UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 001656 SIPDIS SIPDIS NSC FOR DENNIS WILDER DEPT FOR EAP/CM E.O. 12958: DECL: 01/12/2031 TAGS: PGOV PHUM PREL HK CH PINR MC SUBJECT: UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING LEGISLATION REF: A. HONG KONG 0465 ¶B. HONG KONG 0523 Classified By: E/P Chief Simon Schuchat. REASONS: 1.4(b,d). ¶1. (C) Summary: As committee debate continues in the Legislative Council (Legco) on the Government's bill to regulate covert surveillance and wiretapping, critics of the legislation say they want to amend several troubling aspects of the legislation. Two prominent legal groups recently issued reports citing flaws in the bill )- most notably the vagueness of the term "public security," which the bill uses as a justification for surveillance, and the proposal that warrants to conduct surveillance be issued by a panel of judges appointed by the Chief Executive (CE),which critics argue could lead to politicization. A Justice Department official told us that the Government was trying to address legislators' concerns, but was unwilling to abandon these two points. A pro-democracy legislator said that the Government is being fairly flexible in its negotiations with legislators. Legco is expected to vote on the bill by early July, and passage seems likely. End Summary. Legal Groups Cite Flaws in Government's Bill -------------- ¶2. (C) On March 24, the Law Reform Commission of Hong Kong (LRC),a public body composed of legal professionals appointed by the Chief Executive, issued recommendations on covert surveillance legislation (the report can be found at www.hkreform.gov.hk). The LRC proposal differs in several key respects from the Government's bill, which was tabled in Legco on March 8 (see ref a). Specifically, while the Government's bill allows for compensation for those wrongly surveilled, it has no provision requiring the Government to notify such persons and merely provides for internal disciplinary action in these cases. The LRC recommendation calls for a notification system and proposes making officials criminally liable if they carry out surveillance without prior authorization. The LRC proposal also recommends that warrants to conduct covert surveillance be issued by a court rather than by a special panel of judges appointed by the CE, as outlined in the Government's bill. This feature of the Government's plan has been sharply criticized as allowing for politicization of the system. (Comment: It is highly unusual for the Government to table legislation before getting the LRC's views, which carry significant weight. The LRC's chairman is the Secretary for Justice, and its members include the Chief Justice of the Court of Final Appeal, who is second only to the CE in the precedence list of the HKG. The move is an indication of the Government's desire to expedite the legislation (see ref a). End Comment.) ¶3. (SBU) On April 3, the Hong Kong Bar Association (HKBA) released a report criticizing the Government bill as "too vague." The Government's bill says that law enforcement agencies can only seek authorization to conduct covert surveillance to prevent or detect "serious crime" or to safeguard "public security." The legislation defines "serious crime" as any offense punishable by at least seven years imprisonment when seeking wiretapping authority, and at least three years imprisonment when seeking covert surveillance authority. However, the HKBA said the scope of the term "serious crime" is too broad. It recommended that the Government specify an "enumerated list of offenses." Likewise, the group called the term "public security" too vague and ill-defined to be included in the law. HKBA chairman Philip Dykes said "I am still puzzled by the wording... it is clearly not national security. No Hong Kong law gives law enforcement the power to protect 'public security'." The director of Hong Kong Human Rights Monitor, Law Yuk-kai, reportedly agreed that "public security" was "a rather confused concept." Legislator Margaret Ng worried that inclusion of the term would broaden the scope of the law to allow covert surveillance even where there was no serious crime. She speculated that the law could even be used to eavesdrop on attorney-client communications. ¶4. (SBU) The HKBA, various legislators, and civil rights groups have also voiced concerns about a provision of the legislation thatwould require judges and their relaties to undergo a security or "integrity" check. Government officials say the integrity checks are designed to protect classified information, and to minimize the risks that panel judges would have family members or friends whose cases would come before the panel. Philip Dykes said "There is no case for vetting judges because, bydefinition, a judge can be HONG KONG 00001656 002 OF 003 trusted with sensitive information." Several lawmakers also called the Government's concern over potential conflicts of interest "ridiculous" since it was impossible to predict in advance what cases would come before the panel. During the reading of the bill to Legco on March 8, Secretary for Security Ambrose Lee tried to reassure legislators by stating, "The pre-appointment check is not political vetting. Anyone with access to sensitive government papers has to go through it." Despite these assurances, pro-democracy lawmakers remained concerned that the proposed law grants too much power to the executive and could limit judicial independence. HKG Showing Flexibility