What kind of oversight system exists under IGIS’s watch?…….. 3
Five nations: Five-Eyes – a dismal case of oversight failure………….. 5
A personal account: the nightmare of dealing with IGIS. ……………..7
Fear and favours: ASIO, the AG and a misinformed public………………… 10
The Glomar response: say nothing; reveal nothing. ……………..12
What does the term “national security” mean?……………….. 13
ASIO’s incursions into the lives of others……………………. 15
Is IGIS acting in good faith? Others share their recent experiences………………. 19
A fearless leader: NYAG Eliot Spitzer …………………..22
Overview – Catch 22
My lawyer tells me the authorities have absolute discretion as to how they chose to classify my case. I have no rights and there is no plausible scope for review. I don’t need to even be told that they have a file on me, let alone see it, or be told that they still have me under surveillance and subject to their interference, interdiction and disruption operations:
“The lack of evidence problem, which I discussed previously, will hamper any effort to show that there was “mis-classification” or any other improper activity, whether before a court or the IG [Inspector general]. I just don’t see how you are going to be able to demonstrate that.”
The above excerpt is an email from my lawyer to me after my FOI request was refused by agencies in both the US and Australia (I have dual citizenship), and am denied access whether applying for information from ASIO or the FBI. It is Catch 22. If I don’t have hard evidence (which is difficult to come by when dealing with covert intelligence agencies) then the IG won’t help me; whereas if I had the hard evidence already, I wouldn’t need the IG because I would then have access to the courts. As such, a captive IG in practice does little for accountability and justice; their main function is as compiler of statistics for government reports. I have written many letters to IGIS, providing evidence, and received no meaningful undertaking from either Ian Carnell or the current IGIS, Vivienne Thom.
In Australia, IGIS is the key intelligence agency oversight body and it reports directly to the Prime Minister. It is part of the bureaucracy and has a broad mandate to investigate and review Australia’s various intelligence agencies, including ASIO. Of note, its primary role is to ensure the intelligence agencies “act legally and with propriety, comply with ministerial guidelines and directives and respect human rights.” However, there is much evidence, some of which is set out below, that our intelligence community, and ASIO in particular, routinely operates outside its mandate and that oversight is ineffective in controlling it.
Ian Barker, QC a prominent Australian lawyer proclaimed his frustration with the abuses of ASIO and by corollary the lack of credible oversight, commented:
“Any defence lawyer having anything to do with a case involving ASIO will know that its agents habitually act outside their powers and routinely abuse them, always in secret. It is rare indeed for their conduct to be exposed.”[1]
IGIS is the oversight body mandated to expose ASIO abuses. The public relies on it for protection, justice and enforcement of the law against ASIO abuses. But it consistently fails to do so. Evidently, it can’t see any of this, can’t find it, doesn’t ask about it and doesn’t report it. The oversight regime is a paper tiger.
Ian Barker further said that it was disgraceful that a country like Australia had an organisation like ASIO doing what it does – targeting “dissidents” and otherwise ordinary Australians who protest government policy and exercise their lawful civil rights.[2] This abuse occurs on IGIS’s watch. As chief oversight agency, it’s own failings are implicated in the failings of ASIO, as is the system as a whole; IGIS time and time again fails to find any fault in injustices, as this section will further bring to light.
The problem doesn’t stop with IGIS. Others have surrendered their duty to the public also. Statements from various federal attorneys general I have corresponded with over time, and the office of Prime Minister and Cabinet, among others, all brush-off criticism of IGIS without conducting any meaningful investigation into my underlying allegations. They dutifully state that they are “satisfied” and “confident” in IGIS’s performance and reiterate that it operates “independently of government”, fairly and effectively: they dutifully endorse its findings, but do not look with critical analysis at its evidence and processes. Such assurances have not been held up to independent scrutiny, indeed senior officials and politicians all seem to recoil and protest vehemently at the suggestion of a wide probing royal commission. However, the evidence speaks for itself, their assurances are contrary to public experience (case studies discussed below). The public expect (in Australia and the US) that the intelligence community follow the rule of law and observe basic human rights at home and abroad.
Ironically, IGIS has become a choking point in the justice process, weakening the accountability of ASIO, and diminishing, not enhancing the public’s right to truth and justice. As a result, our intelligence agencies operate with near unfettered excess, effectively self regulated with no real checks on power. It has become a captured regulator, a corrupted and ineffective institution.
Political scientist Francis Fukuyama in an essay on political decay makes these comments about the process of institutional corruption over time:
“Institutions are created to meet the demands of specific circumstances, but then circumstances change and institutions fail to adapt. One reason is cognitive: people develop mental models of how the world works and tend to stick to them, even in the face of contradictory evidence. Another reason is group interest: institutions create favored classes of insiders who develop a stake in the status quo and resist pressures to reform.”[3]
The Inspector General fails in oversighting the intelligence agencies on both these factors – cognitive failure and regulatory capture.
What kind of oversight system exists under IGIS’s watch?
An Australian citizen might never be an asylum seeker, a boat person seeking refuge in a foreign land where they have no rights, banished to some far flung land off the Australian coast. But they could become the target of ASIO scrutiny and interference for purely arbitrary reasons, and find themselves in a political black hole with effectively no rights, treated to the deafness the government has demonstrated toward the hidden asylum seekers.
Australian intelligence agency abuses continue to occur and details revealed through occasional leaks. The unprecedented public flow of information from whistleblowers shows the system for what it is behind all the secrecy and privilege that is claimed in the name of “national security”. Most damning, it confirms the unconscionable behaviour of the people at the top of the intelligence community. Given the weak oversight, the public must take it on trust that the intelligence community acts responsibly, in the public interest.
To date, IGIS has demonstrated a gross inability to prosecute or punish even egregious abuses by the intelligence agencies of the state’s laws. There is no culture of fear of transgression within the agencies, indeed, they are greatly emboldened by the evidence that they will not be held to account. The reality is the intelligence agencies are more powerful than the oversight, certainly IGIS is not up to the task and it is dangerous to have naïve confidence that the office will protect democracy and democratic rights of individuals against totalitarian style abuse.
For example, in 2013, details emerged of illegal use of Australian intelligence agencies for economic espionage against Japan to provide iron ore negotiating price information to a large Australian mining company, BHP; and against fledgling, gas rich nation East Timor which had been targeted during a commercial negotiation with Australia over offshore gas fields that span the ocean boundary between the two countries. Despite the ASIS agent (Australian Secret Intelligence Service) that headed the illegal operation to bug the offices in East Timor under cover of an aid project blowing the whistle, IGIS did not investigate the alleged offences.[4] There are many more examples of IGIS’s failure to act – some are considered below. In the US, virtually every major trading partner has complained about US use of commercial espionage to support its corporations, presenting specific evidence and detailed complaints.
The reality is commercial and personal interests lie beneath a plethora of claims of “national security” – a term which rings increasingly hollow with every new revelation of its abuse. Indeed, it appears to be little more than a convenient way to hide illegal activities. IGIS in such cases does nothing. Not by accident. There is an intentional gaping absence of effective oversight and as a result, the agencies frequently operate disproportionately and outside the law with impunity, and their targets are left without means of redress. This is clearly evident to me in the way IGIS has dealt with my complaint over the Freeport McMoran report and subsequent FBI/ASIO interference.
Following the Snowden leaks, leading experts in the field of Australia intelligence agencies and oversight are now saying publicly that the agencies are inadequately policed by oversight agencies that are not up to the task:
Australia’s foremost academic intelligence specialist, the Australian National University’s Professor Des Ball, said he found it mortifying that ”we used our highly professional security agency to get a couple of bloody percentage points in our dealings with a struggling country like East Timor. I’ve got no problems doing it to the Chinese or Japanese, who are doing it back to us … but Timor? That’s what bullies do”.
Former senior Defence Department official Allan Behm agreed, slamming the spying action against Dili as ”affronting” and ”not moral”.[5]
All of this illegal activity goes on under the supposedly watchful gaze of IGIS. The extent of the abuse gives credence to the notion that IGIS is a collaborative, captive regulator that willingly participates in a conspiracy to cover any careless tracks the agencies leave – IGIS as riding shotgun is a more apt metaphor than that of sheriff. A powerful, wide ranging royal commission would risk exposing the convenient collaboration of this relationship and likely make strident recommendations for change. No wonder a royal commission is opposed by those who would be investigated! Indeed, IGIS, to be effective, was envisaged from the outset to work in tandem with an independent royal commission; but a standing royal commission was never established by the government.
