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Dennis Mitchell was a senior official at the Government Communications Headquarters (GCHQ) based in Cheltenham. He resigned in protest against the trade union ban imposed by the Thatcher government in 1984 at the electronic eavesdropping base, which is now the centre of a storm over huge surveillance operations by Britain and the US.
In a remarkably prescient comment, he described the agency as a powerful, unaccountable arm of government whose only watchdog was the workforce. ‘It is they on whom the general public must rely if errors of judgment, excessive zeal or malpractices are to be averted,’ he said. GCHQ staff, he added, had ‘considerable discretion . . .’
Mitchell described GCHQ as ‘an industrial complex . . . Its produce is intelligence. Intelligence imparts power: power which may be used to withstand a threat – or to apply one; to avert an ill, to bestow a benefit – or to exploit.’ He continued: ‘GCHQ staff have a moral responsibility, both corporate and individual, for the use to which that power is put.’
Throughout the debate triggered by revelations by the former US intelligence agency contractor Edward Snowden to the Guardian and Washington Post, ministers and intelligence officials have insisted that whatever GCHQ and its US counterpart, the National Security Agency (NSA), are up to, it is all entirely legal. But such assurances have to be tested against three key facts:
• The law allows government officials enormous discretion;
• Whether the law is upheld or not is entirely a matter for the people who are operating the machines that are intercepting communications; and
• The law cannot, in any event, keep pace with the march of sophisticated intrusive technology.
In the US, the NSA can search without any prior authorisation the emails, internet chats and browsing histories of millions of individuals. In Britain, William Hague, the foreign secretary who is responsible for GCHQ, says the agency rigorously abides by the law. Under the 2000 Regulation of Investigatory Powers Act, he can issue warrants allowing GCHQ to intercept communications.
But the targets do not have to be identified by the warrants. In other words, GCHQ’s lawful authority to eavesdrop is open-ended.
Controls over what the NSA can lawfully do, overseen by compliant secret court hearings, are loose enough. The documents leaked by Snowden reveal that GCHQ has described the UK’s even more relaxed legal constraints, when compared to those in the US, as a ‘selling point’ for the Americans.
This is the core of the ‘special relationship’ – what GCHQ calls a ‘pivotal partnership’. The NSA pays GCHQ to help do its ‘dirty work’, spending some £100 million over the past few years on GCHQ’s bases in Bude, Cornwall and Cyprus. In exchange for financial help and high-level intelligence supplied by the NSA, successive British governments (Labour administrations have proved more compliant than the Tories) have returned the favours.
Britain provides the NSA with Menwith Hill, the American agency’s largest eavesdropping station outside the US. The base on the North Yorkshire moors receives, transmits and intercepts information from satellites. But its position also enables it to plug into the international and domestic telecommunications network passing through Britain.
The relationship between the two agencies is reflected in a 1994 staff manual, which told GCHQ staff that the agency’s contribution must be ‘of sufficient scale and of the right kind to make a continuation of the Sigint [signals intelligence] alliance worthwhile to our partners’.
It admitted: ‘This may entail on occasion the applying of UK resources to the meeting of US requirements.’
As Snowden revealed more and more information about what the NSA and GCHQ were up to, US officials began to qualify their previous assurances. They talked about ‘inadvertent overcollection’, and people who may not have been the ‘intentional targets’. Documents leaked by Snowden showed the NSA claimed to have ‘direct access’ through its Prism programme to the systems of many of the major internet companies. And they revealed that GCHQ’s ambition was to ‘exploit any phone, anywhere, any time’.
A combination of lax legal controls, the ability of computers to pick up and store ever-increasing amounts of information, a deferential approach by most intelligence officials and internet companies, and the absence of effective accountability represent a threat democratic institutions have scarcely begun to meet.
Richard Norton-Taylor writes on defence and security issues for the Guardian. He is joint author, with Hugh Lanning, of A Conflict of Loyalties, GCHQ 1984-1991, New Clarion Press