Sep 5, 2011

WikiLeaks and disclosing classified

Julian Assange may face prosecution for revealing the identity of an ASIO officer. But governments disclose secret things all the time.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

On Friday morning Australian time, WikiLeaks placed online the entire set of unredacted diplomatic cables. The full set was already available for anyone able to search for it, armed with the password provided by Guardian journalists David Leigh and Luke Harding. Since then, it's become clear that some of the claims made by WikiLeaks critics, and The Guardian in its defence on the issue, are highly problematic from a cryptographic point of view. Nonetheless, WikiLeaks's decision to make the material available, while unlikely to do any further harm than had already been done in endangering individuals, correctly drew criticism from a wide range of sources, including its enemies in the mainstream media. Whatever the responsibility of others for the original release of the unencrypted version of the material, it was WikiLeaks' decision to release it last week, and to the extent that it increases the risk of harm coming to those identified in the unredacted cables, WikiLeaks is culpable. Another critic emerged late on Friday to tut-tut about the whole affair: Attorney-General Robert McClelland released a statement at 5pm on Friday criticising the release of unredacted material, although his comments were gracious enough to direct responsibility toward "WikiLeaks and others". "Others" of course are The Guardian and its jilted-lover journalists determined to pay back Julian Assange, and whoever of Daniel Domscheit-Berg's group -- and there aren't that many of them -- insisted on drawing the world's attention to the fact that the password to the encrypted documents was available. McClelland also complained that the unredacted cables identified an ASIO agent. "I am aware of at least one cable in which an ASIO officer is purported to have been identified, as reported in The Sydney Morning Herald and The Age today." Under s.92 of the ASIO Act, publicly identifying an ASIO officer other than the Director-General is a crime punishable with imprisonment for one year. There was immediate speculation that Julian Assange could be prosecuted in Australia under the Act. Why the blanket ban on identifying anyone in ASIO? A prohibition on ASIO officers working undercover would make sense, but the entire organisation, from the senior executive down? It applies even to their media liaison team. Not even the American intelligence community has such a ban. In the US, only the identification of covert agents (but not other agents) is prohibited under the Intelligence Identities Protection Act of 1982. But the ban itself only applies to people who have "authorised access to classified material" -- that is, people in the intelligence community already, or in senior levels of government. More of that later. If you're a journalist and reveal the identity of a covert agent, you can only be prosecuted if it is "in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States." That is, you must be setting out to expose agents with the intent of harming the US, and as part of a "pattern of activities". So the spooks in ASIO get far more protection than US spies, even those operating undercover offshore. The British have the famous Official Secrets Act, but revelation of the identities of, say MI5 or MI6 officers is a trickier business. The Official Secrets Act is drafted very broadly, and makes it a felony to communicate "information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy". In 2002, the BBC revealed the identities of some former MI5 agents and was never prosecuted. However, the British Government is able to muzzle the press with D-notices, which have been used to prevent reporting of the whistleblowing of former spy (and many other things) David Shayler, who claimed MI6 had provided extensive funding for al-Qaeda to kill Muammar Gaddafi and failed to prevent terrorist attacks in London in the 1990s. So ASIO gets even more protection than British spies. This blanket protection would be less concerning if there was real accountability for ASIO and the actions of its agents. The Inspector General of Intelligence and Security provides minimal accountability -- to read its findings of investigations into major incidents within not just ASIO but the broader intelligence community over the last decade is to learn that our intelligence services are apparently infallible apart from the occasional housekeeping or administrative problem. The case of Izhar Ul-Haque remains a particular outrage, after a NSW judge threw out a terror prosecution because two ASIO agents had committed the offences of false imprisonment and kidnapping in the course of a wildly over-the-top raid on a Sydney family. The response of the Inspector-General was to wave such conduct through, declaring there was no evidence that ASIO agents had done anything wrong and that Ul-Haque didn't even have a case for compensation. The harshest criticism expressed in the report was "this is not to say that I am completely comfortable with some of the elements of what occurred." The two ASIO agents, who in the company of 25 Federal police terrorised two young men and their family, have stayed safely hidden behind their anonymity ever since. But the rules around disclosure of secret information naturally bend a little depending on who is doing the disclosing. Recall that Andrew Wilkie was the victim of a Howard Government leak to Andrew Bolt -- from Alexander Downer's office -- designed to discredit him. The leak, involving Office of National Assessments material, was a plain breach of the Crimes Act. No one was ever prosecuted for it or, for that matter, had their subsequent career stymied because of it. That Wilkie material wasn't quite in the same league as Dick Cheney's office disclosing the identity of a covert CIA officer, Valerie Plame, in order to undermine a critic of the Administration's lies on on Iraqi WMD. That was another government disclosure that was never punished, although Cheney's chief of staff was convicted of perjury and obstruction of justice in relation to the matter, before President Bush commuted his gaol sentence. That brings us full circle back to WikiLeaks. What upsets governments about WikiLeaks, the thing that sticks in the craw most about Julian Assange, isn't the notion of leaking per se. Governments leak all the time, often leak highly sensitive, classified information. The political and foreign affairs coverage of The New York Times, for example, is composed almost entirely of leaks from within the US Government, invariably from sources "speaking on the condition of not being identified." What infuriates governments about WikiLeaks is they are not controlling the leaking of classified material. Leaking is only OK when governments do it. In short, when it comes to the rules about disclosing classified information, governments think the rules only apply to everyone else, not to them.

