Why journalists and whistleblowers need to have a public interest defence
Response to the Law Commission Consultation Paper on the Protection of Official Data.
Alan Rusbridger
This was my response to the proposed reform of the Official Secrets Act. The Law Commission, which scrutinises UK legislation, eventually recommended a public interest defence. The British Government has refused to accept that recommendation and is proposing legislation which will punish journalists and whistleblowers. I hope some of this material will help persuade MPs to reject the proposals.
1. I was a journalist for 40 years, 20 of them spent as Editor in Chief of the Guardian. I am now Principal of Lady Margaret Hall, Oxford and Chair of the Reuters Institute for the Study of Journalism. I am on the Board of the New York-based Committee to Protect Journalists
2. During my time as editor of the Guardian we ran many stories concerning national security. We were familiar with the legal framework in the UK and US. In 2014 we were awarded the Pulitzer Prize for public service for our coverage of the Edward Snowden documents.
General
3. The Law Commission’s proposals for a new Act protecting official data could have far-reaching consequences for public debate, open government, whistle-blowing and journalism. I agree that the present collection of laws is haphazard and out of date, but I would place a different emphasis on the protection of disclosure in the public interest.
4. Two broad categories of people will be affected by any changes in the laws surrounding official secrecy: let’s call them leakers and recipients. The proposals contained in the consultation document retain, introduce or increase criminal penalties both for those who communicate information, and also for “someone who obtains and gathers information.” The latter explicitly includes journalists.
5. Leakers: There are many types of leakers, including people motivated by what might be considered “good” and “bad” reasons. We might think of “good” leakers as whistleblowers: people who feel impelled to disclose official information out of a sense of a wider public interest. Society might — at the time, or at a later date — approve of such people and the risks they are prepared to take. It does not seem to me that the Law Commission proposals adequately protect them, or acknowledge the debt we, as a society, may owe to them.
6. Much of the most valuable information that appears in the press or media is unauthorised information in which a source may have taken a risk — with his/her reputation, livelihood or even life — to disclose matters they officially should not disclose.
7. “Bad” leakers may include people who disclose information for political ends or financial reward without regard to the public interest.
8. There may be “in-between” categories of leakers. They may include some people engaged in espionage. They might include people who seek financial reward but where the end result may broadly be considered in the public interest. An example of the latter might be the Daily Telegraph paying a source a significant sum of money for the database of MPs expenses.
9. The Law Commission proposals do not allow any public interest defence which would help distinguish the motivations or public benefit from these different kinds of leakers and leaks. I think that is a mistake.
10. Recipients. I am most concerned here with the position of journalists. The Law Commission proposals retain the position whereby “espionage” can be “capable of being committed by someone who not only communicates information, but also by someone who obtains or gathers information.” The document is explicit that journalists could be prosecuted under a new Act — for simply holding secret material, never mind publishing it. This shows little understanding of, or respect for, the role of a free press. It is also explicit that
a) journalists should expect no special protection for the job they do;
b) like leakers, journalists should not be allowed to advance a public interest defence for holding or publishing information;
c) journalists could face jail sentences of up to 14 years — regardless of any public interests in their disclosures
Taken together, these seem to me to be very punitive proposals which will significantly chill free speech.
11. Furthermore, the 1911 OSA gave journalists some measure of protection because the Crown had to demonstrate that the defendant had “a purpose prejudicial to the safety or interests of the state.” It would be hard to convict most journalists on this test. The Law Commission proposals are concerned at the risk of proving damage — because of the fear that the act of demonstrating damage in court could cause more damage. But the courts are used to dealing with sensitive intelligence information using PII procedures. I cannot agree with a proposal that the government simply has to assert that the information is sufficiently secret, without any requirement to prove actual or likely damage.
12. In addition the new Act weakens the proof of damage to a test whereby the Crown now merely has to show that disclosure is “capable of damaging security and intelligence, defence or international relations.” This is far removed from the much more stringent standard agreed on by the US Supreme Court (see pars 38–40, below) in 1972.
13. The proposals regarding security seem to be at odds with other UK law, with its appropriate protections for whistle blowing in the public interest.[1]
Defining the national or public interest
14. Who decides what the “safety of interests of the state” are? The Law Commission proposals quote several authorities to suggest that the public interest, when it comes to national security, should be defined by the government of the day. This seems to me a problematic approach. A study of Official Secrets Act threats or prosecutions over time shows that the government of the day cannot be relied on as a fair arbiter of what should, or shouldn’t, be published on grounds of national security.
15. Here are some examples where the government of the day considered national security was threatened by publication (or the holding) of “secret” information:
16. ***In 1938 the government of the day attempted to use s6 of the OSA to compel Duncan Sandys MP to disclose the source of his information about the state of anti-aircraft defences around London. Sandys later became Defence Minister. Historians now take a different view of those who opposed appeasement in the 1930s.
17. *** In the 1930s Winston Churchill received numerous disclosures of secret information about Britain’s readiness for war: his sources included senior Foreign office officials and RAF officers, all of whom were in breach of the OSA. While he was not prosecuted, Sir Maurice Hankey, Secretary of the Committee of Imperial Defence, chastised Churchill in October 1937 for obtaining and gathering information from serving officers within the War Office. “[The leakers] jeopardise their official careers by their action, for a slip might prove disastrous to them.. I feel in my bones that these unofficial communications are all wrong, that the thing is infectious and subversive to discipline and that the damage done to the Services far outweighs any advantage that may accrue.”
18. *** In 1957 the Daily Sketch was threatened with prosecution if it published a photograph of a new vertical take-off aircraft. The paper did not publish. A fortnight later Duncan Sandys, by then Minister of Aviation, released pictures of it to every newspaper. The threat of prosecution was, in effect, a form of press embargo.
