Adams, Carolyn --- "Protecting Classified and Security Sensitive Information" [2003] ALRCRefJl 27; (2003) 83 Australian Law Reform Commission Reform Journal 56

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Reform Issue 83 Spring 2003

This article appeared on pages 56 – 61 of the original journal.

Protecting classified and security sensitive information

By Carolyn Adams*

One element of any government strategy for securing the safety of the community is providing adequate protection for security sensitive information.

There is no real doubt that there is some information that, in the national interest, should not be made public. There are occasions, however, where the public interest in open justice and open government comes into conflict with a proper need for secrecy. This tension can give rise to problems, particularly in the administration of justice. While these problems are not new—courts and governments have long sought to strike the right balance—events in recent years have thrown the spotlight on them. As always, where public interests collide in this way, our response must be to find solutions that draw an acceptable balance between the rights of the individual and the rights of the community.

What's the problem?

The trial in the United States of Zacarias Moussaoui, an alleged conspirator in the terrorist attacks on the World Trade Centre and the Pentagon on 11 September 2001, illustrates the problem in the context of criminal proceedings. Moussaoui, who is representing himself, sought access to Ramzi bin al-Shibh—a prisoner held overseas by the US Government as a member of al-Qaeda—to testify as a witness in his defence. The United States Attorney-General has refused to allow bin al-Shibh to give evidence on the basis that it would necessarily result in the unauthorised disclosure of classified information and would be damaging to national security. But what of Moussaoui’s right to properly defend himself against serious criminal charges, some of which carry the death penalty? The question now before the US judicial system is whether, in the absence of Ramzi bin al-Shibh’s evidence, the interests of justice can be served or whether it is necessary to dismiss some or all of the charges against Moussaoui on the grounds that he is unable to conduct a proper defence.

Moussaoui is not a US citizen and, if the courts decide to dismiss the charges against him, the United States executive has the power to transfer the proceedings to a military commission. The Presidential Military Order issued on 13 November 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, states that:

Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.¹

Transfer of proceedings to such a commission would not solve the questions of principle, rather it would give the prosecution greater control of the proceedings and diminish the defendant’s rights. The Australian, David Hicks, currently detained by the United States Government in a military jail at Guantanamo Bay, is facing trial by military commission.

A similar conflict of public interests arose in Australia in the case of Simon Lappas, a former Defence Intelligence Organisation (DIO) analyst, prosecuted for passing classified information to an unauthorised person. The ACT Supreme Court upheld the prosecution’s claim (based on public interest immunity) that certain documents containing national security sensitive information should not be disclosed, but on the condition that one of the charges against Lappas be stayed.² In the circumstances, the trial judge was of the view that, without access to the documents in question, it was not possible to conduct a fair trial in relation to that charge.

These issues are not limited to the criminal courts. Sandra Jenkins is currently bringing a civil action against the Australian government for compensation arising from the suicide of her husband, Merv Jenkins. Mr Jenkins was an Australian intelligence officer who, at the time of his suicide, was under investigation for allegedly passing classified information to allies. A key feature of this case could be Mrs Jenkins’ ability to obtain access to classified or security sensitive information relevant to the presentation of her claims.

It is against this background that the Attorney-General has asked the Australian Law Reform Commission (ALRC) to inquire into and report on the protection of classified and security sensitive information in the course of court or tribunal proceedings and in other contexts such as freedom of information applications. The ALRC has been asked to consider whether existing mechanisms, such as claims of public interest immunity, the closure of court proceedings and restrictions on publication of court proceedings, provide adequate protection for classified and security sensitive information or whether there is a need for further measures in this area. In considering these mechanisms, and any proposals for reform, the ALRC will take into account the strong democratic values and public interest in open government and fair and public trials.

What is classified and security sensitive information?

Information may be sensitive or classified for a variety of reasons—because it is highly personal, commercially valuable or relevant to ongoing law enforcement operations, for example. The information that is central to this inquiry, however, is information that relates to Australia’s security, defence, international relations or other national interests. The Commonwealth Protective Security Manual (PSM)³ defines ‘national security information’ as any official resource that records information about or associated with Australia’s:

• security from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system or acts of foreign interference;

• defence plans and operations;

• international relations, that relate to significant political and economic relations with international organisations and foreign governments; or

• national interest, that relates to economic, scientific or technological matters vital to Australia’s stability and integrity.

The PSM also defines ‘non-national security information’. This includes sensitive information about government business, commercial interests, law enforcement operations and personal information. Non-national security information is not the focus of the current inquiry. It can, however, give rise to similar issues and concerns as disclosure of such information may threaten the interests of groups or individuals other than the nation. For this reason, in developing its recommendations the ALRC will also examine existing mechanisms for dealing with non-national security information in courts and tribunals. The ALRC’s recommendations in relation to national security information may also have wider application.

