Category Archives: Rule of law

Julian Assange Awakens Secrecy as Repugnant to Freedom

This is an article from the Australian ABC regarding Julian Assange, lawyers, breach of privacy and surveillance.  the article focuses on the recording of Geoffrey Robertson QC a famous Australian barrister, well known by those of us over 40 for the ABC program ‘Hypothetical’.  Geoffrey Robertson demonstrated justice as he challenged influential Australians to respond to controversial issues, scenarios indicating how they would handle a difficult problem. He demonstrated Justice and Inquiry. 

He is a human rights lawyer and his lawyer-client privilege was breached due to powerful interests not driven by Justice but power. 

I felt inspired to give J F Kennedy a voice in this blog which drives to the heart of this problem.  

Transcript: https://www.jfklibrary.org/archives/other-resources/john-f-kennedy-speeches/american-newspaper-publishers-association-19610427

The keystone message of Kennedy is as follows:

I not only could not stifle controversy among your readers–I welcome it. This Administration intends to be candid about its errors; for as a wise man once said: “An error does not become a mistake until you refuse to correct it.” We intend to accept full responsibility for our errors; and we expect you to point them out when we miss them.

Without debate, without criticism, no Administration and no country can succeed–and no republic can survive. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And that is why our press was protected by the First Amendment– the only business in America specifically protected by the Constitution- -not primarily to amuse and entertain, not to emphasize the trivial and the sentimental, not to simply “give the public what it wants”–but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold, educate and sometimes even anger public opinion.

The important question for US lawmakers and politicians is – Can you face high crimes and misdemeanours and correct mistakes rather than criminalise the messenger?   Wikipedia provides insight into the meaning:  https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors

When you deeply contemplate the journey of Julian Assange you realise he is a light on the hill as he reminds the US of its true purpose as they have lost their way.  He is a beacon who not only revealed US secrets but awakened the world to what is called the ‘dark side’ of surveillance and political corruption. Justice is not a business deal it is about the truth that sets all free.

Recently I wondered about him. I sent light and protection to him and that he is safe as the US seek to jail him for revealing what is on ‘a need to know basis’. 

When you have experienced inequality before the law, illegal surveillance, privacy breaches and corruption your Cinderella world view dissolves as you become dis-illusioned.  That is, the illusion falls from your eyes and you see clearly. 2020 (vision) is about clear seeing. Until you walk in Julian’s shoes you cannot know the sacrifice he made in the public interest, albeit global interest. We are learning about how power operates as distinct to Justice. The lengths people will go to, to win and pervert the course of  justice. The lack of ethics, integrity and manipulation of the rule of law is under the spotlight. 

It is noteworthy that those persons exposed of crimes and/or breaches to the Constitution are not arrested but the whistle-blowers are pursued as if criminals and rights to Justice undermined. The Brave New World is a teacher, we are being given glimpses into this possible future and every person is choosing. This is the real universal vote. Complacency or democracy?

The surveillance state is increasingly being privatised as contractors are paid by national intelligence agencies accessing secrets themselves.  Secrets (security) are leverage.  Imagine how wide spread is espionage as intelligence becomes private security (business) becomes intelligence in the revolving door of greed where there is always a back door to breach privacy and make money from vulnerability.  Greed is the key issue arising out of a desire to live like the US, yet, must we rob Peter to pay Paul. Debt is another leverage point.

Some key quotes from the ABC article below are worthy of contemplation.

“It’s important that clients can speak frankly and freely in a confidential space with their lawyers in order to be able to protect themselves and ensure that they have the best possible legal strategy and that the other side does not have advance notice of it,” Robinson said.

Referring to a Spanish allegation that the US Government had advance notice of legal conversations in the embassy, she said: “That is … a huge and a serious breach of [Assange’s] right to a defence and a serious breach of his fair trial rights”.

“I wasn’t surprised at all. It’s an occupational hazard for human rights lawyers. You’re bugged, you’re followed by secret police, you’re spied upon,” said Robertson, one of Australia and the UK’s most respected human rights barristers for almost 50 years.

The extradition hearing comes amid a flurry of activity related to Assange: on Friday his legal team also confirmed they will try to seek asylum for the WikiLeaks boss in France, and on Thursday an English court heard that Assange was offered a US presidential pardon if he agreed to say that Russia was not involved in a 2016 leak of Democratic Party emails.

When the ABC asked questions of the US embassy in Canberra, it referred questions to the US justice department, which did not respond by deadline.

The ABC also sent questions to the CIA and the US Office of the Director of National Intelligence. Neither responded by deadline.

https://www.msn.com/en-au/news/australia/julian-assange-and-his-australian-lawyers-were-secretly-recorded-in-ecuadors-london-embassy/ar-BB10hrG3?ocid=spartandhp

Julian Assange and his Australian lawyers were secretly recorded in Ecuador’s London embassy

Dylan Welch, Suzanne Dredge and Clare Blumer 2 hrs ago

WikiLeaks' founder Julian Assange leaves Westminster Magistrates Court in London, Britain January 13, 2020.

© REUTERS/Henry Nicholls WikiLeaks’ founder Julian Assange leaves Westminster Magistrates Court in London, Britain January 13, 2020. Barrister Geoffrey Robertson’s shuffles into the entrance to Ecuador’s embassy in London, a camera recording the sound of his shoes echoing on the hard tiles.

