The implication is that the intelligence threat from the United States is also rising by the day.[1]
– From a January 2008 Chinese intelligence analysis
There is no longer a realistic prospect of a conviction in this [the Pasquill OSA] case.
– Crown Prosecutor Mark Ellison
THE MORE THINGS change …
In January 2008, exactly four years after Frank Koza e-mailed GCHQ, there were indications – despite warnings and lessons of universal import – that some things were impervious to change. This, regardless of a horrendous and controversial war, reorganization after reorganization of the often contentious and competing US intelligence entities and agencies, and promises of adherence to international accords. In the United Kingdom, although Tony Blair had been replaced by Gordon Brown, there was continued serious grumbling about Iraq and concomitant concern about US influence, further revelations about government hanky-panky, and the same old battles over the inefficacy of the Official Secrets Act.
Just two pithy examples, happenings reported within days of each other on the fourth anniversary of the NSA misadventure:
In China, the government-controlled media reported an intelligence expert’s complaint that the US National Security Agency was spying on his country’s electronic communications. The expert was reacting in kind. An American media report had claimed that Chinese intelligence penetrated the NSA’s Kunia listening post in Hawaii through a ‘translation service’. Mandarin translators, like Katharine Gun during her days at GCHQ in Cheltenham, do this sort of thing daily, sharing with the NSA. The spy in the sky game continues, and it would be ridiculously naïve to suggest it does not or should not.
Further, the Chinese were not happy about what was happening in Kunia, observing that the Hawaiian listening post was steadily growing in size and power.
Also in January 2008, a London Foreign Office civil servant starred in a high drama at the Old Bailey that had tongues wagging about a re-enactment of the Katharine Gun case. The prosecutor replaying his earlier role was Mark Ellison, in charge as the Crown lost yet another high-profile OSA case. Charges against Derek Pasquill were suddenly dropped when it came to light that even his own senior officers had claimed his leaking Whitehall documents did no harm.[2] Included in the leak was information about US secret transport of terror suspects to foreign countries where they could be tortured.
It was rumoured that the case was dropped because to continue would have caused the UK government serious embarrassment. Of course, this was said about the failed case against Katharine, where the embarrassment would have been far greater. In both, the reason given was failure of a realistic chance of conviction. As for US embarrassment, the American public already knew of the practice of ‘extraordinary rendition’ because of leaked documents.
Whistle-blower David Shayler, furious about his failure to get charges against him dropped and the fact that he served six months in prison, told the world that the reason the OSA charges prevailed against him was because dropping the charges would have caused political humiliation for the government. This was no way to mete out justice, steamed Shayler.
And then the Observer called for reform of the Official Secrets Act. So, why was what began on 31 January 2003 at America’s National Security Agency so very important at the time and why is it still important?
Most significantly, much of the world learned then (and afterwards, in America) how and why the ill-conceived spy operation helped kill a UN Security Council resolution legitimizing the strike against Iraq. It would learn that the NSA, despite claims to the contrary, may not always be careful about complying with the law, that it may add to its sin of playing horrendous ‘dirty tricks’ on international friends by lying about such matters. It wasn’t the listening, it was the lying, and it was the intent to steal UNSC votes. Information worth knowing.
Even in April 2007, as director of the Central Intelligence Agency reflecting back on his NSA leadership role, Michael Hayden told CSPAN’s Brian Lamb that the agency works only within the confines of the law, within ‘what’s legally permitted’. Compliance with the law, all laws, is essential and inviolable. This has been his claim all along, despite what seems to be evidence to the contrary. It raises a question of trust. In December of the same year, Hayden was busy defending destruction of CIA interrogation tapes of terrorist suspects, telling agency employees that the recordings were destroyed [despite legal warning not to do so] to protect the identities of interrogators.[3] It is not unreasonable to question his veracity in this regard.
Spin attributed failure to secure a resolution for war solely to the possibility of a veto by permanent members of the Security Council, but this was not true – ‘freedom fries’ publicity notwithstanding. Further, possibility was not yet reality. Had the swing nations, the targets named in the NSA e-mail, voted in favour of adoption, there was at least the hope that George Bush and Tony Blair would prevail and the resolution might succeed. But instead, those nations were outraged and insulted, and hope vanished into diplomatic ether with Katharine Gun’s leak. The United States had gone too far.
Had the 31 January event not happened, even if the resolution had later been vetoed, Security Council approval would likely have paid off in the currency of a broader coalition for, and greater international acceptance of, the war. Public relations value would have been enormous.
Facing inevitable defeat, the two world leaders withdrew the resolution and had to find another road to Baghdad. And that’s where they got into serious trouble. That’s where Elizabeth Wilmshurst and Robin Cook and Clare Short, standing on principle, bailed out of Tony Blair’s government. In the United States, defeat led to manipulation of intelligence in support of an illegal war, and even to deceiving members of Congress.
