4th November 2013: Today at the European Parliament in Brussels, Andrew Brons made the following contribution to a debate held in the Civil Liberties, Justice and Home Affairs Committee (LIBE) on the delegation of the CONT* committee to the Bulgarian border with Greece and Turkey 18th-20th September 2013.
The LIBE representative on the delegation was Stanimir Ilchev, a Bulgarian Liberal, who provided the Report for LIBE. He said that the EU had invested in a lot of surveillance equipment on the Bulgarian Turkish border. He said that many claimed to be fleeing the conflict in Syria but most did not have any documents. There were also unidentified people probably from North Africa. A third group came from Iraq and Afghanistan He said that Bulgaria had no experience in dealing with this problem. He said that a wire fence had been constructed on the Bulgarian side of the border. This was an attempt to re-direct would-migrants towards the checkpoint and prevent them from crossing where there were no checkpoints. He said that it was also Bulgarian Government policy to increase three-fold the number to be extradited back to their own countries.
He said that tension was rising in Bulgaria and that there had been Nationalist demonstrations in Sofia.
A disturbing aspect of the problem was that Turkish troops were advising the would-be entrants how to get across the border.
" You mentioned that there had been investment in border control equipment. Does this not prevent them from entering or does it just record their entry. About eighteen months or two years ago, we heard from the Executive Director of FRONTEX that no persons crossed the border from Turkey into Greece without being detected. However, they were allowed to cross and were held only long enough to document them. They were then released and either granted asylum or refused asylum and handed a written order to leave the EU. However, they were not compelled and their departure was not monitored-. Is this what happens in Bulgaria?
Mr Ilchev said:
"That's what happens in Bulgaria - more or less. You cannot stop women and children. Human traffickers seem to be involved. They come from the furthest parts of Asia Minor but they know where to cross and how to enter the EU. That is a sign of their being trafficked."
4th November 2013: Today at the European Parliament in Brussels, Andrew Brons made the following Point of Order at the beginning of a meeting of the Civil Liberties, Justice and Home Affairs Committee (LIBE).
(The background to this is that LIBE has got into a habit of holding half day meetings isolated from other LIBE meetings making it uneconomic (in terms of time and money) to attend. It held half-day meetings on 17th and 24th October and a one-day meeting on 3rd October. It is holding a half day meeting on 14th November that will be attached to no other meeting. It has also started to 'invent' meetings that had not originally been scheduled: one on 7th November and another on 11th November).
Andrew's tongue-in-cheek point of order was to the other two LIBE members present (the Vice President). The other 119 members were not present at the beginning, although four others did arrive later.
The President of the Committee was not present to hear this point of order, although one of his Vice Presidents deputised for him.
"I should like to make a point of order. We are always short of time in this Committee, because too many people wish to speak.
"I thought that I had worked out a solution:
"Instead of having consolidated meeting covering two or even three days, we could have a half day meeting here and then a half day meeting there divided by four or five days such as 17th September, the 24th September and 3rd October. We could then invent meetings that were not scheduled at the beginning of the year say one on 7th November and then another on 11th November, so that members would have made alternative arrangements. All of this would discourage members of LIBE from attending and relieve the pressure of time.
"I thought that I had invented this brilliant plan but I now find that our President had thought of it first. He is always one step ahead of me!"
30th September 2013: Andrew Brons reports on the Civil Liberties, Justice and Home Affairs Committee (LIBE) Hearing on Electronic Mass Surveillance.
The speakers were:
Marc Rotenberg from the Electronic Privacy Information Centre (EPIC) – a civil liberties NGO
Catherine Crump from the American Civil Liberties Union (ACLU)
Thomas Drake a former senior executive of the National Security Agency (NSA) - a whistle blower.
J.Kirk Wiebe, a former senior analyst of the National Security Agency (NSA)
Annie Machon, a former MI5 intelligence officer and former girl friend and colleague of MI5 officer David Shayler.
Jesselyn Radac, an American attorney who has represented six whistle blowers and is from the Government Accountability Project.
John Devitt from Transparency International Ireland.
The full presentation of each speaker can be seen and heard on the European Parliamentary website to which we have provided a link here. My summaries are brief and might contain some inaccuracies.