It’s just after 7:00pm on January 12, 2018.

The camera rolls as Robertson stops at the front door, unbuttons his overcoat and removes his cap.

Once inside the embassy, other cameras follow him as he’s ushered into a meeting room, where the storied Queen’s Counsel is offered a cup of tea.

After a few minutes, he is greeted by the embassy’s most famous resident, Julian Assange.

The camera continues to roll, recording every word of the confidential legal conversation which follows.

While this may be typical surveillance at a secure diplomatic property, what Robertson did not know was he and a handful of other lawyers, were allegedly being targeted in a remarkable and deeply illegal surveillance operation possibly run at the request of the US Government.

Pictures: The case of Julian Assange (Showbizz Daily)

And recordings such as Robertson’s visit are at the heart of concerns about the surveillance: privileged legal conversations between lawyer and client in a diplomatic residence were recorded and, later, accessed from IP addresses in the United States and Ecuador.

Robertson was only one of at least three Australian lawyers and more than two dozen other legal advisers from around the world that were caught up in the surveillance operation.

Long-time WikiLeaks adviser Jennifer Robinson was one of the other Australian lawyers caught in the spying operation.

“It’s important that clients can speak frankly and freely in a confidential space with their lawyers in order to be able to protect themselves and ensure that they have the best possible legal strategy and that the other side does not have advance notice of it,” Robinson said.

Referring to a Spanish allegation that the US Government had advance notice of legal conversations in the embassy, she said: “That is … a huge and a serious breach of [Assange’s] right to a defence and a serious breach of his fair trial rights”.

On Monday evening (Sydney time), Assange will face an extradition hearing relating to US criminal charges against him for his role in the WikiLeaks releases of classified US Government material.

The extradition hearing comes amid a flurry of activity related to Assange: on Friday his legal team also confirmed they will try to seek asylum for the WikiLeaks boss in France, and on Thursday an English court heard that Assange was offered a US presidential pardon if he agreed to say that Russia was not involved in a 2016 leak of Democratic Party emails.

The offer of a pardon was allegedly made by the US congressman Dana Rohrabacher when he visited Assange in the embassy in August 2017. Rohrabacher has denied he was making the offer on behalf of Donald Trump.

‘It’s an occupational hazard for human rights lawyers’

The surveillance was uncovered via a very public investigation into the Spanish company contracted by the Ecuadorian Government to provide security at the embassy, UC Global.

WikiLeaks Spanish lawyer, Aitor Martinez, told the ABC the surveillance came to light after Assange was arrested, when former UC Global employees provided a large file of material.

“This consisted of recordings from cameras installed in the embassy and hidden microphones; recordings made with secret microphones placed inside the embassy; hundreds of secret copies of the passports of Mr Assange’s visitors; multiple emails exchanged between the company owner and the employees,” Martinez said.

The recording of lawyers and legal conversations was not accidental, according to the Spanish criminal case, which is now investigating UC Global and its owner, former Spanish Navy marine David Morales.

“David Morales was justifying himself by saying that he had been expressly asked for this information, sometimes referring to ‘the Americans’,” a UC Global employee turned prosecution witness said.

“He sent on several occasions — via email, by phone and verbally — some lists of targets in which we had to pay special attention … they were mainly Mr Assange’s lawyers.”

“I wasn’t surprised at all. It’s an occupational hazard for human rights lawyers. You’re bugged, you’re followed by secret police, you’re spied upon,” said Robertson, one of Australia and the UK’s most respected human rights barristers for almost 50 years.

Robinson — also an Australian citizen — was spied on while providing confidential legal advice to Assange.

“It is incredibly troubling that our secret and privileged legal conversations with Julian Assange were recorded and apparently handed to US authorities,” she told the ABC.

“It is one of the most fundamental principles of protecting attorney-client relationships that we are able to have confidential and private meetings, to discuss legal strategy.”

The concerns about illegal monitoring of confidential legal discussions may become part of his defence, with his lawyers expected to argue that the espionage has denied Assange his basic legal rights.

Foreign Minister Marise Payne did not respond to ABC questions about the Spanish case. The Department of Foreign Affairs (DFAT) also declined to discuss it, only noting that it had previously sought assurances that Assange would be treated appropriately under UK law.

“The Australian Government cannot intervene in any extradition request for Mr Assange, which is a matter for the UK authorities,” a DFAT spokeswoman said.

Robinson said that she believed Canberra had not done enough to protect Assange, an Australian citizen.

“This is a case in which an Australian citizen is facing 175 years in prison in the United States for the same publication for which he won a Sydney Peace Prize and the Walkley award for the most outstanding contribution to journalism,” she said, referring to WikiLeaks’ publication in 2010 and 2011 of confidential US documents that revealed, among other things, war crimes and illegal spying on world leaders.

“His Australian lawyers — all of us Australian citizens — have [also] had our rights as lawyers and our ability to give him a proper defence superseded by the US and potentially the UK Government.

“This is something that the Australian Government ought to be taking very seriously and ought to be raising both with the UK and with the United States. It is time the Australian Government stands up for this Australian citizen and stops his extradition.”

