Monday, 17 February 2014

Quis custodiet ipsos custodes?

This classical Latin question of 2,000 years ago has no greater relevance than to Ireland today.  The national police force, An Garda Síochána (the Guardians of the Peace), is commonly referred to in English as 'the Guards'.  After a series of policing scandals, in 2005 an Ombudsman was established, the Garda Síochána Ombudsman Commission (GSOC), to provide an answer to Juvenal's question of who will guard the guards.

The Commission was partly modelled on the equivalent office in Northern Ireland, but with fewer and blunter teeth.  Its relationship with the Gardaí has been, it has to be said, a tense one (€) over the years, characterised by suspicion (€) and misunderstanding.  GSOC has made some mistakes along the way that caused little love to be lost (€) between the two organisations.  This sits atop the natural loathing that any police organisation has for a body designed to oversee it.  It is just the nature of the beast.

Nonetheless, from a human rights perspective, to have a permanent police ombudsman is something of which Ireland should be proud, and places it in a very small number of jurisdictions in the world to have such a set-up.

It is natural, therefore, that Irish people should be concerned by reports in the press, first broken by The Sunday Times, that GSOC became concerned that the security of its offices had been breached.  They employed a British security company to sweep their offices, in the course of which they discovered three 'anomalies'.  Gavan Reilly outlines what they were in an excellent blogpost, that gets to the heart of a lot of this puzzling issue, or Sunday Times subscribers can recap on the detail from John Mooney here, a screengrab from which I have included below (click to zoom).  It should also be noted that Ireland should be grateful to the 'British' Sunday Times (as members of the Government have repeatedly referred to it) and John Mooney in particular, for pursuing this issue when other Irish media outlets sucked up the Government spin and spat it out again to its readers and viewers.

There are a lot of questions remaining, but to distil what they are, I want to go back through the chronology of what happened, and add my own thoughts and speculation.

(I should begin by stating that I am definitely not one of the 'tin foil hat' conspiracy brigade; my own experience and research as a historian has led me firmly to believe that cock-up and incompetence are almost always far more likely explanations for any scandal or misdeed than conspiracy or master-plan.)

On Sunday last, the Sunday Times, broke the story of GSOC's security sweep (amid concerns (€) that details of confidential conversations and sections of reports that were removed from the final published version were apparently in the possession of 'senior Gardaí').  GSOC had previously declined to inform the Minister of Justice, so I can imagine that when the story broke Alan Shatter was furious.  He and his department later went on to brief the Taoiseach and the press that GSOC was in breach of the Garda Síochána Act 2005 (GSA 2005) s.80(5) by not telling him about what happened.

From this and what followed, we can guess that one of three things happened: a) he either shouted at civil servants in his department to find out why the hell GSOC hadn't told him about this, "Aren't they meant to let me know about this sort of thing?"; or B) Assumed that GSOC were meant to tell him about this sort of thing and screamed at civil servants to find him the piece of legislation in GSA 2005 that says so; or C) Was so enraged that GSOC didn't tell him what had happened, even though they had no legal obligation to do so, set out to get some payback for making him look like he doesn't know what is going on in areas within his remit.

Now, I will give the civil servants in the Department of Justice the benefit of the doubt that they know how to read a piece of legislation and are able to tell the difference between "may report" and "shall report" in s.80(5) of GSA 2005.  Therefore option C is the most likely: Shatter was unhappy that this leaked to the press from within GSOC, and that he hadn't known about it.  For that reason his civil servants set about briefing the press, and the Taoiseach (Prime Minister), that GSOC had failed in their statutory duty to inform him what had happened, and turned the media story from one about whether GSOC had been bugged or not, into one about whether GSOC had failed in its lawful duties.  A smokescreen in other words, by cleverly claiming that the whole bugging story was itself a "ball of smoke" (a line repeated in the media).

The Taoiseach repeated this line in the Dáil (parliament), that GSOC had failed in its statutory duty.  Naturally, the suspicion existed within GSOC that the Guards may have been responsible for the surveillance; you would not have to be Perry Mason to place them top of your list of potential suspects, having both the means and the motive.

