In the Name of Security – Secrecy, Surveillance and Journalism

The terrorist attacks on the World Trade Center in New York on 11 September 2001 saw the start of the so-called war on terror. The aim of ‘In the Name of Security – Secrecy, Surveillance and Journalism’ is to assess the impact of surveillance and other security measures on in-depth public interest journalism. How has the global fear-driven security paradigm sparked by 11 September affected journalism?

At the core of the book sits what the authors have labeled the ‘trust us dilemma’. Governments justify passing, at times, oppressive and far-reaching anti-terror laws to keep citizens safe from terror. By doing so governments are asking the public to trust their good intentions and the integrity of the security agencies. But how can the public decide to trust the government and its agencies if it does not have access to information on which to base its decision?

‘In the Name of Security – Secrecy, Surveillance and Journalism’ takes an internationally comparative approach using case studies from the powerful intelligence-sharing group known as the Five Eyes consisting of the US, Canada, the UK, Australia and New Zealand. Chapters assessing a selection of EU countries and some of the BRICS countries provide additional and important points of comparison to the English-speaking countries that make up the Five Eyes.

• Language: English
• Publisher: Anthem Press
• Release date: May 15, 2018
• ISBN: 9781783087716

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In the Name of Security – Secrecy, Surveillance and Journalism

In the Name of Security – Secrecy, Surveillance and Journalism

Edited by

Johan Lidberg and Denis Muller

Anthem Press

An imprint of Wimbledon Publishing Company

www.anthempress.com

This edition first published in UK and USA 2018

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© 2018 Johan Lidberg and Denis Muller editorial matter and selection;

individual chapters © individual contributors

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ISBN-13: 978-1-78308-769-3 (Hbk)

ISBN-10: 1-78308-769-2 (Hbk)

This title is also available as an e-book.

CONTENTS

List of Tables

Contributors

Index

TABLES

0.1The main security and intelligence agencies in the Five Eyes group

6.1FOI laws compared access to intelligence and security agencies

10.1Total annual number of FOI requests, federal Act

10.2The Five Eyes countries and the EU, Denmark and Germany

INTRODUCTION

Johan Lidberg and Denis Muller

So where we are now is in a place where we’re living behind one-way mirrors. Corporate America and law enforcement and the national security state know so much about us and we know so little about them. We know so little about what they’re doing and how they’re doing it. And we can’t actually hold our government accountable because we truly don’t know what it’s doing. (Smith 2014, interview with Barton Gellman, journalist, Washington Post)

In the ongoing stream of events that we call history, there are events that challenge established paradigms and force a shift in the flow of history. The terrorist attacks of 11 September 2001 was one such event. The attacks on US soil by an international network of terrorists arguably provoked the greatest change in the conduct of Western democracy since the end of World War II. Simultaneously, it had an impact on global politics similar in scope to the end of the Cold War, which was marked by the collapse of the Berlin Wall in 1989.

These two events promised very different futures. The end of the Cold War promised a new, more open and peaceful world order, characterised by the democratisation of the former eastern European bloc and the end of the nuclear-deterrence mindset known as mutually assured destruction (MAD). This atmosphere of promise was abruptly shattered by the terrorist attacks of 9/11. Those events unleashed an entirely new series of wars, most of which continue to the present day. They began in 2003 as a war of pre-emption engaged in by the United States against Iraq, and continued in 2005 as a war of retribution against Afghanistan for suspected harbouring of the terrorist leaders responsible for the 9/11 attacks – particularly Osama bin Laden, the figurehead of the terrorist network al-Qaeda. These missions were launched under the political slogan the ‘war on terror’, and pushed the world into a new, fear-driven security paradigm (Schmitt 2005).

The start of the war on terror took domestic, international and legal affairs in a new direction. The challenge of keeping citizens safe from real and perceived terror threats shifted the balance between traditional liberal democratic freedoms and the protection of nations from terrorism. This meant, in most Western democracies, extending the powers of the state security apparatus at the expense of civil liberties. Some argue that this shift in balance, manifested by the unprecedented increase in anti-terror and security legislation globally, has pushed the liberal democratic world into an ongoing state of exception/emergency (Agamben 2005).

