Wikileaks and Spycatcher – a few parallels. (an edited version of this was run today in The Age)

In 1986 Lucy and I represented a former MI5 officer, Peter Wright, in his efforts to publish his memoirs “Spycatcher”. Mrs Thatcher, then Prime Minister of Britain, was determined that no former MI5 officer should ever be able to write about his work regardless of whether the information was still confidential, impacted on current operations or was otherwise of any real detriment to intelligence services.

While it is true that some of the best legal minds of the day had advised Wright’s publishers he had no hope of success, we always thought that the old spook turned Tasmanian horse breeder, would succeed.

That was because of a decision of the High Court of Australia in 1980, Commonwealth v. Fairfax, in which Sir Anthony Mason had held that a government could only restrain the publication of confidential information if it could establish that the information was still secret and, most importantly, that is publication would cause real detriment not just embarrassment, public debate and controversy.

“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.”

It was also a fundamental part of our jurisprudence that a court would not restrain the publication of confidences if their disclosure would reveal the commission of crimes and unlawful acts.

It is worth remembering too in this context the words of US Supreme Court Justice Black in the Pentagon Papers case:

“The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion and assembly should not be abridged.”

Spycatcher ticked all of those boxes. For a start the contents was at least twenty years out of date and had no relevance to current operations. Almost all of it had been previously published by the journalist and trusted MI6 mouthpiece Chapman Pincher in his book ‘Their Trade is Treachery.” The information in that book had been provided by Wright to Pincher in an arrangement brokered by Lord Victor Rothschild with the assistance of MI6 and the prior knowledge of MI5. Further there was material which revealed acts of criminality on the part of British intelligence officers.

So an obvious response for the British Government would have been to say “It’s a load of old cobblers – we will keep an eye out for it in the remainders section!” But instead they decided to make a martyr of Wright and fight a furious legal battle not just in Australia (where Wright lived) but around the world making themselves look foolish and Wright very rich.

In an effort to get the book published before a trial we offered it up to MI5 to be blue pencilled so that if there were any matters impacting on current operations they could be excised. They refused to co-operate – it was all or nothing.

There are a few lessons from Spycatcher for all concerned.

Mr Assange should make sure that any further documents published do not contain information that would impact on current operations and especially in a way that would put lives at risk. We are engaged in a global struggle with Islamist fundamentalist terrorism and any material which assists our opponents should not be published. Any material which puts the lives at risk of those who help us in that struggle should not be published and to do so is morally reprehensible whatever its legal character.

Governments and politicians should be very careful not to make a martyr of Mr Assange and fools of themselves. Julia Gillard’s claim that Assange had broken Australian laws when it is clear he has not only demonstrates how out of depth she is in this as in so many other areas.

And one may well ask whether her denunciations would be so shrill if instead of the documents being given to Mr Assange they had been handed to a powerful newspaper group.

If “The Australian” had received that file and its contents were being dribbled out by News Corporation newspapers would she be accusing Rupert Murdoch of high crimes and misdemeanours? I don’t think so.

Julian Assange is an Australian citizen. No matter how much the Government disapproves of his actions it should make it clear that he is entitled to return to Australia if he wishes and to receive consular assistance if the charges of sexual assault proceed in Sweden.

I have heard conflicting reports of whether Mr Assange has invited the State Department to blue pencil the materials he has received. While it may stick in their craw to do it, the US Government should take up that opportunity if it is offered to them. After all this is not the first leak of security related materials, what is shocking is the extraordinary scale of the leak – over a quarter million documents. Harm minimisation should be the order of the day for Washington.

Extravagant demonisation of Mr Assange and the leaks only makes them more exciting than they are. Is it really a story that American diplomats think Silvio Berlusconi is a skirt chaser or that Kevin Rudd was a control freak presiding over a chaotic, dysfunctional government? It would be amazing if they had reached any other conclusion.

Just as the vindictive pursuit of Peter Wright turned his book into an international best seller, so the furious attacks on Mr Assange are likely to be counterproductive. It is hard to know what to say about the Swedish sexual assault charges other than to observe that the facts so far outlined by the prosecution would constitute an unlikely basis for a prosecution in Australia.

American politicians might use their time more productively working out how a 23 year old army private had access to so much confidential material and was able to copy it and hand it over to Mr Assange. The long term damage from the wikileaks cables is likely to be that it confirms that despite spending billions on security and the war against terror, the US Government is unable to preserve the security and confidence of those it deals with right around the world. It will take a lot of reassurance before the chilling impact of these leaks wears off.

As to the contents of the cables the material seems to me to fall into three categories. There are the many penetrating glimpses of the obvious such as those relating to Berlusconi and Rudd. I could not imagine Australian legal principles justifying a ban on the publication of that material.

There are some cables with information which is not surprising but the publication of which is diplomatically damaging, such as the report that Saudi Arabia had urged America to attack Iran. Although I should note that this cable was received rapturously in Israel! One can see the argument that this sort of material should not be published, but I doubt whether a newspaper would resist the temptation to print it or that a court would injunct it.

The third category are those cables which reveal enough information to identify people who are informants of the US Government in circujmstances where the disclosure would put their lives at risk. That is material which should not be published and which a court, were it to have jurisdiction, may well decide to injunct on the basis that the publication would cause “real detriment” as opposed to embarrassment.