British News Staff May Face Terrorism Charges
December 5, 2013
William James and Michael Holden / Reuters & Nick Hopkins and Matthew Taylor / The Guardian
British police are examining whether Guardian newspaper staff should be investigated for terrorism offenses over their handling of data leaked by Edward Snowden. The disclosure came after Guardian editor Alan Rusbridger, summoned to give evidence at a parliamentary inquiry, was accused by lawmakers of helping terrorists by making top secret information public and sharing it with other news organizations.
British News Staff May Face Terrorism Charges
William James and Michael Holden / Reuters
LONDON (December 3 2013) -- British police are examining whether Guardian newspaper staff should be investigated for terrorism offenses over their handling of data leaked by Edward Snowden, Britain's senior counter-terrorism officer said on Tuesday.
The disclosure came after Guardian editor Alan Rusbridger, summoned to give evidence at a parliamentary inquiry, was accused by lawmakers of helping terrorists by making top secret information public and sharing it with other news organizations.
The Guardian was among several newspapers which published leaks from US spy agency contractor Snowden about mass surveillance by the National Security Agency (NSA) and Britain's eavesdropping agency GCHQ.
Assistant Commissioner Cressida Dick, who heads London's Specialist Operations unit, told lawmakers the police were looking to see whether any offenses had been committed, following the brief detention in August of a man carrying data on behalf of a Guardian journalist.
Security officials have said Snowden's data included details of British spies and its disclosure would put lives at risk. Rusbridger told the committee his paper had withheld that information from publication.
"It appears possible once we look at the material that some people may have committed offenses," Dick said. "We need to establish whether they have or they haven't."
David Miranda, the partner of journalist Glenn Greenwald who brought the Snowden leaks to world attention, was questioned under anti-terrorism law when he landed at London's Heathrow Airport en route from Berlin to Rio De Janeiro, Brazil, and computer material he was carrying was seized.
Lawmakers put it to Rusbridger that he had committed an offence under Section 58A of the Terrorism Act which says it is a crime to publish or communicate any information about members of the armed forces or intelligence services.
"It isn't only about what you've published, it's about what you've communicated. That is what amounts, or can amount, to a criminal offence," said committee member Michael Ellis.
Asked later by Ellis whether detectives were considering Section 58A offenses, Dick said: "Yes, indeed we are looking at that."
Earlier on Tuesday, the Guardian published a letter of support from Carl Bernstein, the US journalist who helped expose the Watergate scandal in the 1970s.
Bernstein, 69, said Rusbridger's appearance before the committee was a "dangerously pernicious" attempt by British authorities to shift the focus of the surveillance debate from excessive government secrecy to the conduct of the press.
During his testimony, Rusbridger defended his decision to publish the leaks and said the paper had used less than one percent of the information and kept the rest stored securely.
"We have published I think 26 documents so far out of the 58,000 we've seen, or 58,000 plus. So we have made very selective judgments about what to print," he said. "We have published no names and we have lost control of no names."
Guardian articles over the last six months have shown that the United States and some of its allies, including Britain, were monitoring phone, email and social media communications on a previously unimagined scale.
The revelations provoked diplomatic rows and stirred an international debate on civil liberties. Britain's security chiefs said the leaks were a boon to the country's enemies who were "rubbing their hands with glee".
Snowden, who is believed to have downloaded between 50,000 and 200,000 classified NSA and British government documents, is living in Russia under temporary asylum. He has been charged in the United States under the Espionage Act.
Countering criticism by lawmakers, Rusbridger said more emphasis was being given to the Guardian's decision to publish the leaks than to the fact they had been so easily obtained in the first place.
"We were told that 850,000 people ... had access to the information that a 29-year-old in Hawaii who wasn't even employed by the American government had access," he said.
(Additional reporting by Freya Berry and Silvia Antonioli; Editing by Robin Pomeroy)
(c) Thomson Reuters 2011. All rights reserved.
MPs' Questions to Alan Rusbridger:
'Do You Love this Country?'
Key extracts from the Guardian editor's appearance before the home affairs select committee over the impact of NSA leaks
LONDON (December 3, 2013) -- Transcript:
Committee chair, Keith Vaz: Some of the criticisms against you and the Guardian have been very, very personal. You and I were both born outside this country, but I love this country. Do you love this country?
Alan Rusbridger: We live in a democracy and most of the people working on this story are British people who have families in this country, who love this country. I'm slightly surprised to be asked the question but, yes, we are patriots and one of the things we are patriotic about is the nature of democracy, the nature of a free press and the fact that one can, in this country, discuss and report these things.
