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Appeal submission under section 28 (4) of the Data Protection Act 1998

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Information Tribunal

Appeal submission under section 28 (4) of the Data Protection Act 1998

To be heard 31st January 2003 by the National Security Appeals Panel




  1. Introduction

  2. Nature of my work

  3. Specific evidence of surveillance

  4. General evidence of surveillance

  5. Fear, secrecy and unaccountable power

  6. Relationship between MI5 (Security Service) and MI6 (Secret Intelligence Service)

  7. Does the Security Service only work on matters of national security?

  8. Security Service selling information to corporate clients

  9. Security Service agents and activity in UK media

  10. Union activities within UK media and the culture of fear

  11. Criminal activity by Security Service employees

  12. Criminal activities within Metropolitan police elite units

  13. GCHQ spying on bona fide UK organisations

  14. Evidence of occult activity within MI5

  15. Home Secretary’s scrutiny of Security Service surveillance requests

  16. Duties of the Secretary of State for the Home Department under subsection 28 (2) of the 1998 Data Protection Act

  17. Did the Secretary of State for the Home Department have reasonable grounds for issuing certificate DPA/s28/TSS/2 under section 28 (2) of the Data Protection Act 1998?

  18. Consequences of the current certificate’s blanket ban

  19. Mechanism for Security Service subject access requests

  20. Exhibits

  21. Quotations

Word count: 4,774 (pages 2-10)

1 Introduction

    1. I am Tony Gosling, being duly elected secretary (unpaid) of the Bristol branch of the National Union of Journalists – representing some 350 individual members in the Bristol area working in the journalistic professions, including book publishing and public relations. Founded in 1907, the union has nearly 35,000 members in the UK, Ireland and working overseas.

2 Nature of my work and evidence

    1. As an ex-BBC reporter, freelance researcher and journalist I serve members of the Bristol branch of the NUJ, supporting and advising them (unpaid) in disputes with employers. I am presently working as a Public Relations officer, whilst researching some of the financial and spiritual causes of the ‘War on Terrorism’ and conducting research into independent media.

    1. I have prepared this evidence, which is by no means exhaustive, at my own expense and without payment from any source. I wish to check that any information the Security Service may hold, which may be used to justify surveillance of me and the Bristol branch office of the NUJ, is accurate. This I can only do by assessing data the Security Service may hold on me for myself. I am also hopeful that several decades of inappropriate anti-trade union activity can be brought to an end by proper and lawful application of the Data Protection Act 1998 to the Security Service.

    1. Much of the evidence presented here is difficult to obtain and not in the public consciousness. Possibly through proactive legal and ‘old boy network’ operations by MI5, most publications cited in this evidence have only seen one printing and receive minimal, if any, promotion. Covert Action Quarterly Magazine, for example, which published a detailed revelation of the US domination of intelligence sharing agreements, (see 13.1) was forcibly closed in 1999/2000. The magazine has ceased publication and its web-page has remained ‘frozen’ ever since.

    1. Lord Denning, in 1963, asserted that, “the Security Services are to be used for one purpose, and one purpose only, the defence of the realm. Most people I this country would, I am sure, wholeheartedly support this principle, for it would be intolerable to us to have anything in the nature of a gestapo or secret police to snoop into all that we do, even at the behest of a Minister or Government Department.” Because of the frightening nature of criminal activity within MI5, its proximity to Nazi tactics, and death threats received by investigators, the vast majority of people would rather think about something else.

3 Specific evidence of surveillance

    1. It has come to my attention, through anomalies with my telephone, that some agency or other, domestic or foreign, has access to the digital exchange software to which my phone, 0117 944 6219, is connected. I also have several documented interruptions of politically sensitive post. Papers nominating me as one of the two Southwest regional representatives on the National Executive of the National Union of Journalists disappeared in November 2002 from my branch Chairman’s home.

    1. The effect of this has been to intimidate me in my support work for NUJ members. I am no longer confidant that my communications with members and our legal advisers are confidential.

    1. Details of the above anomalies, while an important principle initiating my subject access request, is, I have been advised, not relevant to the National Security Appeals Panel. This panel adjudicates on the legality or otherwise of the certificate issued under section 28 of the Data Protection Act 1998 by the Home Secretary which exempts MI5 and MI6 from their statutory duties to disclose any data under subject access requests.