in Negotiations -------------- ¶5. (C) Democratic Party legislator James To, who is a member of the Bills Committee that is scrutinizing the legislation, told poloff on April 19 that the Government is being fairly flexible in its negotiations with Legco over the bill. To speculated that CE Donald Tsang wanted to avoid negative media coverage over the next several months, a period when, according to To, Beijing will be deciding whether it wants to back Tsang for re-election. Officials are also keen to avoid an "Article 23 scenario," To said, in reference to the Government's failed attempt in 2003 to enact national security legislation. ¶6. (C) Nevertheless, To believes the HKG's hands are tied on two issues which he believes are "red lines" for Beijing )- the system of appointed judges, and the inclusion of the term "public security." To described how the Government sought to address legislators' concerns on both of these issues by offering to include language that specifically ruled-out any nefarious scenarios that legislators could mention. However, they steadfastly refuse to eliminate the term "public security." This suggested to To that Beijing was behind the inclusion of this term, though he offered no evidence to support his claim. The main point of contention, however, remains the proposal to allow the CE to appoint a panel of judges to issue wiretapping and covert surveillance warrants, To said. The Government's Response -------------- ¶7. (C) Ian Wingfield of Justice Department's International Law Office told poloff on April 20 that the Government was trying to address legislators' concerns, but was unwilling to compromise on two points -- the inclusion of the exception for protecting "public security," and the appointment of panel judges by the CE. Wingfield argued that, because of its international obligations, the HKG simply could not restrict covert surveillance to cases where there is a suspected violation of Hong Kong law. He cited the examples of terrorism and WMD proliferation, where suspects may not be suspected of violating any Hong Kong law, but where the Government has a clear international obligation to collect information about their activities. Wingfield said that some lawmakers were being too parochial in their thinking. Media reports have also speculated that the Government might need to conduct covert surveillance in cases involving public health, such as SARS or bird flu, though Wingfield did not make this argument. ¶8. (C) To address lawmakers' concerns, Wingfield said the Government was willing to write specific exclusions into the law. For example, many legislators are concerned that the Government could use the "public security" exception to conduct covert surveillance of public demonstrations. Wingfield said the Government would probably include language specifically ruling-out covert surveillance and wiretapping in the case of peaceful public demonstrations. He also thought that an exception for attorney-client privilege was also "a good idea," but he stressed that it was simply not possible to enumerate a comprehensive list of things that the law does not cover, and he suggested that the text of the bill was already growing unwieldy. ¶9. (C) Wingfield said the most contentious issue was the proposal giving the CE the power to appoint a panel of judges to issue warrants. Wingfield was "surprised" by legislators' objections since the CE already has the constitutional authority to appoint all judges, with the recommendation of the judiciary. He suggested that a possible compromise was to require the Chief Justice of the Court of Final Appeal to recommend judges to the CE, who would then make the HONG KONG 00001656 003 OF 003 appointments. Wingfield was hopeful that this would allay legislators' concerns about politicization of the process. ¶10. (C) The Government is not willing to require a broad system of after-the-fact notification of those surveilled as recommended by the LRC, Wingfield said. Wingfield argued that such a system was impractical. The most the Government would concede on this issue was to allow persons who suspect they were wrongly surveilled to make a complaint to a supervisory authority -- established to review whether warrants were issued correctly and executed in accordance with their conditions -- which would then be required to reach a conclusion as to whether the complaint was valid. If the complaint were found to be valid, the law would allow for compensation. Enactment Virtually Assured This Summer -------------- ¶11. (C) Despite the criticism of the Government's bill, To believes the legislation has the votes to pass. The pro-PRC Chinese-language daily "Wen Wei Po" reported on March 8 that both the Liberal Party and the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) would support the legislation, virtually ensuring its passage. Nevertheless, To is hopeful that legislators will be able to amend the bill to address some of their concerns during the markup process over the next few months. He noted that even the DAB supported some of the proposed changes, including the LRC proposal for a notification system. To added that the DP had not yet decided whether it would support the bill. Legco is expected to vote on the legislation before it breaks for summer recess in early July. The High Court's six-month suspension of its February ruling invalidating the CE's authority to conduct covert surveillance expires on August 8 (see ref b). Cunningham