Intelligence apologists fast running out of excuses


opinion/analysis by Renai LeMay
27 November 2013
Image credit: CeBIT Australia, Creative Commons

Politicians from Australia’s major parties need to stop issuing ludicrous blanket pardons for the intelligence community’s ongoing misdemeanours and start applying a basic modicum of transparency and accountability to this important national security function.

If you were keeping an eye on the Australian Senate yesterday afternoon, you would have witnessed a nice little farce of the usual kind play out on the floor of the chamber.

Liberal Senator David Fawcett arose from his chair to gravely invite the current sitting Attorney-General George Brandis, also of the Liberal Party, to update the Senate on what most of the Australian population no doubt considered to be an extremely disturbing story to break on the Australian website of The Guardian earlier in the day.

In the classic style which UK readers of the The Guardian have long been accustomed to, and which Australian readers are only now beginning to realise is still possible in this country, the publication had laid out devastating blow after devastating blow aimed to the nation’s premier electronic surveillance agency, the Australian Signals Directorate.

The agency, according to The Guardian, had offered to share information collected about ordinary Australian citizens with its major intelligence partners. Medical, legal, religious data — nothing was out of bounds — and it was all proven by yet more documents leaked by famed NSA whistleblower Edward Snowden.

Sensationalist claims — and what’s more, representing possible illegal activity. As human rights-focused Queen’s Counsel Geoffrey Robertson simultaneously pointed out in a parallel article to The Guardian’s initial salvo, the claims would see the besieged ASD operating outside its legal mandate. The agency is simply not allowed to collect data on Australians or hand it over to foreign partners.

And yet, despite all of these concerns, and despite the fact that he would not have had time to discuss them fully with the ASD, much less verify their accuracy, Brandis’ attitude towards the story was worse than flippant.

“I am aware of reports published this morning by The Guardian Australia which make certain claims about the alleged activities of Australia’s intelligence organisations,” Brandis told the Senate. “Those claims are made on the basis of material placed in the public domain by the American traitor Edward Snowden.”

“I note that the document of which the report is based is unverified. I also note that the unverified document is described as a draft document, which contrary to all reports, does not report or record any activity by any Australian intelligence agency.”

And then came the time-worn and trusted line: “It is, as the honourable Senator knows, a long standing practice of successive Australian governments not to comment on intelligence matters.”

Fawcett proceeded to give Brandis the chance to wax at length about the “strong framework of legislation, parliamentary, ministerial and executive oversight” which ensured agencies like ASD didn’t step over the line, as well as the efficacy of their operations in disrupting terrorist attacks in Australia and wider South East Asia.

“The Government is confident,” Brandis glibly added, “that the Australian intelligence agencies act in accordance with the law and always to the service of the national interest.” Well. The Attorney-General might well be confident. It’s not as though he made any effort to challenge his previously formed assumptions.

Brandis wasn’t the only politician to brush off The Guardian’s story yesterday. Prime Minister Tony Abbott did much the same later that afternoon, declaring he had seen no evidence Australia’s spy agencies had acted outside the law and that current safeguards on their operations were “stringent”. One assumes Abbott also neglected to actually find out if any such evidence existed.

And even Labor appeared keen to hose down the story, with MP Joel Fitzgibbon, who was Defence Minister in 2008, the period the Snowden documents refer to, stating that he was surprised by the story and unaware of the ASD’s data sharing proposal at the time.

The glib defence of the ASD continued apace throughout the afternoon and evening, with the nation’s intelligence agencies overtly pleading their wounded innocence through a series of media spokespeople, ranging from the Financial Review’s Chris Joye, who flatly accused The Guardian of journalistic incompetence, to strategic policy analyst Carl Ungerer, who employed a sense of wounded innocence to rubbish the mere implication that the ASD could ever, in any way, do anything wrong.

To say Australians have been on this particular merry go round before is to make a collossal understatement.

Virtually every time our national intelligence agencies put any sort of foot wrong, politicians from both major sides of politics, as well as “security analysts” of all stripes and conservative commentators such as Joye, The Australian’s Greg Sheridan and the infamous Andrew Bolt fall over themselves defending what, on the face of it, would appear to be the indefensible.

It happened just several weeks ago when another Snowden leak revealed the ASD had been spying on the personal communications of Indonesian President Susilo Bambang Yudhoyono. Abbott and other senior Coalition figures were at pains to defend the ASD’s spying efforts on one of Australia’s closest geographical neighbours, despite the fact that it subsequently created a major diplomatic incident with wider ramifications for Australia’s relationship with South-East Asia.

At the time, the Opposition critised Abbott’s handling of the issue but not the ASD’s spying efforts, with everyone concerned constantly repeating the well-worn line that they adhered to the “long-standing practice of not commenting on intelligence matters”.