    1. The principle expressed in the DP Act is that when decisions are being made using data held on individuals, that those individuals should be able to check the accuracy of that data. In the case of the Security Service an important caveat must be added, that the disclosure of that data to the individual concerned must not jeopardise national security.

    1. It is unfortunate that, far from helping to call the Security Service to account, the disclosure of detailed evidence relating to my telephone and post to this tribunal might only aid the Security Service in covering their tracks more effectively in future.

4 General evidence of surveillance

    1. There is a growing body of evidence of the widespread trawling of digital telecommunications data within the UK by GCHQ and the National Security Agency (the US equivalent of GCHQ). This is accomplished using high-frequency microwave links and direct hard-wired connections between GCHQ (and US bases such as Menwith Hill) and the UK telecommunications network. Much of this trawling apparently falls outside British Law and there is apparently no redress for any British citizen or business secretly underbid (for example when tendering for a contract) or otherwise disadvantaged by such intelligence gathering in British or foreign courts.

5 Fear, secrecy and unaccountable power (quote 21.1)

    1. Secrecy increases the potency of power by allowing it to operate with little or no braking interference from outside. Additionally, the possession of information denied to others is, in itself, a boost to a feeling of authority. Some people see power and authority as desirable ends in themselves. In all probability these aspirations play a part in the mental make-up of some of those pursuing careers in the Security Service.

    1. In his 2002 book, ex-senior editor of the BBC London documentary unit, Tim Slessor extensively documents serious threats to life, liberty and national security of ‘The Whitehall Loop’. He names individuals involved in elites and cliques routinely covering up indefensible decisions behind the cover of ‘national security’. He cites, for example, the disastrous crash of Mk. 2 Chinook helicopter Zulu-Delta 576 on Thursday 2nd June 1994 and ensuing cover-up.

    1. “The admission of error”, he explains, ”is thought to diminish the authority of the organisation (or the person) making that admission, it dents the integrity of command. The consequence is that the organisation, particularly if it is an organisation of government for which ‘authority’ (or power) is all important, will go to almost any lengths to rubbish anything that might erode what it sees as its credibility and effectiveness.”

  1. Relationship between MI5 (Security Service) and MI6 (Secret Intelligence Service)

    1. MI5 is the domestic intelligence service and MI6 the foreign service. Roughly equivalent to the differing roles of the Home office and Foreign office respectively. The two services, for obvious reasons, work very closely together. For the purposes of the Data Protection Act 1998 MI5 is the pertinent body since it holds information on UK citizens.

    1. It is worth noting here that elements within MI6, in an attempt to deflect his criticism, recently placed one of their own officers, Richard Tomlinson, in a deliberate life threatening situation. Mi6 also ordered the assassination of a foreign head of state, Colonel Gaddafi, without the approval of Malcolm Rifkind, the Secretary of State at the Foreign Office at the time.

7 Does the Security Service only work on matters of national security? (quote 21.3)

    1. Subversives are defined as those planning the, "overthrowing or undermining parliamentary democracy by political, industrial or violent means." Any Security service activity against domestic based subversion can and should regularly be subjected to this test.

    1. Though they insist on the NCND (Neither Confirm Nor Deny) approach when questioned about their activities, it is proven beyond doubt that the Security Service are pursuing non-National security operations in a number of areas, as I will show. Particularly what constitutes a ‘subversive’ appears to have been blurred and extended well beyond the above definition over the last thirty years.

    1. Ex MI5 agent Gary Murray, in his 1993 book ‘Enemies of the State’ which has a forward by Tam Dalyell MP, details how the Security Service managed to stop embarrassing BBC investigations into its worse excesses. Though not detailed in the book, this included slipping a £50m ‘Zircon’ spy satellite past the public accounts committee. BBC Investigations, and subsequent court cases, were impeded when Special Branch raided their BBC Scotland production offices.

    1. Murray also exposes, at length, protective relationships between Security Service/Special Branch and extreme right groups such as Column 88, fascist ex-servicemen, the National Front, and the right wing of the Conservative party.

