Khurram Khan

Edward Snowden the maverick ex-official of the National Security Agency of the USA has been charged under the theft of government property; unauthorised communication of national defence information; and willful communication of classified intelligence information to an unauthorised person. The US government charged him of impliedly benefiting enemies of the USA from classified information leaked by him, which he had become privy while working for NSA. For instance, it was reported by NYT in 2015 that the ISIL had “studied revelations from Snowden, about how the United States gathered information on militants, the main result is that the group’s top leaders used couriers or encrypted channels to avoid being tracked or monitoring of their communications by Western analysts”.

In Pakistan the espionage law has been invoked to try former Prime Minister Imran Khan and his Foreign Minister in what has come to be known as the Cypher Case. The purported cable has been published by US based online media portal “The Intercept”. 

  Document as defined in the Section 3 of the Official Secret Act is limited to “ procurements of supplies of or sales of munitions that relate to military capability and potential and would be needed by the state in time of peace and war” and in the form of “the plans, measures, activities, contracts, agreements, memorandums, etc.” The definition clearly states the subject matter of the document is restricted to military resources and its ability. The message emanating on averments of a foreign official on purely political matters does not constitute a document under OSA. 

Compromising and/or losing code; sharing of classified information with a foreign country are offences under OSA. Section 3 of the Act relates to the acts of espionage whereby an accused willfully attempts to get hold of and communicates to any other person “any secret official code or password, or any electronic or modern device, sketch, plan, model, article or note or other document or information, in any manner whatsoever, which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy of the State”. Words in bold italics have been added to the section in 2023. This section is not applicable to persons who in ordinary course of their duties become privy to such matters.

The former Prime Minister and his Foreign Minister are arraigned for disclosure to unauthorised persons under Section 5. During one of the proceedings in the trial court the presiding officer had made it clear in response to a query by the co-accused Shah Mehmood Qureshi, the former Foreign Minister that they were being tried under the pre-amended clauses of OSA. During the hearing of bail application of interned Imran Khan in cipher case before Supreme Court the presiding judge remarked that the petitioner had been charged for undermining the secret official code. The hon ‘able judge also added that the code was changed after every week and even before that. Remarks of the hon’able judge of the SC belie the declaration of trial court’s presiding officer as Section 5 has been amended in 2023. 

Section 5 of the OSA relates to the offences for unauthorised disclosure of “secret official code or password or any sketch, plan, model, article, note, document or information” relating to a prohibited place, activities of Armed Forces during peace and war. The amended section had made retention of secret official code or password or any sketch, plan, model, article, note, document or information and offence (bold italics added through 2023 amendment). Hitherto procuring the classified information constituted an offence. Unauthorised communication of an official secret code is punishable by death or up to fourteen years imprisonment. Unlawful retention of a secret code entails two years imprisonment. 

Official secret code can be broken when decoded and encoded messages are compromised putting in jeopardy the whole coding system. Loss of the decoded message in its entirety and purported leaked message published in “The Intercept” is a security lapse that could have compromised the code, which are cognizable offences under OSA. 

However, as the hon’able judge of the Supreme Court opined that the code is changed on a weekly basis and even earlier, the moot point would be whether the time the decoded message was shared was the old code still in the field? If not, then how could the code possibly have been compromised? Then the matter of mode of communication to an unauthorised person is to be determined. Above all the trial has commenced without arraigning or mentioning any unauthorised person(s) to whom the classified information was conveyed. Moreover, retention of code and or classified information was made cognizable after the commission of the purported offence.  

Author is the former Joint Director General, Intelligence Bureau, Pakistan