Protect sources, fight secrecy
MERION Jones, investigations editor at the Bureau for Investigative Journalism (BIJ) was among the speakers at London Freelance Branch's April meeting on protecting sources. Merion's many investigative stories have included Trafigura exporting toxic waste to Africa. We also heard advice from the Freelance's own editor Mike Holderness on using "Bronze Age methods" to minimise State or corporate surveillance: an advice page follows very soon.
Merion opened by reminding journalists of the threat posed by the current Law Commission review of the Official Secrets Act (OSA), a development that should make us "very upset over civil liberties". So far, Merion's work has meant he has he "only been to prison to visit people," but under new Official Secrets Act proposals, he "would be facing a decade in jail" for such investigations.
The first Official Secrets Act dates all the way back to 1889. Merion related how the 1911 Official Secrets Act introduced "D notices", (D for Defence). If you published after being issued a D notice you would get prosecuted under the Official Secrets Act. They were issued by a D Notice Committee, which right up to the 1970s was a "really powerful constraint".
Chapman Pincher in 1967 revealed that "thousands of private telegrams and cables sent out of UK are being made available to security services."
In 1971 one-off D Notices banning specific reports were replaced by Standing Notices offering guidance on whether publication was "discouraged" on general topics, such as "Nuclear", "Military Operations" and "Special Services"). This came to a crunch with the ABC trial in 1977 and 1978. The very existence of GCHQ, set up in the 1940s, remained secret till around 1974. The World War Two Enigma code breaking operation stayed secret throughout the same 30-year period.
Then came Spycatcher, with the Government's attempts throughout the late 1980s to stop former M15 officer Peter Wright from publishing his memoirs. "We are in danger of slipping back into that" with the latest OSA proposals, warns Merion.
Now Theresa May is trying to say "we're not trying to restrict journalists" with the current Law Commission Review of the Official Secrets Act. But, notes Merion, "hang on, isn't she related to the Theresa May" who as Home Secretary had a hand in commissioning the review in the first place? The review's not about protecting freedom of speech, it's in its own words only about "unauthorised disclosure", about people who "obtain or gather" information. The review comes with an "underlying assumption" that there should be no public interest defence.
It's been a very long time since "they" successfully prosecuted a journalist under the Official Secrets Act. When state secrecy has its day in court, it often doesn't go well for the State.
Merion related how in the trial of civil servant Clive Ponting for releasing the Falklands War-era Belgrano documents, the judge removed the public interest defence, but the jury still refused to convict. A jury even dithered for hours before returning a guilty verdict to convict David Shayler (over revelations that M15 had investigated the Labour Party) when directed to do so by the judge. When it came to GCHQ officer and whistleblower Katherine Gun, who revealed Iraq War shenanigans, "they had to drop charges against her after it became clear that Blair had lied."
Now we are expected to accept that the "problems associated with the introduction of a statutory public interest defence outweigh the benefits", a proposition that's "much easier with the 'Terror Threat'." Now, says Merion, we face "going back to the position 40 years when it almost impossible to write about the secret doings of the state".
What has improved with the Defamation Act 2013 is "the libel law - effectively a big company can't come after you anymore - individuals can."
Tradecraft tips? Only once has Merion "found I was being followed... I did a double back in the (Tube) station" and thus he spotted someone on his tail. A lot of these people who might be tailing you, including the ones hired by the big corporates, are "ex State security, ex-Northern Ireland: if you're being followed by proper people you will not spot them." Merion added that "There's a very big sector of ex-M15 people, corporates with very good capabilities, but not quite the capacity of "the NSA and GCHQ."
After a recent conversation with a "guy from Google", Merion believes there to be a back door which could allow the security services to intercept WhatsApp (but see Mike Holderness's comments).
Then there's how to get the story past the newspaper's lawyers, which is harder. The point at which you have to send the people you're writing about a "right of reply" letter asking them to comment on allegations can be when you "trigger a raid," as Merion found out with his Fake Sheikh documentary.
And "how much to tell your editor?" As little as you can. Never give your editor your notes. Tell them as little as you can about your source, to protect them. (Branch Secretary Tim Gopsill recalled as a union official a phone call with a journalist who was "being asked to hand over his material to his editor," - Tim told him, no, don't, and the NUJ "took it off him at Liverpool Street station" to go into safekeeping.)
In the BBC in particular, if an editor knows anything, they will "be forced to reveal stuff up the chain." There's also a "horrible habit in the BBC of putting stuff into spreadsheets that everyone can see... [and] the BBC is infiltrated." You can, in Merion's words, "get the source to meet the editor, without the editor knowing the name of the source. Get the trust of the editor, but you do not put them in a position" when they have information that can be coerced out of them.
Merion told how when investigating "Fake Sheikh" Mazher Mahmood for the BBC's Panorama, he had "a whole filing cabinet" full of stuff "we didn't tell the editor about, in an obscure part of the building that's nothing to do with us, among 3000 other filing cabinets."
One of the greatest difficulties in protecting sources is the whistleblowers themselves. "By nature whistleblowers are mad, bad and dangerous. If they were sensible they'd look to their pension." Merion described one source for a story around a "dangerous financial fraud scam with gangsters behind it... we set up a protocol, but within a day he (the source) was back sending swathes of data in his own name."
- An initial Law Commission consultation on the Official Secrets Act ends on 3 May. The NUJ is seeking testimony from journalists affected by official secrets legislation. This could include, for example, attempts to find out about police spies infiltrating trade unions being blocked for reasons of "national security". In confidence (although assume your device is monitored, see above!) by email to Sarah Kavanagh.