    1. Murray quoted a serving MI5 agent who wished to remain anonymous: “We’ve had serious problems for years”, he said, “It is now manifestly obvious that we have lost track of our true identity and role. We waste a considerable amount of our time investigating people who are in no way associated with espionage or subversion. To make matters worse, we have our own subversive clique within the service, who are a law unto themselves.” (quote 21.2)

    1. I do not wish to give the impression that all Security Service officers are untrustworthy. But the culture of secrecy surrounding the service appears to have nourished arrogant individuals and cliques of influence within which I will sketch out below. It is by no means clear whether these cliques are taking orders from inside or outside MI5.

    1. The reaction of these cliques, when evidence is presented to them of internal malpractice, will be to lie and otherwise cover-up fraudulent or wasteful use of public funds rather than assist in exposing their own culpability. The abuse of the genuine need for secrecy (to protect national security) allows wayward cliques or individuals within the service to be virtually unaccountable, putting them ‘above the law’.

8 Security Service selling information to corporate clients

    1. The Security Service are, discreetly, going out of their way to make intelligence they gather on UK citizens available to corporate clients such as Cadbury Schweppes, Allied Domecq and BP. At a secretive seminar and buffet lunch at its Millbank headquarters in autumn 2001, 64 top corporate executives were addressed by Sir Stephen Lander. MI5’s then director-general explained he was, “sure that MI5 could help business more if only it were asked.” (Exhibit A)

    1. This raises several questions which have remained unanswered by MI5. Does that ‘help’ include providing information on bothersome NUJ members to the offices of anti-union press barons such as Rupert Murdock and Conrad Black? Has information been provided to foreign interests within UK businesses? How was the client list of 64 prepared? Are all the managers invited now motivated by UK national security interests rather than the profitability of their respective shareholders? Helping business ‘more’ implies MI5 is already supplying a service to business, what service? How much information has been sold as a result of this seminar? When asked MI5 refused to reply to any of these concerns, the ‘NCND’ approach again.

    1. One wonders where the authority for MI5 to pursue this policy has come from. Clearly there are moves at the highest levels within the Security Service to sell the information they hold on UK citizens which has ostensibly been gathered for national security purposes only. The Security Service simply cannot have it both ways. The commercialisation of the Security Service follows a similar trend in the USA’s FBI and NSA.

9 Security Service agents and activity in UK media

    1. The presence in UK newsrooms and media corporations’ human resources departments of paid and unpaid Security Service agents was thought for many years to be relatively benign and not considered to effect the impartiality of news coverage. But, since the nineteen sixties, this presence appears to have become considerably more proactive, even obsessive, particularly through routine secret vetting of independent-minded and left-wing journalists, commissioning editors and other creative staff. It is worth bearing in mind here that democracy can only function with a free and unfettered press.

    1. A great deal of trust is invested in those carrying out unscrutinised vetting. They can use any criterion they wish to vet an employee, including their race or religious belief, with the knowledge of only one individual within the relevant human resources department. Cases have come to light where careers of highly talented award-winning individuals have been ruined because of erroneous information in their security file. (Exhibit B)

    1. Former MI5 employee David Shayler has revealed to NUJ members on more than one occasion that while a serving officer he had a conversation with a colleague working for a department running a ‘spy in every newsroom’. He made it clear that not all these spies are paid, some simply have a close relationship with the Security Service whereby they warn MI5 of the emergence of stories falling into specific categories and report to the MI5 on ‘wayward’ reporters. In exchange spies are given juicy ‘exclusives’ from MI5.

    1. With several hundred newsrooms in Britain these activities must take up a considerable amount of MI5’s resources, yet the Security Services’ news monitoring and management activities are virtually unknown outside their own circles. Some people see the extent and proactive nature of this activity as unnecessary, or incompatible with a democratic society.

    1. Some of these domestic newsroom agents, such as Dominic Lawson, editor of the Sunday Telegraph, are known to be involved in planting stories favourable towards or convenient for the Security Service. The onus should be on the Security Service to justify resources used for this purpose as necessary for national security. Particularly when some stories are planted to discredit or ‘smear’ legitimate critics of the Security Service or UK foreign policy.

    1. On other occasions the stories are ‘planted’ to persuade the public of the voracity of a particular terrorist threat. In Northern Ireland, for example, much material is handed to journalists about weapons held by the IRA and virtually none explaining the danger to the public of loyalist terrorists. These ‘story planting’ operations take place under IOPS, or the Information Operations Planning System (formerly IRD or Information Research Department).