The file

The ABC has obtained hundreds of internal UC Global documents, videos, audio files and photos tendered in the Spanish case, which commenced in April last year days after Spanish newspaper El Pais published videos and audio of Assange and guests being spied on in the embassy.

The files reveal the remarkable and expanding secret surveillance targeting the WikiLeaks boss and his guests.

In an email from September 2017, Morales ordered UC Global staff to find out what the walls around Assange’s bedroom were made of, and to photograph the embassy’s rooms and its furniture.

Then in December, UC Global updated the embassy’s camera system, installing audio-capable cameras.

A month later, and under instructions from Morales, they installed a listening device in the false base of the meeting room’s fire extinguisher.

They also installed a microphone in the women’s bathroom — a place where Assange would regularly hold sensitive legal meetings.

The case is being investigated by Spain’s federal court, the Audencia Nacional, which is examining whether Morales and UC Global are guilty of breaching both Assange’s privacy and lawyer-client privilege, as well as crimes relating to misappropriation of funds, bribery, and money laundering.

“From 2015 to mid-2018, when UC Global lost the embassy’s security contract, a battery of illegal espionage measures was deployed, with massive interference in the privacy of [Assange], in his communications with his [legal] team, in meetings with his doctors, and in general against everyone close to him,” a criminal complaint filed by Assange’s Spanish lawyers stated.

“In those years the defendants created a sort of ‘Big Brother’ in which all the movements of Mr Assange and the people close to him were monitored.”

The case commenced after a group of Spanish citizens contacted senior WikiLeaks employees and demanded a significant sum of money in return for what they said was voluminous proof of the espionage.

A former UC Global employee — who cannot be identified for legal reasons — also separately approached WikiLeaks, wanting to reveal what they saw as the illegal behaviour of their former company.

WikiLeaks referred the case to Spanish courts, who launched an investigation and arrested Morales. He was later released on bail.

“This spying did not only affect Mr Assange’s lawyers, it also affected all of his visitors, including journalists,” Martinez said.

“It got to the point where, during a visit to Mr Assange, the head of Ecuador’s intelligence service [Rommy Vallejo, on December 21, 2017] was also spied on,” Martinez added.

“In the meeting between Mr Vallejo and Mr Assange the possible release [from the embassy] of Mr Assange in a few days later was discussed.”

Within hours of that secret meeting, which was known to only a few people, the US Ambassador to Ecuador complained to Ecuadorian authorities, and the next day the US issued an international arrest warrant for Assange, Martinez said.

“That leads us to believe that the conversation was urgently sent to the US authorities and that they urgently issued the international arrest warrant the next day,” he said.

Martinez was himself spied on while having legal meetings with Assange at the embassy.

“Mr Assange began to suspect that he was being spied upon … so he asked us to hold the most sensitive meetings in the women’s toilet at the back of the building,” Martinez recalled.

“We honestly thought it was an exaggerated step to hold our legal meetings in the women’s toilet, where he would even open the water tap to avoid anyone listening.

“It was interesting to find out that Mr Assange was, in fact, correct: the material before the court proves that UC Global knew the meetings were held inside the women’s toilet, as they proceeded to install an additional microphone [there].”

‘It goes to the heart of client-lawyer privilege’

While the case made headlines in Europe and the UK, there has been little to no discussion here about what it means for the Australian citizens and lawyers caught up in the alleged espionage operation.

The Law Council of Australia told the ABC the alleged surveillance operation was “deeply disturbing”.

“The allegations that Julian Assange’s conversations with his lawyer were being recorded are really serious,” the council’s president, Pauline Wright said.

“If you can’t have that full, frank discussion without fear that that’s being recorded and potentially released to the authorities … it erodes trust in the whole system.

“It goes to the heart of the client lawyer privilege.”

The file also reveals that Morales’ surveillance project — dubbed Operation Hotel — did not just observe Assange and his guests. Internal UC Global documents reveal staff also stole or illicitly photographed visitors’ belongings.

The file includes photos of passports, mobile phones, computers and other electronic devices owned by dozens of activists, journalists, lawyers and public figures that visited Assange.

The file also reveals a growing desire, on Morales’ part, for ubiquitous surveillance of Assange and his visitors.

Morales directed UC Global to scrutinise particular people visiting Assange, whom he refers to as “el huesped” (the guest).

“We must … create or improve the following profiles (personal data, relationship with the guest, phones, emails, number of visits, et cetera) of these regular visitors or collaborators of the guest,” he said.

He lists nine people, one of whom is Robinson.

“We must do everything to know their data … I want a person completely dedicated to this work, so if you have to hire someone for it, tell me,” Morales said.

“All this must be considered top secret.”

UC Global staff sometimes resisted their boss’s more intrusive requests. In December 2017, Morales allegedly directed an employee to steal the used nappy of a baby who sometimes accompanied his mother when she visited Assange.

The theft was necessary, Morales said, to DNA test faecal matter to establish if the child was Assange’s son.

“I decided to talk to the mother of the child,” the employee said in his statement to the court.

“When we were outside of the embassy, I told her that she must not take the child to the embassy anymore because they planned to steal her baby’s diapers to prove whether he was the son of Julian Assange.”

