Pearls and Irritations

50 years of public disclosure has never harmed the national security interest

Brian Toohey is a great Australian journalist who, over 50 years, has mostly rated the public’s right to know as being more important than what politicians and public servants have thought the national security interests of the state. He has often embarrassed governments with disclosure about what is being secretly said and done on their behalf.

As a champion of the class, he bears the honour, along with his former writing colleague, Bill Pinwell, and Julian Assange, of having been accused by ministers of having put the lives of Australians, and our allies at risk and of actually being responsible for some of our spies being killed. In Toohey’s case that accusation came from the then foreign minister, Gareth Evans, in an affidavit filed in the High Court. Evans said that the deaths had occurred during the past 18 months (of late 1988) “in circumstances where a connection was easily able to be drawn between them and our operation”.

The Evans statement was never to be tested in court, because the case settled quickly (in Toohey’s favour). But close questioning of Evans in parliament and the press saw significant, then complete, row backs. At first, he said his association of the deaths of two claimed contacts of ASIS agents (in Indochina) was based on “a reliable source”. Later, on the ABC, he said he had relied on speculation and “only a bit of evidence”.

But later on he was to admit to Michelle Grattan that there was no evidence linking the deaths with the disclosure. And two months after the allegation, he was to write to Pinwell that “Our working assumption has certainly been that the identity of the ASIS officers in question as ASIS officers remains unknown and that the victims were not killed as a result of these contacts.” What Evans had been saying, in short, in efforts to get a late-night High Court injunction had been 100 per cent bullshit.

So has been a lot of what is said, here and abroad, about journalistic disclosures being responsible for the deaths of secret agents as a result of leaks, such as by Chelsea Manning. The assertions of Hillary Clinton and other American politicians have been very vague on details. Richard Welch, the CIA station chief in Greece was murdered by terrorists in 1975 after his name as a CIA officer was one of several thousand in books critical of the CIA by former CIA officers. But no actual association between that naming and his assassination was ever established. The identity of CIA station chiefs in particular places, particularly where the agency is engaged in both active intelligence gathering and in covert operations, is often known. Nonetheless, that death was responsible for legislation around much of the western world making it an offence to disclose the names of people inside the intelligence system.

Some might think it the supreme arrogance of a journalist that he would claim the right, sometimes the duty, to draw to the public’s attention what our defence establishment, professional spies, intelligence analysts and security agents – sometimes our police – have been doing to protect Australians from the evil doings of outsiders.

How could a journalist know the impact of disclosure? How could he, or she, know how particular bits of information, irresponsibly made public, could fit into the mosaic of information that foreign countries or terrorists are attempting to discover?  What right has a mere reporter – even an editor – to pit her or his judgment against the detached judgment of experts, people professionally engaged in protecting the freedoms and the conditions that we all take for granted, blithely unaware of the uncertain foundations on which they depend?

Journalists, moreover, mostly operate in a generally commercial environment in which weighing of the public interest is only one of a number of factors guiding decisions about publication. Sensationalism, the pursuit of partisan agendas and sometimes the sheer wicked pleasure of upsetting the government or the bureaucrats of the day, or getting some short-term “scoop”  may outweigh mature consideration about the long-term national interest. Just as war is too important a business to be left to generals, is the right to disclose a matter too important to be entrusted to journalists? Might it not be better to have standards set by law, able to be parsed and analysed by judges and lawyers and detached folk with a deep knowledge and understanding of what is necessary to protect the nation.

These are weighty arguments suggesting deep examination of conscience, weighing of arguments in particular cases, and, perhaps in these days as we move into a surveillance state, close consultations with lawyers.  I am not suggesting that the journalist’s inclination to publish is always right.

But one can be pardoned for not being too reverent about AUSTEO or TOP SECRET stamps when one sees some of the information they contain, or the calibre of the reasoning of some politicians, bureaucrats and policemen in thinking that disclosure ought automatically to warrant very severe punishment by the state. Had I been the lucky recipient of any of the material Toohey has published, or any of the recent material put into the public record, I would not have hesitated to publish. Disclosure was good for Australia and its citizens. It benefited the public interest. The claims to the contrary were self-serving, and often concealed significant misbehavior or incompetence.

The career of Brian Toohey, copiously illustrated in his most recent book Secret: the making of Australia’s security state (MUP) might be a good illustration why. Toohey has been disclosing inconvenient facts since he departed the employ of Lance Barnard, the Whitlam government minister for defence, over Barnard’s disloyalty to his staff when Arthur Tange, secretary of the department, attempted to freeze out political advisers. In the years after, Toohey, mostly as a journalist with the Australian Financial Review, and later with the National Times, of which he was editor, and other publications and books, has repeatedly embarrassed governments by disclosure of defence and diplomatic secrets, our spying operations here and abroad, our secret and over cosy relationship with the United States and Britain, and difficult and inconvenient disclosures about Australia’s overseas spying and communications intelligence operations. (I will be speaking at the Canberra Times meet the author function at the ANU on October 3.)

Governments have frequently taken Toohey, or his publications, to court in attempts to prevent disclosures they feared (sometimes wrongly) were about to happen. In most cases they have failed – if in a legal environment and regime far less hysterical and overbalanced than in the present day. Where government efforts at censorship have succeeded in part, its censorship has usually been allowed to extend only to piffling deletion, of information we now know and which never should have been behind a national security screen.

There was a time when the courts had a robust attitude to claims of imminent national collapse were a Top-Secret document disclosed. Forty years ago, for example, Justice Tony Mason, of the High Court, rejected the idea that the Government’s secrets were inherently confidential.

“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.  Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”

This was also a case, incidentally, in which Mason criticised officials who said that disclosure of documents was prima facie wrong merely because they had Top Secret and other markings on them.

