R2K statement on ‘Spy Cables’ reports

R2K notes the announcement that Al Jazeera News and the Guardian newspaper will publish a series of reports drawn from leaked documents that detail backroom dealings and discussions between various intelligence agencies across the world, including South Africa’s State Security Agency. The source of these documents appears to be a digital leak to Al Jazeera News. The initial releases, which began on Monday 23 February, seem to confirm that these leaks will reveal evidence of cover-ups, abuses of power and major intelligence failures of these structures.

We expect the ‘Spy Cables’ to be a very valuable exposure in the public interest, serving to peel back the veil of secrecy on the inner workings of our state security structures and add a much-needed shot of transparency. We also note that the publishers have taken steps to redact and withhold certain documents, rather than opt for a total release, which pre-empts the claim that these disclosures are likely to do irreparable harm to national security.

We fully expect that locally, South Africa’s state security structures will paint these leaks as a hostile act, and use this event to seek greater control over the flow of information, These leaks may even be used as a pretext to sign the Protection of State Information Bill (the Secrecy Bill) into law.

It is telling that this important act of journalism would easily fall under the Secrecy Bill’s broad and expansive definition of ‘espionage’, which carries penalties of up to 25 years in jail, and has no public interest defence. (‘Espionage’, according to the Secrecy Bill, simply involves any act to communicate classified information “which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state” – see full definition below. There is no public interest defence.)

We view these leaks as a necessary and inevitable response to the excessive and unacceptable secrecy adopted by South Africa’s state-security structures, and as well as many international intelligence structures. This kind of secrecy has led, at home and abroad, to cover-ups and abuses of power from these structures.

In South Africa, the Right2Know Campaign and its allies have highlighted over many years that the excessive secrecy adopted by our intelligence structures has shielded these institutions from any public scrutiny or accountability.

The State Security Agency has followed a path of almost total secrecy that goes far beyond what is justifiable:

• SSA does not table a public budget to Parliament or release an annual report that accounts in even broad strokes for its activities.
• The SSA’s national security estimate and national security priorities are not publically disclosed or subject to public input. (It is worth emphasising that these documents can be disclosed without compromising operational matters – even in states with over-powerful security structures, it is not uncommon for these to be public documents).
• The SSA and allied structures have shown a tendency of widespread over-classification of information, far beyond any reasonable need for secrecy.
• Parliament’s intelligence oversight committee, the Joint Standing Committee on Intelligence, meets consistently behind closed doors, and has frequently failed to release annual reports on its activities, effectively keeping the public in the dark about evidence of widespread dysfunction, financial mismanagement, and even criminality in the security structures.

If South Africa’s security structures want to minimise the embarrassment and political fall-out of courageous acts of journalism, they can do so by becoming more transparent and open – not by seeking greater powers and more secrecy!

#Ends

Extract from Protection of State Information Bill:

Espionage and related offences

34. (1) It is an offence punishable on conviction by imprisonment for a period not less than 15 years but not exceeding 25 years—

1.      (a)  to unlawfully and intentionally communicate, deliver or make available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or
2.      (b)  to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.

(2) It is an offence punishable on conviction by imprisonment for a period not less than 10 years but not exceeding 15 years—

1.      (a)  to unlawfully and intentionally communicate, deliver or make available state information classified secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state; or
2.      (b)  to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified secret which the person knows or ought reasonably to have known would directly benefit a foreign state.

(3) It is an offence punishable on conviction by imprisonment for a period not less than three years but not exceeding five years—

1.      (a)  to unlawfully and intentionally communicate, deliver or make available state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state;
or
2.      (b)  to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified confidential which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state.