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Phillips mum on wiretap MOUs

Former security minister says he won’t comment now

BY ERICA VIRTUE Observer writer virtuee@jamaicaobserver.com

Friday, February 04, 2011    

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DR Peter Phillips yesterday declined to say whether he had signed two memoranda of understanding (MOUs) with United States and United Kingdom law enforcement officials on the same day in June 2004 that not only conflict with each other but breach the right of Jamaicans to privacy.

The secret MOUs, which were seen by the Observer, give local and foreign law enforcement agencies the right to intercept all landline and cellphone conversations on Cable and Wireless (now LIME) and Digicel switches in an effort to gather intelligence in the fight against drug trafficking and organised crime under a programme named Operation ANTHEM.

But the documents, labelled MOU 1 and MOU 2, bearing a signature above Phillips' name and portfolio of national security minister and signed on June 30, 2004, give conflicting instructions about how wiretap intelligence can be used.

The document labelled MOU 1 states that all intelligence from ANTHEM passed to the US Drug Enforcement Administration (DEA) "is provided with the understanding and condition that it will be used for intelligence purposes only".

MOU 1 also instructs that the intelligence cannot be disseminated outside the DEA's Special Operations Division (SOD) without the agreement of the Joint ANTHEM Consultative Group (JACG) at which time it should have the following caveat: "This information is provided only for intelligence purposes in an effort to develop potential investigative leads. It cannot be used in affidavits, court proceedings, subpoenas, or for legal or judicial purposes."

However, MOU 2 says that the Jamaican Narcotics Division (JND) "will supply to the DEA the product from the JND link in a format that the DEA can use as evidence in US courts".

The conflicting provisions of the MOUs, as well as their infringement on the rights of Jamaicans have fuelled debate among journalists and political analysts who have said that Phillips needs to explain his role in the matter.

But yesterday, when he was contacted by the Observer, Phillips said he would not comment at this time.

"I shall be giving evidence to the commission, so I am not making any comment about it now," he said.

"I am not in Jamaica now and I have not heard anything about it," he added. "I shall be addressing the commission sometime in the future."

The secret MOUs bear the signatures of three other individuals who signed on April 27, 2004; June 18 and June 21, 2004 and involves the Military Intelligence (MIU); Jamaica Special Branch (SB); the JND; Her Majesty's Customs and Excise (HMCE); National Criminal Intelligence Service (NCIS); the Secret Intelligence Service (SIS) and the DEA.

The agreement is for the provision of a communications link between ANTHEM and the JND.

Under the arrangement, SIS engineers installed and maintained the JND link from the current ANTHEM intercept facility to the JND headquarters to enable JND officers there to intercept communications on telephone switches of both networks.

MOU 2 also indicates the DEA's agreement to contribute US$3.2 million "to pay for access to the existing Cable and Wireless mobile and landline networks and to share equally the activation costs of the Digicel intercept licence".

The existence of the MOUs first became public during the Commission of Enquiry into the Government's handling of the United States' extradition request for former Tivoli Gardens don Christopher ''Dudus' Coke to answer drug and gun-running charges.

Following Wednesday's proceedings of the enquiry at the Jamaica Conference Centre in downtown Kingston, Queen's Counsel Frank Phipps, who is appearing for the Jamaica Labour Party, told the Observer that the MOUs had no legal binding on Jamaica as they did not have Cabinet approval.

It also emerged at the enquiry that Prime Minister Bruce Golding and his Government were also unaware of the documents after they came to power in the 2007 general elections.

The United States relied on the wiretap information secured from this operation to provide evidence contained in the affidavits in the Coke extradition request submitted in August 2009.

Jamaica had argued that the wiretap evidence on which the US relied was illegally obtained in Jamaica. However, the US insisted it acted legally under the MOU.

The issue resulted in a nine-month stand-off that strained relations between Kingston and Washington.

Coke was eventually sent to the US last June after he was captured by the police and waived his right to an extradition hearing.

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