Still sensitive after 35 years

HAMISH McDONALD

Sydney Morning Herald, 8 May 2010.

After the debacle of “sexed-up” intelligence and misleading
statements to legislatures by George Bush’s administration and allied
governments as they decided to invade Iraq, the use of “national
security” to block public scrutiny of such decisions is not accepted
as readily as it was.

How much more so when defence and intelligence agencies use the same
excuse to stop disclosure of the information that backed vital
government decisions on foreign policy and the safety of Australian
citizens 35 years ago?

An interesting test comes up later this month when a Canberra
academic takes on the Defence Department at the Administrative
Appeals Tribunal to get a series of secret intelligence bulletins put
out by its analysts at the height of the East Timor crisis from
October to December 1975, covering Indonesia’s invasion of the then
abandoned Portuguese colony.

Clinton Fernandes, a senior lecturer in international relations at
the University of NSW, has been seeking freedom of information access
to some 41 documents, mostly the “situation reports” produced for
limited circulation by the department’s then Office of Current
Intelligence, an outfit since transferred to the Office of National
Assessments under the prime minister.

These reports were the boiled-down versions of intelligence coming
into Canberra overnight about crises, printed up inside the office,
and sent out to a select list of “customers” cleared to read
documents classified top secret.

The department sent Fernandes some reports, with only the titles
showing and the contents entirely blacked out, resembling a
particularly sombre Mark Rothko “colour field” painting.

Fernandes has pursued his request doggedly, most recently turning up
solo to a table of five government officials and lawyers. Now it’s
heading into the tribunal, a quasi-judicial body that is the final
administrative and relatively low-cost stop before it gets into the
courts, where the loser-pays system risks an unsuccessful appellant
facing legal costs running into hundreds of thousands of dollars.

Through the Australian government solicitor, acting for the National
Archives of Australia, the government is seeking to block access to
the contents of some 40 situation reports from that period, most on
the grounds that they contain information, the disclosure of which
“could reasonably be expected to cause damage to the security,
defence or international relations of the Commonwealth”. A couple of
them are also deemed sensitive because they contain information sent
as secret by foreign governments.

Not only is it seeking to block disclosure to avoid “exceptionally
grave harm to national security”, the government is also seeking to
have the tribunal hearing held in camera, on the grounds that even
arguing why the documents are so sensitive would disclose some of the
contents. This, remember, is about things that happened in 1975.

Fernandes, a former army major and Indonesia specialist, was the key
Australian-based intelligence officer for the army during the later
East Timor crisis of 1999. He can be expected to know what is
relevant to national security now, as opposed to keeping inconvenient
history out of sight.

The situation reports are unlikely to contain any shocks, such as
revelations of prior knowledge that might pertain to the Balibo
killings. But they would have contained a wealth of detail about the
Indonesian units and personalities involved in the semi-covert
campaign in October-early December, then the outright attack on Dili
on December 7, 1975 and its vicious aftermath.

Would it be this detail, including perhaps the identity of those who
executed Australian citizen Roger East and Timorese civilians in Dili
on December 8, that the government is unwilling to disclose, on the
grounds it would harm “international relations” – even with a greatly
transformed Indonesia?

The other grounds could be protection of the methods by which the
information was collected, especially if it came from intelligence
agents or by interception and decryption of Indonesian communications.

Yet even by the time these events were happening, Indonesia’s
military communications, based on high-frequency radio transmissions
and encryption by an electro-mechanical machine similar to the Enigma
devices of World War II, were obsolete.

An Australian-born British scientist, James Ellis, and his
colleagues at Britain’s Government Communications Headquarters, had
already made what’s been called the 20th century’s greatest
breakthrough in encryption, called public-key cryptography, whereby
messages are covered by a mathematical “noise” of such complexity as
to require decades of computer number-crunching to break open.

American scientists and mathematicians at Stanford and MIT came out
with a similar discovery a bit later, and published their findings in
the journal Scientific American in August 1977. Defence departments
around the world still using wartime-vintage encryption such as
Indonesia’s Hagelin-type machines would have realised an era was
over. There is a huge amount of published academic material on how to
break their product.

The Indonesian military was well aware its communications were
monitored. In any case, the situation reports would have blurred the
sources of the information they contain.

At the tribunal hearing, the government lawyers will no doubt
produce a string of senior intelligence officials to argue against
disclosure. Fernandes will represent himself. The issue cries out for
more independent assessment of the actual national security risk, at
the very least, by the inspector-general of intelligence and security.

The Defence Minister, John Faulkner, has the power to override his
department on this. Before taking up the job last year, he was the
Rudd government’s special minister of state charged with delivering a
new freedom of information regime based on a “culture of
pro-disclosure”. Have his officials even told him about this case?

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