19. *** In 1970 the government of the day oversaw the prosecution of Jonathan Aitken, a young journalist, and Conservative parliamentary candidate together with a source, Colonel Douglas Cairns, and Brian Roberts, the editor of the Sunday Telegraph. The paper had published an article revealing a ‘secret’ Biafra War plan. “There were allegations that the trial was a political one, brought by a government infuriated by revelations that it had been less than truthful,” according to David Hooper, a leading media solicitor, in his 1987 book Official Secrets. The journalists were acquitted on the direction of the judge, Mr Justice Caulfield, who said: “It would be absurd for a government official to have the power to dictate to an editor what he should or should not publish…It may be that prosecutions under the OSA can serve as a convenient and reasonable substitute for a political trial.”[2]
20. *** The government of the day tried in 1967 to prevent the Sunday Times, under its editor, Harold Evans, from publishing a true account of the case of former MI6 agent, Kim Philby, and his life as a double agent. The Foreign Secretary at the time, George Brown, having failed to prevent publication, publicly accused Evans of being a traitor and of “giving the Russians a head start…for God’s sake stop.”[3] Since then there have been numerous books about Philby and his fellow spies. No-one now claims these were a threat to national security.
21. *** The Attorney General of the day in1975 threatened to prosecute Evans and the Sunday Times for publishing extracts from the diaries of Richard Crossman, the former Labour Minister. The Treasury Solicitor said it was “not in the public interest.” The courts disagreed.
22. It’s surely apparent from these examples that the government of the day is not necessarily the best arbiter of national security; or the public interest in disclosure; or what harm could be caused by the retention or publication of information.
23. In other high profile cases some judges have not been convinced of the danger to “national security” as argued by the State. See Lord Scarman in Sec of State v Guardian Newspapers when he disputed whether there was anything endangering national security in documents leaked by a civil servant, Sarah Tisdall (who was later jailed):
“But the evidence of danger to the security system is meagre and full of omissions. Indeed, I cannot find in the evidence any grounds which could reasonably satisfy a court that national security was endangered by the unauthorised disclosure of this document, the contents of which, if leaked, constituted no danger, to national security. We do not know, because Mr. Hastie-Smith has not told us, whether the memorandum was filed or processed in the same system as sensitive defence documents or with parliamentary or other political material. If there was a failure of procedures designed to protect national security, some explanation of the procedures and their application to this innocuous document should have been forthcoming. The Court of Appeal thought the link “blindingly obvious.” I do not; nor did Scott J. It is no part of the judge’s function to use his common sense in an attempt to fill a gap, which can be filled only by evidence. Common sense as a substitute for factual information is a dangerous weapon at any time. Most assuredly it is no foundation for the establishment of a matter of fact to the satisfaction of a court. And it is the court which has to be satisfied.”
24. This issue most commonly arises in Public Interest Immunity cases (where the government is trying to avoid having to disclose evidence on grounds of national interest/security). The following is the summary of the law by Lord Neuberger in the Binyam Mohamed case, where the government wanted to keep material about torture out of a court judgment, because the United States Government was said to have wanted this. Again it shows the courts will have the final say (whilst showing deference to the executive) if there is a legal dispute about something like this. The passage shows that courts do consider they are qualified to carry out a “balancing exercise” when considering whether to agree with a minister over declarations of where the public interest lies: “The Foreign Secretary has certified in three fully reasoned and carefully worded certificates, supported by accompanying documents, that in his opinion the inclusion of seven paragraphs in the open version of the first judgment would give rise to a real risk to national security, and that the redacted paragraphs should accordingly be redacted from the open version. The court has to decide whether to adopt or to override that view. This assessment potentially involves two steps. The first is to determine whether the publication of the redacted paragraphs would be against the national interest; the second step (which may not arise if the threat to the national interest would not exist or would be very significant) is to weigh that aspect of public interest against the public interest in the first judgment being fully open.
As to the first aspect the Foreign Secretary’s opinion that publication of the redacted paragraphs would be contrary to the national interest is that it would, albeit indirectly, enhance the risk of a successful terrorist attack within the UK. ..
In practical terms the Foreign Secretary has unrestricted access to full and open advice from his experienced advisers, both in the Foreign Office and the intelligence services. He is accordingly far better informed, as well as having far more relevant experience, than any judge for the purpose of assessing the likely attitude and actions of foreign intelligence services as a result of the publication of the redacted paragraphs, and the consequences of any such actions so far as the prevention of terrorism in this country is concerned. Nonetheless, the ultimate decision whether to include the redacted paragraphs into the open version of the first judgment is a matter for judicial, not executive, determination. …Furthermore, practically any decision of the executive is subject to judicial review, and it would seem to follow that a minister’s opinion that a document should not be disclosed in the national interest is in principle reviewable by a court.
The question whether a passage in a judgment should not be made available to the public on the sole ground that it would be contrary to the public interest is a fortiori a matter for the court….
So far as such a decision is concerned, there is a very strong presumption indeed that a judgment, containing as it does the judge’s reasons for his decision, should be fully available for all to see. In the absence of good reason to the contrary, it is axiomatic that a litigant should be able to see all the reasoning of the court in his case, that justice should be administered and dispensed openly and in public, and that the media should know, and be able to disseminate, all aspects of court proceedings…Where a minister has concluded that the public interest justifies excluding a passage from the open version of a judgment, the court must … carry out a balancing exercise.
25. There is patently a conflict of interest in expecting politicians — who may have strong reasons (both “good” and “bad”) for not wishing things to be in the public domain — to reach objective and fair judgments on what a newspaper should or should not published.
26. It is this governmental power to use the criminal law to prosecute or silence journalists which makes it insidious that a) the defendant is not entitled to a public interest defence; and b) the “public interest” is what the government (including the Attorney General) says it is.
27. Possibly the most high-profile case involving the prosecution on grounds of “national security” (as determined by the government of the day) was the Pentagon Papers case, under the Nixon administration, in 1971/2.[4] It is a useful case to consider because a) it showed how dangerous it is to rely on the government of the day to define national security; and b) because the Supreme Court came out with a ringing endorsement of the press’s duty to write about national security issues, even if the government of the day asserted that the articles caused damage to national safety.
