/ 24 September 2009

M&G was spied on

Yes, the Mail & Guardian was spied on by state security agencies, but I won’t tell you why — and, anyway, they were entitled to.

Read the complaint (PDF)

That, decoded, seems to be the finding of Inspector General of Intelligence Zolile Ngcakani in his response to a complaint lodged by the M&G in May about its journalists being subjected to spying and smear campaigns by the National Intelligence Agency (NIA) and the police Crime Intelligence Division (CID).

The M&G complaint, which dealt with concerns affecting mainly Sam Sole, Stefaans Brümmer and former editor Ferial Haffajee, detailed ­incidents over a number of years and ran to 25 pages.

Key among them were claims:

  • ?That M&G journalists were spied on during the widespread surveillance of the National Prosecuting Authority — which led to the production of the so-called ‘Zuma-tapes”;
  • That a joint NIA/police intelligence report to then-president Thabo Mbeki made the false and damaging claim that Sole had been an apartheid spy and, in a separate report, claimed, again falsely, that the controversial ‘Browse Mole” report on Jacob Zuma had been leaked to Sole by former Scorpions investigator Ivor Powell;
  • That an individual, apparently acting on behalf of crime intelligence, had sought to entrap Brümmer in a drugs smear during the M&G‘s Jackie Selebi investigation; and
  • That crime intelligence had been abused to try to pin a contempt of court charge on Brümmer and Sole in relation to the M&G‘s Oilgate ­investigation.

In a brief response this week Ngcakani found no wrongdoing on the part of the NIA or the CID: ‘Following extensive investigations on all your complaints with the intelligence ­services, we have found that at all stages both the NIA and the crime intelligence division acted within the regulatory framework governing the activities of the intelligence services, which includes acting within the precepts set out in Rica.”

Rica is the Regulation of Interception of Communications Act, which regulates the legal interception of private communication. He found the crime intelligence division ‘at no stage abused their powers”.

Ngcakani declined to disclose the basis of his findings, saying that in the conduct of the investigations documents from ‘the services concerned” were perused to verify the explanations provided by the security services.

‘In most instances these documents are classified and protected … As such, these documents are not released to complainants, but if necessary brought to their attention in support of findings made. In this regard particular reference is made to a judicial direction and its supporting documentation as prescribed by section 16 of Rica which would in all cases involving the intelligence services be classified and protected from disclosure.”

Section 16 is the part of the Act governing applications to a judge for an interception ‘direction” or warrant, which suggests that Ngcakani is confirming the existence of legal warrants in terms of which journalists were monitored.

Ngcakani bridled at the M&G‘s request for access to such documentation: ‘To request sight of these documents as proof of our findings … not only casts a shadow on and undermines the integrity of this office, but if acceded to will serve to compromise methods and sources protected by legislation. Sight of classified information would entail declassification in circumstances that warrant it. Your complaints do not warrant it.”

Reacting to the findings, Laurie Nathan, who served on an intelligence review commission that delivered a detailed report to former intelligence minister Ronnie Kasrils, said ­Ngcakani’s response was an indication of the problems raised by the commission: ‘The law governing interception of communication allows the NIA to bug telephone calls, with the permission of a judge, if there are reasonable grounds to believe that this is necessary to gather information on an actual or potential threat to the public health, safety or national security of the republic.

‘These grounds are far too wide. The law provides no definition of ‘national security’, a term that can be interpreted very broadly. The result is that the NIA is able to spy on people and organisations that are engaged in lawful activity and are not suspected of any involvement in crime.

‘This undermines constitutional rights and freedoms, draws the NIA into the arena of party politics and is open to abuse.

‘The ministerial review commission on intelligence recommended that the grounds for spying should be narrowed considerably. In its submission to the commission the NIA shared this view. Yet 12 months after the release of the commission’s report, in September 2008, neither government nor Parliament has addressed its findings of deviations from the Constitution and its proposals for reform. This is extremely worrying and disconcerting,” Nathan concluded.

‘Ngcakani seems to show no appreciation whatsoever of just how serious the constitutional implications are of state agencies spying on journalists, and the possibility that state resources were abused in an effort to protect powerful or well-connected people from legitimate journalistic scrutiny,” said M&G editor-in-chief Nic Dawes.