10 reasons not to trust claims national security is being threatened by leaks

Time and again GCHQ and other intelligence agencies have spuriously used 'national security arguments' to suppress information and stifle debate

Richard Norton-Taylor and Ian Cobain

Ever since they were set up more than a hundred years ago Britain's security and intelligence agencies have been accused of using the excuse of "national security" to suppress information. Whenever information has been disclosed against their will, through leaks or whistleblowers, they have claimed security has been jeopardised.

Agencies are said to have consistently used this argument to protect themselves from embarrassment and to suppress evidence of information relating to a wide range of subjects, from government waste to involvement in torture.

Ministerial claims that the publication of reports based on NSA and GCHQ documentation undermined national security prompted a scathing response from United Nations experts on freedom of expression and human rights.

"The protection of national security secrets must never be used as an excuse to intimidate the press into silence and backing off from its crucial work in the clarification of human rights violations," the UN special rapporteur on freedom of opinion and expression, Frank La Rue, said.

"The press plays a central role in the clarification of human rights abuses. It is clear that the revelations on the extensive mass surveillance initiatives implemented by some governments needs to be widely debated."

Or, as the actor Stephen Fry put it last month: "Privacy and freedom from state intrusion are important for everyone. You can't just scream 'terrorism' and use it as an excuse for Orwellian snooping."

Whitehall departments and the intelligence agencies have long used theD (now called DA) notice committee, which runs a system of voluntary self-censorship in co-operation with elements of the media, to try to prevent the publication of material that would expose waste and costly mistakes without damaging national security at all.

Time and again, the security and intelligence agencies, and GCHQ in particular, have used national security as a means of stifling information and debate. It later transpired that their claims were spurious. Here are some examples.

The activities and role of GCHQ, the British agency at the heart of the row over huge surveillance operations by the UK and the US, first became widely known through a leak – an article under the headline, the Eavesdroppers, published by Time Out magazine in 1976.

It led to the ABC trial, named after the initials of two journalists and a soldier who had worked at GCHQ, who were charged with breaking the Official Secrets Act. Nearly two years later, all main charges were dropped and they received non-custodial sentences. The Old Bailey heard that much of the information Time Out published was already publicly available if people knew where to look.

Ironically, GCHQ and its intelligence-gathering role was only "avowed" - officially confirmed to exist - after Geoffrey Prime, one of its former officers, was convicted in 1982 of spying for the Soviet Union.

He was discovered, not by GCHQ security but by West Mercia police investigating evidence of child sexual abuse.

Two years later, in 1984, the Thatcher government banned trade unions at GCHQ describing the move as "essential in order to safeguard national security". Geoffrey Howe, the foreign secretary, claimed that industrial action a few years earlier had threatened national security, threatened intelligence-gathering during the 1982 Falklands conflict, and could have endangered lives.

None of these claims was true. Asked by the BBC after the ban was imposed how the action had affected national security, Howe replied: "We cannot prove a single example."

John Nott, the then defence secretary, said after the end of industrial action in 1981 that the dispute with trade unions had not "in any way affected operational capability in any area". It emerged that GCHQ staff had been praised for their work during the Falklands crisis.

Dennis Mitchell, a long-serving senior GCHQ officer who resigned in protest at the union ban, told the then cabinet secretary, Sir Robert Armstrong: "I have arrived at the point at which I either make my concerns public, which means breaking the Official Secrets Act, or I fail to discharge my responsibilities to account for actions which I believe would be considered unacceptable by the general public were it aware of them."

Mitchell privately made it clear he was referring to the way information collected by GCHQ was used. He was immediately served with a high court injunction preventing him from disclosing anything about his work at GCHQ.

2. Zircon and the BBC

The BBC was involved in a two-year battle in 1986/7 over the disclosure that GCHQ, with US help, intended to build a spy satellite codenamed Zircon. BBC studios and the home of the investigative journalist, Duncan Campbell (the C of the ABC trial) , were raided. GCHQ claimed that disclosing the Zircon project, whose cost was soaring, would endanger national security. Alasdair Milne, the BBC director general, was soon sacked by the board of governors. It later emerged that Whitehall departments privately admitted, as did the secretary of the D notice committee, that national security would not be damaged if the programme about Zircon, part of the BBC's Secret Society series, was broadcast.

Shortly after the Zircon affair, a series of programmes on BBC Radio Four called My Country Right or Wrong was banned by the government on the grounds that it might have revealed sensitive secrets. The series was censored a few hours before it was due to start. It was eventually broadcast uncut after the government conceded it did not breach any law or damage national security.

3. Interception of communications

The practice of routine and secret interception of communications was first exposed in 1967 by Chapman Pincher, defence correspondent of the Daily Express. The disclosure enraged the then Labour prime minister, Harold Wilson, who claimed that it breached the terms of the D notice system designed to protect national security. An independent inquiry by a senior judge, Lord Radcliffe, explicitly rejected Wilson's claim.