And if you go back a little to Labor’s administration, you’ll find the exact same phenomenon. Different political administration, but the same issue and the same response.

In August this year, for example, then-Labor Attorney-General Mark Dreyfus (who has so far remained largely silent on The Guardian’s revelations, despite an invitation to comment yesterday), made the extraordinary public statement that Snowden and accused WikiLeaks collaborator Bradley Manning were not technically “whistleblowers”, claiming that the information they had released publicly related to no wrongdoing by government agencies.

The US Government has charged Snowden with espionage and theft of government property, but much of the international community, and even respected US politicians such as former President Jimmy Carter, have applauded his actions as both patriotic and also serving humanity. In addition, a number of legal challenges have already been mounted to the legitimacy of the spying programs in the US.

For his part, Manning was recently convicted of a number of crimes relating to his work with WikiLeaks to release a massive amount of information from the US Government military, including US diplomatic cables and military reports that exposed many controversial military operations, including video of uS military officers wrongfully firing on journalists in Iraq.

Manning’s release of the documents has also been controversial, but has been praised along similar lines as has Snowden’s actions, and the release of the documents has been credited with helping to stimulate moves towards democracy and increased transparency in the Middle East.

Australia’s own Federal Parliament recently pushed through new uniform national whistleblower laws, which would protect public servants when they released information on wrongdoing in government.

At the time, Dreyfus also acknowledged the importance of Australians’ privacy, but said at a conceptual level, the concepts of security and privacy were not contradictory.

“For this fundamental reason, everything Australia does to combat terrorism, to combat violent extremism, to counter espionage and to promote and uphold a safe and peaceful country is carried out in accordance with the rule of law,” the Attorney-General said. “Everything our intelligence and law enforcement agencies do, is done to ensure that Australia remains a free, open and democratic society. The legal and oversight arrangements of all Australian Government agencies should reassure all Australians that the privacy of their communications is appropriately protected.”

Sounds remarkably what Brandis said this week regarding The Guardian’s revelations; even down to the wording. Perhaps the same statement was supplied by the Attorney-General’s Department to both Attorneys-General? Recycling is the vogue at times in Canberra, after all.

There are two fundamental problems with this bi-partisan approach to dealing with Australia’s shadowy intelligence agencies. The first is something that all politicians should be interested in: It’s bad politics.

Politicians like to talk about the left/right divide between the various parties. It’s widely assumed that Labor, with its roots in socialism and even communism, sits on the left side of the political fence, and that the Coalition, with its roots in liberalism and capitalism, sits on the right. But the truth is that both major sides of Australian politics actually sit mainly in the centre right, or at best, the centre.

It’s from this position that we get this common approach to national security, and hence surveillance. Neither side has sufficient interest in mediating issues such as privacy to allow them to influence their approach to the intelligence community; the Coalition because it has abandoned much of its liberalist past, and Labor because it’s not far enough left and has lost a large chunk of its left-leaning support base to the Greens. Both are trying to occupy the middle and look tough on national security.

The only difficulty is that both major sides of politics have overlooked the attitudes of the broader Australian population towards privacy.

Polls of Australians have consistently shown that Australians are concerned about the security of their personal information. It’s an issue which crosses normal political divides. You can see it in the strong pre-election interest in Wikileaks founder Julian Assange’s candidacy for the Senate, in polls taken by the Office of the Australian Information Commissioner, in the ongoing demand for mandatory data breach notifications (PDF) and the overwhelming rejection of proposed data retention legislation earlier this year. Even half of Americans believe Snowden is more “hero” than “traitor”.

Greens Senator Scott Ludlam asked a series of questions of Attorney-General Brandis in the Senate today on the topic of surveillance and Australia’s intelligence agencies. “I know this is a topic of great interest to Senator Ludlam,” Brandis began his answer. But Brandis is wrong: These are also issues of great interest to the broader Australian population. The Greens get that; but there is little evidence that either Labor or the Coalition does.

In the UK and US, inquiries have been set up into these issues, with politicians successfully reading the mood of the electorate and trying to stay ahead of its growing concern. In Australia, our politicians have missed popular opinion on the issue.

This approach, in the kind of broadly right-wing media environment which Australia has become accustomed to, where most angles are News Ltd angles, has worked well in the past. But The Guardian is not the kind of newspaper which lets go of these issues once it has bitten its teeth into them; and many Australians are finding that attitude refreshing and to their liking. We can expect more Snowden revelations pertinent to Australia to keep arriving; and it will become increasingly difficult for the nation’s major parties to ignore the issue.