Apologists for IGIS poor performance on public justice say it has a mammoth task, and operates with a small staff and budget. However, to focus the issue as one of resourcing is a red-herring. Far more important is the quality of the appointments – the integrity and skill of the people appointed as the highly effective New York Attorney general Eliot Spitzer demonstrated. The government, however, has a well trodden path to ensure it has the “right” people in place, the puppets, career bureaucrats; not a retired judge and no royal commission.
This is how academic, Robert Manne explains the government’s approach to undermining Australia’s institutional independence and integrity, which includes ASIO and IGIS:
“The government’s obsessive and unhealthy desire for control has extended well beyond suborning previously independent institutions and taming NGOs. When inquiries into catastrophic policy failures are judged to be unavoidable, it has either appointed trusted insiders not likely to embarrass the government (Iraq) or so framed the terms of reference that a politically embarrassing finding can be ruled out in advance (AWB).”[6]
The broad dissatisfaction expressed about the oversight of ASIO, and of IGIS in particular – the most powerful of the oversight bodies, by those who have made efforts to do so, suggests there is something fundamentally wrong with the oversight process. Additionally, it raises the question about why there is such strong political resistance to rectify it. What is wrong with a deep probing royal commission on such an important issue? In Australia, the answer seems to be that if America doesn’t do deep probing inquiries into the operation and effectiveness of its intelligence system, then nor will Australia.
Five nations: Five-Eyes – a dismal case of oversight failure
Oversight is equally weak across all five members of the synchronised Five-Eye intelligence sharing countries (USA, UK, Canada, Australia and New Zealand). Indeed, the weakest link in this chain of maintaining secrets defines its overall strength. Well placed opinions and leaks confirm the extent of the problem.
By December 2013 with the cascading momentum of NSA whistleblower Ed Snowden’s revelations about systemic Anglo bloc intelligence agency abuses, the question arose as to how things got so out of hand with these agencies. Here is what the Sydney Morning Herald (SMH) said about IGIS – the main oversight body that the public depends on for protection against ASIO:
There is…an Inspector-General of the Security Services (IGIS), Dr Vivienne Thom, but critics claim her office is under-resourced and too much part of the intelligence ”club”.
The president of Civil Liberties Australia, Dr Kristine Klugman, recently wrote to Dr Thom, urging her to investigate the impact of the NSA’s Prism program on Australians. The IGIS replied that she lacked power to ”look at the activities … of foreign agencies” and in any case would not comment on ”operational matters of the intelligence community”.[7]
As an example in the UK, the former leader of the Liberal Democrats, Lord Ashdown publicly declared a lack of confidence in the Intelligence and Security Committee (ISC) which is supposed to oversight the UK’s intelligence agencies. His insider status and well informed view is the institution is “wholly incapable of coping” with the oversight of the intelligence agencies.
He expressed concern at the challenge ahead in reliably oversighting and constraining such powerful and potentially abusive agencies to ensure that: “…under no circumstances could these powerful capabilities be used in ways that parliament did not intend” and “…we are no longer in the age when a grandee’s emollient words are enough to assure us that our liberties are safe” and concluded that the [oversight regime] was “past its time”.[8]
The Guardian also revealed its deep lack of confidence in the oversight of the UK’s intelligence agencies (emblematic of the problems found across the Anglo bloc):
“Simply to refer such issues [of GCHQ spying abuses] to the Westminster intelligence and security committee, which has neither the credibility nor the resources to assess them objectively or adequately, is irresponsible. The latest documents reveal more than 1,000 targets of surveillance of whom very few can seriously be seen as threats”[9]
Princeton scholar Rahul Sagar points out in “Secrets and Leaks” the potential threat posed by the intelligence agencies to US “judges, clerks and public defenders”, which also applies to anyone that attempts to hold the agencies to account, including IGIS (in Australia) and its staffers. In effect, the threat that the agencies may turn on, and put any official under counter intelligence surveillance and subsequent interference has a chilling effect:
“How will the resulting intrusions into the private lives of these actors affect their decisions? What sorts of actions will count as troubling enough to justify the loss of security clearance? What security will there be against ‘dirty tricks,’ especially those aimed at subduing zealous public defenders? Scholars tend not to discuss these scenarios, but they should, because these are precisely the sorts of threats that employees in the intelligence world must contend with when they expose or challenge perceived wrong doing.”[10]
Regulatory capture not only raises doubts about the performance of IGIS, it is a problem that impacts all efforts to contain the intelligence agencies, limiting independence and objectivity:
“Indeed, the extensive regulatory capture at [government] bodies…which operate in public sight, suggests that establishing an opaque and unelected “secrecy regulator” ought to actually deepen fears about the misuse of secrecy, seeing as the financial, political, and ideological interests at stake in important national security decisions would give the affected parties a powerful motive to try to “capture” the regulator.”[11]
NSA whistleblower Russel Tice revealed to the New York Times in 2005 that the NSA was targeting key officials. Below is an interview with Tice in which he discusses the extent to which the NSA targeted officials from judges to oversight committees, with the intent of blackmailing them, coercing and controlling them:
“They went after high-ranking military officers; they went after members of Congress, both Senate and the House, especially on the intelligence committees and on the armed services committees and….judicial. But they went after other ones, too. They went after lawyers and law firms. All kinds of–heaps of lawyers and law firms. They went after judges. One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand. Two are former FISA court judges. They went after State Department officials. They went after people in the executive service that were part of the White House–their own people. They went after antiwar groups. They went after U.S. international–U.S. companies that that do international business, you know, business around the world. They went after U.S. banking firms and financial firms that do international business. They went after NGOs that–like the Red Cross, people like that that go overseas and do humanitarian work. They went after a few antiwar civil rights groups. So, you know, don’t tell me that there’s no abuse, because I’ve had this stuff in my hand and looked at it.”
Without a powerful judicial inquiry or royal commission, public fear of intelligence agency abuse will persist. There is no assurance for the public that members of the government and its key oversight authority are not collaborating in the cover up of serious flaws in our intelligence agencies.
What is true of America is all too often true of Australia, particularly on security and defence matters. The oversight process is thoroughly compromised in both.
A personal account: the nightmare of dealing with IGIS
In a period of 8 years between 2004 and 2012, I sent around 6 complaint letters to IGIS that included the names of agents, collaborators and informants; and described the nature of ongoing ASIO interference with me. In 2012, IGIS said it would not respond to any further complaints I made about ASIO, unless in its sole discretion it chose to do so. IGIS’s responses to that time had been to neither confirm nor deny any ASIO activity, and irrespective, it reported that no misconduct on the part of ASIO had been found. Further, it informed me that ASIO only deals with matters of “national security” implying that my case is not that, and also implying that there is some widely understood and accepted meaning of the term “national security” – which there isn’t. By using the term “national security” and casually assuming everyone agrees on its meaning, its constant inclusion in letters to me is deceptive to the extreme; and at odds with legal opinion and the experience of others that have dealt with IGIS and ASIO.
The Inspector General’s letters to me follow a similar pattern. First IGIS seeks to establish its own integrity and credibility – it emphasises how important it views the allegations I have raised and assures me how seriously it takes its duties. Then, it changes tone, and quite officiously says it will not investigate any of the matters I allege. I am reminded by IGIS that it has total power in this regard and in its sole discretion has chosen not to investigate. No reasons given other than to imply my allegations were dismissed because ASIO didn’t concur. Correspondence terminated. IGIS said it will not enter into further correspondence with me unless it chooses to do so.
The government will investigate allegations of rape made by a woman, it will investigate allegations of child sexual abuse made about a priest, it will investigate claims of house break and stolen property, it will investigate claims of armed robbery made by a random person walking in the street, but what it will not do is investigate claims against its intelligence agencies of criminal abuse. Instead, it summarily dismisses the allegations and labels the person making the complaint a liar or mentally unsound. But it won’t investigate.
