GCHQ from the air - is it a donut or a flying crop circle?
He explains some of the intricacies of the official secrets act and how it was recently challenged successfully by Katherine Gunn, using the defence of necessity - a defence which is also being used by a number of local people being prosecuted by the government for their actions against the american military base at Fairford.
Full transcript follows:
MC: Last week, local whistle blower Katherine Gunn, a translator from Government Communications Headquarters in Cheltenham walked free despite leaking a top-secret memo to the observer newspaper.
Joining us in the studio is another ex translator from GCHQ, Phillip Hilton, who was on Dialect a couple of weeks ago, talking about bullying at GCHQ.
Hi Phillip, welcome to Dialect. We're kind of, not really set up very well - we're in a tiny little cupboard in Kingsdown here.
I'll ask you about your own tribunal case in a minute, but first let's take an insiders view of last weeks spectacular case against Katherine.
Why was the case against Katherine dropped, and how does it relate to the Bristol case?
PH: The Katherine Gunn case was extremely important because it established in law the defence of necessity, a defence which allows people to release confidential information if they believe that it will prevent loss of life. And that effectively is a defence against the official secrets act.
For decades there was no defence against the official secrets act - no protection whatsoever for whistleblowers. Effectively that meant that it would be unlawful to report an unlawful act - the courts would not protect you. David Shayler found that out to his cost, and was convicted.
MC: So now there's the single defence of, if it could lead to the loss of somebody's life, you are allowed, or you've got the defence...
PH: There is a defence, but it's obviously very important for the whistleblower to maintain the integrity of their defence and to ensure that they argue their case from beginning to end in a very cogent and clear fashion. But of course it only relates to loss of life, so if reporting of an unlawful act would not necessarily result in loss of life or in the belief that life would be lost then again there's still no defence.
[MC: There isn't]
PH: to the disclose of confidential information, the official secrets act will still catch the whistleblower and convict that person, but of course the government as we now know has initiated a wide ranging enquiry into the effectiveness of the official secrets act and hopefully it will lead to proper reform. I don't think the act will become more draconian, I rather suspect it will have to clarify exactly what information can and can't be disclosed and what protections do and don't apply.
MC: So would you not agree then that Katherine Gunn was putting national security at risk?
PH: I can't take that view because I think that if she was definitely putting national security at risk she would have been convicted.
MC: OK. "Top Secret" - obviously you see the need for security in some areas?
PH: Absolutely. I mean we've all got to accept that there's a duty of confidentiality in any work place, and that duty of confidentiality is higher within a national security context.
The question that still applies, and people must respect it but the law still needs clarification and human beings are entitled to some protection from the law if they feel that they are acting out of conscience and desire to protect loss of life.
MC: Am I right in thinking there was phone tapping involved in this case?
PH: I think Katherine Gunn, from what I have read in the Guardian newspaper, which has been my sole source of information other than the television, found out about the phone tapping of certain delegates to the UN.
I think countries which were wavering in their votes on whether to support the American invasion of Iraq or whether not to support the invasion, I think one of the countries was Mexico, there were a number of other countries as well, and the Americans or the British through GCHQ tapped the telephones in order to find out exactly what the thoughts were of the delegates so that when British and American diplomats at the un tackled the delegates on their reasons for not supporting or supporting the war, that they knew exactly how to attack these people because they knew exactly what their thoughts were.
It weakened the position of the wavering delegates - and that was obviously the purpose of the phone tapping.
MC: Isn't it necessary in British law to get the permission of a judge before you tap somebody's phone
PH: I presume that's the case. I believe that's the case.
But don't forget, we are talking about telephones which are tapped in New York. So New York is in the use, and I don't know what the laws are in the use.
MC: They may have different laws - right. It sounds very similar to the echelon thing because that's
Basically, we're not allowed to spy on our own people by the Geneva convention, so the Americans spy on us for us and vice versa.
PH: There are probably lots of laws preventing spying on people but at the end of the day the level of
Electronic sophistication is such that I think it's virtually impossible to determine who is spying on who unless someone actually comes out into the open and says we are actually spying on you, which is what Katherine Gunn did.
MC: And almost impossible to detect nowadays as well.
PH: Yes, it's impossible. It�s all done through satellite technology, and as I read in the newspapers recently, literally millions and millions of telephone conversations are intercepted daily by the Americans and the British using satellite technology. Mobile phones are a favourite method.
