Wed | May 27, 2020

Wiretap fears - Government inks new deal with US as Phillips’ MOUs deemed unconstitutional, says Chang

Published:Wednesday | October 30, 2019 | 12:35 AMNickoy Wilson/Gleaner Writer

Questions are being raised about the legality of extraditions that took place between 2004 and 2010 under Operation ANTHEM – the Peter Phillips-era electronic surveillance memorandum of understanding (MOU) with the United States and United Kingdom – and whether the State might be liable if plaintiffs like deposed Tivoli Gardens don Christopher ‘Dudus’ Coke challenge the decisions in the courts.

The MOUs, which were signed in 2004, allowed for the eavesdropping on telephone calls to disrupt and dismantle transnational criminal operations.

Speaking to The Gleaner yesterday, attorney-at-law Peter Champagnie said the extraditions would be illegal if they were obtained on the basis of evidence extracted through the MOUs alone.

“It would depend on whether or not the process is dependent upon the surveillance alone, because you may have other bits of evidence, just like in the anti-gang thing. Remember, in some of the instances, some of them were no case because of the evidence they had. But in respect of other gang members, they had other evidence … so it could equally apply in this instance,” Champagnie said.

Yesterday, Dr Horace Chang revealed to the House of Representatives that the Supreme Court, in 2018, found that the MOUs were unconstitutional, describing it as “unsatisfactory and inadequate”. He did not offer any details of the court matter, which, The Gleaner understands, may have been heard privately in chambers because of national-security sensitivity.

Consequently, the national security minister said that the Government entered into a new agreement with the United States authorities on October 23 – just seven days ago.

“We signed with our US partners a new agreement which we expect to satisfy the legal requirements of our Constitution, and will provide a strong basis for increased cooperation and operationalising all arrangements in fighting transnational criminal activity out of Jamaica,” Chang said.

The national security minister also took a jab at Opposition Leader Dr Peter Phillips, who, in a report in The Gleaner on February 23, 2011, admitted that he did not inform then Prime Minister P.J. Patterson and his Cabinet colleagues about the secret MOUs he signed because he feared the risk of possible “unintended” disclosure.

“I want to inform the House that this agreement with the United States was pursued with the full knowledge of the Cabinet. There was no secret arrangement, and we so inform the House today (Tuesday), having come to a conclusion,” Chang said.

Chang said the Government expects to conclude a similar agreement with Canada in short order.

He added, however, that the Holness administration was finalising an agreement with the United Kingdom, which will operate under a different protocol.

The existence of the MOUs became public knowledge during the 2011 commission of enquiry into the Government’s handling of the United States’ extradition request for Coke to answer drug-trafficking and gunrunning charges.

The US relied on wiretap information as evidence in the affidavits for Coke’s extradition, but the Government argued that the wiretap evidence on which the US relied was illegally obtained in Jamaica. The US insisted that it acted legally.

The issue resulted in a nine-month stand-off that strained relations between Kingston and Washington, and which led to bloody firefights in the capital between the security forces and an army of gunmen loyal to Coke. At least 69 civilians – some of whom were suspected to militiamen – and one Jamaica Defence Force soldier were killed.

Meanwhile, Opposition Spokesman on National Security Fitz Jackson questioned the procurement of software and hardware, presumably from Israel, to increase the country’s investigative capacity.

“In the purchase agreement with the Israeli companies, state and semi-state entities for the acquisition of hardware and software provisions, are there any training contracts in place for these purchases? Are there any personnel from Israel operating with our security forces to operate those equipment and software provided?” Jackson asked.

But Chang strongly denied there being any security agreement between the Jamaican and Israeli governments.

Later on, Prime Minister Andrew Holness pushed back against inquiries by opposition member Horace Dalley, arguing that because of the sensitivity of the information, the House would not be the appropriate forum to discuss national-security issues.

“At this stage, to even say the name of the company could also give some idea of the technology ... . I would say to you, Mr Speaker and the members opposite, that the questions that have been asked, we have noted them, and I would suggest that we pursue it through the Internal and External Affairs Committee,” Holness said.