The question that forms the title of this posting is only slowly entering the NSA debate, post the arrest of David Miranda, but it is surely an important one, raising issues of tactics and principles that should or ought not to be employed by the media as journalism and journalists face the most sustained onslaught in living memory from the surveillance empire.
Guardian editor Alan Rusbridger revealed in today’s edition that in the face of British government threats of a court-ordered “prior restraint” on his newspaper’s coverage of Edward Snowden’s NSA leaks, he agreed that his paper’s hard drives could be destroyed. Had the effort to establish “prior restraint” been successful, The Guardian would have been barred from covering the Snowden story.
The deed was done in the newspaper’s basement by Guardian staffers overseen by technicians from Britain’s NSA equivalent, GCHQ on July 30th but we only learned about it today, exactly a month later. The delay has not yet been explained.
Rusbridger did this, his paper reported, so that The Guardian could continue its reportage – which it did less than a fortnight later with the revelation of NSA funding of GCHQ activities – and because other copies of the Snowden material existed on computers outside the jurisdiction, presumably in Brazil on Glenn Greenwald’s hard drives and in Berlin on Laura Poitras’ computers. These other databases enabled the paper to continue reporting albeit from further afield.
By and large Rusbridger has been feted for his stance which enabled his paper to maintain its controversial coverage and solidified The Guardian’s reputation as one of the world’s most courageous and gifted newspapers. It is important to remember that its Snowden coverage is only one of a series of recent triumphs for The Guardian: without the paper’s intrepid journalism, Rupert Murdoch’s empire would still reign unchallenged and undamaged on both sides of the Atlantic and the Wikileaks dump might still be searching for a mainstream media outlet, or at least one with more moxie than Bill Keller.
There is no doubt at all that The Guardian and its doughty editor deserve all the plaudits being showered on them but I have to admit to a more than nagging doubt whether Rusbridger did the right thing here.
I say so because even acts of courage can have unfortunate consequences if they are badly thought out, and I fear that may be the case here. Here’s my worry: by acceding to the British government’s threats The Guardian editor may have set an unhappy precedent. There was a principle involved here and it was that The Guardian has the right to create any journalism it wanted from its base in Britain.
By agreeing to destroy its hard drives on foot of a government fiat, Rusbridger was effectively giving the authorities in Britain the right to say that stories of which it disapproved could not be generated from the Guardian’s London office or if they were they would incur official displeasure and the unimpeded invasion of its workplace. After all, having already conceded the government’s right to enter the Guardian’s basement to destroy his hard drives, Rusbridger cannot go into court and challenge it should Cameron’s government wish to do the same again.
The Miranda/Greenwald/Snowden story is not especially problematic in this regard. The story is after all mostly an American one and the principal actors do not work or live in the UK. So it matters less for this story that Rusbridger gave up ground to the British authorities. The notion of keeping the story going from Brazil and Berlin also makes practical sense. But what if the next whistleblower is a Brit and works in GCHQ or MI5? Not now being able to stop the authorities invading his offices to destroy sensitive source material, is Rusbridger going to have to base the reporters covering the story abroad? How feasible or even possible is that?
Would it not have been better to have forced the British government’s legal hand and obliged them to seek court permission to gag what is after all now one of the world’s best known and respected newspapers? It might not be the ideal solution for a newspaper editor keen on keeping his circulation healthy but it sure as hell would clarify the great danger to liberties represented by the growing surveillance state. And the result would not necessarily be a foregone conclusion, not least because the case would inevitably have ended up at the European Court at Strasbourg where the British would likely face a less pliant judiciary.
Had Rusbridger chosen this option he would have done so from a position of strength. Public opinion in mainland Europe (if not yet in Britain) and in much of America has been outraged at most, disturbed at least by the Snowden revelations and suppression of The Guardian could have been one of those game-changing moments in the fight to preserve healthy journalism. (The story would have come out anyway; I am sure Glenn Greenwald and Laura Poitras would have seen to that!)
I hope it was not a missed opportunity but I fear that it might have been. I suspect the British government’s failure to follow through on its legal threat to Rusbridger was an implicit admission of its own weakness. Next time you can be sure that if the British or American governments move it will be in circumstances much more favorable to their cause.