Vaz: So the reason why you've done this has not been to damage the country, it is to help the country understand what is going on as far as surveillance is concerned?
Rusbridger: I think there are countries, and they're not generally democracies, where the press are not free to write about these things, and where the security services do tell editors what to write, and where politicians do censor newspapers.
That's not the country that we live in, in Britain, that's not the country that America is and it's one of the things I love about this country -- is that we have that freedom to write, and report, and to think and we have some privacy, and those are the concerns which need to be balanced against national security, which no one is underestimating, and I can speak for the entire Guardian staff who live in this country that they want to be secure too.
Vaz: Thank you so much, that's very clear.
Do you accept you have broken the law?
Conservative MP Michael Ellis: Mr. Rusbridger, you authorised files stolen by [National Security Agency contractor Edward] Snowden which contained the names of intelligence staff to be communicated elsewhere. Yes or no?
Rusbridger: Well I think I've already dealt with that.
Ellis: Well if you could just answer the question.
Rusbridger: I think it's been known for six months that these documents contained names and that I shared them with the New York Times.
Ellis: Do you accept that that is a criminal offence under section 58A of the Terrorism Act, 2000?
Rusbridger: You may be a lawyer, Mr. Ellis, I'm not.
Ellis: Now 58,000 documents were sent or communicated by you -- as editor-in-chief of the Guardian you caused them to be communicated, and they contained a wealth of information. It was effectively an IT-sharing platform between the United States and the United Kingdom intelligence services wasn't it?
Rusbridger: I'll leave you to express those words.
Ellis: So you decline to answer that. Very well. But that was information which contained a wealth of data, protected data, that was both secret and even top secret under the protective classifications of this country.
Rusbridger: They were secret documents.
Ellis: Secret and top-secret documents. And do you accept that the information contained personal information that could lead to the identity even of the sexual orientation of persons working within GCHQ?
Rusbridger: The sexual orientation thing is completely new to me. If you could explain how we've done that then I'd be most interested.
Ellis: In part, from your own newspaper on 2 August, which is still available online, because you refer to the fact that GCHQ has its own Pride group for staff and I suggest to you that the data contained within the 58,000 documents also contained data that allowed your newspaper to report that information. It is therefore information now that is not any longer protected under the laws and that jeopardises those individuals, does it not?
Rusbridger: You've completely lost me Mr. Ellis. There are gay members of GCHQ, is that a surprise?
Ellis: It's not amusing Mr. Rusbridger. They shouldn't be outed by you and your newspaper.
[Brief inaudible exchange in which both men are talking]
Rusbridger: The notion of the existence of a Pride group within GCHQ, actually if you go to the Stonewall website you can find the same information there. I fail to see how that outs a single member of GCHQ.
Ellis: You said it was news to you, so you know about the Stonewall website, so it's not news to you. It was in your newspaper. What about the fact that GCHQ organised trips to Disneyland in Paris, that's also been printed in your newspaper, does that mean if you knew that, information including the family details of members of GCHQ is also within the 58,000 documents -- the security of which you have seriously jeopardised?
Rusbridger: Again, your references are lost to me. The fact that there was a family outing from GCHQ to Disneyland ... [CUT OFF]
What would you have done with the enigma code?
Ellis: Do you accept that these files contained methods of trapping cyber criminals, like paedophiles and hackers?
Rusbridger: The only story that has been identified that resembles that description is the story about Tor. I'd welcome the opportunity to talk about that.
Ellis: I would rather you didn't. I don't see any need to further publicise that information. What about the disclosure of safe houses and other safe locations?
Rusbridger: Could I refer to Tor? The point about Tor is that anybody remotely interested in this would have learned nothing from the Guardian that is not available on the Tor website, so let's get real about this. There is nothing that the Guardian has published that is endangering people in the way you talk about.
Ellis: It isn't only about what you have published, it's about what you have communicated. That is what amounts, or can amount to a criminal offence. You have caused the communication of secret documents classified as secret and top secret in this country for a reason. Not to hide them from the Guardian but to hide them from people out to harm us. If you had known about the enigma code would you have transmitted that to the Nazis?
Rusbridger: That is a well-worn red herring if you don't mind me saying so. I think that most journalists can make a distinction between the kind of thing that you're talking about -- the enigma code or the travel of troop ships.This is very well-worn material that has been dealt with by the supreme court and that you lean when you do your NCTJ [journalism training] course. So I can make those distinctions, Mr. Ellis, thank you.
