Subject: Bulletin: The captain and the cover-up

The Bulletin

April 28, 2004

THE CAPTAIN AND THE COVER-UP

The senior officer who wrote a damning report on the Australian intelligence services says he has been made a scapegoat in a 'shabby, tawdry cover-up'. John Lyons reports.

The controversy surrounding high-ranking army intelligence officer Lance Collins is set to re-ignite with the author of the report damning Australia's intelligence services now saying that his own treatment by the federal government has been "despicable".

In a powerful counter-attack on those who have criticised his report, Captain Martin Toohey has broken his silence to say the Australian Defence Force and the government are engaged in "yet another shabby, tawdry cover-up" over the Lance Collins affair. He says there is a "cabal" of senior officials in Canberra who write intelligence estimates with the aim of protecting Indonesia's armed forces from being linked with atrocities committed by its Kopassus soldiers.

He criticises the Flood inquiry announced by Prime Minister John Howard which he says is "incestuous" and "will resolve nothing". He now supports Collins' view that a royal commission into Australia's intelligence services should be held.

Toohey was commissioned last year to investigate a complaint by Collins, a senior army intelligence officer who was hand-picked by defence force chief Peter Cosgrove to run the Interfet operation in East Timor. About 4500 Australian soldiers were sent to re-establish order after the Indonesian military and associated militia groups went on a rampage. The violence was in retribution for East Timorese voting for independence.

Collins' career took a dive after he criticised a "pro-Jakarta lobby" inside the Defence Intelligence Organisation. As part of the campaign against him, his name was wrongly included on a federal police warrant investigating the leak of confidential material. He has spent four years trying to find out who put his name on the warrant.

Last year, the ADF appointed Toohey, a distinguished naval barrister with top-secret security clearance, to investigate. He concluded that Collins had been "disgracefully" treated. Those in the ADF who did not like the report prevented Collins from seeing it. They then commissioned another report by Colonel Roger Brown, which backed Toohey's conclusions. They then commissioned yet another report, by Colonel Richard Tracey, which challenged Toohey's report.

After The Bulletin published the entire 32-page Toohey report two weeks ago, Defence Minister Robert Hill released the Tracey report to discredit the Toohey report. But he did not even mention the Brown report, which he was forced to release 48 hours later.

Toohey has told The Bulletin the ADF has gone on "a fishing expedition" to find the legal opinion it wanted. "The relevant regulations require only one legal opinion."

He says: "I have never encountered a situation where a report I have prepared has not been released to all those directly interested in it, yet a report critical of my report has been commissioned by the Defence Force then released to the media."

He describes the Jakarta lobby, as "a cabal of both uniformed and civilian personnel within DIO and Defence who take every-thing emanating from the TNI [Indonesian military] at face value. This so-called 'intelligence' is written with the object of distancing the TNI from atrocities committed by the Kopassus [read 'terrorist'] arm of the TNI ... two basic premises of the Jakarta lobby are firstly to deny atrocities committed by the TNI, followed by publicly attributing those outrages including those human rights violations in East Timor [pre-Interfet] to 'rogue elements' of the TNI and not the TNI per se."

The Bulletin: What has been your reaction to the events of the past two weeks?

Captain Toohey: I am making this statement as a private citizen and not as a member of the Australian Defence Force. I am concerned that some media reports dealing with my inquiry into Lieutenant Colonel Lance Collins' grievance have criticised me in such a way that my professional reputation ­ and even my personal reputation ­ has been damaged. I am a lawyer in private practice and I have undertaken a number of similar inquiries on behalf of the Defence Force and I have never encountered a situation where a report I have prepared has not been released to all those directly interested in it, yet a report critical of my report has been commissioned by the Defence Force and then released to the media. I am appalled at this sequence of events and as a private citizen I believe that making this statement is my only avenue to protect my reputation. I am also highly concerned that a classified document authored by me has been placed in the public domain.

B: What was your reaction when the government issued a press release saying your report had been effectively discredited by Melbourne QC Colonel Richard Tracey?