Marc Rotenberg said that his organisation was dedicated to protecting privacy in the modern age. He affirmed that governments have a right to secure the safety of their citizens. However, he believed that the NSA had turned the law upside down and had side stepped to ignore the law (legal restraints on their activities).
He urged the European Parliament to:
1. suspend trade negotiations with the United States pending an end to surveillance on citizens of EU member states.
2. look again at the methods of transferring financial and PNR data (passenger name records) to the United States. He said that when our data does to the United States, we do not have the protection enjoyed (theoretically) by US citizens. We do not have the safeguards that US citizen have in the Privacy Act.
3. help to establish an international framework for privacy.
Catherine Crump, of the American Civil Liberties Union, said that thanks to Edward Snowden (the NSA whistle blower), America was now having a debate about surveillance. She made a distinction between the traditional activity of security services – maintaining surveillance of foreign governments and its current practice of maintaining surveillance of whole populations. She said that there was surveillance of all communications into, out of and within the United States. She said that data was made available to the NSA and even to foreign security services.
The ACLU had tried to take legal action against the NSA but the Supreme Court had rejected it because the ACLU could not demonstrate that it had a legitimate right to pursue the action because it could not prove that it was subject to surveillance!
My questions and comments to Mr. Rotenberg and Miss Crump were:
“How does the National Security Agency extract the information desired from the great mass of data. It would require an army of analysts. Do they identify a list of persons and organisations in which they have an interest?
To what extent are American citizens disadvantaged by casual and non-political contact with people in whom the NSA has an interest. I am sure that members of the Suspect Class would not want innocent contacts to pay the price of that contact.
What is the information collected for? Is it just kept or is it put to use –perhaps in some illegal form?
How far and wide has the debate progressed in the United States? Who is driving the push for continued surveillance? Which interests and lobbyists have obstructed the interests of privacy? Do any of these have connections with foreign states? Is the data transferred to foreign states?
At our last hearing (on 24th September) a Mr. Caspar Bowden, an independent researcher, raised the point that the problems of surveillance was not just its use, as I had suggested earlier in the afternoon. It was the effect of the knowledge of surveillance that inhibited political activism or communication or even visiting websites that might be disapproved of. Is this the hidden purpose?
I think that I understood Mr. Rotenberg correctly that the security services do not see themselves as being bound by privacy laws or procedures. The implication of this is that whatever changes are made in the law, it is possible that they will have little impact”
Mr. Rotenberg said that when information is collected secretly, the motive is to facilitate power and control.
Miss Crump said that different means of extraction were used for different purposes. She agreed that the awareness of surveillance did have an effect of worrying members of the populace. In particular, journalists, were worried about contact with the ACLU
We heard from Mr J Kirk Wiebe via a video link from the United States. He said that the NSA had not changed the Constitution but they had changed the way in which it was being interpreted. In particular the right to intrude on the right of privacy, which was guaranteed by the Fourth Amendment, had been reinterpreted from probable cause to reasonable suspicion – a lower threshold to allow intrusion on privacy.
He said that General Odham had called for George W. Bush to be impeached and that Admiral Bobby Ray Inman had been equally critical of him.
Thomas Drake, the ex NSA executive had flown reconnaissance missions over East Germany during the Cold War but had not realised that his own government would take a leaf out of the STASI’s book.
He said that the security services acted in league with those of other countries and that the NSA was routinely violating the rights of its own citizens. When he went to the media, he was subjected to severe retaliation. He was prosecuted under the Espionage Act, as though he were a spy for a foreign power. Before he went to the media, he has made complaints through the prescribed channels.
Miss Annie Machon, the former MI5 intelligence officer, said that MI5 had been in existence for the last one hundred years but its existence had been acknowledged only in the last twenty years.
She said that the Official Secrets Act of 1989 had removed the public interest defence that had been in the 1911 Official Secrets Act.
The Select Committee on Intelligence and Security has been completely toothless until last year. It had no opportunity to ask questions of members of the security services.
She said that she and her former partner and colleague, David Shayler had blown the whistle on the behaviour of the security services such as: IRA bombings that had been known about but had been allowed to take place; government ministers being spied on; the withholding of evidence from courts of law so allowing innocent people to be convicted (by the use of PIICs); the funding of terrorist activity in Libya in 1996 that led to the loss of countless deaths of civilians.