The Pentagon Papers case
28. The case concerned The New York Times publishing a series of Defense Department documents and other information classified top secret, which outlined U.S. government policy on the war in Vietnam. These documents (the “Pentagon Papers”) had been leaked by Daniel Ellsberg, a researcher who had access to the Pentagon Papers at the Rand Corporation, a think tank serving as a consultant to the Defense Department. Ellsberg passed the documents to reporters at the Times
29. The US Government sought an injunction to prevent further publication. The questions were clearly defined: whether publishing these documents would be in the country’s interest, and whether their publication was protected by the First Amendment. On June 30, 1971, the Supreme Court decided the First Amendment protected their publication. This decision was the first of its kind by the Supreme Court, and put new weight behind freedom of the press
30. The US Government argued that the leaks were not in the public interest and would damage national security . President Nixon’s National Security Adviser, General Al Haig, described the leak as “a devastating…security breach of the greatest magnitude of anything I’ve ever seen.. It’s treasonable, there’s no question — it’s actionable, I’m absolutely certain that this violates all sorts of security laws,”
31. Vice Admiral Francis Blouin, the Pentagon’s deputy chief of naval operations for plans and policy, said in open court that “it would be a disaster to publish all of these other documents, let alone the ones that have already been published,” adding: “[A]ny intelligence organization will derive a great deal of benefit from the articles that have already been published and there is even more juicy material in the other volume
32. Solicitor General Erwin Griswold, who argued the case for the government, pointed in court to 11 specific items — which he explained more fully in a secret legal brief — that would cause “great and irreparable harm to the security of the United States.[5] “
33. That was the official view. But , in the opinion of many political observers and historians, the Pentagon Papers showed that the Vietnam War was “built on a tissue of lies.”
34. Convinced that the Pentagon Papers showed the duplicity of the United States government with respect to the Vietnam War, Ellsberg decided to approach Neil Sheehan of the Times. President Nixon told Bob Haldeman, his Chief of Staff: “ [it’s] treasonable, due to the fact that it’s aid to the enemy and it’s a release of classified documents.
35. The Nixon administration, having determined that it was against the public interest and national security to allow the information into the view, tried to injunct the NYT. By the time the case was heard by the Supreme Court the Washington Post had also published excerpts from the papers. Judge Murray Gurfein — a federal judge appointed by Nixon, had refused to Government’s petition, saying: “The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”
36. The Supreme Court debated what was meant by “damage to the national security” . . The judges supported Mr Justice Stewart’s standard which was “direct, immediate, and irreparable damage to our nation or its people.” Mr Justice Bickel had proposed a test that would permit an injunction only “when publication could be held to lead directly and almost unavoidably to a disastrous event for the country.” The tests were not dissimilar (and far removed from the weak standards of damage proposed by the Law Commission)
37. The New York Times won 6–3 . Mr Justice Black said that “in revealing the workings of government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would do.” The press had a duty, he said, “to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fever and foreign shot and shell. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”
38. Black added: The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged…The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”
39. Within twenty-four hours of the Supreme Court opinion, the US Attorney General, John N Mitchell, announced the government would be prosecuting the NYT reporter, Neil Sheehan, under the Espionage Act which, like the Law Commission proposals, allowed for no public interest defence.
40. The New York Times issued the following, powerful statement, about that intended prosecution:
41. “The indictment of Neil Sheehan for doing his job as a reporter strikes not just at one man and one newspaper but at the whole institution of the press of the United States. In deciding to seek Mr. Sheehan’s indictment, the administration in effect has challenged the right of free newspapers to search out and publish essential information without harassment and intimidation. Neil Sheehan is not a criminal. He is a newspaper reporter for the New York Times who acted in the finest tradition of American journalism. The Times published the Pentagon Papers after a thorough review by the paper’s responsible executives…because we felt it was our duty in the public interest to do so. During its effort in court to prevent publication of the Pentagon Papers, the Government asserted that dire consequences might result from disclosure of this material. The Times had carefully considered this possibility and had concluded there was no such likelihood…. What did happen was that this large and significant body of information bearing on a vital national question was made available for the first time to the American people and to historians and analysts now and in the future. The administration’s ultimately unsuccessful effort to prevent publication of the Pentagon Papers was without precedent in this country. Now the administration has gone a big step further by seeking to punish a reporter personally for his part in a major story…. The course that the administration has set for itself is dangerous. A free press is at the very heart of a free society
42. In the end the US Government decided not to prosecute Mr Sheehan. The government did, however, announce it would pursue Mr Ellsberg. Ultimately that, too, was dropped two years later when Judge William Byrne Jr. dismissed the charges against Ellsberg due to “improper government conduct,” including the Nixon administration tapping Ellsberg’s telephone and breaking into his psychiatrist’s office in search of damaging information about him.
43. The New York Times was awarded the Pulitzer Prize for its publication of the Pentagon Papers. I would argue that, today, majority opinion thinks that the Nixon administration was wrong, and that Ellsberg and the NYT performed a valuable public service.
44. The use of the Espionage Act to punish, discourage or silence reporters, has been criticised by numerous academics and authorities since the Ellsberg case. “It was meant to deal with classic espionage, not publication,” says Stephen Vladeck, a law professor at American University.
45. Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”
A Public Interest Defence?
46. The Law Commission proposals, note, correctly, that in 2012 the former DPP, Sir Keir Starmer tried to harmonise a situation whereby some potential offences by journalists carried the possibility of a public interest defence while others didn’t . The guidance — Guidelines for prosecutors on assessing the public interest in cases affecting the media — carried with it the implication that the media could, indeed, be treated differently (“principles of special application”) by virtue of their role without being “afforded special status under the criminal law”
47. The DPP guidelines include a list of criminal offences most likely to be committed in cases affecting the media: they include bribery, data protection, fraud, perverting the course of justice, RIPA and OSA. It is no longer entirely clear why there should be a distinction between these different kinds of offences in respect to a defendant being able to argue that their actions were (or they honestly believed them to be) in the public interest
48. It may have been argued in the past that Espionage or Official Secrets were qualitatively different by virtue of the extreme sensitivity and military/diplomatic nature of the work. But we no longer live in a Le Carre world of trench coats and dead letter drops. Modern intelligence agencies overwhelmingly rely on accessing the personal data of civilians being transmitted over commercial and public networks. That data may be medical, legal, journalistic, sexual, financial or political. In other words, “official secrecy” today impinges on the lives and communications of us all. Even those who wish to maintain operational secrets concede that this form of surveillance — the main tool of security agencies today — can only work with the consent of the populations whose data are being monitored; and that it is an entirely legitimate area for discussion and — within limits — disclosure.