    1. Some people might consider it detrimental to national security when the public no longer trust what they are being told on television, radio, or in the newspapers. When the discussions, values and opinions served up by the media no longer relate to what the population are concerned about amongst themselves, national security is undermined. A climate of mistrust in national debate is fertile ground for domestic subversion.

    1. The proximity of the present day MI5 to commissioning and non-news departments of the BBC is indicated by the recent ‘Spooks’ BBC TV drama series, which painted the Security Service in an exceptionally positive light. A potentially exciting series, one might conclude it was its propagandistic nature that brought less-than-expected ratings and unenthusiastic reviews. It was seen by many as a crude attempt to rehabilitate a discredited Security Service with MP’s and the British public.

10 Union activities within UK media and the culture of fear

    1. The overall situation in the UK media at present is problematic for journalists, with commercial newspapers and broadcasters being increasingly owned by distantly managed multinational corporations such as Newsquest, Gannett, AOL/Time Warner, Vivendi etc.. Media managers, like those in other industries, take specific training courses where they learn how to sack employees they disagree with, whilst undermining their legal rights of redress. NUJ members are being bullied and removed regardless of whether they are good at their job or provide a popular and dedicated service to the public.

    1. Tim Lezard, chair of the NUJ branch in Gloucestershire, was recently asked to move from The Gloucester Citizen, one outlet of the Northcliffe group of newspapers, where he had been working for several years, to another, the Western Daily Press. Within a few months he was told his work was ‘not up to standard’ and sacked with no legal redress. Whilst part of the same regional newspaper group, the Western Daily is considered a separate company in employment law. Managers at the Western Daily Press were unable to give him any examples of his so-called work deficiencies.

    1. Helen Reed, a genuinely popular regional radio presenter and NUJ member, attracted a half page spread in the Daily Telegraph on 12 Apr 2002 after proving extensive bullying at her employment tribunal. No action has been taken against the BBC management responsible. No explanation of her disappearance was given to her considerable regional listenership. She simply ‘vanished’ from one of BBC Radio Bristol’s most popular shows. (Exhibit C)

    1. Another employee of the BBC in Bristol, producer of a well-known daily Radio 4 programme, who wishes to remain anonymous, explained to me how she had been intimidated, harassed and bullied by senior staff. A tiny deficiency in her immense workload was ‘proof that she wasn’t up to the job’ and due to her ‘genetic failings’. This was particularly hurtful and demoralising since she is of Jewish extraction. She was denied any compensation for the loss of her job.

    1. The overall picture is one of dirty tricks and intimidation within a profession where the Security Service is known to be particularly active.

11 Criminal activity by Security Service employees

    1. Before the Security Service Act 1989 criminal activity by the Security Service was routine. Now, we are told, this has all been brought onto a proper legal footing and all activity is lawful. But there is evidence that this is not the case.

    1. If the 1989 law doesn’t allow a particular operation, it seems, the Security Service employs the methods of organised crime. They presumably believe they can do this with impunity. In 1999, MI5 officers blackmailed Algerian journalist and asylum-seeker Reda Hassaine, to infiltrate and break into Mosques, threatening him with return to possible execution in Algeria if he refused. (Exhibit D)

    1. Within MI5’s protective wall of secrecy, bolstered by the principles of closing ranks to protect one’s colleagues, one might ask how many other post 1989 criminal operations have passed undetected or unconfirmed by the press?

    1. In his 1993 book ‘Enemies of the State’ (see 7.3) ex-MI5 agent Gary Murray exposes private investigators’ routine trade in data from police, government and military computers. “The ultimate contact”, he explains, “is a Special Branch operative, who can access almost any other government department, including the Ministry of Defence, the inland revenue, and even the Security Services.” This widespread but secretive trade is achieved, he proves, through contacts between serving officers and ex-colleagues now operating private espionage firms.

    1. When caught red-handed by Murray and BBC in 1986 and found guilty at Winchester Crown court in 1989, five private espionage agents and two serving police officers received non-custodial sentences. Whilst making the right noises for the public this sentence will have been seen as a ‘green light’ to others routinely breaking the Official Secrets Act with ex-colleagues.

12 Criminal activities within Metropolitan police elite units

    1. Whilst the Metropolitan police serious crime squad is clearly not the Security Service, problems within it suggest criminal activity may go hand-in-hand with secretive, ostensibly crime-fighting, institutions.

