UK Media Gagged In "Official Secrets" Trial

An anonymous reader writes "According to an an article at Cryptome, the UK media has been gagged from reporting on the trial of an ex-intelligence agent. More than this, they've even been gagged from reporting on the gag! Several UK websites that were covering the story have removed it. Insidious..."

Comments

does this happen often?

[Hadlock]

i'm aware of the US's uniqueness in the fact that we have a freedom of the press, and "free" governments in general (except china, ect) generally let the press do as they may, within reason. how often does the UK gov put gag orders on the press? if they can gag the gag orders, it seems like this would be somthing that happens fairly often...

i'm not a history major or anything, but i'm curious, why wern't the US media allowed to cover the vietnam, or was it korean, war? i mean it's understandable that the governement would withold details of war for tomorrow's attack, but as i understand it there was more or less a gag order on the entire war. or maybe i'm completely wrong.

Re:does this happen often?

[peter hoffman]

The press covered Vietnam in detail. It was the "living room war" and that led directly to the protests.

It was the first conflict where television was widely available. In 1946 there were only 8,000 sets in the U.S. By 1950 there were 3.88M sets (9% of the population) and by 1955 64.5% of the population had a set. The shooting portion Korean conflict was from 1950 to 1953 so television wasn't able to have much of an affect.

The Pentagon learned their lesson from Vietnam and that is why no conflict since then has been covered by the press in the same way. Today we get the sanitized news the Pentagon wants us to get.

Btw: the last actual war the U.S. had was WWII. Everything since then has been a "conflict" or "police action" or some other term.

Re:does this happen often?

[WeaponOfChoice]

I'm not a history major either but I'd imagine that this type of thing happens quite often (though less often than the conspiracy theorists would think).
The the power to completely restrict the availability of information must get mighty seductive and would be useful to cover up all sorts of inconvenient items.
Of course, in the current day and age, it is almost impossible to completely restrict this info, even if the only information available is that information has been concealed. People get mighty suspicious if a government seems to be too eager to cover up too many things in the intrests of a supposedly free society (and press I guess).

The thing I'd like to know is when do these gag orders expire. Even classified material becomes declassified after a time. It's not too unreasonable to believe that the information that has been obscured will be made available in time and the reasoning behind the obsfucation will also be available so the decision will be under some measure of public scrutiny eventually.
It'd be interesting to know the penalties involved in invoking this kind of power in the personal intrests of the people in power at the time (as opposed to the proper use... errr... for the good of all people I guess...)

Re:does this happen often?

[paul.dunne]

It happens fairly often -- Ministry of Defence blocks TV show is from back in April, for example. The prefatory remarks to another crytome file, Enquiry: The Killing Years in Ireland, show the efforts they make to stop this kind of thing becoming known.

Re:does this happen often?

[Second_Derivative]

Btw: the last actual war the U.S. had was WWII. Everything since then has been a "conflict" or "police action" or some other term.

Yeah, they've moved on from attacking just sovereign states to attacking entire abstract concepts (any nation states that might happen to involve are just a side issue)

Re:does this happen often?

[neocon]

Well, which is it? Are the nations we act against indeed sovereign states, in which case under international law they have a responsibility to prevent their territory from being used to launch attacks on us or aren't they?

If, indeed, they are sovereign states, then they do have such a responsibility, and our right to defend ourselves against such attacks is clearly defined by international law (including the UN Charter's Article 51).

Re:does this happen often?

[neocon]

Actually, the vast majority of US military actions before the second World War were also undeclared, starting with President Jefferson's actions against the Barbary Pirates. The same holds true of most military actions by most nations in the world's history.

A declaration of war has a specific legal meaning, and is a power reserved to the Congress by the US Constitution. The use of military force, which does not require a declaration of war, is assigned by the Constitution to the Commander in Chief of the armed forces -- which is the president.

In most large scale military actions, such as Korea, VietNam, or the Gulf War, the President has sought the advice and consent of the congress before acting, but this is not a Constitutional requirement.

Re:does this happen often?

[neocon]

Says you. Both Madison (the author of the Constitution) and Jefferson (author of the Declaration of Independence) and a key figure in the Constitutional debates believed otherwise, using the military without a declaration of war.

More generally, the vast majority of Constitutional scholars agree that when the Constitution says that the President is the Commander in Chief of the military, that's what it means.

