Over in the United States, a former national security adviser to Donald Trump, John Bolton, has a book about to hit the newsstands. It is very critical of and indiscreet about his former boss. It shows Trump double-dealing with China, approving, not disapproving, of its persecution and detention of the Uighurs, and seeking China's help in securing re-election by buying soybeans and wheat.
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Notionally, China is public enemy number one with the US at the moment, with Trump's attempts to blame it for many of his political misfortunes, including his mismanagement of COVID-19. Australia and The Australian, in familiar postures, are seeking to anticipate an American confrontation with it, and focusing hostility on us. Perhaps we are unconscious of relationships being more cosy than they appear.
It is said that China would very much prefer that Trump be re-elected. Bloomberg's Peter Martin interviewed current and former Chinese officials who said "the benefit of the [Trump-caused] erosion of America's post-war alliance network" would outweigh any short-term damage to China from Trump's trade shenanigans. No one seems to have informed our Foreign Minister, Marise Payne, who is still throwing coal on the fire, as it were.
Nothing about Donald Trump - or John Bolton, for that matter - ever surprises. Trump has called Bolton a liar, as usual when he falls out with, and sacks, his former close advisers. He says Bolton was dumb with no friends. And his administration is attempting, at the very last moment, to prevent distribution of the book, which was to be formally launched on Tuesday, after, as usual with books of this sort, the sale of excerpts to newspapers prior to publication.
The intervention is probably too late. Hundreds of thousands of copies have already been dispatched by the publisher to thousands of bookshops, and overseas, including Australia. I doubt they could get them all back. If the book contains information which could damage American national security interests, I should be very surprised if spies from Russia, or China, or Germany, or even Australia cannot intercept at least one copy each, with all of the damage to world peace this might entail.
Oddly, Bolton, ever zealous for a belligerent United States, if seemingly determined to injure the political prospects of Trump, discounts any fear he might weaken his nation. It may be he thinks that getting rid of Trump would, by itself, make America greater. He says that anyway he cleared the book with White House security folk. We can assume he means to embarrass Trump and his court, but that he does not extend to disclosing the nation's secret codes, weapons stocks, or battle plans.
On paper, the US military and intelligence establishment is far more security-conscious than Australia. Over the years, the US has either withheld intelligence information from Australia or threatened to, because it has not trusted our security, or, more often, some of its guardians, particularly politicians. This often makes Australian officials paranoid about disclosing information exchanged with the US, even if it is revealed to congress or leaked to The New York Times.
Yet many American military and security officials write books immediately after leaving government service. Sacked or loyal to the end, they disclose details of who said what and when, with accounts of close deals with enemies and allies. These are almost invariably unflattering to both, and on subject matters about which the Americans would go bananas if it were leaked by the other side, including by our leaders or our own leakers.
Or they give extensive off-the-record interviews to insider journalists such as Bob Woodward, who then write detailed accounts of sensitive military actions and interchanges with other countries and players, including details of intelligence assessments and military strategies and tactics. These tend, of course, to praise most those who help most.
There are American, such as Chelsea Manning, who have been in jail for disclosing secret material. Others, such as our own Julian Assange of Wikileaks, are fighting extradition. But not many Americans in the political sphere have ever been punished for disclosing information which suited their personal interests, even if it undermined confidence in the nation's leadership.
I expect that Bolton is right in thinking that his disclosures will not much damage US national security. Damage and embarrassment to Trump and his present team, undermining a negotiating point, or disclosing a fact not necessarily known to the other side does not always cause long-term damage to relations with other nations. That's because everyone knows both that boys will be boys and that national players are not always boy scouts.
Even disclosures which damage personal friendships and trust between political leaders may not do serious damage to long-standing or almost permanent relationships. Trump is a blamer, never forgets a grudge, and is often petty. On that account, officials in PM&C will swear blind in FOI documents that the world, as we know it, will come to an end if it gets out that Trump vetoed a dinner invitation to a religious mate and mentor of our Prime Minister. Right now, Trump loves Scott Morrison. But the alliance has not greatly faltered when our leaders have detested each other, as has often happened.
It is a wonderful conceit and power that an official can come up with an idea without any status ... mark it Top Secret, and then demand that anyone who leaks or publicly discusses it be prosecuted and sent to jail.
The distinction between information embarrassing to politicians or security officials and what truly damages the national interest is not often discussed in Australian law. But there is a 1980 High Court case, which may end up trumping - as it were - some modern national security legislation which, in the correct sense of the word, begs the question of damage to the national interest.