The main focus of this book is on the question of striking a balance between national security and liberal democratic freedoms and rights, such as the right to privacy, access to information, freedom of the media and a transparent and open government. A close inspection into how this balance is now being struck reveals that governments around the world are asking their citizens to trust that what the government is doing to keep citizens safe justifies the infringement of civil liberties. We call this the ‘trust us dilemma’, and it will be a recurring theme in this book. The dilemma is defined as the conflict between the core task of governments in providing security for their citizens, and the public’s freedoms and rights in liberal democracies. For democracies to function well, citizens need wide-ranging access to information. They need this in order to meaningfully participate in the political system and to hold their elected representatives to account. But when it comes to security and intelligence, broad information-sharing and access may jeopardise the objective of keeping citizens safe. Governments and security agencies have addressed this by asking the public to trust them, but what is that trust to be based on if the citizens are denied sufficient information about what is being done in the name of security? How can citizens judge whether the means are justified by reference to democratic norms without that key information? Therein lies the dilemma.

We have chosen the lens of investigative journalism to interrogate the dilemma. The core question is this: What effect has the current state of exception/emergency had on journalism and its role as an independent watchdog of the security powers of the state and the way they are used? This question is examined in the disciplines of law, journalism studies, ethics and political and international studies.

In his seminal work, Agamben traces the history of state authorities using emergency powers in the name of security back to ancient Roman times. These have included curfews, increased secret surveillance and extended policing powers, to name a few. He discusses how the state of exception/emergency has been part of human affairs in various guises throughout history, and how the conflict between security and democratic freedoms and rights came to real prominence in Europe in the 1930s and continues to be manifested in our time by the war on terror (Agamben 2005).

Agamben’s main points underpinning the state of exception can be summarised as:

1. The policy is built on, and fed by, the fear that citizens hold for their safety. The fear is not entirely rational, as statistics clearly show that the vast majority of the terror attacks do not occur in liberal democracies (Clarke 2015 ). However, an event like 9/11 shows how vulnerable democracies are to guerrilla acts of terrorism, so it is not entirely irrational.

2. In this fear-driven environment, citizens turn to the state for security and protection, and have shown themselves willing to sacrifice some of the civil liberties that have defined liberal democracies for more than a century. In the face of this fear, there is a tendency for citizens to become depoliticised around this question as their energy is focused on a perceived common enemy. The enemy may come from outside or in the form of home-grown terrorism, but it is commonly personalised in the form of some group seen as ‘outsiders’ or ‘the other’. During the 1930s, it was the Jews in Europe; now it is the Muslims.

3. The concept of independent rule of law, including equality before the law, is increasingly hollowed out. An important example of this is the abandonment of the habeas corpus principle, which states that a person detained shall be brought before a court so that the reasons for his or her being detained may be judicially tested. Extrajudicial imprisonment occurs in the US prison at Guantanamo Bay, and in Australia detainments may be imposed by the security agencies.

4. Secrecy surrounding security becomes so intense that there is no way for the public to know what is being done in the name of security. We are asked to trust the authorities (Agamben 2005 ).

Others, like Ralph, add to the state-of-exception discourse with his analysis of the legal justification used by the US Department of Justice when it argued that the perpetrators of terrorist acts should not be given enemy combatant status, and should thus be exempted from the rights extended to prisoners of war by the Geneva Convention (Ralph 2009).

An important difference between historical state-of-exception circumstances and what is happening today is the development of technological surveillance tools on a scale of breadth and intrusiveness never seen before. This makes the present state of exception very different from historical ones, given the current scope of surveillance and collection of information on citizens (Smith 2014).

The impact on the work of journalists, particularly their capacity to perform their watchdog or fourth-estate function of holding those in power to account, is considerable. The quote from Barton Gellman at the start of this introduction is from a two-part documentary called United States of Secrets produced by the Public Broadcasting Service (PBS) in the United States. The series was produced in the wake of the 2013 revelations by former National Security Agency (NSA) contractor Edward Snowden. The quote summarised, in four sentences, the core of the Snowden revelations: that the balance between secrecy and surveillance in the name of security on one side, and openness, transparency, privacy and liberal freedoms on the other had tipped in favour of secrecy and surveillance. The question remains: How far has the balance tipped?

