The self-modifying enabling law

The UK government seems to be so pressed for time to get their Brexit legal framework going, that they’ve taken to translating old German laws to fill in the gap — with certain pernicious modern features. I thought this stuff about “Henry VIII” powers was just hysteria, but the proposed European Union Withdrawal bill is nothing short of a dictatorial power grab.

The text may be found here. Section 7 deals with “regulations” for implementing the law:

A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.

and in paragraph 4 we read:

Regulations under this section may make any provision that could be made by an Act of Parliament.

Compare to the German original:

Reichsgesetze können außer in dem in der Reichsverfassung vorgesehenen Verfahren auch durch die Reichsregierung beschlossen werden.

[In addition to the methods described in the Reich constitution, laws may also be determined by the government.]

Continue reading “The self-modifying enabling law”

An impressive display of openness and freedom

… in a secret trial. What’s that about?

The Guardian reports on the conclusion of the terrorism trial of Erol Incedal, who was convicted last year of possessing a bomb-making manual, but now acquitted at a second trial on the more serious charge of plotting a terrorist attack.

On each occasion, the evidence was carefully presented in one of three sessions. Parts of the case were in open court, with the press and the public free to come and go; other parts were held behind locked doors, before a jury whose members were warned that they could go to jail if they ever divulged what they had heard; and parts were held in intermediate sessions, in the presence of the jury and a small group of journalists who are prohibited – at least for the time being – from reporting what they learned.

This is definitely not an ideal situation — nobody claims that it is — but I am hugely impressed by the fact that so much care was put into finding a solution to difficult problems of secrecy and criminal justice, making an effort to provide information to the public wherever possible. Including a jury. Not to mention the fact that the state was willing to accept an acquittal, something that is unthinkable these days for a terrorism trial in the US. The trial judge “had originally acceded to a demand from the prosecution that the entire trial be heard in secret, and that Incedal, and the man arrested with him, Mounir Rarmoul-Bouhadjar, be identified only as AB and CD.” This was overturned by an appeals court, after criticism by MPs and civil-rights groups.

It’s ironic, but news like this revives my belief that the spirit of liberty survives in the UK. It’s not that I necessarily think that the courts made the right decisions, but the fact that they are treating civil rights as important counterweights to the demands of the security services, worthy of substantial effort and special procedures.

Information, which terrorists could use

If there are any terrorists reading this blog, I have to make a formal demand that you not read this post. Really. Terrorists must stop reading here. (You know who you are.)

According to an article in The Guardian

Following a ruling by Lord Justice Laws and Mr Justice Kenneth Parker, the police will now investigate whether possession of the seized material constitutes a crime under the Terrorism Act 2000, which prohibits possessing information that might be useful to terrorists and specifically “eliciting, publishing or communicating” information about members of the armed forces, intelligence agencies and police which terrorists could use.

That’s quite a broad mandate, and I think many people should be worried.

For instance, I happen to be in possession of information suggesting that the UK intelligence agencies and police and armed forces are led by incompetent politicians who have lost control of their own parties and are losing the support of the public, and who could themselves wind up in prison if the laws were fairly applied. It is easy to see how this information could be of use to terrorists if they knew. And now I have gone and published the information on this blog. (They may already know, but that is no defence under the law, so far as I can tell.)

If it comes to trial, I plan to argue that I couldn’t possibly have anticipated that terrorists would violate the terms of service of this blog by reading past the first line.

Checks and balances and the British constitution

There is a theory that says that Britain has a unified state, with Parliament supreme, more decisive and hence less considerate of individual rights than the American state, intentionally hamstrung as it is with checks and balances. Well, that’s the theory, but I’ve long had the non-expert impression that British governance has more practical checks on government power than the US federal government has. (Federalism itself is an important check on the US government, but whether it serves or vitiates the liberty of individual citizens depends very much on the nature of the state government. Germany, with both federalism and a deep understanding of the need for limited government seems substantially better at protecting individual rights than either of the U’s.)

A case in point is the government response to the David Miranda affair. The government has gone through its whole playbook, from dismissing the incident as a routine police matter to accusing its critics of condoning terrorism. The critics, both inside and outside of government, have not been silenced. And now, it turns out there is an official “independent reviewer of terrorism legislation”, with real power to interrogate police and government officials, and report to the public.

