News of the secret plan tell a tale of inter-agency squabbling that exemplifies well-known intelligence failures before the attacks of 9/11, but the revelations also speak to the wide and nefarious reach of US “state secrets privilege,’ a legal doctrine that permits the US government to shut down litigation on the grounds of national security. In this case, accusations contend that the US government invoked the privilege, not to protect national security, but to avoid potential embarrassment for intelligence failures years after they had occurred.
The news is relevant now in Britain as the government considers implementation of a ‘state secrets’ law based on the US model.
The US government shut down a series of court cases arising from a multimillion pound business dispute in order to conceal evidence of a damning intelligence failure shortly before the 9/11 attacks, MPs were told.
Moreover, the UK government is now seeking similar powers that could be used to prevent evidence of illegal acts and embarrassing failures from emerging in court, David Davis, the former shadow home secretary, told the Commons.
The Justice and Security green paper being put forward by Ken Clarke’s justice ministry has already faced widespread criticism from civil rights groups, media representatives and lawyers working within the secret tribunal system that hears terrorism-related immigration cases.
Davis demanded to know how its proposals could be prevented from being used to cover up crimes and errors. “In light of previous revelations about the UK government’s complicity in torture and rendition of detainees to locations like of Libya, Afghanistan, or illegally into American hands … how will the Government prevent the Justice and Security green paper proposals being misused in a similar way to cover up illegal acts and embarrassments rather than protect national security?”
Davis said that in 1998 the FBI seized upon an opportunity to eavesdrop on every landline and telephone call into and out of Afghanistan in a bid to build intelligence on the Taliban. The Bureau discovered that the Taliban regime had awarded a major telephone network contract to a joint US-UK venture, run by an American entrepreneur, Ehsanollah Bayat and two British businessmen, Stuart Bentham and Lord Michael Cecil.
“The plan was simple” Davis said. “Because the Taliban wanted American equipment for their new phone network, this would allow the FBI and NSA, the National Security Agency, to build extra circuits into all the equipment before it was flown out to Afghanistan for use. Once installed, these extra circuits would allow the FBI and NSA to record or listen live to every single landline and mobile phone call in Afghanistan. The FBI would know the time the call was made and its duration. They would know the caller’s name, the number dialled, and even the caller’s PIN.”
But the plan, Operation Foxden, was delayed by a turf war, during which “the FBI and the CIA spent more than a year fighting over who should be in charge”, he said.
The operation was eventually given the green light on 8 September 2001 – three days before the al-Qaida attacks. “A huge opportunity was missed,” Davis said.
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David Davis, the former Conservative shadow home secretary, disclosed details of the “extraordinary” case to illustrate why the Coalition should abandon plans to allow similar secret hearings for intelligence cases to be held in British courts.
He said that the American authorities had “sealed” a case in a US court relating to a dispute between two British businessmen and an Afghan billionaire over the setting up of a mobile phone network in Afghanistan in the late 1990s.
And the Huffington Post/UK adds:
“The US intelligence agencies feared the consequences if the truth about their in-fighting emerged and they were determined to stop that truth from emerging,” Davis said.
“In November 2003, a year after litigation began, the American judge suddenly sealed the case, shutting it down without warning, citing the state secrets privilege. All records of the case were expunged, and vanished from the court’s public database.”