49. It follows that there will often be fine distinctions to be made between what can — or should — be openly discussed. In a democratic society that places great premium on freedom of expression and the independence of the press it cannot be for the state alone to determine what can, and cannot, be discussed.
50. The situation is complicated further by the political nature of official secrets prosecutions. The DPP guidelines leave “the public interest” to the prosecutor’s discretion. But in national security cases the Attorney General, who is a member of the government, will direct the prosecution..[6]”
51. There are three potential solutions for the persistent perception that many OSA/Espionage cases over decades have been more about political sensitivity than actual harm to national security.:
1) To allow the judge or the juries to decide on the public interest arguments (as effectively happened in the Clive Ponting case — where a jury rejected the prosecution arguments about national security);
2) To remove the AG from any involvement in national security cases. They would be dealt with by the DPP in the same way as she would deal with any other cases — including making the same considerations for the public interest.
3) If neither 1) or 2) is to change then it seems to me essential that a defendant is allowed to make a case on the public interest — and not simply in mitigation
What is the purpose of an Official Secrets or Espionage Act?
52. I assume there are three reasons for some form of official secrets or espionage act:
a) to prevent/discourage future leaks (hence the proposed 14 year jail sentences;
b) to prevent damage to national security;
c) punishment
53. on a) the Law Commission proposals seem to me to be insufficiently conscious of the new ecosystem of publishing in a digital age. It could be argued that it was preferable, with recent high profile leaks (Wikileaks/Snowden), for the British Government to be able to have some sort of relationship of trust with the Guardian rather than no relationship at all with players on other continents. If the UK government were considered to be too draconian in pursuit of leaks/publishers in the UK this would simply have the effect of driving publication “underground” or beyond the jurisdiction. Would the Intelligence services prefer that? It is hard to believe.
54. The same considerations apply re b) With both Wikileaks and Snowden revelations, we found we could have more open and timely conversations with the US intelligence agencies and government precisely because there was a very low likelihood indeed of the US government either injuncting or prosecuting us. Those numerous conversations, we believed, helped us to publish with a greater awareness of any potential damage that publication might cause
55. The US attitude was well expressed by the former NSA General Counsel, Stewart Baker, who, in a public debate in New York in 2013, said: “look, once the stuff is in the hands of journalists, the journalists are absolutely protected. But if I met Snowden tomorrow he’d be in jail for the rest of his life’.” Seeking to criminalise and punish journalists — and making insufficient distinction as to the (distinct) duties and responsibilities of the media — may, in other words, be counter-productive in terms of damage
A whistleblower channel?
56. The Law Commission proposals suggest that there should be official channels through which a potential whistleblower should be able to raise concerns. It is desirable that such channels should exist, but the treatment of past whistleblowers is not generally encouraging. It may be naive to imagine that the sorts of concerns raised in recent years would be considered seriously and without any form of retribution on the person raising them.
57. Only recently the Chief executive of Barclays Bank, Jes Staley, could not resist trying to uncover the identity of a whistleblower who raised concerns about a former colleague Mr Staley had hired.[7]
58. I would attach more weight to Lord Hope, quoted at 6.42: “There must, as I have said, be some doubt as to whether a whistle-blower who believes that he has good grounds for asserting that abuses are being perpetrated by the security or intelligence services will be able to persuade those to whom he can make disclosures to take his allegations seriously, to persevere with them and to effect the changes which, if there is substance in them, are necessary
59. It is worth, by way of example, considering the cases of Bill Binney and Thomas Drake, both senior and highly respected former NSA employees who raised grave concerns about the scale of post 9/11 warrantless domestic surveillance. There is a valuable narrative about these figures written by Jane Mayer in the New Yorker of May 23 2011[8]
60. On October 31, 2001, soon after Binney concluded that the N.S.A. was headed in an unethical direction, he retired after 36 years with the NSA. He confided his concerns about the secret surveillance program to Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the agency
61. According to Mayer [NSA Director] General Michael Hayden “was furious about this back channel. After learning that Binney had attended a meeting with Roark at which N.S.A. employees complained about Trailblazer, Hayden dressed down the critics. He then sent out an agency-wide memo, in which he warned that several “individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow. . . . Actions contrary to our decisions will have a serious adverse effect on our efforts to transform N.S.A., and I cannot tolerate them.”
62. Roark raised potential illegalities with the appropriate people in Congress, Nothing changed. She says Hayden asked her to stop raising worries about the program. She was later interrogated by the FBI after details of the illegal program were reported in December 2005 in the New York Times by James Risen and Eric Lichtblau.
63. Thomas Drake says he, too, raised concerns about illegalities with Maureen Baginski, the chief of the Signals Intelligence Directorate at the N.S.A., and the agency’s third-highest-ranking official, and, subsequently the agency’s top lawyer, who said ; “It’s none of your business.” He also briefed Roark before providing Congress with top-secret documents chronicling the NSA’s shortcomings. He also took them to the NSA Inspector General.
64. Drake, who finally took his material to a reporter, eventually became the subject of a ten-count indictment under the Espionage Act, potentially condemning him to 35 years in jail. In the wake of further exposures the US Government dropped all charges against Drake.
65. Risen and Lichtblau were awarded the Pulitzer prize for their work. Drake was awarded the 2011 Ridenhour Prize[9] for courage in truth-telling. In his acceptance speech he insisted that the government’s prosecution was intent “not on serving justice, but on meting out retaliation, reprisal and retribution for the purpose of relentlessly punishing a whistleblower,” and on warning potential whistleblowers that “not only can you lose your job but also your very freedom.” Dissent, he added, “has become the mark of a traitor…. as an American, I will not live in silence to cover for the government’s sins.”
66. A disturbing new angle on the treatment of Drake by the NSA was provided by a former Assistant Inspector general at the NSA, John Crane. The Office of Special Counsel, the US agency charged with investigating such matters, concluded in March of 2016 that there was a “substantial likelihood” that Crane’s accusations were well-founded.