The Guardian reports

David Anderson QC, the government’s independent reviewer of terrorism legislation, who held talks with the Met police this week, will focus on schedule 7 to the Terrorism Act of 2000, which lets police detain people at ports and airports without grounds for suspicion.

This is giving cover to the Liberal Democrats, the codependent spouse of the surveillance-addicted Tories, to withhold support for the government action. And unlike American judges, who roll over as soon as the government whispers “national security”, British judges have been willing to demand fealty to the rule of law with respect to the materials seized from Miranda:

Two judges ordered the Met and Home Office to desist from using, copying or sharing the materials until next Friday unless it were for the purpose of ensuring the protection of national security or for investigating whether Miranda was himself involved in the commission, instigation or preparation of an act of terrorism.

To the extent that the security services in the US and the UK are on a rampage to demonstrate that no one can mess with them and count on them reacting in any way reasonably or proportionately (as I argued here, and more recently Bruce Schneier argued here), this is exactly the sort of moderate, calm, institutional response that is best calculated to reestablish the authority of democratic institutions. But possibly drive the security services to lash out even more ferociously.

The Home Office strikes back

The UK government has been aggressively defending its decision to interrogate Glenn Greenwald’s partner David Miranda for his links to Edward Snowden’s purloined NSA files. The Guardian reports

A Home Office spokesperson said: “The government and the police have a duty to protect the public and our national security. If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.”

Notably lacking from this utilitarian justification is a legal justification. As I remarked here, schedule 7 of the Terrorism Act 2000, which they seem to be using as their legal framework, interrogation is permitted only to determine whether the person is a terrorist, where a “terrorist” is specifically defined as a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

Absent from this list is “possessing information that would help terrorism”. The rest is just a smear, and the insinuation of what the journalists are “condoning” is just disgusting, reminiscent of the “fellow traveller” smears of the 50s.

Observations on the Terrorism Act 2000 [Updated]

Despite the incredibly broad powers granted to the police by the infamous section 7 of the Terrorism Act 2000, British police seem to have managed to overstepped their authority in detaining David Miranda. They don’t need any reasonable suspicion of anything, but their actions may only be directed toward determining whether the person is a terrorist.

I’m no legal expert, but I looked at the official text of the law, and found that the paragraph of the infamous schedule 7 on “power to stop, question, and detain” begins by confining the power to a single purpose

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

That paragraph, defining the people subject to detention under this act:

40 1) In this Part “terrorist” means a person who—

(b)is or has been concerned in the commission, preparation or instigation of acts of terrorism.

And yet, reports on the questioning of David Miranda say that they were not directed at linking him to any acts of terrorism, past or future:

The questions, [Miranda] said, were relentless – about Greenwald, Snowden, Poitras and a host of other apparently random subjects.

“They even asked me about the protests in Brazil, why people were unhappy and who I knew in the government,” said Miranda.

Note that the law seems (to the untrained eye) extremely specific about the permissible purpose of the detention and questioning. It is only for the purpose of determining if the person is a terrorist. Will the lawbreakers be brought to justice? Do we have to ask?

[Update 20 August, 4:30 pm] Joshua Foust has argued that, while the UK interrogation of David Miranda was regrettably extensive, they were probably legal under the Terrorism Act. I think he is confused here (though certainly I may be the one who is confused) about the distinction between the right of the police to detain someone. According to the Act,

An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

So there is no question that they had the right to detain him, since they have the right to detain anyone at all. What is at issue is their goal, as expressed in their actions during the interrogation. So, while they don’t need any reason to think the person is a terrorist, in fact don’t even need to think that they are, and could interrogate people chosen at random, they can only do so, as stated in the section of the Act quoted above, “for the purpose of determining whether he appears to be” a terrorist. Foust suggests that threatening to expose GCHQ could count as terrorism, under the portion of the definition that includes activity that “is designed seriously to interfere with or seriously to disrupt an electronic system.” That sounds pretty far-fetched to me, but it is in keeping with the pattern that we have seen, where security officials demand sweeping powers, codified in vaguely formulated laws, and then proceed to push the boundaries of even those laws and reinterpret them (secretly) beyond all recognition.

