Former spy boss Barry Gilder has made an informed outsiders’ submission to Parliament on the Protection of Information Bill currently before an Ad Hoc Committee of the National Assembly.
The Bill that has been attacked by free speech advocates and the mass media, will replace the 1984-vintage Protection of Information Act that itself replaced the 1956 Official Secrets Act.
Gilder says their opposition comes from the misconception that the purpose of the legislation is to protect government information from the public. “This is just not true,” he says.
“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 our adversaries. Section 22 (1) (i) (iv) of the draft bill recognises this by specifying that one of the factors that must be assessed and weighed in classification decisions is ‘the value of information 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. Government has a responsibility to protect the integrity of its processes against such adversaries on behalf of the public. The public is not the adversary,” the former spymaster argues.
Gilder retired from government in October last year after serving a decade in a number of top intelligence positions. That includes five years in the SA Secret Service as a General Manager and then Deputy Director-General, three-and-a-half years as Deputy Director-General in the National Intelligence Agency (NIA), two years as Director-General (DG) of the Department of Home Affairs (DHA), and two and a half years as Coordinator for Intelligence.
The retired spymaster says the draft legislation “grows out of a number of de facto realities”.
The first of these, he says, is that South Africa is the target of vociferous espionage – “from a wide range of foreign counties, large and small; from organised crime syndicates; from right-wing extremists; from the private security and intelligence industry and from a range of other entities who seek undue advantage in their dealings with government.”
Information security woefully inadequate
The second reality is that information security in government has been woefully inadequate. “I had the responsibility toward the end of my tenure at the NIA to sign off a highly critical information security evaluation of the DHA. A month later the report landed on my desk as the new DG of Home Affairs. It was the atrocious lack of information security in the DHA that allowed its internal processes to be seriously subverted in the issuing of fraudulent IDs, passports and other documentation.”
The third de facto reality says Gilder is that the government has been implementing many of the measures contained in the draft bill as a matter of course – if only under the existing Act. In this sense the new Bill is not introducing anything novel.
“Information is classified,” Gilder says. “There are rules governing the handling of such classified information. The NIA has had the responsibility to monitor and advise on information security in government.”
“But all this has been done largely in an ad hoc, hand-to-mouth, unstructured way, utilising the Minimum Information Security Standards. One of the greatest challenges government faced is that these standards were not properly enforceable, as they had no legislative status.”
“The other challenge was that there was no statutory crime of espionage and that we were working with outdated apartheid era protection of information legislation that did not take into account the new realities and constitutional imperatives of a democratic South Africa.”
“Arising out of these realities was the fact that classification was either not done, or information was over-classified, there was no process to declassify information, and no checks and balances in the information protection processes.”
Gilder avers that the Protection of Information Bill “arises out of a long and sincere process to address these challenges.”
“This process sought, firstly, to align our protection of information legislation with the Constitution, the PAIA [Promotion of Access to Information Act] and other information-related legislation. It sought to provide an overarching system of information protection. It sought to provide for a clear set of processes for the declassification of information. It sought to provide for as clear a set of principles and procedures as is humanly possible for the protection of information. It sought to provide for the monitoring and oversight of these procedures.”
The retired spy boss adds that the Bill is in his view “an extremely fair and even attempt to balance the imperatives of secrecy and transparency.” He adds that much of the criticism of the Bill “seems to be premised on the belief that some of its provisions are open to abuse.”
“This may be true. But it is equally true for all powers that this legislature confers on the government. It is not humanly possible to craft legislation that is abuse-proof,” he counsels.
Checks and balances
“It is our system of accountability and checks and balances that must prevent and catch out abuse.”
“The reality is that the current lack of a clear system for the protection of government information that is not premised on the need to balance secrecy and transparency is indeed abused, not necessarily through evil intent, but largely through the decades-long setting in of bad habit. This bill seeks to break the bad habits and, in the words of the bill itself in Section 2 (d), ‘provide for a thorough and methodical approach to the determination of which state information may be protected’.”
Particular concern has been expressed about the broad definition of “national interest”, he further adds. “In my experience, it is nigh impossible to come up with a definition of national interest that will satisfy everyone.”
“Some have suggested that we limit the reasons for classification to ‘national security’. But this is inadequate.”
“There are many instances when government can justifiably protect information that is not strictly of national security concern. For example, when government is engaging in trade negotiations, it must surely be allowed to protect information about its negotiating positions in order to prevent giving advantage to those it is negotiating with and thus undermining the national interest to get the best trade deal possible. Such negotiating information cannot be regarded as of national security importance.”
“National interest’ is a term that adequately covers such issues and must, of necessity, be broadly defined so as to catch all such issues which it would be impossible to predict in more tightly defined legislation.”
“In my view, the broad definition of ‘national interest’ provides merely a framework for the conceptual justification of protection of information. The flesh to this framework is given by the more precise criteria for classification given in other parts of the bill and in the standards and regulations that will flow from the bill.”