67. During dozens of hours of interviews, Crane told the writer Mark Hertsgaard how senior Defense Department officials repeatedly broke the law to persecute Drake. First, he alleged, they revealed Drake’s identity to the Justice Department; then they withheld (and perhaps destroyed) evidence after Drake was indicted; finally, they lied about all this to a federal judge.[10]
The case of Edward Snowden
68. Many of these concerns and themes arise in the case of Edward Snowden.
69. Snowden says he was deterred from using internal whistleblower mechanisms within the NSA by the example of what happened to Drake and Rourke. Snowden cited Drake’s case as a reason for his lack of faith in the government’s official whistleblower channels. “When I was at NSA, everybody knew that for anything more serious than workplace harassment, going through the official process was a career-ender at best. It’s part of the culture,” Snowden told the Guardian. “[11]If your boss in the mailroom lies on his timesheets, the Inspector General might look into it. But if you’re Thomas Drake, and you find out the president of the United States ordered the warrantless wiretapping of everyone in the country, what’s the IG going to do? They’re going to flush it, and you with it.
70. The broad facts of the Snowden story need not be rehearsed. To many in the intelligence community he is a traitor who damaged national security. To many in business, civil liberties, journalism, academia, technology and politics he is a hero. Some people have suggested he be executed. Others have suggested he should receive the Nobel Peace prize. There is, therefore, no one agreed public interest. The question of who would get to determine the public interest in any legal proceedings is thus an acute one.
71. The US Law — which the Law Commission proposals would essentially replicate — is that , were he to return to the USA, he would be charged under the Espionage Act (though no-one has made a convincing case that he was engaged in espionage). He would not be able to make any public interest argument. The “public interest” would solely be determined by the state. He would face a very long time in jail. The law, in other words, would not reflect the multiple ways in which society at large looks at Snowden’s actions.[12]
72. I will leave it to others to make the case against him. An argument for the importance of his disclosures was well summarized by Lord MacDonald, former Director of Public Prosecutions, in a CPS Lecture, in which he warned: “We need to take very great care not to fall into a way of life in which freedom’s back is broken by the relentless pressure of a security State….technology… gives the State enormous powers of access to knowledge and information about each one of us. And the ability to collect and store it at will. Every second of every day, in everything we do… we need to understand that it is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible. They will be with us forever. And they in turn will be built upon. So we should take very great care to imagine the world we are creating before we build it. We might end up living with something we can’t bear”.
73. This sort of vastly important societal issue is not one which an NSA whistle blower channel would be well-placed to deal with.
74. In the words of John Lloyd, in his 2017 book Journalism in an Age of Terror: “MacDonald conjured up the “slippery slope”; the view that legislation, and the acts of police, intelligence services and the decisions of the courts based on the legislation, will make the state steadily less liberal and more authoritarian, each descent from the main tenets of a liberal order accelerating the shift to an intolerant and repressive state. It’s one of the most important elements in the coverage of the response to terrorism, and in particular in the response to Snowden, since its power proceeds as much from an implicit fear as an explicit threat — a fear that illiberality has a momentum which, beyond a certain point, will be both unstoppable and empowering of a governing and security class who together cow the population in the name of protection from an evil whose force is exaggerated in order to support the security state.”
75. Even from leading members of the British coalition government there was strong support for the Guardian’s publication of the Snowden material . For instance, the Business Secretary, Vince Cable, said on October 11 2013: “I think the Guardian has done a very considerable public service … The conclusion which Nick Clegg came to, and set out this morning, is that we do need to have proper political oversight of the intelligence services and arguably we haven’t until now. What they [the Guardian] did was, as journalists, entirely correct and right…There’s the Guardian acting as a newspaper, bringing things to public attention, things that shouldn’t have happened that did happen, and they have brought that out. That’s their role, and they have done that very well and courageously[13]
76. The Deputy Prime Minister, Nick Clegg, wrote in his autobiography “The whole security establishment, backed by Number 10, the Home Office and all Conservative minister, focused exclusively on the man and not the ball, working themselves up into a lather of indignation at his personal conduct, rather than grappling with the wider issues that his revelations clearly raised. …I, however, believed from the outset that the Snowden revelations had simply exposed something that I had long felt to be the case: that the laws and rules governing the deployment of surveillance techniques, and the manner in which surveillance powers were held to account, were being outpaced by huge technological change…[it was] a debate that urgently needed addressing.”
77. The subsequent inquiries, court cases and responses following on from the Snowden disclosures included the following:
A. Dec. 2013: District court rules Section 215 program exposed by Snowden “likely unconstitutional” (and “almost Orwellian”):
https://www.theguardian.com/world/2013/dec/16/nsa-phone-surveillance-likely-unconstitutional-judge
B. Dec. 2013: Presidential review group issues a report with 46 recommendations for reforming U.S. intelligence practices:
C. January 2014: Obama implements Presidential Policy Guidance 28, Imposing some restraints on the collection of non-Americans’ data:
D. Feb. 2015: Investigatory Powers Tribunal rules GCHQ-NSA data-sharing agreement violated human rights for seven years:
https://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa
E. May 2015: Federal appeals court rules Section 215 program illegal:
F. June 2015: Freedom Act passes, ending government’s bulk collection of domestic phone calls (after sunset of Section 215). This is the first time Congress restrains U.S. surveillance powers since the 1970s:
http://www.nbcnews.com/storyline/nsa-snooping/senate-vote-measure-reform-nsa-surveillance-n368341
G. February 2016: Obama signs the Judicial Redress Act, giving citizens of some countries recourse to challenge the mishandling of their personal information in U.S. courts:
H. April 2016: NSA Chief James Clapper credits Snowden with advancing the sophistication of commercial encryption “by seven years”:
http://www.newsweek.com/snowden-sped-encryption-seven-years-452688
I. May 2016: Attorney General Eric Holder says Snowden performed a public service:
http://www.cnn.com/2016/05/30/politics/axe-files-axelrod-eric-holder/
J. June 2016: Congress blocks measure to grant law enforcement warrantless access to online records of terror suspects:
K. October 2016: Microsoft’s Brad Smith credits Snowden for waking tech industry up to privacy concerns:
L. October 2016: ECJ invalidates safe harbor agreement in light of 702 programs:
M. November 2016: Former staffers to Senate Church Committee urge leniency for Snowden, citing benefits of his actions, the care he took, and leniency extended to others (like Petraeus) who disclosed classified information:
https://www.brennancenter.org/sites/default/files/news/Snowden_memo.pdf
N. In November 2014, in the cases of Belhaj & Boudchar v Security Service and others, the UK Government admitted intercepting legally privileged material. In June 2015, in a legal action brought by Amnesty International, Liberty and others against the UK Government, it was found that GCHQ had acted unlawfully in handling intercepted communications data, when it was revealed that two human rights organisations, including Amnesty International, had been targeted
O. In February 2015, the Investigatory Powers Tribunal held that GCHQ acted unlawfully by accessing millions of private communications, as collected in bulk in the US, prior to December 2014
78. A fair-minded reader might — in addition to the above multiple and significant consequences of the Snowden revelations — make a list of the public interests raised by Snowden. They would include:
79. Consent. Should citizens be allowed to know about the new technologies which have been deployed since the beginning of this century to collect, store and analyse every byte of their digital lives?
