I contacted Morton Halperin, an old acquaintance who had served as a national security adviser to presidents Johnson, Nixon and Clinton, and his evidence refuted the government claim: the protocol required each government to resist disclosure of the other’s secrets, but if this was required by a court order, then the order should be complied with. The case eventually settled, but enough of the facts had emerged to illustrate the moral questions that arise for the security services of countries – and Australia is one – which of necessity have to work in collaboration with those of a US president who has promised to bring back water-boarding, and who claims that torture works. It doesn’t. The CIA discovered its primary clue to the hideout of bin Laden not by torturing a suspect, but after giving him a cup of tea.
Australia has a few motes in its own eye when it comes to spying. I have advised the East Timor government and know something of ASIO’s devious behaviour, when Alexander Downer was foreign minister, in bugging its lawyers during negotiations over the rights to the rich oil and gas fields in the seabed between the two countries. We cheated, in a quite disgraceful way, in order to do down a poor and powerless neighbour whose people had helped us during World War II and whose oppression, after invasion by Indonesia, we for a long time supported. The bugging had consequences when it was exposed at secret hearings in The Hague, although ministers and their spy chiefs never think of this when they approve illegitimate operations – they always think that they will not be caught. The emergence of whistleblowers like Julian Assange and Edward Snowden should make them think again.
I came to advise the then editor of the Guardian, Alan Rusbridger, when the paper first obtained documents from Edward Snowden, which seemed to show that Australian intelligence had been bugging the mobile phone of the wife of the Indonesian president. Australian lawyers doubted these papers could be published. I took a look at the documents, which were on DSD – Defence Signals Directorate – letterhead, and every page was stamped with a large coloured logo:
REVEAL THEIR SECRETS
PROTECT OUR OWN
‘Come on, Alan, this looks fake. This is Australian intelligence – they are intelligent Australians. I doubt very much whether they stamp such a corny motto on every page of their notepaper.’ They do. Caesar’s wife, or at least the wife of the president of Indonesia, should have been above suspicion, but spooks, or at least their political masters, love to lap up the kind of tittle-tattle that comes from mobile-phone intercepts, no matter how serious the breach of privacy.
Our allies were at it, too – Snowden revealed how the CIA had hacked into the cellphones of thirty-five heads of state, including Angela Merkel, who was not best pleased to find that the US had discovered, through tracking her metadata, her takeaway orders for sausage and sauerkraut. Obama had the decency to apologise and promise not to do it again. In the Indonesian case, the intercept on the president’s wife occurred while Kevin Rudd was prime minister. Unlike Obama, however, his successor Tony Abbott did not apologise to the Indonesians – which was a pity, otherwise he might have had more moral and diplomatic clout when it came to trying to stop the executions of drug mules Andrew Chan and Myuran Sukumaran in 2015.
We have come a long way from tapping telephones. Spooks can find out all they need to know by analysing our metadata, our electronic habits. And one problem with the collection of metadata is that there are no limits to who gets targeted. It’s not confined, as it should be, to terrorists, suspects and those believed to be engaged in serious crime. Take General Petraeus – he was America’s most successful soldier, about to be appointed to head the CIA. But then – shock horror! – his metadata revealed he had had a brief affair with a woman who was writing his biography. Infidelity meant, to puritanical Americans, ‘Petraeus will betray us!’. It was the premature end of a fine career.
So if you become a target of the spooks, whoever you are, you have no remedy and no defence. The problem – and it is a problem, throughout the West – is quis custodiet: who guards the guardians? No country, no cohort of countries, has yet come up with a satisfactory system of oversight. Such accountability as we have, in an unscientific, rough and ready way, comes from whistleblowers. They are dissidents, often, and troublemakers, but as the great historian A. J. P. Taylor pointed out: ‘All change in history, all advance, comes from the non-conformists. If there had been no troublemakers, no dissenters, we should still be living in caves.’
Which brings me to Julian Assange. Since June 2012, he has been holed up in the Ecuadorian embassy in London, with a converted toilet for a bedroom. The building has been guarded by British bobbies, waiting to catch him if he leans too far out of the window. The embassy, by a miracle of international law, is Ecuadorian territory, and police are prohibited from entry. Scotland Yard picked up a rumour that on dark nights Assange would climb onto the roof to smoke Cuban cigars, and they prepared a snatch squad – only to be told by their lawyers that Ecuadorian sovereignty extended to the sky. I introduced him to Dick Smith, who would have considered picking him up in a helicopter had he been able to get him back to Australia before running out of petrol.
Julian Assange is a talented hacker who turned into a kind of Johnny Appleseed of information. He invented what might be termed an electronic dead-letter box, to which sources could send secret documents, confident they would not be identified. WikiLeaks began by exposing corruption in Kenya and tax evasion in the Caymans; Assange was pretty popular at this point. But then he began to transmit the material downloaded by Bradley (now Chelsea) Manning, a US soldier turned intelligence analyst.
