Empire of Secrets: British Intelligence, the Cold War and the Twilight of Empire. Calder Walton

in the recorded judgement of the House of Lords. The case has gone down in the annals of legal history as a low point in the story of civil liberties and the rule of law in Britain, with the judiciary cowing before the power of the executive. It involved a Polish-born naturalised British citizen, Jack Perlzweig, who went by the name of Liversidge, who was detained in 1940 under Regulation 18b of the Defence (General) Regulations 1939. This regulation allowed the Home Secretary (Sir John Anderson) to detain persons of hostile origin if he had ‘reasonable grounds’ to suspect them of being involved in acts contrary to the defence of the realm. Put simply, Mr Liversidge asked to see what evidence the Home Secretary had against him, and asked the court to consider whether it constituted ‘reasonable grounds’ for his detention without trial, which he argued was false imprisonment. The majority verdict of the Law Lords – who heard the case in an annexe to the House of Lords because their usual chamber had been bombed out in the Blitz – stated that in times of national emergency courts had no authority to question whether the Home Secretary’s evidence against an individual constituted reasonable grounds for his detention. It is likely that the ‘reasonable grounds’ for Liversidge’s detention were really derived from adverse intelligence on him provided by MI5. The case of Liversidge v Anderson was really, it seems, to do with how intelligence could be introduced into court, which was difficult, if not impossible, because the British government only tacitly recognised the existence of MI5. The use of intelligence as evidence is an issue that courts in England, and in the Western world more generally, are still grappling with to the present day.

      There was a significant problem for MI5 when it came to the detention and transportation of enemy agents from overseas territories to Britain. By a curious omission in the colonial legislation passed by Parliament on the outbreak of war, Colonial Order 12(5)a, there was no equivalent to Defence Regulation 18b, which meant that it was legally permissible for aliens detained in British colonies to bring habeas corpus proceedings. This brought a stark warning from MI5’s legal adviser Toby Pilcher, who stated that in his opinion, under the existing legislation it was ‘undesirable, and probably illegal, to remove an alien from a ship and detain him in a colony’. Following a high-powered meeting in June 1942 between Dick White, Pilcher and the Colonial Office’s legal adviser, it was decided that the only way to resolve the problem was to introduce ‘ad hoc legislation’ under the Defence Regulations ‘specifically empowering the Governor [of a colony] to remove a suspect alien from a ship or aircraft visiting the colony, and to detain him pending his removal from the colony’. Before long MI5 and the Colonial Office had formulated a written codicil, or warrant, which could be quickly signed by colonial governors allowing enemy aliens to be detained on British territory and then rendered to Britain for interrogation. This was precisely what occurred during the rest of the war – confirming the axiom that laws are silent during wars (silent leges inter arma).⁵⁴

      The willingness of MI5 to go along with this process of detaining and transporting – kidnapping, in all but name – individuals, despite its original lack of legal authority to do so, is all the more striking when the heavyweight legal brains it employed during the war are considered. One of the B-Division officers centrally involved in detaining and transporting enemy agents to Camp 020 was H.L.A. (Herbert) Hart, an Oxford academic lawyer who went on to become one of the most eminent legal philosophers of the second half of the twentieth century. On one level, it is surprising that ideas of ‘natural justice’ and ‘fairness’ did not prevent lawyers working in MI5 – a large number of whom were wartime recruits from the Law Society – from supporting such legally dubious practices as detention without trial. On another level, however, it is less surprising than it may seem. H.L.A. Hart is most famous for his ideas of legal positivism, which, put crudely, argue that there is not necessarily an inherent association between the validity of laws and ethics or morality, and that laws are made by human beings. The thrust of legal positivism is therefore that laws are essentially malleable.⁵⁵

