May 06 2012

Back to the Future — The Unrestricted Spying of Yesterday… and Tomorrow?

By Snorri Páll Jónsson Úlfhildarson, originally published in The Reykjavík Grapevine.

This simply means that until spring last year, the police literally had a carte blanche regarding whom to spy on and for whatever reasons they chose. Unbeknownst the public, the instructions allowed unrestricted espionage.

“Good things happen slowly,” Björn Bjarnason, Iceland’s former Minister of Justice, wrote on his blog in March of last year when his successor in office, Minister of the Interior Ögmundur Jónasson, called for a press conference to announce that the police would soon be granted proactive investigation powers.

While Ögmundur and other Left Green MPs often criticised Björn for his aggressive efforts to increase police powers during the latter’s six years in office, he is now advocating for increased police powers as part of The State’s crusade against purported organised crime, which is believed to be predominantly manifested in a number of motorcycle gangs, including the Hells Angels.

A bill that he proposed to parliament last month does not contain the infinite investigation powers that the police have openly asked for, but does nevertheless allow them to start investigating people who they believe are planning acts that would fall under the category of organised crime and are punishable by at least four years of imprisonment.

While the case is usually presented as the police’s struggle to gain greater justifiable investigative powers — in which they have supposedly not fully succeeded — the fact is that, from at least July 1999 to May 2011, the police had unrestricted authority to monitor whomever they wanted due to poorly defined regulations.

THE HEADLINE THAT NEVER WAS

“UNRESTRICTED SPYING WAS PERMITTED!” should have appeared as a headline all over the Icelandic media last year. Yet it was strangely absent, despite an official acknowledgement from the Minister of Interior that this was indeed the case that unrestricted spying on Icelandic citizens had been tolerated and allowed. The matter concerned Mark Kennedy, the British police spy whose seven-year long undercover operations were exposed and reported in the international media last year. Disguised as activist ‘Mark Stone,’ he travelled through Europe collecting intelligence about anarchists, environmentalist and animal rights activists. He was for instance stationed in Iceland’s eastern highlands in 2005, where environmentalist network Saving Iceland was protesting the construction of the Kárahnjúkar dams.

In most of the countries where Kennedy operated — short of Ireland and Germany — the authorities have remained silent about the matter. But a newly released report on police units providing intelligence in the UK, carried out by Her Majesty’s Inspectorate of Constabulary (HMIC), clearly outlines the aim of the National Police Order Intelligence Unit (NPOIU), for which Kennedy worked: “the main objective of the NPOIU has been gathering intelligence” such as “knowledge about the infiltrated protest groups, their aims and links with other groups, their plans and methods, and the people involved in suspected serious crime.”

In other words, using proactive investigations to collect information so as to prevent possible action.

As Minister of Foreign Affairs Össur Skarphéðinsson remarked during a parliamentary discussion about Mark Kennedy last year, the Icelandic police did not have such powers in 2005 and still do not. That should have made any co-operation with the British spy illegal, just as any other proactive spying initiative would have been.

SO MANY MEN SO MANY MINDS

Following Kennedy’s exposé, Ögmundur called for an investigation of the Icelandic police authorities’ possible knowledge or collaboration with the British spy, which resulted in a report conducted by the National Police Commissioner’s National Security Unit (NSU). The report acknowledged that information regarding the protest camp at Kárahnjúkar, its organisers and participants, was passed to the Icelandic authorities. According to the report, this information then lead to a “collaboration with foreign police authorities concerning protest groups abroad and the intended protests under the banner of Saving Iceland.”

“This is the big news,” Ögmundur declared on his blog in May 2011, after the report was published. “Espionage was employed with the Icelandic authorities’ knowledge and will.” He emphasised this point in parliament last March, stating: “The infiltrator [Kennedy] was able to operate at Kárahnjúkar because of very unclear regulations regarding the police’s investigation methods. The legislation was far from strong enough, as well as there were rules in force that never appeared in front of the public.”

The rules he mentioned are instructions by the State Prosecutor from 1999. For some background: according to laws on criminal proceedings, the respective minister — Minister of Justice until 2010, Minister of the Interior since — should pass regulations regarding specific police protocols such as the use of informers and infiltrators. But these regulations did not exist until last May following a request by the National Security Unit. Instead they were substituted by those State Prosecutor’s instructions which, due to their less formal status (compared with laws and regulations) were not published in a conspicuous manner but rather filed away in drawers and cabinets, so to speak.

Although these instructions are hard too find, they still are accessible and, according to the document, their purpose was simply to “prevent criminal activities,” for instance with the use of an informer “who supplies the police with information about criminal activities or people linked with criminal activities.” Most notably, the document’s eleven pages are free of a single definition of what criminal activities the instructions concern, unlike the regulations created last spring, which are confined to “well-founded suspicion” of acts or plans of acts that are punishable by at least eight years of imprisonment.

This simply means that until spring last year, the police literally had a carte blanche regarding whom to spy on and for whatever reasons they chose. Unbeknownst the public, the instructions allowed unrestricted espionage. These powers are now partly lost due to Mark Kennedy’s exposé and the following the NSU investigation.

THE PERMISSIONS TO COME

While admitting that he had not even seen the bill submitted by Ögmundur last month, Snorri Magnússon, Chairperson of the Police Federation of Iceland, still maintained to newspaper Fréttablaðið that the proposed permissions were too limited. Snorri explained that the police want permissions similar to what their colleagues in Scandinavia work with which allow them, as he noted, to “lawfully monitor certain groups in society though they are not necessarily about to commit crimes today or tomorrow, and collect intelligence on them, which then might lead to official cases.”

This is not included in Ögmundur’s bill, which states that in order to justify the use of proactive investigation powers, the police has to know or suspect the planning of a violation of penal code article 175a, punishable with at least four years of imprisonment. Its execution has to be an operation of an “organised crime association” defined as a “companionship of three or more persons with the main objective to systematically commit criminal acts, directly or indirectly for profit.”

The bill has only been briefly debated in parliament and has yet to go through second and third discussion before undergoing voting. But judging on the discussion in parliament last month, it will receive majority support — only members of The Movement have seriously criticised the proactive investigation powers.

One of them, Margrét Tryggvadóttir, recently pointed out that the police seem to have quite a decent overview of the given crime groups, even claiming to know their exact number of members. Along with recent admissions that for the last couple of years the police has received judicial permissions for wire-tapping in more than 99% of requested instances, this got her to question the real need for increased powers. Author and film-maker Haukur Már Helgason echoed this criticism in a series of blog posts last year, nominating “the brand name Hell’s Angels” as “the biggest favour done to expansion-greedy police force.”

Nonetheless, the police and members of three parties who together make up two thirds of parliament are asking for more. In a parliamentary proposition submitted last year they ask the Minister of the Interior to prepare another bill, this time regarding the aforementioned Scandinavian investigation powers. The proposition is currently in the midst of parliamentary process and though Ögmundur might claim he does not like it, it is questionable if he could actually resist such a majority will. Additionally, recent polls suggest that the right wing conservative Independence Party will gain a majority in the coming 2013 parliamentary elections, in which case it is certain that the police will not have to wait too long for the “good things” to happen.

Despite what has been presented by official police statements and through most media coverage, this would certainly not be an indicative of a new period of increased investigation powers. It would be a step backwards into an already realised future.

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