‘Amigos americanos’

The Spanish criminal complaint states the turbo-charged surveillance operation began after Morales travelled to Las Vegas in 2015 for a security fair. There, he signed a contract with Las Vegas Sands, a company owned by billionaire Trump donor Sheldon Adelson, according to the complaint.

Ostensibly, the contract was to provide security services to Adelson on his mega yacht, the Queen Miri.

But, when Morales returned to Spain, he told UC Global staff they were now “playing in first division”, according to two witness statements tendered in the case.

“[Morales] said he’d gone to the ‘dark side’, referring to himself as a casual collaborator with US authorities, and he said that as a result of this collaboration, ‘The Americans will get us contracts all over the world’,” one witness said in his statement.

Throughout the operation, the employees were repeatedly told by Morales that the surveillance operation was being directed by people he referred to as “amigos Americanos” (American friends).

Concerned about the increasingly illegal behaviour, the UC Global associate pressed Morales on the euphemistic references to “Americans”, demanding to know exactly who they were working for.

According to the statement, Morales replied: “la inteligencia de Estados Unidos” (United States intelligence).

“However, when I asked him who was the particular intelligence person he was meeting to provide them information, Mr Morales ended the conversation and told me that this topic was handled exclusively by him outside the company,” the UC Global associate told prosecutors.

The associate told the court he had repeated and heated discussions with Morales about the operation and who was behind it.

Once such conversation ended with Morales making the gesture of opening his shirt and saying: “I’m a mercenary!”

US action

At first, Morales collected the surveillance footage and delivered it by hand to unknown people in the US.

Later, he asked staff to create a file server and then a secret website to stream the embassy cameras.

A UC Global employee responsible for running the secret website told the Spanish court he noted at least one visitor to the site with an American IP address.

In a Spanish interview, Morales said neither he nor UC Global staff installed any listening devices in the embassy and suggested WikiLeaks had placed the microphones around the embassy.

When the ABC asked questions of the US embassy in Canberra, it referred questions to the US justice department, which did not respond by deadline.

The ABC also sent questions to the CIA and the US Office of the Director of National Intelligence. Neither responded by deadline.

Law, Donald Rumsfeld and Abu Ghraib

In the public interest.

https://supreme.findlaw.com/legal-commentary/rumsfeld-and-abu-ghraib.html

Rumsfeld and Abu Ghraib

By JOANNE MARINER

Monday, Apr. 25, 2005

A year ago, when the first photos appeared of U.S. soldiers beating and sexually humiliating detainees at Abu Ghraib prison in Iraq, President George W. Bush expressed horror and disgust. Recognizing the damage that the abuses had done to the image of the U.S. abroad, he promised, in an interview broadcast to the Arab world via the Pentagon-funded TV station Al-Hurra, that the crimes would not go unpunished.

In the coming months, he affirmed, “those mistakes will be investigated, and people will be brought to justice.”

And, indeed, investigations have been conducted, court martials have been held, and a few perpetrators have been convicted. One soldier, army reservist Charles Graner, Jr., was sentenced to a ten-year term of imprisonment, the heaviest penalty to date.

But these results represent partial justice, at best. Notably, with the exception of one major personally implicated in abuse, only low-ranking soldiers — privates and sergeants — have been held to account.

Thanks to the Abu Ghraib photos, Graner became the smiling face of American brutality. Yet there is no ignoring the fact that while he and other underlings have faced prosecution, those beyond the camera’s frame — those who made policies, gave orders, and condoned or ignored abuses — have not.

If this is justice, in President Bush’s view of things, it comes awfully close to scapegoating. For the evidence shows that the abuses at Abu Ghraib were not isolated and aberrant acts and that, in fact, the worst perpetrators may not have been those whose faces were captured on camera.

As Human Rights Watch described yesterday, in an important new report, the abuses at Abu Ghraib are part of a broader picture. They fit a pattern of brutality and mistreatment, evident at Guantanamo, in Afghanistan, and in dozens of U.S. detention facilities worldwide, that “did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside.”

Rumsfeld’s Possible Legal Responsibility

Human Rights Watch’s exhaustively-documented report names the top officials, both civilian and military, that it believes should be investigated for crimes against detainees. Its list starts with Secretary of Defense Donald Rumsfeld, and goes on to include George Tenet, the former CIA director; Lt. Gen. Ricardo Sanchez, U.S. military commander in Iraq from June 2003 to July 2004; and Gen. Geoffrey Miller, the U.S. military commander at Guantanamo.

While the report does not reach any conclusions as to the ultimate guilt or innocence of these officials, it argues that abundant evidence exists to justify their investigation. Under both U.S. and international law, it explains, civilian officials and military commanders may be held criminally liable if they order, induce, instigate, aid, or abet in the commission of a crime. In addition, under the doctrine of “command responsibility,” individuals who are in positions of civilian or military authority may be criminally liable for the crimes of those under their command.

Secretary Rumsfeld, the report asserts, may well be liable under both of these theories. He may have directly instigated abuses when, on December 2, 2002, he approved a list of inhumane interrogation techniques for use at Guantanamo.

