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Paradoxes of secrecy Duncan Campbell Index on Censorship 1988 17: 16 DOI: 10.1080/03064228808534500

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Duncan Campbell Paradoxes of secrecy The Prime Minister and her officials are utterly disdainful of press freedom, open government or the American concept of the press as 'fourth estate'

Freedom of speech and journalistic But juries and many judges have never possibility of similar domestic political pluralism, which survived and occasionally liked the law. When journalists or activities in Britain. In 1975/76, the author thrived in Britain in the first half of the 'whistleblowers' (confidential sources or became part of this largely left-oriented 1980s has since then been debased and informants) have made disclosures in the interest. abused with increasing frequency. For the public interest, successive trials (including Although such activities as reporting the moment the UK cannot bear comparison my own trial on secrecy charges, ten years role of the CIA in Britain were not visibly with many governments' violent or ago) have shown that they are unlikely to opposed at the time by legal or security murderous excesses against the press. But be convicted; or if convicted, unlikely to be authorities, we have subsequently learned security forces are being given greater punished. In a particularly embarrassing that during the mid 1970s, the UK Security licence, and the deliberate suppression of 1985 case, senior defence ministry official Service (widely known as MI5) was investigative journalism already plays a Clive Ponting was acquitted of Official completing a major realignment of its role. major role in facilitating state 'counter- Secrets charges for having passed Instead of concentrating on the traditional terrorism'. Almost a decade of ministerial papers to an MP. The leaked target of foreign espionage (primarily from authoritarian rule under Prime Minister papers showed that the government had Soviet Bloc entities), MI5 moved many of has scarred freedom of misrepresented the circumstances of the its resources to look inwards at so-called expression on controversial topics, and in sinking of the Argentine battleship 'domestic subversion'. Journalists, as well the broadcast media, for many years to Belgrano during the 1982 as lawyers, elected politicians, and liberal come. Falklands/Malvinas war. and law reform campaigners came under The legal basis of British government Widely drawn as the Act is, its greatest particular attention. secrecy is the wide-reaching and unpopular effect has been the long term During this period, from 1972 on, the Official Secrets Act (OSA), which was discouragement of any sort of 'open MI5 rules regarding which organisations or passed in 1911. The Act makes it illegal for government', rather than the instigation of individuals might be put under surveillance any public official or civil servant in Britain numerous prosecutions. Technical breaches became particularly elastic. I and some to give any information about government of the law by journalists have generally other journalists, who had no Communist, activity to the public —<- unless the been frequent, and are usually ignored Trotskyist or other far-left affiliations, were government has authorised it first. The bill except in cases of particular political justified as security service targets by being was passed in an era of exceptional embarrassment. Among the many categorised, bizarrely, as 'unaffiliated patriotic fervour, when Members of paradoxes of British secrecy is that critical revolutionaries'. The National Council for Parliament in disagreement with the Act reporting of such sensitive areas of Civil Liberties was made a formal security were forcibly confined to their seats to government affairs as domestic security target for equally ill-justified reasons (the prevent them speaking. service activities — an area which was marriage of a single senior official to a For anyone in Britain, receiving or taboo for mainstream media organisations former Communist party member was held indeed hearing of any official 'note, throughout most of the 1970s — became to make the organisation a 'Communist document or information', no matter how commonplace by the mid 1980s. front'). From May 1976 onwards, my trivial, is an offence 'unless the recipient So although Mrs Thatcher's government telephone line was tapped, an activity proves that the communication... was has had available at all times the sweeping which has to my knowledge continued well contrary to his desire'. The law covers all powers of the OSA to inhibit public into the mid 1980s, and probably continues official information, not just classified or discussion or journalistic enquiry, it has to this day. military data. All violators, including never actually used the Act for prosecuting The counter-attack against investigative reporters or editors who receive journalists. However, new changes in the journalism began in 1976-7. First, two unauthorised official information may be civil and criminal law have been proposed American writers, Mark Hosenball and punished by up to two years imprisonment or enacted in 1987 and 1988 which have Philip Agee, were deported as 'threats to — even if they do not publish. Section 2 of already seriously undermined independent national security'. Under prevailing the Official Secrets Act automatically or investigative reporting. procedures, no evidence was presented as to covers data about such items as agricultural what activities of theirs constituted the subsidies and health statistics. alleged threat. But it was soon clear that If 'investigative journalism' has a Hosenball's 'offence' had been the co- Duncan Campbell (35) has been an specifically British history, it began in the authorship, with me, of the first article ever investigative journalist in Britain for 12 1960s, with teams of TV and Sunday to describe the activities of Government years. He is now Associate Editor

