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.”
In one corner are governments asking editors not to publish highly sensitive information. In the other corner is a person who never served in the armed forces, has no training in assessing intelligence material, and has strong motives to publish the information for glory or gain. Are these the kind of people to be entrusted with making the final decision about what will or will not cause “unnecessary harm”? Even assuming that the editors of major publications act responsibly, what about all the other media?
Rusbridger explicitly addresses the question of who this group of trusted editors is to include: not just the stodgy, old-fashioned members of the club, but in effect all self-proclaimed editors who hang out the shingle, including activist advocates. Rusbridger admits that Snowden leaked to the journalist Glenn Greenwald because he comes “from a completely different kind of journalistic tradition,” generally understood as being a form of “advocacy journalism” that combines opinion with reporting. Such journalists are by definition more interested in advancing their agenda than in balanced reporting, vetting sources, and, above all, balancing the advancement of their cause with concerns for with American and British national security.
In closing, Rusbridger suggests that the problem with modern surveillance is not necessarily evil government officials but young hotshot technical types who invent new forms of surveillance that old folks—those who run the agencies or oversee them—don’t understand. Rusbridger points out that he himself had to ask for help from those more technically savvy to understand the issues. “I may be doing [Senator Dianne] Feinstein and [former U.K. Defense Secretary Malcolm] Rifkind a disservice,” Rusbridger writes, “but I suspect they would have struggled to understand the documents” leaked to the press regarding the details of what the various surveillance agencies were doing. To protect the government from the underhanded techno-subversive types, an unfettered press is needed to unmask them. In making this claim, Rusbridger seems to have in mind British MPs, who indeed have very few staffers to back them up. But the situation is different stateside, where the 24,000 staffers for members of Congress include an army of technically savvy young people within their ranks. The threat of the young techies is a novel argument that I doubt we shall hear much more about.
We do need to further debate some basic questions: Are there materials that should not be published? Who decides what these are? And what is to be done with those whose agendas lead them to publish material that is harmful to the safety of the people? And what is to be done about those who stamp classified on material they find damaging to their reputation or political fortunes—but are otherwise harmless?
Unfortunately, Alan Rusbridger has not moved us an inch closer to answer these questions. But he has helped to undermine our security and that of many others, and he is not done.