Editor Willing To Publish Anything Doesn’t Think Public Deserve To Know About Government Surveillance

Only honourable men wear poppies

 

The ongoing public debate about the Snowden NSA leaks and government surveillance was effectively settled once and for all today, as former News of The World editor Andy Coulson informed the world how he would have acted had Edward Snowden approached him – rather than The Guardian’s Glenn Greenwald – with his cache of classified security documents.

The Guardian reports:

The former NoW editor Andy Coulson said he would have rejected the Edward Snowden story if it had been offered to him when he was editing the newspaper, the Old Bailey has heard.

Coulson told the phone hacking trial on Tuesday he felt the news story about US National Security Agency surveillance, based upon a cache of documents leaked by the whistleblower Snowden, would have endangered lives.

Andy Coulson – known by many of his peers as the Saint of Fleet Street – distinguished himself throughout his career by his unimpeachable journalistic ethics, frequently declining to run lucrative stories picked up by other newspapers because he could not be absolutely certain that the information had been gleaned from reputable sources or that its publication would serve the public interest.

Showing the steady, high-handed professional judgement which was the hallmark of his tenure as editor of the News of the World, The Guardian reports Coulson as saying:

“It’s a topical example, Edward Snowden. If they came to me at the News of the World, I think I would have turned them down,” he said, adding that the story on sweeping surveillance by the US government had “a potential for lives to be put at risk”.

The fact that Andy Coulson decided to weigh in on this contentious issue can only add further weight and moral credibility to the government’s argument that it has the unlimited right to take any action in the name of national security without either informing or seeking the consent of the public.

Coulson’s intervention is also a tremendous setback for The Guardian and The Washington Post newspapers, who only yesterday were boasting about their newly-won Pulitzer Prize for reporting on the Edward Snowden NSA leaks. Indeed, the judgement and reputation of the entire Pulitzer Prize committee must surely now be called into question for conferring an award on two newspapers who so egregiously violated what is already becoming known as the ‘Coulson Doctrine’ of fastidiously weighing the public interest before publishing sensational material.

Coulson could not be reached for further comment as he is currently standing trial at the Old Bailey on charges of phone hacking and committing perjury, absurd and hurtful accusations that were probably concocted by jealous rivals who can never live up to Coulson’s exemplary standards of professional and moral conduct.

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Spot The Bully – Journalism or Government?

SPS Polis 2014 journalism conference

The POLIS 2014 Journalism Conference, held on the campus of the London School of Economics, played host to a number of luminaries from the British media establishment and debated some important issues. But among the various items on the agenda – including riveting discussions on the methods and ethics of investigative journalism, an interview with Guardian editor Alan Rusbridger and a forum on the use of social media in the newsroom – was a slightly incongruous, strangely titled session.

In the second session of the day, the panel – comprised of chair Anne McElvoy (BBC and The Economist), Annette Dittert (German broadcaster ARD), Michael Crick (Channel 4 News) and Ed Lucas (The Economist) debated the following topic:

Journalism after Snowden: Watchdog or thug?

In the wake of the Snowden story and the Leveson Inquiry into the press, we ask whether British journalism is to supine or too aggressive? Was the publication of state secrets justified?

SPS_Polis2014_01

Semi-Partisan Sam, attending the POLIS Journalism Conference for the first time, took the opportunity to ask the following question of the panel:

QUESTION – Given the facts: that Reporters Without Borders downgraded the UK from 29th to 33rd in the World Press Freedoms rankings for 2014;  that the British government now assumes the right to stop and detain partners and relatives of journalists at Heathrow airport under grossly misapplied anti-terror laws; that the Prime Minister last year saw fit to dispatch his Cabinet Secretary to the offices of a major national newspaper in order to threaten it with closure unless they desisted with the publication of materials embarrassing to the government; and that the government forced that same newspaper to destroy their privately owned computers and hard drives under the watchful presence of intelligence and GCHQ officers – why are we sitting here having an introspective debate about whether or not journalists are behaving like thugs when the real thug is clearly the bullying, heavy-handed British government?

