11 March 1998
Thanks to Simon Hossack
Subject: Letter to Oliver Heald MP (UK) from HOC Library
Date: Wed, 11 Mar 98 22:26:24 +0000
From: Simon Hossack <firstname.lastname@example.org>
To: "John Young" <email@example.com>
As an increasingly incredulous observer of the Crypto-debate I thought you should be aware of this astounding response to a question put by my Member of Parliament (UK) to the Head of the International Affairs and Defence Section in the 'House of Commons' Library. This Library is a key information resource for British MP's. My eyes nearly popped out of my head when I read it! ...
Its implications are astonishing - particularly for those of us who routinely use the telephone network to exchange confidential design and contract information with our business colleagues and advisors!
Para 2 of page 2 deserves particular note... does it suggest that perhaps UK and US security forces have a reciprocal "you spy on my wife, and I will spy on yours" agreement to get round national legislation forbidding interception of the communications of their own nationals?
If you want to check the veracity of the document, Oliver Heald's Telephone is: 0044 1763 247 640, you could also, of course, check with the author of the letter who is clearly extremely knowledgeable on this subject.
Oliver Heald MP is also the Opposition (Conservative Party) Spokesman on Constitutional Affairs in the UK Parliament.
OLIVER HEALD MP
HOUSE OF COMMONS
LONDON SW1A 0AA
Simon Hossack Esq.,
Hertfordshire SG9 OEA.
10 March 1998
Dear Mr Hossack,
Further to your visit to Mr Heald's surgery on 20 February and in his absence from the Constituency office today on Parliamentary duties at Westminster, we have received the enclosed very full response from Tom Dodd, International Affairs and Defence Section at the House of Commons Library.
I know Mr Heald would be interested to have your thoughts on this in due course. As soon as we receive a response on the Competition Bill Mr Heald will be in touch with you again personally.
Mrs C. M. E. Moore
Private Secretary to Mr Oliver Heald MP
HOUSE OF COMMONS LIBRARY
1 Derby Gate
London SWI A 2DG
Tel: 0171 219 3852
Fax: 0171 219 3931
Your ref. Hossack
Our ref: 1998/2/158ia
6 March 1998
Dear Mr Heald,
US Signals Intelligence in Europe
You asked for some information on the above after receiving a letter from a constituent, Mr Simon Hossack of Timbers, Hare Street, Buntingford, Herts. (see copy of your note and enclosures returned). Mr Hossack asserts that "the Americans are spying on us all" in connection, in particular, with a recent report produced for the European Parliament by STOA (Scientific and Technological Options Assessment), entitled Assessing the Technologies of Political Control. I have enclosed the pages from the report referring to Menwith Hill (pp.19-20). Mr Hossack may well be correct but, given the nature of the intelligence world, it is impossible to say with any accuracy.
Under the UKUSA Agreement of 1947 the signals intelligence (Sigint) agencies of Australia, Britain, Canada, New Zealand and the USA are linked together to form a world-wide network of communications and surveillance. The agreement was based on wartime agreements and relationships. The bilateral Sigint co-operation between the relevant British agency, the Government Communications Headquarters (GCHQ) and its US equivalent, the National Security Agency (NSA) is thought to extend beyond the level of that shared between the above five states and separately within NATO. The American and British agencies are thought to pool most of their intelligence. Such is the level of their co-operation that there is believed to be a GCHQ office inside the NSA HQ outside Washington and similarly an NSA bureau within GCHQ at Cheltenham (1).
Menwith Hill in north Yorkshire has long been the leading US intelligence base in the UK, if not outside the USA. It was first established as a US Army signals base in the mid-1950s. The NSA assumed control in 1966. In 1996 there were 1,200 US government and 600 UK government employees at Menwith Hill (2). Personnel from all four US Services work at the base (3). The executive management of the base was assumed by the US Army in 1995. The base commander is a US Army officer (4). Perversely, the following year, Menwith Hill Station was redesignated as RAF Menwith Hill. This has no legal significance but merely brought the base into line with the usual practice of designating all major US bases in the UK as RAF bases, whatever their actual US military use (5). The US-operated "RAF" base will house a RAF Squadron Leader but he/she is only present for symbolic liaison purposes and has no operational control. The practice of designating US bases as RAF stations began in the 1950s as a rather clumsy way of covering the extent of the US Air Force build up in Britain at that time.