Toohey discusses many of his disclosures, and the furore they caused, in his latest book. I remember most of the cases fondly. Looking back, it is almost impossible to say that any of the disclosures caused any damage to the national security of Australia. Any more than any modern disclosures, including ones before or likely to be before the courts, can be said to have caused damage to national security.

Many have been embarrassing, whether to the government, or officials, or to Australia’s relationships with other countries. The most usual reason is because they have shown a difference between what people have said they have been doing, and what they have in fact been doing. They have demonstrated hypocrisy. They have also shown cases of discreditable acts done on the nation’s behalf, or concealed incompetence, mismanagement and bad faith on the part of officials.

A good many documents have national security markings on them so as to conceal poor or discreditable conduct. The markings have served to keep the public from knowing what ministers and officials have been doing, But the public’s ignorance has not helped good government. In many cases, indeed, the officials would not have dared to do what they have done had members of the public been looking over their shoulder.

Toohey has, over the years, disclosed spying operations on our neighbours, such as the monitoring of telephone and internet traffic in Indonesia and Papua New Guinea. That this has occurred has hardly surprised our neighbours (although, in one court action, officials swore that south east Asian countries were unsophisticated and did not realise that espionage was routine.) More often than not, however, the response to disclosure has not been to alert neighbours to matters that they did not actually know, so much as forced them to respond to something they have known but ignored. If offence has had to be taken, for reasons of face, the problem has usually blown over quickly, with no evidence of a slowing of ordinary diplomatic activity or commerce. Officials — such as Ambassadors — have said so in their correspondence, if usually well after the event. In the meantime the impression sought to be created is of disaster, and the undoing of patient diplomacy by journalistic treachery, perhaps treason.

Sometimes this serves to distract from what is sought to be concealed. From what is on the public record, it does not appear that the ASIS officer witness K was initially troubled about putting a bug in the Cabinet room of the East Timorese government as it conferred about negotiations on the border with Australia. That, we might assume, is business—what spooks of all countries do to know what is going on.

Witness K’s concerns arose only when he became aware that the secretary of the department of Foreign Affairs, Ashton Calvert, was, on retirement, going to work for Woodside Petroleum, the Australian company which stood to benefit from any advantage Australia gained in the negotiations. And that the then minister for foreign affairs, Alexander Downer, was soon, in retirement, to be making hundreds of thousands of dollars as a consultant and adviser to Woodside.  Was this what the public interest was – finding commercial advantage for an Australian company? Was the advantage gained by Woodside, as our spooks acted to protect their interests, worth the lasting damage to the relationship with our neighbour? in this context, was his clandestine activity (presumably a criminal offence in East Timor) morally or legally justifiable? I have no doubt that a judge can be found who will say so. But his opinion, like the DPP’s and the Attorney-General’s will, in my opinion, be tosh.

Are Australians better off knowing that some of Australia’s most elite soldiers have been accused of “going off reservation” and committing war crimes while in Afghanistan? Is disclosure of secret machinations of Mike Pezzullo in Home Affairs, and officials in defence and the Australian Signals Directorate plotting both to extend Pezzullo’s empire as well as the breadth and depth of the national surveillance state of themselves deserving to be regarded as against the national security interest? Is the fact that Pezzullo, or his minister, thinks more spying on Australians a good thing concludive?

In a recent High Court case, the effective dismissal of a Home Affairs employee (who had been anonymously tweeting hostile comments about the concentration camp regime run by the department) was upheld – and a right of a relevant implied constitutional freedom of speech denied.

It is not a leaking story. But it is possible to see the decision as being primarily one about the duty of confidence that any employee, even a public servant, usually owes to her employer.  But that does not, or should not convert the tweeting into some sort of national betrayal, or threat to the nation’s security.

Put bluntly, I can see no reason why courts ought to give deference to the opinion of Pezzullo about what damages national security. He’s a player, not a detached observer. He has definite opinions, no doubt sincerely held, and definite intolerance for contrary opinions, but his views about where the public interest lies have no particular authority because of his experience or his office.

There are other officials in whose general capacity I repose confidence, but whose views about government secrecy I do not respect. I am sure that the Commander of our Defence Forces, General Angus Campbell, is quite capable of deploying his forces to advantage in defending Australia. But he, and the defence department, have long been hostile to public scrutiny, through journalists, of what defence does. They are far less open than, say, their counterparts in Britain or the United States. Sooner or later our national security establishment must take as a given that it operates in a free and democratic country, where the actions of officials, even soldiers, spooks and cops, are to be assumed to be in the public gaze, unless there are pressing particular arguments otherwise.

I have remarked before that ASIO moved smoothly into the post-2001 anti-terrorism era because of the high public regard for the judgment and integrity of Dennis Richardson. Regard of that sort does not transfer automatically to successors, particularly after prime ministers and others have been allowed to use such organisations for partisan purposes, have verballed officials  and compromised, or rendered silent, watchdog agencies. The weight to be attached to the views of senior spooks does not come from appointment. It comes from having been measured and tested in the public gaze. All the more so when the bulk of the folk concerned has been in showing their authoritarian side, not their respect for the virtues of accountability.

Heaven knows where the true balance between secrecy and the public’s right to know actually is. But public officials and politicians have done more damage to both than any journalists have, and I would rate the lifetime contribution and the judgment of Toohey as highly as those of any of the current guardians of the national interest.

Those with the perfect right to disagree are invited to nominate journalistic disclosures – since 1969 perhaps – which have actually damaged Australia’s standing in the world. More, that is to say, than the conduct actually disclosed.

Jack Waterford is a former Editor of The Canberra Times

jwaterfordcanberra@gmail.com

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