The question was extremely well received among the attendees in the hall, prompting a significant round of applause from delegates. Sadly, this did not translate into a a full or robust answer from the panel, who at times had been happier to wander off-topic and waste time debating side issues such as America’s merits as a country and the proper role of the intelligence services.

The panel’s complete answer – such as it was – to the question can be seen in the video below (Semi-Partisan Sam is “the gentleman” referred to by Anne McElvoy):

The Economist’s Ed Lucas, an enthusiastic apologist for anything and everything that the government decides to do in the name of ‘security’, was obviously unsympathetic to the idea that the British government has displayed thuggish behaviour. But since even Lucas was unable to justify what the government has been caught doing without public knowledge or consent, he instead diverted attention by building up and then destroying a straw-man argument of his own creation – namely that those who speak out against government persecution of journalists who expose overreach by the security services are somehow naive pacifists who want to abolish the military and the intelligence services entirely.

Lucas said: “If you want to have a country which has no intelligence and security services, where there are no state secrets or no penalty for stealing state secrets, then fine – I guess that may be the world that the Green Party would like. I suspect it’s a minority point of view.”

This is a patently false and absurd proposition. No serious critic of the British or American governments as pertaining to their secretly allowing their security services to infringe on citizen privacy is suggestion that GCHQ, MI6, the CIA or NSA be disbanded, and Lucas insults our intelligence to cast this aspersion. The issue is not whether we have security and intelligence services, but the lengths to which we as a society are prepared to let them act in our interest.

The other fatuous argument sometimes made by apologists – and indeed by Ed Lucas himself during this same session – goes along the lines of: “Why are people so surprised that we have spies, and that they are involved in acts of spying?” Again, this is a deliberate and misleading attempt to change the terms of the debate. Citizens fully understand the need for foreign and domestic intelligence, but they also have the right to expect that the technology and bureaucracy of surveillance will not be turned inwards upon themselves. While no one expects (or demands) a list of current surveillance targets to be posted and regularly updated on the  internet, the public should have input as to the criteria for targeting through the democratic process.

It is a rather sad statement on the current status of British journalism that the only panellist to seriously engage with the question and agree that it is government – not the press – who have been acting the bully, was Annette Dittert from German broadcaster ARD.

Even the panel chair, Anne McElvoy, felt the need to reframe the question and make the unsubstantiated claim that Glenn Greenwald’s partner, David Miranda, had been carrying “shedloads of secrets with him” when he was detained at Heathrow airport, and that rather than being an outrage, this was just one of the “more difficult areas” where the public “might begin to have some doubts” and feel that the government has a case to answer.

In her response, Dittert correctly identified the apathy of the British people as being partly responsible for the lack of public outcry at the Edward Snowden revelations, saying that Britain has an “almost romantic relationship with the security services” – our experiences of the fictional James Bond being somewhat different to the German experience of the Stasi.

Responding to the question, Dittert said: “I thought it was really concerning – the Prime Minister threatening in the House of Commons a newspaper and journalists … in case they go on publishing is something that shouldn’t happen in a democracy.”

Dittert then went on to describe the way that The Guardian newspaper was treated as being “entirely wrong”.

It is profoundly worrying that even at a prestigious journalism conference such as POLIS 2014, so few of the attendees (and only one of the panellists – a German television correspondent) felt able to push back against the notion that it is the journalistic profession that has become the bully and the thug rather than the British government, whose track record on secrecy, paranoia and intimidation speaks for itself.

And while the POLIS 2014 conference was excellent, the fact that the whole day passed with virtually no observance or mention of the harrassment and intimidation of the British press by the goverment will only reinforce the belief that the establishment media with their well-connected sources and comfortable positions within the Westminster bubble are, at times, quite incapable of holding to account the government that they simultaneously both depend on and fear.

GCH Who?

Who?
Who?

 

Watching the debate on government surveillance and citizen privacy play out differently on opposite sides of the Atlantic is both astonishing and depressing.