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29 thoughts on “WikiLeaks and disclosing classified

  1. guytaur

    A problem for any prosecution. They have to prove Wikileaks were first to reveal said information. Given that Wikileaks only released all of these cables due to a hack attack which revealed those files that is not a clear cut thing to prove.

  2. MLF

    Guytaur, wrong.

    Bernard, I think it may be time for a holiday, you’re far too close and seemingly warped by this thing.

    ASIO officers have more protection that M15? And that is a bad thing? What exactly is your problem here? They have it because not every Tom, Dick and Bernard should know who does and does not work for the Australian Security Intelligence Organisation. They have it because if it is known where you work, then you are suspecptible to inflitration, to being targeted, etc etc. They have it, it is the law. Full stop.

    And really, your last line is a cracker: “In short, when it comes to the rules about disclosing classified information, governments think the rules only apply to everyone else, not to them.”

    Replace “governments” with “Wikileaks” and that cracker still holds true.

  3. Policeman MacCruiskeen

    Quite right Bernard. I’m watin’ in drowsy and somnolent expectation of a predictable surge of moral outrage from the outlet pipes of Australian establishment mediocrity about the perfidy of young Julian. He outs US forces slaughtering Iraqui’s and journalists and there’s a modest tut-tutting. His cable release outs one ASIO agent and it’ll be the end of civilisation, for sure. I like your line, Bernard, about how ASIO sees itself as infallible. Who do these people think they are? DOCS?

  4. Suzanne Blake

    @ Guytaur,

    Agree and how could they prove Julian Assange was the one who did it.

  5. pk_x

    But how does revealing ASIO identities improve accountability? By their very nature these organisations are designed to avoid that. The public — even senators — barely seem able to protest against the powers they hold. Knowing the names of operatives does not change our awful terror laws.

  6. guytaur

    @ Suzanne Blake

    Wow something we do agree on. Yes you are right. To prosecute Assange as an individual they have to prove his culpability in either directly revealing the information or conspiring to do so.
    Given that Wikileaks have a record of redacting names to protect lives before the hack I think this would indeed be hard to prove.

    I do think Mr Keane raises very valid points about how far should we protect secret organizations like ASIO.
    The latest revelations revealed by Human Rights Watch on Western Intelligence agencies involvement with Libya against every human right our democracies are supposed to be means we know there is too much secrecy. Not enough accountability.

  7. Scott

    The issue is ownership of the information, BK.

    Information and data collected by government agencies, like ASIO, is the property of the Government. Therefore they can use it anyway they see fit (which includes making it public).

    Wikileaks, by contrast, does not own the government cables it is publishing on the web. As the distributor of this information, it should be held accountable if it has broken laws regarding disclosure of ASIO identities. (and so what if ASIO has better protections than equivalent spy agencies…if the law has been broken, the law has been broken)

  8. guytaur


    No you are wrong. This is why despite McClelland’s remarks the AG is not going to prosecute.

  9. MLF

    Guytaur, wrong again.

    Wikileaks has a history of redacting names?

    a – they also have a history of releasing unredacted cables as they did in 2010 when they named names of Afghans who were helping the US and therefore put them in grave danger, and

    b – Wikileaks is founded on the principle that all information should be freely available to everyone. They only starting redacting the cables in the first place under pressure from US and other governments to protect people who were named in them.

    Where does the “everyone has a right to see everything” fit within a now-redacting organisation? Its just as Bernard said at the end – “its only ok if we do it, not if the government or anyone else does it”.

    Hypocrisy of massive proportions.

    Which incidentally wouldn’t be hypocrisy if they just acknowledged the fact that this stuff aint easy and the most finely-tuned principles in the world get violently careened off course when you are dealing with real life and real death.

    Sadly, as their own release of their own cables shows – Wikileaks still hasn’t grown up.

  10. MLF

    No, I’m not wrong.

    If there is a law that has been broken (which there has) and a case to be had (which there is) – then if the AG doesn’t prosecute it will be for political rather than legal reasons.

    The AG has already been shown to be inept when it comes to Wikileaks. Why break the habit of a lifetime.

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