The Rt. Hon. Sir Peter Gibson
The Detainee Inquiry
35 Great Smith Street
Dear Sir Peter,
Please accept my apologies for this rather long email, but the issues it raises are of critical importance to the Detainee Inquiry.
I am writing to you on behalf of Spy Blog and its readership, which includes many people within the privacy and human rights audience and also people within the UK Government and Intelligence Agencies, as well as Foreign Governments and their Intelligence Agencies.
Spy Blog has been very critical of your (and your predecessors') Annual Reports as the appointed Intelligence Services Commissioners under the Regulation of Investigatory Powers Act 2000.
However, unlike some trained lawyers, human rights activists and even former British Ambassadors, we do *completely understand the constraints placed upon you by the relevant sections of the Act* and cannot believe that you are likely to have come across anything directly relevant to your current chairmanship of the Detainee Inquiry, which would question your independence and honesty.
Unfortunately, the Detainee Inquiry Protocol, which you have agreed with senior Government Civil Servants, is all very well for protecting senior managers and officials of the UK Intelligence Agencies from embarrassment or the threats of prosecution.
However, it is is totally inadequate, if you put yourself in the shoes of a potential whistleblower e.g a junior official or sub-contractor to the Intelligence Agencies, whose testimony might contradict the official corporate line, which the senior managers and officials of those Intelligence Agencies have been briefed with.
Currently, there is basically no Whistleblower Anonymity Protection offered by your Detainee Inquiry at all.
Therefore, no matter what evidence or testimony you hear in public or private and no matter what your public report actually says, the Detainee Inquiry will inevitably be portrayed as a coverup and whitewash - trust us on this - we have a lot of experience in dealing with conspiracy theorists.
Perhaps there are no real whistleblowers, with "smoking gun" evidence which would have a major effect on your Inquiry, but you cannot be sure that story you are hearing from the senior officials and managers of the intelligence agencies is actually completely true - they may themselves have been deceived by their subordinates.
However, if, as you claim, your Detainee Inquiry is really independent of Government, you must be seen to make every effort to encourage and protect even a single potential whistleblower.
Spy Blog would like to see you publish, on your public website, your requests / demands to those people mentioned in the Prime Minister David Cameron's letter of over a year ago, setting out the Terms of reference for your Detainee Inquiry i.e. the detailed Undertakings by the Cabinet Office and the Intelligence Agency chiefs and the Attorney General.
We also expect that the Advocate General for Scotland, the Rt. Hon. the Lord Wallace of Tankerness QC, should also re-iterate the promises of immunity from prosecution which the Attorney General for England and Wales and the Advocate General for Northern Ireland, the Rt. Hon. Dominic Grieve QC MP, should by now have made, bearing in mind the slight differences in the relevant Scottish legislation.
Spy Blog can "neither confirm nor deny" that we are in contact with potential whistleblowers within the Intelligence Agencies, who may or may not, be considering contacting the Detainee Inquiry.
Such whistleblowers may very well suggest lines of inquiry, or name specific documents or witnesses, which the Detainee Inquiry would be unprofessional not to pursue.
However, your published Protocol for the Detainee Inquiry is very obviously flawed, if you put yourself in the position of a potential whistleblower
There is one oblique reference to potential whistleblowers:.
"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?"
The Protocol does *not* provide any practical promises of whistleblower immunity from prosecution.
Just as important is the concept of "giving evidence in private". The Protocol may well suffice for hiding their testimony from the public and the mainstream media, but it does nothing to protect whistleblower or just potential whistleblowers, from identification and persecution by their colleagues and senior managers, cloaked under the veil of "national security" secrecy.
You need to give an explicit, absolute guarantee to potential whistleblowers, that you will *never* consult with members of the intelligence agencies about their potential or actual testimony or documentary evidence.
Publish all of the detailed Undertakings regarding criminal prosecution or internal discipline
The Detainee Inquiry should publish detailed copies of the "undertakings" promised in the Prime Minister David Cameron's letter of 6th July 2010 setting out the terms of reference for the Inquiry, especially:
"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. "
i.e. at least 8 written undertakings need to be published from:
1) Attorney General for England and Wales and the Advocate General for Northern Ireland: the Rt. Hon. Dominic Grieve QC MP
a) The Attorney General needs to clearly state that the Prime Minister's Letter of 6th July 2010 and the promised undertakings made by
"The Cabinet Secretary and the heads of the intelligence services"
constitute "official authorisation" and "lawful authority" under the
Official Secrets Act 1989 section 7 Authorised disclosures.
for the disclosure of any Official Secrets or Information via Questions, Statements, Evidence or Oral Testimony etc. offered to the Detainee Inquiry.