But when the Minister for Justice made a statement about the matter, he claimed that the Gardaí had been subjected to “what appears to be completely baseless innuendo" about their involvement.  He further opined that there was no evidence of "unauthorised surveillance" of GSOC.
It is important to say at the outset that GSOC has informed me that, after an investigation, it concluded that no definitive evidence of unauthorised technical or electronic surveillance of its offices was found. Moreover, it has informed me that its databases have not been compromised. In other words, it has not been established that the offices of the ombudsman commission were subject to surveillance. Some public comment has proceeded on the basis that it is an established fact that the offices of the commission were bugged when clearly it is not.
Alan Shatter to the Dáil, 11/2/14 

As Gavan Reilly pointed out, GSOC smelled a rat and called in security, which found evidence that was suggestive but not definitive.  GSOC and the general public have taken this as evidence that their suspicions were correct.  The Minister of Justice has taken this as evidence that there was no rat.

Another issue is the discrepancy between what Minister Shatter told the Dáil, based fully on a written and an oral briefing from the GSOC Chairman, and what GSOC told a parliamentary committee investigating the matter.  (Indeed, there are discrepancies between what the written briefing said, and what Shatter told the Dáil).  How those arose needs explaining.  Shatter further went on, in his statement to the Dáil, to say:
While no information has been furnished to me by the GSOC suggesting that An Garda Síochána was involved in any way in what gave rise to the concerns which arose in the GSOC about its security.
This is also clearly at odds with what was reported in yesterday Sunday Times as to the circumstances that gave rise to the decision to have a security sweep.  The story in yesterday's paper is also (apparently) at odds with what the security company understood to be the reasons for the security sweep.  GSOC's Chairman has put this down to a 'misunderstanding'. That needs further elaboration and explanation.

We then add to the mix the firm, categorical and unambiguous statements from the Garda Commissioner, that none of his officers were involved.  The only way he could be sure of this is: A) if he knows who actually did the bugging; B) he has investigated and is certain that no rogue Gardaí were going off piste and acting on their own initiative.  He has made no indication that any sort of Garda investigation took place, so given the seriousness of the allegations, it appears that the only way the Garda Commissioner would dare make such a strong statement is if he actually knows who was doing the bugging.  Matt Cooper delves into this issue in his Sunday Times column (€).

The third element of this, then, is the Labour Party leader and Tánaiste's (Deputy Prime Minister) statement that he was satisfied that "no organ of the State put the Garda Ombudsman Commission under surveillance".  This was widely reported as "no State agency", which led me to concluded that it offered some wriggle room as regards Army Intelligence (one could argue that the Army is not a State agency); "no organ of the State" appears to rule out this possibility, however, thereby closing off the one logical conclusion that the three men's statements permitted: that Army Intelligence was carrying out authorised surveillance of GSOC.

UPDATE: The Government has agreed to a judicial inquiry, following hot on the heels of attempts, reported in the Irish Independent, to discredit the security company's findings, i.e. to try and convince the public that GSOC was not being bugged.  This only reaffirms my suspicions listed above, that 'in the interests of national security', the Government was bugging GSOC.  

This then leads us to the questions that need to be answered before the public's confidence in the Gardaí and GSOC can be reaffirmed:

1) Why did GSOC not tell Minister Shatter of the circumstances that caused them to have their premises swept for surveillance, and why did the security company appear not to know of these circumstances either?

2) How does the Garda Commissioner know that there was no Gardaí involvement in the bugging of GSOC?

3) Can Alan Shatter confirm that there was no authorised surveillance carried out on GSOC?

4) Why did Alan Shatter decide there was no rat, when GSOC's own briefing led them in the other direction?

5) If the Government is satisfied that no State organ was involved in surveilling GSOC, why are they not concerned that an outside agent was involved?

The bigger problem is that there is no single explanation of what happened at GSOC that can satisfactorily answer all these questions, and support the truth of the statements of GSOC, the Garda Commissioner, the Minister for Justice, the Taoiseach and the Tánaiste.

Someone is hiding something.  My own suspicion is that it is connected to Army Intelligence somehow, perhaps amid concerns that information was leaking from within GSOC to another State. Or perhaps because of a desire to share intelligence with another State.  That would provide cover for Eamon Gilmore to be inexact with the actuality, so to speak.

Whatever the explanation for whether and by whom GSOC was being bugged, the Government and Garda Commissioner's reaction to it has undermined confidence in all three.

UPDATE: The more I listen to Alan Shatter at the Dáil committee, along with attempts to discredit the security company's findings, I am convinced that the Government was bugging Simon O'Brien over fears he was leaking info to MI5. A retired High Court judge carrying out an informal inquiry can be depended on to pull on the green jersey when the national security implications are quietly revealed to him…

No comments: