Transparency light in the dark world of surveillance and intelligence

Stephanie age 6

I didn't include surveillance and intelligence matters in my 'straws in the wind' list but they deserve a mention in the context of the government's approach to transparency. 

To generalise, the government doesn't talk publicly about such things. And all Australian intelligence agencies are entirely exempt from the Freedom of Information Act.

 It's quite a contrast elsewhere, even among most of our 'Five Eyes' partners.

Maybe whistling in a dark corner, but the issue of getting the balance right between secrecy and disclosure deserves more discussion than it has received so far.

Spying and surveillance
So far the public response here to the Snowden leaks is the familiar 'in line with longstanding practice we don't comment on intelligence matters.' With fingers crossed things can't get worse in our relations with Indonesia, and biding our time until the International Court rules on the case brought by Timor Leste. 
(Raoul Heinrichs of the ANU writing in The Canberra Times suggests something completely different:"One option may be to pre-emptively come clean on the damaging material we know Snowden possesses. That may sound a bit like committing suicide for fear of death, and it would be painful and embarrassing in the short-term. But the alternative is to cede the initiative, to stay on the back foot while Snowden's leaks are drawn out over months or even years and timed to maximise damage.")

Closer to home the government has had little or nothing to say about PRISM and reports last year about collection of phone and internet data from other countries by the NSA in accordance with deals with organisations like Telstra, as revealed by the Washington Post.

It goes without saying that surveillance and intelligence gathering are both necessary and important and that there are strong and legitimate reasons for not being completely open about such things.

But that doesn't mean silence. As President Obama said:

" ..there is an inevitable bias not only within the intelligence community, but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate -- and oversight that is public, as well as private or classified -- the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws."

He outlined in that speech steps to rein in some intelligence gathering activities as well.

(US) Director of National Intelligence James Clapper later told the Senate Intelligence Committee 

"The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can.."

In Europe German Chancellor Merkel continues to lead a strong response in public to reports of US activities.

Here, well mostly silence.

Neither major party supported an attempt by The Greens Senator Ludlam in December to establish a Select Committee to inquire into electronic surveillance and governance of the Australian Intelligence Community, thus scuppering that idea. With ALP (but not government) support Senator Ludlam did succeed with a motion for a Senate committee to look into the Telecommunications (Interception and Access) Act, something recommended by the ALRC six years ago but not acted upon previously.

Freedom of information
And while FOI will never likely deliver anything of the Snowden variety, this also is an area of contrast.

In Australia all intelligence agencies are exempt entirely.  

In all other 'Five Eyes" countries with the exception of some UK counterparts, intelligence agencies generally are subject to access to information laws.

In the US, the FOI act extends to the NSA and the CIA, the latter proclaiming:

The CIA releases millions of pages of documents each year. Much of this is material of historical significance or personal interest that has been declassified under Executive Order 12958 (a presidential order outlining a uniform system for handling national security information) or the Freedom of Information Act and Privacy Act (statutes which give US citizens access to US government information or US government information about themselves, respectively). The Agency handles thousands of cases each year and maintains the CIA’s FOIA Electronic Reading Room to release this information to the public and to provide guidance for requesting information. Some released information of significant public interest or historical value is also available at the National Archives and Records Administration.  

The same goes for Canada and NZ and in the UK for MI5 (Correction-UK security services are exempt-thanks Andrew) but not MI6 and others.

The Hawke review recommends we keep things the way they are as argued by the Australian Intelligence Community (pdf). Bear with me-mostly in their own words:
this level of protection is vital and necessary; relying only on other exemptions in the act concerning national security, defence or international relations on a case-by-case basis would involve decisions that are potentially subject to internal and external review; this review process removes the authority for decisions from those responsible for the protection of particular documents; this can have implications for the intelligence that foreign partners are willing to share with Australia; decisions on whether the exemptions in these sections apply may be difficult to take; the disclosure of apparently innocuous pieces of information relating to the activities of the AIC could result in damage to Australia’s security; such information can aid in building a detailed picture of Australia’s security and intelligence agencies and their activities and can alert groups, individuals or hostile intelligence agencies to a specific intelligence interest in them; any change to the existing exemptions could have serious implications for our information-sharing arrangements with allies, several of which are treaty-level; the confidence of our allies in our ability to protect information that they share with us remains fundamental to our intelligence sharing arrangements; we need to maintain this confidence; this could also have a bearing on the level of trust they extend to us and the undertakings we can make; it could diminish the level of access to important intelligence on which we rely for coverage of threats to Australia’s national interest...

The review accepted this without any meaningful public discussion and debate.

Australian Information Commissioner Professor McMillan for one isn't convinced. 

You can add quite a few of the rest of us who think blanket exemptions - including for the parliamentary departments - leave large unacceptable holes in the transparency and accountability framework.

The attachment to secrecy isn't just out of concern about current activities. 

The government no doubt at the urging of an intelligence agency or two is currently arguing against disclosure of Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago. 

Obviously it is a difficult time to disclose what we knew, when we knew and how we knew about the massacre of several hundred East Timorese civilians.But you have to wonder how long is long enough.

A few suitable topics in all this for Attorney General Brandis' debate about freedoms?

ASIO secrets mean indefinite legal limbo for refugees

Wikimedia Commons-Phillip Halling

Instances of lack of transparency can give rise to groans and moans here and there from the likes of me but often the issue doesn't amount to a row of beans.

Others however have life-changing effects. This example is truly shameful.

As Professor Spencer Zifcak in last Friday's Australian (subscription) reminded us, 50 or so people judged to be genuine refugees are now in indefinite detention after receiving an adverse security assessment from ASIO.

