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To catch a spy

How Islamists learnt to sue MI6

10 September 2011

12:00 AM

10 September 2011

12:00 AM

When Tinker Tailor Soldier Spy opens next week, it is likely to have all the spooks in London flocking to the cinema. John Le Carré, who wrote the book and helped direct the film, created a wonderful, almost romantic world of British espionage — mental chess games played against deplorable, but often brilliant opponents in Moscow. How things have changed. Nowadays the spying game means analysing Islamists’ rants, befriending ghastly regimes, fighting ambulance-chasing lawyers and having embarrassing secrets sprayed all over the press.

One almost feels sorry for Sir Mark Allen, who was MI6’s head of counter-intelligence when Tony Blair was sucking up to the Libyans seven years ago. His job was to make friends in Tripoli, so it appears he sent some gushing letters — leaked last week — referring almost reverentially to Col Gaddafi as ‘the Leader’. Worst of all is his cheery reference to Abdel Hakim Belhadj, a Libyan rebel whom the Brits had sent to Tripoli. And with reason: Belhadj was a member of an Islamist Libyan group, then linked to al-Qa’eda. His rendition was probably sanctioned by Jack Straw, then foreign secretary, at a time when Britain’s security services very much feared a new terrorist attack.

But that was then. Gaddafi has gone, and the idea of dealing with him now seems repugnant. Belhadj has emerged as a commander with the triumphant Libyan rebels — and is talking about suing MI6. This is no surprise. Suing Brits is now standard operating procedure for any terror suspect released from interrogation. The template has been set by Binyam Mohammed, an Ethiopian found in Afghanistan by the Americans and sent to Guantánamo Bay. As he previously lived in Britain, and was questioned on behalf of MI5, he sued. The courts refused to allow Britain’s spooks to give private evidence. If they wanted to defend themselves, they might well have had to declassify sensitive documents — including information shared by the CIA.

This is the million-dollar loophole. To publish shared intelligence would appal the Americans, who would radically scale back co-operation. So the government settled, and Binyam Mohammed shared more then £10 million with the 15 other Guantánamo detainees who had been living in Britain. Such a jackpot sent out a loud, clear message: that Britain, already the world’s centre for libel tourism, was just as lucrative for terror suspects. MI6 is a dripping roast. Anyone, anywhere, can try their luck here simply by claiming to have been interrogated by a British officer when in captivity.

This is spy-baiting, a new form of spy-catching played by terror suspects rather than other spies. It is possibly the game a Kenyan car dealer named Omar Awadh Omar sought to play after he was taken to Uganda and interrogated over  bombings in Kampala last year. He now says that British officers had been part of his interrogation, and he hired London lawyers to demand MI6 hand over any file they had on him. It would be a fair bet: the global nature of terrorism, and the phenomenon of the jetset jihadi, means MI6 is likely to hold files on a foreign terror suspect.
MI6 was lucky. A fortnight ago, a judge ruled that the spooks had no obligation to hand over anything. It was a close call. Had MI6 been ordered to disclose documents, it would have been dragged into another lengthy legal battle — causing further concern among allies of another failure to protect sources. The spies are caught in a legal trap. Theresa May, the Home Secretary, is soon expected to outline ways of dismantling the trap, offering greater scope to deal with such lawsuits in private. But the Americans have had enough, and are already more reluctant to share intelligence. The category ‘NOFOR’ — no foreign eyes — has become the new norm for CIA documents.

Handling terror suspects is, for British spooks, a relatively new problem. Until recently, MI6 didn’t interrogate anyone. Its business was to run secret agents in foreign countries and indulge in what John Le Carré called ‘tradecraft’. But the rules of this game changed utterly on 11 September 2001, when Western intelligence agencies suddenly found themselves on an urgent global manhunt and had to co-operate with their counterparts in all manner of unpleasant autocracies. The practice of moving suspects from one country to another predates the Cold War, but only recently has it been know as ‘rendition’.

The vocabulary sounds as fanciful as that of any novel. There are several categories of rendition: military rendition, rendition to justice, rendition to capture. All of these are legal ways of transporting suspects to other countries, sometimes for trial. Extraordinary rendition, moving a suspect to a place where he can be tortured, is illegal. The British spooks are explicit about where they draw the line. Sir John Sawers, newish head of MI6, said in a speech last year that torture is ‘illegal and abhorrent under any circumstances’. Even if torture would stop an act of terrorism, MI6 would not use it. ‘Some may question this,’ said Sir John. But it makes spies ‘strive harder to find different ways’ to fight terror.

A bold and principled stand, perhaps — but how does it square with bundling a Libyan dissident off to the notoriously brutal Gaddafi? Did they expect the suspect would be tickled with rose petals until he confessed? The answer, in this case, appears to be that MI6 only handed over Belhadj on condition that he would not be tortured and sent two agents to check on him later. Belhadj now says he told these officers in hand gestures that he had been tortured.
The High Court may well be his next stop. Then there is the court of public opinion: is this cosiness with tyrants the price we paid for a WMD-free Gaddafi who could be toppled by a ragtag army of rebels? Did we draw the line in the right place?

The front line of British spying in the 21st century is not an iron curtain, but a debate about what is legally and morally defensible. In the 1960s spies could agonise over this in private. Now the debate is held by judges and politicians, in front of newspapers and inquiries. No doubt for the better, but it rather drains the romance from spying. Little wonder that Le Carré and his world of mystery and nostalgia are back in fashion.

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