4. Spycatcher

In 1988, two years after the Guardian was prevented by a high court injunction from revealing the contents of Spycatcher, the memoirs of the former MI5 officer, Peter Wright, the law lords delivered a scathing judgment.

Lord Goff described the injunctions as a misuse of the law. Judges in Australia, where the Thatcher government tried to ban the book, referred to many previous books on MI5, some of which Whitehall turned a blind eye to, where, they said, the material contained on virtually every page of Spycatcher had previously been made public.

5. The Railway Gazette affair

National security was said to be under threat in 1972, journalists were bugged and blackmailed by police, and threatened with prosecution under the Official Secrets Act, when the director of public prosecutions ordered Scotland Yard to identify the source of a leaked document.

The reason? The document, from the Ministry of Transport, disclosed that ministers were quietly considering the closure of 4,600 miles of railway lines - almost half the nation's network. And if the culprit would leak that secret, the ministry and the DPP reasoned, what else would he or she expose?

Police raided and searched the offices of the Railway Gazette, which had received the document, claiming they had authority to do so under the Theft Act. They then questioned Harold Evans, the editor of the Sunday Times, which had also published a story based on the document. Evans was warned that two of his reporters were facing prosecution under the Official Secrets Act.

Finally, police threatened to expose one of the Gazette's journalists as being gay, unless he named the source. Officers had discovered this by bugging the magazine's telephones, apparently without authorisation.

The following year the attorney general decided there was insufficient evidence to bring charges, and the government announced that the cuts, which had been rumoured following the "escape of a regrettably mobile document", were no longer being considered.

The government never did discover the mole. Now he can be named, however. He was Reg Dawson, a senior civil servant and life-long railways buff, who died last year alongside his wife Betty at the Dignitas clinic in Switzerland.

6. Matrix Churchill

Ministers signed public interest immunity (PII) certificates - in effect, gagging orders - in a failed attempt to suppress information at the Spycatcher trials. They also used PII certificates in an attempt to suppress information about how directors of Matrix Churchill, the Coventry-based machine tool firm charged with selling arms-related equipment to Saddam Hussein's Iraq, had been spying for MI5 and MI6. Ministers told the subsequent Scott inquiry that disclosing information about what the government was up to, and the disclosure of "intelligence information" would cause "unquantifiable damage". Should that be taken as covering "both unquantifiably great and also miniscule", Lord Scott asked a Foreign Office minister. "Yes," replied the minister.

7. Ben Griffin, the SAS whistleblower

When Griffin, a former trooper with the Special Air Service, gave a newspaper interview in 2006 in which he described witnessing US servicemen torturing prisoners in Iraq, the Ministry of Defence went to court seeking an injunction to silence him. The MoD argued that Griffin had breached the contract that he had signed on joining the SAS, which was intended to protect national security, and that his disclosures had not been "required in the public interest".

The court granted the injunction on the grounds that Griffin had broken his contract, but dismissed as unconvincing MoD claims that he had damaged forces' morale and put other servicemen and woman at risk. Since then, Griffin has not been able to repeat his allegations, nor say anything further about his knowledge of the role played by the SAS in delivering detainees to prisons where US forces were known to be using torture.

His allegations have been corroborated by a number of other former special forces personnel, however, and John Hutton, when defence secretary, was obliged to make public the fact that two of the SAS's prisoners had been "rendered" to a US-run prison in Afghanistan.

8. Official secrets trial and the SAS

David Keogh, a Whitehall communications officer, and Leo O'Connor, a former researcher to a Labour MP, were jailed under the Official Secrets Act in 2007 for disclosing the contents of minutes of a White House meeting between George Bush and Tony Blair on 16 April 2004. The trial judge, Mr Justice Aikens, imposed a sweeping injunction preventing the media from repeating speculation, already published, about the contents of the documents.

His ruling was later quashed by the appeal court, enabling the media to repeat British concerns about US military tactics in Iraq, including the killing of civilians in Falluja and President Bush's alleged suggestion that the offices of the Arabic satellite TV station al-Jazeera should be bombed.

It had been widely reported that British officials and military commanders were expressing concern about US tactics, in particular about the US assault on Falluja, including the use of white phosphorus.

Sir Nigel Sheinwald, the prime minister's chief foreign policy adviser, told the court in the Keogh /O'Connor secrets trial, which ended in the jailing of the two men, that private talks between world leaders - in this case, Tony Blair and George Bush - must remain confidential however illegal or morally abhorrent aspects of their discussions might be.

Talks betwen Blair and Bush in the runup to the 2003 invasion of Iraq remain a sticking point in the heated dispute between the Chilcot inquiry into the invasion, and Whitehall departments.

Whitehall imposes an official blanket ban on the activities of Britain's special forces, which are playing an increasingly important role in co-operation with the security and intelligence agencies. The ban is breached, not least by special forces after successful operations. Whitehall tries to impose it when things go wrong.

9. WikiLeaks and the national security threat that never was

Thousands of official US documents relating to military operations in Iraq and Afghanistan and US diplomatic cables provided the basis for a series of reports published in a redacted form in the Guardian, New York Times, the German magazine Der Spiegel and elsewhere.

