CREDIT: <a href="">thierry ehrmann</a> (<a href="">CC</a>)
CREDIT: thierry ehrmann (CC)

Secrets and Allies: UK and U.S. Government Reaction to the Snowden Leaks

Jan 8, 2014

On July 20, 2013, employees of the Guardian newspaper destroyed, using angle grinders and other tools, computer hard drives storing encrypted files of information passed to the newspaper by ex-NSA contractor Edward Snowden. Intelligence technicians from the UK's Government Communications Headquarters (GCHQ)—which had cooperated closely with the NSA on surveillance programs—oversaw the process.

After Snowden leaked documents to the Guardian and other newspapers in early 2013, the first stories about the extent and reach of intelligence surveillance programs were published on June 5, 2013. In the following weeks and months, more revelations followed about the nature of NSA phone metadata collection, the cooperation of global tech companies, the surveillance of world leaders and charity organizations, the cooperation of other Western intelligence agencies, and countless other details.

Guardian Editor Alan Rusbridger later described how he received a phone call—a few weeks after an initial government request for him to stop publishing the leaks—in which an official said: "You've had your fun. Now we want the stuff back," and threatened legal action if he did not destroy or surrender the files. Although he explained that the Guardian was not the only recipient or custodian of the leaked information, he opted to destroy them because he did not have his source's permission to pass them on.

Cultural differences

Amid the global debate sparked by Snowden's revelations, Rusbridger remarked on the "remarkable cultural differences" between the U.S. and UK debate: "In the U.S., for instance, there is a good, intelligent debate about the issues (including in Congress)—with no-one trying to criminalize the New York Times, ProPublica, or the Washington Post."

While plenty in the U.S. are calling for Snowden to face the heaviest punishments, the debate centres on Snowden's right to leak the information; but, observes British political reporter Simon Jenkins, "Washington, from president to congress to the press, has accepted that democratic and judicial oversight has broken down."

The United Kingdom's response has focused more on stopping the press's ability to report on the leaks. "Responsible investigative journalism has unearthed a situation that the oversight system had no idea was taking place," read a Guardian editorial. "The problem is the surveillance programmes, not the journalism that has told the story."

A UK member of parliament called for Rusbridger to face criminal prosecution. British Prime Minister David Cameron said Snowden, and to some extent the newspapers reporting the leaks, were aiding those that meant to "blow up" the UK. This was interpreted as a thinly veiled attack on the Guardian. In October, Cameron ordered an investigation to assess whether the leaks damaged British national security interests. In response, a coalition of 70 human rights organisations from 40 countries wrote an open letter to David Cameron, expressing its alarm at the way the UK government had applied pressure on media groups covering the leaks, and its use of national security concerns to close down important public interest debates and erode freedom of expression. The detention of David Miranda, the partner of Guardian journalist Glenn Greenwald, at Heathrow Airport for nine hours under terrorism legislation also drew particular concern globally.

Secrets and Allies

Some of these reactions can be explained by the fact that, because Snowden happens to be a U.S. citizen, the U.S. response would naturally be preoccupied with his actions; the Guardian's leadership is in the UK, and is thus where the UK government can direct its own anger. But there are also peculiarities of law and culture that might explain the different attitudes. The U.S. and UK have different legal traditions that govern politics and culture, and thus shape both public and government perceptions of Snowden's actions. The U.S. Constitution and the norms it creates have a particular emphasis on openness—in many ways a reaction to the British monarchy's official control of information.

The First Amendment, which governs freedom of speech and press freedom, provides constitutional protection for the press. The First Amendment has been mainly unchanged for 200 years, but is not absolute; it can be limited by privacy, libel, and national security concerns, but the net effect is that with few and notable exceptions, the system is designed so that it is difficult for the government to stop the publication of sensitive information ('prior restraint').

This convention was further solidified in 1971 by the Pentagon Papers case; the Papers, which dealt with U.S. involvement in Vietnam, were leaked to the press by military analyst Daniel Ellsberg. The Papers proved that the Johnson Administration had "systematically lied, not only to the public but also to Congress," among other things, by enlarging the war by secretly bombing Cambodia and Laos. The Nixon Administration prevented by court order the New York Times from publishing the details. The Times eventually won their case before the Supreme Court, but it was the first time prior restraint had prevented a newspaper from publishing since Abraham Lincoln's presidency during the Civil War. Ellsberg himself has called for clemency for Snowden. But author and journalist Fred Kaplan, on, argues that the situations are not comparable, because the Pentagon Papers were "historical documents" and no details about tactical operations or ongoing peace talks were leaked.

Although there has been concern about President Obama's crackdown on whistleblowers and control of the White House press corps, the U.S. system still defaults to openness, while Britain is noted to be unusually secretive among Western liberal democracies. Of course, the UK's intelligence services are far older and more complex than those of the U.S.

In Empire of Secrets: British Intelligence, the Cold War and the Twilight of Empire, Calder Walton describes how Britain's intelligence services—aided by its network in the Commonwealth—has given Britain an important source of soft power and helped it retain its outsize influence in international relations. British expertise in monitoring and decrypting worldwide communication ("SIGINT") ensured the continuing SIGINT cooperation between the U.S. and Britain after the Second World War.

It was already revealed among Snowden's leaks that cooperating with GCHQ was attractive to the NSA, because it was not accountable to the same oversight. Inverting this arrangement, Rusbridger knew he would need U.S. media partners, with their First Amendment protection, should he be barred from reporting on the leaks.

A Culture of Secrecy?