So perhaps you can provide a source backing your interpretation of the Constitution?

Re:does this happen often?

[neocon]

A good place to start would be Max Boot's _The Savage Wars of Peace: Small Wars and the Rise of American Power_, which is a history of small-scale military engagements which the US has participated in -- from the conflicts with the Barbary Pirates starting in 1800 through the present.

You can find a review of Mr. Boot's book from the History News Network (with some discussion of the subject) here, or order it here.

In short, what you'll find is that out of over 100 military campaigns the US has participated in, from the dawn of our nation through the present, less than a dozen have been declared wars. This suggests that the body of precedent backs up what I have said...

Re:does this happen often?

[neocon]

At the risk of pointing out the obvious, if of over 100 wars the US has fought, less than a dozen were declared wars, and if every generation of presidents has held this power, including the founding generation (and remember, Jefferson and Madison both exercised it), it follows that my position is the status quo, the default position.

If you want to argue for a change in this policy, that's fine -- but you shouldn't argue that it would be anything but a change, since from the author of the Constitution on, every president has had this power.

Re:does this happen often?

[seaton carew]

I guess it does.

Try searching for "shayler" on the BBC news site...
Looks like public interest in this story officially expired back in March.

Even stranger, the Financial Times [subscription required] reports "No matches" for the same search.

At least The Guardian are on the case, although even they have had some articles censored.
Of course, they can't actually report that this censorship occurred.

Scary.

Re:does this happen often?

[jjo]

While a claim of uniqueness can only be proven by an exhaustive survey of world legal systems, one might more easily chanacterize the USA as "exceptional" in the degree to which it protects the freedom of the press.

The Swedish Fundamental Law is an illustrative example. While a good law for physical media, TV, and radio, AFAIK it does not apply to the Internet. Until ACLU v. Reno, the First Amendment didn't necessarily apply to the Intenet either. In that case, the US Supreme Court extended full protection to the Internet. While important, this decision wasn't really suprising, since it merely extended the doctrine established in a long line of free-speech/free-press cases.

Another contrast is with the Canadian Charter of Rights and Freedoms. While it has a valuable guarantee of freedom of expression, that guarantee has a huge loophole. Via the "notwithstanding" clause, the Charter can be bypassed by a simple legislative vote every 5 years. This sort of thing is inconceivable in the US system.

Another illustration is in the divergent development of libel law in the UK and US. Starting from the same common-law base, US libel law (under the influence of the First Amendment) has diverged so much from that of the UK that, upon learning how UK libel law works, and how much it impinges on freedom of expression, Americans are either amused (if they are not directly involved) or aghast (if they are).

Since I'm lazy, I make no claim that US guarantees of freedom of expression are unique, but I do clain that they are distinctive.

Re:does this happen often?

[neocon]

Actually, no. Check the books -- Jefferson waged war undeclared on the Barbary Pirates, while Madison eventially sought a declaration of war (but did not do the same against French port sabotage).

And at the risk of stating the obvious, if out of over one-hundred wars fought by the US, less than a dozen have been declared wars, we are not talking about `a few presidents ignoring the constitution', but about the standing interpretation of the constitution -- and the fact that several of that documents authors were among the president's involved shows that this is also the original intent of the constitution.

Re:does this happen often?

[neocon]

Care to provide evidence of any of these alleged measures? Care to provide evidence of similar measures for the other 98 or so military actions over the two-hundred years since?

Fisher himself spends all of about 12 pages in that entire book on the Constitutional issues involved in the Presidential use of force at all, and little more than that on the history of the US up to the second world war. I don't think he's the source you're looking for...

Re:does this happen often?

[neocon]

Here are two more sources contradicting Mr. Fisher's view:

• a senate debate on the subject from 1994, with substantial discussion of the issues and body of precedent.
• a piece on the subject from George Mason University's History News Network

If this were the US

[medcalf]

no doubt, we would see articles about how the US exemptions from the ICC lead to our soldiers raping and pillaging with total immunity. At least it's a (nominally) European country, so we don't have to listen to that kind of tripe.

Gag Order Nesting?

[WeaponOfChoice]

If you have been gagged from reporting on a gag on a story you have intended to run does it naturally follow that you are able to report on being gagged from reporting on the gag on the gag on the report?.[phew].