80. Parliamentary approval. Should MPs have had a say before these new mass databases and collection techniques were implemented?
81. Legality. Most of the laws under which this activity happens were passed in an age of crocodile clips and copper wires. Is it right that analogue laws should be stretched to cover digital spying? Were the actions of Western intelligence agencies legal and/.or constitutional?
82. The private sector. Much intelligence nowadays piggy-backs on the capabilities of private technology and telecom companies. How many of these companies went beyond what they were legally required to do? Do their customers and shareholders have a right to know how their information is shared behind users’/subscribers’ backs and on what legal (or voluntary) basis?
83. The integrity of the web itself. There is evidence that the basic security of the digital platforms used by all of us has been weakened for the benefit of the NSA. Cryptologists, business leaders and privacy experts have been appalled to learn about what the NSA and GCHQ have been up to. Do Sir Tim Berners-Lee’s views on the web count as much as the spies’?
84. The risk to the digital economy. US and UK digital entrepreneurs are gravely concerned at a potential backlash against western tech companies which, it’s estimated, could cost them tens of billions of dollars over the next few years.
85. Relationships with friendly governments and institutions. The US has also promised to stop spying on other allies through membership of some international civil institutions. When is it right to spy on our friends — and do we mind when they spy on us?
86. Has everyone in the intelligence agencies told the truth and behaved legally within their own frameworks? Several members of Congress doubted this. Declassified documents released from the Fisa courts show repeated violations by the NSA
87. Privacy. The collection of billions of digital and telephonic events a day represents the most staggering potential invasion of privacy in history. Security advocates paint this in a benign light, saying that it is merely ‘metadata’, which they compare to old-fashioned phone billing records. Privacy experts vigorously dispute this and say that metadata gives a near-complete picture of an individual’s life. What are the implications for medical, financial, journalistic, legal and sexual records and general individual privacy?
88. Proportionality. Is there convincing evidence that bulk data collection and storage is necessary and proportionate? Security chiefs insist yes. At least three US intelligence oversight senators say they haven’t seen such evidence. Ditto a federal judge. President Obama’s own review panel expresses outright scepticism.
89. Security of information. Giant American governmental databases have quite spectacularly leaked three times in the past four years (Manning, Snowden, Office of Personnel Management, Wikileaks). Given that it appears to be impossible to keep the state’s most secret secrets secure, why should we trust any state database with our most private information?
90. Thanks to the Snowden revelations business leaders, technologists, politicians and voters were able to have a more informed discussion about these, and other issues. The British government responded by openly asking for — and receiving — enhanced powers. These seen to me considerable positives. They should be weighed against any claims by the State of damage to national security. But the State is self-evidently not the body which is well-placed to conduct that balancing exercise.
The response to the Snowden reporting
91. The Guardian and Washington Post jointly won the Pulitzer Prize for their reporting of the Snowden material, along with numerous other journalistic and humanitarian awards around the world.
92. Responses from leading editors-in-chief of serious news organizations around the world are included in the Appendix, below.
93. I have quoted this material at length — and this a small fraction of the support the Guardian received around the world for its actions — to show how many serious people considered that there was a very considerable public interest in publication.
94. It is difficult to contend that there was no public interest in the Snowden revelations. On the contrary, numerous courts, legislators, academics, business leaders and distinguished journalists agreed that the articles raised matters of extreme significance. The charge was that, in making the disclosures, the newspapers had also damaged national security. A law which fails to acknowledge this balance and to allow the arguments on both sides to be ventilated is, to my mind, a poor law.
95. There is little doubt that, had the Guardian been prosecuted, many of these figures — and more — would have supported the paper and questioned the legitimacy of the laws under which we were being prosecuted. It seems to me that the Law Commission proposals as they stand would make it likely that, in future, editors who behaved as I did would be prosecuted and jailed. I think this would bring British law into international contempt.[14].
Conclusion
96. The Law Commission proposals suggest an Act which would effectively give the State the sole power to determine whether publication of the Snowden material served any kind of public interest. An editor would not be able to plead any kind of public interest in his/her defence, even if there was a palpable public interest in publication. They could be sent to jail for 14 years.
97. This does not seem to be a very enlightened proposal or one which takes into account serious arguments about freedom of expression, the independent role of the press or of the significant public interest in publication or scrutinizing national security issues. It seems to be an retrograde step and a missed opportunity
98. I should finally like to place on record that I was, of course, aware of the possibility that I could have been prosecuted by the British government — and indeed received veiled warnings to that effect at the time of publication. It is a matter of public record that the Metropolitan Police began an investigation into our behaviour, urged on by members of parliament of the same party as the government of the day.[15]
99. Having read a large proportion of the Snowden material and taken widespread advice I went ahead with publication, knowing I could face a jail sentence. The prospect of serving a longer period in jail would not in the least have deterred me.
100. If the British government had, at an early stage, launched a prosecution against myself and the Guardian it is certain that the material — which was in other hands around the world — would have continued to be published. The intelligences agencies would have had virtually no power (through conversations or contacts or the DA Notice system) to make representations about possible harm in publication. And the next time a whistleblower emerged he/she would certainly avoid any mainstream British publication and either share the material with a foreign publication or website — or else publish it themselves. Is this really the outcome the government or the Law Commission desires?
