8

TRUTH TO POWER

The Ministry of Defence (MoD) in central London, not far from the Palace of Westminster, the Houses of Parliament, is not famous for providing top cuisine in its canteen. It serves staple fare, from fish and chips to spaghetti bolognaise with the possibility of a glass of rosé to wash it down. These are hardly facts that need to be kept under lock and key, but until a few years ago, that is exactly how the MoD treated them – even the canteen menu, as an internal MoD publication, was a state secret. Anyone publishing it, according to the letter of the law, would be in breach of Section 2 of the Official Secrets Act (1911). As an act of publicity for its launch, as much as its desire to draw attention to the all-encompassing nature of Britain’s secrecy laws, the first edition of the News on Sunday, in 1989, reproduced a copy of the MoD canteen menu under the headline: ‘This Newspaper Is Dangerous. If You Read Page 11 You Are Liable to Two Years in Prison.’¹

Had the News on Sunday published the menu from the Ministry of Agriculture, the same rules of secrecy would have applied, but it might not have been as promotable from the newspaper: ‘You are technically breaking the law and could go to prison for reading News on Sunday.’² While most, though possibly not all journalists would be untroubled by Section 1 of the Official Secrets Act which deals with spying, it was Section 2 that was a much greater problem. This part of the Act made it an offence to publish any government material without the express permission of the minister concerned.³

The broadening of the UK’s first Official Secrets Act (1889) to include Section 2 had its roots in the early 1900s – a time when large sections of the population believed Britain was under threat of an imminent invasion. Their fear was fed by what was known as ‘invasion scare’ fiction: books that conjured up visions of French and Russian forces capturing British military charts and codes, and in one celebrated case carrying out the murder of a military officer. The main perpetrator of this scaremongering was author William Le Queux, a journalist with a flair for creative writing, the ability to blend fact and fiction and the aptitude to pass off fiction as fact. He prefaced one of his books, Spies of the Kaiser, with the statement that the book pointed to the ‘important lesson’ underlying it: ‘the French are laughing at us, the Russians presume to imitate us and the Day of Reckoning is hourly advancing,’⁴ he wrote. Spies of the Kaiser, published in early 1909, was a bestseller and, according to author Philip Knightly, it soon became clear that the book’s thousands of readers considered it ‘as they had every right to do in view of Le Queux’s ambiguous presentation of the book as fact in fictional form – as being totally true’.⁵ Other books by Le Queux offered a similar narrative: the German army, invading on a Sunday morning, had been helped by their agents who severed the telegraph links between East Anglia and London.

Stirring up the fear of foreigners, the Daily Mail cashed in on what was fast developing into a national psychosis. Le Queux worked closely with his friend Alfred Harmsworth, later Lord Northcliffe, owner of the Daily Mail, who not only shared his views about the perils of a fifth column of German informants living in Britain, but also agreed to serialise his books. Le Queux repaid the favour by tailoring the stories of treacherous German activity to the areas where most Daily Mail readers lived, maximising their impact and sending both book sales and the circulation of the Daily Mail soaring. To promote the serialisation Northcliffe sent an army of men into the streets dressed as German military, complete with spiked helmets and billboards warning of the Kaiser’s spies. The newspaper enlisted the support of its readers: ‘Refuse to be served by a German waiter’, the Daily Mail advised. ‘If your waiter says he is Swiss, ask to see his passport.’⁶

As a revolving-door form of feedback, spy fever spread across Britain. Readers inundated Le Queux with letters telling alarming stories of a nation filled with Germans: they worked in the post office, they were barbers, waiters, even army officers. When Le Queux sent the letters to a House of Commons sub-committee investigating state security, they played a direct role in the creation of Section 2, the ‘tightening of the Official Secrets Act’, according to Knightly.⁷ Such was the xenophobia enhanced by the Daily Mail’s campaign that many cite it as one of the reasons that the commons sub-committee went on to recommend the ‘formation of the Secret Service Bureau’ – the forerunner of MI5.⁸ Whether or not it was that clear-cut is difficult to tell but there is no doubt that the first task of the Secret Service Bureau was to investigate the ‘spy scare stories’ of Le Queux and other authors.⁹ As MI5’s current website explains, ‘Most of the ‘‘spies’’ who persuaded Whitehall that it was faced with ‘an extensive system of German espionage’ in Britain were figments of the media and popular imaginations’.¹⁰

‘Next to the Kaiser’, wrote social rights campaigner and journalist A.G. Gardiner, ‘Lord Northcliffe has done more than any other living man to bring about the war.’¹¹ He had also assisted in the creation of a new section of the Official Secrets Act which would severely hamper the work of journalists for decades to come.

On 11 January, 1970, the Sunday Telegraph published extracts from a confidential report on a civil war which was raging in Nigeria. Written by Colonel Robert E. Scott, defence adviser to the British High Commission in the Nigerian capital, Lagos, the report was embarrassing for Britain’s Labour government. It revealed that Britain had been secretly helping the Nigerian government in its attempts to recapture the secessionist state of Biafra. What was most worrying for the government, the report revealed that the British Government was sending a huge amount of arms and equipment to help the Biafran secessionists, well in excess of what ministers had acknowledged in Parliament. The Sunday Telegraph’s editor, Brian Roberts, had been given a copy of the report by Jonathan Aitken, a successful journalist and supporter of Biafran self-determination. Aitken in turn had acquired a copy of the report from Major General Henry Templer Alexander, a British representative on the International Military Observer Team and the father of one of Aitken’s girlfriends. According to author Christopher R. Moran, Alexander had given Aitken the report after he had questioned his assertion ‘during a postprandial drinking session’¹² that the war was nearing its end. Delighted to have in his possession evidence that government spokesmen had been misleading the public, Aitken made two copies of the report. The one that went to Roberts was used as the basis for an article in the Sunday Telegraph; the other went to Hugh Fraser, a Conservative MP who supported the Biafra cause.

When the story broke, Prime Minister Harold Wilson ordered an immediate investigation. Leaks from his government had already caused great embarrassment, and Wilson wanted them stopped. In the past leakers had been charged, but not journalists. This time the government changed course. Aitken was charged under Section 2 of the Official Secrets Act with illegally receiving classified government documents.

Though journalists have been known to celebrate the misfortune of their rival colleagues in the combative world of British newspapers, the trial which began on 12 January, 1971 united Fleet Street. The sight of a journalist in the dock at Court Number 1 at the Old Bailey they found deeply worrying, possibly concerned that they could be next. Curiously missing from the charge sheet was Major General Alexander, who had leaked the material.

In his summing up, before acquitting Aitken and ordering the prosecution to pay full costs, Justice Caulfield pointed to a glaring error in the prosecution’s case: without Alexander being tried too, it was impossible to determine what the intention had been in publishing the details of the report. Justice Caulfield attacked the notion that once an official document was stamped ‘Secret’ anyone handling that document was breaking the law. In the interests of freedom of speech, Caulfield concluded, Section 2, which was nearing its 60th birthday, had reached retirement age and should be ‘pensioned off’.

What was needed,¹³ he continued, was a section that would enable men like Aitken and Roberts ‘and other editors … to determine without any great difficulty whether a communication is going to put them in peril of … facing a criminal charge’.¹⁴ Resistance to change in Whitehall could be summed up by the comments of Cabinet Secretary Burke Trend. Committed to defending the status quo, he reminded Prime Minister Wilson that the Official Secrets Act had a ‘remarkably stabilising effect’, not unlike the ‘cane in the best type of orthodox school’.¹⁵ American allies, he said, were extremely envious of Section 2 for its inhibiting effect on the behaviour of journalists. There were no irksome problems like the First Amendment with its implications for freedom of the press.¹⁶ The case caused such a degree of concern among both journalists and the judiciary that when Wilson’s government was re-elected – after losing the election in 1970 – it made a specific undertaking in 1974 that Section 2 would be repealed and the mere receipt of information would no longer be an offence.