Such leaked documents or other tipoffs from insiders, may help to guide the Detainee Inquiry to demand documents or computer files or human witnesses etc., which even some of the senior management of the intelligence agencies may have been deliberately kept unaware of.
This legal immunity should be regardless of whether Detainee Inquiry evidence is published in public or kept private and must apply to any current or former member of the intelligence agencies, any other current or former Crown servant, or any other current or former Notified Government Contractor etc.
b) Since the Detainee Inquiry is not a court of law or a tribunal or an inquiry set up under the Inquiries Act 2005 and therefore has no criminal sanctions or immunity from prosecution, the Attorney General also needs to give a public undertaking, exempting the Detainee Inquiry members, staff , sub-contractors, witnesses and whistleblowers etc. from prosecution under the controversial
Terrorism Act 2000 section 58A.Eliciting, publishing or communicating information about members of armed forces etc
which requires his consent for prosecutions.
This specifically covers "attempting to elicit" information about current or former members of the armed forces, the intelligence service or police constables.
This even applies to those who have been criminally convicted, fired in disgrace or forced to retire, for breaches of security or corruption etc.
This obviously could apply to the Detainee Inquiry, as you will inevitably be "attempting to elicit" information about the identities of current or former Intelligence Agency staff, regardless of whether or not you actually publish any such information.
There is a statutory defence of having a "reasonable excuse", but that can only come into play after the modern day executive punishment ordeal of Arrest, Fingerprinting, DNA sampling, charging, Bail / Remand and a court appearance. Any arrest under Terrorism legislation, does permanent damage to one's reputation, regardless of whether there is ever an actual charge, let alone a conviction, because of the immediate knock on effect this as you are automatically and permanently put onto international travel and financial watchlists and databases and you remain the collective online memory of internet search engines, around the world.
The threat posed by this legislation could easily be used to harass and obstruct members of the Detainee Inquiry or their staff etc, given that they are certain to be asking about current or former members of the intelligence agencies and / or the armed forces and that whistleblower evidence or testimony may include such information, regardless of whether it is eventually redacted or censored in the final Detainee Inquiry report.
Therefore the Attorney General should prevent the chilling effect of this law from hindering the Detainee Inquiry by clearly undertaking, in public, not to allow any prosecutions under the Terrorism Act 2000 section 58A, which might conceivably arise.
c) Potential whistleblowers may currently have, or may formerly have had, access to information gathered under the
Regulation of Investigatory Powers Act 2000
Intelligence Services Act 1994
Security Service Act 1989
Police Act 1997 part III
Such legislation could prevent them from communicating relevant information to the Detainee Inquiry e.g. under RIPA section 19 the disclosure of the mere existence of Interception warrants, or RIPA section 54 the tipping off offences regarding demands for cryptographic keys etc ,
The Attorney General's public undertakings must make them exempt them from prosecution in relation to the Detainee Inquiry, in the public interest.
d) The various inchoate offences of conspiracy to breach the Acts mentioned above, should also be suspended in respect to the Detainee Inquiry and potential witnesses or whistleblowers
There must be no doubt at all in the minds of any potential whistleblowers or witnesses, that they will not ever be arrested or charged, let alone prosecuted, for making any whistleblower disclosures or leaks to the Detainee Inquiry.
2) Advocate General for Scotland The Rt. Hon. the Lord Wallace of Tankerness QC
He must publish the same undertakings not to prosecute under the legal system in Scotland, where it differs slightly from that in England and Wales or Northern Ireland, for example the
Regulation of Investigatory Powers (Scotland) Act 2000
3) Cabinet Secretary Sir Gus O'Donnell GCB
4) Chief of the Secret Intelligence Service MI6 Sir John Sawers KCMG
5) Director General of the Security Service MI5 Jonathan Evans
6) Director General of GCHQ Iain Lobban CB
7) Chief of Defence Intelligence, Air Marshal Christopher Nickols, CB CBE
These officials must make it clear that the Detainee Inquiry itself i.e. the members, secretariat staff, sub-contractors and all their their families and friends, must *not* be subjected to the powerful techniques of surveillance, which the Intelligence Agencies routinely deploy every day.
