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The Intelligence Gap: what any review into alleged failings after recent terrorist attacks needs to address and who needs to address it.

June 6, 2017

Three terrorist attacks in England in as many months, the most recent on 3 June starting on London Bridge and ending in Borough market. In each case, there has been a suggestion that some of those involved were known to the intelligence services. Inevitably, there have been calls for a review. This is not the first time it has happened. The 7/7 ring-leader, Mohammad Sidique Khan was known to MI5 before the bombings and although the deputy Coroner cleared the security service of any wrong-doing for not paying him more attention, she recommended it improved the way it recorded decisions relating to target-assessment. This was a particularly significant recommendation since it was made in the context of what the Security Service had done since the bombings. Similarly, Lee Rigby’s murderers had been known to MI5 and one of them, Michael Adebolajo, had alleged that MI5 had persistently questioned him and had even attempted to recruit him. An inquiry by the Intelligence and Security Committee (ISC) found that the murder would not in any event have been avoided. So is it a case, as Joseph Conrad wrote in A Secret Agent, his prescient novel about a plan to bomb Greenwich Observatory, that “there are more kinds of fools than one can guard against” or as Paddy Ashdown tweeted, “more a lack of resources than dark spaces”?

What is clear is that the intelligence services have greater powers on the statute book than ever before. This includes the product of what became known as mass surveillance but is referred to in the legislation inelegantly as bulk powers. Bulk powers extend over the range of telecommunications and postal surveillance powers available to MI5, MI6 and GCHQ as well as a range of other public authorities. This includes the interception of communications, acquisition and retention of communications data, hacking and exploitation of what are known as bulk personal datasets. The legal basis for their use is now set out in the vast Investigatory Powers Act 2016 or the IPA. During its evolution, questions were asked about the “operational case” for their use. The then Independent Reviewer of Terrorism Legislation, David Anderson QC, was tasked to carry out a review and report. He concluded that there was a proven operational case in respect of their use with the exception of bulk hacking (which had yet to be made out) but added:

This Report has declared the powers under review to have a clear operational purpose.  But like an old-fashioned snapshot, it will fade in time.  The world is changing with great speed, and new questions will arise about the exercise, utility and intrusiveness of these strong capabilities.  If adopted, my recommendation will enable those questions to be answered by a strong oversight body on a properly informed basis.

David Anderson, tweeted earlier this week to say, by reference to his report on bulk powers, that it’s hard to argue their use is ineffective. This led to Professor Martin Scheinin, the former UN Special Rapporteur on human rights and counter-terrorism to say that, “if human intelligence gives you real targets, then some of the cases cited [by Anderson] might work and be justified as targeted surveillance”. This was a striking exchange: in less than two tweets, respected experts had encapsulated the modern surveillance dichotomy. The metaphor that has been used was wrong – it was not about finding a needle in an ever-larger haystack – its size was irrelevant if someone could point to it and say, “over here is where the needle can be found”. An effective counter-terrorism strategy, as the experience of Northern Ireland bears testimony, embodies both human intelligence – in all its guises (from acquisition and revelation of intelligence, its exploitation to infiltration) – and technical surveillance, including bulk powers, properly defined and above all, rigorously and independently scrutinised. The pressing issue for the intelligence services is not the nature of its powers but whether how their use of them has changed as they have increased and whether this has created an intelligence gap.

Any review needs to resolve this dichotomy, not engage in the futility of where to place blame. But it is not just the nature of the review that needs to be reframed but also who should have responsibility for it. Under sections 235 and 236 of the IPA, the new Investigatory Powers Commissioner may be asked by either the Prime Minister or the ISC to make a report into any matter. Later this week, once the country has a new government, it would be open to whoever leads it to direct an inquiry: its terms of reference defined, perhaps for the first time but no worse for it, by the tweets of two leading experts in their fields. It will also be a test of whether it the Commissioner will provide the strong oversight called for by David Anderson. If there is a failure to address this most pressing of issues there is a risk that more misguided fools may walk, as Conrad forewarned, “unsuspected and deadly, like a pest in the street full of men”.  

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