Journalists and publishers could face life sentences if National Security Bill 2022, being debated in the U.K. Parliament, becomes law, reports Mohamed Elmaazi.
By Mohamed Elmaazi / Consortium News
The British Parliament is debating a national security bill which could undermine the basis of national security reporting and ultimately throw journalists in jail for life.
A person convicted under the new offense of obtaining or disclosing protected information, defined in Section 1 ofNational Security Bill 2022,faces a fine, life imprisonment, or both, if convicted following a jury trial.
A review of the parliamentary debate on the bill makes clear that work by press outlets such asWikiLeaksis at the heart of Tory and Labour MPs thinking as they push to make the bill law.
As currently written, direct-action protests, such as thoseconductedby Palestine Action against U.K.-based Israeli weapons manufacturer Elbit Systems Ltd, could also be captured under the offences of sabotage and entering prohibited places sections of the bill.
Whistleblowers, journalists and publishers focusing on national security related matters may be most at risk of being prosecuted, though any person who copies, retains, discloses, distributes or provides access to so called protected information could be prosecuted.
Protected information is defined as any restricted material and it need not even be classified.
Under this bill, leakers, whistleblowers, journalists or everyday members of the public, face a potential life sentence if they receive or share protected information which is widely defined.
That does not mean up to a life sentence. Following a conviction, a judge would have the option to either issue a fine or hand down a life sentence, or both.
[Read the bill in its entiretyhere.]
There is no public interest or journalistic defense in the bill, a fact noted bysome of the parliamentariansduring the debates.
The glaring omission at the heart of the National Security Bill is a straightforward public-interest defense, so that those who expose wrongdoing, either as whistleblowers or journalists, will be protected, Tim Dawson, a long-time member of the National Union of Journalists National Executive Council toldConsortium News.
Without this, there is a risk of concerned U.K. citizens being prosecuted as though they were foreign spies, he added.
[Related:Sweeping Threat to Free Speech in U.K,]
The bill can be seen as part of a growing crackdown in both Britain and the United States against legitimate journalism that challenges establishment narratives.
In many respects, the proposed law, which applies to people both inside and outside the U.K., shares many elements with the draconian 1917 Espionage Act, which the U.S. government is using to prosecuteWikiLeakspublisher Julian Assange.
Assange is charged with 17 offenses under the Espionage Act, amounting to a maximum 170 years in prison. None of the charges allege conspiring with a foreign power and merely pertain to receiving and publishing documents leaked to him by U.S. Army whistleblower Chelsea Manning.
No Evidence of Harm
As is the case with the U.S. Espionage Act, no evidence of actual harm needs to be proven by prosecutors in order to secure a conviction under the National Security Bill.
There is a broad test of whether the defendant knows or ought reasonably to know that their conduct is prejudicial to safety or interests of the U.K.
What is, or is not, prejudicial to the safety or interests of the U.K. is also to be determined by the government of the day,according to long established case lawfrom the U.K.s highest court.
This could include anything from environmental, energy, climate and housing policy, to policing, foreign affairs or military policy.
WikiLeaks-Style Publications
A review of theparliamentary debatesover the bill shows that although it is being justified on the basis of protecting the U.K.from theserious threat from state-backed attacks on assets, including sites, data and infrastructure critical to the U.K.s safety or interests, national security leaks and reporting including that ofWikiLeaks is explicitly in the minds of at least some of the key politicians supporting the bill.
Will the right honourable lady condemn theWikiLeaks-type mass dumping of information in the public domain? It is hugely irresponsible and can put lives at risk, Tory MP Theresa VilliersaskedLabours Shadow Home Secretary Yevette Cooper, on June 6.
Yes, I strongly do, because some of the examples of such leaks that we have seen put agents lives at risk, put vital parts of our national security and intelligence infrastructure at risk and are highly irresponsible, Cooperreplied, adding, We need safeguards to protect against that kind of damaging impact on our national security.
There is no evidence that anything published byWikiLeakshas resulted in the loss of life.
A U.S.-leakedgovernment reportitselfconcludedthat there was no significant strategic impact to the release of the [Iraq War Logs and Afghanistan War Diary], from the Manning leaks which Assange is being prosecuted over. No actual harm [against an individual] could be shown either, a lawyer acting for the U.S. governmentadmitted duringAssanges extradition hearings.
This contradicts the official government line that the leaks caused serious harm.
Broad Threat
Among the many disclosures revealed byWikiLeaks,includethe secret texts of proposed corporate and investor rights treatiessuch asthe Trans-Pacific Partnership.
These treaties, which were beingnegotiated in secretand would not have been known to the citizens until just before or even after they had become law, would have preferenced corporate rights over domestic laws and subordinated labor, environmental and health protections and climate policy to the profit-making imperatives of private industry. Their passage stalled after their draft texts were leaked and then published byWikiLeaks.
WikiLeaksrevelations also include dramatic incidents such as the executionof 10 handcuffed Iraqi civilians in their family home, including four women, two children and three infants, by U.S. soldiers who later ordered an airstrike to cover it up.
