The loss making (left of centre) Guardian newspaper is now lucky if it can sell 200,000 copies daily, a fraction of its tabloid or even "highbrow" rivals. It does, however, have a big influence online, but again mostly worldwide, rather than directly in the UK, where it cannot compete with, say, the right of centre / populist tabloid The Daily Mail.
The Guardian is one of the few organisations which still does real investigative journalism in the UK, especially when compared with broadcast media or their jealous commercial newspaper rivals . It has been one of the main conduits of leaks about the US National Security Agency (NSA) and the UK's GCHQ intelligence agencies via former CIA / NSA / Dell / Booz Allen Hamilton contractor Edward Snowden, since June 2013.
It is one of the main opinion forming newspapers read by the Westminster village of MPs and rival political journalists, by Whitehall bureaucrats and government politicians.
The current editor is Alan Rusbridger, who has been kind enough to say that Spy Blog is a useful resource.
On Tuesday 3rd December 2013, the House of Commons Home Affairs Committee, took the unusual step of "inviting" / ordering the Editor of The Guardian, Alan Rusbridger to give oral evidence before the Committee, nominally as part of its often repeated, but frequently ineffective inquires into Counter Terrorism.
The Home Affairs Select Committee is supposed to be acting on behalf of the public, to scrutinise the vast and powerful securocrat empires.
Civil servants can claim some measure of protection by getting their Minister's to appear before a Select Committee, citing the "unofficial" but nevertheless precedent setting Osmotherly Rules, there is nothing to protect ordinary or eminent members of the public from being abused by a Select Committee whose members choose to conduct McCarthy style public witch hunts, to try to trap invited / compelled witnesses into "confessions" of disloyalty or criminality, even when there has been no such investigation or accusation by the police etc.
The transcript of the session is now online and only reinforces the impression of incompetence and malice which some of the MPs (both Conservative and Labour) displayed, which has caused some damage to the reputations of those MPs themselves and, by extension to Select Committees and to Parliament.
If, you are a member of the public, regardless of how famous or eminent you are and you are "invited" to appear before the Home Affairs Committee as a witness, you should seek legal advice and given the disgraceful Questions posed of some of the MPs to Alan Rusbridger, you should seriously consider refusing to appear.
The Members present were:
Keith Vaz (Chair) - Labour, Leicester East
Ian Austin - Labour, Dudley North
Nicola Blackwood - Conservative, Oxford West and Abingdon
Michael Ellis - Conservative, Northampton North
Paul Flynn - Labour, Newport West
Dr Julian Huppert - Liberal Democrat, Cambridge
Yasmin Qureshi - Labour, Bolton South East
Mark Reckless - Conservative, Rochester & Strood
Mr David Winnick - Labour, Walsall North
Below is the lengthy (uncorrected) transcript with some Spy Blog annotations:
Witness: Alan Rusbridger, Editor, The Guardian, gave evidence.
Q234 Chair: I welcome to today's session our witness Alan Rusbridger, the Editor of The Guardian. Mr Rusbridger, you are giving evidence as part of the Committee's inquiry into counter-terrorism. Thank you very much for coming here this afternoon. Could I refer all those present to the Register of Members' Interests where the interests of the members of this Committee are noted. Could I ask other members to declare any special interests?
Dr Huppert: I have written two articles for The Guardian on this issue for which, as a pleasant surprise, I was paid. I need to draw the Committee's attention to this.
Mark Reckless used to work in the City of London for a financial / legal division of Booz Allen Hamilton, the same USA corporation which employed whistleblower Edward Snowden in Hawaii as a contractor to the NSA in Hawaii.
Q235 Chair: Thank you very much. Of course I should say that we are all Guardian readers, some more avidly than others, so we all declare our interests. I did read it this morning.
Mr Rusbridger, could we start with some facts and then members of the Committee will come in and probe you on a number of issues? There was reference made in some newspapers that you have been compelled to come here against your wishes. We wrote to you and invited you to come here and you are here as part of that inquiry. You do not feel under any compulsion, do you?