While the issue has become a hot political topic and an electoral issue leading into the 2014 midterms – with candidates and incumbents lining up to praise Edward Snowden for whistleblowing and revealing the extensive activities of the NSA, or condemn him as a hypocritical traitor – in Britain, the debate has caused barely a murmur.

Despite the fact that as closest allies, the United States and United Kingdom cooperate intensively on surveillance and national security issues, sharing the front-end technology as well as the intelligence results, those responsible from the United Kingdom side have escaped serious political pressure and questioning almost completely.

The closest to uncomfortable scrutiny that anyone from the British security apparatus came was when former GCHQ chief Sir David Omand was asked a softball question at the Home Affairs committee, and used it as an opportunity to bemoan the fact that all of this pesky, pedantic oversight of the intelligence community is harming their morale and making them feel sad.

John Naughton, writing in The Observer, has a theory about this relative lack of interest in Britain. He proposes that people would sit up and pay more attention to the erosion of their right to privacy and protection from unreasonable search if only the technological aspects of the question were explained in a more accessible way:

As someone who is supposed to know about these things, I’m sometimes asked to give talks about computing to non-technical audiences. The one thing I have learned from doing this is that if you want people to understand technological ideas then you have to speak to them in terms that resonate with their experience of everyday things.

Naughton believes that the problem is a lack of technical understanding in the British population – that if only the man on the Clapham omnibus knew what it meant to tap transatlantic fibreoptic cables to eavesdrop on data, to use computer malware to snoop on untargeted citizens or to maintain logs of telephony metadata, he would suddenly take to the streets in anger. This seems somewhat naïve. After all, American citizens are no more technically sophisticated than the British, and yet they managed to generate and sustain a sense of outrage that their privacy was being routinely violated by a government that would have happily continued doing so in secret were they not caught red-handed.

Naughton continues:

One of the things that baffles me is why more people are not alarmed by what Edward Snowden has been telling us about the scale and intrusiveness of internet surveillance. My hunch is that this is partly because – strangely – people can’t relate the revelations to things they personally understand.

The average Brit may not be conversant in the technical details, but they know the broad strokes – that the government is and has long been collecting and sharing data on us all with our international intelligence partners, that this was done without ever bringing the question up for national or parliamentary debate, and that the government is more interested in bullying people who try to report on the truth than in making their activities more transparent and democractically accountable.

The problem is not that the average Brit simply doesn’t understand what it means when GCHQ or the intelligence services collect reams of data indiscriminately with no targeting and no proof or suspicion of ill intent – they understand all too well. The problem is that far too many British people, when asked, simply shrug their shoulders and say something along the lines of “well, if it keeps us safe we should probably keep doing it,” or “if you have nothing to hide you have nothing to worry about.”

And more worrying still is the fact that some elements of the press also seem willing and eager to promulgate this attitude.

The reason for this apathy among both the people and the press is the fact that the British people have no real terms of reference when it comes to thinking about what government actions are good and which are bad. In the United Kingdom, the law of the land is only as cast iron and certain as the whims of the current government and current parliament. Aside from the European Union and European law (which act as brakes on British government ambition in almost every other sphere than this), the British citizen has no real defence against any action taken against him by the elected dictatorship of the day. And where it comes down to interpretation of existing law by the intelligence agencies, the cases are fought in court in a very opaque way that hardly anyone understands.

Contrast this to the situation in our closest ally, the United States of America, where precisely the same debate is playing out but at a much louder volume. The debate is much more accessible to the average American because the US government is structured in a much more understandable way and the powers and limitations of each branch of government are delineated by the Constitution. Though ambiguities and disagreements naturally always occur, the Constitution at least provides a frame of reference.

When issues such as bulk collection of telephony metadata or the recording of international telephone calls or the intercepting of emails come up, Americans can point to the Fourth Amendment to the United States Constitution, which clearly states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There it is, in black and white. And it protects Americans in perpetuity until such time as it may be repealed or replaced with a new amendment (for which the bar for passage is prohibitively high).