But just as the American intelligence agencies might be envious of Section 2, British journalists were equally highly enamoured with the First Amendment provisions of the US Constitution. In the 1970s Duncan Campbell turned his analytical capabilities as a physicist to journalism. He joined Time Out, a magazine which published lists of events mixed with often revelatory journalism. Campbell’s work would return the essential elements of freedom of speech to the country of its birth, Britain, where John Milton is widely lauded for his argument for free speech and an eloquent campaign to stop Parliament regulating printing presses in the 17^th century.

In 1976, Campbell revealed one of the most closely held secrets in British intelligence, the existence of GCHQ. Entitled ‘The Eavesdroppers’, Campbell’s report, published on May 21st 1976, in Time Out, told how

from two modern office blocks on the outskirts of Cheltenham, the directors of GCHQ manage a world-wide network of listening posts. They have directed aircraft and ships into foreign air and sea space to obtain information on their communications and defences.’¹⁷

The article said that the ‘listening posts are often found in the most remote places – Cyprus, Hong Kong, Singapore, Oman, Belize, St Helena, the Ascension Islands and Botswana’.¹⁸ It also told how ‘another base was recently identified in Australia when after a typhoon hit Darwin large numbers of RAF personnel were discovered on a nearby off-shore island’.¹⁹ By today’s standards the report might seem quite innocuous, but in the 1970s, when the existence of GCHQ was hidden, even from Parliament, it was explosive.

Campbell’s report was in part based on information provided by Perry Fellwock, a former NSA analyst who, like Daniel Ellsberg, had first-hand knowledge that the US public was being lied to about the Vietnam War. ‘Daniel Ellsberg’s releasing the Pentagon Papers made me want to talk,’ Fellwock said in an interview.²⁰ ‘We must take steps to insure there are no more Vietnams,’²¹ he told an assembled crowd shortly after his interview was published in Ramparts, an influential radical magazine which had already made a name for itself publishing details of covert CIA funding of student university groups. ‘I believe I have taken such a step. I have done it for neither money nor glory, but to bring to the American people knowledge which they have a need to know.’²²

Just why Fellwock, who used the name Winslow Peck, was not prosecuted under the Espionage Act (1913) was not explained at the time but James Bamford in his ground breaking book about the NSA, The Puzzle Palace (Penguin, 1983), wrote: ‘Prosecution they must have reasoned, would only serve to confirm all that Fellwock had said.’²³ Before publication Ramparts had received similar advice from Ellsberg’s lawyers that the government would not risk exposing more secrets by publicly pursuing them exposing the NSA’s activities.

The NSA simply hoped the storm would pass, but on the other side of the Atlantic, Campbell, who had keenly read the Ramparts article, arranged to interview Fellwock when he visited London in 1976. Here Campbell benefitted from the freedom of speech provisions in the US Constitution while he carried out his work. For while investigating such a secret organisation as GCHQ by speaking to UK citizens might be against the law, US citizens could not be prosecuted under the Official Secrets Act. Further, anything told to him by a US citizen was effectively covered by the First Amendment. Thus, using information publicly available in the UK and the US, piecing together what Fellwock told him, Campbell was able to reveal the existence of GCHQ, and its activities.

The fact that Fellwock had not been prosecuted in the US under the Espionage Act only added to the extraordinary nature of the unfolding events. The NSA and GCHQ might have mastered the art of transnational spying; now transjurisdictional laws were being used against them.

In the best traditions of traditional journalism, after he had completed his report Campbell phoned GCHQ for a comment. Campbell asked to be put through to the press office. To put it mildly, his call took the most secret intelligence agency in the UK totally by surprise. ‘After the operator picked up the phone again after thinking about it I was referred to the librarian at GCHQ to whom I gave questions.’²⁴ Campbell did not have to wait long for the reply. ‘The response two days later was to tap my phone and to follow me around intensively, they put the top people in the security service on to me,’ he said.²⁵

‘They knew who I had talked to. There was nothing they could do. There was no legal means for attacking me for publishing that article because I hadn’t broken any British law,’ not even Section 2 of the Official Secrets Act. Campbell said from that moment on he became ‘a marked person … they just launched a campaign to bring this kind of journalism to an end,’²⁶ he said.

The reaction from GCHQ was palpable. One overseas local head of GCHQ had been sent a copy of Campbell’s article before a weekly local intelligence meeting. ‘He was incoherent, his world had been torn apart’,²⁷ Campbell said.

My source recalls him almost frothing at the mouth in his incoherence to explain the appalling situation from Britain that he had just learned about that GCHQ had been written about by a journalist. It was secret. And I had just broken their first canon. Told people they existed.²⁸

As Campbell spoke to me at his home on Britain’s South Coast, I asked him why in particular he thought it was important to reveal the existence of GCHQ.

Campbell: Because this was the largest intelligence organisation in the country. The political significance of what they did and the dangers of what they commanded. Their interventions in political and public affairs were of huge public interest. The Russians – our strategic enemy – knew everything about them because of a litany of agents who were inside and every time these cases would come up they would use the D-notice system to stop anybody finding out what the Russians knew because the matters concerned were about Russian agents. So from about 1956 onwards GCHQ was penetrated again and again. So there was no counter veiling interest not to put these particulars out there. And reasons for concern. These guys could have started wars at some stages by getting aircraft to overfly just so they could collect some more signals.

Q: And there was no oversight at that time?

CAMPBELL: It didn’t exist. They weren’t avowed. Most Cabinet ministers were not allowed to know. They weren’t listed in government directories, you couldn’t ask about them in parliament. There were no signs outside buildings saying what they did. They were anonymous buildings with anonymous people. The names of everyone who worked for them was secret, what they did was secret.

Q: How were they funded?

CAMPBELL: By the government with the ‘Secret Vote’ money.

Q: Why wasn’t that publicly made available?

CAMPBELL: Because it was then sacred in Britain never to ask about intelligence. It would be unpatriotic and deeply wrong. I speak of the 70s. The funding was secret, staffing was secret, the roles were secret, and it was prohibited to even ask questions about them in parliament. The answer was: ‘It is the policy of the government not to comment on intelligence or security matters, full stop.’²⁹

But neither the intelligence agencies nor the government had finished with Campbell. They targeted the person who had shared the ‘Eavesdroppers’ byline, another US citizen, Mark Hosenball. The British Government announced that both Hosenball and former CIA officer Phillip Agee, whose CIA Diary (Penguin Books, 1975) revealing many of the agency’s more unsavoury activities in South America had become a best seller, were to be deported as posing threats to British national security. Many people believed that the expulsions were a result of ‘kow-towing’ to the Americans, but Campbell believed the action against Hosenball was a substitute for punishing him. He joined a campaign to have the deportation revoked. If the British security forces had taken the lead from the US government’s treatment of Peck, the story might have faded from public view. But instead the row over Hosenball and press freedom had an unintended consequence. If it was meant to engender fear and stifle debate, it did just the opposite. In a suburban home in the north of London it captured the attention of a former British intelligence corporal, John Berry. He had served in one of GCHQ’s listening posts, the 9^th Signal Regiment in Cyprus. Berry had read ‘The Eavesdroppers’ and wanted to know what he could do to help Agee and Hosenball.