[repeat until bored]
Even if they gagged you again that very gag would be able to be reported on (unless it was also gagged etc)
[end repeat]

Re:Gag Order Nesting?

[Hard_Code]

After some number of iterations of gagging, somebody probably gets shot.

eh?

[Trevelyan]

I live in the UK, and this is first time I heard of this =/
I was watching BBC 1 O'Clock news only a few hours ago as well.

Seriously though what do they hope to achive when poeple (like I have) can get news from web sites around the world?

Re:eh?

[Craevenwulfe]

I am from the UK and this has been going on for ages. He fled to Paris where he was hiding for a while with his girlfriend. He eventually returned to the UK where he wanted to have a fair trial or something.
He's ex-secret service, he knows things the government would rather were not revealed and he was serialising his book..would you prefer they assassinated him?

One way around this

[redelm]

The easiest way way around this gag order is to send a series of American journalists in, one per day, and have them leave the UK and files their stories from the US onto the web/sat. They might need to stay out of the UK 'til the trial is over.

It's really silly to try to keep things half-secret. Either keep them fully secret in Star Chambers or fully open. You can't have it halfway, and trying is repugnant.

Not quite true

[DrSkwid]

Newspapers cannot comment on a trial such that information revealed would predjudice the outcome of someone on trial. i.e. reporting that the accused has a criminal record.

That newspapers cannot comment on unsolved crimes is untrue.

For instance one of our serial killers was called Fred West. He never went to trial because he committed suicide in custody but many of the details of the case we revealed in the media during the investigation. The press published pictures of the bodies being removed from the scene etc.

Local news reporting on trials will give the name of the accused, his/her area of residence but not the house number.

Parliament does have what is called a "DA Notice" [formerly "Schedule D Notice"] such that it can impose news blackouts.

The names of the accused and witnesses can be used in reporting with some exceptions [rape victims for instance].

It is unknown how widespread D Notices are because the procedure excludes it's own reporting too.

Re:Not quite true

[benhaha]

Possibly this has changed, but disregarding the old Schedule D Notices was not automatically an offence. Rather the notice served to tell the media organisation concerned that the information was likely to compromise national security. Once in receipt of a D Notice, the people concerned are forwarned, and if the media organisation still reports the information, and if a court agrees that national security was in fact compromised then the organisation is in trouble.

Because an offence is not automatically committed, and the matter still has to go before a court and the government prove that national security was in fact compromised to get a conviction, the D Notices seem not to be abused. And because they are not abused, they are widely heeded: What newspaper really wants to compromise national security?

I was five...

[Soskywalkr]

I believe I was five when I first read of the good Doctor. A man by the name of Seuss. He told of hotch watchers and hotch watcher watchers or some such nonsense. Now many years later, I stop to pause and ask, "Are the security watcher watcher watchers being watched properly??"

Re:Just a correction

[peter hoffman]

I'm not trying to be argumentative but can you provide a cite for that? I can't find one and all the pages I have found (such as this one) say that the U.S. has not had a formal declaration of war since 1940 (although the War Powers Resolution has been used).

OT: in my original post s/affect/effect/.

This has been on freenet for days now.

[Harik]

Quoting from "Pussy Galore" (SSK@xdDLu9KYaJGEL9543hOrarcoFM8PAgM/PussyGalore// ) who got it from rotton.com.

13th October in the Year of Our Lord 2002

"The British media have been gagged from reporting sensational courtroom evidence of the former MI5 spy David Shayler, including his alleged proof that the secret service paid £100,000 ($280,000 at current exchange rates) for al-Qaeda terrorists to try to assassinate Libya's leader, Muammar Gaddafi, in 1986.

In its efforts to contain Shayler's allegations, the Government has even stopped the media from reporting its successful attempt to win a court gag order."

Is this not incredible, an Alice in Wonderland scenario? Not only can the press not report the proceedings but also they cannot report that they have been gagged. Yet, foreign press and websites can do as they please. Sadly, in the UK such happenings are not incredible, they occur too often.

Duke Morbid's Freesite is UK based. We have not received a "Public Interest Immunity certificate" so we shall say what we like; we would anyway.