As a side note, this is why senior Coalition figures such as Abbott and Communications Minister Malcolm Turnbull are attacking The Guardian for breaking Snowden’s revelations and the ABC for re-printing them. Because this isn’t the media environment they’re used to — and they want the old, conservative world back.

Meanwhile, the Greens are making political hay from the left on the issue while the sun shines; as the only party of any standing interested in the issue at all.

With regard to the allegations this week, it would have cost Brandis nothing to tell the Australian public that he had confidence in ASD but would look into the allegations made by The Guardian to ensure no impropriety. This would have been enough to satiate the public’s attitude for accountability; and Brandis could have looked like a competent Minister while privately reassuring ASD he wasn’t on a witch-hunt. The fact he didn’t even take this moderate step reveals the Attorney-General does not understand the depth of public concern on the issue.

The other problem with the bi-partisan approach of ignoring surveillance overreach in Australia is that it is just bad policy.

It’s a truism that all government organisations should be accountable. But, due to the nature of their work, intelligence organisations are generally less accountable than most. Organisations like the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Australian Signals Directorate are exempt from the Freedom of Information Act. They are not accountable to Parliament in many ways, because they will not comment publicly on what they see as operational matters.

What little oversight of their operations there is — in the form of watchdogs such as the Inspector General of Intelligence and Security — appears to be ineffective. IGIS, for example, appears to be woefully resourced and appears to conduct very few investigations into activities on the part of the intelligence agencies. Your writer has called and emailed the Inspector General’s office several times over the past 24 hours to ask if it will investigate The Guardian’s allegations regarding ASD. But IGIS will barely acknowledge it has received our calls.

In this context, one of the only real oversight mechanisms the intelligence agencies have is their portfolio Minister — the Attorney-General. This isn’t particularly reassuring, when you consider that both of the recent Attorneys-General — Brandis and Dreyfus — are very much singing from the same songbook when it comes to their lack of concern about surveillance overreach and the actions of whistleblowers.

History shows that government organisations will overreach their remit when left alone without accountability and transparency measures. No Government wants this; but by abdicating oversight responsibilities the way our Attorneys-General are sets up the conditions for this to happen.

Both major sides of politics needs to realise that it is part of their fundamental role to keep these agencies accountable; that they cannot blithely wave through any transgressions because of a universal national security get out of jail free card. Intelligence agencies have special needs; but they also need accountability mechanisms. Right now, it appears as though Edward Snowden and The Guardian are two of the only accountability mechanisms aimed at the Australian Signals Directorate which are still functioning.

Politicians have a duty to their party and to national security workers and other law enforcement personnel. But they also have a duty to the nation; they need to ensure that those Australians who uphold the law do not act outside it. Right now, it would appear that that responsibility is being overlooked. But the Australian public will not stand still for that approach forever.

The reason all of this is taking place, of course, is the fact that technology has changed. It has never been so easy for Australian intelligence agencies to collect information. Tapping phones, tapping databases, tapping Internet connections, tapping surveillance cameras. It can all be done remotely, and it is being done. Over past decades, surveillance overreach meant employing more men in black vans. Now it just means employing more computer science graduates to sit in clandestine office buildings in downtown Canberra. But oversight mechanisms have not kept up.

Bad press, bad politics, bad policy. These things are not a recipe for success. One can only hope that something cracks in the bi-partisan approach to intelligence gathering issues currently displayed by Labor and the Coalition. Because if it doesn’t, there is absolutely no doubt that further scandals in this area will be unearthed and the circus will continue until someone starts taking responsibility. It doesn’t sound like a lot to ask. But then, this is Australian politics; generally a cut below the global standard.


  1. Great article Renai.

    Unfortunately, I don’t see a lot happening on this front while Australians continue to vote based on the “Two Party” system. Maybe if there was a huge shake-up in one of the parties, that might trigger some change, but I don’t see that as too likely either…

    • I agree and I’m sure a majority of others do also. We need more than two major parties before we will see any signs of true democracy. Both parties are paid instruments that do not work towards the good of the nation.

      Right now we need limits to the political influence of lobbying groups, think tanks, NGO’s. We also need heavier penalties for corruption in Public office & Public companies. We need media diversity and better avenues of reporting & protection for both investigative journalism and inside whistle-blowers.

      • It’s hard to disagree with all of this. I don’t quite know what the answer is, however — I think it requires ongoing vigilance and ‘push’ from quite a few interested parties. It would be interesting to look at international examples.

    • Cheers, much appreciated! Yes, I wholly agree; this situation is likely to remain the same until more major parties become viable. Although it is quite right-wing in nature, I have, however, been encouraged by the success of the Palmer United Party at the last election, which shows that even tiny parties can come from nowhere and win seats, if they are sufficiently organised and resourced.

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