29 August 2000: Link to legal analysis of reform of the Official Secrets Act by Ian Leigh, Professor of Law, University of Durham.


28 August 2000

Messages from Intelligence Forum (http://www.intelforum.org).

Date: Mon, 21 Aug 2000 23:55:47 -0700
From: J Kirkwood <jrkirkwood@earthlink.net>
To: "intelforum@his.com" <intelforum@his.com>
Subject: Shayler and prosecution in the UK

With all due respect, and I know that, at least at one time, Intelforum had a few "Shayler sympathizers", but why shouldn't he be prosecuted in the UK for violating the Official Secrets Act? He admits to breaking them-- but wants people to believe he did it for humanitarian reasons. What? If the moderator is willing to let some explanations go to the list, I am interested in hearing the arguments for letting David Shayler off with a slap on the wrist (or less). If not, you are welcome to send these to me offlist. I will read and analyze each position, although in the interest of academic honesty, I think he is awfully guilty of violating at least the OSA.

Jason Kirkwood

From: "Fielding, Nick" <Nick.Fielding@sunday-times.co.uk>
To: "'intelforum@his.com'" <intelforum@his.com>
Subject: RE: Shayler and prosecution in the UK
Date: Wed, 23 Aug 2000 11:46:04 +0100

The most straightforward response to Jason Kirkwood's question, 'Why shouldn't David Shayler be prosecuted?' is that he is being prosecuted under a piece of legislation which is in all likelihood contrary to the terms of the Human Rights Act, due to come into force in Britain at the beginning of October. The OSA is a useless piece of legislation, drawn too tightly and without any kind of public interest defence - which was removed from previous legislation in 1989. It cannot be good to have legislation which claims infallibility. Its blanket prohibition on revealing anything connected to the intelligence services - and one notes that several writers favoured by MI5 have been able to publish many revelations without apparent fear of prosecution - serves no sensible purpose and does not appear to be a necessary requirement of other intelligence agencies.

What is the career intelligence officer to do if s/he believes they are witnessing illegality? Nor should those who attack Shayler be so conceited as not to recognise the effect his disclosures have had on MI5 itself. They have provided a greater impetus for reform that all the bleating and complaining from those outside the service have ever done.

I confess an interest as the person who first publicised his revelations and remain entirely convinced that Shayler has, for the most part, performed a public service. Why should the public not be allowed to know that an MI5 officer hid an advance warning of the bomb attack on the Israeli Embassy in London in an office draw after the event in order to cover up their own incompetence? Or that MI6 officers were active in a plot to kill a foreign head of state?  Or that a respected journalist on the Guardian was bugged and followed for almost a year? Or that several members of the present Labour government have detailed personal files compiled at a time when MI5 was run by a cabal of fringe lunatics who should themselves have been the subject of investigation? Shayler has raised many other issues of similar importance. His former employers seem to want their cake and eat it; they condemn him in public while quietly changing their own procedures to make sure similar mistakes cannot take place in future.

Date: Wed, 23 Aug 2000 11:46:19 +0200
To: intelforum@his.com
From: Martin Olsson <mnemo@home.se>
Subject: Re: Shayler and prosecution in the UK


My view of this is that Shayler should have come forward with his information. However, he should have pressed for a change in the law, which allowed him to reveal the information he had. When the information is of such importance, it must come forward. Surely it's not easy to change the law, but through hardwork anything can be done and this would be the right way to choose. Breaking the OSA was wrong, but if nothing else worked I would have done the same. But, David didn't seem to try enough the right way. Bitching a little with his employer is not enough, he could have indicated in media that he held important information of goverment abuse and then got support from dedicated people like julie-ann etc, through these actions or similar, maybe some sort of sane agreement could be closed.

I'm not very well informed on this shayler-case, take my words more like a personal opinion of mine. I've only read a few articles in the media etc) I hope that once this information is out, now there will be enough upset/dedicated people to change the law and make a hole in the OSA so that this type of guys can go too the media. Because this info should not be kept in the dark, intel.orgs should have respondsability.

This is my view, I hope this was what you wanted or at least something similar.