Berry wrote a letter to the ‘Agee-Hosenball Defence Committee’, care of the National Council for Civil Liberties (NCCL). He identified himself as a former member of ‘an organisation spending vast amounts of money in total absence of public control’ who would ‘like to know of any medium through which these concerns could be published’.³⁰ Several days later Berry went to the NCCL headquarters in King’s Cross and typed out a statement in which he wrote:

It appears to me that secrecy is one of the most important keys to power and the existence of an organization capable of spending vast sums of money in the total absence of public control should do much to dispel any illusion about the democratic nature of our government.³¹

The NCCL passed the letter to Time Out, the only underground newspaper which might be prepared to defy the D-notice that excluded any reporting of GCHQ. The letter ended up on the desk of the environmental reporter Crispin Aubrey, an unlikely recipient since he knew little about electronic eavesdropping. Aubrey turned to the acknowledged expert, Campbell, to help him interview Berry ‘to decide whether he’s a bull-shitter’.³²

On a foggy Friday evening, 18 February, 1977, Campbell and Aubrey travelled to Muswell Hill in North London to meet Berry. They suspected they were under surveillance; we know now that MI5 not only tapped Campbell’s phone and the NCCL’s but the intelligence agency’s director general had singled Campbell out as ‘a person of greatest interest’.³³

There, over a bottle of Chianti in Berry’s basement flat, they spoke for three hours, the entire conversation recorded by Aubrey’s tape recorder. At 10 p.m. when the tape ran out they decided to call it a night. But as Campbell and Aubrey headed for home they were confronted by 13 police from Special Branch, who arrested them on suspicion of offences against Section 2 of the Official Secrets Act – legislation that the government in its election manifesto had promised to remove from the statute book. Campbell and the others had every reason to be surprised and angry. Just three months earlier, in a testy Parliamentary debate about Section 2 the Home Secretary Merlyn Rees had announced that the ‘mere receipt of unauthorised information should no longer be an offence’.³⁴

Yet what the Home Secretary said publicly and what the government and the intelligence agencies did privately, differed greatly. In the 1970s, at the height of the Cold War, Labour – concerned about being seen as soft on communism and security – would be ruthlessly hard on journalism. Campbell and Aubrey were charged under section 2 with ‘unauthorised receipt of classified information’ and Berry was charged with ‘communicating classified information to unauthorised persons’. Yet this was, as the police said, a ‘holding charge’: justification, as their lawyer Geoffrey Robertson pointed out tongue in cheek, ‘for holding ‘dangerous men in custody until more serious charges were formulated’.³⁵ Within the next few hours police raided Campbell’s home and took away vast amounts of paper and 400 books, including the novels of Ernest Hemingway and Graham Greene, and according to Robertson a book listed in the trial exhibits as The Female Unok [sic]. Subsequently, Campbell, Aubrey and Berry were charged with one of the most serious offences a state can allege: espionage.

Under Section 1 of the Official Secrets Act they were accused of obtaining or publishing information ‘intended to be directly or indirectly useful to an enemy’. It carried a possible sentence of 14 years’ imprisonment.

Within six weeks, Campbell was indicted on another Section 1 espionage charge which amounted to simply collecting too much information. Even today as he sits in his study surrounded by some of the files that were seized, Bob Dylan songs playing gently in the background, Campbell is still aghast at the additional charge under Section 1.

The files were packed with ‘public source information, defence magazines, official publications and unpublished information, and none of it secret,’ he said. ‘So, journalism was espionage.’³⁶

The ABC case, as it became known, after the initials of Aubrey, Berry and Campbell, was designed with one major objective, to stop Duncan Campbell’s journalism. It wanted Campbell put away ‘for a very long time’,³⁷ as the prosecutor candidly told Robertson. The Crown’s determination to get the result it wanted led to some overly zealous activity, or at least activity which no one at the time thought would ever be revealed. The court clerk disclosed to Jeremy Hutchinson, the senior counsel, that the prosecution had vetted the jury, several of whom worked for government departments and had signed the Official Secrets Act, and one, a former SAS soldier, was almost certainly hostile to the activities of the defendants. All this might have remained secret but for a note being passed to the judge that some members of the jury were worried that by even listening to the evidence, they might be breaking the Official Secrets Act. When news inevitably leaked out publicly that the prosecution had vetted the jury, the judge abandoned the trial. It was an appropriate end to a hearing which had bordered on farce. Barrister Jeremy Hutchinson, a doyen of the English criminal bar who defended such differing cases as the publication by Penguin of Lady Chatterley’s Lover and the trial of Great Train Robber Charlie Wilson, had ridiculed and demolished the prosecution, exposing the fact that the supposedly secret information which was such a danger to Britain’s security was publicly available. One of the star witnesses, whose identity was so secret he could only be referred to by a code, was in fact a minor military celebrity. His identity had been readily published in a regimental magazine, where he had been described as ‘the don of the communications underworld’.³⁸ Other Crown witnesses found themselves acting out the idiocy of the Crown’s secrecy claims.

Jeremy Hutchinson: [showing the witness a photograph of a sign at the entrance to a particular base]: Is that the name of your unit?

WITNESS: I cannot answer that question, that is a secret.

JEREMY: Is that the board that is up outside the door of your unit?

WITNESS: yes.

JEREMY: Read it out to the jury.

WITNESS: I cannot do that, that is a secret.³⁹

Though a second trial was ordered, the prosecution was in disarray; Aubrey, Berry and Campbell were found to have breached Section 2 but received non-custodial sentences. The Section 1 charges against Campbell were dropped completely, though he remains the first and only British journalist in the UK to face trial for espionage, an accusation based on the fact that he had too much information stored in his home.

If, as is highly probable, the case against him was, as Campbell contends, payback for the ‘Eavesdroppers’ article, it creates a significant connection which over the decades has bound dissidents together. Just as Snowden and Manning were motivated to leak because of government deception, Perry Fellwock became motivated to blow the whistle on the NSA’s activities – and through Campbell the surveillance and wiretapping by GCHQ – because of government deceit about the Vietnam War. In recent history, it has been these hegemonic wars, and the deception surrounding them, which have either encouraged or facilitated journalists and whistle-blowers to acts of dissent – even when it meant breaking the law. Aspects of the persecution of Duncan Campbell can be seen in the attacks on Snowden and Manning: the severity of Manning’s 35-year sentence; the decision by the US government not to allow Snowden to receive an open trial where he could argue a public interest defence; and the ABC case using Section 2, which was widely discredited as a piece of law and would soon be removed from the statute book. Holding surveillance agencies to account for their covert actions is dangerous and difficult work, particularly when challenging the very powerful institutions which will do all they can to defend and protect their secrecy. As Jeremy Hutchinson remembered,

The public became aware at last of what our potential enemies had known for years, that GCHQ at Cheltenham was the centre of a surveillance and intelligence organisation with a global network of listening posts. From that moment, it became clear that this institution could be misused and could give rise to the dangers of the ‘surveillance state’, with ever increasing power of intrusion into our private lives.⁴⁰