Toohey: The conduct of the government was, in my view, despicable and duplicitous. I considered my reputation as a lawyer to have been besmirched. I was disappointed that Colonel Tracey, a professional colleague of many years' standing, did not have the courtesy to at least give me a call and provide me with the opportunity of explaining my approach to my inquiry. I am also concerned that Colonel Tracey does not appear to have had the benefit of the transcripts of evidence when preparing his critique of my report. As he acknowledges in his report, the assessment of witnesses ­ their demeanour, their probity and the weight to be attached to their evidence ­ is critical in an inquiry such as this, and obviously I had the benefit of seeing each witness and examining them. Colonel Tracey did not have this benefit nor the benefit, apparently, of reading the transcripts of their evidence. I am concerned that as a consequence his evaluation of my findings must be questionable. I also find it interesting that Colonel Tracey refers to ADFP 202 [Administrative Inquiries Manual], para. 1.52, pointing out that the officer who appointed me to conduct the inquiry was required to obtain a legal advice on my report and that he did so. This is the Brown report, which the ADF released after it released Tracey's critique. The Brown report supported my report and consequently I believe there is no legal basis for the Tracey report. It is merely personal advice provided to the ADF, yet the ADF appears to be representing it as having the legal status of overriding my report.

B: Why do you think they released the Tracey report but did not mention the report by Colonel Roger Brown?

Toohey: For purely political reasons. After all, this [election] year has seen them lurch from one political debacle to another. I think an apt description of their activities would be "oleaginous".

B: How much pressure was put on you after your report?

Toohey: With respect, I do not understand this question.

B: What do you think of Richard Tracey's written judgment?

Toohey: I am concerned he does not appear to have had the benefit of even reading the transcripts of evidence that were taken during the inquiry. In paragraph 61 of his report he also appears to acknowledge that he was provided with an additional briefing prior to preparing his report. His interpretation of Defence (Inquiry) Regulation 70A (1) fails to address the fundamental issue whether Lieutenant Colonel Collins' ability to perform his duties had been affected by the manner in which the DIO dealt with him. Colonel Tracey's narrow and overly legalistic interpretation of Regulation 70A would mean, if applied in future, that an inquiry could never undertake an examination of how defence force personnel operate within the defence forces. It is a very rare situation where serving officers do not have to interact with defence force members outside their immediate area of command. His failure to recognise the degree of elasticity in Regulation 70 A (1) has tainted his entire findings. I would have also thought that a barrister of his experience would have realised that the demeanour of witnesses, their body language and the manner in which they gave their evidence, are all vitally important in assessing the weight to be given to their evidence and that this provides the evidentiary basis for my findings. I am also concerned that even today the fundamental issue raised by Lieutenant Colonel Collins' grievance has yet to be met. Why was his name included in the search warrant? Colonel Tracey concludes that "the fact that his name appeared on a warrant obtained by the AFP does not necessarily point to the conclusion" that he was the subject of an investigation, yet, as Colonel Tracey acknowledges, his name could not have been included unless a magistrate, or a judge, was persuaded that it was proper to include it, and how could that have occurred unless someone in an investigating role made some allegation against Collins? What was said to the magistrate, or judge, is the crux of the matter and Colonel Tracey's report sidesteps this fundamental issue.

B: Do you think some in the system have considered making you the scapegoat in this affair?

Toohey: Yes.

B: How many other similar reports have you done in your capacity as a barrister?

Toohey: Approximately 10.

B: Was it unusual for the Defence Department to seek further opinions?

Toohey: Most definitely. The relevant regulations require only one legal opinion. This is a fishing expedition as described in the legal profession. Ask the same questions to five different lawyers and you are likely to get five different opinions.

B: Has anything about the general reaction surprised you?

Toohey: Yes ­ with one exception, a total lack of support from the ADF or government. After all, I was merely doing a job they asked me to do and, further, the Defence Central Legal Office should have been more proactive.

B: When you began your investigation into the Lance Collins case what was your approach?

Toohey: Stay within the terms of reference, maintain total objectivity, apply natural justice and follow laid-down procedures.

B: What most influenced you in coming to your conclusions?

Toohey: The credibility of Lieutenant Colonel Collins and the demeanour, body language and "off-the-record" comments of the witnesses, most of whom appeared more than interested in climbing the greasy pole than protecting a comrade under siege.