It’s a bit like firing an employee in the US: You don’t have to have any reason, but you can’t have an illegal reason. It can be because you have indigestion, or because an angel told you to fire her, or because she’s too beautiful, but it can’t be because her skin colour clashes with your wallpaper or she’s pregnant or is in a wheelchair. And evidence for your illegal reasons are not just your explanation of the firing (or lack thereof) but other comments and actions surrounding it.


The word “crypto-fascist” is one of those old-left words whose day has past. In its old meaning — a right-wing authoritarian (fascist) who conceals his true views (crypto, presumably on the uncomfortable model of crypto-Catholics) — has no currency. I propose, then, that this evocative collection of phonemes be repurposed for current circumstances, to mean

Cryptological fascism. The creeping co-optation of democratic states by the cryptographer class; the authoritarian impulse arising from the déformation professionelle of professional cryptographers.

I think that after the Cameron government decided to retaliate against the family of journalist Glenn Greenwald, either for his insolence in daring to embarrass GCHQ, or at the behest of the US for embarrassing their real masters in the NSA, there can be no question that the “someday” when government surveillance and secrecy might undermine democracy is now. Secrets inevitably corrupt human relations,. The vast industry devoted to secrets has created a society within our society that cannot but hold the rest of us in contempt, even as they claim — and probably even believe — that everything they do is for our good.  That is crypto-fascism. The impulse hasn’t changed, but the power balance has been shifted massively by new technologies.

A recent blog post by economist John Quiggin reminded me of an important perspective that is easily missed, when we talk of “the US government” or “the UK government” as though they were unitary entities. He writes

It’s hard to see what kind of power can protect the security apparatus now that it is operating, to some extent in the harsh light of day. In the Snowden matter alone, the security state has trashed relations with Russia, China, and most of Latin America, as well as gravely embarrassing its UK and EU client agencies, and yet they are further than ever from getting their man… At some point, surely this must become a political liability too costly to carry.

Much of the seemingly insane thrashing of the UK and US security apparatus is surely directed internally as much as externally. They are making their legal case and their utilitarian case to the parliamentarians, for sure, most of it behind closed doors, but they are also making their we’re-crazy-as-fuck-don’t-mess-with-us play, much of which by its nature must happen in public. (Because the foolishness wastefulness of the public display is what makes the crazy convincing. It’s the handicap principle, with clandestine agencies in the role of stotting gazelles.)

And that’s exactly the argument that I made before, the danger that Obama — convinced of his own rectitude — cannot even acknowledge: The main danger of this universal surveillance is not the way it will be used to target private citizens, though that is terrible enough (and it has already begun, in the case of David Miranda). It is the way it will be used to wage power struggles within democratic government, using private information against political opponents. The question is not if it will happen, but only when.

What happens if you forget the key?

Courts in the US and the UK have recently been ruling that criminal suspects may be forced to reveal cryptographic keys that encode files that may include incriminating evidence. US courts have been divided on whether this infringes upon the otherwise absolute right to avoid self-incrimination. I’ve never taken that argument very seriously — it’s certainly not in the spirit of the right to refuse to assist in prosecuting oneself to allow people to hide documentary evidence of a crime, just because the revelation would be “speech”.  But while people may be compelled to testify in court, and in some democracies may be required to assist police by correctly identifying themselves, it’s not usual for people to be compelled by law to reveal particular information, particularly when they may not know it. While perjury charges may be brought against those who testify falsely, the inevitable unreliability of memory makes perjury convictions difficult, and I thought impossible when the subject simply pleads ignorance rather than testifying to a falsehood.

In fact, the strongest argument for a right not to reveal a password is that it’s not the hidden data that are protected by the right against self-incrimination, but rather the admission that you know the password, hence are at least in some way in control of and responsible for them, that cannot be compelled. According to the Regulation of Investigatory Powers Act 2000 (that was apparently a banner year for civil liberties in the UK), “failing to disclose an encryption key” is an offence in itself. In 2009 a man was jailed for 13 months for refusing on principle to provide encryption keys to the authorities, despite the fact that he was not suspected of any crime other than not cooperating with the police.