Is it safe to send secret files via Fedex?
Mark Reckless: You wrote in a letter on 7 November to [the Conservative MP] Julian Smith that the Guardian hadn't published the names or identifying information for staff of our intelligence agencies, and you added that you had not used or lost control of that information. Can I clarify from your response earlier ... Did you say that you had communicated that information to the New York Times?
Rusbridger: We gave the material to the New York Times at roughly the same time that we told the cabinet secretary what we were doing and giving the cabinet secretary the name of the [nyt] editor and how to contact her.
Reckless: And you referred earlier to material given to the Washington Post not being under your control. Did the material given to the New York Times remain under your control?
Rusbridger: The material was given to the Washington Post by Edward Snowden himself, to a journalist called Barton Gellman. The material we have shared is in the joint control of myself and the editor of the New York Times.
Reckless:When you say you haven't lost control of the data at any time, does that include the periods when the data was with Fedex, which I understand you've admitted using to transfer information?
Rusbridger: No data was lost, we lost control of no data. No names have leaked from the Guardian.
Reckless: I wouldn't refer to a period that a package is with Fedex as being under my control. Is that what you are saying?
Rusbridger: I'm saying that we have not lost control of it. The reporting of Fedex was grossly exaggerated. It was reported as tens of thousands of documents, including MI5 and MI6 spies. That was not the case. It was a small amount of material relating to one story, that was encrypted to military grade, was sent safely, arrived safely and didn't involve any loss of control....
Reckless: I think you have committed a criminal offence in your response. Do you think that it would not be in the public interest for the CPS [Crown Prosecution Service] to prosecute or should it be dealt with by the authorities in the normal way?
Rusbridger: I think it depends on your view of a free press. In America, the attorney general has said within the last two weeks that, from what he had seen so far, he had no intention of prosecuting [the journalist who broke the story] Glenn Greenwald. He's gone further. He said that under his watch he will not prosecute any journalist doing their duty.
In New York this month, I debated with the former general counsel of the NSA, Stuart Baker. He distinguishes between what Snowden did and journalists do. He says once information is in the hands of journalists, it is protected material. In my reading of the DPP [director of public prosecutions] and the guidelines he laid down during the Leveson process, is that public interest will weigh very carefully and very highly in any deliberations he takes.
Guardian Will Not Be Intimidated
Over NSA Leaks, Alan Rusbridger Tells MPs
Nick Hopkins and Matthew Taylor / The Guardian
(December 3, 2013) -- The Guardian has come under concerted pressure and intimidation designed to stop it from publishing stories of huge public interest that have revealed the "staggering" scale of Britain's and America's secret surveillance programmes, the editor-in-chief of the newspaper has said.
Giving evidence to a parliamentary committee about stories based on the National Security Agency leaks from the whistleblower Edward Snowden, Alan Rusbridger said the Guardian "would not be put off by intimidation, but nor are we going to behave recklessly".
He told MPs that disclosures from the files had generated a global debate about the powers of state agencies, and the weaknesses of the laws and oversight regimes they worked within.
"In terms of the broader debate, I can't think of a story in recent times that has ricocheted around the world like this has and which has been more broadly debated in parliaments, in courts and amongst NGOs," he said.
"The roll call of people who have said there needs to be a debate about this includes three presidents of the United States, two vice-presidents, generals, the security chiefs in the US [who] are all saying this is a debate that in retrospect we had to have."
During an hour-long session in front of the home affairs select committee, Rusbridger also:
* Said the Guardian had consulted government officials and intelligence agencies -- including the FBI, GCHQ, the White House and the Cabinet Office -- on more than 100 occasions before the publication of stories.
* Said the D-Notice committee, which flags the potential damage a story might cause to national security, had said that nothing published by the Guardian had put British lives at risk.
* Argued that news organisations that had published stories from the Snowden files had performed a public service and highlighted the weakness of the scrutiny of agencies such as GCHQ and the NSA. "It's self-evident," he said. "If the president of the US calls a review of everything to do with this and that information only came to light via newspapers, then newspapers have done something oversight failed to do."
* Asked why parliament had not demanded to know how 850,000 people had been given access to the GCHQ top-secret files taken by Snowden, who was a private security contractor.
Rusbridger said the Guardian had been put under the kind of pressure to stop publishing stories that would have been inconceivable in other countries.