These techniques — which include the use of hoods, stress positions, isolation, stripping, deprivation of light, removal of religious items, forced grooming, and dogs — violate not only the Geneva Conventions but also legal prohibitions on torture and other ill-treatment. The techniques later “migrated” to Iraq and Afghanistan, where they figured prominently in abuses against detainees there. In Iraq, moreover, Rumsfeld approved the hiding of detainees from the International Committee of the Red Cross, a practice likely to facilitate abuse.

Journalist Seymour Hersh has alleged, in addition, that Secretary Rumsfeld approved a secret program that encouraged the physical coercion and sexual humiliation of Iraqi prisoners.

Rumsfeld may also bear command responsibility for abuses against detainees. To be liable under the doctrine of command responsibility, a superior must have known, or have had reason to know, that a subordinate was committing a crime, and the superior must have failed to take reasonable steps to prevent the crime or to punish the perpetrator.

Rumsfeld clearly had the necessary knowledge. In Afghanistan, Iraq, and Guantanamo, Secretary Rumsfeld had access to military briefings, ICRC reports, human rights reports, and press accounts that would have put him on notice that U.S. troops were committing war crimes, including torture. Yet, despite receiving abundant warning of abuses, there is no evidence that Rumsfeld ever exerted his authority to protect prisoners from mistreatment.

The Need for an Independent Counsel

Yet while soldiers like Charles Graner, Jr. and Lynndie England are put on trial, Rumsfeld is not. Indeed, if there were any doubts as whether legal liability for Abu Ghraib abuses might eventually be traced up the chain of command, a high-level Army investigation whose findings were announced last Friday probably put them to rest.

Conducted by the Army Inspector General, a subordinate to Secretary Rumsfeld, the new investigation exonerated four of the five top Army officers in charge of detention policies and operations in Iraq. To Human Rights Watch, the American Civil Liberties Union, and other groups that have documented military abuses, it provided further proof of the need for an independent counsel to look into allegations of abuse.

For when President Bush told the world that the perpetrators of crimes at Abu Ghraib would be brought to justice, he didn’t not qualify his claim. He didn’t say that a handful of low-level perpetrators would be brought to justice.

And we shouldn’t, in retrospect, have to say it for him.


Joanne Mariner is an attorney with Human Rights Watch in New York. Her piece is based on a just-released Human Rights Watch report, “Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees,” written by Human Rights Watch special counsel Reed Brody.

Secret Trials in Australia

Day by day we are witnessing the abandonment of democracy.  This calls for retaining democracy as the public is unaware of how important democracy is and the protections it affords. Until you go to a foreign country and witness corruption directly you are unable to realise why principles are important. In Western countries corruption can easily be undetectable, particularly for those who have not educated to see through process that are biased.

Access to all records should be open to the public without a cost to ensure oversight and public scrutiny, this is another feature of the breakdown of checks and balances.  For example:  https://www.countycourt.vic.gov.au/case-information.

We must be vigilant and a light in the darkness.  A petition is below the article.

ERNST WILLHEIM. Secret Trials: The illegal bugging of the Timor Leste Cabinet and the extraordinary prosecution of Bernard Collaery and Witness K

ERNST WILLHEIM. Secret Trials: The illegal bugging of the Timor Leste Cabinet and the extraordinary prosecution of Bernard Collaery and Witness K

Australians reading about secret trials in foreign countries tend to content themselves in the belief that in Australia we have an open court system and an independent judiciary. After all, freedom of speech, the rule of law and an open and independent court system are basic bulwarks of our democracy. Aren’t they? This brief paper challenges that comfortable assumption.

The many Australians who seek to keep themselves informed by reading foreign news media on line may have been surprised to read foreign news media reports that on 11 December 2018 a prominent Australian public figure was convicted in a Victorian Court of sexual abuse offences. The foreign media reported the conviction but went on to report that, because of a suppression order made by the Victorian Court, the charges, the trial and the conviction could not be reported in Australia. Assuming the reports in the foreign media to be correct, many Australians will be properly concerned that an Australian criminal trial involving a prominent Australian public figure was apparently held in secret and apparently the outcome cannot be published in Australia. Surely this only happens in those foreign countries whose human rights records we proudly criticise?

Another criminal trial is apparently proceeding in secrecy in Canberra. This trial involves the prosecution of another prominent public figure, Canberra lawyer and former ACT Attorney-General Bernard Collaery and a former ASIS agent identified only as witness K. The details of the charges have not been made public. They are widely understood to relate to disclosure of illegal bugging of the Timor Leste Cabinet, bugging carried out by an Australian intelligence agency, ASIS, on behalf of the Australian Government, during the course of bilateral negotiations between Australia and Timor Leste over the sea bed boundary between the two countries and allocation of oil and gas revenues in the area often referred to as the ‘Timor gap’. It is understood that witness K, the ASIS operative apparently involved in the bugging operation, became concerned when the former Foreign Minister Alexander Downer and the former Departmental Secretary Ashton  Calvert both subsequently obtained appointments with Woodside, the company which was thought to benefit by the bugging operations. Witness K apparently complained to the Inspector-General of Intelligence and Security about the legality of the bugging operation and with official approval briefed Canberra lawyer Bernard Collaery.