"They are not permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it."

 The criteria for assessment is also not publicly available.

"Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence."

As non-citizens they have no right to AAT review. And

"Judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk. That is why, following the High Court's deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque. The Attorney-General, Nicola Roxon, should lift this scandalous abuse of human rights to the top of her list."

Last month the Joint Select Committee on Australia's Immigration Detention Network (Chapter 6) reached a similar conclusion- "The impossible situation these people are in is perhaps one of the greatest challenges currently facing the immigration detention system."
And "The evidence before the Committee outlines why .. legal experts specialising in security, human rights and refugee law have concluded that Australia is in breach of its obligations under international law." Professor Saul, from the University of Sydney for example, contended that not providing evidence upon which the assessment is based is a violation of article 9(4) of the International Covenant on Civil and Political Rights (ICCPR):

Where detention is purportedly justified by a State on security grounds, the requirement of substantive judicial review of the grounds of detention under article 9(4) necessarily requires a judicial inquiry into the information or evidence upon which a security assessment is based. Without access to such evidence, a court is not in a position to effectively review the substantive grounds of detention.

But the government record in staring down the intelligence/national security/international relations agencies to insist the line be drawn at necessary and appropriate secrecy and not a jot further, regrettably isn't impressive.Just another example- in a separate case, the Attorney General is poised to certify that the case for access to 34 year old records from the Australian Embassy in Jakarta, not released by Archives, revealing shocking conditions in East Timor can't be argued in the AAT in the presence of the applicant or his lawyer for unspecified security, defence or international relations reasons.

Secrecy still trumps, mostly, for E Timor Sitreps 35 years on

The subbie who wrote the headline"Secrets of E Timor invasion to be revealed" to the report of an Administrative Appeals Tribunal decision in today's Sydney Morning Herald was way ahead of the game.  President Downes in Clinton Fernandes and National Archives of Australia [2011] AATA 202 found 250 lines spread across 42  documents, all 35 years old, were not exempt as claimed under s 33 of the Archives Act. However as the Herald report revealed, even the applicant is yet to see those parts of the documents now to be released, so whether they amount to much despite the attempt to keep them secret remains to be seen. As President Downes [18] said: 

The passages which can be released are substantially passages which contain material which is not inherently confidential, where disclosure will not incidentally disclose anything that is.

Radio Australia carried the only other report today under the more accurate "New intelligence files may shed light on Balibo killings". Maybe, maybe not. According to RA

The Defence Department says 95 per cent of its claim was upheld and that it won't be appealing the decision.

The decision 

Intelligence secrecy sacrosanct

The cone of silence that surrounds Australian intelligence organisations, in the name of national security, is in the news with a long term resident to be deported on ASIO's say so, but without being able to know and answer the allegations against him, and an academic taking on National Archives over refusal of access to assessments of the situation in East Timor 35 years ago that summarise intelligence reports during the Indonesian invasion and occupation.

Ben Saul, a barrister involved in the case, writes about the deportation of Mansour Leghaei in Condemned by faceless accusers and secret evidence in the Sydney Morning Herald, complete with uncomfortable comparisons with Kafka's The Trial. Clinton Fernandes of the Australian Defence Force Academy at the University of NSW tells his story-yet to be played out in the Administrative Appeals Tribunal in what the Government submits should be a closed hearing - to Peter Mares on ABC Radio National The National Interest. In an apparent cock-up-and according to Mares, with no involvement at all of the intelligence agencies , part of the program dropped out when originally broadcast but this version is complete.

I notice a comment on the site from Jim Dunn, Australian Consul in East Timor way, way back, and long time activist for independence and justice there:

Re the release of classified material concerning event in E Timor 35 years ago. I cannot believe that in the changed political environment in Indonesian that our national interests will be damaged. In the case of Indonesia there is a growing interest in knowing the truth about the past. Re our security, DSD (Defence Signals Directorate) operations in the past are no longer a secret so the release should not pose a danger. There are also quite a few Parliamentary research service reports that could be released. What we still desperately need is a full account of what was known, and what actions were taken. As for Gough Whitlam's role, his positive achievements will always serve to balance his contribution to our political history. Finally if our nation is to learn the lessons of history, there is no alternative to a full exposure of the past, including highly classified material.

Protecting national security is an important high priority but some of the claims in its name, blanket exclusions from transparency laws, and alleged sensitivity about what we knew 35 years ago go way beyond what is necessary and justified.

We're ASIO, we're right, believe us

Who knows - ASIO's assessment that five tamil refugees originally from Sri Lanka pose a danger to national security, opinion formed before they arrived in the country, might be right. But the five, let alone the rest of us won't be be able to assess or test ASIO's findings. Pamela Curr pointed out the problem with this in The Age on Tuesday. Today's Sydney Morning Herald has the Minister for Immigration, Chris Evans, saying even he did not know what the security concerns were. ''Those decisions are made by ASIO and they don't discuss the detail of those things,'' he said.

Absolute faith in the infallibility of any agency is a big call, and a mistaken one in ASIO's case according to a former Immigration officer, and David Manne, a refugee lawyer, both quoted in the article.

 "... Manne, said secrecy was part of the problem. People suspected of being a risk were never told why. ''ASIO gets information but it never puts it to the person,'' he said. ''These people are stuck in indefinite detention but it's impossible to find out what the concerns are.'' The process had to be made transparent and subject to independent scrutiny. ''ASIO has made serious mistakes in the past,'' he said. ''It's crucial that we don't revert to the previous situation where these people's plight became a political football.'