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  1. Law
December 1, 2007

Hope the Bugs Don’t Bite

By Spear's

Is phone tapping a pointless invasion of privacy or an essential part of intelligence-gathering in the post-9/11 world, asks Nigel West

Eavesdropping on private telephone conversations has been a useful source of intelligence since technicians learned the advantages of splicing copper wires, but since the atrocities of 11th September 2001 there has been an added urgency in the need for access to such communications.

Although the authorities fully recognise the value of the intercepts, perhaps revealing future plans and offering the opportunity to interdict terrorist incidents, the volume of material available for study has escalated to the point of being overwhelming. In High Net Worth circles, certainly, interception and hacking also appear to be on the rise.

Just last month oil fortune heir Matthew Mellon went to trial in London charged with hiring a private eye to hack into ex-wife Tamara’s emails during their divorce battle. His defence? He wanted disclosure information he was not getting through the court process.

In Britain, the Crown’s power to listen in to telephone calls was based in the royal prerogative, and until 1986 when the law was changed to establish legal procedures that would satisfy the European Court of Human Rights, a cabinet minister could authorise the police or MI5 to intercept the mail or telephone calls of individual suspects.

The delay was in part caused by a reluctance to discuss the matter openly, for fear that the potential targets would be alerted to the hazards of plotting over the telephone. The anxiety created a constitutional problem for President George W. Bush when he issued a secret decision directive that enabled the US National Security Agency to monitor the calls of terrorist suspects overseas, even if they were speaking to American citizens.

Since the creation of the Foreign Intelligence Surveillance Court in 1979, such warrants had been scrutinised by federal judges, but the Foreign Intelligence Surveillance Act had been passed before even fax had become widespread. Subsequently, cellphones, email and the internet have transformed the globe, creating an even greater challenge to security agencies seeking to prevent terrorist groups from exchanging information, money and technical data.

The gravity of the problem was highlighted by the suicide bombers that hit London on 7th July 2005, killing 54 innocent civilians on the buses and tubes, when two of the culprits were discovered to have been flagged earlier by the security service as having associated with other terrrorist suspects.

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However, no further action had been taken because of the need to prioritise limited resources. Some 5,000 students are known to have attended Pakistan’s religious schools, the madrassahs, but an unknown number of them have been radicalised.

The task of tracing them, placing them under physical surveillance, translating their conversations, penetrating their mosques and logging their contacts is a lengthy, time-consuming exercise, and inevitably with only finite numbers of watchers and technical personnel, hard decisions are made on whom to concentrate.

Analysing the telephone calls of these suspects, and joining the dots between the religious bookshops, outward-bound activity groups and prayer meetings is complex, and with only a few trusted linguists available to interpret what is being said, there is plenty of room for a potentially murderous zealot to build his own explosive device and carry it into a crowded area without detection.

Before the controversy that surrounded the revelation that the NSA had been routinely making ‘warrantless wiretaps’, the international counter-terrorism organisations had relied on three secret ways of combating al-Quaida. One had been a discreet watch on money transfers through the Swift system, based in Brussels, which for more than a decade had revealed the routes used by the money-launderers to send cash across the globe to finance atrocities.

Closing down these channels forced some groups, such as those implicated in the Madrid train bombings, to raise their own funds, usually through credit card crime, motor insurance fraud and drug-dealing. Their reliance on such crime made the groups more vulnerable to early detection through conventional police methods.

The second valuable counter-terrorism weapon was interrogation, preferably conducted in a hostile, isolated environment in which even the most hardened detainee, disorientated and unsure even which country he is in, will disclose future plans, and the identities of fellow plotters, in an effort to survive what he is encouraged to fear is a life-threatening struggle for survival.

Such information often has a short shelf-life, and must be acted upon quickly before the terrorists can take the appropriate counter-measures to protect themselves, but interrogation proved very effective, at least until some of the CIA’s so-called ‘black sites’ were closed.

Intervention by the European Union has denied access to the Swift exchanges; and the ‘special rendition’ programme, which removed suspects from their safe havens and placed them in secure cellblocks far from the reach of human rights lawyers, has also been terminated because of protests.

The matrix against which this information is laid comes from intercepted communications, ranging from indiscreet satellite phone calls made by Osama bin Laden to his mother, to steganography, the skill of concealing hidden messages in otherwise innocuous internet websites.

The NSA’s attempts to predict bin Laden’s movements across the Middle East were wrecked by Senator Orrin Hatch, who blurted out details of the operation after a confidential briefing, and publicity given to the international coordination of cellphone interception tipped off other targets to the technical skills exercised by authorities.

One London bomb suspect was traced across Europe as he travelled by train to Paris and Rome, evidently unaware that his phone would compromise his exact location for as long as it contained a battery

In such circumstances an almost contemporaneous reconstruction of calls made and received can provide valuable data, even if the actual conversation cannot be monitored instantly, especially if a cascade or chain of calls is initiated. These are the leads counter-terrorist specialists rely upon, but their effectiveness may depend on the speed with which the authorities in local jurisdictions can access the subscriber information.

To be told, after a suspect has been heard to make a call to a number in Spain, which moments later made a further call to the United States, that the FBI will require three months to compile a FISA application because the recipient may hold an American passport, cuts little ice with officers trying to prevent another suicide bombing. In some emergencies a FISA warrant can be applied for retrospectively, but the daunting bureaucracy, designed in a pre-internet era, is a handicap to efficient investigation.

The debate in Britain has moved on to the desirability of allowing telephone-tap evidence to be given in criminal trials, the prevailing argument having been that once knowledge circulated of the extent to which intercepts are used by the police, the criminals will move on to other, more secure methods of communicating with each other.

The views are finely balanced, for intercept transcripts are often hard to follow and the skill of the interpreter, familiar with local dialects, regional colloquialisms and al-Quaida jargon, can be paramount. Who would have imagined that the 9/11 plotters would have referred to the attack on the twin towers as “the wedding-party”?

The ability to log the time, destination and duration of a call, without the necessity of a warrant, perhaps months after it was made, gives the forensic investigator at the Joint Terrorism Analysis Centre a powerful tool as he pieces together the disparate parts of a complex diabolical plot, but if another outrage is to be prevented, the overall picture of the jigsaw puzzle must emerge quickly. Once the players have been identified, perhaps through their cellphone or landline ownership, more surveillance can be applied on the likely ringleaders.

The British government has accepted the need to rapidly expand the intelligence community, doubling MI5’s size, but there remain considerable pitfalls, even if the technological advantage is with the professionals.

Agent handlers and forensic experts take years to acquire their specialist skills, and the recruitment of suitable personnel with the right languages leaves the counter-terrorists susceptible to the very real threat of hostile penetration. More than 40 examples have been uncovered in the United States, where people with suspect backgrounds have been detected attempting to join the FBI, CIA, Homeland Security and other sensitive agencies.

There have been other cases in England, although thus far nobody has been prosecuted. However, if the demand for linguistic knowledge results in a reduction of vetting standards, hostile penetration will surely follow.

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