APPENDIX
Reaction to the Guardian’s reporting of the Snowden documents from leading editors of serious newspapers around the world
1. Editors from most of the leading serious newspapers around the world supported the Guardian’s publication of Snowden material[16] The following are messages sent by the leading editorial figures in the most admired publishing houses in America, Europe, India and Australia — some of them countries with recent history of communism or fascism. I reproduce them at some length to show that the revelations in the Guardian were — amongst serious newspapers around the world — overwhelmingly seen as in the public interest.
2. * In a democracy, the press plays a vital role in informing the public and holding those in power accountable. The NSA has vast intelligence-gathering powers and capabilities and its role in society is an important subject for responsible newsgathering organisations such as the New York Times and the Guardian. A public debate about the proper perimeters for eavesdropping by intelligence agencies is healthy for the public and necessary. Jill Abramson, Executive editor NYT
3. * Journalists have only one responsibility: to keep their readers informed and educated about whatever their government is doing on their behalf — and first and foremost on security and intelligence organisations, which by their nature infringe on civil liberties. The Snowden revelations, and their publication by the Guardian, have been a prime example of fearlessly exercising this journalistic responsibility. Aluf Benn, editor-in-chief, Haaretz
4. * The decision by Edward Snowden to leak to the media an important amount of top-secret documents showing the unprecedented reach of electronic surveillance was a historic event. It has raised major questions on the control of the internet, on the balance between counter-terrorism and civil liberties, on the oversight of intelligence activities by democratic institutions. Sylvie Kauffmann, editorial director, Le Monde, France
5. * When a newspaper prints a story, or a series of stories, such as the Snowden case, the first attacks are always aimed at its editors and publishers. State or homeland security reasons are always claimed. Javier Moreno, director, El País, Spain
6. * I have just been reading Tim Weiner’s history of the CIA, Legacy of Ashes, which is heavily based on leaked and declassified government documents. Over and again, one is struck by how poorly Americans’ interests have been served by secrecy — and by the folly, misjudgment, and abuse of power that might have been prevented by public knowledge. One does not have to admire Julian Assange or Edward Snowden to recognise that their revelations, filtered by scrupulous journalists, have served the fundamental democratic interest of knowing what our governments are up to and how they may be abridging our rights. Jacob Weisberg, chairman the Slate Group
7. * The Snowden affair, one day, will be understood as a historic milestone at which democratic societies began to realize that the political cost of new technologies still needed to be negotiated. Hans-Magnus Enzensberger, one of Germany’s last great intellectuals and certainly not a leftist, sees it as a transition to a post-democratic society. And had the Snowden files not opened our eyes to this transition already, the way how the current debate about these documents unfolds, certainly did. These revelations are not only about secret services, but just as much about all the new social touchpoints of every citizen who is equipped with a smartphone and online access: Who controls and analyses these touchpoints and why? Is it so difficult to understand that in a world in which — according to Eric Schmidt’s concise formulation — the digital self not only mirrors but substitutes our true selves, all these issues become questions of human rights? Frank Schirrmacher, publisher, Frankfurter Allgemeine Zeitung, Germany
8. * There is a superficial appeal in the argument that intelligence “professionals” know better than editors what information must be suppressed, even if it has already escaped their control. Particularly in this time of terror, much of the public is impressed by that argument and so are American attorneys and judges, causing David Rudenstine of Cardozo Law School to name this the “age of deference.”
* Such deference was evident also when the Pentagon Papers case reached our Supreme Court. The Chief Justice compared the papers to the “White House silver,” which, had it come into our possession we would have surely returned. Other justices felt that even if the Constitution prevented our being censored, we deserved to be prosecuted under Espionage statutes for aiding the enemy.
*Arrogant though it sounds, the fact is that experienced editors and correspondents who deal daily in the subject matter of “national security” know better than most judges and prosecutors whether a given piece of information could seriously threaten lives or damage national defence. Moreover, if in doubt, we have usually asked officials to demonstrate the danger of publication and in a minority of cases accepted their argument. But we have demanded persuasive argument that distinguishes between a genuine threat and mere bureaucratic embarrassment or inconvenience.” Max Frankel, former executive editor, The New York Times
9. *It is journalism’s most noble duty to write about and to describe what exists in our world. Our second duty is to add context to and to comment and to evaluate that which exists in our world. If it is a journalist’s duty, however, to describe what exists, then this inherently implies the duty to write about those things and events about which certain humans and institutions do not want us to write about. This tends to be case whenever journalists write about the activities of secret services and it was the case during these last weeks when The Guardian, the New York Times or Süddeutsche Zeitung have written about the British secret services, most especially about GCHQ.Wolfgang Krach, deputy editor in chief, Sueddeutsche Zeitung, Germany
10. *The accusations of “irresponsibility” [claimed about] to the Guardian sound familiar to my ears. La Repubblica repeatedly received this kind of allegations too, after the numerous investigative reportings that we published to reveal Silvio Berlusconi’s network of corruption, abuse of power and manipulations during the many years in which he was at the head of the Italian government. We have been accused too of publishing documents, official wiretappings and revelations that — according to Silvio Berlusconi and his supporters — should have been kept secret, confidential, hidden. But the role of a free press in a democratic country is to be the guardians — not the spokesmen — of power. Media is part of the check and balances system of an healthy democracy and they would betray their duty if they only reported what the power considers legitimate to reveal to the public opinion. Ezio Mauro, editor-in-chief, La Repubblica, Italy
11. *Intelligence agencies in the United States and elsewhere have acquired enormous capacity to monitor the communications of their countries’ citizens, residents, and those who live elsewhere. While the purpose is counterterrorism and other foreign intelligence, surveillance of such massive scale has sharply eroded the privacy that many citizens feel they are entitled to enjoy in a democracy that respects individual liberties.