That’s not to say that the US Constitution has done anything much to help American citizens defend themselves from unwarranted government intrusion. The Obama administration, and the Bush administration before, are able to come up with all manner of tortured (no pun intended) interpretations of the law to justify both the illegal things that they do and the fact that they try so hard to keep them secret.

But the mere fact that the highest echelon of law concerning search and seizure of property is so comparatively well known in the United States means that shady government activities suspected of falling on the wrong side of the line between legality and unconstitutional overreach are noticed much sooner and debated much more vigorously. By contrast, it would be astounding if any more than one in a thousand Britons of voting age could point to the relevant laws and statutes which define the British government’s legal powers to monitor the communications and data of its citizens.

The sad irony is that the Fourth Amendment protections enjoyed (or at least referred to) by American citizens derive largely from British legal doctrine, and yet it is the former colony which now tenuously keeps alive something which has been slowly and deliberately extinguished in the mother country.

John Naughton is right to be alarmed at public apathy toward the growing British surveillance state – it is perhaps the greatest threat to our democracy and free speech currently in existence. But public opinion will not be inflamed by holding a national technology seminar to explain the small print; there will only ever be opposition to government overreach on spying or anything else when we sit down together as a country and agree exactly what should be the limits on government power.

Holding a constitutional convention for the United Kingdom – as this blog has consistently advocated – to determine once and for all the powers that we are willing to grant the government and those which we would keep for ourselves may not be popular or sexy. But it is needed now more than ever.

Rolling Back Surveillance – What’s The Catch?

 

Supporters of ending the practice of bulk data collection by the NSA and enacting safeguards on requesting permission to monitor the communications of private citizens have found a very unexpected ally in Democratic congressman Dutch Ruppersberger, the NSA’s hometown representative and one of the agency’s key supporters.

The Guardian reports:

This week, the top Democrat on the House intelligence committee, Congressman Dutch Ruppersberger, who represents the Maryland district home to the NSA’s Fort Meade headquarters, came out in favor of a remedy for the controversial surveillance.

Ruppersberger, in interviews with the Washington Post, National Journal and Politico, said he was working to craft a proposal that would require court orders for government requests for Americans’ phone records – perhaps on an individual basis – from the telephone companies, without requiring the companies to expand retention of their customer records beyond current practice.

This has rightly aroused suspicion from some civil libertarians – partly because Ruppersberger admits that elements of his proposal still remain to be “worked out” (read: emasculated before coming up for a vote) and partly because Ruppersberger’s track record on standing up to his district’s largest employer is predictably weak.

Others, however, seem to take his proposal in good faith:

On the other hand, sources said, Ruppersberger’s evolving position represents what one called a “huge step forward” toward an outright end to bulk domestic metadata collection. Ruppersberger’s credibility with the NSA might also be an asset for such an effort.

I’m sceptical. Though any politician turning away from embracing the unchallenged omniscience of the intelligence services is a good thing, we should avoid ascribing too many noble motivations to those who do so. This can be difficult, given the serious way in which such lawmakers are suddenly discussing the issue. Here, Ruppersberger could pass for a concerned member of the ACLU were it not for his voting record and numerous other public statements to the contrary:

“I believe that the Foreign Intelligence Surveillance Act must be reformed. We must improve the American public’s confidence in, and perception of, our national security programs, by increasing transparency, strengthening oversight, and safeguarding civil liberties,” Ruppersberger said.

“I also believe that any proposal to reform the Foreign Intelligence Surveillance Act must preserve critical intelligence tools that protect our country and its allies.  I am concerned with any approach that would eliminate this important intelligence tool and make the country more vulnerable to terrorist attacks, without providing a workable alternative.”

