Pearls and Irritations

If we’re not properly informed .. we can create monsters. This is called the Frankenstein effect. Whether you’re a taxpayer, a citizen, a consumer or a shareholder expecting to live in a free and fair society with peace and prosperity, you certainly need whistleblowers and the journalists prepared to seek out and publish their revelations.

And as we observe the plight of Julian Assange, an Australian journalist now facing extradition to the United States and prolonged incarceration, or Edward Snowden, the US National Security Agency whistleblower living under an asylum seeker visa in a flat in Moscow,  we all need to focus on what’s at stake for all of us.

As we observe the Australian Government’s prosecution of Witness K and Bernard Collaery over ASIS covert surveillance of  Timor L’Este – (not for our security but for our avaricious advantage); –  ATO small business garnishee whistleblower Richard Boyle;  and Afghan Files war crimes whistleblower David McBride, the issues of duplicitous secrecy, overreach and abuse of power stare us in the face.

Also coming soon we’re expecting  the Australian Federal Police prosecution of News Corp journalist Annika Smethurst’s alleged informant behind her revelation of a possible Australian Signals Directorate role in mass domestic surveillance, said to be required to “keep us safe”. You’ll remember the AFP conducted another search warrant raid of the Canberra house of a government employee just three months after the Smethurst raid.

I am indebted to Edward Snowden for the term the Frankenstein effect.

Secrecy can create monsters.

Secrecy by government in the righteous name of national security can mislead a polity.

Secrecy can kill .. and put at unnecessary risk the lives of civilians,  and particularly the lives of our young soldiers, sailors, airmen and women.

In his exceptional book Permanent Record (published by Macmillan in Australia) Edward Snowden said the Frankenstein effect was a term widely cited in the US intelligence community.  Its more popular but cynical military derivative was the term “blowback”: “situations in which policy decisions intended to advance American interests end up harming them … irreparably.”   Prominent examples given by intelligence analysts included American funding and training of the mujahideen to fight the Soviets in Afghanistan which resulted in the radicalisation of Osama bin Laden and the founding of al-Qaeda “as well as the de-Baathification of the Saddam Hussein-era Iraqi military which resulted in the rise of the Islamic State”. (P 150 Permanent Record).

As we watched Islamic State’s horrendous but pixelated beheading videos on network TV here in Australia most Australians still would not be consciously aware that we, as part of the “coalition of the willing” comprising prime ministers John Howard, Tony Blair and President George W. Bush had created this monster.

We helped to create the awful psychopathology of what counter terrorism agencies soon called “jihadi recruitment” around the world.  And,  resonating from that,  what soon turned out to be acts of random or copycat terror by people claiming to be jihadis.

And now we confront  … the white supremacist Islamic reprisal phenomenon with the gun massacre atrocity at the mosques of Christchurch,  New Zealand.

That’s one example the Frankenstein effect.

Now all the wonderful public spaces of our beautiful cities in peace-loving Australia and New Zealand, Canada, the United Kingdom and the US are dotted with ugly bollards – concrete and metal barriers – placed there as counter terrorism measures against a white supremacist or someone in their ute claiming to be a jihadi.

Now we are in the era of mass warrantless surveillance, the retention of our meta data,  telephony and online, our complete digital footprints, the interoperability of facial recognition here and around the world.  We are destroying our right to privacy because of our fear of terror … a terror monster we helped to create.

Only one analyst from the Five Eyes intelligence community – that’s Australia, the US, New Zealand, Canada and the UK – had the courage to blow the whistle on the fabricated WMD – weapons of mass destruction – justification for the 2004 invasion of  Iraq – Andrew Wilkie, now a federal parliamentarian.

It is reassuring to see Wilkie and now Centre Alliance Senator Rex Patrick in the current federal parliament doing all they can to strengthen this country’s public interest disclosure laws, including in the contentious areas of national security disclosures in the public interest.

Old Lazurus himself, then prime minister John Howard and some in the media tried to discredit Andrew Wilkie after he blew the whistle.   But Wilkie has been well and truly vindicated.

It’s significant that recent Lowy Institute foreign policy specialists brought to Australia, including the great David Ignatius of  The Washington Post  and Nicholas Burns (currently Joe Biden’s chief foreign policy adviser)  have acknowledged that the war in Vietnam and the invasion of Iraq post 9/11 were lethal US follies, undermining America’s credibility in the world.