"Don't ask / don't tell about contact with the Detainee Inquiry" and Developed Vetting Security Clearance interviews
These officials also need to publish instructions for a "don't ask / don't tell" policy about attempted or actual contact with the Detainee Inquiry by potential or actual whistleblowers and any future Developed Vetting interviews or forms, for current or future staff
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 tried to contact the Detainee Inquiry or not.
No shame or blame should be attached to those officials who do choose to testify to the Detainee Inquiry in public or in private, regardless of how politically embarrassing that might be to their colleagues or superiors.
This "don't ask, don't tell about the Detainee Inquiry" policy needs to apply to both the current Developed Vetting (DV) interviews and forms handled by each of the intelligence agencies themselves and also to any future DV interviews conducted by the Defence Vetting Agency etc., when personnel move jobs to other intelligence agencies or government departments or private sector contractors or consultancies and vice versa.
Therefore, in addition, you need to publish a written undertaking from the
8) Chief Executive of the Defence Vetting agency - Jacky Ridley,
that the Defence Vetting agency will also operate the "don't ask, don't tell about the Detainee Inquiry" policy, when they conduct Developed Vetting interviews with former intelligence agency staff moving to other Government departments or List X private sector companies etc.
Get assurances that the Detainee Inquiry itself will never be treated as a national security investigation target
Some people within the UK Intelligence Agencies will inevitably take the view, that anybody cooperating with the Detainee Inquiry, will have broken the internal code of honour / "omerta" and can therefore not be trusted with any other confidential information. These people, who may be in senior positions of power and influence, must be given explicit, very clear and unambiguous orders, that anybody associated with the Detainee Inquiry is strictly off limits, for any "national security" investigation or snooping.
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, from the Cabinet Office and ultimately from the Prime Minister David Cameron, absolutely prohibiting these techniques from being used on the members of the Detainee Inquiry, or their staff, their website, email addresses, landline or mobile phone and postal mail etc.
This prohibition also needs to apply to the *private* phones, emails, social networking accounts etc. of the families and friends of people associated with the Detainee Inquiry.
Most importantly, 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 no intrusive surveillance e.g. the planting of electronic bugging or tracking devices or cameras etc. sub-contracted out to any Police units, under the Police Act 1996 part III.
There must be no attempts to recruit or coerce any Confidential Human Intelligence Sources amongst the Detainee Inquiry members and staff, nor any or their sub-contractors nor service any of their 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 alleged "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, tabloid or mainstream media journalists and amateur hacktivists etc.
Make http://www.detaineeinquiry.org.uk into a proper whistleblower leak website
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.
Publish a PGP Public Encryption Key
At the very least the Detainee Inquiry 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.
Document Meta-Data should be removed before public publication
Please learn from the mistakes made by the Hutton Inquiry etc. when it comes to censoring or redacting any emails or other documents, which the Detainee Inquiry decides to publish on its website.
Please ensure that you do not simply use Adobe Acrobat to put a black rectangle over sensitive personal data e.g. names or email addresses, which can be simply overcome by copying the censored data to , for example , Microsoft Windows notepad.exe.
Please ensure that you remove any sensitive digital or photo or scan or document Meta-Data before publication e.g. using the multi-platform ExifTool
This may all sound a bit paranoid, but the people the Detainee Inquiry will be dealing with, cannot be treated as ordinary members of the public - they have privileged access to powerful surveillance techniques, which, if there is any sort of coverup, will inevitably be deployed against the Detainee Inquiry itself, in order to hunt down and neutralise any potential whistleblowers.
Please feel free to contact Spy Blog for any technical assistance in beefing up your whistleblower anonymity protection protocols and procedures.
http://SpyBlog.org.uk - Spy Blog
PGP Public Encryption Key for firstname.lastname@example.org:
PGP Public Encryption Key ID: 0x281EBE28
Fingerprint: 9F7A 3F39 BA97 0148 2A1C 65F2 BDAC 5BBB 281E BE28
If you are researching, or writing, or protesting about anything to do with National Security, or Government spin and secrecy, you should take some basic precautions:
Hints and Tips for Whistleblowers
This constitutes a valid Electronic Signature, as per the
Electronic Communications Act 2000 section 7,
Electronic Signatures and related certificates