Downloaded from ioc.sagepub.com by Natasha Schmidt on April 9, 2013 16 INDEX ON CENSORSHIP 8/88 Paradoxes of secrecy journalist were arrested in a connected case. author's definition, at any rate. Much many newspaper titles in the hands of the I and Crispin Aubrey were accused of tabloid (popular newspaper) journalism News International group controlled by the breaking Section 2 by having interviewed a claims the label of'investigative Australian/American entrepreneur, Rupert former soldier, John Berry. The case, which journalism'. Such writing often is the 'we Murdoch. Murdoch's takeover moved the became known as 'ABC after the expose the scandal of gay vicar' type of Sunday Times and Times significantly to the defendants' surnames, took almost two story. Characteristically, these reports are right, and cost these papers all their best years to come to trial. During this time the an intrusion into private lives of the investigative reporters. prosecution introduced several charges of powerless by enormously more powerful The Sunday Times 'Insight' team had espionage, one of which was intended to media corporations. I do not believe that, hitherto been a role model for investigative criminalise investigative reporting in to the extent that these stories use journalism. With that gone, in the new general. This new charge, which was investigative methods, they constitute mood of the times, investigative journalism quickly to fail in the final trial, asserted that 'investigative journalism' in the normal, became seen increasingly as a minority or it was an offence to gather publicly public-interest, sense of the term. left-wing anti-authoritarian enterprise. available information, if deductions might That investigative journalism may be Nevertheless, investigation could continue be made from these 'open' sources. characterised by its relationship to the through the 1980s, despite the maintenance The ABC secrets trial was, ironically, • distribution of power within society, and by of the OS A and a separate press self- sanctioned by a Labour (socialist) journalistic intervention typically on behalf censorship organisation, known as the D government. The result of the case, of the less powerful against the more (for Defence) Notice system. Mrs discharges for myself and my fellow powerful. In another sense, investigative Thatcher's government seemed to face journalist, and a short suspended sentence journalism can only be defined by antithesis more unauthorised leaks of cabinet for the former soldier, was widely held to to the more conventional reactive rather material than her predecessors; but only compel the goverment to introduce long- than pro-active type of journalism. So it's two cases of leaks to the press led to promised changes in secrecy laws, and not 'lobby' journalism, or the rewriting and prosecution. In the first of these, in measures for open government. The recycling of press releases. It goes along . 1983/84, a Foreign Office clerk admitted Labour administration continued to drag with the old American maxim — 'the news giving copies of memoranda about the its feet, and fell from power six months is what someone, somewhere doesn't want deception of parliament about cruise later. to see printed'. It has often been called missile deployment plans to a newspaper; 'muckraking'journalism, which should she was gaoled for six months, under properly be seen as a term of approbation, Section 2. But when only a year later the One of the earliest new laws proposed by rather than of disapproval. senior defence ministry official Clive the incoming Conservative government The decline of such reporting in Britain Ponting was acquitted by a jury, on public under Margaret Thatcher was a new in the 80s resulted from many factors; new interest grounds, it was apparent that the 'Protection of Official Information Act*. technology, offices and working practices law remained substantially unusable. In the familiar guise of a liberal, reforming in the newspaper industry more than the During this period, my own reports were measure (which withdrew criminal authoritarian outlook of the Conservative four times the subject of investigation by penalties from some areas of government government. But several significant changes police or security officials. On one occasion information), the new Act would actually were the direct effect of government early in 1984, following an accident on my have made it possible to prosecute intervention, particularly the decision to bicycle (there are no grounds for supposing journalists who published stories based on permit the exceptional centralisation of that the accident was 'arranged'), police material already public; or even material which was untrue (on such subjects as 21-22 January 1987: Attorney General telephone tapping). The draft Bill for the The 'Zircon' affair obtains an injunction preventing Campbell new Act also contained the 'jigsaw puzzle' November 1985-December 1986: from talking or writing about 'Zircon' but offence. This would have clearly made it Investigative journalist Duncan Campbell fails to get an injunction banning MPs from possible for an inquiring journalist to be makes a six-part series, 'Secret Society', for seeing