    1. Ex-Metropolitan police drug and serious crime squad detective Duncan MacLaughlin, author of the 2002 book ‘Filth, the explosive story of Scotland Yard’s top undercover cop,’ describes sections of the drug squad and the regional crime squad at Scotland Yard as the "most professional criminal cartels in Britain". (Exhibit E)

13 GCHQ spying on bona fide UK organisations

    1. In the late 1990’s Covert Action Quarterly, an Australian magazine founded by ex-CIA agent Philip Agee, published an article by New Zealand writer Nicky Hagar. Although there was some attempt to discredit the article at the time, much of the information in it about intelligence sharing agreements between the English speaking Western powers is now accepted fact.

    1. In the article, Hagar quotes from a June 1992 article in which the London Observer spoke to a group of “highly placed intelligence operatives” from the British GCHQ. "We feel”, the operatives said, “we can no longer remain silent regarding that which we regard to be gross malpractice and negligence within the establishment in which we operate."

    1. They gave as examples GCHQ interception of three charitable organisations, including Amnesty International and Christian Aid. As the Observer reported, "At any time GCHQ is able to home in on their communications for a routine target request," the GCHQ source said.

14 Evidence of occult activity within MI5

    1. The word ‘occult’ is taken from the latin for ‘hidden’. Groups and individuals falling into this category are known to include multi-generational and other ‘cults’ characterised by initiation rites, fascistic hierarchies and extreme secrecy sealed with life-threatening oaths. One common characteristic of these occult groups is the use of symbolism, studied in the science of semiotics.

    1. Some time in the nineteen seventies, MI5 removed from regular use on their documents a triangular badge with an ancient Egyptian symbol similar to that used on the great seal of the United States. That is a letter ‘I’ and symbol of an eye at the top of an upright equilateral triangle. (Exhibit F)

    1. While by no means conclusive proof alone, the presence of this symbol, well known to students of semiotics, points to occult influence at the highest levels in the service i.e. those individuals who choose what the official insignia will be.

    1. To my knowledge, the possibility of occult activity within the Security Service’s has never been seriously considered by those conducting MI5’s democratic oversight. Such an investigation would require specialist knowledge, courage and integrity.

15 Home Secretary’s scrutiny of Security Service surveillance requests

15.1 With the best will in the world, it is impossible for all surveillance requests from the Security Service to be checked thoroughly by the Secretary of State for the Home Department before being granted. A considerable amount of trust, both of the public in the Secretary of State, and the Secretary of State in his or her civil service advisers and the Security Service is necessitated by this process.

16 Duties of the Secretary of State for the Home Department under subsection 28 (2) of the 1998 Data Protection Act

    1. The current certificate DPA/s28/TSS2 contains four sections and four tables. Section one explains the Secretary of State’s duties in drawing up the certificate under section 28 the Data Protection Act 1998. Section two summarises the possible consequences, from a security service perspective, of any release of data. Sections three and four detail the blanket exemption of all security service data from the provisions of the DP Act.

17 Did the Secretary of State for the Home Department have reasonable grounds for issuing certificate DPA/s28/TSS/2 under section 28 (2) of the Data Protection Act 1998?

    1. The principle at stake, from a legal perspective, is whether the aegis of ‘national security’ can reasonably be used to justify a blanket exemption from all Security Service subject access requests under the DP Act 1998.

    1. The Data Protection Act 1998 states, in 28 (1) that a certificate of exemption may be sought and obtained by the Security Service and the Secret Intelligence Service from the Home Secretary if ‘required for the purpose of national security’. The current certificate, DPA/s28/TSS/2, implies directly that all operations of and files held by MI5 and MI6 are regarding matters relating to national security. As I believe I have conclusively demonstrated above, this is not the case.

18 Consequences of the current certificate’s blanket ban

    1. Consider the potentially adverse repercussions for the national security of the United Kingdom if one or more individuals involved in criminal syndicates, religious extremists, occultists or persons with close ties to foreign powers, were to establish themselves within the Security Service. Indeed the evidence related above suggests this may have already happened. Unfortunately MI5 appear unable to seriously consider this possibility.

