‘No to more bugging’ – Debate on state
BY ERICA VIRTUE Sunday Observer writer virtuee [at] jamaicaobserver [dot] com
Sunday, January 09, 2011
In the face of increasing claims by local law enforcement officials that criminals are using cellular phones to assist in the commission of serious crimes, controversy continues to swirl around whether the police should have more far-reaching powers to bug the phones of suspected criminals.
Although more reliance is now being placed on telecommunications technologies, long used by other jurisdictions to trap suspected wrong-doers, wiretapped evidence remains excluded from Jamaican courts unless it is being used to corroborate evidence already in place.
Wiretapped evidence is also inadmissible in Jamaican courts if permission to place the bug was not given by a High Court judge.
In contrast, state-sanctioned eavesdropping on phone conversations is a facility widely used by the United States in its pursuit of wrongdoers.
Information in the possession of the Sunday Observer showed that between January 2004 and March 2005, ‘Big Brother’ eavesdropped on 4,000 phones calls into and out of five different countries — one of them being Jamaica — in an effort to trap suspected drug-traffickers, including five Jamaicans. These were calls made to 94 different suspected drug dealers’ phones.
Executive director of local human rights lobby group Jamaicans For Justice (JFJ), Dr Carolyn Gomes, accepts law enforcement officials referencing telephone conversations in order to corroborate evidence in a criminal matter.
“The simple answer is no, I do not have a problem with them checking for usage rather than listening in. Even with that there are some questions of privacy, but that may be easier to live with for the time being,” Gomes told Sunday Observer.
However, she is vehemently opposed to anything making it easier for the police to bug the phones of average Jamaicans. According to Gomes, being able to hold private conversations is a fundamental and constitutional right, and “everyone should be able to hold their personal and private conversations without law enforcement listening in”.
“I support the use of more and better technology, but no to more bugging,” Gomes insisted.
Former police commissioner-turned-politician Lucius Thomas, while supporting citizens’ right to privacy, said the police must be given the necessary means available to fight crime.
“There is a huge volume of work involved in intercepting telephone calls. So you would want to target the individuals involved in crimes such as murders and drug trafficking, which itself has led to murders,” Thomas told Sunday Observer.
“But I am one of those who support the information flow that you need to use the technology to enhance the investigative skills of the police officers. So I would want the police to have greater access to individuals suspected of being great security risks to the country,” Thomas said.
He complained that the process of securing the warrant was tedious and once acquired, the document carried an expiry date.
“Given what law enforcement is all about; given the advancement in technology and given the criminals’ access both local and otherwise, and with the advent of the Internet and cyber-crimes, I believe that police should have easier and greater access to the phones of those individuals,” Thomas insisted.
On the other hand, Assistant Police Commissioner Les Green said the police have adequate powers to wiretap and he was satisfied with what currently existed.
“I do not see the current process involved in securing the warrant for wiretaps being too onerous,” Green told Sunday Observer. He also said that recent amendments to the existing laws have made it easier for the police to tap the phones of suspected criminals.
“I dare say what we have needs a bit of fine tuning, but it’s for us to use the powers that we have,” he said.
The wiretap law, which was passed by the Senate in February 2002, allows the security forces to apply to a Supreme Court judge for an order to intercept the electronic communication of people suspected of involvement in drug trafficking, terrorism, murder, treason, kidnapping or abduction, gun-running and money laundering.
Twenty-eight days after permission is obtained, the police must re-apply for the wiretaps to continue being used.
Prior to that, there was no legislation regulating wiretaps and the authorisation for bugging people’s phones came from the prime minister after a submission from the national security minister, following a request from the security forces.
The then administration moved to change the system after a scandal in 2000 when a civilian-led intelligence group that operated within the police organised crime unit apparently went on a freelance wire-tapping spree. A number of politicians were alleged to have been among the people whose phone conversations were intercepted.
The intelligence group’s head, Roderick ‘Jimmy’ McGregor, having first denied it, later admitted to the illegal wiretaps, which led to the downfall of some police officials and the unit being disbanded.
Former Police Commissioner Rear Admiral Hardley Lewin is supporting the position offered by Green.
“We can only use wiretapped evidence to corroborate other evidence in the hands of investigating authorities. It cannot be used as ‘stand-alone’ evidence. And there is really nothing stopping the local police from using wiretap evidence in regular policing duties,” Lewin said in a Sunday Observer interview.
“But, if the current system isn’t busted, then there is no need to fix it,” he suggested.
When the United States used wiretap evidence to make the case against former Tivoli Gardens don, Christopher ‘Dudus’ Coke, it led to a quarrel between Kingston and Washington and a refusal by Jamaica to extradite Coke, who the US had indicted on drug-trafficking and racketeering charges.
Prime Minister Bruce Golding later insisted that the police officer who had access to wiretaps from Coke’s phones, illegally passed the evidence on to the US, instead of to local authorities.
Golding said that the US was not on the list referenced on the court order allowing local law enforcement to tap the accused former area leader’s phone and should not have been allowed to access the information obtained via the bug.
Lewin, in an earlier interview, dubbed the policeman at the centre of the issue ‘Constable Red Herring’ implying that he was just a scapegoat. He also told the Sunday Observer that the prime minister’s claim that wiretap evidence gathered in the Coke case illegally changed hands, was unfounded.
Former Attorney General A J Nicholson, who was Jamaica’s chief legal advisor at the time when the request came from the United States, said the use of the information was permissible under the Mutual Legal Assistance Treaty which Jamaica signed with its northern neighbour.
Former National Security Minister Dr Peter Phillips said this Treaty set the policy.
“This is not a pact, which I believe is the word the prime minister used at the Area Council 1 meeting in August (2010),” Phillips said. “It is a memorandum of understanding which settled on what access people would have. Prior to that, there had been no formal arrangement. People would get access, but there was nothing that would provide a basis for an agreement. But these arrangements existed before me, and so it was just a matter of formalising a tradition which had long existed.”
It was that tradition that led to the bugging of the phones of Jamaican Norris ‘Dedo’ Nembhard, who former US President George W Bush designated a drug kingpin, as well as those of Leebert Ramcharan and Donovan Williams.
Nembhard was extradited to the US in July 2008, while Ramcharan and Williams were handed over to US authorities in 2007. The three are currently serving time in US prisons.
Phillips said as far as he could recall, that anti-drug operation spanned several countries including Jamaica, Colombia, The Bahamas, the United Kingdom and the United States, and wiretapping was not an issue anywhere else.
“No, I don’t recall it being an issue by anyone,” said Phillips. “But I wasn’t directly involved, it would have been the director of public prosecutions on our end. But in all of this, if you look at the cases, I don’t think anybody raised the matter of the use of and even the exchange of wiretapped evidence.
“The law is clear as far as I am advised. The commissioner of police and the chief of defence staff have access to it, and they can use it for law enforcement purposes and that includes co-operating with other states,” added the former security minister.
In late November 2010, the prime minister said legislation would be brought to Parliament to amend current provisions in the Interception of Communication (Wiretapping) law.
He is attempting to close a loophole in the current system to make it mandatory for wiretap information secured in Jamaica to be handed to designated local authorities before it is passed to anyone outside of the country.
By on 10/01/2011