I have encrypted volumes on my laptop hard drive — with old exam papers — whose passwords I’ve forgotten. I probably should delete them, but I haven’t gotten around to it, and maybe I’ll remember one of these days. Even if I did delete them, they’d still be there on my hard drive unless I took exceptional measures. So if customs officials ever took an interest in my laptop while I was entering the UK, I could end up in prison for up to two years. The only thing I could do to protect myself is either to destroy the hard drive, or have it erased, which is itself suspicious.

Unlike most other criminal offences, the offence of withholding a cryptographic key is impossible to prove, but also impossible to disprove. It is even impossible for anyone but the accused even to know whether or not there has been any offence. And if there has been no criminal offence — if the accused does not, in fact, know the key — there is no way to prove that. It is the democratic state’s version of the plight of the man being tortured for information that he does not have, so that he has nothing to offer to end the suffering.

Along these lines, I was wondering about the current state of the right to silence in British law, and there came a revelation in the form of the British authorities (oddly, the news reports are all vague about which authorities it was; presumably the UK Border Agency, but maybe agents from a secret GCHQ data-mining task force) detaining the partner of journalist Glenn Greenwald under schedule 7 of the Terrorism Act 2000. According to the Guardian,

Those stopped under schedule 7 have no automatic right to legal advice and it is a criminal offence to refuse to co-operate with questioning,

This is pretty frightening, particularly when these laws are being so blatantly abused to settle political grudges.

Suspicious is as suspicious does

This is an official government vehicle.

On the list of all-time great tautologies (though not quite as pithy as “It ain’t over til it’s over”) comes the comment of UK immigration minister Mark Harper, defending the government’s new policy of stopping foreign-looking people to check their immigration papers:

“‘They are not allowed to do it based on someone’s physical appearance. If, someone, when seeing an immigration officer, behaved in a very suspicious way, that might give us reasonable suspicion to question them,” Harper said. “It’s about how they behave, not what they look like. It’s not about their appearance or their race or their ethnicity.”

That sounds pretty clear: If they behave in a “very suspicious way” there must be a reasonable suspicion. Otherwise their way wouldn’t be very suspicious, would it?

One of the first things the new government did when it came into power was to cancel the previous government’s plan to introduce ID cards, because of fears that, well, people could be stopped on the street and asked to show them. The cards were dismissed as “expensive, intrusive“. I’m glad I’m a real foreigner. I have a card to show when I see an immigration officer and can’t resist behaving in a very suspicious way. British citizens who behave suspiciously (after seeing an immigration officer) have no recourse, and may find themselves waiting months to see an immigration judge.

Well, the US has had some success deporting unruly citizens to Mexico. Maybe that’s what Obama adviser Jim Messina has crossed the ocean to advise the Tories about.

How do you tell the difference between eavesdropping and ineptitude?

So, apparently, the Nassau County (New York) Police have a “joint terrorism task force”, and they can monitor residents’ web searches in more or less real time. And they paid a visit to a family that had searched for pressure cookers and backpacks online, as well as having revealed interest in news about the Boston bombing. I’m not an expert, but I don’t think it’s a good idea to go telling everyone that law enforcement is monitoring the contents of web activity. Aside from the fact that the monitoring itself is probably illegal, revealing operational capabilities tends to get people stranded in the holding area of foreign airports, where Americans get stabbed in the back. And it doesn’t matter what your motivations were for revealing the information. (Pressure cookers? Really? The whole reason for using pressure cookers to make bombs is that there are millions of them around, a very large fraction of which will likely never be used to kill or maim civilians. And backpacks.)

The next Edward Snowden should avoid contacting a journalist directly. Instead, he can just tip off local law enforcement to an important national security journalist’s involvement in some nefarious plot, and then feed them with the appropriate keywords that he’s trying to communicate. He’ll probably get a medal.

The story, as reported by the aspiring terrorist herself, has some delightful details that sound like they came from Monty Python:

Meanwhile, they were peppering my husband with questions. Where is he from? Where are his parents from? They asked about me, where was I, where do I work, where do my parents live. Do you have any bombs, they asked. Do you own a pressure cooker? My husband said no, but we have a rice cooker. Can you make a bomb with that? My husband said no, my wife uses it to make quinoa. What the hell is quinoa, they asked.

Again, I’m no expert on interrogation, but I’m just going to hazard a guess that “Can you make a bomb with that?” is not the sort of question that frequently leads to actionable intelligence.