What is national security? what is
it predicated on? to whom to do those charged with upholding it owe their
legitimacy and accountability? These are the questions that should be the
precursors to the debate and war of words being waged in the 'NSA Gate' Parliamentary
Select Committee. Let's take a further step back and ask the equally valid
question, to what does the Select Committee owe its legitimacy? To the
parliamentary system and government as put in place by the electorate within a
'supposedly' democratic society. Next question - what are the cornerstones of a
democratic society? Answer - the freedom of speech and a free press (this goes
back to earliest legal principles as put forward by Blackstone) are necessary
to underpin the legitimacy of a democracy.
So turning to today's grandstanding by politicians we get Keith Vaz's pathetic attempt to score points by asking Alan Rusbridger 'Do you love this country?' - really! have we entered American politics and patriotism (well in terms of governmental snooping, apparently so). The further this Select Committee delves into its enquiry to its own objections, the deeper the hole it digs itself. So in terms of today's hearing we move on to Michael Ellis who offers the question of whether revealing the revealed part of the NSA documents violates section 58(1) of the Terrorism Act 2000. Rusbridger responds "you may be a lawyer Mr Ellis. I'm not" so 1:0 to Rusbridger and fairly so. It would be easy to go on but returning to Mediabeak's key point here, one may have, on the face of it, a breach of a law (which Ellis directed us to in terms of s58(1) of the Terrorism Act) insofar as that Act states:
A person commits and offence if:
(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) he possesses a document or record containing information of that kind.
BUT let's not forget s58(3) which states that:
"It is a defence for a person charged under this section to prove that he had reasonable excuse for his action or possession".
So the offence is not an absolute and surely 58(3) nods to the counterbalancing point that there may be a 'reasonable excuse' in the form of public interest and freedom of speech within the democratic process.
Politicians, conveniently, would have us believe that the Guardian has been complicit and unpatriotic in its exposure of information relating to NSA. Well if the public wants its press to suppress the fact that its' and foreign (US) governments are snooping in corners that seem disproportionate even in the wake of real and present terrorist threat, then that is a question (within the democratic process) for the public. The answer, it would appear, has been that the public has been most interested in and supportive of the information that has come to light.
What's the key question here?
Well - and consistent with the proportion/quantity/selection of what has been placed in the public domain - the real issue here is in the fact and extent of snooping and not what has been snooped. Here is (one would assume) Rusbridger's argument and the supportive arguments based on free speech and democratic principles he put to the Select Committee. The public have a right to know this (the level of snooping) is going on. That does not mean they have a right or need to know what has been snooped or a list of potential terrorists who have been snooped (and could therefore be put on notice of such snooping). So let's be boring and return to the law - Sections 58(1) goes to information 'of a kind likely to be useful' - does the fact that information is being snooped amount to actual information 'of a kind likely to be useful' - no. The point here is that what has been exposed is the level of snooping. This does not go to the actual information snooped or its usefulness. In other words, what has been exposed is not what the Act is designed to prevent.
More:
Guardian will not be intimidated
Rusbridger deflects silly questions
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