Only one person has ever been jailed in relation to the CIA’s torture program. Not the people who designed it. Not the torturers or managers of the “black sites” where it was carried out. Not even the people responsible for Afghan man Gul Rahman being tortured to death in Afghanistan. The person jailed for it was John Kiriakou, a former CIA officer. What did he do? He blew the whistle on the program, when the CIA was trying to cover it up and deny it existed. Kiriakou was jailed by the administration of the sainted Barack Obama.
Similarly, no one has ever been jailed — or even subjected to disciplinary action, or censure — for one of the most sordid moments in Australia’s intelligence history, the bugging of the Timorese cabinet by ASIS at the behest of Alexander Downer. The goal of the “operation” was to benefit Australia’s commercial interests and gain an advantage over a fledgling state that needed all the help it could get to become viable after decades of occupation and a violent transition to independence. Instead, we sent spies in to bug them. It’s Alexander Downer’s legacy from all those years as foreign minister, that and outsourcing Australia’s foreign policy to the Bush White House.
It was also, unquestionably, illegal under Australian law. Our overseas spy agency broke the law, as part of a particularly grubby exercise in screwing over one of the poorest countries in the region.
Now the Turnbull governments wants to punish the people who revealed it, Witness K and his lawyer Bernard Collaery. It’s important to note that K is not a whistleblower, and has at no stage acted outside the law. He has never spoken to the media — who are in any event prohibited, rightly, from revealing his identity — and he has acted in accordance with the advice of the then-Inspector-General of Intelligence and Security, Ian Carnell, about how to handle his dispute with ASIS. But he’s been charged with “conspiring” with Collaery to communicate information, a novel interpretation of lawyer-client privilege.
An illegal, and particularly grubby, act committed at the direction of the Howard government, and a prosecution by the Turnbull government, by its hand-picked Director of Public Prosecutions, signed off by the Attorney-General — you’d think Labor would be all over this. But the opposition has been deathly silent. That’s because Labor is up to its ears in this saga almost as much as the Coalition. Timor Leste began its Timor Sea suit against Australia when Julia Gillard was Prime Minister, and as the ABC’s Steve Cannane reported later, it was Julia Gillard who rejected Timor Leste’s complaint about the bugging when they learnt of it in 2012. As it has on so many of the Coalition’s assaults on basic liberties, Labor is standing shoulder to shoulder with its own opponents.
The prosecution raises major free speech and transparency issues. The government will likely seek to have the trials conducted in camera. It has much to hide on the bugging operation, particularly given its illegality; there may also be evidence ASIO has bugged not just Collaery — that’s already known — but journalists as well. Collaery will seek to prevent his trial being conducted in secret. Hopefully media organisations will join his attempt to do so next month at the initial hearing. Beyond that, the sheer fact that the government is attempting to punish a lawyer for revealing something embarrassing to the government means the case will attract considerable interest as a test of how far the High Court’s implied freedom of political communication extends.
Only the minor parties — Centre Alliance’s Rex Patrick, Andrew Wilkie, Tim Storer, and the Greens’ Nick McKim — were prepared to stand by Collaery yesterday and protest the prosecution. When we write the history of how Australia became a police state, it will note that Labor colluded and collaborated in its creation.