The Role of Journalism in Liberal Democracies

There is long-standing and broad agreement among scholars that journalism, and particularly in-depth and investigative journalism, plays an important role in democracy (Schultz 1998; Christians et al. 2009; McNair 2009). As McNair points out:

The histories of journalism and democracy are closely linked. The origins of journalism, as we recognise it today, parallel the turbulent birth of the first democratic societies nearly four hundred years ago. (2009, 237)

Journalism fulfils many roles in political systems. In its watchdog role, journalism serves as a monitor of power: Are elected representatives delivering on their promises? Is public money being used responsibly? Are corporate actors good citizens? In short, the public delegates the role of overseeing societal powers to journalists on behalf of the citizens. This is a major undertaking and a great responsibility. Because of the corrupting nature of power, most people in power do not want to be disturbed in their exercise of it. Revealing what they want to keep secret requires investigation, so most watchdog journalism of significance is investigative in nature (McNair 2009; Josephi 2011).

Another function in democracies is the obligation of journalism to independently access, assess and present information to citizens who may use that information to develop informed decisions, thus giving effect to the concept of self-government (Kovach and Rosenstiel 2014).

The close, long-standing and ongoing links between journalism and democracy make journalism a particularly effective lens through which to assess the ways in which democracies have struck a balance between protecting national security and infringing civil liberties, and between allowing security agencies to perform effectively and holding them to account for the way they use their exceptional powers.

Approach and Methodology

The overall approach in the book is internationally comparative. The reason for this is that when an issue is global, and this issue is, the research questions are best studied from an internationally comparative perspective. This has, to a certain extent, always been true, but in this context it is even more pertinent because of the globalisation of journalism production and content. As Hanitzsch writes:

Over the years, comparative research has not only yielded valuable insights beyond the mere description of similarities and differences, but also contributed to our understanding of specific countries. A tradition of almost 40 years of research has revealed that news production is contingent on the cultural, political and historical contexts that shape the journalist’s work. (2009, 431)

The Five Eyes

During World War II, the United Kingdom and the United States started a deep exchange of intelligence that continued after the war and further developed, as its main focus became the growing power of the Soviet communist sphere. The ensuing Cold War was fought globally, and soon the old British Commonwealth countries (Australia, Canada and New Zealand) were incorporated into a group that became known as the Five Eyes intelligence-sharing group (Cox 2012).

Initially, signal intelligence made up the bulk of the shared data, but soon human intelligence, and lately cyber intelligence, collected via the World Wide Web were shared as well. During the Cold War, the collaboration and intelligence-sharing deepened, and as a precursor to the current global web-based surveillance dragnet operated by the group, the ECHELON signals surveillance system was developed. ECHELON remained a secret until the late 1990s when its disclosure (although never its official acknowledgement) prompted lively debate in the European parliament, and to a lesser extent in the US Congress (Radden Keefe 2006).

After the fall of the Soviet Union, there is no (known) intelligence-sharing network that can compete with the Five Eyes. For the purposes of comparative analysis relevant to this book, the fact that all members of the group are mature liberal democracies makes it an interesting prospect to map and compare how the five countries have dealt with the balance between security and democratic freedoms and rights. As we shall see, there are some quite stark differences.

As illustrated by Table 0.1, the Five Eyes countries each share a common structure for their security and intelligence agencies.

Table 0.1 The main security and intelligence agencies in the Five Eyes group

Note: CSIS has a security intelligence, not a foreign intelligence, mandate. CSIS acts as the Canadian gateway for CIA, SIS and ASIS HUMINT reporting (Cox 2012).

Further Points of Comparison

Although the Five Eyes comparison does reveal starker policy differences than expected, it was considered important to extend the international comparison beyond the Five Eyes Anglo–centric group in order to achieve a broader picture. Therefore, comparison with the economically fast-growing and increasingly influential BRICS countries (consisting of Brazil, Russia, India, China and South Africa) was considered for inclusion. After initial research, Russia and China could not be included in the assessment as the independence of their legal systems and rule of law are not robust enough compared to Brazil, India and South Africa. Including China and Russia was deemed methodologically unsound as comparing the two to the rest of the BRICS countries would be akin to comparing apples with pears. Therefore, the comparisons in this book have been reduced to BISA from BRICS. In addition, a further comparative element is provided by the inclusion of the European Union and two of its member states: Denmark and Germany. As we shall see, the assessment of these countries generated some myth-breaking results.

The methodologies employed in the book were mixed. As Neuman tell us in his seminal work Social Science Research Methods, a mixed approach using a range of methods and data points addressing the research question makes for the strongest research design (Neuman 2013). The methodologies utilised were: archival studies, case studies, meta-analysis and translation. It is worth noting here that the translation itself is considered a methodology (Toury 2012).