There have been persistent allegations that Menwith Hill is used to intercept and monitor both international and local telephone traffic. Some form of key word identifying system may have been in operation since the 1970s. The MOD has indirectly admitted that the base is linked to the BT network (6). It has also been suggested that some of this interception is undertaken as part of a bilateral agreement between the NSA and GCHQ. The NSA is legally prevented from tapping the communications of US nationals and it is supposed that this is done on a reciprocal basis by GCHQ. In addition, there have been allegations that the NSA uses Menwith Hill to monitor UK and European diplomatic and economic communications for purely US national political and industrial advantage, although this has been denied by the British Government (7). The article sent to you by your constituent from The Daily Telegraph and the note by Nicky Hager, "Exposing the Global Surveillance System", thus adds to the large body of work speculating on Menwith Hill's activities.
In 1993, Lord Jenkins of Putney asked the MOD the following question: -
Whether American communications facilities at Menwith and elsewhere record telephone conversations originating in this country and received here from other countries; and whether it is the case that Her Majesty's Government has no control over, or knowledge of, the details of these and other activities, which were alleged (in the Channel 4 programme of 6th October) to include industrial espionage.
Menwith Hill Station is an integral part of a worldwide defence communications network. We are not prepared to comment further on its operational role. The station operates with the full knowledge and agreement of Her Majesty's Government (8).
In 1996, Max Madden asked the MOD: -
To ask the Secretary of State for Defence what measures are taken to ensure that operations at Menwith Hill stations (i) comply with the Interception of Communications Act 1985 [under which the security services are required to obtain warrants before tapping phones, etc] and (ii) do not intercept the communications of British business.
All interception of communications on the public telephone networks in the UK is subject to the provisions of the Interception of Communications Act 1985. It is not Government policy to comment on the detailed operations of the intelligence and security services (9).
Menwith Hill was the subject of an adjournment debate in 1994. In reply to the late Bob Cryer, Jeremy Hanley, then a Minister of State for the Armed Forces, defended the US use of the facility (10). He stressed that senior British personnel i.e. GCHQ were present on the base and were integrated at every level. He declared that "On the issue of accountability and control, I stress that Menwith Hill operates with the full knowledge and consent of the United Kingdom Government" (11). He added later, "The Interception of Communications Act 1985 applies to that base as it does to any other" (12). In 1997, Dr. Reid, the Minister of State for the Armed Forces in the new Labour Government answered similar questions. He stated that "Senior UK personnel are integrated into every level at RAF Menwith Hill and we are thus in a position to be entirely confident that British staff are aware of all facets of operations and that no activity considered inimical to British interests is carried out there" (13)
The land on which Menwith Hill is located is owned by the Secretary of State for Defence, in right of the Crown. The radomes and most of the equipment at the base are owned by the US government (14). The site is "made available" to the US Department of Defence (15). There is a "security of tenure agreement applicable solely to Menwith Hill" but "no leases have ever been granted to US authorities (16). The exact tenure agreement "is a confidential administrative arrangement between Her Majesty's Government and the Government of the United States. It would therefore not be appropriate to publish or comment on the details of such arrangements" (17). An attempt, in 1995, to discover more detail of the control of operations at Menwith Hill in the High Court in connection with MOD legal action against the peace campaigner Lindis Percy was prevented by a Public Interest Immunity certificate signed by the then Foreign Secretary, Malcolm Rifkind (18).
In response to another Parliamentary Question as to what the terms of the administrative arrangements were governing the US use of Menwith Hill, the MOD stated that: -
The site at Menwith Hill has been made available to the United States visiting forces and their civilian component in accordance with the agreement regarding the status of forces of parties to the North Atlantic Treaty of 1951 and other arrangements which are appropriate to the relationship which exists between the United Kingdom and the United States for the purposes of our common defence (19).
The Status of Forces Agreement and the Visiting Forces Act
The Status of Forces Agreement (SOFA), signed by NATO members in London on 19 June 1951, sets out the legal arrangements for the exchange and basing of military personnel of one NATO state in another. It was modified by an Agreed Minute and then supplemented by addition of a Protocol in 1952 (Cmd 9363, enclosed[*]). In the UK, the provisions of SOFA were placed in statute in the Visiting Forces Act (VFA) 1952, which also replaced earlier wartime legislation governing the stationing of US forces in the UK.
In essence, the VFA provides for the exercise of extraterritorial jurisdiction by a sending state, for example the USA, over members of its armed forces and their dependents in the UK (a "receiving state") in certain cases. Since 1961, following a ruling of the US Supreme Court that they were not subject to US military law, extraterritorial jurisdiction does not apply in the case of US civilians employed by the US DoD in the UK and all US civilian dependents (20).
By enacting the VFA, the UK departed from one of the fundamental principles of international law, the exercise by a state of absolute legal jurisdiction within its borders. Criticisms of the VFA concern certain ambiguities within it, in particular the definition of "official duty" in Section 3 (1), enacting Article VII 3 (a) of SOFA 51.