Others may have been chastened by the repercussions of confronting the full power of the state. Yet barely out of the court room at the end of his trial, Campbell set about producing another revelatory report, this time for the New Statesman which disclosed for the first time the existence of a secret telephone-tapping operation being run by the government in central London. Campbell pointed out that it was a legitimate concern that there was no oversight or accountability over who the government or its agencies tapped and on what grounds they carried out this intrusive surveillance. It is hardly surprising that declassified records reveal that the government of Margaret Thatcher, elected six months after the trial ended, became fixated on Campbell’s work. The Cabinet Secretary, Sir Robert Armstrong, ordered a close watch be kept on the BBC’s documentary programme Panorama, which in the wake of the trial verdict had begun working on the possibility of doing a report on Britain’s security intelligence agencies. A message to the prime minister, marked at the top and bottom of the page TOP SECRET AND PERSONAL, laid out what could be called a Campbell containment policy. ‘The activities of Duncan Campbell, and the interest and activity they are generating (particularly in circles whose political motivation is suspect) have some effect on the morale and effectiveness of the intelligence services,’ the prime minister was told. ‘So long as all this is confined to the columns of the New Statesman, the Leveller and left-wing papers of that kind and to a small group of left-wing MPs, the damage is containable.’⁴¹

What concerned the government was that Campbell’s arguments about accountability and transparency might be picked up by mainstream media, particularly the BBC. The memo continued: ‘A BBC Panorama programme is a different kettle of fish. It would give respectability to the activities of Campbell; it would spark a much wider curiosity about the intelligence services’.⁴²

Other MPs and other newspapers would feel obliged to ‘jump on the bandwagon’⁴³ and the resulting damage to the morale and effectiveness of the Service could be ‘very serious indeed’.⁴⁴ The Top-Secret message added: ‘That of course is what Campbell and other are aiming at.’ It ended somewhat ominously: ‘It is very much in the national interest they should not succeed.’⁴⁵

What the government failed to grasp was that while Campbell might have been talking to journalists at the BBC, Panorama did not need to be told by anyone that British security intelligence – and the laws protecting it from accountability – was an important area of investigation. The ABC trial had put on public display the shortcomings of the law, and the bungled attempts at protecting the identities of witnesses in the case verged on high farce. The programme that Panorama was working on was a natural extension of that: journalism designed to hold the intelligence agencies to account. The Panorama team was working on a programme which would disclose how a former agent claimed to have arranged hundreds of illegal telephone taps, provide fresh information about the notorious Profumo Affair, where the Conservative Cabinet Minister became potentially compromised by model and showgirl Christine Keeler, and reveal MI6 plots to liquidate Iran’s Prime Minister Mossadeq and Egypt’s Colonel Nassar.

Though at the time neither Thatcher nor other members of the Conservative government knew the details of what the Panorama programme might contain, Armstrong became increasingly anxious, putting pressure on Sir Ian Trethowan, the BBC’s Director General, to discover exactly what would be in the programme.⁴⁶

The government reasoning, that disclosure of unpleasant activities by the intelligence agencies might weaken Britain’s security, hid a more obvious concern. The future Labour Foreign Secretary, Robin Cook, believed that the intelligence agencies – which were still not publicly acknowledged – needed to be more accountable, and was pressing for the laws to be changed. The last thing the Thatcher government needed was huge amounts of credible evidence on one of Britain’s most trusted programmes supporting the actions of their political opponents.

In another Top-Secret briefing paper Armstrong gave Thatcher an insight into how the BBC Director General might deal with the matter. ‘Trethowan at first thought that when the production team had put their material together and made a film, he should see the film, together with one or two members of the editorial and production teams,’ he wrote. Armstrong wrote that Trethowan also thought he might bring along MI5’s Bernard Sheldon, the agency’s legal advisor but ‘later on he decided that that would be too difficult, since the role of Mr Sheldon would be liable to leak’.⁴⁷

Instead, Sir Ian decided that ‘he and Mr Sheldon should watch the film privately together, and that thereafter having heard Mr Sheldon’s comments, he should take his own responsibility for deciding whether certain portions of the programme should be omitted’.⁴⁸

On 13 January, Sir Ian Trethowan and MI5’s Sheldon settled down to watch the Panorama programme ‘MI5/MI6: The Need to Know’.

As Armstrong later reported to Thatcher, ‘Sir Ian Trethowan has now put the programme in the hands of Mr Richard Francis, Director of News and Current Affairs.’⁴⁹ He reminded the prime minister that Francis was a member of the Defence, Press and Broadcasting Committee responsible for D-notices, so he would know what to do. Armstrong wrote that Francis had ‘been asked to reduce’⁵⁰ the programme to 50 minutes – cutting it in half – taking into account the ‘various comments made and deletions suggested by Sir Ian Trethowan’.⁵¹ And just in case the prime minister was having a slow morning and thought the director-general might have been acting independently at the BBC he pointed out that the deletions were being made ‘following Mr Sheldon’s comments’.⁵²

The public, meanwhile, would continue to be lied to about the involvement of the government in pressuring and threatening to muzzle the BBC. ‘Sir Ian Trethowan has told the Press that no-one (from the Government) has seen the film and that there has been no pressure from the Government on the BBC,’⁵³ Armstrong wrote to Thatcher. He added that in the newspaper reports which speculated on government involvement ‘the main attack is on him; and he is content to take it’.⁵⁴

Even so Armstrong was not completely sure ‘that all the [agreed] comments [for the program] will be followed’. But he did not think there was ‘any more we can do, short of an outright veto; and it remains my view that cure would be worse than the disease’.⁵⁵

The Panorama reporter, Tom Mangold, put it more succinctly, telling the BBC’s PM current affairs show: ‘It wasn’t the greatest program but it was the best we could do at the time.’⁵⁶ Panorama may not have got exactly what it wanted but it did manage to point to problems of accountability in the intelligence establishment. What the No 10 documents suggest is that Cabinet secretary Sir Robert Armstrong and Prime Minister Thatcher were more concerned about the political problems the Panorama program might raise; the issue of national security was barely mentioned. The failings of MI6 – hidden from the British public until decades later when some of its files were declassified – confronted Thatcher on 2 April, 1981, when Argentina invaded the Falkland Islands. Britain was caught completely unawares. MI6 missed it. The MI6 chief at the time Colin McColl later admitted the failure to warn the government, with the oblique comment: ‘We were clearly seen to be too thin.’⁵⁷

Programs like Panorama’s ‘MI5/MI6: The Need to Know’, and the work of journalists like Duncan Campbell, tenacious and forensically committed to accountability, were advancing journalism at a time when the fear of a real world-ending nuclear holocaust was very strong. When governments invoked the possibility of a threat to national security it could cause real dread, and they used it time and again to silence critics and control their opponents. At the time, even the official existence of state spying organisations GCHQ and MI5 were not publicly recognised. Similarly, in Australia, the existence of the Australian Security Intelligence Agency (ASIO) and the Australian Secret Intelligence Service (ASIS) were still secret and in France there was no official confirmation of the General Directorate for External Security (DGSE) or the Directorate of Territorial Security (DST). Governments in the West wielded an almost unassailable power. But the journalistic enlightenment which came with the release of Pentagon Papers, the Church Committee investigation into CIA assassination programs, and Watergate was emerging as a force which affected not only the way journalists went about their jobs, but even what they thought their jobs were. This form of investigative journalism, digging deep into government wrongdoing, had seen many incarnations down the ages, but a newly educated post-war generation would use it to challenge the status quo with extraordinary political effect. Journalists would begin holding the state to account.

Slightly more than a year after Panorama had managed to wrestle its programme to air, across the English Channel a reporter who shies away from being called an investigative journalist, because he argues all good journalism involves investigation, began unearthing government wrongdoing which took on all the dimensions of a French Watergate.