In one early letter, IGIS said it had conducted a preliminary investigation and found no evidence of wrong doing. My lawyer, and later the Attorney General advised me that a preliminary investigation by IGIS need do nothing more than ask the head of ASIO a verbal question as to whether my allegations of misconduct were true or not – on the say so of the incumbent, my case rises or falls:
“…where a complaint is made to the Inspector-General in respect of action taken by an agency, the Inspector-General may…make inquiries of the head of the agency [ASIO] in relation to the action.”[12]
Absurdly, if the head of ASIO answers “no”, then the preliminary investigation can be completed to the “satisfaction” of IGIS, and at its “sole discretion”, the case closed. The process is completely superficial, partial to ASIO and readily permits whitewashing; it has little chance of discovering illegal activity or exposing institutional cover-ups. This approach makes Australia, the US and other Anglo bloc countries oversight backwaters.
There is no pretence of thoroughness or completeness in this process; IGIS reports it found no evidence of ASIO misconduct, and formally dismissed my complaint.
Thereupon IGIS assured me that it had fulfilled all the requirements of its mandate and had and has no further obligations to me. IGIS knows its processes are not transparent and its decisions will not be subjected to external, independent review by the likes of a royal commission. It is a brick wall with no effective way around it. It subsequently reports to parliament that all complaints have been dutifully dealt with to its satisfaction; but there is no mention of public justice, fairness or thoroughness of its approach.
In one letter, the then IGIS, Ian Carnell, conjectured and speculated about possible alternative explanations for events I attributed to ASIO. Patronisingly, he said a series of break-ins with tell-tale markers suggesting ASIO involvement might simply be coincidental and attributable to burglars instead of ASIO; information from a tapped phone might have been leaked by someone else and not ASIO, and so on – any plausible imagining, but not ASIO. It seems he used his vast investigative powers to plumb the depths of his own imagination; and he dutifully reported his findings to me. But he refused to conduct a full investigation in the physical world into any of my allegations, he refused to speak to any of the witnesses I identified: there were no interviews, no statements, and no probing questions to get to the truth. In dealing with my complaint, IGIS never requested follow-up information or clarification from me in relation to any of my allegations and never requested contact information for, or statements from, any of the individuals I allege either work with ASIO or have been co-opted by ASIO as outlined in my complaint.
Over the years as I provided additional evidence to IGIS of ongoing ASIO interference, it failed to investigate any of the new information and indicated the matter had already been dealt with in the “preliminary investigation”. Why bother then asking for further information? It seems to have permanently slammed the door on the idea of conducting a full investigation.
I retained a lawyer to draft various complaint letters to IGIS, though this made no difference and consequently I have made no progress in holding ASIO to account. In the process, ASIO interfered directly with my lawyer, which was the subject of a further complaint, though IGIS did not consider this to be “inappropriate” conduct on the part of ASIO.
As a result, I have not been informed by anyone in the government of ASIO’s reasons for so aggressively interfering with my life (nor have I in the US regarding the FBI). At the time of writing, this has now entered its 18th year of “surveillance, interference and disruption”. The FBI agent Steve Garber advised me that once on the “list” – shared across the Five–Eye intelligence partners and others, I can expect to remain there for life. I am virtually powerless to stop it. I have been stonewalled and shut out, but not shut down!
I complained about IGIS’s compliant oversight of ASIO in a letter to I sent to the office of Prime Minister and Cabinet (PM&C), which has oversight responsibility for IGIS. PM&C wrote back that it was very satisfied with the work of IGIS and had complete confidence in it. End of story. The process lacks any transparency and appears to be a conga line of one bureaucrat mindlessly mouthing and supporting the claims of the bureaucrat before all the way back to IGIS – the captive regulator.
After the frustrating process involved with attempting to constructively engage IGIS, one in which it utilised circularity and obfuscation of argument as its primary approach to problem solving, the realisation dawned that officials lack moral strength and integrity. For the most part, the IGIS responses have avoided the substance of my allegations, using “blow-off” techniques that include red herrings and otherwise irrelevant content intended to distract or frustrate my efforts. Bureaucrats and politicians seem to have little thought for the real world consequences of their groupthink induced surrender of professional responsibility. The realisation that IGIS would do nothing, that it is part of the problem and not part of the solution, led to frustration and disappointment.
Based on comments from others (below) who have dealt with IGIS, and based on my own experience, it is clear that IGIS offers no practical access to justice. There is growing frustration at the injustice, disproportionate and corrupt response of the system that betrayed a lifetime of indoctrination beginning in early childhood whereby all youngsters are told they are growing up in a country that respects, and practices, the principles of truth and justice. For the most part, attempting to work within the “official” oversight channels has been futile: wasted time on letters and meetings, and mental energy diverted from more constructive aspects of life.
If injustice were not enough, as a result of my attempts at accountability, ASIO has threatened me directly warning that it would wreck my business, that I might meet an accidental death or be poisoned. In the meantime, it has stripped me of privacy, monitored all my communications, hacked my computer and is fully aware of my efforts, tracked step by step, to hold it to account.
One consolation is that as threats, so far, they seem to be on the light end of the risks faced by those who stand up for their rights in this new world order. People in many parts of the world have met with the harshest outcomes, incarceration and death, as due process. One ASIO agent reminded me of this stark truth and told me I should be grateful: “you’re lucky you’re not already dead” she said.
Given the secrecy surrounding the intelligence agencies and resulting difficulty of taking them to court, IGIS is virtually the only avenue by which targeted members of the public can hope to seek an effective remedy. But in the absence of obtaining hard evidence, something IGIS was established to access and independently assess, I have limited evidence I can use to seek justice in court or take to the media. In the absence of institutional support from the likes of IGIS, it is virtually impossible to gain concrete evidence of the sort required to launch legal proceedings. At this point in time, I have to wait 30 years (currently being reduced to 20) to get access to my files. ASIO says it can’t release files any sooner because it would put “national security” at risk. This injustice inflicted on large numbers of innocent, often unsuspecting Australians is an absurd justification for abusing peoples’ lives. Even after the 20 years, ASIO can prevent release of the files on its say so.
There is little comfort to know that history has not been kind to certain bureaucrats for their complicity in failing to oppose illegal state sponsored, secret police abuses while playing a key role in enabling their continuation: Adolph Eichmann comes to mind. It seems such lessons have no bearing on modern day bureaucrats whose earnest and willing participation is as removed from moral consideration as Eichmann’s “banality of evil”; functionaries acting in a culture of bureaucratic cowardice surrender their conscience. But individual’s cannot deflect the blame and absolve themselves of responsibility as easily as history might forget about them; as Martin Luther King, Jnr. said: “There comes a time when silence is betrayal”.
Fear and favours: ASIO, the AG and a misinformed public
Intelligence agencies deeply penetrate all aspects of civil society for reasons that have nothing to do with national security. Surveillance and interference stem from an unchecked desire to exploit natural advantage to increase their power and influence; using the tools at their disposal to target individuals or professions that they would otherwise have to share power with.
As part of the intelligence community’s efforts to evade scrutiny, it and the various institutions that oversight it downplay its penetration of civil society, the true scope of its surveillance, collection and interference activities against ordinary Australians. It often claims privilege on the pretext of “national security” – but what does this term really mean? It is a convenient euphemism to confuse the public and hide the extent of its real involvement in Australian life.
In 2014, I again approached my former MP, Tanya Plibersek who had raised concerns from my complaint about ASIO in the Australian parliament in 2008. This time when I contacted her office, it was clear that one of her staff members I dealt with had been recruited by ASIO. ASIO penetration of MP’s offices was something I had encountered before – in the office of Green Party senators Lee Rhiannon and Kerry Nettle for example. The staff member informed me that my matter would be taken no further on this occasion – the message was delivered in a mocking impersonation revealing access to my personal information – in classic ASIO style taunt. I couldn’t be certain that this ASIO tainted messenger had not sabotaged my efforts to have my matter given further airing. Non-the-less their closing comment on the call was interesting, saying something to the effect of “There are a lot of people not happy about ASIO. It is not just you.”