Martin Olsson

Date: Thu, 24 Aug 2000 10:18:23 -0400
From: Westintel Research <Westintel@compuserve.com>
Subject: RE: Shayler and prosecution in the UK
Sender: owner-intelforum@mclean1.his.com

It is incorrect to say that the Official Secrets Acts prevent a defendant from deploying a 'public interest' defence. It is equally untrue to assert that the new European human rights legislation will automatically allow this.

It has always been open to any defendant in any criminal trial to deploy a 'public interest' defence and this occurred with an Official Secrets prosecution of Clive Ponting, a Ministry of Defence civil servant accused with leaking information relating the sinking of the Argentine warship Belgrano in the Falklands conflict in 1982. Ponting eventually admitted having leaked the classified material, and he was acquitted when he claimed his leak had been in the public interest.

Shayler was and is able to deploy a similar defence. Whether he is believed is another matter. The human rights legislation only affects the terms of his civil employment contract under which presently he undertook not to disclose any information of any kind regarding his MI5 employment without prior consent. Under the new legislation, he and other individuals bound by the same terms will be freed to the extent that they will be able to exercise a right of expression on topics that do not endanger national security. Thus, in brief, Shayler previously was bound to total silence. Now he can only be prevented from making disclosures that are actually damaging.

As a matter of fact Shayler has already exercised this right in respect of his incorrect and distorted tale about the bombing of the Israeli embassy. His version of events, which he acknowledged was canteen gossip, turned out to be untrue, and because it was fiction the terms of the restraining injunction on the Mail on Sunday were varied to allow publication. Unfortunately, when this particular story was published the newspaper chose not to report that the government had given their consent to the variation because it had no interest in suppressing information known to be untrue.

The proposition that Shayler's original disclosures revealed abuses and did not compromise security could only be made by someone unfamiliar with the facts or unaware of the statutory responsibilities of the Security Service. Two examples have been cited: the retention of files on certain government ministers, and the surveillance conducted on a Guardian journalist.

As regards the files, they were quite properly initiated at a time when the subjects were not ministers. In one case the person concerned was a member of the Young Communist League and attended a Soviet-funded conference in Cuba wen he was a student. The Security Service has been required since 1949 to open files on members of certain organsations and  the YCL was in that category. A second minister was also a member of an organisation that fulfilled the same criteria (which incidentally was also an organisation that had been proscribed by the Labour Party as a Communist front). Concerning the other minister, discretion prevents me from describing the full circumstances of why it was opened, but suffice to say that he was interviewed in connection with a leak of classified information when he was not even a Member of Parliament (but was employed in a post with access to sensitive data) and was shown to have lied.

The Guardian journalist referred to was the subject of a perfectly proper anti-terrorist organisation after an allegation had been received that she was acting as a conduit for terrorist funds from Libya. The subsequent enquiry did include authorised surveillance and resulted in her being eliminated as a suspect. In that case Shayler has argued that greater freedom for the Security Service to circumvent the strict controls on the conditions for granting warrants would have reached the same conclusion much earlier. For my money, I rather prefer the knowledge that the controls, while sometime inhibiting, are there to prevent misconduct.

Finally, the assertion that Shayler has blown the whistle on a plot to assassinate Colonel Gadaffi is specious nonsense. He has reported that SIS was in touch with a source inside a Libyan emigre group opposed to the regime. The fact that the group received some financial support from SIS does not mean SIS endorsed its various schemes to bring down Gadaffi.

Do not be fooled into thinking Shayler is a whistleblower. An honourable whistleblower uses whatever remedies are available internally to remedy a problem, and if dissatisfied resigns his post and makes a public declaration of his views. Shayler did absolutely nothing while he was within the organisation, subsequently failed to find a publisher for a book proposal circulated pseudonomimously (which incidentally did not promise to reveal any misconduct), and finally sold a very damaging article to a Sunday newspaper which failed to realise that one of Shayler's disclosures placed an informant's life at risk, and a second compromised a relatively recent and useful intelligence collection method. Not one of the items published in August 1997, which was prior to the injunction, amounted to an allegation of misconduct.

In short, Shayler is an opportunist who seeks to capitalise on the knowledge with which he has been entrusted by the public.