Unlike Watergate, though, which began with a seemingly humble break-in at a Washington office complex, the French version took off with gusto. On 9 August, 1982, two gunmen threw a grenade into a Jewish restaurant on the Rue des Rosiers in central Paris, and opened fire on passers-by. The attack killed six people and wounded 22. With Paris under regular assault from terrorist shootings and bombings the rue des Rosiers attack gave French President Francois Mitterrand the opportunity to set up what would become his own covert Pretorian guard. Within hours he had directed Christian Prouteau, head of the elite National Gendarmerie Intervention Group [Groupe d’ Intervention de la Gendarmerie Nationale – CIGN] to establish a ‘Mission of Coordination, information and action against terrorism’.⁵⁸ Unlike normal procedure, where a crime fighting unit would be part of police and security services under the control of the Minister of the Interior, this group would operate in secret and to report directly to the president. When the anti-terror group discovered three members of the Irish Republican Socialist Party, which had a paramilitary wing, the Irish National Liberation Army, in Paris it was enough for the anti-terrorist group; all they needed was the evidence.

When police raided the homes of the Irish nationalists in the Rue Diderot in the suburb of Vincennes in the east of Paris they found three handguns and some explosives. But an examining magistrate ruled that the police had broken the rules of evidence, as the suspects had not been present when the search was made. The ‘Irish of Vincennes’ as they became known, were set free, the charges annulled. At Le Monde Edwy Plenel began digging into the case and published an article on 31 October, 1985 alleging that one of the police officers, Captain Paul Barril, had supplied incriminating evidence in the Vincennes case. Plenel had seen information gathered by the DST which revealed that the guns and explosives had been given to Barril to plant on the ‘Irish of Vincennes’. Suspicious that there was more to the story, Plenel began investigating. On 21 March 1991, Le Monde published a lengthy follow-up article entitled ‘Irlandais de Vincennes: les cachoteries de l’Elysée’ (The Irishmen in Vincennes: an Elysée cover-up), which claimed that executive members of the government had withheld documents from the courts.

Plenel was right, but what no one knew then was that many of the documents were thousands of pages of transcripts of telephone conversations recorded by the anti-terrorist group using illegal intercepts on the orders of the French president. In a windowless room at the Elysée Palace the anti-terrorism team had set up a secret listening post, with ‘gleaming banks of tape-recorders’ and a ‘large functional table in the centre of a polished, tiled floor’.⁵⁹

All the illegally recorded conversations would bypass the normal intelligence and surveillance apparatus and be relayed directly to the Elysée, where they would be transcribed. Like US President Richard Nixon, President Mitterrand had ordered a covert spying campaign.

Yet it would be three more years before the truth started to be revealed. In 1993 the newspaper Liberation published a report that the anti-terrorism team had been secretly recording Plenel’s phone calls for two months between 1985 and 1986, and published 16 pages of transcripts. What had clearly concerned the anti-terrorism team was that Plenel himself was about to disclose an act of terrorism that the President of France wanted kept secret. Plenel had been investigating the mysterious sinking of the Greenpeace Ship Rainbow Warrior in New Zealand’s Auckland Harbour on 10 July, 1985. The ship had been on its way to protest French nuclear tests on the tiny French atoll of Mururoa, 1200 kilometres south east of Tahiti. Though the story of the attack on the Rainbow Warrior by French military and intelligence officers was first revealed by the Australian Broadcasting Corporation’s Four Corners programme, in September 1985 Plenel’s report in Le Monde disclosed the extent of French intelligence involvement in the bombing, codenamed Operation Satanique, which killed Portuguese photographer Fernando Pereira.

In March 1993 – just four days after Liberation’s report – Plenel successfully sought a judicial investigation. But Jean-Paul Valat, the investigating magistrate, immediately ran into huge obstacles. First he was prevented from gaining access to a secret internal government report, then the police officer responsible for guarding the telephone intercept data was found hanged.

During the following year, with the investigation floundering, Valat benefitted from an unexpected find. A ‘brunette dressed in black’⁶⁰ – a person who remains anonymous – gave the magistrate five computer disks containing 5,000 pages of transcripts of the bugged phone calls. The disks showed the unit eavesdropped on a bewildering array of prominent people from 1983 to 1986, recording more than 3000 conversations involving 150 people from lawyers to rival politicians and journalists. Mitterrand’s personal assistant Gilles Manage personally handed over transcripts of the conversations from Plenel’s phones to Mitterrand. As the President of France perused the transcripts he wrote the word ‘Seen’⁶¹ on them in his distinctive handwriting.

The investigation was also greatly helped when five metal trunks of documents detailing the wire-taps were seized from a garage rented by the head of the CIGN, Christian Prouteau. But before the metal trunks were handed over to authorities, according to the Le Canard Enchainé, one of the few French newspapers which embraced investigative journalism, Alain Juppé’s conservative government confiscated documents relating to the 1986–88 government led by fellow party member and former president Jacques Chirac. The newspaper said the government did not want to admit the illegal recordings took place while conservatives were in power.

It was an action consistent with the unconstrained exercise of executive authority: a political system in which it was possible for the head of state to establish a team to break the law to protect not the state of France, but the political power and personal secrets of the French president. It was not just the Rainbow Warrior affair Mitterrand was concerned about; he wanted the French public kept unaware of his extramarital affair with historian and museum curator Anne Pingeot, that produced their daughter, Mazarine, the head of the CIGN anti-terrorism group, Christian Prouteau, explained what was expected. ‘The President called me into his office,’ he reportedly told investigators:

He opened the newspaper and showed me an article. He was extremely angry. He said the article contained information known only to him and the interior minister. He suspected his rooms may have been bugged, but they hadn’t. He said he wanted the journalist’s phone tapped. So we did.⁶²

On another occasion Mitterrand directed Prouteau to spy on Plennel.

‘I spoke to [Defence Minister Charles] Hernu, and they gave me access to the phones, that’s all it needed,’⁶³ Prouteau said. To avoid arousing suspicion, the anti-terrorism group sought permission to eavesdrop not directly on Plenel but on his girlfriend, who lived with him. To create a level of cover for the surveillance request they described her as an arms trafficker, though she worked as a secretary.

In an echo of President Nixon’s behaviour one person close to the inquiry was quoted as saying: ‘It seems Mitterrand just became more and more paranoid. Anyone and everyone who looked like posing a threat to his public image had their phones tapped, against the law.’⁶⁴

But it is here that the comparison with the US, and the form of inquiring journalism which became so disruptive to the old power relationships, part company. Only a few journalists in France followed the lead of Plenel in challenging government authority. Thirty years after the sinking of the Rainbow Warrior, Plenel reflected on the state of French journalism and its journalists which, with few exceptions, avoided confronting the powerful and instead accused Plenel of being a ‘vigilante not a journalist’.⁶⁵

Even now in France, Plenel says, his ‘conception of the role of the journalist is not yet accepted’.⁶⁶ He ‘believed in a journalism of inquiry, of challenge, of holding to account’.⁶⁷ Many of his colleagues seemed to prefer a’ kind of sitting down journalism … a journalism of commentary, that seeks to explain and justify rather than to challenge government’.⁶⁸

The fact that the anti-terrorism spy case dragged on for more than a decade raised important questions about the efficacy of the French political and judicial systems, and the role of the Fourth Estate in holding them to account. The problem is they have a close financial relationship.