ASIO operates from within the department of the Attorney General, and reports to the AG as the responsible minister. One would therefore expect the AG would be highly familiar with the operations of the agency. I corresponded with the then current AG, Robert McClelland, and former AG Philip Ruddock. In their letters to me responding to my complaint, they each downplayed the scope and extent of ASIO’s activities against ordinary Australians. Aside from not addressing directly the facts of my allegations, they ignored any suggestion that ASIO was conducting inappropriate interference operations. Instead, like IGIS, they avoided the substance of my allegations and any notion of abuse, and said that ASIO limited its activities only to matters of “national security”. However, they neglected to define what they meant by “national security” but implied it refers only to very unusual and specific types of threat. Not daily life affairs of normal Australians going about their business or exercising their peaceful democratic rights. As Philip Ruddock said,
“ASIO’s role is to provide advice to the Australian Government on security related matters. The Australian Security Intelligence Organisation Act 1979 requires that ASIO deal only with matters of national security. There are extensive safeguards to ensure that ASIO complies with the requirements of the law. Therefore unless ASIO has reason to consider that a person is a threat to security there would be no reason to suspect that ASIO has an interest in, or need to involve itself with, that person or their everyday affairs.”[14]
The Attorney General Robert McClelland’s staff also sent me a letter which contained similar statements:[15]
These letters are the standard government response: that Australia faces “legitimate” national security related matters to which ASIO must attend. Both Ruddock and McClelland describe ASIO’s remit in a way that implies ASIO would not be involved in surveillance and the type of interference I have alleged – though they are careful not to explicitly state this. Their statements lead one to believe protestors, people active in general civil society, writers and other “ordinary” members of the public exercising what are taken to be their civil liberty rights and going about their normal business would not be the subject of ASIO interest, let alone surveillance and interference – consistent with the commonsense notion of what most people think is implied by the term “national security”.
Ruddock and McClelland each employed the terms “threat to security” and “extensive safeguards” to imply that ASIO is on a tight oversight leash and that only the most serious, imminent threats to physical security would warrant ASIO attention. The reality is very different. ASIO does in fact involve itself extensively in the lives of Australians (as does the FBI with Americans) and in matters that only the broadest possible interpretation of “national security” could allow. ASIO’s history and current complaints reveal the absurd breadth of its use of the term “national security”, so distorted as to be dishonest and all but meaningless.
All of this extreme secrecy gives the state cover to conduct extensive surveillance of, and interfere with, its citizens, abusing pretty much every human right protected by the UN Declaration of Human Rights, including privacy and right not to have social networks and livelihoods maliciously interfered with by the state. Under their national security secrecy claims all manner of abuses are routinely perpetrated against ordinary Australians who pose no existential threat to the state whatsoever but may present a perceived impediment to some economic interest, however insignificant; or support some local community, social or environmental cause.
The extensive secrecy and myriad of laws surrounding the agencies rights and punishment, including jail time for secrecy transgressors makes it virtually impossible for a target to be informed of ASIO’s activities, let alone to challenge or correct errors in their records; or have their lives returned to “normal”, at least without arbitrary assistance from political insiders.
The Glomar response – say nothing; reveal nothing: Acting above the laws of the land
A standard refrain by IGIS, current and former attorneys general, and others in oversight positions, as to why any member of the public, including myself, is not entitled to official confirmation of ASIO’s interference, states the necessity of absolute secrecy: it won’t confirm or deny anything – the Glomar response. There is no doubt there are some dangerous people in the world, perhaps living in Australia (or the US or UK), who would do great harm if they could. There is a need to identify and contain these people; but there are varying degrees of threat that need to be taken into account from the terrorist that would use weapons of mass destruction to make a political point, to a journalist who speaks out against the Iraq War or in some way embarrasses established interests. Irrespective of the level of the “threat” secrecy, no matter what it is hiding is the cart blanche excuse used for non disclosure of the intelligence agency activities.
I have received the template “Glomar response” repeatedly from IGIS and from others including this letter from the Attorney General Robert McClelland:
“As you are aware, there are legitimate security reasons why the IGIS and other authorities cannot confirm nor deny whether a person is the subject of intelligence interest. You may appreciate that to adopt any other approach could provide a “back door” means by which individuals who are of legitimate intelligence interest, could inappropriately ascertain whether or not they have come to official notice and if so, take effective counter-measures to avoid investigation.”[16]
For good measure the attorney general added: “However, the scope of the IGIS’s role ensures that any indication of illegality or impropriety will be investigated by the IGIS.”
The reasons for not providing me with confirmation of the existence of their surveillance and interference campaign, let alone provide the details of such are claims of secrecy in the interests of “national security”. The public has no way of knowing whether in any specific instance the claim of secrecy in the name of “national security” is being appropriately used, and therefore whether any individual has been fairly targeted. There is no effective way to challenge it. The authorities give scant public justification; and never specify what interests and what damage might occur from unauthorised disclosure. Should causing minor affront or embarrassment to an official, foreign or domestic, be considered harmful to national security that warrants the cloak of state secrecy privileges?
In the face of the Glomar response there is little I can do to obtain more information. Australian (and evidently the Five-Eye intelligence partners including America and Britain) place themselves above their international obligations and withdraw their commitment to human rights in the face conflicting opportunities. Our governments feel no obligation to reveal the extent and nature of their meddling in civil society and the private lives of their citizens.
Given that statements from lawyers contradict government officials on the nature of ASIO’s activities, one can only conclude that ASIO and the intelligence community are intentionally making great efforts to conceal the extent of their activities that target members of the public in Australia and allied countries. The fact is ASIO interferes with different people in different ways for different reasons. But one thing that is clear, its tactics are frequently illegal, and the reason for its surveillance and interference of people often have no bearing to common sense notions of Australian national security.
The tactics of concealment I have experienced used by IGIS in Australia are the same as those used by the Inspector General at the US Department of Justice (DOJ), which has responsibility for oversighting the FBI. In dealing with the US DOJ in an effort to gain FBI accountability, I have been brazenly lied to. The affable person I had been dealing with told me, after a number of constructive conversations, he had been instructed not to talk to me any further and passed me on to liaise with his superior who then refused to either speak to or correspond with me. I have found the FOI system unreliable.
Sensitive files are lost or exempted from disclosure. For example, the FBI was aware I had participated in a rally in downtown Sydney during my university days in the early 80s to save the Franklin River in Tasmania from being dammed. They were aware of personal details of my involvement – someone on the footpath had openly photographed me and was photographing others as we walked by. The person next to them had a clipboard and was pointed by the photographer to the person they had just photographed and they were asked to sign a petition which involved providing a signature, name and contact details. For those who refused, there was someone else 20 metres down the road watching with another clipboard and petition and would try again, and then another. I signed the third one. People on the march said it was ASIO, the FBI knew these details and implied it was ASIO, but my FOI request in 2014, returned no files.
What does the term “national security” mean?
IGIS, ASIO and the attorney general are distorting the common usage of words, particularly the use of the term “national security”. As applied, definitions are creative, not within the normal public usage of the terms, and highly adaptable to the situation. Their intention is to deceive the public, hiding the true scope of ASIO’s activities so as to avoid the resultant constituent pushback expected from the public if it understood the full extent of ASIO’s incursion into their lives.
Phillip Boulten SC who I spoke with and Julian Burnside QC, lawyers experienced in dealing with Australian intelligence agencies, have stated that large range of matters in practice involve ASIO due to the broad interpretation the agencies apply to the term “national security”.
Julian Burnside, QC states in relation to ASIO legislation:
“National security is defined in a way which takes it way beyond what most people would understand by the term. ‘National security’ is defined to mean: ‘Australia’s defence, security, international relations or law enforcement interest’… International relations is defined to mean political, military, and economic relations with foreign governments and international organisations.”[17]
As such, my matter, based on their definitions, is one ASIO could be involved in – since it touches on US corporate interests. No further justification is needed. Julian Burnside’s definition makes clear, and which concurs with my personal experience, the intelligence agencies of the Five-Eye’s alliance protect American business interests like Freeport McMoran’s in West Papua, even where those interests involve highly contentious operating practices which would never be tolerated in a “first world” country or by a free people. The iron clad grip over media reporting of these situations gives the public a rare glimpse of the true scope and reach of domestic intelligence agency activity; and with it the appearance of a free and open society is replaced with a different reality – that of a closely watched and controlled society.