She said that David Shayler had been convicted and imprisoned and that his brother and his friends who had nothing to do with his activities had been arrested (for the purposes of harassment).
She said that on security matters the media could be controlled and was being controlled by super injunctions, omnibus warrants and D-notices.
My Questions and Comments to Mr. Drake and Miss Machon were:
“Mr. Drake’s testimony that 11th September 2001 was the watershed (for surveillance) shows that whatever the purposes of the perpetrators of the outrage, the function it fulfilled was to provide a pretext for surveillance. To what extent did the NSA and other agencies have the desire for surveillance before it found this pretext that it needed?
You revealed the actions that were taken against you for revealing NSA activities. Have you ever witnessed it being used for wider political purposes against enemies of the Political Class for causes unconnected with surveillance?
Miss Machon, how is the data used? Are ministers and journalists threatened with exposure if they act in a way disapproved of? William Hague has shown a willingness to co-operate with the security services in the United States and has defended co-operation with the NSA. Has he done so willingly? I ask because some of his behaviour might be seen to have made him vulnerable.
Do the security services in the UK use information in wider political causes unconnected with the security services or surveillance?
Is there simply a bureaucratic desire to defend the institutional interests of the security services or does it have a wider political agenda? If so, whose agenda is it?
It is all very well to ask what would happen (with the information collected) if some bogeymen (Golden Dawn had been mentioned) came to power. I suspect that governments of many – perhaps all – persuasions might grasp the temptation to use the information.”
Responses from Mr. Drake and Miss Machon:
Mr Drake said that the desire for greater surveillance powers had stared in the Autumn of 2000 – a year before 9/11
Miss Machon said that ministers did not know what the security services had on them. She said that wider political causes did sometimes motivate security services’ activities but she did not elaborate.
She said that the Cold War had occupied the security services, as had the bombing campaigns of the IRA. When the Cold War ended and when (relative) peace came to Northern Ireland, they needed a role. She said that this coincided with the police deliberately confusing two distinct categories: terrorism and domestic extremism. (The Metropolitan Police had established the same unit to deal with both targets.)
Jessalyn Radack, the American attorney said that without Edward Snowden’s revelations, we would not have known the extent of surveillance. She said that the Bush Administration was prepared to destroy people’s careers to retaliate against whistle blowers. However, the Obama administration had used the Espionage Age (drafted to prosecute spies for foreign powers) against whistle blowers and had prosecuted more than any previous administration. It had tried to criminalise whistle blowers and even journalists considered to have helped them. She described whistle blowers as people prepared to risk their freedom and even their lives. She claimed that the NSA was hacking into information systems of foreign powers – friends and foes alike. She said that we needed laws to protect whistle blowers and journalists.
She concluded by saying that the choice offered between liberty and security was a false choice.
John Devitt, from Transparency International Ireland, compared whistle blower protection world wide and was concerned with the issue more broadly than other speakers. He said that the UK had realised that whistle blowing protection laws could improve public safety, following a rail disaster and the sinking of the cross channel ferry. He said that the EU provided little protection for whistle blowers. He said that the range of people protected was defined to narrowly, as was the range of activities on which people could inform. He said that whistle blower protection must cover defence and intelligence employees and that they must be allowed to reveal wrongdoing outside of their organisations.
My Questions and Comments to Mr. Devitt were:
“The EU is not beyond criticism when it comes to the war against whistle blowers. The Staff Regulations of Officials of the European Communities 2004 are supposed to protect the jobs of whistle blowers. However, they did not do much to protect the job of Marta Andreasen, who was employed as the Commission’s Chief Accountant, who was sacked for whistle blowing in the first year of the Regulations in October 2004. Indeed, not content with sacking her, they (the Christian Democrats and Social Democrats) blocked her appointment as a Vice President of the Budgets Committee, when she became an MEP in 2009.
