Have the whistle-blowers broken the law?

Several civil liberties issues are raised by the British government’s decision to prosecute David Keogh and Leo O’Connor over the Al Jezeera memo. They are being charged under the Official Secrets Act. Below are the relevant clauses:

Official Secrets Act 1989.
Section 1:
(3) “A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document, or other article relating to security or intelligence which is or has been in his possession by virtue of his position.
(4) “A disclosure is damaging if (a) it causes damage to the work of, or any part of, the security and intelligence services; Section 2 (2) (a) ….damages the capacity of, or any part of the armed forces (b) endangers the interests of the UK abroad, seriously obstructs the promotion or protection by the UK of those interests; or is “a document relating to international relations”

What is in the public interest?

Although there is no “public interest” defence in Britain, juries have been known to acquit whistle-blowers because they believe what they did was in the public interest. Otherwise there are two relevant “rights”:

The right to freedom of speech:
The American Constitution. Amendment 1, also known as the Bill of Rights, makes it clear congress cannot pass a law “abridging the freedom or speech or of the press”. This, presumably, means President Bush cannot infringe Al Jazeera’s right to free speech by killing their staff.

The United Kingdom’s Human Rights Act 1989, Article 2, (10): Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms ….may be subject to…the interests of national security, territorial integrity or public safety.

The right to life:
The preamble of the US Constitution, and Article 2 (1) of the UK Human Rights Act (“everyone right to life shall be protected by law”). This clause presumably makes it illegal to kill the employees of Al Jezeera.

The United Kingdom’s National Interest

Why is the UK prosecuting the whistle-blowers under the Official Secrets Act? The UK’s national interest, or armed forces, or intelligence and security services are not being threatened by publication of the memo’s contents. The conversation on page five of the memo was allegedly about the USA’s plan to bomb Al Jezeera, not the UK’s plan. In fact, Tony Blair was allegedly trying to persuade the President not to bomb Doha.

A Curious Choice of Battleground

After the public uproar following the Mirror story, why doesn’t the UK government drop the case against Keogh and O’Connor? The White House has both denied that President Bush suggested bombing Al Jezeera and said he was only joking. Rather than letting the story fizzle away, the UK has revived it by arresting the two involved, months after the “offence”, and bringing them to trial. Inevitably there will be calls for the memo to be published. The trial, which might not begin until October or November, will bring the contents of the memo back into the public spotlight on a daily basis. If the UK government is annoyed that the British-American Alliance’s dirty laundry has been displayed in public, why would it risk further embarrassment?

Don’t Mention the War: Silencing the UK media as well as Al Jezeera

When the Mirror broke the story in November the Attorney General, Lord Goldsmith, warned the media not to report details of the memo. It is not clear whether he issued a ‘D’ Notice. He subsequently told BBC Radio 4’s Today Programme, “I wasn’t seeking to gag newspapers….What I said to newspapers was you need to take legal advice.” He denied the prosecution was being used to “save the embarrassment of a politician”.

The two men accused of leaking the Al Jazeera memo have once more appeared in court, charged with offences under the Official Secrets Act. At a preliminary hearing on January 24th the crown prosecutors argued that the entire case should be held in secret. They have applied to the Foreign Secretary Jack Straw for permission for a closed hearing. The saga continues on April 25th. Please see this news story.

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