The Australian Prime Minister, Tony Abbott, who has direct responsibility for IGIS, and therefore the conduct of the Australian intelligence community, says that through the intelligence agencies “Australia should do what we can to protect our citizens, to help our friends and to advance our values.”[18] Helping friends and advancing values goes way beyond what most people would understand and accept “national security” to mean – yet here is probably the clearest explanation of what our agencies in practice, actually do. There is no elaboration on whose friends are being helped and whether these are domestic or foreign; no mention of whose values – and whether these prioritise social, environmental, political, religious or economic ideals.
The fact is, despite their denials, the intelligence community is engaged in a massive illusion, a deceit of the public, disguising what they are really doing – the massive, widespread extent of their intrusive activities. Their intelligence gathering is ubiquitous and invasive, and publics are frequently outwitted, duped and blocked out. Elites are very smart at how and where they hide their real power. They keep the public from seeing the source of their power and how it is used. In obscuring what they are really doing, the public is lulled into an opiate like apathy; it does not resist; unquestioningly accepts what it is told – propaganda – not recognising it as such. The powerful vested interests that suppress the truth do so to protect themselves from a potential backlash from the masses – the broader objective and meaning of “national security”.
The tools of power are very subtle but very vulnerable to public disclosure; it frequently hinges on deception, and therefore credible exposure of the lie is a simple and effective remedy. As Samuel Huntington, professor of political science at Harvard said: “power remains strong when it remains in the dark. Exposed to sunlight, it begins to evaporate”[19]. Hence the government’s vicious crackdown on the greatest threat to the establishment’s hold on power – the unauthorised disclosures by the likes of whistleblowers and alternative media organisations like Wikileaks.
The people, technologies and institutions we depend on most, we least want to think are compromised. We tend to want to trust them and this then is our most vulnerable spot. These are the very hiding places preferred – where the integrity of relationships and contracts are quietly compromised, the protection offered by state secrecy laws just another hiding place – a place where honourable men and women are not suspected of dealing away our rights and freedoms. But this is precisely what happens. There is no limit to what the use of reason might justify in the hands of the authorities as they use the term “national security”. As philosopher David Hume succinctly explains: “‘Tis not contrary to reason to prefer the destruction of the whole world to the scratching of my finger.”
As in Australia, the distortion of the meaning of “national security” is a tactic the FBI has mastered. Ryan Shapiro a PhD candidate at the Massachusetts Institute of Technology and animal rights activist is suing the FBI, CIA and NSA for abuse of the Freedom of Information Act (FOIA), a potentially powerful piece of legislation in the service of democracy, but which in many people’s experience is completely broken (his experience and mine). He has been labelled a “threat to national security” by the FBI claiming that his work would “irreparably damage national security” because it exposed, and therefore threatened, certain commercial factory farming interests in the US. In an interview with Democracy Now! Shapiro reminded listeners of Judge Murray Gurfein’s words “in his ruling against the Nixon administration’s infamous attempt to prevent The New York Times from publishing the leaked Pentagon Papers, ‘The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions.’” [20]
ASIO’s incursions into the lives of others
Between looking at the National Archives website and Meredith Burgmann’s recent book of ASIO case-file histories, a much clearer picture emerges of the extent of ASIO’s activities and penetration of civil society than does by relying on the definitions and explanations from ASIO, IGIS and various former and serving attorneys general. It makes little difference what ASIO states its primary objective as – uncovering communists, protecting national security, crime – they bring under that definition whomever they want to pursue. The picture that clearly emerges is the government and intelligence agencies are in the service of protecting and maintaining the status quo – the position of the top groups in society. Anyone with any influence that could challenge their “values” is potentially a target of our intelligence agencies.
National Archives of Australia: the website, containing the content of targets’ ASIO files that can be publicly viewed, gives a clearer description of what in practice “national security” means with specific civil society examples of the type of reasons that ASIO uses to justify surveillance and maintain files on Australians. The reasons are chillingly trivial in cases and include: “…membership or involvement in political association, participation in demonstrations, association with other persons under surveillance.”[21] Members of literary groups and writers are also mentioned. “The National Archives in Canberra holds ASIO files on several Australian literary groups and a large number of Australian writers.”
The National Archives site goes on to give a partial list of writers, in excess of two dozen names, which includes many well known luminaries. Bizarrely it states: “Files on individuals are particularly useful in showing their social and political involvement and the causes to which they lent their time and talents.”[22] It, however, omits to indicate whether the surveillance, interference and secret files kept on these individuals were linked to “national security”. Is this the pathetic reason for enforcing such extreme secrecy around its activities? Indeed, ASIO has long had an obsession with writers, and even vetted applicants for Commonwealth Literary Fund grants[23]. As one example of ASIO’s ongoing obsession with writers, my experience dealing with the NSW Writers’ Centre in Sydney is that ASIO operates vigorously, albeit clandestinely, through the centre – a beehive of ASIO activity.
The broad targeting of Australians as revealed in the National Archives, senior lawyers and members of the public, confirms how pervasive ASIO’s presence actually is in the lives of ordinary Australians. From this broad sampling, one concludes a key task of ASIO is to take control of opinion leaders in Australia. Art and science, business and politics are each potential instruments of state power. It targets people of influence or possible influence, whatever the channel for that influence, including poets, journalists, folk singers, artists, actors, businessmen, politicians, scientists, even those able to influence those who can influence others – such as friends, family members and colleagues of people of influence.
The invasion of peoples’ rights does not stop with privacy. ASIO frequently uses its detailed knowledge of its targets’ lives to secretly interfere with and manipulate them.
Dirty Secrets: Our ASIO files: a book edited by Meredith Burgmann contains details of individuals recalling the contents of their ASIO files, released to the National Archives of Australia (NAA) after the then mandatory 30 year holding period. Burgmann is an academic and former parliamentarian; her book helps the public understand the culture of ASIO, and its methods of twisting, extending or ignoring its stated targeting priorities to pursue anyone who influences civil society or government policy. The files reveal a number of common elements, all denied by ASIO, the Attorney General and IGIS: ASIO systematically targets people who are not a threat to national security, or a threat to other objectives previously prioritised by ASIO. Many of ASIO’s targets were simply good communicators, or “engineers of social progress”[24] including womens’ liberation activists, anti Vietnam War, anti-apartheid, civil rights, pro-abortion, aboriginal land rights, prison reform and gay rights; some of the many causes in civil society which enjoyed broad public support but which were not backed by government policy of the day.
The files also reveal that ASIO penetrates surprisingly deep into its targets social and family circles (something I have experienced directly) – cases include lovers and parents in law. Indeed, few fail to succumb to the agencies obviously persuasive carrot and stick recruitment approaches. There seems to be little trouble finding informants – people prepared to accept a fee to inform on groups, meetings and other select or otherwise closed or private political, business or social gatherings, and extensive networks are indicated. The dossiers reveal ASIO systematically targeted and/or recruited university academics and the media, as well as writers, and even well known film critic and organiser of the Sydney Film Festival David Stratton.
There is a high level of mundane information, in many of the files, about peoples’ lives, their friends, family, reading material, interests and also private/personal matters. The targets for the most part had no idea they were the subject of ASIO interest, mainly because they were not active, they thought, in any matters ASIO would have any reason to be interested in. Most feel the detailed work that went into preparing their file was not only a waste of public money but also an unnecessary burden on themselves when they realise that through secret interventions ASIO had interfered in not only the targets’ lives but also that of their family and friends. A number of people complain about having had their careers interfered with and of some of their friends careers being damaged or terminated by ASIO interference.
From Burgmann’s book, and the NAA website, it is clear ASIO has targeted, at one point in their lives, many eminent Australians from their student days and beyond. These include former high Court judge Michael Kirby, journalist and former chairman of Greenpeace International Anne Summers, Aboriginal rights activist Gary Foley, apolitical film critic David Stratton, Meredith Burgmann, Wendy Bacon, Phillip Adams and on and on and on.[25] These are not just hapless citizens; nor are they subversives or threats to national security. Even once the facts of their lives were established by ASIO and it was clear these people were of no threat, the files were not closed but remained open and active.