Alan Rusbridger: I was not aware it was optional, but I am glad to be here anyway.
So the editor of The Guardian did feel some compulsion to appear before the HASC.
Q236 Chair: Well, you said yes, so there was no need to take that further.
Which implies that the Chair of the HASC was considering using the Select Committee power to "compel persons and papers"
N.B. there is considerable doubt that, if Alan Rusbridger (or other witnesses like the heads of the UK intelligence agencies - more on this later) were to refuse to appear before the HASC (or any other Select Committee) , that the House of Commons would ever get around to voting and punishing them, without doing enormous damage to itself in the inevitable media storm or likely European court cases.
c.f. Liaison Committee - Select committee effectiveness, resources and powers - Written evidence submitted by the Clerk of the House and Select Committees and Coercive Powers Clarity or Confusion (.pdf) by the Constitution Society
On the question of facts, you said very clearly in your written evidence to this Committee that you have published only 1% of the information that you have from Mr Snowden. Is that still correct?
Alan Rusbridger: It is approximately correct. Remember we continue to publish stuff, but it is about 1% of what we were given.
Q237 Chair: As far as I can see, you have had 58,000 files. Are you telling this Committee that only 1% of the information in those files has now gone public?
Hold on Keith !
Where did this "you have had 58,000 files" come from ? That does not tally with the public statements by Glenn Greenwald about the total number of documents or files which Edward Snowden had access to or successfully exfilitrated or handed over to journalists or which The Guardian has access to.
"58,000" was first mentioned in the media leaks by the Government before the publication of the Oliver Robbins witness statement in the David Miranda Terrorism Act 2000 Schedule 7 detention and search and seizure at Heathrow Airport .
The leaks and the witness statement alleges that "58,000" is the number of GCHQ documents that Edward Snowden had access to from Hawaii, supposedly through the shared "wiki.GCHQ " which been speculated as being a Microsoft Sharepoint server. This figure does not include US documents from NSA or from other US intelligence agencies e.g. supposedly 30,000 from Defense Intelligence Agency networks (i.e. military intelligence reports, which Snowden apparently does not want to be published) nor from other "5 Eyes" intelligence partners like Australia, where there is a recent claim about of 15 to 20,000 Australian Signals Directorate (formerly DSD) files.
via Carl Gardner Head of Legal blog the "official" Miranda case witness statements which deal with the alleged GCHQ document in transit so far:
Deputy National Security Adviser, Cabinet Office Oliver Robbins' witness statement (.pdf)
Also see Spy Blog Public Accounts Committee - some of our "cyber" defenders give oral evidence for screenshot images of Oliver Robbins
Metropolitan Police Service Detective Superintendent SO15 Counter-Terrorism Command Caroline Goode witness statement (.pdf)
Alan Rusbridger: Yes.
Chair: Where are the other files?
Alan Rusbridger: Can I give some general context that I think would help you understand about this, because I think it is important to realise that initial leak from Edward Snowden-
Q238 Chair: We will come to that in a minute, Mr Rusbridger. If you could just establish the facts for me, and please do put it in context. These are factual questions the Committee would like to ask. You have a lot of files, 58,000 files; you have published 1%. Where are the other files?
Alan Rusbridger: Well, as I would have explained, this is an ongoing story that we are writing. If you think it is sensible that I talk here about where the exact files are I am happy to write to you, but I am not sure that that is a sensible thing to do about the existence of other files in different bits of the world.
Q239 Chair: Are there other files under your control in different parts of the world?
Alan Rusbridger: There is one file that we hold jointly with The New York Times, which is obviously in New York.
Q240 Chair: This is important in respect of the inquiry. Obviously the context is important but there is criticism that some of these files may not be under your control. Are they all under your control one way or the other?