In a political culture where the practice of étatisme plays a key role, there are few places where this is more obvious than in the subsidies the government has given to the French press. In 1993 the then prime minister, Edouard Balladur produced a 200 million French franc (approximately €31 million) government rescue plan for the print media, regarded as vital by many observers to foster a market shaken by an economic downturn in advertising, under-capitalisation of companies, escalating production costs, and plummeting circulations.

The state-sponsored subsidy measures were aimed at offering access to information for all citizens ‘in order to stimulate their participation in public life’.⁶⁹

The former director of the French Press Institute, Pierre Albert, pointed out that the role of the state, in France, was the ‘exact opposite of its Anglo-Saxon counterpart’.⁷⁰ In the US or in England, freedom of expression was considered the natural sequel to ‘laissez faire’,⁷¹ which meant that the market ruled the world of information, and that any regulatory restriction was considered intolerable. But in France with the ‘tradition of the Roman law’,⁷² the press asked for

the law to guarantee its freedom in the name of the necessary protection of pluralism against the eventual excesses of the powers of money: the media cannot be treated as ordinary products or goods for the simple reason that they perform a public service.⁷³

Albert argued that ‘while certain State subsidies are, for us, considered as a natural contribution of the collectivity to safeguard the press’ pluralism’,⁷⁴ across the Channel – and ‘even more so, across the Atlantic’⁷⁵ – they were ‘considered as a soft-core form of corruption of the paper’s independence’.⁷⁶

Whatever the reason for the investigatory failure of the French media, the Elysée Palace spying scandal raised questions about the fundamental freedoms in the French state. ‘We are a long, long way from what a democracy should expect after such a monumental violation of people’s rights,’⁷⁷ said Antoine Comte, one of several lawyers who were the victims of eavesdropping. ‘In America, an affair like this would – and did – lead to the resignation of the president.’⁷⁸

In all 12 staff from senior levels of the French government were charged, from private secretaries to executive officers of the DST. It was perhaps fitting that the hearings took place in the 17e Chambre du Tribunal du Grand Instance de Paris, the court whose magistrates deal with issues relating to freedom of the press. Cases involving Charlie Hebdo and Mediapart have often been heard here beneath the light panelled wood and the cracked floors, part of the Palace of Justice which dates back to the 13^th Century. When the court handed down its decision, it gave a rare insight into a political culture which accepted dictates from the executive seemingly without question. The orders from Mitterrand were ‘relayed without any reservations’⁷⁹ by the government, the court ruled. Pierre Mauroy, the prime minister between 1982 and 1984, had what the court described as ‘full conscience’⁸⁰ of the illegality of the intercepts. The protests of ignorance of his successor, Laurent Fabius, appeared to the court ‘surprising’⁸¹ and the magistrates mocked ‘the defective memory’⁸² of Paul Quilès, then minister of defence. Yet none of these politicians were punished for the illegalities they had been directly involved in, or knew about but did nothing. It was those who worked for the politicians who were held to account. And even they received only minimal punishment although they faced the possibility of a year in jail and a fine of €45,000.

Christian Prouteau received the heaviest sentence – eight months suspended and a €5,000 fine even though the court noted, that he ‘lied, either directly or through omission’,⁸³ something it found ‘obviously a disconcerting attitude for a person from an elite corps (the gendarmerie)’.⁸⁴

General Jean-Louis Esquivié, number two of the cell, who told the tribunal ‘lies’⁸⁵ and acted in ‘bad faith’,⁸⁶ was sentenced to a four months suspended sentence and fined €3,000. Pierre-Yves Gilleron, commissioner of the Surveillance of the Territory (DST), criticised for using secrecy as a defence, was sentenced to three months in prison and fined €2,000.

Gilles Ménage was the victim of ‘a form of submission to the presidential will’,⁸⁷ even if it did not exempt him ‘from his own criminal responsibility’.⁸⁸ He received a six-month suspended sentence and was fined €5,000.

All the secretaries who worked under Christian Prouteau ‘lied under oath without any hesitation’. And the behaviour of Jacques Fournet, a director of the DST, meant that his testimony had to be taken ‘with great reserve’.⁸⁹

But the court saved its severest criticism for the man who would never have been present. It was he who ‘was personally responsible for the creation of the Elysée cell’,⁹⁰ he was ‘the highest placed political leader’⁹¹ and the person who most benefitted from the illegal spying, the court said. Yet even if he had lived, it is unlikely that President Mitterrand, who died in 1996, would have been held to account. Under the French constitution, representatives of the National Assembly would have been called to investigate his wrongdoings, something they were not inclined to do. For although Mitterrand had been caught out, he almost certainly was not alone. Other presidents too had been suspected of spying on their political opponents. Any investigation would be dangerous political territory for the National Assembly. Despite the obvious failings of the French system – by the time the appeals had been heard, and rejected, it was 20 years since the first intercepted phone calls – the court case did achieve one remarkable outcome: a finding of guilt against senior members of the French intelligence and security agencies. They had been brought to court to publicly answer for their crimes and held to account for their actions. Even though Plenel had revealed state secrets, he did not face the prospect of prosecution in France. Plenel, like all French journalists, was protected by both statutory law, which in all but the most extreme cases guarantees freedom of expression, and decisions of both the European Court of Human Rights and the European Court of Justice, which have repeatedly made findings guaranteeing the rights of journalists to protect their sources from disclosure.

While investigators in France had been gathering evidence which would condemn state spying on journalists, and implicitly support their role to expose state secrets for the national benefit, on the other side of the world an intriguingly different situation was unfolding.

In Australia, under the Crimes Act (1914) the all-encompassing laws matched much of Britain’s Official Secrets Act. A Commonwealth government employee who communicated ‘a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person’ with intent to damage the security of Australia could be charged with committing an indictable offence and be jailed for seven years.

But in the 1980s, unlike in the UK, the onus was on the government to keep its secrets. The receipt of classified or ‘non-ministerial approved’ information itself was not illegal. Even though, like the UK, Australia operated a D-notice system, where media organisations self-censored about a list of ‘banned’ subjects, it was a voluntary code. Significantly, not everyone agreed with the D-notice, or abided by it.

In 1988 when journalists Brian Toohey and William Pinwell began writing a book on Australia’s overseas spy agency, the Australian Secret Intelligence Service, (ASIS), they found themselves entering a cross between what former CIA head of counterintelligence chief James Jesus Angleton called ‘the Wilderness of Mirrors’ and ‘Alice in Wonderland’. Angleton was talking about how the world was often different from how it appeared; Toohey and Pinwill were about to discover how bizarre it could be. As Toohey, who was also the editor of The Eye, a monthly independent journal which specialised in breaking hard-edged political stories, worked on his book, Oyster, he received an unexpected leak: thousands of pages of highly classified documents apparently from Australian foreign minister Bill Hayden’s office. Hayden had just been appointed Governor General of Australia, and the material arrived shortly after he had cleared out his desk in the Parliamentary offices, ready for the move to Government House.

The documents produced a plethora of stories to fill The Eye’s pages. They exposed details about how in 1984 the Australian government had been forced to back down over whether US nuclear warships could enter Sydney harbour. The Eye revealed how the Foreign Affairs Department had followed nearly word for word a press release written by US Secretary of State George Shultz’s department, and issued it in the name of the Australian government.

In another embarrassment for the government, Hayden had written scathing notes in the margins of some of the documents. ‘There is no doubt about it, the Indonesians are erratic, hostile people to deal with, with an added sententiousness which makes them difficult neighbours,’⁹² Hayden wrote.