The case of a former MEP (Ashley Mote) is much more sinister. He wrote an on-line book earlier this year exposing financial irregularities of the EU and mentioning that he had obtained much of the information from whistle blowers.. Within weeks, his house was raided by a whole posse of police officers. The raid was completely illegal since no purpose of the search was given to him. His mobile phone and computer were seized. It would appear that the police, acting on behalf of the Commission were searching for contacts he had had with whistle blowers.”
27th September 2013: In his final contribution of the week at the European Parliament in Brussels, Andrew Brons questioned Dr Reinhard Kriessl the Co-ordinator of Increasing Resilience in Surveillanace Societies (IRISS) following a presentation to a Civil Liberties, Justice and Home Affairs Committee (LIBE) hearing on the effectiveness of surveillance in fighting crime and terrorism in Europe.
"What proportion of planned terrorist attempts have been prevented as a direct result of surveillance as distinct from:
- attempts that have been successful from the perspective of the terrorists;
- attempts that have been aborted either through the ineptitude of the would-be terrorists;
- attempts that have been stopped because of the alertness of people on the ground?"
Dr Kriessl said that it was difficult to calculate because there was no reliable information. States did not always reveal that an attempt had been made.
This might be true but unless we can make an estimate of these proportions, it is impossible to judge the effectiveness of surveillance which was the subject of debate. It is sometimes argued that states use the real or perceived threat of terrorism to justify surveillance that is desired for other (political) purposes. We need to assess the validity of this argument.
27th September 2013: In his fifth speech of the week at the European Parliament Andrew Brons made the following contribution to a debate in the Civil Liberties, Justice and Home Affairs Committee (LIBE) following a presentation from Jens-Henrik Jeppesen, representing an organisation called the Centre for Democracy and Technology.
(The CDT was opposed to the US Patriot Act. It has made several proposals:
1. that the Act should be amended to prevent the bulk transfer of data and that transfer should be restricted to data of those persons suspected of terrorism.
2. that there should be better oversight of surveillance.
3. that excessive secrecy should be lifted and that companies receiving requests for data should be able to make those requests known.
4. the US must comply with the right to privacy of Non-US citizens.
5. that US law should reveal surveillance on individuals for purely political reasons.
6. that surveillance by backdoor methods should be outlawed.)
"The collection of personal data is always an intrusion though I have far fewer secrets than I used to have. However, we only feel that intrusion when the intelligence concerned is used for purposes other than the fight against terrorism. The use of data is a much more important question than its mere collection.
"I asked Mr Appelbaum (at an earlier hearing of LIBE on 5th September) in purely political struggles within and between states. He confirmed that it was and cited the Cointelpro Program in the US* . He also confirmed that security services of one country sometimes misinformed other states’ security services to legitimise military aggression.
"Perhaps the CDT should add a seventh proposal: that intelligence collected should not be used to influence political causes and campaign that are unconnected with terrorism.
Mr Jeppeson said that information collected (ostensibly) for the purpose of combating terrorism did flow from that purpose to others (presumably for purely political purposes).
Later in the afternoon, another contributor, Caspar Bowden, quoted my intervention and said that he disagreed with my view that misuse of data was much more important than its mere collection. He made the extremely important point that if the public believe that surveillance is taking place, it will inhibit them from acting or speaking or writing as they might otherwise have done.
It could even be argued, to extend Mr Bowden’s point, that the revelations of Edward Snowden might have helped the security services to achieve that objective.
* This targeted people and organisations unconnected with violence and did not restrict itself to collecting data but took actions to disrupt those organisations.
26th September 2013: On Tuesday afternoon at the European Parliament in Brussels, Andrew Brons made the following contribution to a debate after a hearing into Electronic Mass Surveillance held in the Civil Liberties, Justice and Home Affairs Committee (LIBE). This was made in response to an address from Darius Zilys, representing the Lithuanian Presidency of the Council.*
(The hearing was primarily about whether alleged actions of the US security services had breached a 2010 Agreement between the US and the EU involving the transfer of data relating to international financial transactions, subject to supervision by the transferring party on access to that data. The media have been alleging that the US security services have been by-passing the transfer procedure laid down in the Agreement and gaining direct access to the data without any oversight by the EU)
"Mr Zilys said that the US emphasis was on oversight – to see whether transfer of data was constitutional, legal under US law and was a desirable policy. They did not appear to have been concerned at all about whether it was legal under any other legal system – EU law, member state law or the laws of third countries or was that simply outside of the brief of those with whom you were negotiating?