Blunkett and Straw, two notable fascists in Fuehrer/Anti-Christ Blair's government issued the gagging orders; they were not behaving out of character. But who is being denied the news? Not foreigners and not London's chattering classes. The chattering classes at their dinner parties will be fully in the picture as to what is going on in court even if the case is held in camera. Everyone down from the judge, through the barristers and jury to the humblest court official will be discussing the case. Of course they will be discussing it "in confidence" and of course it is standard practice to pass "confidences" onward "in confidence". Soon every half-educated person in London (10% of its population) will know the details. Provincial Dukes and their supporting infrastructure of artisans and peasants will hear nothing of this.

Why the, partial, secrecy? What is there to protect? Certainly not sensitive intelligence operations in progress. The events relate to 1986 and much water has passed under the bridge since then. Thus what is being protected is the good name of MI5 and, much much more importantly, the reputations of diverse politicians of differing persuasions who have been overseeing MI5. God forbid that any politician should be made to look stupid either through conniving with a daft MI5 scheme or by failing to give MI5 proper scrutiny. The potential scandal reaches to the Privy Council, no less, and Brenda chairs it (actually the prats all stand around a table for 'traditional' reasons but there are significant sub-committees that do the real work in secret).

What of the press and their much vaunted fearless reporting of the truth? Collectively the press could easily smash the power of gagging notices imposed by the executive: in a supposedly civilised democracy it would seem odd if a host of editors were to be imprisoned for contempt of court. So why do they acquiesce? The answer is obvious: there is something in it for them (proprietors especially). They can have the satisfaction of being kept fully in the know (and thus have reason to feel important because the information is denied to provincial Dukes, artisans and peasants) and expect to to be rewarded by life peerages (proprietors), knighthoods (editors) and lesser baubles (the journalistic rabble); really well behaved editors will also get the chairmanships of lucrative QUANGOs too when they retire (proprietors are too rich to require this boon).

We are already a Duke, so the establishment has nothing further to offer us (apart from the Crown), thus we can afford to be fearless in our reporting.

Way to be on the ball, people! Looks like freenet has faster news then slashdot, despite only being able to update at midnight GMT.

Re:This has been on freenet for days now.

[Yarn]

Shayler was a whistleblower who whilst working at MI5 found out about this SIS/MI6 action. It is MI6 that is being protected.

Re:Just a correction

[neocon]

Nope. The Congress passed a resolution approving the use of force, but this isn't a declaration of war, which has a specific legal meaning.

Re:Insidious?

[JonK]

OK: a bit of background.

The guy being tried is one David Shayler, who is being prosecuted for breaches of the Official Secrets Act. His defence is that he was whistle-blowing, which is an admissible defence in UK law (see R vs Ponting, where Clive Ponting was prosecuted for a breach of the OSA by the Crown for revealing to an MP (Tam Dalyell) that Ministers were mis-leading Parliament. He was found not guilty, basically because the jury refused to swallow the prosecution line that revealing Ministerial malfeasance was not a justification for breaching the OSA). Shayler revealed, extensively, just how much of a joke MI5 (the branch of the British goverment responsible for "internal security" - keeping tabs on subversives, terrorists, republicans (note the lower-case R), anti-apartheid campaigners and the like) was: among the individuals who MI5 kept files on were about half the members of the current Cabinet, while the organisation itself was a joke: hidebound, locked into a cold-war culture and mindset and staffed by demoralised alcoholics. See this article for a more forensic examination.

Unsuprisingly, MI5 wasn't at all happy about being held up for ridicule in this way and, while denying all the allegations, also pressed for Shayler to be prosecuted for breaching the OSA. Shayler, with the backing of various human rights organisations, has fought this, claiming, amongst other things, that the revelations were in the public interest and did not damage national security, and that the human rights act, which came into law in October 2000, protects whistle-blowers who act in the public interest. Various courts, up to and including the Law Lords, have decided that he has no absolute exemption and must stand trial, which is what is now happening.

So, did Shayler, by his actions, put Britain or British agents in danger. Well, no. Did he embarass the security services? Yes, absolutely. Does this mean he should be tried in camera. In my opinion, no: surely there is an absolute protection for the man who blows the whistle, and this includes (wherever possible) giving him his day in open court in front of the judge and jury, and in the public eye.

Whew!

[Snafoo]

...at least they haven't been gagged from reporting the gag on the gag.