In other notes Hayden also referred to the ‘oafish behaviour’ of the Malaysian Foreign Minister, Ghazalie Shafie; to the Japanese as ‘hypocritical’ and ‘self-effacing’; and to Papua New Guineans as having ‘limited maturity’ and ‘clumsy bluff’, which might lead them ‘deeper and deeper into a quagmire of confusion and incompetence’.⁹³

Another cable revealed that the Defence Signals Directorate, now the Australian Signals Directorate, the electronic eavesdropping arm of the Australian intelligence services, was spying on Indonesian troops, using a naval vessel under the guise of monitoring illegal fishing.

Within hours of The Eye appearing on the streets, the government lodged an immediate action with the Australian High Court, seeking an interim injunction on the grounds that public disclosure of the contents of the documents would endanger national security. The fact that Toohey had broken no laws and had merely ignored the voluntary D-notice process left the government with few options but to take action in the highest court in Australia, if it wanted to stop further publication of the Hayden documents. Toohey’s tactics of publishing first had wrong footed the government and made its actions appear extreme. It allowed Toohey to say – with tongue perhaps planted firmly in cheek – he could not comprehend how any government would seek to prevent him from writing about defence and foreign affairs issues, but more genuinely to add: ‘I will obviously contest vigorously any attempt to suppress information which the public needs to judge policies of politicians and Governments.’⁹⁴

As in the UK, the government appeared uncomfortable and at times unable to deal with the kind of journalism which had lived on the fringes of the mainstream, but in the wake of the Watergate disclosures had grown in power and influence. The government’s counsel, Stephen Charles, accused Toohey of publishing information to obtain a ‘journalistic scoop for profit’.⁹⁵ It was a difficult argument to run against a magazine that barely made any money. What seemed even more difficult to sustain was that in quoting directly from the documents Toohey had been ‘deliberately unfair, misrepresented the views of Hayden’.⁹⁶

Far more damaging to the government was that The Eye had in fact faithfully reported what Hayden had written. It is unlikely that what was published came as any great surprise to the countries involved, since they routinely carried out what are known as ‘technical operations’ – surveillance – against visiting diplomatic delegations and made a point of targeting communications traffic into and out of Australian embassies. But the defence minister, Kim Beazley, argued that revealing a specific intelligence-gathering activity against Indonesian armed forces who occupied East Timor after invading the country in 1975 would damage Australia’s international relations. It could be equally argued that publicly revealing the fact that Australia was spying would at least remind Indonesian troops that they were being watched as they carried out countless atrocities in East Timor, which lost an estimated 200,000 people during the Indonesian invasion and occupation of their country.

The fact that, as with most journalistic endeavours, the most significant information had been published first, seemed to escape the government’s attention. Still it pressed on, demanding that all the Hayden documents, including those which had not been published, should be returned. Much to the government’s dismay, Toohey pointed out that he had already destroyed them, so consequently there would be no more reports based on the Hayden papers.

And there the matter might have rested, but for a train of events which is still not fully explained.

As Toohey tells it, during the editing process of Oyster he sent a couple of chapters to the publisher by mail. It should have been safe to assume that once in the care of the Australian Post Office, the material would be safe. But that wasn’t the case. The book didn’t arrive. Instead, Toohey says he was told: ‘someone found it on a grass verge by the side of the road and gave it to a local television station [Channel 10] because its contents looked interesting’.⁹⁷ The TV station, in Sydney, thinking they might have a scoop on their hands, arranged for the material to be sent to its office at Parliament House, Canberra, for its political reporters to examine. From there the mystery deepened. Whether it ever turned up or not is not clear, but what is known is the minister responsible for Australia’s counter intelligence agency, ASIO, the attorney general, got a tip off that Toohey was writing a book on ASIS. Part of the ‘unfinished manuscript fell into the government’s hands’, Toohey wrote.⁹⁸ From there the situation turned from absurd to farcical. A little over a month after the government had secured its limited victory over Toohey, they were all back at the High Court. Following a meeting of senior ministers on the Cabinet Security Committee, the Attorney General, with a team of senior counsel, wanted another injunction. They feared that Toohey was about to publish material about Australia’s overseas spy agency, not in Oyster which so clearly had not yet been finished, but in The Eye. Toohey had a long record of producing high-quality journalism as editor of the National Times, a newspaper which dominated the Australian political agenda for much of the 1980s, but had become disenchanted and moved on to set up The Eye, similar to Edwy Plenel’s French news site Mediapart.

At the High Court, as dusk was falling on 31 October, 1988, the attorney-general’s team told Mr. Justice Deane that Toohey’s magazine might contain the kind of information about ASIS which would be damaging to national security. They sought a temporary injunction to stop The Eye being published.

Had the attorney-general’s team stopped off at parliament on their way to the High Court their concerns might have been assuaged. For though the magazine wasn’t due to be published until later, there were many advance copies circulating among some of The Eye’s most avid readers, Australian politicians. There was nothing in the current issue about ASIS.

It seems that Toohey’s sources were better than those of Senator Gareth Evans, who later told Parliament that two days earlier he had received information that material about ASIS was likely to appear in the magazine. It could have been that publication had been intended in the following issue. The government would not apologise for acting in the national interest.

Evans, who made the switch from attorney general to Foreign Minister when Hayden left office, said he believed Toohey was going to publish an article outlining ASIS operations outside Australia, disclosing the identity of an ASIS officer. He believed publication of the material would prejudice national security. It would, he said, adversely affect ‘the further utility to ASIS’ of an officer or agent whose identity had been disclosed. The officer, their family and property could all be endangered, Evans argued. The fact was that Toohey had no intention of naming the ASIS officer – something that Evans later accepted – and the people he wanted to name were long gone from the service.

Australia, like other Western liberal democracies, had found itself struggling to deal with a newly assertive media, particularly in the form of journalists who did not play by the rules which governed much of journalism until the 1970s. In earlier days merely the threat of a D-notice was enough to tame the media. Both the National Times and The Eye broke out of this conformity, and without other laws to prevent publication of state secrets, the government had been repeatedly forced back on to the legal provisions provided even by interim injunctions seeking ‘prior restraint’.⁹⁹ The problem for the government was that if it won the case, by the time the court demanded there should be no further publication, it was too late.

It was not the first time that the Australian government had found itself outmanoeuvred by a newly inquisitive press. In 1983 it had successfully applied for a High Court injunction against the National Times as the newspaper began to publish a series of secret defence and Foreign Affairs documents called the AUSTEO Papers – top secret documents marked for Australian Eyes Only. Once again, by the time the case got to court the main thrust of the story had already been revealed.

After the ASIS case had been settled Evans told the Australian Senate that the principles guiding the government’s actions were those enunciated by Mr Justice Mason in another case of prior restraint.

The Court will not prevent the publication of information which merely thrown light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will inimical to the public interest because national security, relations with foreign countries, or the ordinary business of government will be prejudiced, disclosure will be restrained.¹⁰⁰

Toohey and Pinwill said that ‘while the concept of prior restraint was ‘repugnant and contrary to the democratic right of freedom of expression’, they had no choice but to accept the court’s decision and submit ‘every word of the completed manuscript to Canberra’, though they added the amendments and ‘re-phrasing which resulted from our negotiations have not impaired the overall integrity of the book’.¹⁰¹

Evans appeared to have gone part way to allowing the large part of the book to be published, untouched.

