- By Thomas StackpoleThomas Stackpole is an assistant editor at Foreign Policy. A native of Martha's Vineyard, MA, he received his bachelors degree in Political Theory from Bates College, and studied at Al Akhawayn University in Morocco. Previously, he covered climate and energy for Mother Jones and politics for the New Republic and MSN News, and once sailed from Maine to the Panama Canal, where he spent at least one afternoon playing coconut bocce on a desert island.
Every day, the National Security Agency’s massive surveillance apparatus hoovers up nearly 5 billion records drawn from the location data of cell phones around the world. That’s according to the Washington Post‘s latest installment in their coverage of the documents leaked by former NSA contractor Edward Snowden.
Meanwhile, across the Atlantic, the Snowden saga has taken a very different turn. On Tuesday, Alan Rusbridger, the affable, rumpled editor of the Guardian appeared before a Parliamentary committee to testify about his paper’s articles based on the Snowden documents. Wednesday’s article in the Post about the NSA’s collection of geolocation data is one of the most aggressive articles since the Snowden documents began appearing in public. The article details specific tactics used by the NSA in utilizing cell phone data and exposes several innovative methods used by the agency in tracking its targets. It also reveals that Americans’ geolocation data are often "incidentally" hoovered up as well. Despite all this, it is all but unimaginable that Marty Baron, the editor of the Post, would be dragged before Congress and made to testify about his editorial decisions.
When he was asked on Tuesday whether he loves "this country," Alan Rusbridger, the Guardian‘s affable, rumpled editor scoffed at the question. "We live in a democracy. Most of the people working on this story are British people who have families in this country, who love this country," he said. "But yes, we are patriots, and one of the things that we are patriotic about is the nature of a democracy, and the nature of a free press, and the fact that one can, in this country, discuss and report these things."
Rusbridger was speaking before a Parliamentary hearing on the stories his paper and others have run about the documents provided by Edward Snowden. Those articles have shed unprecedented light on the massive data collection and surveillance tools employed by the National Security Agency and its allied agencies. Critics of Snowden and the papers who have run stories based on those documents have repeatedly argued that they pose a dangerous threat to national security and expose intelligence practices that they say have prevented another major terrorist attack like those of Sept. 11, 2001. On Wednesday, the Washington Post published the latest installment in their coverage of the Snowden leaks when they revealed that the NSA is gathering nearly 5 billion records every day on the location of cell phones around the world.
On Tuesday, the British government and its allies in Parliament made clear to just what lengths they may be willing to go in order to prevent additional such stories from being published. While they aren’t about to admit it outright, that response is based on large part on a doctrine known as prior restraint, aimed at suppressing material before it is published.
That’s a doctrine that’s been largely discredited and outlawed in the United States. The same can’t be said for the United Kingdom.
"Prior restraint, legally, can work two ways," Jesselyn Radack, the national security and human rights director at the Government Accountability Project, told Foreign Policy. "The first is preventing a journalist from publishing. The second is by criminally prosecuting a journalist after the publishing, because it has a chilling effect. And this hearing is an example of this kind of prior restraint." On Tuesday, it emerged directly after his testimony that Rusbridger and the journalists of the Guardian are facing a possible investigation for terrorism offenses over how they handled the trove of some 58,000 documents that they obtained from Snowden, the former NSA contractor.
Ever since the Supreme Court ruling in the Pentagon Papers case prevented the Nixon administration from blocking the New York Times and the Washington Post from publishing the government’s damning account of the Vietnam war, the idea that the U.S. government would ever step in to stop a newspaper from running an article has become a nearly inviolable principle of American media law. The government can certainly request that papers not publish sensitive stories, but they cannot legally compel them to do so.
But the brewing fight between the Guardian and the British government is showing that prior restraint is far from dead in the British Isles. While British courts still have powers of prior restraint, rather than charging the journalists outright for publishing classified material, British prosecutors may come after the Guardian for sharing its non-redacted files with the New York Times. Communicating information about British intelligence and security officials is considered a crime under the Terrorism Act. "It isn’t only about what you’ve published, it’s about what you’ve communicated," said Michael Ellis, a conservative member of Parliament. "That is what amounts, or can amount, to a criminal offence."
The fact that Rusbridger faced a line of questioning about how information was stored and transferred was evidence that a potential prosecution would focus on technical grounds, according to Radack. "Substantively it’s absurd for them to go after a journalist for the actual publishing," she said.
Ever since the initial publication of the Snowden documents, the Guardian has been under pressure from the government, said Rusbridger. Using an angle grinder and a drill, Guardian were in July forced by the British government to destroy the MacBook Pro that held the paper’s copies of the Snowden files. And it has been subject to myriad pressures to halt publication of further details. "They include prior restraint, they include a senior Whitehall official coming to see me to say: ‘There has been enough debate now,’" Rusbridger said. "They include MPs calling for the police to prosecute the editor."
But according to Rusbridger, intimidating journalists would do nothing to stop the release of secret information — it will only make those disclosures less discriminating. "These days whistleblowers are spoiled for choice. They don’t, in fact, need to ‘go’ anywhere: they can simply publish themselves," Rusbridger wrote last month in the New York Review of Books. What journalists offer, he argued, is a way for a large trove of information to be published thoughtfully and responsibly, for maximum impact and with minimum damage to legitimate national security interests.
On Tuesday, Rusbridger detailed the ways that the Guardian has exercised caution in their handling of the Snowden files. They have consulted with government agencies ranging from the White House, to the FBI, to Britain’s GCHQ, and to the Home Cabinet more than 100 times for the 26 documents the paper has published over the past six months. He also noted that the Defense Advisory Notice system, the British body responsible for flagging damage done to national security, told him that nothing in those stories put British lives at risk. More pointedly, he said that the paper refused to look at the trove as a source for outside of Snowden’s original intent. Stories about U.S. and British actions in Iraq and Afghanistan, Rusb
ridger said, were considered included off limits because they strayed beyond the scope of an over-reaching surveillance state that the leak had intended to expose.
The most pressing security problem isn’t that there are journalists that are willing to publish leaks, but rather that the lack of meaningful oversight of the surveillance state creates the will to leak it in the first place, argued Rusbridger in his closing remarks. "As long as you’ve got people amongst those hundreds of thousands of people who are so troubled that they’re going to leak these public," he said, "then you’ve got no security."