Many around the world might still believe that a U.K. plan to build the worlds largest marine park in the Chagos Islands was motivated by environmental concerns, were it not for a cable published byWikiLeaksrevealing thatthe true purpose was to prevent theindigenous populationfrom ever being able to return to their land.
Torture and renditionof civilians as well as other war crimes were also revealed byWikiLeaks.
All such material, which are among the documents Assange is being prosecuted by the U.S. for publishing, would fall under the National Security Bills definition of protected information.
Conspiracy with Foreign Power
In theory, involvement of a foreign power must also be proven for Section 1 of the bill to apply. But a review of the foreign power condition in Section 24 of the bill shows a myriad of ways that this condition could be satisfied.
Section 24 reads as follows:
24 The foreign power condition
(1) For the purposes of this Part the foreign power condition is met in relation to a persons conduct if
(a) the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power,
and
(b) the person knows, or ought reasonably to know, that to be the case.
(2) The conduct in question, or a course of conduct of which it forms part, is in particular to be treated as carried out for or on behalf of a foreign power if
(a) it is instigated by a foreign power,
(b) is under the direction or control of a foreign power,
(c) it is carried out with the financial or other assistance of a foreign power, or
(d) it is carried out in collaboration with, or with the agreement of, a foreign power.
(3) Subsections (1)(a) and (2) may be satisfied by a direct or indirect relationship between the conduct, or the course of conduct, and the foreign power (for example, there may be an indirect relationship through one or more companies).
(4) A persons conduct may form part of a course of conduct engaged in by the person alone, or by the person and one or more other persons.
(5) The foreign power condition is also met in relation to a persons conduct if the person intends the conduct in question to benefit a foreign power.
(6) For the purposes of subsection (5) it is not necessary to identify a particular foreign power.
(7) The foreign power condition may be met in relation to the conduct of a person who holds office in or under, or is an employee or other member of staff of, a foreign power, as it may be met in relation to the conduct of any otherperson.
Foreign Funded Organizations
The foreign power condition could potentially be satisfied, therefore, due simply to the involvement, at any stage, of a journalist working for news outlets such as Al Jazeera, Press TV, CGTN, RT, Voice of America, France 24, Redfish or TeleSUr.
Tory MP David Davies, himself a supporter of the bill despite being known for his criticism of the prosecution of Assange,noted that[human rights group] Reprieve, Privacy International, Transparency International and other excellent organizations that do very good work have received some funding from other nations Governments and could therefore fall foul of this law.
Perfectly legitimate organizations could be left committing an offence, under this area of the bill, if they use leaked information which may not even be classified to challenge government policy, Daviesadded.
Furthermore, what is deemed to be a perfectly legitimate organization is in the eye of the beholder and can change over time as proven by the increased E.U. and U.S. censorship of RT and Sputnik since Russias invasion of Ukraine.
Even if a foreign power is proven to somehow be involved, either in the obtaining of restricted material, sharing or publishing it, there is no apparent need to prove conspiring with that foreign power for the condition to be satisfied and therefore for a defendant to be convicted.
Therefore, if a person reports upon U.K. government documents which prosecutors argue have been hacked and released by a foreign government agency, or even a hacker group infiltrated or influenced somehow by a foreign government agency they could be found guilty under this law, without any evidence either of participation in the hack or conspiracy with a foreign power.
The Bill and the Official Secrets Act
Following the revelations of mass, warrantless, government surveillance, by NSA whistleblower Edward Snowden, as well asWikiLeaksrevelations of war crimes and other state wrongdoing, the Cabinet Office asked the Law Commissionto reviewits official secrecy, data protection and espionage laws.
In 2020, the Law Commission recommendedreplacingthe Official Secrets Acts 1911, 1920 and 1939 with an Espionage Act, and updating the Official Secrets Act 1989. Many of itsrecommendationson reforming U.K, secrecy laws, would make it easier to bring prosecutions against whistleblowers, journalists and publishers by lowering so called barriers to prosecution.
For example, the Law Commission recommended that prosecutors should no longer have to prove that leaks by public servants and contractors, covered by the 1989 Act, have caused damage. The 1989 Actis the main legislation currently used to target whistleblowers, leakers, journalists and publishers.
The National Security Bill repeals the older official secrets laws and expands criminalisation of conduct which might be useful to an enemy with the more broadly defined foreign power. This bill also adoptsrecommendations to expandwhat can be labelled a prohibited place beyond military sites.Section 1 applies to people based outside the U.K,, regardless of their nationality, and this appears to flow from the Law Commissions proposed amendments to the 1989 Act, which currently only applies to U.K. citizens.
Technically, the National Security Bill hardly amends the Official Secrets Act 1989. Perhaps this is because the Home Office opposes the Law Commissions insistence that revisions to the 1989 Act re-introduce a public interest defence, which could be used by journalists and everyday civilians. The Home Office also opposes the idea of an independent body to receive whistleblower concerns. Yet many of the most draconian recommendations have been implemented in some form in the Bill.