It seems bound to arise in almost all of the national security cases coming up for hearing in the ACT Supreme Court, if with a danger of being resolved behind closed doors. These cases also raise the question of whether the national security veil can cover moral or legal wrongdoing by Australians, however embarrassing.
A former ASIS official, Witness K, faces sentence for allegedly damaging our national security interest by disclosing that he had been involved in bugging the East Timor cabinet room during tense negotiations with Australia more than a decade ago. It was in the Howard government's time, and involved the resetting of our border with East Timor. Defending a similar charge is Witness K's lawyer, Bernard Collaery, also at the same time the lawyer for East Timor in proceedings in an international court seeking to upset the deal ultimately made.
Yet another whistleblower openly leaked information to the ABC about the involvement of Australian soldiers in alleged war crimes in Afghanistan.
In my opinion, Australians are better off for each of these disclosures. In my view the public interest in knowing how awful our politicians, officials and soldiers are, if they are awful, trumps the public interest in keeping it a secret. In the Collaery case, there are closed hearings about whether and to what extent the hearings ought to be open hearings, normally a fundamental feature of a proper justice system. So fundamental, in fact, that I cannot think of an Australian judge I would trust to come to a correct decision without having to perform in the open. Having some evidence - say, from a rape victim - in secret proceedings is one thing. Having the whole hearing closed and beyond public scrutiny is not justice at all.
Law can't hide hypocrisy, lying and double-dealing
Forty years ago, Justice Anthony Mason, later Chief Justice of the High Court, made it clear that mere embarrassment - or the avoidance of being found to be a hypocrite - is not enough to justify the protection of the courts when the government is involved.
Governments, Mason said, did not have private interests. They governed in the public interest, and courts, when asked to protect government information, would look at the matter through different spectacles than when protecting the rights or privacy of an individual.
"It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism," he said.
"But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism.
"It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action. Accordingly ... unless disclosure is likely to injure the public interest, it will not be protected."
Against that general principle, of course, is now an array of national security legislation telling judges what to think, enacted during the great terror after September 11, 2001. In general, what they should think is what Peter Dutton or Mike Pezzullo, or both, think. The benefit of every doubt goes to secrecy and suppression and the avoidance of transparency, more or less on the basis that one cannot be careful enough. Cowed judges have already conducted criminal trials in secret without the public having any idea that a person has been charged, tried and sentenced, without even the charge being known. In at least one case, even the ACT Attorney-General and the ACT minister for our prison system did not know how our courts were being used by the Commonwealth.
There is discussion to be had of how Australia, like many other countries such as Britain, France and the US, regards as being within the national interest the prosperity and success of big Australian commercial operations abroad. This would be a surprise to many Australians, who put matters of commerce in a different basket from the defence of the nation.
There have been scandals in the past when the intelligence-gathering capacity of Britain's MI5 might be deployed to help a British engineering operation win a dam-building contract in India, a submarine contract in Malaysia, or a defence deal with Israel or Saudi Arabia. The "help" might include bugging officials of the government awarding the contract, or spying on and bugging the conversations and telecommunications of competitors from other countries, such as, say, Australia or the US. British government spooks might provide regular transcripts of the conversations of buyers or rival companies, including discussions of bottom lines. Of course, we, and some of the other sophisticates, do the same back, and perhaps cancel these unnatural advantages out.
Some operations by some countries might even include - have, on occasion, been said to include - bribing, compromising or corrupting people involved in the process.
One can see how it can be argued that the contract or desired outcome brings profit and income to the nation domiciled in the relevant country, but others fear how we compromise ourselves when systems designed for the nation's ultimate defence are deployed in vulgar commerce, often for the benefit of "Australians" who are less than exemplary international citizens.
In the Collaery and Witness K case, Australia's spying was rather less than for the nation's foreign affairs or defence interests than for the benefit of Woodside Petroleum, only notionally an Australian company, but the beneficiary of a border unfairly skewed to Australia's interest. It was all the more unattractive, as some would see it, when the chief negotiator, our foreign minister Alexander Downer, and his senior adviser, Ashton Calvert, soon afterwards left government and went on to very handsome retainers from Woodside.
It would not surprise me if most Australians thought that bugging little East Timor was immoral, wrong, and unsporting, and definitely not in Australia's long-term national interest. All the more so when the existing boundaries had been rigged. Those who think this are not disloyal to Australia - right or wrong. They may reason that behaving decently, particularly to poor countries, is in our long-term interest. Just as a person could have been a loyal Englishman 150 years ago while thinking that forcing China to buy opium was terribly wrong and short-sighted.