This is how Burgmann summarises her ordeal with ASIO:
“During all my time as a political activist I have never advocated violence or subversion. I believed in and practised ‘direct action’ tactics when appropriate. I may well have been a threat to public order but never a threat to life or limb and certainly never a threat to the state. My friends and I should never have been under surveillance.”
Intriguingly she reveals other people mentioned in her ASIO file had ASIO file numbers recorded against their names – her father who was Chairman of CSIRO and her grandfather who was a bishop. When these files were requested under FOIA, ASIO did not release them nor did it acknowledge their existence[26]. Files seem to “disappear” within ASIO or be withheld from release without acknowledgement even when the law requires their release.
Former Justice of the High Court of Australia Michael Kirby (1996 – 2009) said this of the ASIO file that covered his formative years:
“…my file shows the critical importance of always rendering security agencies accountable to the civilian government; retaining a measure of scepticism about their occasional over-enthusiasm; and affording remedies to those who are wronged by their collection and use of false or unreliable information. Any person of common sense who glances at the trivial entries in my ASIO file would have quickly come to the conclusion that I was no threat whatever to the security of Australia.” [27]
High profile Australian journalist Anne Summers said this of the extent of ASIO penetration after reviewing the contents of her ASIO dossier from the 1970s and others:
“I have spent a great deal of time reading various other ASIO files on the NAA [National Archives of Australia] website and have been quite taken aback by some of what I have found. ASIO was everywhere, observing, reporting, commenting – often in the most personal way.”[28]
She went further in describing her reaction as she read through her ASIO file and realised the extent of the agency’s interference in her life and in her work:
“As I delved further [into my ASIO file], though, my mood began to change. I became perplexed at why I was being singled out for so much attention, and then angry when I realised the extent to which ASIO had, for no good reason, significantly interfered with my life.”
Others whose ASIO files have been released expressed similar sentiments of dismay about the level of ASIO intrusion into their personal lives and the number of people they had working for them. Journalist and academic Wendy Bacon said, “ASIO…had far more informants and agents than we ever suspected.”[29] Penny Lockwood who drew scrutiny on account her father was the subject of ASIO surveillance, expressed dismay after reading her own file “of how pervasive the surveillance” had been of her. The files reveal ASIO even followed her to the US where she had taken a job and was “preparing to recommend against her appointment.”[30] Peter Cundall, an Australian war veteran and well known ABC TV presenter of Gardening Australia expressed the same sentiment about his files concerning “the extent of the surveillance over such a long period [over 16 years] and the detail provided…”[31]
A former Labor government minister Clive Evatt’s ASIO file reveals “that the government had spies everywhere, ready to denounce people whose views were unpopular with government.” “ASIO apparently took the view (no doubt reflecting that of the federal government) that anyone taking a stand against authority should be considered a security risk.” It was clear “that those who took a different view from the government on issues of human rights…[and other issues]…were regarded with suspicion…” And that “most of the material in his file, even those marked ‘top secret’, had nothing to do with security.” [32] Colin Cooper, a senior union official from 1966 to 2007 reveals that ASIO targeted him for years “based on membership of legitimate organisations that, despite all the ASIO surveillance, were never found to have acted illegally or to threaten the nation’s security. The justification for considering me or any other person a security risk based on our legitimate political activity should be of concern to all.”[33]
Culture is difficult to change, and what is clear from the extensive historical files of ASIO is that the agency’s predilection to target people with influence, or who stand in legitimate opposition to authority, remains a key part of its mission.
This is how academic Tim Anderson described the contents of his voluminous files:
“These documents were mostly collections of surveillance and trivia, including news clips, and cold trails of the many attempts to gain compromising material on mostly left-wing activists. They were riddled with errors, but that did not prevent many expressions of great confidence in their false conclusions. After all, who would contradict these secret files?” [34]
Anderson was falsely convicted of a politically motivated crime, and served 7 years in jail, only to be exonerated when a Special Inquiry found the police had hidden critical evidence that would have prevented his conviction at trial. He goes on to say: “This example shows the ‘one way street’ these secret files represent: they are there to help the state, but only hurt the targeted citizen.”
The agencies that comprise the Australian intelligence community, such as ASIO, ASIS, and various others, and their oversight bodies, such as IGIS, are quickly becoming a national pest, which they have likely been for far longer than the general public realises.
Is IGIS acting in good faith? Others share their recent experiences
I am not the only person making recent public disclosures critical of personal dealings with IGIS. Others have revealed the shortcomings of IGIS based on their experience of dealing with it. Those who have personally come face to face with and tried to access justice in relation to FBI and ASIO excesses, as I have, quickly come to the conclusion that the system is broken. Oversight of individual complaints is handled by IGIS, which is a captive regulator – it fails to act with independence and its process lacks all transparency. Its opinions should not be relied upon. I can personally attest to its shortcoming, as can a long list of others that includes Lance Collins, Warren Reed, Andrew Wilkie and Mamdouh Habib.
Of the many complaints about IGIS, former military intelligence officer Lieutenant Colonel Lance Collins and former ASIS officer Warren Reed offer a revealing insiders’ perspective. In their book Plunging Point they provide examples of IGIS’s complicity with the government of the day to shield the intelligence agencies from accountability after a disturbing intelligence related incident during Australian military operations in East Timor in 1999. They describe a serious abuse that was covered-up, in this case to protect senior Australian intelligence officials in Canberra. The truth came out 5 years later in 2004. Arising from this IGIS was implicated in a cover-up, and was forced to revise and contradict its findings in a previous “investigation” it had conducted:
“This grave example [of how abuses are covered-up] is worth studying, for it uniquely involved the incumbent Inspector General for Intelligence and Security directly contradicting the methodology and findings of his immediate predecessor. The Minister, though dismissed the cover-up, claiming that while the initial investigation was, ‘comprehensive it was not exhaustive’[35]. The Government has never had to take remedial action.”[36]
In another incident following the corruption of intelligence to justify the illegal invasion of Iraq in 2003 by the US led “coalition of the willing”, Lance Collins and Warren Reed went on the public record on ABC Radio National saying their complaints about the corruption of intelligence agencies were sanitized and whitewashed by IGIS [37]:
Warren Reed: Well, there were half a dozen of us who had similar cases. Almost all the cases caused by intransigence on the part of Foreign Affairs, not that ASIS people are perfect…And we had all gone through the IGIS process, that’s the Inspector General of Intelligence and Security, and all of our cases were effectively whitewashed.
Lance Collins was sufficiently disaffected by his experience with IGIS that he wrote to the Prime Minister about the serious deficiencies in the oversight regime (something which I am now experiencing firsthand):
“Dear Prime Minister, I am writing to inform you about the failure of institutional controls over the Australian intelligence system…It is clear that the Australian intelligence community is unable to identify reality in a timely manner, or convey its significance to Government…I strongly urge you, Prime Minister, to appoint an impartial, open and wide-ranging Royal Commission into Intelligence and the influences upon it.”
Nothing ever came of their complaints, nor from a similar letter I sent to the Prime Minister Tony Abbott. This is how they summed up their experience in dealing with IGIS and other oversight institutions:
“The various mechanisms of the law, as well as the inquiries and committees that oversee the intelligence system, might most usefully be described as ‘instruments’. That is, they have a specific purpose to fulfil….These ‘instruments’ are officially promoted as being ‘independent’ of the executive government and designed to bring closure and justice to a dispute through the application of common sense and fairness. Regrettably, this is rarely the case.”[38]
Another example of IGIS’s unreliable enforcement was its failure to protect an Australian man, Mamdouh Habib who was arrested as a terrorist suspect and held in detention from 2001 to 2005. During this time he was renditioned (kidnapped) by the Five-Eye intelligence agencies and secretly flown to Egypt. There he was tortured at the hands of the CIA with an ASIO agent present, according to a credible corroborating witness that had come forward in Egypt, the ASIO agent was named, and the existence of recordings and video was disclosed.
His case, with supporting evidence and witnesses, apparently found no support from the office of IGIS, at the time headed by Dr. Vivienne Thom. Nonetheless, based on the strength of his evidence, in 2010 he won clearance in “the Federal Court to sue the [Australian] Government for aiding and abetting his torture by agents in Pakistan, Egypt, Afghanistan and Guantanamo Bay.”[39] As a sign of its complicity, and on the recommendation of the Solicitor General, the Australian government promptly settled with Habib for an undisclosed sum of money to keep details from the public in what promised to be a scorching indictment in court of ASIO, and those who oversight it – IGIS, and ultimately the Australian government.