Re:Insidious?

[paul.dunne]

> while the organisation itself was a joke: hidebound,
> locked into a cold-war culture and mindset and staffed by demoralised
> alcoholics.

You say that like it's a bad thing! If we must have spooks, isn't it preferable that they be ineffective?

Re:Just a correction

[belroth]

This could be considered a distinction without a difference - what are the differences in legal meaning?

My sig now seems distressingly apposite.

Re:official secrets.... yeah, right.........

[aebrain]

how can you have 'official' and 'unofficial' secrets? How can that work? and what secrets are 'official' and which are 'unofficial'?

The unofficial answer is that I could tell you, but I'd have to kill-9 you. The official answer? You're not cleared for that.

But seriously folks... the definition of the types of information that is considered officially secret is within the Official Secrets Act legislation. I've signed the Official Secrets Act (Australian version - actually section 79 of the Crimes Act). And that's about all I can really say about it, apart from the fact that the quoted link's to an unofficial version. The UK version is a bit different, and the quoted link is to an official version.

Unlike many websites, neither has anything to do with secretaries, or secretions.

Re:Just a correction

[neocon]

The differences are primarily diplomatic -- the legislature's power to declare war is a counterpart to the requirement that the legislature ratify all treaties.

Related powers granted to the legislature in the same section include the power to grant letters of marque (for privateers) and to set the prize rules for captured enemy ships -- both of which are dated, but were highly relevant in the eigteenth and early nineteenth centuries.

Here's the story *they* don't want you to read...

[Gordonjcp]

http://www.theherald.co.uk/news/archive/11-1-19102 -0-40-55.html

D-Notices aren't really that common. Generally it's only stuff that will seriously affect national security. This story is just right-wing wankers who want to claw back power they lost 10 years ago.

UK has *court*, not Government censorship

[Malcolm MacArthur]

Well.. the UK has a restriction of the press when dealing with crimes.

Let's take the DC Area sniper as an example. If this was the UK, the press would not be allowed to cover this, until someone was caught, and put to trial, and then, no names could be used.

Not quite.

It is true that there are some limitations on reporting on a trial in progress or revealing certain details of a suspect who has been formally charged - for instance, as pointed out, when a suspect has a previous criminal record. Under the legal systems (there are separate judicial systems in England and Wales (both share the same judicial system), Scotland, Northen Ireland, the Channel Islands and the Isle of Man), a paper cannot report whether a person who has been charged holds a criminal record. This is because this prior knowledge might unfairly influence a jury, who are supposed to be fair and unbiased. The judge/sherriff/magistrate/whatever does however have access to this information, and takes it into account when passing sentence. The idea being that everyone going into court is treated equally, no matter what their previous record. However, if a member of the jury knows that the accused is a criminal, this doesn't preclude them from serving on a jury trying the accused - unless they have some sort of relationship with the accused.

If the person was found Not Guilty, the press wouldn;t be allowed to talk to the person, their family, friends, etc, unless that person came to THEM first.

Not quite true, there are one or two exceptions for the victim in certain crimes - rape, for instance. I believe there were plans to extend anonymity to those accused and cleared of rape, but I don't know if they were passed or not.

A court MAY, however, pass an injunction banning the reporting of names or details of the trial in a case while the case is ongoing. But if an injunction is not sought, there is no automatic ban on the reporting of the facts of the case. It's basically on a case-by-case basis, and the vast majority of cases have no injunctions against the reporting of the case.

If the person was found Guilty, then they can use names, and cover it in greatest detail.

Usually, unless the court meets in camera. In which case the business of the court in camera remains confidential. Quite rare as far as I know.

Also, sometimes court injunctions can apply for a long time after the case. As far as I know, there is no limit on the length of time an injunction can apply for. One case I recall involved a woman who had an affair with a Government minister in the 1980s... an injunction was placed on the woman which barred her from discussing the case OR the affair with the media for 10 years (or was it longer?) after the trial. I don't know what the grounds were for such a lengthly injunction.

Honestly, I wouldn;t mind something like that around here... too often I see the press trying to give every little detail of what's going on, and fouling up investigations by tippig off the perps.