Nigel West

From: "Fielding, Nick" <Nick.Fielding@sunday-times.co.uk>
To: "'intelforum@his.com'" <intelforum@his.com>
Subject: RE: Shayler and prosecution in the UK
Date: Fri, 25 Aug 2000 12:06:39 +0100

Unfortunately, Nigel West is wrong on several points. The UK's public interest defence on security matters was specifically withdrawn by the 1989 Security Services Act. Clive Ponting was tried under the old Act and was only acquitted when the jury rejected the strong 'advice' from the judge that he should be convicted. In legal terms he was guilty, but the jury chose to acquit him anyway. As things stand at present Shayler cannot deploy a public interest argument. When the Human Rights Act comes in he will be able to use that to argue his right to speak out against wrongdoing, bearing in mind that he has not threatened national security in any of his disclosures. Nigel Wylde, who is due to come to trial in November, will also use the HRA when he is tried on official secrets charges over his alleged leaking of information to author Tony Geraghty concerning computer systems used in Northern Ireland.

As for Shayler's allegations about the Israeli Embassy bombing, I am afraid that this was much more than 'canteen gossip'. Shayler worked in the same section and was aware of discussions within his own group about the consequences of the female officer's behaviour in hiding the relevant document. So serious was this breach that it has now become a major factor in the appeal launched by the two Palestinians wrongly convicted of the bombing. Their lawyers are demanding access to MI5 papers, in particular to one internal assessment that suggested the bombing was the work of the Israelis themselves.

Nigel's points on the keeping of files on politicians ignores the fact that the same group of Angleton-inspired cold war warriors felt it necessary to keep files on pop groups like UB40, on children who wrote for information to the Russian and Chinese Embassies, on homosexuals and a wide variety of other people whose only apparent crime was to have indulged in lifestyles which these self-appointed guardians of public morals disagreed with. It is these smaller infringements of privacy that really indicate the true nature of the counter-subversion section of MI5 at the time. Shades of Hoover.

As for the Libya plot, read for yourself the CX document - an official MI6 assessment - on the plot. It can be found on cryptome.org and is possibly the most important internal intelligence document ever to appear from MI6. You'll be telling us next that MI6 is involved in social work.

Fielding, Nick

Date: Sat, 26 Aug 2000 00:55:51 -0700
From: J Kirkwood <jrkirkwood@earthlink.net>
To: intelforum@his.com
Subject: Re: Shayler and prosecution in the UK

Mr. West has done a lot of people favors by enlightening us to some of the unreported issues of this case. I don't think its cut-and-dry or a "slam dunk" prosecution, but the OJ Simpson prosecution thought they had a "slam dunk" prosectution, only to be upended with theatrics and down right 'good lawyering'. But Shayler's case involves violations of what the UK considers its state secrets; presumably Shayler signed a plethora of non-disclosure agreements and secrecy agreements, but chose to violate them, and I have yet to hear of a good rational. He is alleged to have committed treason, has the right to a trial, and lets see what happens in the end. He admits to doing the crimes charged with, so only a Johnnie Cochran (or Englands equivalent) can put on enough theatrics and diversions for this case not result in a conviction.

Also, I don't quite understand why there are so many Shayler sympathizer's. There are few sympathizer's with American spy's (Pelton the one exception that comes to mind).

What did Shayler do to enamour so many to his cause, whatever that may be?

Jason Kirkwood

Date: Sat, 26 Aug 2000 14:52:34 +0200
To: intelforum@his.com
From: Martin Olsson <mnemo@home.se>
Subject: Re: Shayler and prosecution in the UK

>What did Shayler do to enamour so many to his cause, whatever that may be?

Simply, the right thing. He acted upon public interest, so the public supports him.


Date: Mon, 28 Aug 2000 10:28:40 -0400
From: Westintel Research <Westintel@compuserve.com>
Subject: RE: Shayler and prosecution in the UK
To: <intelforum@his.com>

If Nick Fielding really believes that the 1989 Official Secrets Act specifically excludes a public interest defence, he should cite the relevant section. Having participated in the passage of the Bill, and having debated this very point, I can assure him he is quite mistaken.

The fact that the jury in the Ponting trial chose to reject the judge's (perfectly legitimate) direction in his summing up, and acquit the defendant proves my point regarding a public interest defence. There was no exclusionary clause allowed in the previous Acts since 1889 and 1919, and there is none in the 1989 Act.

