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THE SECRET WAR: Public Interest Vs Official Secrets Act 1923

By Syed Aun Mohammed Bokhari

January 16, 2024 09:18 PM


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On 11th November 1940, Winston Churchill, the Prime Minister of England, had been given at least “forty-eight hours” warning through a secret cipher that Coventry would be hit. He could have warned the people of Coventry of the impending attack. Yet Churchill determined that any advance warning to the people of Coventry would have enabled the Germans to deduce that their top-secret code had been broken. The coded intercepts provided evidence of the conspiracy of the Holocaust in progress through the Airel bombing. The Official Secret Act 1911 was enforced in England therefore the only other way to reveal that coded information to the public at large which could have bypassed the coded system, was to provide warning to the public while maintaining a strategic advantage. Although on 14th November 1940, German Air Force bombarded Coventry but Winston Churchill after consulting with his fellow parliamentarians, warned the public beforehand by disclosing the contents of the secret cipher and successfully managed to avert the massacre at Coventry blitz.

In 1971, a landmark decision was held by the United States Supreme Court in the US vs The Times on the Espionage Act 1917 which was severely scrutinized by the Court. A secret project was launched by the then US Minister for Defense which was completed in 1968 and was classified as “Top Secret”. Daniel Ellsberg, an employee, secretly made copies of the documents pertaining to the US Military involvement in the Vietnam War and passed them to reporters of the New York Times. On 13th June 1971, “The Times” began to publish these so-called “Pentagon Papers”. After the first three instalments were published, the Nixon Administration, citing national security concerns, obtained a restraining order under the Espionage Act 1917 barring further publication of the Papers. “The Times” made an emergency appeal to the United States Supreme Court, which agreed to hear the case the next day (26th June 1971). The Court issued its opinions on 30th June 1971. In a 6-3 decision, the Court dissolved the restraining order and allowed “The Times” to continue with the publication of the “Top-Secret Official documents”. It was held by the US Supreme Court that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” In this case, the government had failed to carry that burden. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors.

On January 1970 William Owen, the then Member for Morpeth, UK was arrested and charged with communicating evidence useful to the enemy, under section 1 of the Official Secrets Act 1911. On 6th May 1970, he was found not guilty. In another case in 1985, Clive Ponting MP (UK Parliament) sent two documents about the sinking of the ship “the General Belgrano” to Labor MP Tam Dalyell. Ponting was prosecuted under the Official Secrets Act 1911. Ponting’s defence was that the disclosure had been in the public interest and that the information was privileged as it was to a Member of the Parliament. The jury found him not guilty.

On 2004, an employee of GCHQ, UK, Katherine Gun admitted to leaking an email calling for British help in spying on UN diplomats in January 2004. The Attorney General of the UK announced in February 2004 that a prosecution against Katherine Gun an employee at GCHQ, for violation of the Official Secret Act 1989 would not proceed. It is also vital to place on record that in another case in 2005, Derek Pasquill, a UK Foreign Office official accused of leaking confidential documents to the New Statesman and the Observer newspapers. The documents were pertaining to the UK Government’s views on secret CIA rendition flights and contacts with Muslim groups in Iraq. As the leaks of the official documents were so damaging, the case was abandoned on 9th January 2008 when prosecutors said that the documents to be disclosed as part of legal proceedings would undermine their case.

As held by the US Supreme Court in the US vs The Times 1971, the guarding of military and diplomatic secrets at the expense of informed representatives, and government provides no real security for our Republic. Following the footsteps of Winston Churchill, Ex Prime-Minister, Imran Khan on 27.03.2022 made a speech to the public and warned the nation of the potential conspiracy being hatched in a foreign land regarding overthrowing his government without declassifying and decoding the cipher received to him in an official capacity. Secondly, cipher codes were never disclosed to the nation rather warning statements were made to the public to be alert and vigilant without disclosing the actual contents of the cipher. Thirdly, being a member of the Parliament and an Ex-Prime Minister, it was his legal duty to warn the nation through his speeches of any potential threats as warning statements do not come within the ambit of section 5 of the Official Secrets Act 1923.

It is strange and rather ironic to mention here that throughout the world, official confidential information is being leaked and contents of the secret ciphers and intercepts are disclosed to the nations in the public interest, as evident from the above-mentioned cases like the UK or USA but these nations diplomats were never let down by the international diplomatic circles neither they created any strained relations with any other country nor these nations sovereignty was compromised rather judicial interventions were made to complete the due process of law. Being a member of the Parliament, and having parliamentary privileges, it was alleged that the contents of the cipher were discussed by the Ex-Prime Minister of Pakistan among other parliamentarians at Bani Galla for political motives. On the other hand, it is obligatory for the Prime Minister, being a member of the parliament to discuss among other parliamentarians the potential threat to Pakistan.

 


Syed Aun Mohammed Bokhari

The writer is a Barrister-At-Law.


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