Alan Rusbridger: No. One of them, as I would have explained-I think it would be helpful if I could give some context because it is important to understand that there were four different sets of information that went to four different parties in four different countries in three different continents. It is important to establish that to begin with. One of them was The Guardian, one of them was the Washington Post, clearly not under my control. One went to Rio and one went to Germany. That is the hand of cards we were all dealt-The Guardian, the security services, Governments. So I cannot obviously say that The Washington Post files are under my control, because they are not.
Q241 Chair: No, of course not. We are in touch with The New York Times and we may take evidence from The New York Times in the future, written or oral. But in terms of the files under your control, 99% of which have not been published, you have full control, you know where they are, they are secure and in a place where you feel they cannot get into other people's hands?
Alan Rusbridger: I believe that to be true.
Q242 Chair: You also said in reply to our parliamentary colleague, Julian Smith, in a letter that was published that there are 850,000 people in the world who have the same information as you have in those files.
Julian Smith Conservative MP for Skipton and Ripon, always seems to fail to declare that the massive NSA spy base at RAF Menwith Hill is in his constituency, so it appears that he has an obvious conflict of interest.
"Did Conservative MP Julian Smith endanger national security? Politician who claims Guardian endangered lives with NSA spying leaks shows photo of staff at high-security base in UK"
No ! Neither Julian Smith nor The Guardian have endangered national security.
Alan Rusbridger: This goes to the original leak, which is obviously the thing that people are most concerned about. We were told that 850,000 people had access to the information that a 29-year-old in Hawaii, who was not even employed by the American Government, had access to.
Q243 Chair: Is this 850,000 people a figure given to you of people who have security clearance or would know what was in the files that you have?
Alan Rusbridger: Obviously people were aghast. I think people at GCHQ were aghast that a 29-year-old in Hawaii, not even employed by the American Government, could get access to their files. I was told the figure was 850,000 people who had that kind of access.
Keith Vaz is an experienced solicitor and Chair of a Select Committee. Why did he not ask to be properly briefed by HASC researchers about this "850,000" figure ?
WHy take it at face value, even if it has been published in The Guardian ?
It only takes a few seconds with a web search engine to find the 2010 Washington Post article which first published the figure of 850,000 people in the USA, including private sector contractors holding a Top Secret security clearance.
Did nobody on the HASC notice this major National Security related story in 2010, which was widely re-reported even in the UK media ?
Did nobody bother to explain that simply having a Top Secret security clearance is not sufficient on its own to be able to access "compartmentalized" classified documents, which many of the published Snowden leaks clearly are ?
Q244 Chair: Obviously there is a lot of controversy regarding your publication of this information. Is part of the defence that you may have this information but so do 850,000 other people and they are also in the same position if they choose to be, as Mr Snowden was, to release this information-that there is safety in numbers, in other words?
"Is part of the defence" - defence against what, precisely ? What is Vaz accusing Rusberger of ?
Alan Rusbridger: I think the point is that twice in the last three years these giant databases that were created after 9/11 have proved porous. These secret things have escaped and that is because so many people have access to them. That is the only point that I think we were trying to make. People use the word "catastrophe" or the fact that there has been this catastrophic loss and have compared it with Maclean and Burgess, Philby, all kinds of things. That was down to the original leak, and that was because this 29 year-old, who was one of hundreds of thousands of people, had access to information. I am sure it is something that everyone must now be considering what to do about it.