B: How would you summarise your thoughts now about the Lance Collins case?

Toohey: The evidence I obtained during my inquiry led me to the conclusion that Lance Collins is an officer who tried to do his duty, tell the truth, protect Australia's national interests and who has been pilloried as a result. In summary, yet another shabby, tawdry cover-up by the ADF and the government.

B: Who do you think is responsible for the way he has been treated?

Toohey: The Chief of Army, DIO, DFAT and certain individuals in the Defence Department.

B: On what did you base your finding that the head of DIO, Frank Lewincamp, suspended the flow of intelligence to the troops in East Timor for 24 hours?

Toohey: This question will be answered by Lieutenant Colonel Collins when he gives evidence to the forthcoming Senate b-committee hearings.

B: You said DIO "distorts" intelligence estimates ­ on what did you base that?

Toohey: What the government wants to hear. The old system of the Westminster process of free, fearless, frank and impartial advice is virtually gone. This, in turn, causes the Australian public to be continually misinformed and is against the national interest.

B: Several people you interviewed during your inquiry warned of the influence of "the Jakarta lobby". In your view, what is the Jakarta lobby?

Toohey: A cabal of both uniformed and civilian personnel within DIO and Defence who take everything emanating from the TNI at face value. This so-called "intelligence" is written with the object of distancing the TNI from atrocities committed by the Kopassus [read "terrorist"] arm of the TNI, not only within East Timor, but within the entire Indonesian nation. Anyone within the intelligence community who held contrary views was looked upon with disdain and was ostracised. In essence, policy drives assessment rather than the reverse.

B: Based on your inquiry in the Lance Collins case, how influential is the Jakarta lobby?

Toohey: Expanding on the above, two basic premises of the Jakarta lobby are firstly to deny atrocities committed by the TNI, followed by publicly attributing those outrages including those human rights violations in East Timor (pre-Intefet) to "rogue elements" of the TNI and not the TNI per se.

B: Do you think from what you discovered that the Jakarta lobby should be of concern to all Australians?

Toohey: Most certainly. It is in the national interest that parliament and the Australian people be given the true picture of our relationship with Indonesia. If this picture is not painted by our intelligence services which do not carry out their task impartially, then who will?

B: From what you discovered during your investigation, do you believe that some senior public officials in Canberra may be in the pay of the Indonesian or other governments?

Toohey: No comment.

B: Is this something that should be investigated?

Toohey: No comment.

B: There has been some criticism that you found [DIO head] Mr Lewincamp not to be a credible witness after one meeting ­ how did you come to that conclusion?

Toohey: By his demeanour, body language and certain 'off-the-record' remarks. I note that under Defence (Inquiry) Regulations, Mr Lewincamp was not compellable to give evidence to me during the inquiry. That said, I was grateful for his time.

B: Were you surprised by anything you found in your investigation?

Toohey: The antagonism of a significant number of senior civilian and uniformed [army] officers towards Lieutenant Colonel Collins.

B: Based on your investigation, what is your professional judgment about the way DIO works?

Toohey: I must stress that I am a lawyer, qualified investigator and former security officer. That said, from the outside looking in, DIO appeared to rely heavily on intelligence supplied by the United States and Great Britain. The summaries produced were of little strategic value. Indeed, one intelligence expert I interviewed "off the record" described DIO's intelligence summaries as akin to reading a comic book.

B: Finally, what needs to be done to fix the system?

Toohey: In my view, at the very least, the system needs to be the subject of a sub-committee of the Senate of the parliament of Australia. The proposed Flood inquiry is incestuous and will resolve nothing. I agree with Lieutenant Colonel Collins in that a royal commission is the most suitable vehicle to properly co-ordinate Australia's intelligence activities. If a royal commission is unpalatable, the government should give serious consideration to setting up an organisation along similar lines to the US Department of Homeland Security which would be responsible to the Minister for Justice. Lastly, on a more parochial level, the DIO's product should be assessed by a committee of former ADF officers, of at least two-star level and who are appropriately cleared. l

John Lyons is executive producer of the Sunday program on the Nine Network.

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