The Habib matter revealed other fractures in ASIO’s facade ignored by IGIS. A judge hearing the Habib case in the Administrative Appeals Tribunal in 2007 said that ASIO testimony lacked credibility and that the agency’s officers had a proclivity to lie under oath:
“Why should we take your word for it when again and again we find things that are said to be the subject of national security concerns turn out not to be? I mean it looks like an easy way out for ASIO: when in doubt, just say ‘national security’.”[40]
The Habib case raises the question as to what was the role played by IGIS in covering up for ASIO, in this egregious failure to constrain the agency and provide justice for Habib? Given IGIS’s vast investigative powers, why wasn’t the matter resolved before it went to the Federal Court? Why didn’t IGIS, which presumably had prior access to the same evidence as the judge, and possibly considerably more given its unfettered internal reach, arrive at a similar condemning conclusion implied by the Solicitor General – that ASIO grossly and intentionally violated Habib’s rights. I wonder if IGIS experienced any institutional embarrassment at seeing what justice, when delivered, really looks like. I suspect not, however, its hubris established in unassailable power unlikely to be dented by court disclosures alone. It is clear that bureaucratic and political insiders and captive regulators abrogated their responsibility to the public – a clear indictment of the extent of political meddling in their internal reviews. If not for an independent court review, where the rule of law was applied with integrity away from the interference of the government agenda, justice would once again have been denied another individual of ASIO’s abuse.
This is what Habib says about his efforts to work through the official oversight channels: “I had come to realise that if a citizen complains about an intelligence agency to a government department, nothing is ever done. The excuse is always that it is always a matter of ‘national security’.”[41]
There are others as well who believe IGIS has not well served the cause of democracy well in failing to represent and protect their rights and interests against intelligence agency incursions into their lives. There is a long list of recent examples from a broad cross section of Australian society that includes David Hicks who was held in the US “enemy combatants” prison at Guantanamo Bay, Scott Parkin the American peace activist who was deported at the behest of ASIO, and Andrew Wilke an Australian intelligence officer who resigned in opposition to the Iraq war was vilified, subsequently ran for parliament as an independent, won the seat of Hobart.
Issues of ASIO and IGIS abuses and other agencies within the intelligence community are ignored, issues of injustice are avoided leaving a gaping hole in the justice system. IGIS’s eventual report on the Habib case was pathetic. The Federal Court decision and Solicitor General’s recommendation indicates that Habib’s allegations were highly credible about a range of ASIO misconduct and complicity in his kidnapping and torture – but you wouldn’t know it from the IGIS report. IGIS’s most damning discovery and stinging public rebuke of ASIO related to the inadequacy of records it kept. The dearth of records was put down to sloppy note taking procedures and IGIS gently rebuked ASIO officials and recommended that they take better notes of their future activities! Matter resolved to the “satisfaction” of IGIS and with the “confidence” of the government.
Disturbingly, the report denigrated Habib; but it praised Dennis Richardson, the man who had been the head of ASIO at the time of Habib’s detention – and now, in his new job, he was a prospective future employer of all aspiring IGIS staffers. At the time IGIS wrote the report, Richardson was a very powerful, senior member of the bureaucracy, Secretary of the Department of Foreign Affairs and Trade, which gave him line responsibility for all Australian diplomatic placements and plum trade assignments sought and frequently filled by government officials.
IGIS’s internal ties to serving officials fuels scepticism about the extent of its independence and of the integrity of its determinations. In “Greasing the Wheels of Justice” scholars Meredith Fuchs and Gregg Webb describe a key standard by which to measure independence: true autonomy requires the “lacking of any current or known future relationship with…the government”.[42] By definition, internal regulators, such as the office of IGIS, lack cultural separation from those they oversight, and therefore independence. Career ambitions and future job aspirations are a key source of potential corruption.
A fearless leader: NYAG Eliot Spitzer
While it may be true IGIS operates with a relatively small budget, that is not the problem. The argument that IGIS’s poor record in defending and delivering justice to members of the public is on account of inadequate resources is misleading. The key problem is regulatory capture which undermines its institutional independence.
In the 2000s, New York State Attorney General Eliot Spitzer demonstrated what a small, fearless team of dedicated and highly qualified individuals could achieve with the powers vested in them, even where they were opposed by powerful counter forces. They went up against the apex of US business – powerful Wall Street banks and their political ties to Washington. Spitzer achieved prosecutions and settlements in the billions of dollars, changed industry culture, and put the world’s business leaders on notice that if they wanted to do business in NY and America they had better obey the law. He achieved these results through unusual courage, tenacity and ingenuity, even while better resourced and more powerful regulators like the SEC and FBI failed to act.
Spitzer’s professional achievements dispel the myth that a small regulatory office cannot achieve outstanding oversight outcomes if it is staffed with the right people. Staffed with motivated individuals and strong leadership, he used his considerable powers to subpoena witnesses and corporate documents to uncover evidence that underpinned his successful criminal prosecutions of white collar crime and securities fraud. He sued some of America’s biggest and politically well connected insurance companies like AIG and major Wall Street investment banks like UBS Warburg, Bear Sterns, Deutsche Bank, Goldman Sachs, and J.P. Morgan Chase.
From the outset, Spitzer was an exceptional appointment to head a small regulators office. A smart and driven man with a Harvard law degree, and the integrity and strength of will to operate with independence from establishment forces, however flawed the culture of his times. He showed what a small office vested with extensive powers could achieve against all odds if staffed with the right people possessing extraordinary skill and integrity – holding powerful, established business interests to account. It is a pity other regulators are incapable of maintaining a disciplined approach to their mandates, or aren’t given the right incentives to do so, and to follow Spitzer’s fearless lead. Spitzer eventually paid the ultimate price many years later when his career was brought to a halt by a vindictive FBI investigation that publicly revealed personal flaws inimical to his political advancement – an outcome most insiders see as payback.
ASIO has a long history of acting outside its mandate, illegally and for evading accountability. It is a rare occasion that the agency is held to account by IGIS, a dismal state of affairs attested to by senior members of our government, the judiciary, civil society and even the intelligence agencies themselves.
ASIO powers and compromised oversight are a potential threat to all Australians, refugees and visitors. Various mechanisms have been tried to hold ASIO and the other intelligence agencies accountable, but with little success, including legislation and oversight by executive committees. What is clear is that a large number of regular Australians remain disaffected and have had their lives detrimentally interfered with by ASIO for no morally or legally legitimate reason. IGIS, the main oversight body, has proved to be a captive regulator, incapable of acting with cultural independence in their defence and consistently failing to deliver on justice and enforcement. There are numerous cases of abuse reported, at times egregious, including torture, but not a single prosecution of an ASIO officer.
The flaws of this system are not easily detected, nor do they lend themselves to easy correction by normal democratic processes. The details of assessments and deliberations by IGIS and other insider officials, government institutions and committees are secret, there is no way of knowing what standards are being used, whether each assessment is subjective, whether they are applying the law consistently and fairly – none of this is open to public view. IGIS knows this, and also knows the expectations of its political masters. The public is left with no alternative: it must trust and depend upon statements from IGIS officials that all is well. The public never knows for certain which statements are true and which are merely politically self serving.
What is clear from the Snowden NSA revelations and US Senate Intelligence Committee into the CIA’s use of torture is that the intelligence community has deliberately and dishonestly side stepped democratic accountability to legislators and is routinely making key decisions free from any oversight not just in the US. This phenomena is also seen is Australia as well. The stark lies and deceptions perpetrated in the lead up to the Iraq War will not be forgotten anytime soon by a public now all too aware of its vulnerability in an age of mass surveillance. In becoming a law unto themselves, the intelligence agencies have threatened and weakened the democratic institutions that have stood in their way, undermining public protections. They have hollowed out the very pillars of freedom our ancestors fought for over many centuries, at least since the seeds of democracy were sown with the Magna Carta in 1215. In the process, the current regime of oversight, led by IGIS has been revealed as inadequate for maintaining security and the principles of freedom valued by an open society.