Remember ‘Collateral Murder’ – the recording taken from a US helicopter flying over Baghdad of their aerial shooting of two Reuters journalists and several children? Then in 2010 came Cablegate – a quarter of a million diplomatic cables dumped into the public domain by WikiLeaks. That was when America went ballistic: Joe Biden called Assange a high-tech terrorist; Mike Huckabee suggested on Fox News that whoever leaked the documents should be executed; shock jock Rush Limbaugh yearned for Assange ‘to die of lead poisoning – from a bullet in the brain’; Sarah Palin, shooting from the lip, said he should be hunted like bin Laden (which would at least have given him nine more years of freedom).
At this point, scandal enveloped him: a warrant was issued for his arrest by a Swedish deputy prosecutor on the oxymoronic charge of ‘minor rape’ – essentially, having consensual sex without using an expected condom, although it was reported throughout the world as if he were being charged with sexual violence.5 He called to ask my help – a fellow Australian up to his neck in trouble, and it seemed only compatriotic to offer him a bed for the night, and to hear his complaints – mostly justified – about the Swedish prosecution. He did not need a bed, but took up residence in the kitchen, curled over his computer like a question mark. The only way I could get him upstairs to bed, at 5 am, was to point to the glass ceiling, through which he could be spotted from a police helicopter. He was paranoid, of course, but given the threats emanating from America, he had good reason. In due course, he surrendered to a European arrest warrant, and was confined in prison.
It was Christmas, and at some inconvenience I returned early from the annual Sydney holiday to obtain bail for Assange. I had quite a few death threats for representing him, although because they came by email I did not take much notice.
American hostility to Assange is overblown and unthinking. The claim that he had blood on his hands, that he had put sources in peril, was a lie, as the US government had to admit when Manning came to trial. None of the cables released by WikiLeaks was ‘top secret’ – the classification that has to be used if disclosure would put lives at risk. They were available to three million Americans, including a twenty-two-year-old private conflicted about his sexual identity, who was condemned to serve thirty-five years in an army supermax prison for releasing them to WikiLeaks. (Barack Obama, in a striking display of presidential clemency as he left office, commuted the sentence and Chelsea Manning – as s
he was by then – was released in 2017.)
Seven years after Assange’s arrest, the US Justice Department is still out to put him in prison. What do they intend to charge him with? We know now, because a court has disclosed a warrant that the FBI obtained against Google to search the private emails of Assange and his assistants; they allege that he violated five sections of the US Espionage Act 1917. The sentences for doing so add up to forty-five years. The grand jury proceedings in Virginia opened in 2011, and as of 2017 it is still sitting. A ‘grand jury’ in America is no more than a group of citizens called together by a prosecutor, who sit in secret without a judge or a defence counsel and do whatever the prosecutor suggests – hence the aphorism ‘A grand jury would indict a ham sandwich’. Or not, if it’s the case of a policeman who shoots a black youth in Ferguson, and the prosecution does not want him indicted. It’s a rotten system, long abolished in Britain, and it is Assange’s reason for remaining in the Ecuadorian embassy, even after the Swedish charges against him were dropped in 2017.
His position has this absurdity: if he had gone to Sweden six years ago to face those charges, he would most probably have been acquitted. That is not only my view and that of other QCs – feminist QCs – who have seen the evidence, but of the very experienced senior prosecutor of Stockholm, who threw out the charge. It was reinstated, by some political jiggery-pokery, and given to a ‘gender prosecutor’ (a prosecutor with an agenda) who disgracefully kept it alive until 2017, when it was finally dropped. Even had he been convicted, I’m told by Swedish criminal lawyers that Assange would probably not be sent to prison for this class of offence. But Sweden has a bad record for handing over suspects to the CIA – ‘rendering’ them to the US – and Assange did not want to risk up to forty-five years in an American supermax. So even after the charges were dropped he remains in the embassy as protection against an extradition request from the US (if he were to emerge, he would be arrested in Britain for breaking bail, and the US authorities – who in 2017 said his punishment was ‘a priority’ – would pounce). Can you blame him? Actually, he’s a bit like that swagman in ‘Waltzing Matilda’, determined not to be taken alive. Even if it means living in a converted toilet in ‘Ecuador’.
WikiLeaks continues to make waves, although Assange has copped a lot of flak from some supporters who think that his exposure of skulduggery in the Democratic Party (manipulating the preselection to favour Hillary Clinton over Bernie Sanders) helped Donald Trump win the US election in 2016. The CIA says that those emails originated from Russian hackers, although I suppose that would not breach Assange’s principle of publishing anything of public interest that came into his hands. I hope that he would be principled enough to release any secret information he received about the corruption of Putin and his cronies, were the CIA sensible enough to send him (anonymously, of course) some documents proving it.
I don’t share Assange’s politics, but I agree with A. J. P. Taylor in that I think he’s one of those gifted and mischievous eccentrics, whom society should learn to treat with a degree of toleration and even appreciation. I detected that he was somewhere on the autism spectrum before he accepted that he probably was, and my experience of my son’s condition may also explain why I have stuck with him while so many of his supporters have fallen away. He is in many respects his own worst enemy and gives little thought to anything other than his personal mission, but his detractors overlook his genius and his courage. He is not a liberal’s ideal of a ‘nice’ person – his sarcasm can be nasty and he turns against friends; snobbish critics typically deplore his table manners (they accuse him of the English crime of eating with his fingers) and always remind readers – as if it makes him an outsider – that he is Australian. Without money or freedom he is in no position to refute calumnies. When not raging against enemies real and imaginary (but never including himself), he is charming and funny, and auto-didactically erudite.