So far, Justice David Mossop, the judge overseeing the Collaery case, has not had to determine such questions. His focus is on open court or not. On that, he has heard from former ambassador to Indonesia (and many other countries) John McCarthy, former chief of the Defence Force staff Admiral Chris Barry, and former foreign minister Gareth Evans, all called on behalf of Collaery to argue that no damage to the national security will ensue from the facts being recited in open court.
The issue of whether embarrassing disclosures are in breach of national security has also arisen in a case that police have now abandoned. Mike Pezzullo, of Home Affairs, was discussing with senior defence and defence intelligence officials whether national security powers ought to be extended to increase the amount of monitoring and surveillance of citizens by signals intelligence agencies. Not surprisingly, they all agreed that this was a good thing - though the government, once it came out, dismissed the proposal out of hand. Going by the vehemence of the denials, it seems that the officials had ambushed the ministers, none of whom (they say) had asked for such a proposal.
The exchanges of correspondence, in letters marked Top Secret by the authors, were leaked. The AFP raided the house of the relevant journalist, Annika Smethurst, including combing through her underwear cupboards, but, perhaps characteristically, had a dodgy warrant. Regardless, top cops had made it clear they held media protests about their intrusions in the deepest of contempt.
It is a wonderful conceit and power that an official can come up with an idea without any status - with the no-doubt coincidental capacity to increase the size of his bureaucratic empire - mark it Top Secret, and then demand that anyone who leaks or publicly discusses it be prosecuted and sent to jail. In such a proceeding, there are only the faintest protections for the public interest in disclosure, and the legislation, drafted from within the club, seeks to foreclose on discussion about whether the proposed activity is in the national security interest.
MORE JACK WATERFORD:
Michael Pezzullo has a lot of national security expertise and experience. But a good many of his colleagues do not see the world in his apocalyptic way, and do not agree with his ideas - which lean to the extreme, and are very impatient with talk of human rights and balances of interests. He is not famous for encouraging debate, or for seeking underlings with views different from his own so as to test his ideas. As he has accumulated power, and imagined for himself a need to co-ordinate everything, he has created his own intelligence agency inside his department, adding to ASIO, the AFP, others already in defence, and PM&C. It is supposed to be focused on border surveillance and drug smuggling, but, absent resistance from outside, is conceived of being able to have an opinion on everything.
The accumulating power of any person in his position ought to be subject to scrutiny and debate. It is not an aim much helped by assumptions that leaking his plans is, prima facie, a crime, likely to rent the national fabric. It is clear that his minister, Peter Dutton, has no stake in reining him in. Dutton is determined to make issues of law and order, border security and national security deeply politicised.
Nor is it clear that rival agencies, even departmental outliers such as ASIO, the AFP, AUSTRAC, the Crime Commission and so on, have the personalities, the leadership or the credibility to counter him in external or internal debate.
Mike Burgess, formerly at the Australian Signals Directorate and now at ASIO, is a splendid career intelligence officer, slightly leavened by a short period in the private sector. He is well respected by insiders. But the capacity of ASIO to do its job - whether in pursuing spies or terrorists or developing its computer security talents out of Burgess's expertise - depends a good deal on public confidence in the steadiness, moderation, common sense, and breadth of the organisation, particularly its leader.
Over the past few decades, ASIO has acquired new resources and powers - including, quite wrongly, executive functions - with a grudging and suspicious public consent based mainly on confidence in the personality of its leader. That usually requires some reputation outside national security. Burgess's problem is that he has no public reputation other than as a clarion of doom. If he has ever seen a power he doesn't want, a threat he doesn't think very serious, a creep of function out of his remit, the public isn't aware of it.
Twelve years ago, ASIO was given considerable credit for publicly disagreeing with AFP assessments that Dr Mohamed Haneef was a terrorist. It didn't panic when officers of other agencies failed - in some cases, as the inquiry concluded, losing objectivity. Politicians played by their instincts, which is to say badly. The experience is no guarantee that a similar challenge could not arise again, this time with many more institutional factors commanding panic, overreaction and misinterpretation. The public has as yet little idea how Burgess would juggle the public interest and the national security interest.
Yet somehow I cannot see Mike Pezzullo or Mike Burgess, or our Attorney-General who is giving impetus to all of these national security prosecutions, agitating for the US to deal with John Bolton. First, he's a politician - a protected species in these matters, especially if politically conservative. Second, in the US where "rights" for white good old boys are taken very seriously unless you are Julian Assange, it would become quickly a cause celebre of free speech, human rights, and common or garden political payback. These are not concepts recognised by our law or practice.
- Jack Waterford is a former editor of The Canberra Times. jwaterfordcanberra@gmail.com