the programme at the House of prosecuted for publishing, or merely BBC TV Scotland. One of the programmes Commons. The New Statesman publishes researching, a story which contained no reveals that Britain is developing a sky the 'Zircon' story in full. In a 'inside' information, but which fell into satellite codenamed 'Zircon'. The constitutionally unprecedented move the certain prohibited areas of inquiry. programme claims that the project, costing Speaker of the Commons bans the showing The 1979 Protection of Official $800m., has been kept secret from of the film on the premises of the Houses of Information Act would have considerably Parliament despite an agreement between Parliament. undermined journalism in these key areas. the Ministry of Defence and the Public 24-25 January 1987: Special branch Fortuitously, as the Bill was debated, a Accounts Committee of the House of detectives raid the offices of the New senior Royal adviser, Sir Anthony Blunt, Commons that all defence projects worth Statesman and thehomes of Duncan was revealed to have confessed 15 years more than £200m. must be disclosed. Campbell and two of his researchers. earlier to being a Soviet spy. He has not Contributors to the programme include a 31 January 1987: Special branch raids BBC been punished. The Bill was withdrawn former Permanent Secretary to the Ministry Scotland and removes all documents and when it was realised that it would have of Defence and a former Chief Scientific film relating to the Secret Society series. prevented the disclosure of Blunt's Advisor to the Ministry. 25 February 1987: High court lifts treachery. 15 January 1987: Despite earlier assurances injunction against Duncan Campbell. Thus chided, the government did not by Deputy Director General Alan 27 November 1987: The government return to the question of reforming the Protheroe, the BBC bans the 'Zircon' film announces that no prosecutions will take secrecy laws until 1988. Although for some after coming under pressure from BBC place over the 'Zircon' film. years there were few formal proceedings governors. The BBC has now lifted its ban on the against journalists, 'investigative' 19-20 January 1987: MPs and journalists programme and plans to screen it in late journalism went into decline — by the see the 'Zircon' film. September 1988.

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removed my working papers and shortly irritation with the state-owned media Following the ban, I arranged to show thereafter raided my house and searched all corporation has moved from sniping and the film to Members of Parliament in the my files. No charges resulted, however, and bitchiness — always a ruling party's British House of Commons — where, most material was quickly returned. attitude to the BBC — to a new, steely constitutionally, neither courts nor police determination to mould the BBC into being can intervene in the MPs' business. the voice of government alone. Personal Although the planned MPs' showing was From the turbulent, but politically stable attacks on the motives or work of disrupted, the New Statesman magazine period of the mid-1980s, press freedom has individual producers or broadcasters — published the story the same day. We were quickly declined in Britain. Indeed, by the end had already been deployed. In 1986, the harried in response. Three days later, of 1987, the perspective had changed so Conservative Party published a critical before half a dozen TV cameras and 40 dramatically that government officials felt analysis of the BBC's allegedly pro- reporters, a Special (political) Branch no need even to pay lip service to the Quadhafi coverage of the 1986 US raid on squad kicked in the front door of my house importance of press freedom. In a High Tripoli, Libya. The government analysis and mounted a seven hour long search of Court hearing in London in December was duff; the BBC won the skirmish. But my home and papers. Two researchers' 1987, Mr Robert Alexander, representing the 'Secret Society affair' in which I was houses were turned over in their absence. the Attorney General, was asked by the centrally involved was to be a full frontal Then, for five days and four nights, the trial judge if the British government would attack on the Corporation's integrity. Special Branch of the police continuously wish him to consider Freedom of Speech 'Secret Society', which began in 1986, occupied and searched the entire offices of and Freedom of the Press as relevant was a series of programmes examining the the New Statesman magazine. considerations in reaching judgment? 'No, use of British government secrecy to Soon afterwards, the government tried to my Lord', Alexander replied. 'That runs conceal or deceive legislators and the public get a permanent ban on such films ever headlong into the principle of about major areas of government policy or being seen by MPs — and failed. The confidentiality... There is simply no room activity. The central issue of the first government's next move was to try to seize for saying that Freedom of the Press is programme in the series was the deception all the 'Secret Society' films. The next important'. of Parliament about funds voted to weekend, the day after the BBC Governors This remarkable interchange was part of government departments. That had sacked the Director-General, a Special an almost interminable, worldwide programme, 'Spy in the Sky', revealed how Branch team raided the BBC's Scottish censorship action by the British the British government had concealed the headquarters. After 18 hours, the senior government over the memoirs of a former planned expenditure of $800 million on a officer told the BBC's top executives that security service officer, Peter Wright. The new UK intelligence satellite, codenamed he had grown tired of waiting while they battle to ensure the (non-) publication of 'Zircon'. challenged their general search warrant in Wright's memoirs has been one of two 'Zircon', together with the rest of the court. He wanted compliance, he wanted it major government encroachments on the series, had originally been scheduled for quickly, and he told them that they could freedom of the press. The other has been a transmission in January 1987. But three comply 'the easy way, or the hard way'.' headlong assault on the independence of BBC Governors, each of them selected by The 'easy' way was to summon film the country's main broadcasting the Thatcher'government, applied pressure editors and library staff to empty all the institutions. on the organisation's Director General to film material of the 'Secret Society' series In an attack on the BBC over the last withdraw the whole series. The first into waiting police vans, before dawn. The four years, the Conservative government's programme was banned. 'hard way' was that the whole huge headquarters building would be flooded with police, and taken apart, in a search for The Clive Ponting case evidence. A few hours before, the highest court in In the wake of the Falklands war, persistent documents and passes them to the House of Scotland's independent legal system, the questions to the government by MPs, Party Commons Select Committee on Defence, Court of Sessions, had just declared the Committees and researchers as to the exact which returns them to the Ministry of original police search warrants unlawful. circumstances of the sinking of the Defence. But the Special Branch just came back with Argentinian battleship Belgrano on 2 May 9 November 1984: Ponting is committed for new warrants — and promised, or 1982, with the loss of 68 lives, remained trial by jury in London under Section 2 of threatened, to write out as many more new unanswered. the Official Secrets Act. He pleads not warrants as might be required to replace March-July 1984: Clive Ponting, a high- guilty. His defence is that his responsibility those overruled by the courts. They did not ' • standing official at the Ministry of Defence, to the interests of the state is higher than his care that BBC lawyers had pointed out participates in a series of meetings at the loyalty to the Minister of the day. again and again that all the police had done Ministry which have as their purpose Misleading parliament and the public for was to change two words on an otherwise prevention of full disclosure of facts on the political reasons is not part of his brief, he unlawful warrant. Belgrano affair. He is personally asked to claims. The police, told that their warrant was write two memoranda, one giving the full 10 : Addressing the jury at drafted too widely, and thus unlawful, had facts, the other outlining the way in which Ponting's trial, Judge McCowan claims come back with a warrant they soon chose the public should be informed. Ponting, that in law the interests of the state are to interpret as having even greater breadth. deeply concerned that Parliament is being identical with the policies of the The police were clearly confident of their misled, sends two memoranda arising from government of the day, arguing by authority to act irrespective of what the the meetings, both concerning the Ministry implication that Ponting's defence is not courts said. 'It has been discussed at the of Defence's efforts at concealment, to the acceptable. highest level,' they said. Labour MP Tarn Dalyell, who has 11 February 1985: Despite strong guidance Master videotapes for all six programmes repeatedly questioned the government on from the judge to find Ponting guilty, the were seized. To prevent the BBC transmitting the Belgrano affair. Dalyell publicises the jury unanimously acquits him. any of the programmes, the police were

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instructed to seize backup videotape copies of the programmes, as well as all original film used in making them. In the morning The Sarah Tisdall case darkness, the rule of law was immaterial, 22 October 1983: The Guardian receives, document. The Guardian appeals. - and for those in the BBC, many of them from an anonymous sender, a photocopy of 15 December 1983: The Court of Appeal loyal and long-serving members of the a memorandum to the Prime Minister upholds the High Court's order. It rejects British establishment, the earth had moved signed by Secretary of Defence Michael the newspaper's contention that journalists in a most unpleasant way. Heseltine. The memorandum reveals that are allowed to protect their sources, a After the sacking of Director-General the first US Cruise Missiles are due to arrive principle enshrined in the Contempt of Alasdair Milne, all the top appointees in at Greenham Common, Britain on 1 Court Act 1981. BBC radio and television were moved out. November and outlines plans for handling 9 January 1984: Sarah Tisdall, a 23-year old A special 'political unit' was established to the ensuing public and parliamentary clerical officer at the Foreign Office, is pre-check any programme items that might response. Announcement of the missiles' charged under Section 2 of the Official irritate the government. And if not all the arrival was to be made only after it Secrets Act. While photocopying the new postholders were those with whom the occurred. The Guardian publishes the story memorandum she realised its importance Thatcher regime could feel