    1. To mitigate against, and act as a retrospective check on, non-national security activity, by and within the Security Service, it is necessary to provide a mechanism within the certificate for exceptions to the current blanket ban. Bona fide individuals, who have evidence that data on them gathered by the Security Service, ostensibly for reasons of national security, is being used for political, commercial, religious fundamentalist, criminal, personal or totalitarian ends, not related to the Defence of the Realm, should be able to bring this evidence to the Information Tribunal’s or another fully independent scrutineer’s attention.

    1. This can only happen, when evidence has been substantiated, by the individual concerned being able to check and criticise the data held. They might then gain redress for the inaccurate reasons given for gathering that data in the first place.

    1. In the certificate DPA/s28/TSS/2 no such provision is made. The certificate should therefore be quashed and instructions issued to the Secretary of State to issue a new one with a mechanism for assessing each subject access request to the Security Service individually. If exemption from the act is sought, under section 28, it must be up to the security service to show, to a body trusted by MI5, the public and parliament that a particular disclosure is likely to damage national security.

    1. This is particularly important when an individual making a subject access request to the Security Service under the act may be prepared to submit to open questioning to prove beyond reasonable doubt that he or she presents no threat to national security and is a bona fide, loyal, subject of the realm.

19 Mechanism for Security Service subject access requests

    1. Whilst it is, I believe, the task of the National Security Appeals panel to draw up procedures in cases like this I would like to outline what I believe to be a course of action which balances civil liberties with national security implications.

    1. The current procedure, whereby all subject access requests and correspondence is returned to the individual, who has paid £10.00 to be told their request is covered by a blanket ban, with a wavy line ‘signature’ designated as ‘for the data controller’, is not value for money and unnecessarily secretive. (Exhibit G)

    1. If subject access procedures have in any way been conducted illegally under the Data Protection Act the ‘wavy line’ signature makes it impossible to trace the source of that illegality. Whilst anonymity might be habitual practise within the Security Service, it is not compatible with the law. Neither is it a threat to national security for those making subject access requests to be able to communicate with the data controller’s nominee in a civilised manner, as they do with the police. And by telephone if this would speed up or otherwise simplify the process.

    1. Considering the presumed size and extent of the Security Services’ data holding, they should be treated as any large data-holder, but with an independent scrutineer examining each subject access request in a balanced way with regard to its implications for civil liberties and national security. As part of its responsibility as the data holder under data protection legislation, the Security Service should fund this process.

    1. The appointment of an independent scrutineer should be made transparently and in public. I suggest a nominated panel from trades unions, the information tribunal and civil liberties groups to oversee this appointment and to conduct ongoing employment reviews alongside a representative of the Security Service. This procedure would do a great deal to restore parliamentary and public confidence in MI5’s credibility whilst providing safeguards to ensure they do not abuse the trust invested in them.

    1. Any objection by the Security service to a particular scrutineer’s appointment on the basis of the individual’s risk to national security can easily be checked by the nominated panel with reference to the individual’s evidence and testimony and comparing to Security Service evidence.

20 Exhibits

20.1 Exhibit A - Independent Newspaper – 07Sep01 - MI5 offers to spy for private firms by Steve Boggan

20.2 Exhibit B - MI5 and the BBC: Stamping the ‘Christmas Tree’ Files - from ‘Blacklist, The Inside Story of Political Vetting, by Mark Hollingsworth and Richard Norton-Taylor, 1988.

    1. Exhibit C – Daily Telegraph – 12Apr02 – BBC ’redhead’ was unfairly sacked

    1. Exhibit D – Observer Newspaper – 28Feb01 – MI5 and police ordered illegal break-ins at Mosques

    1. Exhibit E - Sunday Times - 20Sep98 'Serpico' claims Scotland Yard elite ran drug cartel, by Nicholas Rufford

    1. Exhibit F – MI5 pre-nineteen seventies insignia

    1. Exhibit G – Anonymous communication from the security service data controller with wavy line signature

21 Quotations

21.1 ’The maintenance of secrets acts like a psychic poison, which alienates their possessor from the community.’ Karl Jung, ‘Modern Man in Search of a Soul’

21.2 Maybe there’s another CIA. Inside the CIA.' Robert Redford in ‘Three Days of the Condor.'
21.3 Definition of a Power Elite: 'A group of men, similar in interest and outlook, shaping events from invulnerable positions behind the scenes.' C. Wright Mills 'The Power Elite, 1954'

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