Prism, privacy, and the tragic triumph of the Nixon doctrine

Gonzalez, Barker, McCord, Martinez and Sturgis. Know who they are? Most people won’t. Though they sound like the senior partners of a Miami law firm, these are the five men who, on 17 June 1972, were discovered and arrested inside the offices of the Democratic National Committee headquarters in Washington DC. The opening episode of the Watergate scandal had just kicked off, and the cover-up that followed eventually brought down Richard Nixon and saw dozens of his closest senior officials go to jail.

There was more to Watergate than just a botched burglary. Gonzalez and his fellow burglars were also convicted of the attempted interception of telephone and other communications. And when the prosecutors looked deeper, Nixon had form. Three years before Watergate, Nixon ordered the FBI to listen in to the telephone calls of five political reporters regarded as “enemies” of the White House.

Through this morality play, America, and, one hopes, the rest of us, learned that without relentless scrutiny, governments misbehave. The lessons of Watergate, however, appear to be stamped with a sell-by date. It was an analogue scandal. In this digital, internet age, David Cameron or Barack Obama no longer need the archaic crudity of a burglary or a wire tap. Data collection technology has outrun the law and an urgent review of legal rights is badly needed. Currently, the sole protection that exists between state secrecy and misinformation, and even semi-accountability, is simply trust – and since when has unconditional trust and public liberty been found in the same place?

The existence of advanced, clandestine surveillance technologies on both sides of the Atlantic, revealed through the leaks of the National Security Agency whistleblower Edward Snowden, suggests we are in new territory, potentially a lawless vacuum, when trying to define the authority of intrusive surveillance by governments.

Authorised access by GCHQ to hundreds of transatlantic fibre-optics cables that carry vast streams of our phone and internet messages in and out of the UK means that the definition of “domestic traffic” is blurred beyond recognition. GCHQ, and the Government that controls it, no longer needs to worry about the legality of targeting anyone. They can essentially collect what they want, from whom they want.

The ability of agencies like GCHQ and the NSA to bypass warrants and executive authorisation – simply because the law has become a tortoise to the Usain Bolt of digital-surveillance technology – means the claim by Bob Woodward, the Washington Post reporter who helped expose Watergate, that the scandal “showed the system worked” because the US judiciary and Congress ultimately did their job, now looks like misplaced faith.

Nixon targeted his “enemies” and broke the law. But what law would be broken, for example, if Downing Street wanted a serious “look” at those it regarded as posing a threat to the security and economic stability of the UK? The answer is disturbing.

Nigel Farage, the Ukip leader, could be described as a threat to the UK’s economic relationship with the European Union. Farage may lead a party of “fruitcakes”, if you accept Mr Cameron’s dismissive description, but, nevertheless, if GCHQ gathered a dossier on Ukip’s plans for the next general election, while there might be moral questions over the action, there would be nothing illegal about the process.

Similarly, Scotland’s First Minister, Alex Salmond, whose objective is the break-up of the United Kingdom, is a self-defined target. Mr Salmond and the SNP’s emerging strategy for the 2014 referendum on Scottish independence is therefore of legitimate interest to Downing Street. So what is stopping the Home Secretary, or the Foreign Secretary, from authorising GCHQ to have a look at Mr Salmond’s texts, emails, telephone calls?

Tempora, the name for the GCHQ operation that allows storage and analysis of the flood of metadata that leaves the UK and returns via fibre-optic technology, means that William Hague would be legally entitled to authorise the “monitoring” of Mr Salmond simply because his communications were technically “abroad” at the moment of interception. The so-called Wilson Doctrine technically bans the tapping of UK MPs’ and peers’ telephones following a 1966 pledge given by Harold Wilson, then prime minister. And although Mr Salmond’s Holyrood administration poses new questions on the doctrine’s political inclusiveness, the real legal worry is that surveillance technology has rendered its entire doctrine redundant – for the whole of Whitehall.

Nixon regarded some in the White House press corp as “enemies” of his presidency and used the FBI to find out what they were thinking. If David Cameron feels the same, what would No 10’s lawyers advise? Last year, along with my colleague Cahal Milmo, I helped break the story that the Prime Minister had withheld a series of private emails from the Leveson Inquiry. The content of the emails was potentially damaging for the PM. Downing Street initially dismissed their existence, but then subsequently refused to discuss the legal advice that had been given to keep them private. No 10 remains silent on the subject.

At the time of investigating the background to this story, aides in No 10, perhaps not surprisingly, asked who I had been speaking to, and where I got the information from. There was also fear among the “insiders” who had helped deliver this story that if The Independent published further detail on the emails, they would suffer serious reprisals. Did I send emails and texts that contained information Downing Street would have liked to see? Yes, I did. And could GCHQ have legally assisted the delivery of my emails to No 10 by intercepting them “outside” the UK? Yes, it could. And finally, am I worried about this? Damn right I am.

Woodward is on record as saying that, although Nixon waged an aggressive war with history after his resignation, “happily history won”. I’m no longer sure that this is the case. For Watergate to remain Woodward’s and everyone else’s victory, there has to be a robust legal framework, offering well- defined protection, that at least resembles a substantial threat to those who believe a citizen’s privacy is not a legitimate right. Accelerating technology seems to have eroded that right, and unless the law in this field is urgently reviewed, a new generation of Watergates will be happening – all of them beneath the radar of public accountability.