"The US seems to think that there is only one form of law - US law - and that other laws are simply quaint tribal customs that need not concern them.
"Part of the problem seems to be that some of the access has been gained by using technology to by-pass the procedures in the Agreement. That access would be unaffected by any negotiations (between the EU and the US) or by any response from the EU. As Mr. Zilys said, the US security services have the technology to intercept communications that are not even sent to the US. Even if the Agreement were to be terminated tomorrow, that would not prevent the US security services from acting unilaterally.
"Our greatest hope is a political one, of a backlash from US citizens who cannot tolerate the intrusive actions of the National Security Agency, if only because it might eventually be used against them too.**"
* The Council contains one representative from each of the governments of the twenty-eight members. The Presidency of the Council is held by a different country after each period of six months. Lithuania has held the Presidency since 1st July and will continue to do so until the end of the year.
** US law makes a distinction between the safeguards for American citizens and Non-American citizens. Data relating to non-citizens only has to be relevant to the conduct of US foreign policy, whereas data relating to US citizens must be necessary for the conduct of US foreign policy. Whether this distinction has any practical effect is us to guess.
24th September 2013: Today at the European Parliament in Brussels, Andrew Brons questioned Rob Wainwright, director of Europol and Blanch Petrie, a member of the General Council of SWIFT* during a hearing in the Civil Liberties, Justice and Home Affairs Committee (LIBE) on Electronic Surveillance.
"(Mr. Rob Wainwright of) Europol has assured us that Europol has no relationship with the National Security Agency (NSA) or the Central Intelligence Agency (CIA) in in the United States. Is it also true that it has no relationship with the security services of member states? Does it supply them with information? Is it supplied with information by those security services?
"Is the data held by Europol restricted to information relating to people suspected of committing criminal offences? Would it ever be extended to people not suspected of committing crimes? I ask because the London Metropolitan Police Forces uses the same administrative unit to counter both terrorism and violent action on the one hand and disapproved of but non-violent political radicalism on the other.
"We have heard that Europol has a duty to investigate cyber crime at the request of member states but that it has received no requests from those member states, Would you have a responsibility to investigate allegations from individuals or organisations against member states or the governments of third countries that they have been committing cyber crime?
"Mrs Petrie said that SWIFT had zero-tolerance for those breaking personal security. Have there been many breaches by staff members and how are they generally dealth with? I found your assurance that there had been no breaches of security as reassuring. "However, have your investigations revealed any attempts to gain access to data by security services or by individuals suspected of working for them?
"Mrs. Petrie said that if SWIFT was compelled to reveal data, it would tell the person concerned. However, would SWIFT not be prevented by the laws of member states concerned from revealing the investigation to the person being investigated?"
In response Mr Wainwright said that Europol had no mandate to investigate cybercrime by member states.
He said that Europol did have a relationship with the security services of member states but the relationship was only sporadic and was concerned with terrorism.
He said that people were investigated for criminal activity.
Mrs Petrie said that if SWIFT were prevented by law from revealing an investigation to an investigated person, it would not do so.
* SWIFT is the organisation that arranges the international transfer of money.
24th September 2013: Today at the European Parliament in Brussels, Andrew Brons questioned Cecilia Malmstöm during a hearing held in the Civil Liberties, Justice and Home Affairs Committee (LIBE) on Electronic Mass Surveillance, with particular reference to allegations that the US National Security Agency had been gaining access to SWIFT data on financial transactions in contravention of the EU-US TFTP Agreement concluded in 2010.
"Do you suspect that the category of targeted individuals whose data the National Security Agency (NSA) is interested in, goes beyond those suspected of being involved in terrorism and serious organised crime.
"Mr Appelbaum, who addressed a LIBE hearing recently into wider NSA surveillance, claimed that investigative journalists and political activists not involved in terrorism or other violence, were also targeted.
"How wide is the category of people that can be investigated legitimately under the Agreement. Is it limited to people suspected of being involved in terrorism or serious organised crime.
