In a recent essay in the New York Review of Books, Alan Rusbridger, the editor of The Guardian, employs three arguments to justify his publication of leaked documents whose release has caused major damage to the national security of the U.S., the U.K., and their allies, according to their governments. The U.S. director of national intelligence has stated that the leaks have done “huge, grave damage” to intelligence-gathering efforts. NSA Director Keith Alexander has argued that revelations have caused “significant and irreversible damage to our nation’s security.” And the director of the Government Communications Headquarters (the NSA’s U.K. counterpart) recently testified that the leaks have been “very damaging” and will make the job of pursuing terrorists “far, far harder for years to come.”
Rusbridger’s first argument, a libertarian claim, is contradicted by his second. The second claim, a liberal communitarian argument, leaves a major question unaddressed. And the third argument is so specious that one must wonder if Rusbridger realized his case was unconvincing and ended up grasping at straws.
Throughout the first parts of the article, Rusbridger argues that the problem is not his publication of state secrets but, rather, the American and British governments’ attack on free speech and the freedom of the press. The issue was that the state “was threatening prior restraint of reporting and discussion by the press, no matter its public interest or importance,” and is “gagging” the press. The government is working to prevent the people from finding out that it is “seeking to put entire populations under some form of surveillance,” the aim of which was to “collect and store ‘all the signals all the time’—that means all digital life, including Internet searches and all the phone calls, texts, and e-mails we make and send each other.”
Rusbridger then turns to various rhetorical expressions to characterize these acts, arguing that if the Chinese behaved in this way, “there would be barely contained fury in the West.” Then follow the obligatory references to George Orwell and the East German Stasi, even though Rusbridger does not show that anyone has been killed, tortured, sent to the gulags, or even lost their job on account of the collection of phone records and emails. The main evidence of the actual harm these systems have inflicted so far (as distinct from what might happen were the U.S. and U.K. to be overtaken by tyrants) comes from claims Edward Snowden made, which Rusbridger quotes as if they were incontestable statements of fact:
The storage capability of these systems increases every year consistently by orders of magnitude to where it’s getting to the point—you don’t have to have done anything wrong. 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 of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.
If Rusbridger had stopped there, one would inevitably conclude that he agrees with those who read Benjamin Franklin as stating that those who give up even a bit of freedom in order to have security deserve neither—that the collection of such data is wrong on principle and should be stopped.
Yet Rusbridger instead goes on to note that democracies “do have determined and resourceful enemies” against whom they need to defend themselves. And he even draws on a communitarian notion that typically troubles civil libertarians, namely that there is a need to balance the concern for the common good with the concern for liberty. And he acknowledges that “there is plainly a tension between the secrecy required in much intelligence work and … transparency.”
If one follows this line of argument one must accept that some limitations on the freedom of the press are justified. The question becomes what criteria must one employ to determine that the balance has been tipped in the wrong direction? One needs to show that the press has been too encumbered rather than playing too fast and loose with safety of the people. It’s a question civil libertarians tend to avoid. To his credit, Rusbridger raises it—but does not address it.
Instead, he is looking to determine who will render these kinds of fateful decisions, who will judge whether the publication of documents that the state has decreed top secret—i.e., those documents whose publication the state believes would be deeply damaging to national security—should be published? Rusbridger’s answer is that it is not the legislature nor the courts, and surely not the people in charge of national security, but rather the editors! Like the editors of the New York Times and Washington Post, he sees himself as fully qualified and assures us he has “gone to exceptional lengths to edit the Snowden material with caution.”