Rather than hauling in journalists for questioning and trying to intimidate them, the Commons would do well to encourage and join [the] debate over how the vast electronic intelligence-gathering capabilities of the modern security-state can be employed in a manner that gives up little or nothing to real terrorists and real enemies and skilfully uses all our technological capabilities to protect us, while at the same time taking every possible measure to insure that these capabilities are not abused in a way that would abrogate the rights and privacy of law-abiding citizens.” Carl Bernstein
The Home Affairs Select Committee: consider yourself Rusbridgered
I must say, I switched off my computer on Tuesday, feeling a little bit chuffed on Alan Rusbridger’s behalf.
In the preceding hour, the Guardian editor had to give evidence before the Home Affairs Select Committee (a summary of events is here and of the key exchanges here) in the UK over his (and, bizarrely, other) paper’s Snowden reporting.
Allegations had it that the Guardian had, because of its reporting and the way in which it had handled the Snowden materials, somehow endangered national security.
Mr Rusbridger’s appearance at the session was optional, he was told, although he himself was quick to note that he hadn’t been aware that it was. Still, he was, he said, “happy to be there”.
A video of Mr Rusbridger’s testimony can be found here.
Given the alarming nature and, dare I say it, ridiculousness of the situation, Mr Rusbridger “to his significant credit, kept a cool head throughout”.
In fact, he handled the situation so well that I could not help but feel a little vindicated by the end of it; the editor-in-chief of the paper that broke the Snowden stories in the UK revealed himself, once again, to be a level-headed and sober man, who seemed to have few problems, on this occasion “in justifying his trade”.
However, that does nothing to diminish the seriousness of the charge.
The idea that the Guardian has endangered national security is ludicrous, of course, just as it is outdated. But that will not stop people –MPs even– from repeating it like a mantra.
“Do you love this country?” Nationalism and a free press
Which is also the reason why I didn’t feel that chuffed in the end.
Because “[a]t the heart of the […] questioning of [Mr Rusbridger] was an age-old dispute about the nature of press freedom” and it showed once again that especially in the UK, some people seem to have serious problems either understanding “the theory and practice of a free press” or “even if they accept[…] the theory, [can] not stomach the practice”.
Mr Rusbridger had to answer the same questions over and over again, together with some that were as new to him as they were to the rest of us but no less confusing or exasperating for that.
My personal favourites included chairman Keith Vaz asking if Mr Rusbridger loved “this country”.
“A trick question,” certainly, as Anne Perkins argues, although perhaps well-intentioned: “that lawyerly thing of getting out into the open the answer to the opposition’s charge (the rather hefty one of treason) before the opposition had a chance to put it themselves.”
Perhaps. As the session went on, I did get the impression that Mr Vaz was trying to help Mr Rusbridger get the charge of a lack of patriotism out of the way.
Then again, was that really necessary?
Personally, I am not sure that the question was due or pertinent – and if it was, then perhaps it shouldn’t be.
To me, it bespeaks a confusion over what responsibility for, as opposed to “loving”, one’s country means which I find puzzling.
But then, I have always had trouble with the idea of loving, as Anne Perkins says “inanimate objects” or, in fact, abstract concepts.
This was why I was equally puzzled earlier this year when Edward Snowden, in a Guardian Q&A, said that “the country is worth dying for.”
Now, I don’t know about that.
After all, what is this “country” that you’re supposed to love or die for? Where it is? Which one is it?
As an immigrant (as Mr Vaz seems to consider Mr Rusbridger to be), an expatriate (as I consider myself) or an exile (as Mr Snowden now is), are you supposed to love the country that you were born in but that you have left, or the one that you live in? Can you love both or do you have to make a choice?
Perhaps the answer is obvious to Mr Snowden who, need I say it again, did not choose Russia as his safe haven.
But then, what do I know? The answer certainly isn’t obvious to me.
It seems to me that the idea of a country includes so many things – some of which I love and some of which I decidedly don’t – that my measure of patriotism or nationalism cannot possibly be measured by a simple answer to a generic trick-question.
Anne Perkins says: “I love my country, and quite likely it’s different from yours,” which sums up the difficulties quite nicely.
In the case of Mr Rusbridger, the question seemed to be aimed to find out if Mr Rusbridger loved the UK (the country he lives, works and grew up in) enough to not want to cause it harm.
However, the implicit suggestion that either Mr Rusbridger or the Guardian would, intentionally or not, damage national security is, as said before, a ludicrous one.
As such, Mr Vaz’s question points, once again, to the dangerous idea that to love your country and to want to keep everyone in it safe, you have to willingly surrender some basic rights and liberties – some of which may well be the things that you love most about your country – and to trust (and love?) blindly those who consider themselves to represent “the country”.
Which in this case means the people who run it and staff its agencies – and that absolutely includes the spooks.
Now, I am not saying that the majority of government staffers aren’t good and trustworthy people.
