Justice impossible with secret trials

Jun 23, 2020

Over in the United States, a former national security adviser to Donald Trump, John Bolton, has a book about to hit the newsstands. It is very critical of, and indiscreet about, his former boss. It shows Trump double dealing with China, approving, not disapproving of its persecution and detention of the Uighars, and seeking China’s help in securing re-election by buying soybeans and wheat.

Notionally, China is public enemy number one with the US at the moment, with Trump’s attempts to blame it for many of his political misfortunes, including his mismanagement of Covid-19. Australia and The Australian, in familiar postures, are seeking to anticipate an American confrontation with it, and focusing hostility on us. Perhaps we are unconscious of relationships being more cosy than they appear.

It is said that China would very much prefer that Trump be re-elected.  Bloomberg’s Peter Martin  interviewed current and former Chinese officials who said “the benefit of the [Trump-caused] erosion of America’s post-war alliance network”  would outweigh any short term damage to China from Trump’s trade shenanigans. No one seems to have informed our foreign minister Marise Payne, still throwing coal on the fire, as it were.

Nothing about Donald Trump — or John Bolton for that matter — ever surprises. Trump has called Bolton a liar, as usual when he falls out with, and sacks, as former close advisers. He says Bolton was dumb with no friends. And his administration is attempting, at the very last moment to prevent distribution of the book, which was to be formally launched on Tuesday, after, as usual with books of this sort, the sale of excerpts to newspapers prior to publication.

The intervention is probably too late. Hundreds of thousands of copies have already been despatched by the publisher to thousands of bookshops, and overseas, including Australia. I doubt  they could get them all back. If the book contains information which could damage the American national security interest — I should be very surprised if spies from Russia, or China, or Germany, or even Australia cannot intercept at least one copy each, with all of the damage to world peace this might entail.

Oddly, Bolton, ever zealous for a belligerent United States, if seemingly determined to injure the political prospects of Trump, discounts any fear he might weaken his nation. It may be he thinks that getting rid of Trump would, by itself, make America greater. He says that anyway he cleared the book with White House security folk.  We can assume he means to embarrass Trump and his court, but that he does not extend to disclosing the nation’s secret codes, weapons stocks, or battle plans.

On paper, the US military and intelligence establishment is far more security conscious than Australia. Over the years, the US has either withheld intelligence information from Australia, or threatened to, because it has not trusted our security, or, more often, some of its guardians, particularly politicians. This often makes Australian officials paranoid about disclosing information exchanged with the US, even if it is revealed to congress or leaked to the New York Times.

Yet many American military and security  officials write books immediately after leaving government service. Sacked or loyal to the end, they disclose details of who said what and when, with accounts of close deals with enemies and allies. These are almost invariably unflattering to both, and on subject matters about which the Americans would go bananas if it were leaked by the other side, including by our leaders or our own leakers.

Or they give extensive off-the-record interviews to insider journalists such as Bob Woodward, who then write  detailed accounts of sensitive military actions, interchanges with other countries,  players, including details of intelligence assessments and military strategies and tactics. These tend, of course, to praise most those who help most.

There are Americans, such as Chelsea Manning who have been in jail for disclosing secret material. Others such as our own Julian Assange of Wikileaks are fighting extradition. But not many Americans in the political sphere have ever been punished for disclosing information which suited their personal interests, even if it undermined confidence in the nation’s leadership.

I expect that Bolton is right in thinking that his disclosures will not much damage US national security. Damage and embarrassment to Trump and his present team, undermining a negotiating point, or disclosing a fact not necessarily known to the other side does not always cause long-term damage to relations with other nations. That’s because everyone knows both that boys will be boys and that national players are not always boy scouts.

Even disclosures which damage personal friendships and trust between political leaders  may not do serious damage to long-standing or almost permanent relationships. Trump is a blamer, never forgets a grudge, and is often petty. On that account officials in PM&C will swear blind in FOI documents that the world, as we know it, will come to an end if it gets out that Trump vetoed a dinner invitation to a religious mate and mentor of our prime minister. Right now Trump loves Scott Morrison. But the alliance has not greatly faltered when our leaders have detested each other, as has often happened.

The distinction between information that is embarrassing to politicians or security officials and what truly damages the national interest is not often discussed in Australian law. But there is a 1980 High Court case  — which may end up trumping — as it were — some modern national security legislation which,  in the correct sense of the word, begs the question of damage to the national interest.

It seems bound to arise in almost all of the national security cases coming up for hearing in the ACT Supreme Court, if with a danger of being resolved behind closed doors. These also raise the question of whether the national security veil can cover moral or legal wrongdoing by Australians, however embarrassing.

A former ASIS official, Witness K faces sentence for allegedly damaging our national security interest by disclosing that he had been involved in bugging the East Timor Cabinet room during tense negotiations with Australia more than a decade ago. It was in the Howard government’s time, and involved the resetting of our border with East Timor. Defending a similar charge is Witness K’s lawyer, Bernard Colleary, also at the same time the lawyer for East Timor in proceedings in an international court seeking to upset the deal ultimately made.

Yet another whistle-blower openly leaked information to the ABC about the involvement of Australian soldiers in alleged war crimes in Afghanistan.

In my opinion Australians are better off for each of these disclosures. In my view the public interest in our knowing how awful our politicians, officials and soldiers are, if they are awful, trumps the public interest in keeping it a secret. In the Collaery case, there are closed hearings about whether and to what extent the hearings ought to be open hearings, normally a fundamental feature of a proper justice system. So fundamental, in fact, that I cannot think of an Australian judge I would trust to come to a correct decision without having to perform in the open. Having some evidence — say from a rape victim — in secret proceedings is one thing. Having the whole hearing closed and beyond public scrutiny is not justice as all.

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