It was analyst Daniel Ellsberg who blew the whistle on the monumental misjudgement of the US and Australia’s war in Vietnam.  As I’ve noted elsewhere, on his death bed,  Robert McNamara, former US secretary of defence in the Kennedy and Johnson administrations,  made what Time magazine called one of the greatest apologies of all time:  “We were wrong on Vietnam,” said McNamara.  “We owe it to future generations to explain why”. Fifty-eight thousand American military personnel, more than 500 Australian and New Zealand military personnel, hundreds of thousands of North and South Vietnamese and Cambodian  soldiers and civilians were killed.  Yes .. Mr McNamara .. we owe it to future generations to explain why.

I’ve included the contentious Julian Assange in this because as the founder of WikiLeaks he is both a journalist/publisher and a facilitator of whistleblowing.  WikiLeaks has brought with it the transformation of journalism itself through the global digital revolution and its encrypted drop box innovation, designed to protect the identity of whistleblowers and informants.  Assange provocatively called WikiLeaks  the PIA – ”the peoples’ intelligence agency”.

Now all serious media organisations have encrypted drop boxes.  They are not fool- proof, or course, and informants seeking to use the anonymity provided should be wary of  exposure of their identities through other surveillance methods.  It was reassuring to see that the whistleblower who dropped the famous Panama Papers,  massive data files exposing global tax avoidance by corporations and individuals through tax haven law firm Mossack Fonseca still enjoys anonymity. The co-ordinated effort by investigative journalists and their media outlets exposed the failure of governments all over the world  to secure the integrity of their tax collection systems.

By 2015 WikiLeaks had published  2,325,961 diplomatic cables and US State Department records comprising two billion words, including the Afghan War Diary, the Cablegate cables and Iraq War Logs.  It is a massive trove of internal state literature which exposed what Assange called the “anatomy of US Empire” and the downsides, the “immiseration” and collateral damage for people standing in the way of American power.  WikiLeaks exposed war crimes and atrocities and in particular, you’ll remember,  the confronting  Collateral Murder video where unarmed civilians including two Reuters staffers were summarily executed by helicopter gun ship.  Now Assange is facing extradition to the United States with the help of the Boris Johnson UK government.  Our Australian government, “joined at the hip”  to the USA as Malcolm Turnbull has reminded us,  will not intervene.

In all good conscience we must recognise the courage of the whistleblowers who have put their lives, liberty and reputations on the line to inform the world about what is really going on.  We must recognise the work of the journalists and their publishers who applied the public’s fundamental right to know in their editorial judgements.

Yes .. in case you think I’m Putin’s bitch or a running dog of Xi Jinping .. there are  no whistleblower protection or public interest disclosure laws to speak of in Russia or China.  If you breach state secrecy there, claiming public interest or not,  you’re more likely to be jailed indefinitely without public trial  …. or executed.    They jail journalists in Turkey.  Paramilitary death squads kill them or  the government can jail them in the Philippines.  They run them out of the country in Malaysia.  You can see the death and incarceration toll on the International Federation of Journalists’ and other global press freedom websites each week.

Like everyone in this room I’m a post World War Two baby.  As an Australian,  I love Americans and every time I meet one I thank them for their sacrifice in helping to save Australia from Japanese invasion.  My late father, a second world war soldier serving in Palestine and later Milne Bay, Papua New Guinea, always told me: “Quentin .. without the Yanks we would have been over-run by the Japs”. He’d talk about the Aussie stand at Kokoda of course, and the American blood sacrifices at Iwo Jima and the other islands, but in particular Dad always mentioned the Battle of the Coral Sea, an incredible over-the-horizon naval battle in which US and Australian warships crippled the Japanese navy, helping to stop the aggressive Japanese advance through the Pacific.

So apart from my hopefully objective editorial judgement I do not come at the contemporary issues of  national security,  whistleblowing and journalism with any anti-American bias.   America helped to rebuild Japan and Germany along functioning democratic lines, including, please note, strong public broadcasters.    Its just that since the second world war our American friends, with Australia’s uncritical support, have embarked on offensive follies in Vietnam and Iraq and have ruthlessly misbehaved in other regions including central and south America.    This has not been civilised conduct by a superpower claiming moral authority.  It has been conduct unbecoming a superpower, to put it politely. It has been tragic.  It has been lethal. It needs fearlessly to be exposed to its polity and the polities of its allies.