Section 1 of the Bill which lacks any requirement to prove damage along with the overly broad foreign power condition could simply be the Home Offices way of seeking to expand the scope of conduct covered by the 1989 Act as much as possible without explicitly doing so. The National Security Bill therefore appears to fall foul of the Law Commissions recommendations that the definition of a foreign power should not render the offense overly broad.
National Security Reporting
In 2018, emails and other documents belonging to the Institute for Statecrafts Integrity Initiative, a now defunct U.K.-based, intelligence services-linked, propaganda and psyop organization, were hacked and published online.
The documents revealed that the Integrity Initiative was receiving funding from the U.K. Foreign Office, Facebook, NATO and neoconservative-linked foundations, and was engaged in directing anti-Russian, anti-left and pro-NATO propaganda towards the European and U.K. public.
Integrity Initiative documents, including emails and a contract with the U.K. Foreign Office, revealed an ambitious global agenda involving secret clusters of academics, journalists, policy makers and national security-linked officials in Europe, North Africa and North America, with more being planned.
The hacked documents revealed that the purpose of the Integrity Initiative was to shape public opinion and public policy under the guise of combatting Russian disinformation.
A group called Anonymous Europe claimed responsibility, though the Foreign Office and Western mediasuggested, without evidence, that the Russian government was somehow behind the hack.
The BBCeven reported, also without evidence, that the documents were leaked to the Russian media.
In fact, the documents were published on an internet messaging board and available to anyone aware of the website,includingindependent British and American journalists who reported upon them.
Reporting on such documents, if the National Security Bill becomes law, could be considered a violation of Section 1, given that some of the files were restricted government documents and the Integrity Initiative was partially government funded. If foreign government actors were involved in hacking or releasing the documents that alone could satisfy the foreign power condition in Section 24.
Even the fact that journalists (including British citizens) who were writing for foreign government-funded news outlets reported on the documents could satisfy the foreign power condition.
Even more disturbing, involvement of a foreign power is not actually needed if the government argues that the conduct of the defendant was intended to benefit a foreign power. In this circumstance, it is not necessary [for the prosecution] to identify a particular foreign power.
Therefore, for example, if a journalist known for writing articles critical of NATO reports on restricted material which paints the military alliance in a bad light, regardless of whether the documents were leaked to him directly or even if he simply came across them already published online, that journalist could be prosecuted, convicted and sentenced to life if the prosecutor convinces the jury that, based on their prior reporting or public comments critical of NATO or of Western foreign policy, they intended their reporting on the restricted material to benefit a foreign power.
Which foreign power was he intending to benefit? It isnt necessary for the prosecutor to say, as Section 24 (6) makes clear.
There are a number of other notable elements to this bill worth considering.
Sabotage & Entering Prohibited Place
Direct action might also fall foul of provisions in this bill, if the foreign power condition is satisfied.
Committing damage against any asset, inside or outside the U.K., for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom is also punishable by a fine or life in prison, or both, under Section 12.
Damage includes alteration or loss of or reduction in access or availability to an asset.
Under Section 4, entering a prohibited place could result in a life sentence, if the person knew or ought reasonably to know it is prejudicial to the safety or interests of the U.K. This includes if someone accesses, enters, inspects [including films], passes over or under, approaches or is in the vicinity of a prohibited place.
Conceivably,direct action activistssuch as members of Palestine Action who have successfully shut down factories belonging to Israeli weapons manufacture Elbit Systems Ltd, would be caught by such provisions, The same goes for journalists filming them or entering a premises designated prohibited.
In the 1964 case ofChandler v Director of Public Prosecutions, the U.K.s highest court upheld conviction of members of the Campaign for Nuclear Disarmament for violating the Official Secrets Act. The activists were convicted for entering Wethersfield RAF base a prohibited place for a purpose deemed prejudicial to the security of the state. The trial judge was said to be within his right to deny the defendants the ability to offer evidence or cross-examine witnesses to argue that their purpose in entering the base was to improve the U.K.s security.
This is the same case that held that what is prejudicial to the safety or interest of the country is up to the government of the day to determine.
Protecting Corporate Secrets
Section 2 of the bill also creates a crime of obtaining or disclosing trade secrets. As is the case with Section 1, this occurs whether the person knew or ought reasonably to know that their conduct is unauthorised.
A person faces either a fine or up to 14 years in prison, or both, if they are convicted.
There is no whistleblowing, journalistic or public interest protection provided in this section either.
Arguably, obtaining or disclosing trade secrets which could reveal, for example, corruption, environmental pollution, labor violations and other human rights abuses or other forms of corporate malfeasance could conceivably result in prosecution under this bill.
The foreign power condition must be satisfied for Section 2 to apply, which, it has already been shown, is arguably easier to do than one might think.
Limiting Legal Aid Access
Access to legal aidis also restricted for anyone convicted of a terror offence. This means that someone who, for example, was convicted for violating Schedule 7 of the Terrorism Act 2000 for refusing to give access to their mobile phone password at the airport could find themselves denied legal aid years later.
Freezing Funds & Other Assets
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