Alternative methods of oversight, particularly increasing judicial involvement, have been suggested to correct the structural flaws and dangers posed by IGIS. Mr Justice Hope in the recommendations of the 1983-84 royal commission into the intelligence agencies recommended IGIS be established in conjunction with mandatory royal commission to be conducted every 6 to 8 years’ or so, which would include review of the performance of IGIS. IGIS was established in 1987, however, the government has steadfastly opposed implementing a royal commission because it sees this as a threat to its own power and influence. As a result, a key recommendation of the Hope Royal Commission, the establishment of a strong oversight regime which depends on two essential components – IGIS and a royal commission – working in tandem, was never implemented. Creating IGIS but leaving the royal commission out is a bit like building a aeroplane with one wing missing – it looks right from one angle but doesn’t actually work. As a result, the agencies have never had their activities effectively reviewed and democracy has suffered as a result.
Technology and communications are making dramatic strides in scope and reach year by year, and the power of the intelligence agencies in leveraging these new tools seems to be growing exponentially. Agency capabilities are only going to increase further in years to come, making them even more powerful and harder to control, their impact on society, on our hard won freedoms, more confronting. Concerns are activists defending social and environmental standards expected by many in the community will increasingly be within reach and targeted by ASIO, bolstered not only by technological advances but also greater legislative power (as was passed in 2014), and have no recourse or access to a marginalised media, and sidelined courts and parliament. This power to marginalise the participants of civil society and prioritise business may be good for state growth objectives; but not good for personal liberty. In a global economy, do competitive pressures permit us the luxury of the social and environmental standards we once aspired to as communities? This is not a question for IGIS to determine alone with the government of the day, or the intelligence agencies to decide in secret, but for communities and people to weigh in on, which is what a strong, independent civil society is meant to achieve.
The fight between the people and the intelligence agencies is shaping up as the key battle of this century. Judicial oversight and royal commissions have an essential role to play in the sharing of power and the effective oversight of the intelligence community. This fact will continue to be resisted by politicians who would need to cede significant power to the judiciary – something former High Court judge Michael Kirby likens to a changing of the guard, a bloodless palace coup. Under such shared oversight, the agencies, including IGIS, would no longer be able to operate as a law unto themselves, but once again be subject to the laws of the land.
Now is the time to contest the rightful bounds of authority and ensure the mechanisms of separating and sharing power are not pulped into meaninglessness.
Author:
[1] Ian Barker 28 December 2007, Letters to the Editor, Sydney Morning Herald.
[2] Personal communication between the author and Ian Barker during a telephone conference call 2011.
[3] Francis Fukuyama, September/October 2014 America in Decay: The Sources of Political Dysfunction, Foreign Affairs, p8.
[4] Tom Allard, 5 December 2013 Intelligence agency failed to investigate spying claims, lawyer Bernard Collaery claims, The Sydney Morning Herald. http://www.smh.com.au/federal-politics/political-news/intelligence-agency-failed-to-investigate-spying-claims-lawyer-bernard-collaery-claims-20131204-2yr3m.html#ixzz32nuRMMpH
[5] Deborah Snow, 7 December 2013, Who is monitoring the covert operations of the world’s spy
agencies?, Sydney Morning Herald. http://www.smh.com.au/technology/technology-news/who-is-monitoring-the-covert-operations-of-the-worlds-spy-agencies-20131206-2ywpt.html
[6] Ed. Clive Hamilton and Sarah Maddison, 2007, Silencing Dissent, Allen and Unwin, pviii-ix.
[7] Deborah Snow, 7 December 2013, Who is monitoring the covert operations of the world’s spy
agencies?, Sydney Morning Herald. http://www.smh.com.au/technology/technology-news/who-is-monitoring-the-covert-operations-of-the-worlds-spy-agencies-20131206-2ywpt.html
[8] Nick Hopkins and Matthew Taylor, 19 November 2013 Surveillance technology out of control, says Lord Ashdown, The Guardian.
[9] Editorial, 21 December 2013 NSA and GCHQ: snooping because we can, The Guardian.
[10] Rahul Sagar, 2013Secrets and Leaks: The Dilemma of State Secrecy, Princeton University Press, p69.
[11] Rahul Sagar, 2013Secrets and Leaks: The Dilemma of State Secrecy, Princeton University Press, p72.
[12] Undated and unsigned letter from the Attorney-General The Hon Robert McClelland MP to The Hon Tanya Plibersek MP (2008) MCO8/1874. Obtained by author under FOIA.
[13] Letter from IGIS Ian Carnell to John Wilson, 22 September 2008.
[14] Undated and unsigned letter from The Hon. Philip Ruddock MP to The Hon. Bruce Baird, MP (circa 2006-07). Obtained by author under FOIA.
[15] Personal correspondence, 8 March 2011 from Annette Willing at the Attorney General’s Department to John Wilson.
[16] Undated and unsigned letter from the Attorney-General The Hon Robert McClelland MP to The Hon Tanya Plibersek MP (2008) MCO8/1874. Obtained by author under FOIA.
[17] Julian Burnside, 2007 Watching Brief: reflections on human rights, law, and justice, Scribe Publications Pty Ltd, pp148-149.
[18] David Crowe, 10 June 2014 Sharing spy material will protect citizens, says Tony Abbott, The Australian.
[19] Noam Chomsky 17 August 2013, Chomsky: The U.S. behaves nothing like a democracy, Salon. http://www.salon.com/2013/08/17/chomsky_the_u_s_behaves_nothing_like_a_democracy/
[20] Amy Goodman, 25 March 2014 Why Did the FBI Label Ryan Shapiro’s Dissertation on Animal Rights a Threat to National Security?, democracynow.org. http://www.democracynow.org/2014/3/25/why_did_the_fbi_label_ryan#.UzU9FHX6Wgs.facebook
[21] Security intelligence records held in Canberra – Fact sheet 33, National Archives of Australia. http://www.naa.gov.au/collection/fact-sheets/fs33.aspx. Downloaded 6 January 2014.
[22] ASIO files on writers and literary groups – Fact sheet 69, National Archives of Australia. http://www.naa.gov.au/collection/fact-sheets/fs69.aspx. Downloaded 10 January 2014.
[23] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p29.
[24] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p142.
[25] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing.
[26] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p15.
[27] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p67.
[28] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p75,81.
[29] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p255.
[30] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p418,421.
[31] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p431.
[32] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p323,328.
[33] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p307.
[34] Meredith Burgmann, 2014 Dirty Secrets: Our ASIO Files, NewSouth Publishing, p394.
[35] Senator the Honourable Robert Hill, 9 December 2004 Media Release: Inquiry By Inspector-General Intelligence and Security, Parliament House, Canberra.
[36] Lance Collins and Warren Reed, 2005 Plunging Point: Intelligence Failures, Cover-Ups and Consequences, Harper Collins Publishers, p270.
[37] Background Briefing, 30 May 2004 Intelligence Wars: Behind the Lance Collins Affair, ABC Radio National. As reproduced in Lance Collins and Warren Reed, 2005 Plunging Point: Intelligence Failures, Cover-Ups and Consequences, Harper Collins Publishers, p324, 327. Disturbingly, Australia and Australian intelligence agencies have a long history of accepting Indonesian military abuses – in Australia’s “national interest” under an unstated policy of Realpolitik. Indeed, Australia has helped train elite Indonesian military forces and provided military hardware irrespective of widespread human rights abuses by the military in Indonesia.
[38] Lance Collins and Warren Reed, 2005 Plunging Point: Intelligence Failures, Cover-Ups and Consequences, Harper Collins Publishers, p253.
[39] ABC News, 8 January 2011 Gillard says Habib deal in taxpayers’ interests. http://www.abc.net.au/news/2011-01-08/gillard-says-habib-deal-in-taxpayers-interests/1898452
[40] Sally Neighbour, 15 January 2011 Mamdouh Habib’s story is backed by evidence, The Australian.
[41] Mamdouh Habib with Julia Collingwood, 2008 My story: the tale of a terrorist who wasn’t, Scribe, p64.
[42] Rahul Sagar, 2013Secrets and Leaks: The Dilemma of State Secrecy, Princeton University Press, p68.
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