Spy story with many twists but no neat ending
The long-awaited report on alleged Garda bugging poses as many questions as it answers.
Published 15/06/2014 | 02:30
STROLLING around busy, seedy Capel Street or Abbey Street, most people wouldn't turn a hair at a white van with blacked- out windows parked on the street, or a guy sitting in a coffee shop with a lap top, or two men walking in circles around the block.
But if you're working for the Garda watchdog on a highly sensitive investigation into allegations that police allowed criminal touts to smuggle drugs in exchange for information, the cops are going nuts, the mobile phones are acting up and you've called in the spy catchers, you can see how these apparently innocuous encounters might take on a more sinister hue.
The Garda Siochana Ombudsman Commission (GSOC) was advised that these encounters were "possible indicators" of spies in their midst.
In his long-awaited report on the alleged Garda bugging scandal, published last week, the retired High Court judge John Cooke answered some questions but raised others.
He found no evidence of GSOC covert surveillance, least of all by gardai. He couldn't say with certainty that covert surveillance hadn't happened either.
In what he called the "febrile atmosphere of covert surveillance and counter-surveillance", it was extremely difficult to categorically prove.
However, one issue Judge Cooke did nail with certainty is the distrust at the heart of the affair. If the relationship between gardai and the watchdog wasn't so toxic in the first place, he suggested, GSOC might not have been so quick to set up a public interest investigation on suspicion that gardai were spying on them.
Like a good spy story, Judge Cooke's report reveals many twists but no neat ending.
It all started with the mobile phones. Specifically, the phones that two GSOC investigators used to call Garda crime and security branch about very sensitive investigations, one of which was coming to a conclusion in late 2012 and the first half of 2013 after four years and much recrimination.
Although not identified in the Cooke report, it involved Kieran Boylan, a drug trafficker who had charges dropped after it was disclosed that he was a Garda informant. GSOC had launched a public interest investigation in 2008.
As it wound up, the atmosphere in the office was tense and anxious, Judge Cooke was told. There were media leaks and rows with gardai who were refusing to give them information: "We'll tell you what you can get and when you can get it," one garda told GSOC.
Against this backdrop, two GSOC investigators noticed the battery power mysteriously draining from their phones. They usually charged them overnight and they were good for 24 hours. Now they ran flat in two hours.
The GSOC officers suspected they were being bugged. As Judge Cooke noted, one of the side-effects of having an "ambient listening" device trained on your mobile phone is a rapid depletion of the battery.
In July, Simon O'Brien, a retired London police commander and GSOC's relatively new chairman, met the Garda Commissioner, Martin Callinan. During the meeting, Callinan used a phrase along the lines of "running informants off the books". According to Judge Cooke, this "surprised" the GSOC camp. Just a few days earlier, GSOC had discussed using this very phrase in relation to one of its investigations, but had decided not to.
Judge Cooke suggested that police in any English-speaking country would be familiar with the phrase "running informants off the books". But Callinan's use of it apparently still fuelled suspicion. Embarrassingly for GSOC, his remarks were wrongly cited in an internal report as the reason it launched the sweep of its offices.
Enter Verrimus, a London security firm staffed by retired British army officers; it conducted a preliminary sweep over five days last September.
It detected two threats. The inactive wireless device in GSOC's boardroom, which no
one had the password to, was connecting itself to the wifi network in a local coffee shop. A conference call line in the chairman's office responded positively to a late-night intercept test by ringing.
Its report used language like "Red Flag Warnings", "multiple threat detected", "guaranteed threat" and "hostile attack", which may have "unduly alarmed" the three GSOC commissioners, according to Judge Cooke.
He suggested that it was "unfortunate" that they didn't get a second opinion before launching a public interest investigation, under Section 102(4) of the Act, on suspicion that gardai may be involved.
Verrimus returned to conduct more cover tests over an October weekend when the offices were empty.
Saturday produced nothing. Sunday was action-packed.
After the coffee shop downstairs with its free wifi opened, the wireless device in the boardroom became active. It seemed to be transferring data. One Verrimus operative told Judge Cooke: "I was told that the display that I was watching was a visualisation of data moving in and out of GSOC... and data was coming into GSOC via the same device."
His colleague checked out the coffee shop for users of mobiles or computers. He saw "an unknown male enter carrying a nylon sports bag" which appeared to contain a heavy, large "box-shaped item".
As they worked on the communications console in the boardroom they noticed people "making inordinate attempts to watch what we were doing from the street."
Meanwhile a GSOC officer noticed a white van parked in the street with a direct line of view straight into the GSOC board room. He went to investigate, and noted that the windows were blacked out. He walked around the block and two men walked by him twice. The third time, they saw him, turned and walked away.
At the same time, the Verrimus men discovered another anomaly when one of its iPhones identified a UK mobile phone network in the area. Verrimus later concluded it was a "fake" network created by an IMSI catcher – a surveillance device that can intercept and track mobiles.
There was more "intrigue" at Dublin Airport as the two Verrimus operatives waited for a flight to the UK. They had passed through security and taken a seat in the departures lounge when a man approached, stood in front of them and took a camera from his shoulder bag.
The Verrimus men turned away, but he snapped them as they turned back.
They had been "burned" – "trade craft" used by the "opposition" to let them know that their cover was blown.
Verrimus operatives were convinced some sort of surveillance had occurred. They returned in November, setting up an elaborately faked meeting designed to flush out the supposed "spies". It did not succeed.
Afterwards, Simon O'Brien wrote in his log: "This investigation is now closed. I need to think about reporting. This will be difficult, we have found nothing."
GSOC didn't tell Minister for Justice Alan Shatter about the public interest inquiry, as Judge Cooke said he was mandatorily obliged to do.
Instead, he put the closing report in his safe.
There it would have stayed until its contents mysteriously winged their way to the front-page scoop in the Sunday Times in February, which in turn prompted a Commission of Inquiry.
Judge Cooke criticised the Sunday Times for stating as fact that GSOC had been bugged, as neither he nor Verrimus had found hard evidence of it.
The wireless device could have been activated during repairs using the public factory setting password, and he was not convinced that it was transferring data.
The "fake" UK phone network was highly likely to have been a UK network provider that was doing tests in the area for a new 4G installation.
But the "ring back" on the conference call phone line was more difficult to explain, and he found it impossible to rule out covert surveillance.
As for the physical surveillance, Judge Cooke had suspicions of his own. He noted that while testing GSOC's offices in September, a Verrimus consultant took the opportunity to try and interest the Garda security division in training courses and spy ware.
"On the face of it, it would hardly be surprising if the Security Branch knowing that UK counter-surveillance experts were in Dublin with very sophisticated equipment had an interest in the identities of their other potential clients."
The intrigue does not end there. After the inquiry was announced, the lead Verrimus consultant got a phone call from a retired Irish army officer working in surveillance, anxious to pass on concerns from gardai and army.
He said: "Well, you know, one of the things that may come out of this, when you speak with the Judge ... Is to impress upon him that that particular aspect of things that actually that you would like the gardai would actually get a copy of everything, right."
In a second call, he said the "boys in green" were trying to "get a man in" on the inquiry who would "know what he was on about".
Afterwards, an ex-army intelligence officer of 20 years' experience wrote a letter to the Taoiseach offering his services to the Cooke inquiry. Judge Cooke passed.
There is even an intriguing postscript. GSOC officers found that, since all the brouhaha about bugging, the battery life of their mobile phones has mysteriously returned to normal.