The PSM sets out how and why information is to be classified. There are separate regimes for national security and non-national security information. Where necessary, national security information may be given one of four national protective security markings based on an assessment of the consequences of the unauthorised disclosure of the information:

• Restricted—if compromise of it could cause ‘limited damage’ to national security;

• Confidential—if compromise of it could cause ‘damage’ to national security;

• Secret—if compromise of it could cause ‘serious damage’ to national security;

• Top Secret—if compromise of it could cause ‘exceptionally grave damage’ to national security.

The PSM stresses that government policy is to keep classified information to a minimum. The mere fact that information relates to national security is not sufficient to require it to be classified—that becomes necessary only if unauthorised disclosure of the information could cause damage to national security. The PSM also notes that most national security information requiring classification will be adequately protected by the procedures established for dealing with ‘Restricted’ and ‘Confidential’ material. The PSM recommends that the ‘Secret’ marking be used sparingly and the ‘Top Secret’ marking be used with the ‘utmost restraint’.

While it is relatively straightforward to identify classified information, the ALRC has also been asked to consider security sensitive information. The terms of reference define ‘security sensitive information’ as ‘information that has implications for Australia’s security, but is not formally classified, for whatever reason’. This might include information that ought to have been classified but was not—whether through error, oversight or otherwise.

What are the consequences of classifying information?

Once information has been classified, agencies are required to observe certain minimum procedural requirements in handling, using, storing, transmitting and disposing of the information. For example, agencies must take all reasonable and appropriate precautions to ensure that only people with a demonstrated need to know and the appropriate security clearance gain access to the information.

One of the more specific issues the ALRC has been asked to consider is the extent to which the security standards set out in the PSM are, or might be made, legally enforceable. The PSM itself states that:

Although the minimum standards and general guidelines provided in the PSM are not legally prescribed, they reflect the aims and objectives of the Commonwealth government and legislation relating to protective security. Therefore, agencies and their employees must adhere to at least the minimum standards in order to fulfil their portfolio responsibilities.⁴...

The security classification system and the protective markings carry no direct implications in law; they are instead administrative labels that indicate the mandatory requirements for a minimum level of protection. They will, however, help agencies to meet legislative requirements for protecting official information.⁵

While a breach of the standards per se would not appear to give the government a cause of action against the breaching party, there are a number of ways that the standards could be indirectly enforceable. This could occur where a breach of the standards also amounted to a breach of:

• a contract between the agency and an employee or contractor;

• the Australian Public Service (APS) Code of Conduct which binds APS employees, agency heads and statutory office holders; or

• legislation such as the Crimes Act 1914 (Cth), the Freedom of Information Act 1982 (Cth) or the Privacy Act 1988 (Cth).

The ALRC is examining whether these mechanisms are appropriate and sufficient or whether further measures are necessary or desirable.

Classified and security sensitive information in courts and tribunals

The major issue the ALRC has been asked to consider is the use of classified and security sensitive information in courts and tribunals. It appears that investigations and proceedings that involve classified and security sensitive information are fairly rare in Australia—but they attract significant publicity when they do occur. In part, this may be because cases involving classified or security sensitive information are not pursued in order to protect the information or to avoid the exposure and cross-examination of intelligence agents, even in restricted circumstances.

Where classified or sensitive information does, or might be, used in open court, Australian courts and tribunals have a number of mechanisms available to them to ensure that the information is dealt with appropriately. Confidentiality undertakings from parties and their legal advisers are regularly required in litigation to protect commercially sensitive information. Undertakings may be made by agreement or imposed by court order and may cover particular documents or information or may be enforced more generally. Such undertakings may also be required in relation to security sensitive information, and various undertakings were in place in relation to the prosecution of Simon Lappas noted above.

Apart from express undertakings, parties to litigation are subject to an implied undertaking to the court not to use or disclose information received through the court’s compulsory processes, except for the purpose of those proceedings, without the court’s leave or the consent of the owner of the information. The undertaking ceases upon the information being admitted into evidence in open court. A breach of any undertaking, for example, by disclosing information to the media, is a contempt of court. It might also be a criminal offence.

Other mechanisms for protecting classified or sensitive information include restricting access to documents; for example, parties may only be permitted to inspect documents rather than to take copies away with them, and editing or blacking out sensitive parts of particular documents. Because this may limit a party’s ability to access or use certain information, these mechanisms have the potential to impact adversely on a party’s ability to run or defend a case.

Other mechanisms for dealing with classified and sensitive information include the closing of court proceedings to the public—that is, holding of hearings in camera—and court orders restricting publication of proceedings and restricting access to documents on the court file. A recent example of in camera proceedings in Australia was the committal hearing in the Lappas case in which the classified documents allegedly passed by Lappas to an unauthorised person were tendered as evidence in camera. The Western Australian District Court recently prohibited publication of the police statement of facts and the defendant and witness statements in the case of Jack Roche, who is accused of plotting to bomb the Israeli embassy in Canberra with three al-Qaeda members.⁶

Closing a court to the public or the media, or restricting publication of court proceedings, may not impact on the administration of justice in a particular case but it does run counter to the principle of open justice, an essential and well established feature of the common law judicial tradition. This principle ensures that the judicial process is open to scrutiny, discourages abuses and encourages public confidence in the integrity and independence of the process. The right to a hearing in an open court is not, however, an absolute right. Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) establishes the right to a fair and public hearing at international law but also provides that a court may be closed for a number of reasons, including national security.

While leading evidence designated ‘Top Secret’ might justify the closure of a court, it is unclear whether leading any information that has been properly marked with one of the other, lesser national security protective markings could justify the closure of a court, especially given Nowak’s commentary that ‘national security’ for the purpose of the ICCPR requires proof of a ‘grave case ... of political or military threat to the entire nation’.⁷

The ALRC is also examining other practices and procedures including the exclusion of one party or that party’s legal representatives from proceedings, the tendering of secret evidence and the holding of secret hearings. While such mechanisms clearly give rise to major concerns in relation to the proper administration of justice, they have been used, in particular, in immigration proceedings in the United States.

Do we need to do more?

The Australian Government has expressed the view that further measures are necessary. In May 2003 the Attorney-General issued a media release stating that the Government would introduce legislative and administrative measures to further protect classified and security sensitive information in criminal proceedings including:

• enabling closed hearings on the use, relevance or admissibility of such material before it becomes an issue in open court;

• enabling the court to allow summaries or stipulations as to the facts to be substituted;

• requiring all persons to obey, under threat of criminal penalty, any court order or direction relating to the custody, handling and disclosure of such information; and

• requiring legal representatives who need access to the information to be security-cleared at the appropriate level.

The Government also announced an addition to its legal aid guidelines that would require legal aid lawyers to obtain a security clearance before they acted in cases relating to Australia’s national security.

The ALRC will consider all these issues in the course of its inquiry but remains open on the question of whether these or any further measures are necessary or appropriate.

Conclusion

It is not the ALRC’s task in this inquiry to examine broadly Australia’s current or proposed anti-terrorism or other crimes and intelligence legislation. However, it is important to consider whether the current circumstances require any substantial departure from the existing principles and procedures that underlie our justice system and balance the conflicting public interests of secrecy and openness, which have been developed over many years in periods of peace and war, threat and stability. The mere fact that security concerns are heightened may not of itself justify new methods of handling classified and security sensitive information, especially if civil liberties might be unreasonably curtailed and safeguards against administrative and executive abuse are not also introduced.

The ALRC is due to report to the federal Attorney-General by 29 February 2004. In July 2003 the Commission published a Background Paper, Protecting Classified and Security Sensitive Information (ALRC BP 8) outlining the issues the ALRC is required to consider and as a stimulus for preliminary consultations and submissions. Although the deadline for submissions in relation to BP 8 has now passed, there will be further opportunity for public comment on the inquiry. The Commission anticipates publishing a Discussion Paper later in 2003 to outline its preliminary views. The DP will be used as the basis for further consultation and submissions.

*Carolyn Adams is a Senior Legal Officer with the Australian Law Reform Commission and is currently assigned to the ALRC inquiry into classified and security sensitive information.

Endnotes

1. President G Bush, ‘ Military Order of November 13, 2001: Detention, Treatment and Trial of Certain Non-Citizens in the War against Terrorism’ (2001) 66(222) Federal Register 57833, s 1(f).

2. R v Lappas and Dowling (ACTSC, Gray J, 26 November 2001). In July 2000 Lappas was charged with official secrets offences under the Crimes Act 1914 (Cth), s 79(2). In 2001 additional espionage charges were brought under the Crimes Act 1914 (Cth), s 78(1). The offence of espionage has now been transferred to the Criminal Code Act 1995 (Cth), ch 5.

3. Attorney-General’s Department, Commonwealth Protective Security Manual (2000) Commonwealth of Australia, Canberra.

4. Ibid, A 18, para 5.1.

5. Ibid, C 19, para 4.17.

6. M Russell and N Lawton, ‘Top Al-Qaeda ‘in Canberra Plot’’, The Courier Mail (Brisbane), 2 May 2003, 7.

7. M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) NP Engel.