As one of the authors of the original Mail on Sunday article on Shayler's disclosures, Nick Fielding has a strong interest in claiming that the reports did not compromise national security. I acknowledge that the two most damaging disclosures could have been written in a way that avoided jeopardising an individual agent in one case, and a source in the other. The only possible defence to either criticism is that the agent gave his consent  (which is not the case) or that the method was now redundant (but it is not).

Turning to Nick Fielding's criticism of the criteria used for opening MI5 files,  he suggests that MI5 believed the people involved were guilty of 'lifestyle' crimes. Not so. The whole point about initiating files on subversive organisations and their members is to be able to identify them as suspects when a crime is committed. No crime is required for a file to be opened, merely the subject genuinely fulfils the designated criteria. Argue, by all means, about the definitions, but they were not invented on a whim by MI5. They were set by and subsequently approved by successive home secrtaries of differing political hues, and then were confirmed by Parliament. In the examples given by Fielding in his article (Mandelson, Starw and Lennon) all three fulfilled the appropriate criteria and are not examples of MI5's excesses.

I am unsure of the reference he makes to a child who wrote to the Chinese embassy, but unless the signator puts 'aged ten' in parenthesis I don't see how an MI5 letter inspector is to know the age of the sender. The rule is to monitor all correspondence, and this type of surveillance is a proven method.

As regards Fielding's comment on Shayler's false assertion regarding the bombing of the Israeli embassy in London, please note that he does not deny that the Government lifted the injunction to allow this story to be published. The best he can say regarding Shayler's access on this fictional tale (which subsequently has been the subject of an independent enquiry which rejected Shayler's version), is that he was 'in the same section'. He was not. He was in the same branch, and in the same building, but he did not have direct knowledge of the allegations he made, whch were found to be incorrect.

Finally, Fielding rhetorical question about SIS's invovlement in social work suggests that actually that is precisely what he thinks its duties should be limited to. All the document he refers to shows is that SIS was doing its proper job. It was maintaining liaison with an emigre opposition group that was contemplating a coup in Libya, and then circulating a report on that very topic. That is precisely the role of SIS. If anyone objects, they hsould complain not to SIS, but to the politicians who authorised the liaison in the first place.

By raising the ghost of James Jesus, Fielding does a disservice to MI5. The late Chief of the CIA's Counterintelligence Staff acknowledged with disarming candour to Congress that one of his domestic surveilance operations, conducted between 1953 and 1971, was illegal. Incidentally, Angleton did not mention that he had urged his DCI John Schlesinger, to apply directly to the President for approval. Angleton knew the domestic wiretaps and mailcovers were illegal, but he and many others felt the benefit of monitoring Soviet and Eastern Bloc contacts with Americans were worth the effort.

There is no parallel with MI5, which has always been scrupulous in obtaining warrants for all its surveillance operations. Furthermore, the warrants are approved individually by a Cabinet minister, and are subject to independent scrutiny.

The bottom line is that neither Fielding nor Shayler have produced a single example of illegality.

Nigel West

Date: Mon, 28 Aug 2000 04:31:35 -0700 (PDT)
From: Julie Ann <official_secrets_act@yahoo.com>
Subject: Re: Shayler and prosecution in the UK
To: intelforum@his.com

In answer to Mr. West's question a lot of people have been "won to the cause" because they see the political issues behind it.

It is not just a matter of Shayler's allegations, the nub of the matter is the need for accountability of MI5 and 6, the reform of the current system and indeed the Official Secrets Act itself.

These agencies need to be reminded that nobody is above the law.  The electorate are also heartily sick of a Government that only seems to recall it's accountability and responsibility to the electorate when an election is looming.

As for Shayler's prosecution, may I draw attention to the situation with Cathy Massiter, Ms. Massiter (an employee of MI5) made allegations for a television programme for 20/20 Vision in 1985.  These allegations were of a similiar nature to some of those made by David (unwarranted tapping etc.) yet no action was taken against her.

It's time this country had the Security Service it deserved and not the one foisted on it, which is out of date and out of control.  People recognise this because they are not as stupid as many members of Parliament (current and past) seem to think.

Best regards

Julie-ann Davies

(Admitting  to a bias as I am a supporter of the PF No1 campaign... perhaps others would also care to admit their bias too?)