Inside Story

Julie Bishop was (half) right

The convention that neither side of politics comments on the operation of intelligence agencies really only benefits agencies, the government and (sometimes) the opposition

Brian Toohey 21 February 2019 2161 words

Deputy opposition leader, Julie Bishop. AAP Image/Alan Porritt

First published 3 June 2010

MEMBERS of Australia’s intelligence organisations are public servants. If they break the law, endanger the lives of fellow Australians or otherwise stuff up, it should be a matter for public discussion. From this perspective, the shadow foreign minister, Julie Bishop, did the nation a service during an interview on 25 May when she said that she believed Australian officials had forged Australian passports for security operations. Although this was not Bishop’s point, the practice is illegal and potentially dangerous for innocent passport holders. Yet many journalists, security “experts” and senior ministers reacted as if Bishop had machine-gunned a pack of girl guides laying a wreath on a memorial to Simpson and his donkey.

Bishop gave the offending interview soon after she received a government briefing on why it had expelled a member of the Israeli intelligence service, Mossad, after concluding that Israel had fraudulently used Australian passports during an operation to assassinate a senior Hamas member in Dubai. Bishop simply observed that she understood Australian agents had done so too. Although the foreign minister, Stephen Smith, made it clear that her source was not a security briefing, some journalists and commentators presumed she had blurted out what she’d been told confidentially. But most of the fury was directed at Bishop for breaching what Kevin Rudd called a longstanding convention that neither side of politics speculates or comments on the operation of our intelligence agencies.

Smith told parliament he was “shocked… absolutely shocked” by Bishop’s breach of the convention and insisted that she must “slavishly” adhere to it in future. He even quoted favourably from John Howard’s claim that a “fundamental principle” prohibits any comment “on intelligence and security matters.” Howard’s definition was not confined to “operational” matters, but Smith told parliament it is “a very sound principle, indeed.” On the contrary: it is profoundly anti-democratic. Although it is of tremendous value to those wanting to conceal abuses of power, this bipartisan convention undermines the accountability of public servants acting on behalf of all Australians.

There is no justification for preventing discussion of all intelligence and security matters. Nor is there any reason for a blanket ban on discussing operational matters. (Exceptions should normally be made to protect lives or worthwhile operations.) Reprehensible behaviour has often been encouraged by a belief that a wall of secrecy will protect those who are responsible. As a result, a vast array of official reports, books and media have made disclosures about Australian, British and US operations that involve actions ranging from plain silly to morally repugnant.

The journalists and commentators who lined up four-square behind the convention showed no sign of remembering the brazen political manipulation of false intelligence about weapons of mass destruction before Iraq was invaded in clear violation of article one of the ANZUS and NATO treaties. Likewise, they appear to believe that it’s fine to prevent politicians from commenting on the Australian Security Intelligence Organisation’s role in the CIA’s “rendition” of an Australian citizen, Mamdouh Habib, for torture in Egypt before his eventual release, without charge, from Guantanamo Bay. According to the convention, all politicians should also have remained silent if they had learned at the time about ASIO’s mistreatment of a NSW medical student, Izhar ul-Haque, in 2003. Fortunately, the convention did not stop a NSW Supreme Court judge, Michael Adams, from later finding that ASIO had kidnapped and falsely imprisoned ul-Haque during an “operation” in Sydney.

But the best-known example was in November 1983, when the overseas spy agency, the Australian Secret Intelligence Service (ASIS) conducted a training operation at Melbourne’s Sheriton hotel where members of a covert action group, wearing masks and waving silenced sub-machine guns and hypodermic syringes, ran around frightening staff and guests. ASIS had not bothered to tell the hotel management that the operation would occur. The trainees (including part-timers) were lucky not to be shot by the Victoria Police, which had not been told about the operation either.

If this reckless operation had not otherwise become public, the convention would have prevented a well-informed politician from revealing anything about it. The gun-toting ASIS members were operating under assumed names and ASIS’s then political master, the Labor foreign minister Bill Hayden, refused to supply Victorian prosecutors with their real identities and other information so charges could be laid for serious breaches of Australian law.

NOW THAT the use of false identities has resurfaced, a few journalists and observers have refused to join the clamour in support of conventions that deny them information pertinent to their job. Barrie Cassidy is one. On the ABC’s online commentary site, The Drum, Cassidy wrote that in the United States and Britain, following revelations about torture atrocities committed by intelligence agencies, “neither politicians nor the media were cowed into silence because of some ‘convention.’” Cassidy asked, “How is it that the USA and Britain can openly debate the limits of torture and publish guidelines for interrogations, but in Australia, politicians can’t even speculate as to whether forged passports are part of our intelligence operations? … Of course there are boundaries, but… you cannot and should not slavishly adhere to some sort of unwritten convention that prevents all discussion, no matter the circumstances or the substance.”

A former intelligence analyst at the Office of National Assessments, Sam Roggeveen, wrote an incisive piece for The Interpreter, a blog he now runs for the Lowy Institute. After senior journalists attacked Bishop for breaking the convention, Roggeveen said, “Whenever politicians make policy comments at odds with their party colleagues, they are slammed in the media for disunity. Now it seems the Canberra press gallery is enforcing discipline on behalf of the government and the intelligence bureaucracy as well.” He went on: “We would be alarmed if this convention was invoked to shut down all debate about intelligence issues… What’s more, against Bishop’s minor offence you have to weigh the fact that her comments have further opened a valuable line of journalistic inquiry.”