The 31 January event, of course, was responsible for the arrest of a young woman who defended her action as a matter of conscience and, in spite of everything that happened, would ‘do it again’. Here was a concept worth thinking about. It was so important that dozens of news articles and interviews and discussions focused on it. The words ‘I have only ever followed my conscience’ appeared everywhere. ‘I would do it again’ was the commitment printed across the cheek of a full-page Guardian photograph of Katharine’s face.
Katharine’s fealty to conscience and willingness to repeat her offence led to her being nominated, along with other high-profilers (ironically including Condoleezza Rice), as a 2004 ‘International Woman of the Year’.[4] Like it or not, she became a personal-ethic role model and remains one today. It was not just what Katharine Gun had done, but why that was so important. Her conscience told her she had to prevent a war and the death and maiming of thousands of innocent lives. Responding to its insistence, she tattled on the establishment and risked everything. She was a leaker.
She was also a leader, a fact that pleased some and sickened others.
Spring of 2005 opened one of the wettest political seasons ever, with devastating intelligence leaks flooding both the United States and the United Kingdom, a deluge revealing behind-the-scenes deceptions and manipulations in the run-up to war. What Katharine Gun did two years earlier proved to be a fatal crack in a carefully guarded international dam of secrecy. That first critical leak inspired those that followed. She has been instrumental in a surge of interest in truth telling in and about government.
Given the complexity of profound international issues and challenges, like the ‘Iran problem’, Katharine’s invitation to government workers to leak this sort of information may well bear fruit in the months and years ahead. ‘Follow me’ has been her clarion call. This can be a frightening prospect, perhaps even anarchistic, or it can be a tool for universal good. 31 January put a different face on the United Nations and the electronic miasma in which it operates. There is much that does not work in that august body, much that needs to be changed if there is hope that it will function in the way intended. What does work, however, is the extensive bugging operation that has plagued the institution since its birth in San Francisco more than a half-century ago.
Insiders know that everyone has always spied on everyone else at the United Nations, so what makes this case different? For one thing, it extended to non-insiders knowledge that international diplomacy as practised at the supposedly sacrosanct United Nations isn’t always diplomatic at its best, and is illegal at its worst. It started with people, ordinary people, wondering whether a new ethic might lead to transparency and honesty at the impressive building overlooking New York’s East River. Just because spying has always been a part of the United Nations’ history does not mean it must be a part of its future. Everything else aside, it might be rather agreeable to honour international agreements in this regard. Here is another concept worth thinking about.
What was most shocking about this sorry spying blunder, and still is, was the intent behind it. The United States was so determined to get its way that it was willing to collect private information for what at least appears to be a bit of high-stakes blackmail. President Bush had said he was willing to do most anything, to ‘twist arms’ to get what he wanted, and this was one strong-armed, clay-footed way of doing so. Would an American president resort to this sort of bully tactic today? If so, is someone going to be willing to let the political cat out of the bag? And should he or she do so?
A question of special significance is this: How can citizens know, today, when disgraceful political bullying or deliberate manipulation of intelligence happens in their country? When it happens in America, a nation long considered captain of the Good Ship Morality, an international law-abider, an arbiter of global ethics? They cannot always know, but whistle-blowing helps in creating a less gullible coast-to-coast community.
As for America’s image abroad, it is apparent that something sad has happened, has changed its character, has tarnished it. There is no question that the NSA plot to steal the UN Security Council vote contributed to its corrosion.
The bogeyman that Frank Koza released on 31 January 2003 did considerable damage. It did not, however, destroy the essence of hope for a political life properly conducted, although it toyed with the national psyche, raised international concerns, and messed with trust of government.
In the United Kingdom, this same mythical character reignited controversy over the provisions and effectiveness of the Official Secrets Act when Katharine Gun walked away free. The act has been called ‘draconian’ and unfair to those wishing to do what Katharine Gun did in responding to her conscience.
‘The sum of these concerns strongly suggests that … the Official Secrets Act, as it stands, is no longer fit for purpose either to guarantee the protection of confidences or guarantee the human rights of individuals charged under the act,’ said the Observer in its 13 January 2007 opinion. On a disappointing note, the article says that promises about re-examination of the act have not been kept.
Even before Katharine’s arrest, Liberty had called for reform of the act, in a well-worded bit of prescience: ‘The current secrecy laws are far too restrictive; they encourage abuse. Reforms need to ensure proper judicial scrutiny of any restriction on people’s freedom of expression or information.’ Protecting national security is important, Liberty said, but a balance was needed between that interest and the public’s right to freedom of information.
As times become more threatening, as terrorist activity continues to explode around the world, protecting national security must be a top priority. The NSA operation was conducted under the blanket of national security; in the end, it did nothing to protect but a great deal to provoke.
Perhaps it was only one of the abuses in its name, abuses paid for with individual and international rights.
As Liberty observed two years before taking on the pro bono case of the young Katharine Gun, ‘National security needs to be properly and tightly defined.’[5] On 31 January 2003, the NSA proved Liberty’s point.