It was a lesson on how secret information can skew the policy-making process.
The setting was Parliament’s committee room V475, where public hearings took place on Tuesday into the draft Protection of Information Bill. This proposed legislation would provide a new regime for classifying state information and punishing unauthorised disclosure.
A string of submissions — including one from the Mail & Guardian — raised concerns about the broad swathe of state information that could be cloaked in secrecy under the Bill.
All noted the ”chilling effect” it would have on public accountability, which would be exacerbated by the penalties for unauthorised disclosure of information. In terms of the new Bill revealing even the lowest classified ”confidential” information will mean up to five years in jail without the option of a fine.
Avusa (publishers of the Sunday Times, Sowetan and Business Day) said the Bill allowed for an ”unprecedented” level of classification of state documents that would lead to ”censorship of political expression”.
The Freedom of Expression Institute described the Bill as ”an extremely blunt instrument” that would serve as a ”blank cheque” for officials to deny access to information.
Allison Tilley, head of the Open Democracy Advice Centre, warned that officials were already taking the safe option by routinely refusing legitimate requests under the Promotion of Access to Information Act (PAIA), a view endorsed by committee member Llewellyn Landers.
Tilley said the new Bill was even more complicated than PAIA and would provoke a similar when-in-doubt-keep-it-out response from officials.
Virtually all the submissions decried the absence of any form of independent oversight such as an ombud and the lack of any provision for a ”public interest” defence for whistleblowers disclosing classified information to expose corruption or other illegal actions.
None of the submissions questioned the right of the state to classify some information to protect national security. Instead they argued that, even judged on its own principles, the Bill failed to reach an appropriate balance between secrecy and openness.
But there was Kafkaesque dissonance between what the presenters were saying and what some of the members of the committee were hearing.
The committee is a temporary ad-hoc body, formed to consider the draft legislation. The majority of MPs present also serve on Parliament’s intelligence oversight committee which has confidential access to the intelligence services and some of its reports.
The intelligence oversight committee jealously guards this privileged access and is careful not to be seen as soft on security. Committee members are more likely than the intelligence officials themselves to ask for parliamentary hearings on intelligence to be held in camera. During the public hearings the committee chair, the approachable Dr Siyabonga Cwele, seemed rather pained at all the fuss made about secrecy.
Weren’t we — the petitioners present — concerned about the national interest, he asked, somewhat rhetorically.
Didn’t the media often confuse the public interest with their own commercial interest?
And were we seriously arguing that judges should make decisions on national security?
At one point in the hearings some of the politicians’ underlying suspicion of the media boiled over: MP Ismail Vadi burst out with the claim: ”But we know that journalists also serve as spies — how do we deal with that?”
How does he know this? He didn’t say: it’s a secret.
But the real show-stopper was wheeled out at the end of the day in the form of a submission by recently retired spook Barry Gilder.
Everyone seemed to straighten up in their seats as he spoke about his 13 years in government, often in roles at the highest levels of different branches of the intelligence community.
Members of the committee listened attentively, with one enthusing afterwards that Gilder’s sage advice should be publicised far and wide so ”the people” would come to know of it.
This deferential reception quite ignored the complete absence of any specific points in Gilder’s presentation: in fact, he admitted, ”I have not addressed any specific concerns or comments on sections of the Bill.”
So what did he say? A few paragraphs capture his core message.
”There is a misconception, firstly, that the purpose of protection of information legislation is to protect government information from the public. This is just not true. The real purpose is, in the main, to protect such information from the nation’s adversaries.
”The public, so to speak, is just an innocent bystander. Information made available to the public becomes available to adversaries.
”Who are these adversaries? They are other governments, firstly, who seek to have insight into and influence our thinking, decisions and actions in order to advantage themselves in their dealings with us. They are domestic entities that oppose the democratic order and seek to subvert, sabotage or undermine government processes in doing so. They are the criminals, the corrupt, the extremists.”
Did anyone ask him for examples of how these forces of darkness had profited from our laxness? No.
Gilder admitted that for the past 13 years government has been operating a classification regime that has no legislative status and was therefore not legally enforceable.
Did anyone ask him how we had managed to survive the onslaught that the draconian new provisions were now designed to beat back? No.
”Much of the criticism of the Bill seems to be premised on the belief that some of its provisions are open to abuse,” Gilder noted.
”That may be true. But it is equally true for all powers that this legislature confers on government.”
Sure. We innocent by-standers shouldn’t worry ourselves about that. Gilder’s message was taken seriously only because he ”knows”: it’s hell out there; we need this Bill to look after you; trust us.
Sorry Barry, we don’t.