Chapter 6 has significant amounts of text translated from Swedish to English. Chapter 9 has translations from Portuguese to English, and Chapter 10 features a number of translations from Danish and German to English.

The Tshwane Principles

After two years of deliberations between representatives from 70 countries and 17 organisations (including several UN rapporteurs, representatives from prominent civil society groups and five academic centres), an agreement was reached on global recommendations about how to balance national security and public access to information. The agreement was reached in Tshwane, South Africa, in 2013, and therefore enshrines what have become known as the Tshwane principles. This was the first time such highly detailed international recommendations had been agreed upon. The European Parliament has adopted the principles as a set of recommendations to member-states on how to balance security and right to information (OSF 2013).

We will return to the principles in the conclusion of the book, but the following examples of some of the principles are instructive to keep in mind while reading the book:

• No government entity may be exempt from disclosure requirements – including security sector and intelligence authorities. The public also has a right to know about the existence of all security sector entities, the laws and regulations that govern them, and their budgets (Principles 5 and 10C).

• Whistleblowers in the public sector should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy. But they should have first made a reasonable effort to address the issue through official complaint mechanisms, provided that an effective mechanism exists (Principles 40, 41 and 43).

Axis of Deceit

Had the Tshwane principles regarding whistleblowing been adopted by Australia, it is conceivable that one of its most courageous whistleblowers may not have had to resign from the Office of National Assessment in the lead up to the 2003 Iraq War.Colonel Andrew Wilkie was a senior intelligence analyst that had been tasked with writing a summary of the case for Australia going to war against Iraq based on the proposition that Saddam Hussein possessed weapons of mass destruction. In the weeks and months leading up to his blowing the whistle, Wilkie became convinced that the case was far too weak to justify war. He saw it as his duty to disclose this to the public, as the government of the day would not do so and the media could not find out (Wilkie 2004).

He went public, but the government dismissed his concerns and joined the ‘coalition of the willing’ in the Iraq War. Wilkie summarised his concerns about governments using the intelligence community for political purposes in his book Axis of Deceit.His concerns have since been confirmed and vindicated by, among other sources, the UK Chilcot inquiry, which concluded that the case for war was indeed deeply flawed and deepened the war on terror to a point where it was hard to see an end (2016). The Chilcot report made it plain that the Iraq War was one of the biggest foreign policy blunders in many decades, and the world is still living with the fallout. Australia, the United States and the United Kingdom’s refusal to share with the public fully and openly the case for invading Iraq is a prime example of why this book is important. Had the media been able to report more fully on the case for war and exposed how weak the case was, a more robust public debate about the case for war would have almost certainly ensued. Whether it would have prevented the blunder is unknowable, but at least the case for war would have been subjected to proper public scrutiny.

Overview of the Book

Chapter 1, ‘The Public Privacy Conundrum – Anonymity and the Law in an Era of Mass Surveillance’, outlines the legal and technological contexts that frame the secrecy and surveillance practices discussed in subsequent chapters and discusses their implications for investigative journalism. The chapter clearly illustrates how technology has, over time, made it increasingly challenging for journalists to protect confidential sources.

In Chapter 2, ‘Undesirable Types – The Surveillance of Journalists’, the historical surveillance of Australian journalists is used as a case study to illustrate that government surveillance of journalists is nothing new. However, what becomes clear in the chapter is that historically such surveillance came nowhere close to the potential scope offered by current technology. Surveillance before the internet, mobile phones and large-scale digital tracking was much more limited.

Chapter 3, ‘Surveillance and National Security Hyper-Legislation: Calibrating Restraints on Rights with a Freedom of Expression Threshold’, outlines the consequences of Australia’s lack of explicit constitutional protection for civil and political rights, which would compel the courts or the Parliament to weigh carefully the implications for those rights of antiterror and security legislation. The authors compare this with the situation in the other four of the Five Eyes countries. The chapter closes with a discussion of how to best bring Australia in line with the other Five Eyes countries in protecting freedom of expression.

In Chapter 4, ‘The Ethics of Reporting National Security Matters’, the authors engage with the complex question of defining national security and how journalists can assess whether information they obtain is a threat to the national interest or not. Digital surveillance has increased the ethical difficulties for journalists significantly, especially in maintaining their obligations to protect the identity of confidential sources. The new national security legal regimes have also placed journalists at serious risk of prosecution for criminal offences. This confronts them with the ethical dilemma of how far they should be prepared to go in order to fulfil their obligation to provide information to the public on matters of public interest, and of holding state power to account.