In 2017, the tergiversating Trump, who in 2016 proclaimed ‘I love WikiLeaks’, allowed his CIA director Mike Pompeo to describe WikiLeaks as a ‘hostile foreign intelligence service’ and made Assange’s arrest under the Espionage Act ‘a priority’. Assange is an Australian publisher, whose actions all took place outside America – yet he’s accused of disloyalty to America. He’s not an American and owes it no allegiance. I’m not alone in that view – when The Simpsons’ creators made the show’s five-hundredth episode, they honoured not Mandela or Madonna, but our Julian. Kathy was asked to write some dialogue, so when Assange cooks a barbecue for Homer, and Marge asks for the recipe for his delicious marinade, he replies, ‘I’m sorry, but I never reveal my sauces.’
After all my years challenging state claims to national security, in courts and books and lecture rooms, I can offer only a few rather simple observations on the quis custodiet question.
Surveillance and other forms of intelligence gathering are necessary to combat terrorism and serious crime (including international paedophile networks, tax evasion, corporate corruption and human trafficking). There can be no absolute right to privacy, and secret surveillance, by its very nature, must for a certain time remain secret.
The historical record of Western intelligence services, as far as we know it, demonstrates a capacity, sometimes a tendency, to yield to the temptation to abuse this power if it is wielded without independent oversight. Oversight of the security service by politicians, whether ministers or committees, is useless: ministers are rubber stamps and do what their Sir Humphreys recommend, while parliamentary and congressional committees are lied to and kept in the dark. Oversight must be independent of the government and of the security services themselves.
The first step in achieving this is to require all surveillance warrants to be issued or approved by a judge. But it’s what goes on in implementing the warrant that will remain beyond judicial supervision, and judges in any event tend to be partial to the intelligence services. (The Foreign Intelligence Surveillance Court in the US, which issues warrants for FBI and National Security Agency surveillance, has in thirty-eight years turned down only twelve.)
Where else to find the guardians who will guard the guardians? Never, I suspect, in the security services themselves, or in those who have been inculcated into believing that national security must always take precedence over civil liberties. We should be searching for patriotic sceptics, people like Dick Smith, Gillian Triggs, Julian Burnside and Alan Rusbridger, to place on oversight boards and commissions – citizens whose patriotism and decency is beyond question, who have an understanding of civil liberty and no predisposition to believe that everything the intelligence services say is true. I could even describe myself as a patriotic sceptic, in the sense that I am loyal to both countries of which I am a citizen – except, of course, when it comes to cricket.
Western intelligence agencies should have a published code of conduct, with disciplinary sanctions attached for its breach, and an independent tribunal to impose them. Lawyers, doctors and accountants have such a code – even real estate agents, for heaven’s sake, have their ethical standards. For spooks, however, the only rule is that the end justifies the means. I was rather taken with a memorandum supplied by Edward Snowden of a secret meeting between UK–USA partners at GCHQ in Cheltenham a few years ago. The Americans suggested a dubious expedient be adopted and the Australians were enthusiastic. ‘Oh no,’ said the Canadians, ‘we can’t do that. We have a charter of rights.’
13
Hard Cases
‘Hard cases make bad law’ is a saying generally related to decisions which err on the side of sympathy, or which seem to bend legal doctrines to exonerate people who have not acted unreasonably. It is not heard much these days in Britain, where a Human Rights Act permits judges to administer the law with due regard to humanity and civil liberty. Before that reform in 1998, I did undertake a number of cases that were ‘hard’ in other ways. The first marked the only occasion in my career when I have been criticised by an appellate court – for doing something
in defence of a madam that I suspect no English counsel would have done, other than Rumpole (who would have got away with it). But the hardest cases in those days, in terms of the toll they took on defenders of the often innocent, were the ‘terrorist trials’ of Irish men and women suspected of IRA atrocities. Another hard case revolved around the perennial dilemma of what Americans call ‘the fruit of the poison tree’ – whether to proceed against citizens whom agents of the state have tempted to commit crime. And once I was hauled before a disciplinary committee to face an allegation from a powerful newspaper – never an easy experience.
I started as a barrister in London by grubbing around magistrates courts and mitigating after ‘guilty’ pleas at the Bailey. The brief to plead for Cynthia Payne, when it arrived on my desk, seemed unexceptional and uninteresting. She was a middle-aged madam, charged with ‘keeping a disorderly house’ in the south London suburb of Streatham. It had been surveilled over the months by a team of local police, who noted descriptive details about her male customers caught in flagrante (and allowed to leave) when they raided the house to arrest Cynthia. She had all sorts of medical problems but had drawn a severe judge, and I would have to extricate whatever mitigating features I could find in the facts, and make a final speech that might induce him to mercy. The facts suggested only one line of mitigation – her clients were all middle-aged and upper class. The police had observed them:
Rather His Own Man Page 31