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.

Peter Fray

Save 50% on a year of Crikey and The Atlantic.

The US election is in a little over a month. It seems that there’s a ridiculous twist in the story, almost every day.

Luckily for new Crikey subscribers, we’ve teamed up with one of America’s best publications, The Atlantic for the election race. Subscribe now to make sense of it all, and you’ll get a year of Crikey (usually $199) and a year’s digital subscription to The Atlantic (usually $70AUD), BOTH for just $129.

Peter Fray
Editor-in-chief of Crikey