"They include prior restraint, they include a senior Whitehall official coming to see me to say: 'There has been enough debate now'. They include asking for the destruction of our disks. They include MPs calling for the police to prosecute the editor. So there are things that are inconceivable in the US.
"I feel that some of this activity has been designed to intimidate the Guardian."
In one curious exchange, the committee chair, Keith Vaz, asked Rusbridger if he loved his country.
"I'm slightly surprised to be asked the question," replied Rusbridger. "But, yes, we are patriots and one of the things we are patriotic about is the nature of democracy, the nature of a free press and the fact that one can in this country discuss and report these things.
"One of the things I love about this country is that we have that freedom to write, and report, and to think and we have some privacy, and those are the concerns which need to be balanced against national security, which no one is underestimating. I can speak for the entire Guardian staff who live in this country that they want to be secure too."
At one point, the MP Mark Reckless suggested a criminal offence had been committed by sharing some of the Snowden material with the New York Times.
"You have I think Mr. Rusbridger admitted a criminal offence in your response. Do you consider that it would not be in the public interest for the CPS [Crown Prosecution Service] to prosecute?"
Rusbridger replied: "I think it depends on your view of a free press."
He said the Guardian had not lost control of any of the documents and the newspaper had used "military-grade" encryption to safeguard the files.
"No data was lost, we lost control of no data. No names have leaked from the Guardian."
There was a testy set of exchanges between the editor and Michael Ellis.
The Tory MP asked Rusbridger about stories in the Guardian that revealed GCHQ had a Pride group. Ellis claimed this had endangered the security of GCHQ staff. "You've lost me," said Rusbridger. He said the details of the existence of the Pride group were publicly available on the internet.
The Guardian has published a series of stories about the mass surveillance techniques of GCHQ and its US counterpart, the NSA, over the last six months; two of the most significant programmes uncovered in the Snowden files were Prism, run by the NSA, and Tempora, which was set up by GCHQ. Between them, they allow the agencies to harvest, store and analyse data about millions of phone calls, emails and search-engine queries.
Rusbridger's answers referred to comments made to a parliamentary committee last month by the chiefs of Britain's three intelligence agencies -- Sir Iain Lobban, the director of GCHQ, Andrew Parker, the director general of MI5, and Sir John Sawers, chief of MI6. The men had claimed that the Snowden revelations had damaged national security and that terrorists were likely rubbing their hands in glee.
Asked about this, Rusbridger said: "It is important context that the editors of probably the world's leading newspapers … took virtually identical decisions. This is not a rogue newspaper. It is serious newspapers that have long experience of dealing with national security. The problem with these accusations is they tend to be very vague and not rooted in specific stories."
Rusbridger then quoted senior officials from the UK and the US who "have told me personally that there has been no damage. A member of the Senate intelligence committee said to us: 'I have been incredibly impressed by what you have done ... I have seen nothing that you have done that has caused damage."
Nick Pickles, director of Big Brother Watch, said: "Newspapers around the world, from the Guardian to the Washington Post and Der Spiegel, have done what our own parliamentary oversight committee and other oversight bodies failed to do: they exposed unprecedented surveillance being undertaken without the knowledge or approval of our elected representatives.
"Spies spy, but they should not be able to write their own rules, exploiting woefully out-of-date legislation to collect information on millions of innocent people.
"If the three intelligence chiefs had previously faced anywhere near as rigorous cross-examination then perhaps we would not have been so dependent on the Guardian and other newspapers to learn just how out of control surveillance had become."
Earlier today, the Watergate journalist and author, Carl Bernstein, wrote an open letter in which he said Rusbridger's appearance at the committee was "dangerously pernicious".
Bernstein said it was an attempt by the "highest UK authorities to shift the issue from government policies and excessive government secrecy in the United States and Great Britain to the conduct of the press".
"You are being called to testify at a moment when governments in Washington and London seem intent on erecting the most serious (and self-serving) barriers against legitimate news reporting -- especially of excessive government secrecy -- we have seen in decades," Bernstein wrote.
Yesterday the UN special raporteur on counter-terrorism and human rights, Ben Emmerson, announced he was launching an investigation into the surveillance programmes operated by GCHQ and the NSA.
He said the Guardian and other media organisations reporting the Snowden revelations had disclosed matters of genuine public interest and concern to states across the globe.
"The astonishing suggestion that this sort of journalism can be equated with aiding and abetting terrorism needs to be scotched decisively," Emmerson said. "Attacking the Guardian is an attempt to do the bidding of the services themselves, by distracting attention from the real issues."
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