Dearbhail McDonald: Revelations beg the question: who is watching watchdog?
Published 15/01/2016 | 02:30
Journalists are not above the law. But one of the key privileges the press enjoys is the freedom, in the public interest, to protect its sources in the broader interests of the common good.
Journalistic privilege is not just an informal convention or ad hoc confidence extended by reporters to their sources.
It is a legal and ethical duty reporters have towards those who confide in them - once destroyed, that confidentiality cannot be restored.
This core freedom of journalistic privilege has been enshrined as a constitutional principle by the Supreme Court in Ireland and is protected by Article 10 of the European Convention of Human Rights.
The right to protect one's sources, like most rights, is not absolute.
It may be balanced against others and, where necessary, be displaced in the legal or constitutional hierarchy by other considerations.
These include the investigation of serious crime, threats to public safety or national security threats to the democratic legal order.
Ireland is a country that is intoxicated by a long-standing and still vibrant reliance on coercive special powers to deal with all manner of existential threats to national security. These powers are so intoxicating (and politically addictive) that many draconian laws have been normalised over time and extended to less serious challenges.
As a result of threats, real and imagined, we have granted extensive surveillance powers to national security and intelligence services including the gardaí, Defence Forces and the Revenue. Gardaí can break into our homes and place devices like the man from the Milk Tray ad.
The army can read your emails and the tax man can do pretty much whatever he likes - and can even do so on the word of a superior officer if there isn't time to ask a judge.
We do, at least, have independent judicial oversight over the 2009 Surveillance Act and other key snooping laws.
But it all comes down to a question of trust.
We have to (take a deep breath) trust that the authorities won't abuse their enormous powers.
And we have to trust that the succinct, formulaic single sentences judges usually record in their annual reports - such as "I have kept the operation of the Act under review and I am satisfied that its provisions are being complied with" - is adequate to protect citizens and others subject to covert surveillance by those same authorities.
Such is the high constitutional and democratic value placed on issues such as privacy and journalistic privilege, any interference with those rights must be exceptional, proportionate and manifestly in the public interest.
Any legal interference must also be in accordance with law and contain sufficient procedural safeguards to prevent overreach or abuse of power. Critically, the task of assessing where that delicate balance lies must also, in the public interest, fall to an independent adjudicator, such as a member of the judiciary, to consider the competing rights at issue.
There is a certain irony that the Garda Síochána Ombudsman Commission, the self-proclaimed victim of an alleged spying scandal, has now emerged as an spy-in-chief of sorts.
GSOC, which has struggled to secure a modicum of public or Garda confidence since its much-needed inception in the wake of alleged garda misconduct in Donegal, has accessed the mobile phone records of two journalists without their knowledge or consent.
The journalists' phone records were accessed as part of an inquiry into alleged garda leaks to the media following a complaint to GSOC by a friend of the late model Katy French some eight years after Ms French's death.
GSOC was entitled under law to access the journalists' phone records.
But what safeguards are there for the journalists who were not informed of the ex-post-facto snoop and have no way of reviewing or challenging the decision or knowing whether the interference with their privacy and journalistic privilege was both necessary and proportionate?
GSOC is ostensibly the guard that guards the guards, although it appears to fail miserably in that task. But who is guarding GSOC? To whom is it answerable for the use and potential misuse of its extensive powers if exercised in secret?
How can we be assured GSOC is not circumventing the constitutionally enshrined protection of journalistic sources, even if it does so in good faith?
Set up as a watchdog to restore public confidence in An Garda Síochána, it has been in a dogfight with the force since day one - and there's two of them in it.
GSOC's record on tackling allegations of garda malpractice has been pitifully poor. And it is alarming that the first known deployment of its new powers are directed against alleged media leaks.
To add to this chilling effect is GSOC's stunning silence on the matter.
This is one State agency that should not need to be reminded that with great power comes great responsibility.