Senior US government officials could not have been clearer about the damage they said had been done by the leaks. The US national security adviser, General James Jones, said in July 2010 that the disclosures "could put the lives of Americans and our partners at risk, and threaten our national security".

Admiral Mike Mullen, chairman of the joint chiefs of staff, said Julian Assange, founder of WikiLeaks, "can say whatever he likes about the greater good he thinks he and his source are doing, but the truth is they might already have on their hands the blood of some young soldier or that of an Afghan family".

Hillary Clinton, the secretary of state, strongly condemned the leak of more than 250,000 diplomatic cables, claiming: "It puts people's lives in danger, threatens our national security and undermines our efforts to work with other countries to solve shared problems."

The UK government also warned that British citizens in Pakistan, Iraq, Iran and other parts of the Muslim world could be at risk if there were a violent backlash over "anti-Islamic" views expressed in some cables.

However, later in 2010, Robert Gates, the US defence secretary, described official concerns about the leaks as "fairly significantly overwrought". He added: "The fact is governments deal with the United States because its in their interest, not because they like us, not because they trust us and not because they believe we can keep secrets," he said.

"Some governments deal with us because they fear us, some because they respect us, most because they need us. We are still essentially … the indispensable nation."

Gates continued: "So other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another. Is this embarrassing? Yes. Is it awkward? Yes. Consequences for US foreign policy? I think fairly modest."

A year later, US state department officials admitted the disclosures had not only done little damage to national security, but had done little real damage to US diplomacy.

In a private briefing at Congress, senior state department officials said the fallout had not been especially difficult. A congressional official told Reuters news agency that it had emerged during the briefing that the US government felt compelled to say publicly that the revelations had seriously damaged American interests in order to support efforts to shut down the WikiLeaks site and bring charges against the leakers.

"I think they want to present the toughest front they can muster," the official said. "We were told [it] was embarrassing, not damaging," the official added.

At the trial of Bradley (now Chelsea) Manning, convicted of leaking the documents, the Pentagon's chief investigator into the impact of the leaks admitted he could find no evidence of a single person losing their life as a result.

Brigadier General Robert Carr, who headed a 300-strong team that spent more than a year looking for fatalities, said he could not any evidence of any loss of life. "I don't have a specific example," he said.

Carr conceded that the name of a victim of a Taliban killing, initially blamed on the leaks, was not included in the war logs made public by WikiLeaks. Asked by Lind whether the individual who was killed was tied to the disclosures, Carr replied: "The Taliban killed him and tied him to the disclosures. We went back and looked for the name in the disclosures. The name of the individual killed was not in the leaked documents."

Carr said that when his taskforce reviewed the Afghan war logs they found about 900 names of local nationals contained in the records. Many of those names were already of people who had died, and under cross-examination the witness said some could have been misspelled or mis-translated.

10. Binyam Mohamed and the seven secret paragraphs

In the Binyam Mohamed case, lawyers representing David Miliband, then foreign secretary, battled for more than a year to prevent the high court from publishing seven paragraphs of one of its own judgments, on the grounds that they contained a summary of intelligence passed to MI5 by the CIA, and their disclosure would cause immense damage to the US-UK intelligence sharing relationship.

The foreign secretary's counsel told the court of appeal that the paragraphs "are unquestionably a summary of intelligence material provided to the [UK] under confidential intelligence-sharing arrangements".

Two judges, Lord Justice Thomas and Mr Justice Lloyd Jones, said that the seven paragraphs "could never properly be described in a democracy as 'a secret' or an 'intelligence secret' or a 'summary of classified intelligence'". Miliband, they added, "was not prepared either to produce evidence or address argument to us".

Despite this, the foreign secretary signed several public interest immunity certificates stating that the publication of the seven paragraphs "would lead to a real risk of serious harm to the national security of the UK".

When the paragraphs finally saw the light of day in February 2010,following a judgment by the lord chief justice of England and Wales and the master of the rolls, they were found to contain not intelligence material, but a summary of the CIA's description of the way in which Mohamed was being tortured in Pakistan. The description was provided to MI5 before the agency sent an officer to interrogate Mohamed, and this act was widely seen as evidence of the agency's complicity in torture.

The court's decision - and the master of the rolls' conclusion that MI5 had misled the intelligence and security committee, and could not be trusted when it claimed to respect human rights - was hugely embarrassing for the agency, and the British government.

Since publication of the description of Mohamed's torture, government officials have claimed to have detected a change to "the flow of sensitive material" from the US, but have produced no evidence to support this. There is no sign of the serious harm to national security that Miliband predicted.

The disclosure did lead directly to the controversial Justice and Security Act, however, with a green paper (pdf) highlighting the "UK court-ordered release of sensitive US intelligence material" which it said underlined the need for the act's secret courts provisions.

http://www.theguardian.com/uk-news/2013/oct/16/national-security-leaks-gchq-nsa-intelligence-agencies