There is much in the manuscript that ASIS and the Government itself, would ideally prefer not to see published or re-published, but, recognising the importance of principles of free expression and freedom of information [there is] very little that we will actually seek to delete.¹⁰²

Nearly 30 years later in November 2016, he reflected on the way the government had dealt with protecting state secrets. Shortly after a memorial ceremony for an Australian strategic analyst, Professor Des Ball, whose work helped journalists better understand complex military intelligence issues and at the same time made him a target of ASIO (Australian Security Intelligence Organisation) surveillance, Evans told me: ‘In terms of the great policy issues the military secrets so called, the secrets of the [US] Alliance, the diplomatic secrets that people like to keep, 95 per cent of it is wildly exaggerated’.¹⁰³ He said it kept everybody ‘a lot more honest, a lot more disciplined and a lot more focused on sensible policy making if a lot of this stuff was in the open’.¹⁰⁴

He said he had ‘never got into so much trouble politically’¹⁰⁵ than when he took seriously the advice that he was given by the security agencies, whether it was ASIO or ASIS. To rush out in the ‘national interest’¹⁰⁶ to stop information being released which ASIO or ASIS thought should not be in the public domain,’by and large all those efforts to keep it out of the public domain proved absolutely fruitless’.¹⁰⁷ In retrospect there was ‘very little, of that secrecy that I felt was totally justified’.¹⁰⁸

Evans, who as attorney general was responsible for ASIO and later as Foreign Minister for the activities of ASIS, said that in his 13 years in Cabinet ‘very little of any of the stuff that was … gleaned [by ASIO or ASIS]’ added ‘much value to our understanding of what was going on, let alone our vital security interests’.¹⁰⁹ He thought the benefit from the intelligence agencies had been ‘pretty marginal’.¹¹⁰

Evans, a civil libertarian lawyer before he entered politics, might have been out of step with many of his contemporaries in other members of the Western Alliance with these views, but he would change his mind, after an event in the US in September. ‘I take a different view … regarding the counter terrorism stuff’,¹¹¹ he said. He was not alone among politicians.

Notes

    1  Herman, A. 26th April, 1987. Left-Wing Tabloid Joins Newspaper War. UPI [online]. Available at www.upi.com/Archives/1987/04/26/Left-wing-tabloid-joins-newspaper-war/6773546408000/ [Accessed 12 March, 2017].

    2  Herman, A. 26th April, 1987. Left-Wing Tabloid Joins Newspaper War. UPI [online]. Available at www.upi.com/Archives/1987/04/26/Left-wing-tabloid-joins-newspaper-war/6773546408000/ [Accessed 12 March, 2017].

    3  Legilsation.gov.uk. 1981. Contempt of Court Act, 1981 [online]. Available at www.legislation.gov.uk/ukpga/1981/49/contents [Accessed 1 July, 2017].

    4  Le Queux, W. 1909. Spies of the Kaiser. Hurst & Blackett Ltd, UK.

    5  Knightly, P. 1987. The Second Oldest Profession: Spies and Spying in the Twentieth Century. W. W. Norton & Company, New York.

    6  MI5. 2017. The Establishment of the Secret Service Bureau [online]. Available at www.mi5.gov.uk/the-establishment-of-the-secret-service-bureau [Accessed 10 January, 2017].

    7  Knightly, P. 1987. The Second Oldest Profession: Spies and Spying in the Twentieth Century. W. W. Norton & Company, New York.

    8  Cambridge University Library. 2017. Under Covers: Documenting Spies [online]. Available at www.lib.cam.ac.uk/exhibitions/Spies/captions.html [Accessed 10 January, 2017].

    9  Cambridge University Library. 2017. Under Covers: Documenting Spies [online]. Available at www.lib.cam.ac.uk/exhibitions/Spies/captions.html [Accessed 10 January, 2017].

  10  MI5. 2017. The Establishment of the Secret Service Bureau [online]. Available at www.mi5.gov.uk/the-establishment-of-the-secret-service-bureau [Accessed 10 January, 2017].

  11  Jackson, P. and de Castella T. 14th July, 2011. Clash of the Press Titans. BBC News [online]. Available at www.bbc.com/news/magazine-14136044 [Accessed 10 January, 2017].

  12  Moran, C. 2013. Classified: Secrecy and the State in Modern Britain. Cambridge University Press.

  13  Moran, C. 2013. Classified: Secrecy and the State in Modern Britain. Cambridge University Press.

  14  Moran, C. 2013. Classified: Secrecy and the State in Modern Britain. Cambridge University Press.

  15  Moran, C. 2013. Classified: Secrecy and the State in Modern Britain. Cambridge University Press.

  16  Moran, C. 2013. Classified: Secrecy and the State in Modern Britain. Cambridge University Press.

  17  Campbell, D. 1976. The Eavesdroppers. Time Out [online]. Available at www.duncancampbell.org/PDF/1976-may-time-out-the-eavesdroppers.pdf [Accessed 27 August, 2016].

  18  Campbell, D. 1976. The Eavesdroppers. Time Out [online]. Available at www.duncancampbell.org/PDF/1976-may-time-out-the-eavesdroppers.pdf [Accessed 27 August, 2016].

  19  Campbell, D. 1976. The Eavesdroppers. Time Out [online]. Available at www.duncancampbell.org/PDF/1976-may-time-out-the-eavesdroppers.pdf [Accessed 27 August, 2016].

  20  Cryptome. 1998. U.S. Electronic Espionage: A Memoir [online]. Available at https://cryptome.org/jya/nsa-elint.htm [Accessed 10 August, 2016].

  21  Chen, A. 12th November, 2013. After 30 Years of Silence, the Original Whistleblower Looks Back. Gawker [online]. Available at http://gawker.com/after-30-years-of-silence-the-original-nsa-whistleblow-1454865018 [Accessed 12 August, 2016].

  22  Chen, A. 12th November, 2013. After 30 Years of Silence, the Original Whistleblower Looks Back. Gawker [online]. Available at http://gawker.com/after-30-years-of-silence-the-original-nsa-whistleblow-1454865018 [Accessed 12 August, 2016].

  23  Bamford, J. 1983. The Puzzle Palace. Penguin, US.

  24  Campbell, D. October, 2016. Interview.

  25  Campbell, D. October, 2016. Interview.

  26  Campbell, D. October, 2016. Interview.

  27  Campbell, D. October, 2016. Interview.

  28  Campbell, D. October, 2016. Interview.

  29  Campbell, D. October, 2016. Interview.

  30  Robertson, G. 1999. The Justice Game. Vintage, London.

  31  Aubrey, C.1981. Who’s Watching You: Britain’s Security Services and the Official Secrets Act. Penguin, London.

  32  Robertson, G. 1999. The Justice Game. Vintage, London.

  33  Aldrich, R. 2010. GCHQ: The Uncensored Story of Britain’s Most Secret Intelligence Agency. Harper Press, London.

  34  Rees, M. 22nd November, 1976. Official Secrets Act 1911 [online]. Available at http://hansard.millbanksystems.com/commons/1976/nov/22/official-secrets-act-1911 [Accessed 24 July, 2017].

  35  Robertson, G. 1999. The Justice Game. Vintage, London.

  36  Campbell, D. October, 2016. Interview.

  37  Robertson, G. 1999. The Justice Game. Vintage, London.

  38  Hutchinson, J. 2015. Jeremy Hutchinson’s Case Histories: From Lady Chatterley’s Lover to Howard Marks. Hachette, UK.

  39  Hutchinson, J. 2015. Jeremy Hutchinson’s Case Histories: From Lady Chatterley’s Lover to Howard Marks. Hachette, UK.

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