You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.

–In his memoir, A Journey, former British Prime Minister Blair regrets championing, and then passing, Freedom of Information legislation in Britain.

In 2009, the Parliamentary expenses affair became one of the biggest political scandals in modern Britain. In May, the Daily Telegraph began to publish details of elected members of parliaments' (MPs) expenses claims; the spending of public money in the course of their public duties had hitherto been secret. Some of the violations were staggering; hundreds of thousands of pounds were claimed for second homes; a Conservative MP had claimed £30,000 ($49,000) in gardening expenses and even attempted to claim £1600 ($2400) for a duck house; this garden feature quickly became the symbol of scandal.

This information would not have been unearthed without the work of Heather Brooke, a British-American journalist, after a phone call for a Freedom of Information (FOI) request in 2004 turned into a five-year investigation. When the House of Commons and the speaker were particularly obstructive, she smelled a rat. Though the establishment went to great lengths to stop the information coming to light, she eventually won her case in the High Court—but the relevant details were leaked to the Telegraph before it was made public.

Blair championed FOI legislation while in opposition as part of his pledge to modernise and clean up politics. What was finally passed in November 2000 was much weaker than the one Blair had initially proposed. Furthermore, he personally delayed its passage by four years. Blair attributes his retrospective self-criticism to the fact that FOI, rather than being used by the people, was used only by journalists. (But there may be another reason for his later hostility to FOI. In 2009, documents were released that shone light on one of Blair's own skeletons—a 1997 donation and lobbying scandal. "That this was not released until Blair left office was a direct result of his delay of FOI," writes Maurice Frankel in openDemocracy.)

The UK seems to be unique among Western democracies in its obsession with secrecy, although Christopher Moran writes in his 2013 book, Classified: Secrecy and the Modern State in Britain that today's comparative openness would have been inconceivable 20 years ago: FOI "turned on its head the natural order that had prevailed for centuries in Britain ... that information belonged to the state, not to the citizen."

David Vincent's The Culture of Secrecy asserts that the origins of official control of information, not just in government but in sectors such as medicine, charitable organizations, and banking, became entrenched with the economic changes of the 19th century and the Industrial Revolution, which gave rise to professional secrecy among lawyers, doctors, and social workers, consolidating their power.

Others view British secrecy as emanating from legislation, not by the invocation of laws, but by inhibiting behavior—particularly the draconian Section 2 of the Official Secrets Act, which was repealed in 1990, and which made illegal the unauthorised dissemination of any government document, no matter how old or inconsequential.

Moran notes that in the UK, the government has protected its secrets through a culture of self-censorship and informal processes, rather than through the courts. Politicians, or others with access to sensitive information, were urged to leave out certain details from memoirs or studies; often this was achieved by appealing to a person's gentlemanliness, or patriotism.

In the 1980s, Margaret Thatcher tried unsuccessfully, through the courts, to ban former MI5 (the UK's domestic security service) operative Peter Wright's tell-all autobiography, Spycatcher—which was published in Australia. Not only did Wright describe the history and ethics of MI5, he revealed that he was once sent to unmask a Soviet mole in MI5, whom he identified as Roger Hollis, a former director-general of the service. Other revelations included a CIA-MI5 plot to assassinate left-wing Prime Minister Harold Wilson and an MI6 plot to assassinate Egyptian President Gamal Abdel Nasser during the Suez Crisis. Similar to the Satanic Verses controversy, the attempt to stop Spycatcher's publication insured its profit and notoriety, and made its claims all the more scandalous.

Then there is the Defence Advisory Notice, or D-notice, an official request, by a special committee, to news editors not to publish items or subjects for reasons of national security—which would be unconstitutional in the U.S. (Not incidentally, Rusbridger informed members of parliament during a hearing on the issue that the D-Notice committee told him nothing published by the Guardian had put British lives at risk.)

This is not to say that there isn't a robust tradition of investigative journalism in the UK; Moran notes that released archives and documents show that Fleet Street has been very damaging to the secret state. Post-1945, he writes that the government machine was "at wit's end" over investigative journalists that managed to break news frequently, and was unsuccessful at stopping or even punishing journalists. That the reporters achieved this without the protections of the U.S. environment is to be commended.

"Britain is not ruled by a new Stasi," argues Jenkins. "Arguing over press freedom … is open and vigorous. But the Snowden revelations have illustrated how easy it is for an essentially authoritarian and secretive arm of government to slither away from democratic oversight."

In the U.S., the Snowden affair is being debated in the courts. U.S. District Court Judge Justice Leon ruled in December that NSA surveillance was "almost Orwellian" and "almost certainly" violated the U.S. Constitution. Weeks later, another U.S. District Court judge, William Pauley, ruled that the NSA phone data collection program, while controversial, was lawful. The matter is likely to end up being debated in the Supreme Court.

Kaplan argues that Snowden's actions should be judged by their individual impact. He predicts that he won't get clemency; this might have been an option if "his stolen trove of beyond-top-secret documents had dealt only with the NSA's domestic surveillance." But details about intelligence operations in Pakistan and Afghanistan, and Snowden's remarks about the NSA hacking into computers in China and Hong Kong, argues Kaplan, have nothing to do with domestic surveillance or spying on allies, and thus should not be considered whistleblowing. For this reason, it is unlikely that the U.S. will give Snowden clemency; any deal for alleviated punishment is likely still to include a jail sentence.

Whatever happens to Snowden in the future, the UK debate will no doubt be influenced by where U.S. opinion eventually rests.

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