Australia can hardly be proud of its conduct of the Timor Leste boundary negotiations. When the Timor Leste Government wanted to have the boundary dispute resolved by the International Court of Justice, the normal channel for the resolution of international boundary disputes, Australia, which otherwise boasts of its support for a rules based international order, withdrew maritime boundary issues from the jurisdiction of the Court. Timor Leste then took the dispute to the Permanent Court of Arbitration in the Hague, seeking a declaration that a previously negotiated treaty was invalid for fraud (on account of an Australia spying operation, explained below). (Under the Vienna Convention on the Law of Treaties fraud is a basis for invalidating a treaty). Australia unsuccessfully disputed the jurisdiction of that Tribunal. Apparently Australia was determined to do whatever it takes to thwart fair resolution of the boundary dispute. Whatever it takes included not only withdrawal from the jurisdiction of the International Court of Justice and disputing the jurisdiction of the Permanent Court of Arbitration. It included also ASIS bugging the Timor-Leste Cabinet Office in order to advantage the Australian negotiating team.  On the eve of the arbitral tribunal hearing in the Hague, Witness K’s passport was seized, effectively preventing him from giving evidence in the Hague. The Director-General of Intelligence at the time of the bugging operation was David Irvine. It is not known whether this operation was the result of a ministerial direction. It is not known whether the Inspector-General of Intelligence and Security was informed or ever conducted an investigation into the apparently illegal operation.

Australia’s neighbour, Timor Leste is a tiny country with hardly any resources other than access to the oil and gas revenues. Many Australians treasure fond memories of support from the people of East Timor (as it then was) for Australian forces in the Second World War. Australians were also concerned about the violence that followed the Indonesian takeover of East Timor. Foreign Minister Downer was criticized for apparently suppressing reports of the violence in Dilli. Later Australia lead a major UN peacekeeping operation after the people of East Timor voted for independence. We see Timor Leste as a small friendly neighbour deserving our support. Timor Leste is hardly a match for its giant resource rich Australian neighbour. Yet Australia apparently thought it right to spy on the Timor Leste cabinet to ascertain their negotiating position.  Whatever it takes also included cancelling the passport of witness K, the former ASIS operative, to prevent him giving evidence about the bugging operation to the Tribunal in the Hague.

Later, on 3 December 2013,  another Australian intelligence agency, ASIO, raided the Canberra office of the lawyer acting for Timor Leste in the boundary negotiations, Bernard Collaery. Collaery himself was in the Hague. According to a speech Collaery gave at the Australian National University on 11 June 2015, the ASIO officers took the mobile phone of the sole staff member present and refused to show her the search warrant.  They seized vast numbers of documents including Collaery’s legal advice to the Government of Timor Leste. The head of ASIO was David Irvine.

Can you believe it? Australia’s foreign  intelligence agency ASIS bugs the Cabinet office of the other side in an international negotiation. Then Australia seizes a passport to stop a witness giving evidence about the bugging operation.  And Australia uses its domestic intelligence agency ASIO to raid the offices of the lawyer for the other side in an important international negotiation. And so far as we know none of this has anything to do with national security. No-one in their wildest dreams would suggest that Timor Leste was about to invade Australia or was some kind of threat to Australia. So far as observers can ascertain, it seems it was all about securing commercial benefit for Woodside.

Of course this is not the first occasion when our intelligence agencies have run amok. The official histories of ASIO especially the first volume are full of stories of illegal break-ins and illegal bugging. Some will remember the infamous Sheraton Hotel incident when (in 1983) an ASIS operation went badly wrong. ASIS, at that time a secret organization whose existence was not publicly known, had seriously bungled an exercise, apparently a mock rescue of a hypothetical foreign defector from a room in the Sheraton Hotel.  The exercise was so secret, ASIS had not even informed hotel staff. ASIS operatives broke down the hotel door with sledge hammers. A hotel staff member who investigated complaints about noise was bundled into a lift and surrounded by ASIS operatives carrying pistols and machine guns. ASIS operatives escaped from the hotel through a kitchen into waiting cars but when stopped by police they refused to provide identification. At that time ASIS had been established administratively as an intelligence and counter terrorism organization but there was no statutory support. It fell to me as a senior public servant to prepare legal advice on the incident for the Prime Minister. I won’t go into the detail of the advice I prepared but it would have been obvious to any lawyer that the legal issues were  straightforward. ASIS (and ASIS staff) had no immunity from the ordinary law. Activities such as breaking down a hotel room door, carrying high powered weapons and breach of ordinary traffic laws could all constitute offences. What amused me was that as I dictated my advice those instructing me kept on insisting that I must not mention the name of the organization, ASIS, as its very existence was supposed to be secret. My protestations that details of the incident including identification of ASIS had been published on the front page of the National Times were of no avail.  Inappropriate secrecy about improper intelligence activities continues.

One may well ask why, some years after the illegal bugging operation, Government has chosen to proceed with prosecution of Collaery and witness K for disclosure. One might have thought that the Government would be so embarrassed by the activities of its intelligence agencies that it would prefer to have everything quietly forgotten. But the prosecution proceeds. And as we can see from the seizure of documents from lawyer Collaery’s legal office, the matter is hardly being pursued in accordance with the highest professional standards.

