AltVoices Article, June 2007

My art­icle in Alt​Voices​.org, June 2007:

THE OFFICIAL SILENCING ACT

Last month the UK’s dra­conian secrecy laws were again used to crim­in­al­ise two hon­our­able whis­tleblowers. The UK’s supine main­stream media failed both to ques­tion the valid­ity of these con­vic­tions and to hold the gov­ern­ment to account.

by Annie Machon

On May 9 David Keogh, a 50-year-old com­mu­nic­a­tions officer in the Cab­inet Office, and Leo O’Connor, 44, a researcher for an anti-war Labour MP, were con­victed of breach­ing the Offi­cial Secrets Act (1989).

Keogh’s crime was to have leaked an “extremely sens­it­ive” memo to O’Connor, detail­ing a con­ver­sa­tion about Iraq between Tony Blair and George W. Bush in April 2004.

Keogh passed the doc­u­ment to O’Connor to give to his MP in the hope it would reach the pub­lic domain, expose Bush as a “mad­man”, and lead to ques­tions in Par­lia­ment. The memo was deemed to be so secret that much of the trial was held in camera.

Keogh was found guilty of two breaches of the OSA, O’Connor of one, and they received sen­tences of six months and three months respectively.

This bald sum­mary of the case was all that appeared in the main­stream UK media. No doubt many people will have taken this case at face value. After all, the UK should be able to pro­tect its national secur­ity and impose tough legal sanc­tions for treach­ery, shouldn’t it?

Except that this was not treach­ery. Keogh and O’Connor were not passing the UK’s secrets to an enemy power. They acted from con­science to expose pos­sible wrong­do­ing at the highest level.

The media should have use this trial to address the ongo­ing debate in the UK about the con­tinual use and abuse of the OSA. Unfor­tu­nately for the Brit­ish people, the media toed the offi­cial line and kept quiet.

The UK’s secrecy laws are a very Brit­ish muddle. The first OSA was enacted in 1911 to pro­sec­ute trait­ors. This law remained in place until the 1980s, when the Thatcher gov­ern­ment was rocked by the alleg­a­tions of civil ser­vant Clive Pont­ing about a cover-up over the attack on the Argen­tine ship the Gen­eral Bel­grano dur­ing the Falk­lands War.

Dur­ing his trial, Pont­ing relied on the pub­lic interest defence avail­able under the 1911 Act. He was acquit­ted, and the Con­ser­vat­ive gov­ern­ment imme­di­ately drew up a new law, the 1989 OSA. This new law was designed primar­ily to intim­id­ate and silence whis­tleblowers. Treach­ery is still pro­sec­uted under the 1911 Act.

The 1989 Act, opposed at the time by Tony Blair and most of the cur­rent Labour gov­ern­ment, ensures that any­one who is or has been a mem­ber of the intel­li­gence com­munity faces two years in prison if they dis­close inform­a­tion relat­ing to their work without per­mis­sion, regard­less of whether they are blow­ing the whistle on crim­inal activity.

Since com­ing to power in 1997, Blair’s gov­ern­ment has repeatedly used this Act to sup­press legit­im­ate dis­sent, silence polit­ical oppos­i­tion and pro­tect crim­in­als within the intel­li­gence establishment.

In 1997, MI6 whis­tleblower Richard Tom­lin­son had no option but to plead guilty dur­ing his trial, and was sen­tenced to six months in prison.

Around the same time MI5 whis­tleblower David Shayler dis­closed the illegal 1995 MI6 plot to assas­sin­ate Col­onel Gad­dafi of Libya, as well as a string of other crimes com­mit­ted by MI5.

Dur­ing his trial Shayler argued that, under Art­icle 10 of the European Con­ven­tion of Human Rights, legis­la­tion such as the OSA is only pro­por­tion­ate in sup­press­ing a whistleblower’s right to speak out in order to pro­tect “national security”.

How­ever, his judges effect­ively ruled that this right should also be cur­tailed for “national interest” con­sid­er­a­tions. This neb­u­lous concept, undefined for the pur­poses of the OSA, is routinely wheeled out to spare the blushes of politi­cians and incom­pet­ent spy agencies.

In 2002 Shayler did win from the courts the defence of “neces­sity”. How­ever, the Law Lords spe­cific­ally denied him this defence without hear­ing his evid­ence. Shayler was con­victed in Novem­ber 2002 of three breaches of the OSA and sen­tenced to six months in prison.

In 2003 the late Dr David Kelly would also have faced an OSA trial for his alleged com­ments about the gov­ern­ment “sex­ing up” the notori­ous dodgy dossier before the war in Iraq.

The 1989 OSA does not just apply to those in and around the intel­li­gence com­munity. Other civil ser­vants, as well as journ­al­ists who pub­lish their dis­clos­ures, face the same prison sen­tence if the pro­sec­u­tion can prove “dam­age to national secur­ity”. Keogh and O’Connor were con­victed under these pro­vi­sions, although the pro­sec­u­tion reportedly relied only on the “national interest” argument.

The UK gov­ern­ment is increas­ingly con­cerned about secur­ity leaks dur­ing the unend­ing “war on ter­ror”, and is now talk­ing about doub­ling to four years the sen­tence for whistleblowing.

By fail­ing to chal­lenge this or to cam­paign for the res­tor­a­tion of the pub­lic interest defence, journ­al­ists are com­pli­cit in crim­in­al­ising hon­our­able people. The media’s craven atti­tude allows the gov­ern­ment and intel­li­gence agen­cies to con­tinue lit­er­ally to get away with murder.