*Citizens in a democracy are given the right to decide for themselves how to strike the proper balance between privacy and national security. They cannot do so, however, unless they know what their government is doing. A highly intrusive surveillance apparatus has been built without public knowledge and public debate. Martin Baron, executive editor, the Washington Post, US
12. * The question I would pose to citizens of free societies, and in particular to editors who join governments in denouncing the careful publication of secrets: which of the recent stories would you prefer not to know? Would you prefer not to be told how questionable intelligence led the United States and its allies into a misbegotten war in Iraq? Would you prefer to be ignorant of the existence of secret prisons, and the practice of torture? Would you really rather not know the extent of eavesdropping by governments or private contractors, and the safeguards or lack of safeguards against abuses of these powers? Democracy rests on the informed consent of the governed. Editors’ highest responsibility is to assure that it is as informed as possible .Bill Keller, former executive editor, the New York Times
13. *The position of Neue Zürcher Zeitung on publishing sensitive material is always based on journalistic, ethical and legal considerations. We do not accept intervention by third parties — neither private nor by the government. We consider public interest higher than state interest as a principle, however, and respect our responsibility to safeguard professionalism in investigation, analysis and judgment — based on our core values as a quality brand. It is clear that MI5 has by logic another agenda than the Guardian. In a functioning democracy, however, both sides are entitled to do their jobs within the framework of legality and their professional duties.
Markus Spillmann, editor-in-chief, Neue Zürcher Zeitung, Switzerland
14. *We fully support the Guardian’s relentless disclosures of secret services’ abuses of power and widespread spying on citizens, domestically as well as abroad. For many months now, the Guardian has been subject to unprecedented pressure by the British government, in order to discourage its reporters and editors from pursuing such stories. We are convinced that, in this case, the national security argument is largely overused; since the revealed massive surveillance of people cannot be justified by the war on terror.Piotr Stasinski, deputy editor-in-chief, Gazeta Wyborcza
15. *Edward Snowden’s release of an unprecedented mass of classified material on the NSA’s and GCHQ’s mass surveillance programmes and technologies, and their publication by the Guardian, have triggered a lively and important debate round the world, including in India — a country that is directly affected by this surveillance. The debate is essentially about the limits of surveillance carried out amid whole populations, domestic and external, by intelligence agencies in the name of the global war against terrorism. It raises urgent questions about accountability, and the absence of adequate lawful oversight over the mass surveillance programmes. N. Ram, former editor-in-chief, the Hindu
16. *The Guardian did what newspapers were invented to do: to make well-reasoned editorial judgments — in this case to reveal an abuse of power by American and British intelligence agencies on a scale which most people would have regarded unthinkable.
In my 28 years as a journalist, I cannot think of a single topic that would have been more justified being debated publicly in a democratic society than Edward Snowden’s, Glenn Greenwald’s and the Guardian’s revelations of these last few months. The former editor of the New York Times once said, it’s not their primary task to deliver news but to provide judgment. The Guardian provided both and did it brilliantly. Armin Wolf, deputy editor-in-chief, ORF-TV, Austria
17. *With the publication of the documents made available by Edward Snowden, the Guardian helps to inform the world about the surveillance by intelligence services such as the GCHQ or the NSA. We fully support the Guardian’s efforts and are concerned about the threats the media organization is facing. We, as journalists, do not accept intervention by third parties. We have to stick to our professional ethics. The Snowden story is a milestone in professional journalism. Alexandra Föderl-Schmid, editor in chief, Der Standard
18. *Our own newspaper archives are littered with recent examples of how powerful politicians, agencies and individuals have acted against the public interest … almost always claiming at the time they were doing the right thing. No doubt, the test to determine what is in the public interest is a burdensome and serious responsibility for editors — and often has huge ramifications. But the debate should always be viewed with a bias towards exposing the truth, and giving our audience and communities as much information as possible. Darren Goodsir, editor-in-chief, Sydney Morning Herald and Sun-Herald
19. *From the Pentagon Papers on, there is a whole history of authority crying wolf. I don’t know if this is another. What I do know is that the current attacks on The Guardian echo those levelled at the Sunday Times in a number of investigations. We took national security as seriously as anyone but over 14 years the barriers erected against legitimate inquiry on grounds of national security — reporting, not document dumps — proved spurious or self-serving. ..at a deeper level it hints at a profound and alarming complacency about the roles of media and government. Hell, let’s not ask questions at all. Let’s not scrutinise those with the power and ability to carry out widespread surveillance on their own citizens. Let’s keep the public in the dark, rather than serving their right to know. And when the state acts unlawfully, let us look the other way. Then we will truly have the society our enemies wish upon us. Sir Harold Evans, former editor of the Sunday Times.
1. [1] Under the Enterprise and Regulatory Reform Act 2013 an employee can demonstrate a reasonable belief that their disclosure is “made in the public interest.”
[2] David Hooper, Official Secrets, Secker and Warburg 1987: several examples here are taken from his book
[3] Good Times, Bad Times by Harold Evans, 1983 George Weidenfeld & Nicolson
[4] This narrative is adopted from Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (2013) by James Goodale, chief counsel for the Times during the Pentagon Papers case.
[5] [Writing in the Washington Post 15 years later, Griswold conceded: “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat.”]
[6] 4(b)1 of the DPP guidelines state: “The offences most likely to give rise to national security considerations require the Attorney General’s consent to a prosecution July 2009 Protocol between the Attorney General and the Prosecuting Departments
[7] https://www.ft.com/content/155df86c-1db8-11e7-b7d3-163f5a7f229c
[8] http://www.newyorker.com/magazine/2011/05/23/the-secret-sharer
[9] http://www.ridenhour.org/prizes_truth-telling_2011.html
2. [10] https://www.theguardian.com/us-news/2016/may/22/how-pentagon-punished-nsa-whistleblowers. The charges appear in Hertsgaard’s 2016 book, Bravehearts: Whistle Blowing in the Age of Snowden (Hot Books/Skyhorse)
[11] https://www.theguardian.com/us-news/2016/may/22/snowden-whistleblower-protections-john-crane
1. [12] An Economist Poll in January 2017 found that 29 per cent of Americans wanted to see Snowden prosecuted against 30 per cent who would liked President Obama to pardon him.
[13] https://www.theguardian.com/media/2013/oct/11/guardian-correct-publish-nsa-vince-cable
[14] I note that at 1.9 the Law Comission states that it seeks to “ensure public confidence” in its proposals.
[15] http://www.pressgazette.co.uk/metropolitan-police-confirm-investigation-guardian-over-snowden-leak-files-letter-tory-mp/
[16] https://www.theguardian.com/world/2013/oct/10/guardian-democracy-editors