      One cannot help concluding that MI5’s wartime lawyers (in both its legal section and its counter-espionage division) were willing to overlook the weighty ethical and moral issues raised by detaining and transporting enemy agents, so long as the formality of ‘ad hoc’ emergency legislation was in place and all the other legal niceties were fulfilled. This narrow focus on formality, rather than substance, is a characteristic as common among some lawyers today as it apparently was then. Furthermore, it is notable that prior to the passing of ‘ad hoc’ emergency legislation, neither H.L.A. Hart nor MI5’s legal advisers, including several future High Court judges, nor the Colonial or Foreign Offices’ legal advisers, could find any legal justification for the detention and transportation of foreign nationals without due process – which is striking given the allegations of ‘extraordinary rendition’ today, because it allegedly involves exactly the same matters, but the law requiring due process is no different now from what it was during the Second World War.

      It is impossible to state with certainty how many enemy agents were transported from British colonies to Camp 020 for interrogation during the war. At least twenty-three such agents can be identified in declassified MI5 records, though the true number may be considerably more. Whatever it was, many of the cases were highly dramatic, while others bordered on farce. One of the most important involved an Argentinean national of German descent, Osmar Hellmuth, who worked in the Argentine consulate in Barcelona, and who in September 1943 was identified as acting as a courier between the officially neutral Argentine government and the Third Reich. Working under diplomatic cover, Hellmuth’s mission was to travel to Germany, where he was to meet the head of the SS, Heinrich Himmler, and possibly even Hitler, and purchase arms and other equipment for the Argentine government, which from June 1943 was ruled by a military junta led by General Pedro Pablo Ramírez. Hellmuth’s high-level mission made a mockery of the claims by General Ramírez that the Argentine government remained neutral in the war.

      The tip-off about Hellmuth’s mission to Nazi Germany came from the SIS head of station in Buenos Aires, who forwarded it to SIS’s headquarters at the Broadway Buildings in London, where it was received by none other than Kim Philby, then working on the Iberian desk of Section V (counter-espionage), based in St Albans, just outside London. Philby passed the information on to MI5 – as he probably also did to his KGB masters. SIS and MI5 together orchestrated a detailed plan for Hellmuth’s detention and transfer to Britain, which was put into effect the following month, October 1943, when Hellmuth set sail from South America to Spain. As soon as his ship touched British soil en route, at Trinidad in the West Indies, MI5’s DSO there arranged for him to be arrested by local police. This was authorised at the highest level, by the British Governor of Trinidad, who signed Hellmuth’s arrest and detention order under the newly enacted ‘ad hoc’ legislation – though in fact it was clearly in violation of Hellmuth’s diplomatic status. Hellmuth was put on a waiting British seaplane that flew him to Bermuda, and from there he was transported on board a Royal Navy cruiser, the Ajax, to England, where he arrived in early November.

      After his installation at Camp 020, MI5 interrogators set to work on him, and he was quickly broken. He revealed an array of highly explosive diplomatic information, producing letters written with secret ink, giving up the identities of senior Nazi intelligence officials, such as Siegfried (or Sigmund) Becker, the head of the Sicherheitsdienst mission in Argentina, and disclosing that the Argentine Minister of War, the future President Juan Perón, was involved in the Nazi arms deal. Hellmuth also confessed that part of his mission to Germany had been to contact the notorious Nazi espionage chief Walter Schellenberg, the head of the SS’s foreign intelligence department and later head of Section VI (foreign espionage) of the Reich Security Main Office (Reichssicherheitshauptamt, RSHA). With duelling scars on his cheeks, a signet ring stashed with cyanide, and a desk in his Berlin office mounted with machine guns which could spray the room with bullets at the flick of a switch, Schellenberg was very much the stereotype of an arch villain.⁵⁶

      The information produced by MI5’s interrogation of Hellmuth at Camp 020 was of such massive diplomatic importance that the British government decided to go public with it and expose the duplicity of the Argentine government. This caused a sensation, with General Ramírez being forced publicly to disavow Hellmuth. As the post-war history of Camp 020 noted, the Hellmuth case forced Argentina to sever diplomatic relations with the Third Reich, and helped to precipitate