To demand that kind of trust, however, and to accuse those who dare question the trustworthiness of our leaders and their institutions of terrorism is yet another dangerous thing to do.
The ACLU in its reaction to the hearing makes an important point: “Rusbridger was called to task for, and asked to defend, basic principles of Anglo-American governance. Worse, he had to do so in front of the very people who should be doing the defending.”
They hit the nail on the head of course: the government – and this includes the MPs present at the hearing – should be defending the basic principles and civil liberties on which our societies have been built. If they fail to do so, a free press can make us aware of such failures.
Mr Rusbridger said that one of the things he loves about the UK is “that we have that freedom to write, and report, and to think.”
However, given that Mr Rusbridger had to justify his paper’s reporting at all and that the Metropolitan Police Commissioners in their subsequent session before the same committee “refused to rule out prosecutions” of the Guardian or individual journalists “as part of an investigation into the matter” of whether offences had been committed under section 58A of the Terrorism Act 2000 that freedom of the press seems to be under threat.
Roy Greenslade quite correctly calls it “remarkable [that] […] [w]ith the British press having obtained the right to its freedom from political control in the 17th century, here was parliament calling a newspaper to account for exercising that freedom.”
This is indeed remarkable and also deeply upsetting. After all, the “business” of a free press “is disclosure. [Their] justification is informing the public. [They] are aware of the consequences of what [they] publish and take steps to avoid causing any possible harm. [They] do so within the context of the law.”
To suggest that they don’t is dangerous not only to the press but also the public who (should be able to) rely on the press for information that allows them to hold their governments to account.
“[G]overnment is inherently fallible,” the ACLU writes, “even one acting with the best of intentions. Reducing the ability of the public to uncover and report on that fallibility through government control of the press, leads to public ignorance, poor policy outcomes and a fundamental loss of individual liberty.”
Pressure and intimidation
Measures of pressure and intimidation have included ““prior restraint,” as well as visits by officials to [Mr Rusbridger’s] office, the enforced destruction of Guardian computer disks with power tools and repeated calls from lawmakers “asking police to prosecute” [t]he Guardian for disclosing the classified material in news articles.”
That pressure and intimidation was evident during the committee hearing as well, with Tory MP Michael Ellis asking the rather absurd question if Mr Rusbridger would have transmitted the Enigma code to the Nazis during World War II had he known it.
The question is a prime example of the lack of proportionality that surrounds so many of the responses to Mr Rusbridger, the Guardian, Mr Snowden, and the decisions made in relation to the Snowden publications.
And not just from the government or the security agencies either.
Rather, I have to agree with Julian Huppert who argues that “[w]hile in America the president has committed himself to a full review of oversight structures, and the UN has launched an investigation into spying practices, in Britain politicians and the press have been distracted by the vehicle, not the content.”
And not just politicians and media either. Following the reaction in the UK, one cannot help thinking that many people in Britain still seem to be “missing the point”:
Mr Huppert also argues that “[w]hen [he] think[s] of terrorists, newspaper editors aren’t the first people who spring to mind” and that “[t]hanks to the work of Alan Rusbridger’s team, key matters of public interest have been raised.”
It is time that these matters were addressed and “hauling” Alan Rusbridger before a House of Commons select committee is not going to help with that. On the contrary. It simply shows that the British government (and, sadly, much of the British media and the British people as well) have their priorities wrong.
Julian Huppert argues correctly that instead of “let[ting] ourselves get caught up in what the Guardian did or did not do”, we must “focus on the wider issues, the core questions of privacy in a digital age. What are the limits of state surveillance? How do we make sure there is proper oversight?”
5 billion mobile phone records daily: what the NSA has been up to
This seems no more true than in the week in which it has also emerged that the NSA is gathering 5 billion mobile phone records daily.
Ironically, in the same week of new revelations on NSA spying and Mr Rusbridger’s testimony, UK “MPs were engaged in a tussle with the head of MI5 over whether the spy chief would give evidence to parliament in public to a Commons select committee”.
I cannot be the only one who thinks it is ludicrous that the head of MI5 would be able to respond like this to a request from the Home Affairs Select Committee (and if legislation allows him to do that, then perhaps legislation needs to be changed).
What he seems to be saying is that he might grace them with their presence but that he will do so at his convenience. Correct me if I’m wrong, but that’s not what proper oversight should look like, is it?
Incidentally, I am also wondering what would have happened if Mr Rusbridger had been aware that his “invitation” was optional and if he had tried to decline.
But I, yet again, digress.
Importantly, things like bulk collection of mobile phone location data and other methods of mass surveillance both by the NSA and GCHQ are things we need to know about.
Shooting the messenger by criminalizing the Guardian would indeed “be shooting ourselves in the foot, if not the face” and failing to acknowledge that the “Guardian has saved the agencies [and the government] from much greater damage and embarrassment” than might have otherwise occurred.
What people fail to acknowledge is that Edward Snowden decided for a reason not to mass-dump his material on the internet. These reasons, amongst other things, included considerations of security.