Roggeveen noted that the Fairfax newspapers recently reported that a new intelligence review may recommend greater domestic surveillance powers, and that ASIS officers would be given significantly increased freedom to carry weapons and engage in “paramilitary activities” abroad. “There’s a real story here about what kinds of activities the government wants our intelligence agencies to perform,” he wrote. “Hopefully, Bishop’s remarks will push that story along, rather than being just another press gallery ‘gotcha’ moment.”

Developments in that story are yet to emerge, but the Sydney Morning Herald’s national security correspondent, Dylan Welch confirmed more details about how Australian agencies make use of false passports. And, of course, the use of fake passports by ASIS officers will become much more serious if they are allowed to run around with guns.

Not that Bishop shares these concerns about fake passports; she made her revelations to support her claim that expelling the Mossad official was an “overreaction” because other countries, including Australia, engage in a similar practice. But she unintentionally raised a problem identified by Cassidy, who wrote, “Surely, if the Australian government feels the need to kick out a diplomat because Israel forged Australian passports, then it would be unconscionable for Australia to engage in the same practice. If Australia doesn’t, then why can’t the government simply say so? How would it be against the national interest to declare such practices beyond the bounds?”

Welch highlighted the government’s difficulty when he reported on 27 May that the Department of Foreign Affairs and Trade issues Australian security agencies with false passports to help covert operatives function overseas. He said his sources confirmed that Australia also has a longstanding tradition of providing passports to overseas intelligence agencies within the “Western intelligence club,” specifically Britain, the United States, New Zealand and Canada.

Welch reported that Australia does not use the identities of its citizens, but creates a passport of a fictitious person and provides it to an intelligence operative. “There is a big difference between creating fake passports and using real passports,” he wrote. “What Israel did was to forge the passports of actual foreign nationals, including four Australians.”

Yes, there is a difference, but it does not render the practice innocuous, or legal. If the fictitious passport gives a fake occupation for its holder – and the ASIS officer is uncovered – this could throw suspicion on people with a genuine passport showing the same occupation. This is unlikely to be a big problem if ASIS officers pose as Australian diplomats or trade officials while doing no more than “run” agents purely to gather intelligence. If the host country’s counter-intelligence service objects to the activities of an ASIS officer in this regard – and the transgression is serious enough – expulsion may follow. But genuine diplomats or trade officials are unlikely to be tossed into jail.

This outcome could easily change, however, if ASIS officers use non-official cover – for example, posing as journalists or aid workers – to engage in “dirty tricks” or assassinations in an unfriendly country. The idea is not fanciful. The CIA’s access to this type of cover was banned in the 1970s, but it has since been revived for use in countries such as Iraq, Afghanistan and Iran. It raises the prospect that hostile governments or groups could detect covert-action operatives working for the CIA or ASIS with passports purporting to belong to journalists or aid workers. Genuine Australian journalists and aid workers in these countries would then run the risk of being captured and treated as enemy intelligence operatives.

In these circumstances, the government should reject the proposal for deep-cover ASIS officers to participate in paramilitary or similar high-risk operations. Some former ASIS officers say privately that they believe the service should focus solely on intelligence gathering, a delicate task requiring different skills from those often displayed by people who enjoy firing guns. From this perspective, if Australia is willing to kill people overseas – without engaging in extra-judicial executions – this job is best left to Australia’s armed forces as part of a lawful deployment.

APART from offering cover to dubious behaviour within the security services, the convention that the security services are off-limits is used too often by ministers to keep the lid on embarrassing activities that should see the light of day. It serves to encourage abuses of power and prevents opposition politicians from making governments more accountable.

Kevin Rudd took a different tack in opposition, however, by using the convention to his own advantage when he did not want to answer questions. He repeatedly told the media he did not have enough information to discuss a politically awkward issue without a briefing from the Howard government. When he did have a briefing, he would then say he couldn’t answer questions because they involved material covered by the briefing.

Meanwhile, John Howard had perfected the technique of claiming that intelligence material vindicated the government but was too secret to release. He did this with an Office of National Assessments note that supposedly backed his claim that asylum seekers had thrown their children overboard. It later became clear that ONA had said no such thing. But the most spectacular example was his claim that the Australian government “knew” that Iraq possessed weapons of mass destruction in early 2003 and that ONA had vetted the accuracy of all his speeches on the subject. The government had no such knowledge and ONA never endorsed the accuracy of the false intelligence from overseas that Howard quoted extensively. But Howard was rightly confident that ONA would not publicly contradict what he said because it valued its ongoing links with the US and British agencies supplying this nonsense.

Not all intelligence agencies performed badly on Iraq. The Defence Intelligence Organisation did a good job before the invasion when it concluded that Iraq was unlikely to possess viable quantities of weaponry that posed a threat to its neighbours, let alone Australia, the United States or Britain. DIO’s only reward from Howard was to be ignored.

ASIO, for its part, performed in an exemplary manner when the Australian Federal Police charged Mohamed Haneef with terrorism offences. ASIO immediately advised the government in writing that there was no evidence that Haneef was a terrorist, or terrorist supporter, or in any way a threat to Australia or any other country. The only action Howard took on ASIO’s accurate advice was to make sure it remained secret while Haneef was pilloried in public.

Yet Stephen Smith told parliament that the former PM was “very careful to respect” the principle that politicians must never discuss intelligence maters. In fact, Howard repeatedly quoted from intelligence material on weapons of mass destruction that was worthless. The only thing he was careful about was never to reveal the accurate intelligence that DIO provided on those weapons or ASIO on Haneef. Respecting the convention in this regard served his own political interests, but not those of the nation. •