"How precisely is the term 'terrorism' defined? The USA has in the past refused to recognise the IRA, the Contras in El Salvador and currently the Islamists among the Opposition in Syria, as terrorists. Can the actions of states be regarded as terrorism?
"How can the United States override those safeguarding against improper access to the data? If they cannot prevent the US, the procedures at the very least need to be re-written. Alternatively the people responsible for exercising the safeguards need to be replaced."
In response Mrs Malmström said that terrorism was defined in Article 2 of the 2010 Agreement. She said that if the USA did indeed go beyond those definitions, it would be breach of the Agreement.
The Agreement is to be found on the LIBE website for 24th September.
20th September 2013: On Wednesday at the European Parliament in Brussels, Andrew Brons made the following contribution to a debate following a hearing in the Civil Liberties, Justice and Home Affairs Committee (LIBE) on a Roma Integration Strategy.
"If there is anything worse than an intended slur on a whole people, it is an unintended one. Why? Because an intended one might be driven by malice devoid of facts, whereas an unintended one might be driven by a perception (or perhaps misperception) of reality.
"What is this dreadful slur? It is dreadful but subtle.
"The Roma are depicted as a people who have had things done to them but have done nothing for themselves or to themselves. They are depicted as a people who can claim no credit for their achievements and no responsibility for their flaws. "Indeed they are depicted as a people who can do nothing for themselves and must have things done for them.
"What can be more demeaning than to be depicted as such a people?
"It is often said that you cannot make generalisations about a people. What we ought to desist from doing is applying generalisations to individuals without cause.
"What generalisations can be made about the Roma. Well, there are several about their economic and social conditions and we have heard about those this afternoon.
"Can their way of life be changed by others for them? They cannot without their consent and it could be said that a people should not have a way of life imposed on its members. Opportunities should be provided especially for children but co-operation requires consent.
"Can generalisations be made about their behaviour and experiences?
"There was a hearing in LIBE (two years ago) on Human Trafficking, addressed by a senior member of Europol. I asked very cautiously whether any population groups were disproportionately represented among the human traffickers or among the trafficked. He replied: “The answer to both questions is the Roma”.
They are disproportionately both the victims and the perpetrators. Pretending that this is not so, will not enable the problem to be solved."
18th September 2013: Today at the European Parliament in Brussels, Andrew Brons made the following contribution to a debate after a hearing of presentations in the Civil Liberties, Justice and Home Affairs Committee (LIBE) from Professor Henri Labayle and Professor Philippe de Bruycker on the subject of "Democratic accountability and parliamentary control in the area of freedom,security and justice - towards the negotiation and adoption of the Stockholm Programme's successor for the period 2015-2020".
Andrew reports . . .
There were only about three MEPs at the beginning of the hearing. By the end I was the only member of LIBE in the audience. The only other MEP present was the President of the Committee on the platform.
Professor Labayle spoke about there being several 'imbalances' between concerns of the European Parliament. He mentioned one between the need for security and the need for freedom and another between the rhetoric and practice policies against discrimination.
"The imbalance not mentioned by Professor Labayle is the imbalance between the rhetoric and the practice of democracy and freedom of expression.
"Political parties are banned or attempted to be banned in Belgium and Germany respectively.
"European Political Parties are encouraged and facilitated but they are told which views they may and may not hold.
"We are told that freedom of expression is so important but a serious Presidential candidate in France, a member of this House, is being prosecuted for a speech in support of her candidature. People are prosecuted throughout Europe for written and spoken words that do not contain even a hint of violence, threat or incitement to violence.
"I think that it was Nietzsche who said that when an idea is put into words, its time has passed.
"It is certainly true that those who talk most about freedom and democracy mean it the least.
"For freedom read repression. For democracy read control, restriction and exclusion."
Although I was the only speaker in the debate, neither of the speakers on the platform responded to my words.
I did say:
"I had intended to say that I was speaking as 33.3% of the audience but I now realise that I am 100% of the audience and 50% of the LIBE membership, including you Mr. President. Attendance was much higher yesterday I constituted about 12% of the audience!
Before we arrange further hearings, could we not ask how many LIBE members are prepared to make some sort of commitment to attend. Holding a hearing to which hardly any attend is a waste of money and very discourteous to those invited.