In relation to activities at Menwith Hill, if US nationals are tapping UK communications in this country and they are civilians, they may be in contravention of UK law and may not be immune from prosecution. If they are US servicemen and are engaged on 'official duty' they could be exempt from UK legal jurisdiction. However, Article 2 of SOFA 1951 states that "it is the duty of a force and its civilians components and members thereof as well as their dependents to respect the law of the receiving state, and to abstain from any activity inconsistent with the spirit of the present Agreement". The MOD was recently questioned on this point: -
To ask the Secretary of State for Defence what safeguards are in place to prevent American personnel based in the United Kingdom under the Visiting Forces Act 1952 committing offences under the Interception of Communications Act 1985; and what mechanisms are in place to detect any such offences.
However, in reply, Dr. Reid maintained that: -
Under the terms of the agreements that we have with the US authorities, the US visiting forces are subject to the laws of the UK in the same way as their British counterparts and this includes respecting the provisions of the Interception of Communications Act. We are content that the US authorities adhere scrupulously to these agreements (21)
In January 1998, the MOD was specifically asked to comment on the STOA report on signals interception: -
To ask the Secretary of State for Defence if he will make a statement on the European Commission report Assessing the Technologies of Political Control, and its application to RAF Menwith Hill.
I am aware of the report referred to by my hon. Friend, which is not a European Commission report but one that has been prepared for, although not endorsed in any way by, the European Parliament. I have no comments to make on the contents of the report, other than to say that no activity considered inimical to British interests is, or would be, permitted at RAF Menwith Hill, which operates with the full knowledge and consent of Her Majesty's Government (22).
Dr Reid's assurances reflect the pattern of those of previous Governments. Whether one believes them or not depends on one's view of the extent of ministerial control of the security and intelligence services. Generally, it could be said that ministers of successive governments have had a mixed record in this respect since the Second World War. (Parliament, of course, has only very limited powers of oversight over signals intelligence and this only since the passage of the Intelligence Services Act 1994).
Since the work of Menwith Hill is not in the public domain, it is unclear whether, in the domestic context, it is used in pursuit of arguably legitimate targets, such as terrorists, or to eavesdrop on the conversations of law abiding British residents. Certainly, there have been cases in the past when the British and American intelligence services have seen their mutual relations as stronger than any particular loyalty to their national governments. for example, it is believed that the US government first heard about the Anglo-French plan to seize the Suez Canal in 1956 from MI6, which felt that its close counterpart, the CIA, ought to know about it.
The Government has recently produced a White Paper on freedom of information (23). The proposed legislation may simplify the current Government Code of Practice on the disclosure of official information. For the first time, it will provide a legal right of access to official information. However, a proposed 'harm' test will probably exclude from release, as now, many official documents and papers on foreign, intelligence and defence matters. In short, the British FOI is unlikely to help those who seek to find out exactly what it is going on at Menwith Hill.
I hope that this will be of use.
International Affairs and Defence Section
Oliver Heald MP
House of Commons
SWI A OAA
(Internal Mail) Encs
(1) See Duncan Campbell in The Unsinkable Aircraft Carrier: American Military Power in Britain, (1988), Ch. 6
(2) HC Deb 18/3/96 c 64w
(3) HC Deb 20/3/97 c 869w
(4) HC Deb 24/2/97 c 119w
(5) HC Deb 18/3/96 c 65w
(6) HC Deb 26/6/96 c 359w
(7) HC Deb 14/7/97 c 60w
(8) HL Deb 25/10/93 WA 76-77
(9) HC Deb 21/3/96 c 286w
(10) HC Deb 25/3/96 c 610-616, enclosed[*]
(11) c 615
(12) c 616
(13) HC Deb 14/7/97 c 60w
(14) HC Deb 18/3/96 c 63w
(15) HC Deb 27/5/93 c 681w
(16) HC Deb 24/2/97 c 118-119w, enclosed[*]
(17) HC Deb 12/7/95 c677w and HC Deb 21/3/96 c 85w
(18) The Guardian 13/3/95
(19) HC Deb 2/11/95 c 421w
(20) A short description of the VFA is given in Select Committee on the Armed Forces Bill, HC 143, Sess. 95-96, p.235-236
(21) HC Deb 14/7/97 c 59w
(22) HC Deb 26/1/98 c 33w
(23)Your Right to Know: the Government's proposals for a Freedom of Information Act, Cm 3818
* JYA Note: "Enclosed" documents were not provided with Mr. Hossack's letter.
TXT conversion to HTML by JYA/Urban Deadline
The history of the UK/USA relationship, and SIGINT operations of GCHQ and NSA, are described in The Puzzle Palace: A Report on America's Most Secret Agency, James Bamford, Penguin, 1983, Chapter 8, Partners, pp. 391-425.