Ruppersberger’s decision and newfound concern about civil liberties could well be no more than what Glenn Greenwald has called the ‘Angela Merkel’ effect – a term used to describe a phenomenon where a public civil liberty infringement is tolerated quite happily by a public official until they realise that they too have become victims (in Merkel’s case, she was largely silent on the fact that the NSA had been intercepting the communications of German citizens but incandescent with rage that her own private communications might also have been monitored).

Senator Dianne Feinstein of California also falls into this category – long an NSA apologist and advocate for massive secret public surveillance, but suddenly up in arms when the work of her own committee was monitored by the CIA. While it would be nice to believe that a dyed-in-the-wool surveillance hawk such as Feinstein has undergone some kind of road-to-Damascus style conversion to the cause of privacy rights, sadly the greater likelihood is that hypocrisy and political calculation played the larger part in her Senate floor outburst.

Not everyone is convinced
Not everyone is convinced

The likelihood is that the most hawkish, reflexively pro-surveillance lawmakers realise that the political sands have shifted beneath their feet, and have deemed it wise to be seen giving a little ground now to avoid complete defeat in the future.

In Ruppersberger’s case, that defeat would be epitomised by the passing of the rival USA Freedom Act, sponsored by Wisconsin Rep. Jim Sensenbrenner, which goes further in setting stricter standards for collecting communications data on individuals, standards that would need to pass a certain burden of evidence in order to gain a court order:

With the details still undetermined in Ruppersberger’s proposal, it is difficult to know how far the new effort would go in requiring court-ordered individual suspicion to access phone records, as well as requiring a specific “relevance” connection to an ongoing terrorism investigation, as required in the Patriot Act and the proposed USA Freedom Act – without which, privacy advocates argue, would leave the door open to dubious searches of government records.

While the gradual conversion – or defensive rearguard action – of politicians like Dutch Ruppersberger and Dianne Feinstein can be cautiously welcomed, the public should never forget that that if these people had their way, we would not be having a national conversation about government surveillance and civil liberties at all.

National security fanatics from both parties have lined up to condemn Edward Snowden for whistleblowing and making the public aware of what the government had been doing, going so far as to call him a traitor and make up all manner of ludicrous unproven assertions to cast doubt on his moral integrity.

If the Ruppersbergers and Feinsteins had their way, the American political debate would continue to bounce back and forth between Obamacare, Benghazi and 2016 speculation because we simply would not know about bulk data collection, the PRISM program, back door access into the servers of our most commonly used internet applications or any of the other “protective measures” that the government felt the need to take without glancing at the Constitution or mentioning what they were doing to the people.

So by all means, let us welcome those genuine converts to the cause of civil liberties. But let’s hold off on the ticker-tape parade in their honour just a little while, until their motives become clearer with time.

UPDATE – 15/03/2014: Whatever the limitations of the debate on surveillance may be in the United States, let us be grateful at least that a debate is taking place at all. In the United Kingdom, by contrast, there has been no apology or sign of contrition from David Cameron, no real admission that the British government had overstepped the mark, and certainly no real political movement underway to start properly overseeing the British security services.

Who Really Wants A Free Press?

MapRSF

 

The United Kingdom has fallen from 29th to 33rd in the world in the World Press Freedoms Index 2014.

The report, compiled annually by Reporters Without Borders (RSF) is scrupulous in methodology and incorporates both qualitative and quantitative data. And for a country like Britain, which likes nothing more than to strut around the world proclaiming its comparative virtues, it makes for some dismal reading.

RSF’s summary of Britain is dominated by the British government’s chilling and bullying treatment of the Guardian newspaper as it sought to suppress the publication of information based on the NSA leaks by Edward Snowden, as well as the fallout from the Leveson Enquiry into the press behaviour and the prospect for further stultifying regulation of the industry:

In the United Kingdom, the government sent officials to The Guardian’s basement to supervise destruction of the newspaper’s computer hard disks containing information from whistleblower Edward Snowden about the practices of GCHQ, Britain’s signals intelligence agency. Shortly thereafter, the partner of Glenn Greenwald, the former Guardian star reporter who had worked closely with Snowden, was held at Heathrow Airport for nine hours under the Terrorism Act. By identifying journalism with terrorism with such disturbing ease, the UK authorities are following one of the most widespread practices of authoritarian regimes. Against this backdrop, civil society could only be alarmed by a Royal Charter for regulating the press. Adopted in response to the outcry about the News of the World tabloid’s scandalous phone hacking, its impact on freedom of information in the UK will be assessed in the next index.