As a journalist I’ve dealt with many whistleblowers over the years.  Usually they’re heavily traumatised.  But some relieve their suffering by a very black sense of humour as they confront their own possible destruction.   I do not have the benefit of a psychiatrist’s report or any psychological assessment of Julian Assange.  He might be a self-centred contrarian narcissist or what ASIO once would have called a “subversive” or “bomb thrower” or “anarchist”.   But if you read what Assange has actually written it makes plausible, analytical and historical sense alongside all the documents he has published from WikiLeaks’ informants which expose the raw hypocrisies and cover-ups of the nation state, particularly the United States of America. Hillary Clinton thinks he’s a tool of the Russians.  It’s the ingrate Donald Trump administration, the alleged beneficiary of WikiLeaks’ dump of Mrs Clinton’s emails, which now seeks to have Assange brought before a court in Virginia, locked up and the key thrown away. The now-public indictment “United States versus Julian Paul Assange”  is based on the 2010 Chelsea Manning revelations.  The recent Mueller investigation  did not recommend Assange’s prosecution for any alleged pro-Putin activities to interfere in the 2016 US presidential election.

I think we need to give Julian Assange the benefit of any doubt.  He’s a journalist and a publisher and a facilitator of whistleblowing.

So … if the Ramsay Centre in Australia is determined to highlight the enlightenment it claims always glows from Western Civilisation  – concepts like the separation of powers, the rule of law, freedom of speech and of religion – we can expect to see its Ramsay directors, including Lazarus himself,   join our campaign to protect press freedom and public interest whistleblowers… can’t we?

We can expect Rupert Murdoch and his creation, Fox News (the loudest voice) and  beneficiaries of the US Constitution’s First Amendment enshrining freedom of the Press –  to  join our campaign to stop the extradition and incarceration of Julian Assange…. can’t we?

The Washington Post and The New York Times are with us.  They have editorialised that Assange deserves first amendment protections as a journalist and the publisher of WikiLeaks. They have editorialised their support for the conscientious Edward Snowden.

When the US Supreme Court found for these publications over Daniel Ellsberg’s leaked top secret classified Pentagon Papers in the 1970s, national security, whistleblowing and journalism as part of western civilisation were beautifully described  by the US District Court judge who had originally rejected the Nixon administration’s application for a restraining injunction:

 “The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”

The New York Times and The Washington Post then published the Pentagon Papers without any further government interference or negotiation on what they could or could not publish.  There you had it: Freedom of the Press. After Nixon’s “plumbers” and their dirty tricks were exposed upending Ellsberg’s psychiatrist’s office, the whistleblower himself was vindicated and did not face further prosecution.  Daniel Ellsberg wasn’t a traitor or a subversive.  He was a conscientious government employee who blew the whistle on administrations consistently lying to the American people and making strategic misjudgements.

In the Ecuadorian Embassy in London Julian Assange was covertly surveilled by a Spanish security contractor who, its alleged, passed on audio and video recordings of Assange’s conversations,  including with his therapist and his lawyers,  to the CIA.  More dirty tricks.

Here in Australia this year after the News Corp and ABC AFP search warrant raids, our mainstream media executives including from News Corp, Nine and the ABC,  have been in to see Attorney General Christian Porter.  They have asked for six  reforms:  the right to contest a search warrant application covering the homes and offices of  journalists and media organisations; exemption of journalists from national security laws enacted over the last seven years that would put them in jail for receiving and disclosing classified information (doing their jobs); reform of whistleblower protections for public interest disclosures;  a new regime to limit which documents can be stamped secret; a properly functioning FOI – freedom of information regime; and defamation law reform for the digital era.

We now await the response of Mr Porter, Prime Minister Scott Morrison and his federal cabinet with great interest.  Journalists and publishers in Australia should not be having to negotiate with government what they can or cannot publish in the public interest.  We need, in practice,  the equivalent of a US first amendment so we can all move on from the unpleasantness of 2019.  There are no search warrant raids of journalists or media organisations in the USA.  Why do they occur in Australia?  Those prosecutions of Witness K, Bernard Collaery, Richard Boyle and  David McBride should be discontinued.  So too any prosecution of Annika Smethurst’s alleged informant.