comfortable, and later the full text of the memorandum. and felt that the public should know 'what they were at least very well aware of what Immediately after publication of the story, was being done to them by the back door'. Thatcher's fire had done to their the Government asks The Guardian to hand She considered the Defence Secretary's predecessors. One of the first acts of the over the document (as government plans 'indecent' and 'immoral'. new regime was to cancel plans for a second property) so that the source of the leak can 23 March 1984: Sarah Tisdall is sentenced series of'Secret Society'. Although the be traced. The Guardian refuses. The to 6 months' imprisonment by the Crown 'Zircon' programme was eventually Government goes to the High Court, which Court in London. She is later elected resurrected to be shown as an historical orders The Guardian to return the Honorary President of the Young Liberals. document in September 1988, the most damaging programme from the unpredictable and undesirable intervention This 'commonsense' doctrine of all- government's point of view, 'Cabinet', was of a jury, which had so enraged the embracing official secrecy (and public carefully dropped. government in the Ponting case. The third acquiescence) has as one major focus the is that the standard of proof in a civil court purpose of concealing all activities of the lies only in a test of 'balance of probability'of security and intelligence agencies. We have The greatest danger of all has been done by truth; there is no duty on the 'prosecution' few means of finding out all that may be the long and continuing series of prior (in this case, the 'plaintiff) to prove their covered up. Until the last few months, restraint actions against the British press, case 'beyond reasonable doubt' which is the however, it has at least been possible to say which started in 1986 when former Security normal standard of British criminal law. that national security has not been an Service agent Peter Wright was about to These restraints have already been put excuse for concealing state killings, or publish his memoirs in Australia. The into practice. One injunction, brought other, wilder excesses typical of South memoirs later became a 1987 US bestseller, against me in December 1987, may American republics. But now even that and can be (and were) legally imported to effectively ban me from writing about the boundary has chillingly been eroded, as a Britain. They explain that the head of the activities of the government agency, direct consequence of censorship and Service, MI5, was probably an undetected GCHQ. The order would require me to secrecy about the intelligence agencies. Soviet spy; and that three times MI5 were prove that the source of any article on the To ensure more respectful compliance aware of or involved in plots against the agency was not an insider; if I could not with 'commonsense', a new official secrecy British Labour Party, even when it was in prove this, I should face jail for contempt of law has been drafted, since pressure to government. But every journalist who has court. Reporters have not yet been gaoled reform the existing measure (from both attempted to write about, refer to, or even for contempt charges of this kind. But one sides) has proven too difficult to throw off. review Wright's book has been threatened financial reporter narrowly escaped gaol In return for dropping constraints on with citation for contempt of court. Three early in 1988 on charges quite unrelated to reporting non-controversial areas of major newspapers have had to fund costly government secrecy when he refused to government (which don't work anyway), defence cases against contempt charges for disclose the source of a report on financial the government hopes to pass tight new nearly two years. 'insider trading'. (See page 43) laws which will firmly criminalise all The new showers of interdicts and In her third term of office, from 1987 investigative journalism or public debate in injunctions have offered the government onwards, it has become quite clear that the areas like internal security or the defence many attractive advantages. They offer Prime Minister and her officials are utterly community. Then the government will be complete prior restraint. The Press can be disdainful of press freedom, open able to shut up and gaol irksome reporters stopped before they publish anything. government or the American concept of the without having to chase them across the Under a new court ruling, a court order ' press as 'fourth estate'. (Indeed, the British world or face tangling with the First against one media organisation " system of government also wholly lacks the Amendment in the USA to ban disclosures automatically applies to all others. So if constitutional pluralism that would make such as Wright's book. • you give your story to another paper, they the concept of other estates of the realm at can't publish it either. And even if the story all meaningful.) On a recent US tour, Mrs is published abroad, as with Spycatcher, it's Thatcher's press secretary Bernard Ingham still illegal to tell the British about it. boasted to the US media that the 'ordinary' The second advantage for the British subject not only has no right to government of the gag order system is that know but does not want to know. 'There's contempt of court charges are tried only a commonsense idea of how to run a before judges. So journalists may be country,' he said 'and Britain is full of charged, fined, and jailed, without the commonsense people.' Downloaded from ioc.sagepub.com by Natasha Schmidt on April 9, 2013 19