Britain isn’t always called out by name, but there can be little doubt which European country was the intended target of this particularly barbed comment:

These developments showed that, while freedom of information has an excellent legal framework and is exercised in a relatively satisfactory manner overall in the European Union, it is put to a severe test in some member countries including those that most pride themselves on respecting civil liberties.

How true this is. Britain has long been (and has long considered itself) a stalwart defender of free speech, but the recent thuggish attempt to use anti-terrorism laws to detain a relative of a journalist and to threaten a national newspaper with closure unless it destroyed information which had the potential to embarrass the government are more worthy of Vladimir Putin’s Russia than the land of Magna Carta.

The New York Times, on the other hand, looks at the same report and seems to take succour from it, which is very surprising given the fact that their journalists have worked so closely with their beleaguered colleagues at The Guardian.

Their editorial board is celebrating the 50th anniversary of the landmark New York Times vs. Sullivan case, which set the bar for winning libel or defamation claims much higher than in Europe and thus created a bulwark protecting press freedom in the United States. This excerpt from the majority opinion in that case should be mandatory reading for all British politicians and those involved in public life, who are often all too keen to clamp down on free speech at the first sign of discord:

The Supreme Court voted unanimously to overturn that verdict. The country’s founders believed, Justice William Brennan Jr. wrote, quoting an earlier decision, “that public discussion is a political duty, and that this should be a fundamental principle of the American government.” Such discussion, he added, must be “uninhibited, robust, and wide-open,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

While the New York Times is absolutely right to recall and celebrate this landmark victory – libel laws in many other countries, especially Britain, are far too plaintiff-friendly – they seem all too willing to ignore the negative actions that have chipped away at this victory in the intervening half century, the various acts of craven self-censorship or collusion with imperial government overreach or the undermining of factfinding by the ongoing war on whistleblowers.

This selective amnesia leads to the following self-congratulatory pronouncement by the Times editorial board:

Still, American press freedoms rank among the broadest in the world. Citizens and media organizations in countries from China to India to Britain do not enjoy the same protections. In many parts of the world, journalists are censored, harassed, imprisoned and worse, simply for doing their jobs and challenging or criticizing government officials. In this area of the law, at least, the United States remains a laudable example.

The only problem with this statement? The United States ranks thirteen places behind the United Kingdom, at 46th in the world.

Fortunately for the New York Times and the reputation of the American press, the RSF world press freedom index does not take quality of journalism into account, only the ability of the journalist to practice their trade freely – otherwise they could have found themselves docked another few positions for that howler of an America-must-be-best presumption.

The truth is that neither Britain or America have anything to be proud of faced with this latest report. In an ideal world, David Cameron and Barack Obama would be held to account and hauled over the coals for presiding over such a poor performance. A backbench MP looking to bolster his or her civil liberties credentials could do worse than to ask the prime minister to defend or account for his government’s performance on press freedom at Prime Minister’s Questions this coming Wednesday.

But regrettably, a place in the mid-low 30s ranking is exactly where David Cameron, Barack Obama and many of those in power in Britain and America want their respective countries to sit. It allows for a press that is boisterous and noisy in all of the areas that don’t really matter (and so showing every outward appearance of being free), but that meekly tows the line when it comes to critical issues such as national security, civil liberties and holding those in power to account for their actions.

We in Britain or America may not think of countries such as Finland, Norway, Luxembourg or Liechtenstein as shining role models to emulate, if indeed we ever think about them at all. But in some key aspects, it is they who now carry the torch for freedom of speech and the free press, not the traditional Anglo-American partnership who held it aloft so dutifully for so long.