flaws being present in encryption used to protect important data.

Maybe the same argument could be used for opening up some of the secret methods used to tackle terrorists.  Legal and public scrutiny of evidence-gathering could eventually help ensure more terrorists are caught and successfully prosecuted.

Like the example of the Russian maps, our enemy may already have learned our methods and worked around them, isn't it worth considering that the secrecy is only helping the terrorists whilst threatening too harm our human rights?

A bit of background reading:
I read this from the BBC, detailing Britain's "murky record of official secrecy".  I think as a society we really must investigate why a culture of secrecy still prevails in the fight against extremists, and whether this secrecy helps or hinders the fight against terrorism.


  1. In cryptography, reliance on "security by obscurity" is seen as an indication of weak protection measures. An example is the A5/1 cipher as used in GSM mobile phones. Originally kept secret, once details started to leak serious weaknesses were identified fairly quickly.

    Perhaps the need to keep counter-terrorism methods and tools under wraps implies a similar lack of robustness but there are at least a couple of reasons which might work against this argument.

    (i) The sensitive information may not be purely the abstract methods, but actual data/content. In cryptography, knowing with certainty any part of the cipher key will weaken the cipher. Thus in terrorism there may be facts on the ground which must be kept secret to maintain the advantage.

    (ii) Cryptography is developed in an abstract world. The designer of a cipher has a great deal of control over their design. Perhaps in counter-terrorism the options are far more limited, there is far less room for manoeuvre. If one intelligence technique does not work, perhaps there are simply very few other options. Intelligence officers cannot re-design their world as cryptographers can. If there are limited options, perhaps peer review within a closed group and best-effort obscurity for the public is the best that can be done in the circumstances.

  2. How about the true identities of those monitoring them is secret because they became their friends in order to do their monitoring work?

    My brother has done quite a bit of undercover work in his life as a police officer. His methods are available to anyone who wants them. Drama classes!

  3. Hi Helen - Similar issues already exist when criminal action is pursued against serious gangland criminals and "domestic" terrorism (Northern Ireland).

    I don't see why cases involving international terrorists should be treated any differently to other serious criminal cases which share similar problems such as protecting informants and police personnel against revenge attacks.

    Geoffrey Robinson wrote about this and related issues in the Guardian shortly before the Witness Anonymity Act 2008 was passed:



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