What a relief. It is, after all, possible to discuss the operations of modern intelligence agencies without having to prove one’s patriotism, be turned over by the police, summoned by politicians or visited by state-employed technicians with instructions to smash up one’s computers.
The 300-page report into the Guardian’s revelations about the US National Security Agency (NSA) commissioned by US President Barack Obama and published this week is wide-ranging, informed and thoughtful. It leaps beyond the timid privacy-versus-national security platitudes which have stifled so much of the debate in the UK. It does not blame journalism for dragging the subject into the open — it celebrates it.
The five authors of the report are not hand-wringing liberals. They number one former CIA deputy director; a counter-terrorism adviser to former US president George W. Bush and his father; two former White House advisers; and a former dean of the Chicago law school. Not what the prime minister would call “airy-fairy, lah-di-dah” types.
Six months ago, British Cabinet Secretary Sir Jeremy Heywood was in the Guardian’s London office telling us there had been “enough” debate on the matter of what intelligence agencies got up to, but here are Obama’s experts reveling in the debate — exploring the tensions between privacy and national security, yes, but going much further, discussing cryptology; civil liberties; the right of citizens and governments to be informed; relationships with other countries; and the potential damage that unconstrained espionage can cause to trade, commerce and the digital economy.
Only 10 weeks ago British spy chiefs were doing their best to ventilate their “cease and desist” rhetoric on journalists — implying they had no right to venture into their territory.
KEEPING THE PRESS FREE
A distinguished former editor wrote a rather shameful article wholeheartedly agreeing: “If MI5 warns that this is not in the public interest,” ran the headline, “who am I to disbelieve them?”
Obama’s panel of experts profoundly disagree.
“It will not do for the press to be fearful, intimidated or cowed by government officials,” they wrote. “If they are, it is ‘We the People’ who will suffer. Part of the responsibility of our free press is to ferret out and expose information that government officials would prefer to keep secret when such secrecy is unwarranted.”
So — informed initially by journalism, not by anything that congressional oversight or the courts have brought into the open — Obama’s panel set down to write a report which calls for more than 40 changes in the way the NSA collects, stores and analyzes information; how it deals more openly with US Congress, the courts and the public; and how it relates to technology companies, foreign governments and the Internet itself.
The report followed on from two other notable consequences — last week alone — from the reporting of the Guardian and others of material leaked by Edward Snowden.
On Monday last week, a federal judge ruled that the NSA’s intrusions into private lives using “almost-Orwellian technology” were almost certainly unconstitutional.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and hi-tech collection and retention of personal data on virtually every single citizen,” Judge Richard Leon said.
On Tuesday last week, Obama met the chief executives of some of the biggest technology companies in the world, alarmed at the potential damage to their companies by the revelations of the extent to which the NSA was exploiting — and even weakening — their platforms and software.
To this litany of intelligence matters brought into the light by dogged journalists (lawyers and a tiny number of lawmakers) one could add last week’s Gibson report, which confirmed there are many troubling questions — much reported on by the Guardian’s Ian Cobain — about the rendition and torture of terrorism suspects.
The Cabinet secretary could not, in other words, have been more wrong.
Far from there having been “enough” debate, the debate has just begun. It has been raging around Europe and much of the rest of the world — in parliaments, the press and among the people.
It is certain that Leon will not be the only judge to be weighing up these matters: There are numerous lawsuits coming down the slipway in the US, the UK and Europe. In the US Congress there are no fewer than three bills aimed at reforming the scope and behavior of the NSA, one of them drafted by three members of the senate committee which oversees the intelligence agencies.
The author of the PATRIOT Act, Jim Sensenbrenner, is among those appalled to see the uses to which the agencies put the legislation he designed.
LACK OF DISCUSSION
In the UK, the picture has been rather different.
Westminster, the BBC and much of the press have shown little appetite to examine or discuss the Snowden revelations, a state of affairs that has certainly suited a nervous Whitehall and Downing Street, but just as the Snowden documents have shown the umbilical links between the US and the UK intelligence agencies, so it will be impossible for US Congress and Obama to discuss and reform the NSA without it impacting on the workings of the UK intelligence agencies.
At present, everything is being loaded on the plate of the modestly resourced Intelligence and Security Committee (ISC), chaired by Sir Malcolm Rifkind.
To Rifkind it now falls to complete the investigation into rendition and torture. His committee must, single-handedly, annually audit the ￡2 billion (US$3.27 billion) workings of the three UK intelligence agencies and he must also head up his own mini-version of what the Obama review panel has just published.
The ISC will, in the course of this, mark its own homework by considering the effectiveness of ... the ISC.
In contrast with their American counterparts on the Senate Oversight Committee, not a single member of the ISC has yet murmured any significant disquiet about the existing arrangements for oversight, nor the workings, legal framework or behavior of the UK agencies. It will be interesting to see if they come up with anything as imaginative as Obama’s panel — a special presidential adviser on privacy, for example, or the establishment of a civil liberties and privacy protection board.
This muted debate about our liberties — and the rather obvious attempts to inhibit, if not intimidate, newspapers — have puzzled Americans, Europeans and others who were brought up to regard the UK as being the cradle of free speech and an unfettered press.
In a 1935 essay, Liberty in England, E.M. Forster wrote: “The fact that our rulers pretend to like freedom is an advantage,” but he also wrote about the “psychological censorship [rather than the exercise of the law] which impairs the human heritage.”
It remains to be seen whether Obama endorses his panel’s (not especially radical) recommendations, but it is, as I say, a relief to see these things openly discussed.
Alan Rusbridger is the editor of the Guardian.
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