Subject: Still sensitive after 35 years

Still sensitive after 35 years


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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