So how are the proceedings going? Many Canberrans have sought, unsuccessfully to follow the proceedings. My own interest arises in part out of my participation as the legal member of the Australian delegation in several rounds of Timor Gap boundary negotiations between Australia and Indonesia, conducted in both Canberra and Djakarta. I have a longstanding interest in the legal issues. I also have a long standing interest in  freedom of information and openness of court proceedings. I have written and lectured about them. Other Australians  interested in these proceedings include the strong supporters of Timor Leste. Friends of Timor Leste have demonstrated outside the ACT Magistrate’s Court, calling for the proceedings to be dropped.

When it became know that the prosecution of Collaery and Witness K was to be dealt with in the ACT Magistrate’s Court on 12 September 2018 I sought to find out where and when the matter was to be heard. The Magistrate’s Court publishes, on line, a list of all matters to be heard including the date. Well I thought it was a list of all matters.  But I was mistaken. The Collaery and Witness K matter did not appear on the Court’s list. On 11 September, I telephoned the Court, asked why the matter was not in the daily list, sought information about the time and location of the hearing and whether it would be open to the public. The response from the court clerk who took the call was that no information could be provided. Protestations that surely I could be provided with basic information such as the time and place of the hearing and whether it would be open to the public were of no avail. Frustrated, I wrote to the Court, repeating my request and drawing to attention that openness in judicial proceedings is an important constitutional principle well established in English and Australian law.

I also wrote to the ACT Attorney-General drawing his attention to the important constitutional principle that courts are open (I wrote to the Attorney-General because in the ACT court staff are departmental officers, ultimately under the control of the Attorney-General, the ACT has never adopted the reforms adopted at Commonwealth level, transferring administrative responsibility for court staff from the executive government to the relevant Chief Justice). Several months later I have not received a response from the Attorney-General. Eventually I did receive a response from the Court, the matter would be heard at 4.15pm on 12 September. Nevertheless one may reasonably ask why was this matter not included in the court’s daily list of matters and why did the court clerk initially reply that no information could be provided. Was the Court seeking to shield this matter from public scrutiny at a time when the Court had not made any relevant non disclosure orders?

I and many others attended. In fact the courtroom was full, with many standing in the aisles. As is common for directions hearings, the proceedings were brief. Counsel handed up draft orders to be made by consent and the presiding magistrate (the Chief Magistrate) signed them. The Chief Magistrate did not read out the orders. I do not know whether it is practice in the Magistrates Court to read out consent orders but having regard to the obvious public interest and the packed public galleries reading out the orders would have done much to assuage public concern over the perceived secrecy of the hearing arrangements.

So what next? The media reported the prosecution served its brief of evidence late on 21 December 2018-in fact after the customary Christmas shut down. I haven’t seen any further reports. The Magistrate’s Court has informed me the matter will next be before the Court for mention on 28 February. Apparently no orders have been made closing the court to the public.

Can the hearing proceed in secret? The prosecution has a substantial hurdle if that is its preferred course. The principle that judicial proceedings are open to the public is well established. There are numerous House of Lords and High Court decisions  to that effect. Some will remember the endeavours of that great reforming Attorney-General Lionel Murphy, to provide for family law disputes to be determined in a dignified, quiet, manner away from public scrutiny. Murphy’s objective was to stop the daily lurid publication in the tabloid press of the previous day’s divorce proceedings. Notwithstanding the obvious social policy objectives in support of family matters being resolved in private, the High Court ruled that the provision was unconstitutional. ‘The fact that courts of law are held openly and not in secret is an essential aspect of their character’.

Openness of judicial proceedings is not some abstract legal principle. It is fundamental to the rule of law. It is the hallmark of our judicial system. Open hearings are fundamental to accountability. This is especially so in proceedings where the government or a government agency is a party. It is especially so where wrongdoing on the part of government or a government agency may be in issue. Litigation, civil and criminal, between the state and its citizens, must be open to public scrutiny. The rule of law, the national interest and public confidence in our judicial system require no less. As one eminent High Court Justice has written, the maintenance of public confidence in the independence and impartiality of the judiciary is diminished if the judiciary is involved in secret procedures. Only last week the Chief Justice of New South wales in his address to the Opening of the Law Term Dinner said that to facilitate scrutiny courts must operate as transparently as possible. In that way they become accountable to the public. Article 14 of the International Covenant on Civil and Political Rights, to which Australia is a party, establishes an entitlement to a ‘fair and public hearing by an independent and impartial tribunal established by law’. By exposing the judicial process to public scrutiny, courts are publicly accountable. Openness is a prerequisite for public confidence in the integrity of the judicial system.

So how could the proceedings be in secret? Commonwealth legislation enables the Attorney-General to issue a certificate to protect national security (defined to include defence, security and international relations interest). The court may then make orders to in effect close the court and restrict access to evidence.  The court is not bound by the Attorney-General’s certificate. It must give weight to a number of factors including whether an order would have a substantial adverse effect on the defendant’s right to a fair hearing. Curiously, the public interest in open justice is not identified as one of the criteria. Critically, the court must give greatest weight to the risk of prejudice to national security. It is not known whether the Attorney-General has issued a certificate (although those who have followed the debate over the Attorney-General’s recent action to prevent disclosure of n Auditor-General’s report have little confidence that the Attorney-General will agree to the proceedings going ahead in public) or whether the court has made any orders. Could an Attorney-General’s certificate withstand challenge? Presumably defence interests are not relevant.  The bugging operation itself has undoubtedly damaged relations with Timor Leste. But the bugging operation is already in the public domain. It has been the subject of proceedings in an international tribunal.