MC: Would you have any feeling for which other government ministers will have seen these illegal transcripts, and in seeing them would they have broken the law?
PH: It's impossible for me to say whether they were breaking the law in reading transcripts.
I'm no expert in international law and it's a grey area quite frankly. I think what Claire Short has done is highlight that ministers of the crown probably quite regularly read transcripts of conversations of people in this country and international figures.
I think it's reasonable to expect that the telephones of Kofi Annan and other international figures to be tapped. He's an important figure; he's an influential figure. The Americans and British want to know exactly where they stand before they speak to him, so they know exactly what information to put before him to try and convince him of their point of view.
MC: Sure. Well, let's if we can move on to talk about your case - we played a report a couple of weeks ago. Tony interviewed you. We talked about; basically you lost your job. Was that partly because you thought you were being spied on?
PH: Sorry, which job are you talking about?
MC: Erm, with GCHQ was it?
PH: Yeah, I didn't lose my job at GCHQ; I resigned from my position at GCHQ and decided to pursue a career outside the civil service.
As I said in my previous interview, I didn't like the working conditions at GCHQ, in particular the harassment and intimidation Of staff, generally, which I also experienced, and which I made clear at the information tribunal, although I had difficulty convincing the members of the tribunal that that is exactly what life was like at the organisation, but I might add in making my comments on harassment and intimidation I was strongly supported by a woman called Mrs May who worked in the legal department at GCHQ and who was present at the hearing before the information tribunal.
MC: And how did the tribunal go, was it favourable for you?
PH: I lost my case but I felt I gave a good performance before the 3 members who are senior judicial figures. The chairman sir Anthony Evans is a former retired senior court of appeal judge, and he was supported by two senior QC's who are experts in administrative and public law.
My case, I felt, was very strong. All I tried to do was, get up of the contents of my security file. I felt that since I had left the organisation fourteen years prior to the hearing and since I'd had no contact with GCHQ in that period, why shouldn't I be allowed access to the information.
MC: Right, right - I hadn't realised ... I thought it was a recent event. Right, OK. So in saying that you were unsuccessful in your tribunal, that means that you didn't get to see your security file in the end.
PH: Yes, absolutely.
MC: So you're none the wiser as to what was in it?
PH: None the wiser. But I - the case was - the hearing was worthwhile. One of the strong points in my case was the fact that I felt that the mere granting of positive vetting clearance must mean that my personal data could not constitute a threat to national security.
PH: And of course, the idea of vetting while you are at GCHQ is ongoing, and I�d had no problems with my clearance. So why couldn't they give me access to my security file?
The person representing the government at the hearing was someone called Robin Tam, a barrister in London, and he simply had no answer to my issue about the ability of the positive clearance certificate.
He also on numerous other occasions was completely unable to make any comments to my questions and to many questions put to him by the tribunal.
MC: I understand there was something missing, in the transcript of the hearing when it came through. Is that the case?
PH: That's right. The transcript, which I was eventually given by the department of constitutional affairs, contained many omissions of comments made both by me and members of the tribunal, for example the fact that Robin Tam refused to answer numerous questions - that wasn't reported at all. And indeed one or two of the comments I made were not accurately reported; insofar as any reporting was made.
It was shambolic quite frankly, and disgraceful that even the tribunal members haven't raised any concerns over the quality of the transcript.
MC: The transcript was done in New Zealand, was it?
PH: The transcript was made by a stenographer, who was present at the hearing throughout. And he worked for a company called word wave. And I found out in the end that my transcript was sent by word wave to one of their colleagues in New Zealand, before being sent back to me and to the department of constitutional affairs, so it effectively went out of the jurisdiction of the united kingdom for editing, before being sent back to this country.
MC: And do you think there's a particular reason for that? Have you got any suspicions?
PH: It's suspicious.
MC: I mean, what would be suspicious about it? What could be?
PH: The laws in New Zealand are obviously different to the laws in this country. Acts of parliament in this country do not apply in New Zealand. Although there are similarities in the legal codes of both countries, but that's not the point.
In this case, I was before a tribunal in the United Kingdom; I expected the laws of this country to apply. It's possible that those laws have not been properly applied, and one way of disapplying the laws of this country is to send information out of the country before sending it back.
MC: Thank you very much Phillip, it's been enlightening talking to you
Follows: tune - VIM