from Crikey .....

all's well in an intelligence community overseeing itself

Crikey Canberra correspondent Bernard Keane writes:

ASIO, ROBERT CORNALL, WIKILEAKS

Study any large institution and you'll always see the same human characteristics emerge inside bureaucracies. One of the recurring features of the Anglican church in the 16th and 17th century was that bishops and priests, when pressed to report on the state of their dioceses and parishes, would frequently report back "omni bene", no matter what was going on.

Omni bene. All's well. The response of people who don't want any outside interference on their turf, who are content with the status quo and want to keep it.

If you want a modern day omni bene report, look no further than the review of Australia's intelligence agencies, the unclassified version of which was released on Wednesday -- after suitable backgrounding of Fairfax the day before.

The review is officially called a "Report of the Independent Review of the Intelligence Community". But the two-person review team was led by Robert Cornall, John Howard's appointee as Secretary of the Attorney-General's Department who served from 2000-08 and who was critical to the rollout of the Howard government's systemic abrogation of basic rights under the guise of anti-terror legislation.

Cornall also played a disturbing role in the aftermath of the abduction of Izhar ul-Haque in 2003 by ASIO agents, who kidnapped him and his brother from a Sydney railway station and held him prisoner while interrogating him.

Justice Michael Adams later found that two ASIO agents had committed false imprisonment and kidnapping. The agents, sheltering behind their legislated anonymity, have never been brought to justice.

But in a remarkable intervention, Cornall subsequently tried to have Adams disciplined by the NSW Judicial Commission, writing a letter of complaint citing how Adams had failed to have any concern for "due process and natural justice" -- the two things flouted by ASIO. The Commission rejected Cornall's complaint.

Study any large institution and you'll always see the same human characteristics emerge inside bureaucracies. One of the recurring features of the Anglican church in the 16th and 17th century was that bishops and priests, when pressed to report on the state of their dioceses and parishes, would frequently report back "omni bene", no matter what was going on.

How this man could be considered "independent" is a mystery known only to Julia Gillard, who appointed Cornall and University of Melbourne academic Rufus Black in December 2010.

Unsurprisingly, "omni bene" is the result, with the review declaring the legislative framework within which intelligence agencies have operated since 9/11 (which Cornall played a critical role in developing), the massive increase in resourcing for intelligence and the balance between security and civil rights is all fine, thanks very much.

At least, that's what the unclassified summary of the report says. We're not allowed to know the contents of the classified version. Cornall and Black may have been poorly served by the unclassified "summary". Indeed, that's the only explanation for some of the strange logic that pervades it. For example, in relation to the draconian anti-terrorism framework, the report concludes

"The anti-terrorism laws which created terrorism offences and expanded the powers of intelligence and law enforcement agencies were forged through a vigorous national debate that ultimately led to bipartisan support in the Parliament. The result of that process of political negotiation is that the Review did not hear any substantial criticism of the balance in our anti-terrorism laws between the security of the community and individual privacy and other civil rights."

Remember, this is one of the key architects of these laws sitting in judgment on his own handiwork. And it's not entirely clear what it means -- it seems to suggest that, because the major political parties agreed on the aggressive curtailment of rights that resulted from the anti-terror legislation, there was no "substantial criticism" of that. The review appears not to have consulted with any MPs or senators outside the government and opposition, except Andrew Wilkie, who told Crikey he was consulted through his membership of the Parliamentary Joint Committee on Intelligence and Security. The review did, however, consult with John Howard, Peter Costello, Alexander Downer and Lindsay Tanner, all of whom had left politics before the review commenced.

The same weird logic crops up in what would, even from the point of view of anyone uninterested in the curtailment of rights in the name of the War on Terror, be a key issue for the review - whether the vast increase in resourcing of intelligence, which the report finds has ballooned to over a billion dollars a year, has been warranted. The review concludes:

"The investment made in building up the intelligence agencies has been justified and rewarded with more capability and increased performance."

That is, an arbitrary declaration that it has been "justified", and then a bizarre statement that the investment has been "rewarded". Given a significant increase in resourcing, wouldn't greater capability and increased performance necessarily follow?

The rest of the report is equal parts bureaucratic boilerplate and motherhood of the kind found in strategic plans and annual reports the world over. It offers such pearls of wisdom as

"Priority setting would be assisted by a more analytic approach that is better aligned with the government's all hazards approach to national security ...

"Australia also needs to keep its war fighting capability on a sound footing. We still live in a dangerous world. There are rising powers and simmering tensions in our region. Our neighbourhood has vulnerable states that may again need our assistance ...

"Generally speaking, intelligence was historically well hidden and hard to get."

Out of respect for Cornall and Black, we should again emphasise that this is a summary, and they may not be responsible for such offerings.

Nor does the report deal with what we were told was a key issue last year: the need for ASIO's powers to be enhanced to enable it to spy on foreign entities like WikiLeaks. As we know, the government repeatedly denied it had amended ASIO's powers to target WikiLeaks, eventually insisting after much questioning that they were to enable it to target the dire threat of illegal fishing. When ASIO was later asked about its anti-illegal fishing operation, it said not merely was it not doing anything about illegal fishing, it was actually outside its remit.

So how does the report address the need for the change and the remedying of this apparently critical flaw in ASIO's powers? Apart from suggesting that "non-state actors" are outside "ethical frameworks", it confines itself to stating that "it is not clear that either [domestic or international legal] framework is entirely suitable for dealing with non-state actors like terrorist organisations". Whether that applies to the pre-WikiLeaks amendment framework or the post isn't clear.

What the report really is is yet more of the rubber-stamp public accountability enjoyed by an intelligence community that has been handed constantly strengthened powers and massive increases in funding with no effort made to check whether any of it is justified. We don't even know how many wiretaps and online intercepts ASIO deploys each year, as that isn't covered by the Telecommunications (Interception and Access) Act 1979 annual report, ASIO's annual report to parliament or the Inspector-General of Intelligence and Security's annual report.

This is an area of government with enormous power and over a billion dollars a year, effectively overseeing itself with the public given nonsense reports like this as a sop for real accountability.