You’d think as we all watch the ordeal of the people of Hong Kong having to fight for their democratic rights against the totalitarian “break your bones” authority of Xi Jinxing’s China and its  politburo that all our Australian government security and law enforcement agencies would re-consider the exercise of their claimed independent discretions when it comes to local whistleblowers and journalists.  Security of the nation does not start with secrecy. It starts with transparency and accountability engendering pubic trust.

As the newly formed Centre for Public Integrity,  headed by former royal commissioner Tony Fitzgerald QC,  has recently asserted in a discussion paper:  in our democracy it is the “people who are sovereign” and that the integrity of our key institutions –  the parliament, the judiciary, executive government, law enforcement, the public service, consumer market regulators and a free media –  safeguard that sovereignty by upholding accountability, open government, just laws and impartial dispute resolution.

In this regard whistleblowing is now needed more than ever as all our institutions are placed under more political and resourcing pressure.

I express my grateful thanks to Whistleblowers Australia for its advocacy for public integrity in Australia over the last 20 years.  Yes we do have laws which are designed to protect whistleblowers in all states and territories and more recently from 2013, the Commonwealth.  But the actual experience of whistleblowers themselves has indicated major reform is still necessary.

In his recent Henry Parkes Oration, Professor A. J. Brown from Griffith University’s Centre for Governance and Public Policy, noted progress in whistleblower protections in corporation law to the benefit of consumers and shareholders.  He said: “But this does not change the fact -indeed it reinforces it – that despite the strengths in the new Corporations Act protections, overall, our whistleblowing laws currently amount to a well motivated but largely dysfunctional mess.  Many agencies and companies succeed in recognising and protecting whistleblowers, but often despite the relevant laws, not because of them.  And they are undermined by the tide of confused, inconsistent secrecy provisions in which government continues to embark, often apparently without realising what it is doing”.

Whistleblowers Australia has identified from its membership case histories  the misuse of the laws.  In some cases we have established what could be called “trap doors” for whistleblowers.  Unless you comply with the strict pathway to protection of your livelihood, or your anonymity, you put yourself at risk.  And that pathway can drag you ever closer to the departure door and your alienation from your workplace, putting your mental health in jeopardy.  According to Whistleblowers Australia national president Cynthia Kardell’s excellent recent submission,  some organisations still react violently to whistleblowers.  Some can find themselves under immediate performance review and soon sacked.  “Employers deploy a series of bogus performance reviews after the disclosure is made to cover their tracks.” When confronted they say that the performance review was not a reprisal.

Cynthia says Section 13 (3) of the Public Interest Disclosures Act is wrong headed and needs to go. This section allows the forcible relocation of a whistleblower against their will, rather than removing the person who is the cause of the public interest disclosure in the first place. “Section 13 (3) is heaven sent for the employer who wants to clothe their actions in false concern and a respectability they don’t deserve”.

Professor A. J. Brown has published a seven point plan for major whistleblower reform starting with the replacement of  the Commonwealth Public Interest Disclosure Act.  This would ensure whistleblower protection for all genuine public interest disclosures at  all levels of public administration and private sector regulation.  It would establish a simplified public interest test to ensure there was no actual, real, unacceptable risk or harm to national security, defence or law enforcements interests.

It would strengthen journalism and third party shield laws, freeing journalists and associated professionals from prosecution for receiving or using public interest disclosure documents and information, stop the Act from being manipulated to cover-up internal disclosures and/or  destroy or punish those who disclose.

Professor Brown recommends we establish a whistleblower protection authority to assist all informants and regulators with advice, support, coordination and enforcement to prevent, deal with and gain remedies for detrimental conduct.  He recommends we should consider a reward scheme for all public interest whistleblowers.

And beyond mere employee disclosures of wrongdoing he says we need a general public interest defence for any citizen charged with offences of unauthorised disclosure or receipt of official information in breach of the Criminal Code.

While we wait for Julian Assange, Edward Snowden, Witness K, Bernard Collaery, Richard Boyle, David McBride and,  in all likelihood,  Annika Smethurst’s alleged informant,  to face their prosecutors we should reflect on what is at stake for them.

Whistleblowers are people with the courage to put the truth first.

We cannot live, as sovereign peoples,  without them.

Unless the public is properly informed about what is really going on .. we can create monsters.

* Quentin Dempster, former chairman of the Walkley Foundation, is a contributing editor at The New Daily.  This is the transcript of a speech he delivered on Saturday, November 23 2019 to a Whistleblowers Australia national conference at Parramatta.

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