Chapter 5, ‘When One Person’s Noble Whistleblower Becomes Another’s Poisonous Leaker’, tackles the age-old problem of assessing the agenda of confidential journalistic sources. Using a number of case studies from the Five Eyes countries, the author illustrates the minefield journalists have to negotiate when assessing their sources’ motives in researching stories, in particular where national security is concerned.

In Chapter 6, ‘Who Watches the Watchmen? Access to Information, Accountability and Government Secrecy’, the author compares the access-to-information regimes in the Five Eyes countries, and adds Sweden as an additional Freedom of Information (FOI) benchmark. The question addressed in this chapter connects to the trust-us dilemma outlined in the introduction. How can people trust what is done in the name of security if they cannot access information informing us what is done? This question is investigated via a comparison of how FOI laws apply to security and intelligence agencies and number of case studies in the Five Eyes countries.

Chapter 7, ‘Eyes and Ears in the Sky – Drones and Mass Surveillance’, takes a look at the latest tools and weapon in the security and intelligence communities. Making the point that drones can be used both by journalists to gather information and data and to hinder reporting. The chapter also discusses the challenges of reporting military drone strikes.

Chapter 8, ‘Looking over My Shoulder – Public Perceptions of Surveillance’, presents a meta-analysis of public opinion polls in Australia, the United States and the United Kingdom since 9/11 on issues concerning the balance between national security and civil liberties, and trust in intelligence agencies. It reveals considerable similarities in public opinion across the three countries, but also some important differences.

In Chapter 9, ‘Journalism and National Security in Three BISA Countries – Brazil, India and South Africa’, we lift the gaze outside the Five Eyes countries. The question here is how emerging economies are dealing with the balance between security and democratic freedoms. Using a number of case studies, the authors show that some steps have been taken to open up governments to greater public scrutiny, but over time, measures that started out driven by ambition to achieve best practices have tended to be watered down – a trajectory that has also been seen in more mature democracies.

Chapter 10, ‘Journalism and National Security in the European Union’, examines these same questions in parts of continental Europe. The answers are mixed. The chapter dispels the myth that Scandinavian countries have a homogenous and liberal approach to accessing national security and intelligence information, and uses a case study to illustrate how the EU can, at times, work as a mediating force, aiding the member countries in balancing national security and human rights.

Chapter 11, ‘The Security Reporter Today – Journalists and Journalism in an Age of Surveillance’, asks: How do political and media discourses construct the relationship between journalism, transparency and security in moments of uncertainty? What is the current culture of ‘security journalism’, and how do myths of journalistic identity, responsibility and authority operate within that culture? The chapter closes with a discussion about the professional identity of the security reports and how it may develop in the future.

In the last chapter, Conclusion: Journalism and the State of Exception, the trust-us dilemma is revisited using the state-of-exception framework provided by Agamben (2005). The main points made in the book chapters are used to discuss the impact on journalism and civil liberties of the hyper-surveillance we now live in, made possible by the digital technological developments of the last 15 years.

At the time this book was being completed, the United States’ 45th President, Donald Trump, was nearing the end of his first year as president. His record in business and in personal affairs, as revealed during the presidential campaign, exposed him as a man given to populism, autocracy and abuse of power. These personal and political properties have been on display in abundance during his first year in power. During the 2016 campaign, he also disclosed a clear lust for power. In a statement during the election campaign, he said in regard to the surveillance powers of the US National Security Agency (NSA), ‘I wish I had that power … man, that would be power’ (Ackerman 2016). There is a longer discussion and assessment of the rise of Trump and the effects on independent journalism and security in the conclusion.

If ever there was a time for reflection on state and corporate power, and the need for robust journalism to hold power to account, it is now.

References

Ackerman, Spencer and Ewen MacAskill. 2016. ‘Privacy Experts Fear Donald Trump Running Global Surveillance Network’. The Guardian.

Agamben, Giorgio. 2005. State of Exception. London: University of Chicago Press.

Chilcot, John. 2016. The Report of the Iraq Inquiry. London: House of Commons, United Kingdom.

Christians, Clifford, Theordore Glasser, Denis McQuail, Karle Nordenstreng and Robert White. 2009. Normative Theories of the Media: Journalism in