Tuesday 20 March 2018

Cooke report reads like le Carre novel – nothing is absolute

What the Cooke report actually says is a lot more nuanced than has been painted in some headlines.

Mr Justice John Cooke
Mr Justice John Cooke

Judge John Cooke’s report reads like a thriller in places. And the way it was spun last week suggests dirty tricks.

Colum Kenny

A van with darkened windows parked suspiciously outside the offices of GSOC (the independent garda watchdog). A bulky backpack. A phone that rang in the night, still unexplained. UK spying experts “burned” at Dublin Airport.

Cooke has not found in his report for the Taoiseach that GSOC’s offices were never bugged. Headlines that he did so are inaccurate. He states that it is impossible to rule this out categorically.

Aspects of his report were fed to some media before the Cabinet discussed it, and before the whole report was released publicly. It is the second time recently that a garda-related report was partly leaked to spin headlines in a certain direction.

Judge Cooke reveals efforts to influence an expert witness whom he met. The expert was phoned by someone in the surveillance business who purported to convey concerns

from contacts in both the gardai and Irish Army Security Services, and who wanted a certain technical adviser appointed to advise the judge.

Separately, the Taoiseach’s office passed to Cooke an unsolicited offer of help from an individual whose CV indicated 20 years’ experience in intelligence services as an officer in the Defence Forces.

Cooke rejected the offer, and describes the phone calls as “quite oblique”. He has published a transcript of only part of those calls, which can be read as suggesting that the gardai themselves suspected that GSOC may have been under surveillance.

The judge confirms something that GSOC itself concluded before its investigation was ever leaked to a newspaper. Namely that if GSOC was bugged, it is not possible to say who did it.

And he finds it a lot less likely than GSOC once thought that certain anomalies in its security systems were, in fact, caused by secret surveillance.

But a headline proclaimed last week that Judge Cooke had said that “evidence does not support proposition surveillance took place”. That absolute statement is not among his conclusions.

What he does say is that “evidence does not support the proposition that actual surveillance of the kind asserted in the [article in a newspaper that broke this story] took place”.

That inaccurate newspaper story itself appeared to be based on leaks from GSOC or its agents, a serious breach of security that GSOC is investigating separately.

Cooke believes that GSOC may have been spooked by some of the strong language used by its own security consultants, giving too much weight to “highly improbable” and “implausible” scenarios when deciding to launch its investigation.

But while Cooke thinks that it is “possible” that GSOC acted prematurely in launching a full investigation before making further technical checks, he says that it is “understandable” why it did so. He finds that GSOC acted in good faith.

Contrary to some reports, ‘A GSOC official bought a ‘pay as you go’ mobile phone to be untraceable’

Judge Cooke did not conclude that GSOC was wrong not to tell Justice Minister Alan Shatter sooner of the results of its surveillance inquiry. Cooke does point out that no such report was furnished before details of GSOC’s inquiry somehow leaked to the media.

Shatter could have been told sooner. But GSOC has always said that it intended to let the minister know of its internal inquiry in due course. It was in no hurry to cast aspersions on the gardai when it had found nothing to support its unpublished suspicions of possible garda involvement in bugging.

Judge Cooke points to problems with existing legislation that may prevent GSOC from taking necessary steps on its own initiative to inquire into matters of public interest.

But he passes the buck on this issue. He “merely” (his word) recommends that it is for the “legislature” to decide what is appropriate. The public would surely want the garda watchdog to have full powers to investigate possible evidence that someone is spying on GSOC?

Cooke admits there are still outstanding questions, technical anomalies at GSOC that remain unexplained. He says

that further tests and investigations might be conducted but asks if these would be worthwhile now. For GSOC’s building has been secured, and stronger legislation on the oversight of gardai is promised.

Cooke explains why GSOC thought it may have been bugged. And it is a remarkable if too briefly told story of bad relations between the gardai and GSOC in 2012-13.

He speaks of “the atmosphere of anxiety and tension” at GSOC because of “a serious deterioration” in relations with senior gardai.

The public watchdog was reportedly told by one garda: “We’ll tell you what you can get and when you can get it.” GSOC officials suspected that they were the target of “ambient listening”.

Judge Cooke says that: “It is unnecessary to go into the details of the operational matters which brought about this situation.” But such details might help us to understand current problems within the gardai.

Things got so bad between the gardai and GSOC that when a routine security check at GSOC turned up technical anomalies there, GSOC felt that it needed to investigate. And to watch its back while doing so.

So a GSOC official bought a supermarket “pay as you go” mobile phone that he left unregistered to remain untraceable, in case he was under surveillance.

He used it to employ a top British firm of counter-surveillance experts. These experts claimed in turn that they were spied on while working for GSOC. If they were, says Cooke, it may have been by Irish state security officers, “knowing that UK counter-intelligence experts were in Dublin with very sophisticated equipment”.

GSOC’s expert told Cooke: “At Dublin Airport, having checked in and passed through security and while waiting at the departure lounge, he and his colleague were sitting in a corner seat with their backs to a blank wall when they were approached by an unknown individual who stood directly in front of them and took out a camera from his shoulder bag. They turned away to avoid being photographed but the individual waited and when they turned back he photographed them.”

The expert told Cook that this is a “trade craft procedure” known as being “burned” which is a strategy used by the “opposition” to let them know that they are aware of their presence and that, in other words, “their cover has been blown”.

But how might Special Branch, for example, have known that these experts were in Ireland? Well, while employed here by GSOC these UK experts also found time to promote their services and did so even by visiting the gardai’s own Security Division in Dublin.

Cooke discloses aspects of what he calls “the somewhat febrile world of covert surveillance and counter-surveillance techniques”. Mutual suspicion if not paranoia are mixed with self-interest.

Cooke was not asked to examine the role of the of Justice Department or Garda Commissioner in respect to the deterioration in relations between the gardai and GSOC that contributed to GSOC fearing it may have been bugged by a garda.

Former minister Alan Shatter did write to Cooke to confirm his availability to meet if the judge found that useful. It was not necessary. The judge’s terms of reference were limited. His report is not about letting the department, the gardai or GSOC “off the hook”, or putting them on one.

What the judge does explain clearly is the rationale for GSOC’s decision to launch a public interest inquiry, arising out of its difficulties with the gardai and its receipt of an alarming report from its security experts.

Having read Judge Cooke’s report last week the new Minister for Justice Frances Fitzgerald expressed her full confidence in GSOC. The garda watchdog now has important work to do in the public interest.

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