Several Civil Liberties and Human Rights organisations have, rightly, criticised the Detainee Inquiry for its lack of power to compel evidence from witnesses and its excessive secrecy, so they are therefore boycotting it,
e.g. The Guardian reports: Torture inquiry boycotted by human rights groups over lack of openness
The chairman, the Rt. Hon. Sir Peter Gibson, is the former Intelligence Services Commissioner, whose office was set up under the Regulation of Investigatory Powers Act 2000, whose censored Annual Reports never gave any details of anything, never criticised the Intelligence Agencies at all and consequently never inspired any public confidence that there was any effective independent scrutiny of the activities of intelligence agencies.
To be fair to Sir Peter and his predecessors, their role as Intelligence Services Commissioners are bound strictly by the Regulation of Investigatory Powers Act 2000 section 59 Intelligence Services Commissioner i.e. they are not allowed to attempt to scrutinise anything other than Part II Surveillance and covert human intelligence sources and Part III Investigation of electronic data protected by encryption etc. i.e. they have never been allowed to scrutinise any wider intelligence agency investigations or projects or policies.
However, unless Sir Peter Gibson takes immediate steps to demonstrate real independence from the intelligence agencies, Whitehall and Downing Street, his Detainee inquiry will be dismissed as a coverup and whitewash, even before it has really got going.
No explicit protection for whistleblowers
The identities of any potential or actual whistleblowers from within the intelligence agencies, who might contradict the official media line, will be of intense interest to the agencies involved and also to their UK peers and foreign rivals.
The fact that The Guardian seems to have been given access to British government's secret interrogation policy. This document was supposedly very secret, so there has been some sort of a leak to The Guardian newspaper.
If this is genuine, then it reveals a deliberate policy of covering up the the intelligence agencies' and the former Labour government's collaboration with torturers, whilst taking care not to dirty their hands themselves.
It is extremely unlikely that any of the prisoners who were tortured were ever classified by the intelligence agencies as Covert Human Intelligence Sources, so we will be amazed if Sir Peter admits that he was are of or had read the document published by The Guardian whilst he was the RIPA Intelligence Services Commissioner.
The Detainee Inquiry Protocols (.pdf) highlight the lack of any protection or immunity for individual whistleblowers from within the intelligence services.
Private Evidence Sessions
33. The Inquiry recognises that the operational details of the security and intelligence agencies will need to be considered in private due to national and personal security concerns. All evidence from current or former members of the security and intelligence agencies, below the level of Head, will be heard in private. The private evidence sessions of current or former crown servants, civil servants or Ministers may be attended by authorised representatives of the relevant departments, unless the witness has requested otherwise and the Inquiry accedes to that request.
Without an explicit, up front, guarantee that the Detainee Inquiry will not betray the fact of their existence or their actual identities, to the intelligence agencies, whilst they decide whether or not to grant them anonymity, why should any whistleblowers from within the intelligence agencies ever come forward to give evidence to the Inquiry ?
34. Other individuals wanting to give evidence in private will have their requests considered on a case by case basis by the Inquiry with reference to the following points:
(a) would the matters on which the witness will give evidence, if revealed in public, meet the criteria in Paragraph 1 of Annex A
(b) is there any genuine or sufficient reason (such as health or personal security concerns) why a witness would have difficulty appearing or being entirely frank in public? The Inquiry will consider sympathetically any request to give evidence in private from a witness who believes that he/she has suffered trauma in the course of his/her detention, or otherwise as a result of the matters about which he or she is to give
(c) would giving evidence in private ensure the witness‟s welfare, security or
freedom to speak frankly, for example in the case of junior staff who may wish to give evidence that runs counter to that of others?
(d) the extent to which a witness‟s concerns could be addressed by other protective measures short of hearing the evidence in a private session.
They have thought of "the case of junior staff who may wish to give evidence that runs counter to that of others", but they have not provided any immunity or whistleblower anonymity protection at all.
At the very least they should demand and publish, written undertakings from the heads of each of the intelligence agencies and from the Cabinet Office and the Prime Minister, guaranteeing that any such junior official whistleblowers will be protected from their colleagues and senior managers.
If the Detainee Inquiry does somehow manage to preserve the anonymity of any intelligence agency whistleblower sources, there must be a clear "don't ask, don't tell" policy for when intelligence agency staff next undergo their periodic Developed Vetting security clearance interviews - they should never be asked whether they contacted the Detainee Inquiry or not.
The letter from PM David Cameron to Sir Peter Gibson mentions some vague promises about protections for whistleblowers, but these appear to be really more aimed at giving immunity to the named senior witnesses from the Intelligence agencies, rather than to
any anonymous whistleblowers or potential whistleblowers.
The Cabinet Secretary and the heads of the intelligence services will require staff in their departments and agencies to cooperate fully with the inquiry and expect them to cooperate with the Inquiry's requests for oral evidence. The Attorney General has agreed to provide an undertaking that evidence given by witnesses may not be used against them in criminal proceedings, whether their evidence is given in public, private or both (other than in proceedings where he or she is charged with giving false evidence or conspiring to do so in the course of this Inquiry). The Cabinet Secretary and heads of the intelligence services will set out analogous undertakings to staff in respect of disciplinary proceedings based on their evidence, whether public or private.
This is dated 6th July 2010 i.e. over a year ago, but if these undertakings really exist, they have not been made public, as they should have been.
No protection from Communications Data snooping etc.
The Intelligence Agencies must be explicitly forbidden from treating the Detainee Inquiry and any potential whistleblowers who may be thinking of giving evidence, as targets for the powerful surveillance methods which they use routinely.
Knowing what we do about Communications Data Retention and Analysis abuses, there should be clear, public, written instructions from the heads of each of the intelligence agencies and from the Cabinet Office and the Prime Minister preventing these techniques from being used on the members of the Detainee Inquiry or their staff, their website, email addresses, landline or mobile phone and to postal mail etc.
This prohibition also needs to apply to the private phones, emails, social networking etc. of the families and friends of people associated with the Detainee Inquiry.
This public prohibition must also apply to any potential or actual witnesses who attempt to contact the Detainee Inquiry.
There must be no Communications Data snooping or Communications Interception authorised under the Regulation of Investigatory Powers Act 2000 and that no intrusive surveillance e.g. the planting of electronic bugging or tracking devices or cameras etc. will be subcontracted out to any Police units, under the Police Act 1997 part III.
There must be no attempts to recruit or coerce any Confidential Human Intelligence Sources amongst the Detainee Inquiry members and staff, or any or their sub-contractors or service providers (e.g. their website design or email hosting companies) , neither directly, nor from amongst their families and friends.
The Intelligence Agencies should also be forbidden from using their access to unregulated databases such as the ACPO National Automatic Number Plate Recognition Database or the London Congestion Charge monitoring vehicle journeys or the London Oyster Card monitoring Tube and Bus journeys etc. , or the e-borders access to Passenger Name Records from the airline and ferry industries, or CCTV footage in general, which they will be tempted to use to try to track down possible face to face meetings or document dead drops between Detainee Inquiry staff and potential or actual whistleblowers.
The Intelligence Agencies should be expressly forbidden from asking their colleagues and contacts in friendly foreign intelligence agencies e.g. in the USA, or in UK Police Forces, or private sector companies, to carry out any of these activities against the Detainee Inquiry or potential or actual whistleblowers, on their behalf.
These instructions need to be made public, so that staff at the Communications Service providers (telephone, mobile phone, internet and postal) are aware of them as well and can question or refuse even apparently "national security" requests for Communications Data or for Electronic Communications or Postal Intercepts.
GCHQ and MI5 should be given the budget and the explicit task of protecting the Detainee Inquiry from attempts to snoop on it by private military contractors, private investigators, foreign intelligence agencies, journalists and amateur hacktivists etc.
The current website Contact pages: http://www.detaineeinquiry.org.uk/contact/ provide no security or anonymity mechanisms to protect the identities of potential whistleblowers, either from foreign intelligence agencies, serious organised crime gangs, terrorists groups or from the UK intelligence Agencies, the UK Police, the press and media or from amateur or professional computer hacker wannabees.
At the very least they should publish a Public PGP Encryption Key and be properly trained in how to use it in conjunction with their published email addresses.
A Digital Certificate to encrypt a web submission form and a whistleblower submission workflow acknowledgement mechanism might also help with the credibility of the Inquiry.
see Leak Directory< wiki (backup site) for examples.