Absolutely. I believe that (where not abused, as in the case of the Government minister and his lover...) it is far better. There was a notable case against some famous person that collapsed on a technicality because of certain details that were reported in the Press; this has led to calls for MORE controls on what the newspapers may publish - which is probably not a good move...

Just for your information, there are also some other weirdnesses with the UK's legal systems:

• Photography, painting and even SKETCHING in court is banned. Here in the UK we have a whole cadre of court artists... their task is to go into the court, write down notes on the appearance of the court and the people within, try to memorise as much as they can, then leave the court and draw sketches for the media! If you ever see UK TV news of a trial, you will see what I mean. Now you know why.
• Judges really DO wear wigs, and High Court judges in England do still wear judicial robes and silk stockings...
• Trial by combat in Scotland was only struck off the statute books in the late 1980s. Although no one had elected for trial by combat for several hundred years, two brothers who were fighting a court case asked for trial by combat. After a few months' legal confusion (which was probably what they really wanted :), their request was denied...
• Some matters (very few) are still heard by ecclesiastical (Church) courts. One recent example was a church official, who insisted an employment case be heard by an ecclesiastical court. This made the trial cost about a quarter of a million pounds, as the court had to be specially convened.
• Final Court of Appeal in all jurisdictions is the House of Lords, which has a quorum of... three. (To put that in perspective, there are several hundred Lords who may sit in the house...)

Oh, and to return to the topic on hand. As far as I know (gleaned from Mark Thomas' Secret Map of Britain programme and books I've read), there are no formal channels in the UK for censorship of the press (excepting a court injunction). Basically, if there is news of a sensitive nature, the Government will talk to editors and programme producers in the mass media and tell them not to publish. And if they do, then they break the Official Secrets Act and go to jail. Simple as that.

There have been cases of papers breaching D (or DA) notices. None ended up in court IIRC. But it does prevent the worst stuff from leaking out...

Re:UK has *court*, not Government censorship

[Malcolm MacArthur]

I.E. for legal purposes, the country of England and the country of Wales are one and the same. As far as I know :)

Until Welsh devolution, it used to be quite common to refer to "England & Wales" in statistics, etc.

The reason we have different legal systems is because it's a United Kingdom : they were all separate nations at one point and became part of the United Kingdom. Except Wales, which was annexed by England - hence England and Wales have a common legal system.

History lesson time: First England was formed out of various small kingdoms, then England entered into a union with Cornwall (at that time independent). England invaded Wales. Then it invaded Ireland. So now we have England, Wales, Cornwall and Ireland. That's three legal systems - Cornwall, Ireland, and "England and Wales".

The royal houses of England and Scotland were united in 1606 (?) when King James I ascended to the throne of England. Scotland and England remained separate countries until, thanks mainly to an attempt to found a colony on a swamp (Darien), Scotland was bankrupted (about 30-40% of the nation's wealth was sunk into this failed colony...) - this made union with England attractive, and the Act of Union was passed in 1707, unifying Scotland, England, Wales and Cornwall into what was called the United Kingdom of Great Britain. As part of the act, Scotland retained its own legal system. So now we have four.

Some point along the line, Ireland got added in and it became the United Kindgdom of Great Britain and Ireland. Now we have five legal systems (Ireland had its own legal system as well...).

Time passes.

Cornwall's status as a country and its powers gradually eroded, until, in the 1800s, it became a county of England. Previously, Cornwall had its own parliament and legal system - this was abolished when it became a county. Now we're back down to 4, Cornwall becoming part of England...

Time passes.

Eventually, after many years of fighting, the UK govt. gave up on Ireland. However, the mainly Protestant North of Ireland (known as the Six Counties of Ulster) was determined to remain part of the UK. So, they stayed part of the UK, the other 26 counties of Ireland forming Eire (now known as the Republic of Ireland). This is the cause of all that stuff you might see on the news about Northen Ireland (remember? Some bloke called Clinton went there... ;).

So, when Northern Ireland was created (at which point IIRC, it was called Ulster), it was given home rule, or devolution. So Northern Ireland ended up setting up its OWN legal system as well... So you have five legal systems.

Oh, and of course there's the Isle of Man, and the Channel Islands, which are basically a vestige of the Norman kingdom which invaded England in 1066... So, that's seven legal systems. (actually, it's nine because Jersey, Guernsey and Sark have separate governments :).

Confused? You are now ;-)

-M.