The Guardian and other publishing news organisations have made their decisions based on the same concerns.
No matter how much some members of the government seem to want to believe otherwise, none of these organisation has ever published any names (an accusation repeatedly laid before Mr Rusbridger on Tuesday) and “the files sent to the New York Times [by the Guardian] [have] not been compromised.”
At no point during the reporting, Mr Rusbridger repeatedly said, had the Guardian lost control of any of the material provided to the paper by Mr Snowden.
He also said that the Guardian “would not be put off by intimidation, but nor are we going to behave recklessly”. We should hope so.
We should also hope that the British government gets its priorities sorted as soon as possible and that it starts looking at the content of the Snowden files rather than the (flawless) conduct of the messenger.
As of now, it seems that oversight programmes are disturbingly weak and the most recent revelation that the NSA is collecting mobile phone location data on a massive scale will –and should– not do anything to ease anyone’s mind.
After all, as The Washington Post has revealed, “[t]he [NSA] is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world […],enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.”
Remember what I said only last week about how scary that kind of thing is?
It just keeps getting scarier: “In scale, scope and potential impact on privacy, the efforts to collect and analyse location data may be unsurpassed among the NSA surveillance programs that have been disclosed since June.”
“Analysts can find cellphones anywhere in the world, retrace their movements and expose hidden relationships among the people using them […] tracking people from afar into confidential business meetings or personal visits to medical facilities, hotel rooms, private homes and other traditionally protected spaces.”
Make no mistake: what this means is that the spooks can know where you are, when you are, with who you are and, basically, what you are doing at any given point in space and time, and the only way of avoiding that seems to be to chuck away your mobile and go live in a cave.
And they do not minimize that data, either. They store it or, as Jesselyn Raddack puts it, they “build[…] additional storage facilities (costing billions of taxpayer dollars) to save it for a rainy day – potentially years later – when some government official decides a previously “innocent” person is now a suspect.”
Now, what was it that Edward Snowden said in that memorable very first interview with Glenn Greenwald and Laura Poitras in June? He said:
“You simply have to eventually fall under suspicion from somebody even by a wrong call. And then they can use this system to go back in time and scrutinize every decision you’ve ever made, every friend you’ve ever discussed something with. And attack you on that basis to sort to derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.”
In this context note that, in October NSA chief Keith Alexander “disclosed in Senate testimony […] that the NSA had run a pilot project in 2010 and 2011 to collect “samples” of U.S. cellphone location data.”
Mr Alexander insisted at the time that “[t]he data collected were never available for intelligence analysis purposes, and the project was discontinued because it had no “operational value”.”
How about that then? And more importantly: who is lying?
The New Yorker puts it this way: “if the director of the agency, General Keith Alexander, says in testimony before the Senate that “the N.S.A. does not collect locational information under section 215 of the Patriot Act,” it does collect it, just maybe under a different section, or with no real authority at all.”
An issue on which responsible people cannot differ
It may give us some hope that Ben Emmerson QC, he UN special rapporteur on counter-terrorism, has announced “an investigation that will culminate in a series of recommendations to the UN general assembly next autumn.”
He also writes, importantly, that “there is […] one issue on which I do not think reasonable people can differ, and that is the importance of the role of responsible media in exposing questions of public interest” and that “the astonishing suggestion that this sort of journalism can be equated with aiding and abetting terrorism needs to be scotched decisively.”
“It is the role of a free press,” Mr Emmerson continues, “to hold governments to account.”
“When it comes to assessing the balance that must be struck between maintaining secrecy and exposing information in the public interest […] [t]his isn’t [a borderline case]. It’s a no-brainer. The Guardian’s revelations are precisely the sort of information that a free press is supposed to reveal.”
Mr Emmerson is right; it is a no-brainer. It is “unwise and counterproductive to react to the reporting on disclosures from Edward Snowden by reflexively invoking security concerns to silence the press.”
It is ludicrous, not to mention dangerous. And it is of fundamental importance that the British government understands that its actions put “press freedom itself is under attack in Britain”.
More than that, “these actions do more than damage Britain’s international reputation as a defender of press freedom; they “provide encouragement to non-democratic regimes to justify their own repressive actions.” They undermine globally the essential independence of the press.”
To conclude, an admission: I love this country, the UK. That is, I love “my” UK and everything that it means to me. I want it and everyone in it to be safe. But for that safety, a free press is essential.
In an open letter to Alan Rusbridger, Watergate journalist Carl Bernstein writes:
“it is essential that no prior governmental restraints or intimidation be imposed on a truly free press; otherwise, in such darkness, we encourage the risk of our democracies falling prey to despotism and demagoguery and even criminality by our elected leaders and government officials.”
Calling for a prosecution of the Guardian risks adding to the dangers to this and other countries and their people, not removing them.
It seems that we need to ask ourselves if “our public servants […] have forgotten whom they serve” and call on them, quickly and emphatically, to get their priorities sorted.