Disclosure of the bugging operation in these proceedings could scarcely justify an Attorney-General’s certificate. What may not be in the public domain and what may be prejudicial to security interests is how the bugging operation was carried out. Who did it and what techniques did they use. That suggests any certificate and any orders by the Court should be narrowly confined. The legislation makes further provisions relating to legal representatives. Legal representatives who have not been security cleared may not have access to security information in the prosecution case. I do not know whether members of the defence legal team have sought or obtained security clearances. I would however be surprised if counsel and solicitors would subject themselves to such scrutiny in relation to this matter. If Collaery and Witness K were to challenge any Attorney-General’s certificate and any consequential orders to close the court the outcome could be interesting.

And what about the validity of the prosecution itself? The defence may be able to mount a challenge that disclosure of the bugging operation is protected by the constitutional principle of freedom of political communication. The alleged disclosure apparently relates to an unlawful bugging operation undertaken by an Australian authority to advance the commercial interests of Woodside. Australian holders of public office at the time of the operation  subsequently accepted appointments with Woodside. Legislation that would purport to prohibit disclosure in the public interest of nefarious activities on the part of Australian authorities arguably conducted to benefit a large business corporation may impermissibly burden the freedom of political communication and be unconstitutional. Applying the tests established by the High Court for constitutional validity, the first question is whether the legislation burdens political communication. The answer is yes. One must then consider whether the burden on the implied freedom is justified, whether it is compatible with our system of responsible government.

There may well be circumstances where secrecy concerning the activities of intelligence agencies is in the national interest. But secrecy cannot be absolute. Secrecy must not be allowed to protect wrongdoing There is obviously enormous public interest in apparently improper activities undertaken by Australian authorities to advance commercial interests.  Surely citizens should not be at risk of criminal prosecution for exposing improper conduct on the part of security agencies. In one leading case, Lange, the High Court unanimously declared ‘that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’.

Any constitutional challenge to this prosecution would need to be mounted in the High Court. Given the attitude of the Commonwealth so far, it seems unlikely that the Commonwealth would provide any legal aid. The defence may not have the financial resources to pursue a High Court challenge. But personal liberty is at stake. The offence carries a substantial jail term.  Every available defence should be pursued.

Will Australians be able to find out when and where these proceedings will be heard? How much of these proceedings, if any will be open to the public? Will be we able to hear evidence of illegal bugging operations? Will we hear evidence of the circumstances in which the bugging was disclosed and why? Will the case for a closed court be argued in public or in secret? Will the very basis of the prosecution be challenged? Interesting days lie ahead. Public confidence in our judicial system is at stake.

Ernst Willheim is a Visiting Fellow in the College of Law at the Australian National University. Before his retirement he was a senior officer in the Commonwealth Attorney-General’s Department where he headed several policy divisions, established  the Office of General Counsel and was its first head, lead numerous Australian delegations to international conferences and appeared as counsel for the Commonwealth in the High Court and other appellate courts. He has published widely on international, constitutional, refugee and indigenous law matters.

 
 

Whistleblowers shine a light into the darkest corners of corruption, but the Government is doing all it can to stop them. Witness K is one such whistleblower. susan, will you stand with him and sign this petition?

 
 
 
 
 
Drop the Charges Against Bernard Collaery and Witness K
 
 

Gareth Smith started this petition to PM Morrison and it now has 1,230 signatures

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In 1999 I volunteered to go to East Timor as a District Electoral Officer because the Timorese were being given the chance of voting for or against independence.  The Timorese had suffered  400 years of brutal Portuguese occupation followed by the Japanese in WW II who killed thousands. The Timorese helped Australian commandos in WW II (Sparrow Force) and were rewarded with an Australian “thank you” stone outside Dili, which says Australia will never forget you.  Despite this, Australia did the dirty on them in 1975 by siding with the Indonesian invaders who were responsible for 300,000 deaths, about one third of the population.

The Australian government continues to slug the Timorese by bugging the cabinet room of the East Timor parliament so that it could gain an advantage in negotiations over the sharing of oil and gas deposits in the Timor Sea.  The ASIS spy who did the bugging had a crisis of conscience over Australia’s theft from the one of the poorest nations and disclosed what he had done.  He and his lawyer, Bernard Collaery now face 6 years jail.  Ex President Xanana Gusmao has appealed to the Australian government that the charges against these two men be dropped.  If anyone should be in the dock it is Australia for trying to swindle the Timorese out of their legitimate rights.

“Australians reading about secret trials in foreign countries tend to content themselves in the belief that in Australia we have an open court system and an independent judiciary. After all, freedom of speech, the rule of law and an open and independent court system are basic bulwarks of our democracy…….(however, in the matter of Witness K and Bernard Collaery) public confidence in our judicial system is at stake.”  Ernst Willheim, (https://johnmenadue.com/ernst-willheim-secret-trials-the-extraordinary-prosecution-of-bernard-collaery-and-witness-k/

More information at: https://www.abc.net.au/news/2018-06-28/witness-k-and-bernard-collaery-charged-intelligence-act-breach/9919268

 
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