Q245 Chair: In respect of what was said to our sister Committee, the Intelligence and Security Committee, you were severely criticised. You were perhaps not criticised personally but your newspaper certainly was, and so was the decision that you took, by the heads of the security services, and this is your opportunity to answer them. Mr Andrew Parker
If you watched the Parliament TV narrowcast of this HASC oral evidence session, you might have noticed that Keith Vaz actually initially said "Alan" and then corrected himself to "Andrew", when introducing the name of the Director General of the Security Service MI5 for the first time in the session.
described what you and your newspaper did as a gift that our enemies needed to evade us and to strike us at will. I am sure you have heard this phrase before. John Sawers, the head of MI6, said that our adversaries were rubbing their hands with glee. All heads of the security services were very clear in their evidence to the Intelligence and Security Committee that you had damaged this country as a result of what you had done. Clearly other editors took the decision as well. We know it has been in The New York Times, The Washington Post, El País, Le Monde and other newspapers, but they are not before us today. Do you recognise what you have done? Do you accept that this has damaged the country? This is severe criticism that I have not seen before from the head of our security services.
Alan Rusbridger: I think it is an important context that editors of probably the world's leading newspapers-in America, The Washington Post and The New York Times-took virtually identical decisions, so this is not a rogue newspaper. These are serious newspapers that have long experience of dealing with national security. The problem with these accusations is that they tend to be very vague and they are not rooted in the specific stories. You have quoted two. I would like to quote four people back at you who have told me personally there has been no damage or who have not seen it. You took evidence I think last week from Norman Baker, the current Home Office Minister-I will not repeat that evidence-who said he had seen no damage.
Chair: Yes, that is right.
Alan Rusbridger: The second person we have consulted is a member of the Senate Intelligence Committee, so somebody who is sitting in oversight of all the intelligence and has seen it all. He asked not to be named, but we asked him because we want to know, "Have you seen anything The Guardian has published that has caused damage?" and he said, "I have been incredibly impressed by what you have done, how you have done it. You have written about the scope and the scale. I have seen nothing that you have done that has caused damage." We asked the same question of a senior administration official in the current Obama Administration who told us last week, "I have been incredibly impressed by the judgment and care that you would expect from a great news organisation". Finally, a senior Whitehall official at the heart of these stories said on 9 September, "I have not seen anything you have published to date which has risked lives". So there are different views about this and I listen with respect to the views that you have given, but I do not-
Q246 Chair: But you disagree with them?
Alan Rusbridger: Well, it is not that I disagree. It is impossible to assess, because no one has given me specific evidence and I hear the contrary from respected people.
Q247 Chair: The real criticism is that the information that you have contains the names of individual security officers, and this has been sent around the world, sometimes paid for by The Guardian, and these names are of our security officers, people who are there to protect our country. That is how you have damaged the country, because others who do not have security clearance have been able to read these names, know who they are and possibly know where they live. That is the damage that they allege you have done.
If the alleged 58,000 GCHQ wiki documents shared with the USA and perhaps the other "5 Eyes" countries i.e. Canada, Australia and New Zealand actually contained any personal details of field agents or Confidential Human Intelligence Sources (CHIS), then
a) We would be astonished
b) There should be a police criminal inquiry for suspected breaches of the Official Secrets Act 1989 section 8(1) Safeguarding of information "or if he fails to take such care to prevent the unauthorised disclosure of the document or article as a person in his position may reasonably be expected to take." (up to 3 months in prison and / or a level 5 fine i.e. up to £5000 per offence)
Much more likely is that there are a few names of senior managers who are at no more risk than any other Government office worker on some powerpoint presentations, all of which The Guardian has redacted before publication.
N.B. The Brazilian O Globo tv show
A properly briefed Select Committee would have asked Alan Rusbridger if he had admonished his then employee / associate Glenn Greenwald about this leak in Brazil and if Greenwald had shown any raw GCHQ stuff to the O Globo journalists.
Alan Rusbridger: First of all, we have never used a single name. I think that is the crucial bit. We have published no names and we have lost control of no names. It has never been a secret that these documents contain names. A lot of them are PowerPoint presentations given by named individual. From the beginning of June when we published the first presentation we redacted the name of somebody. It was apparent that these documents had names, and then the material was seized off David Miranda under the terror laws. It is apparent from the witness statements that the Government knew then, although I would say they knew already, and in fact we discussed the use of names with the Cabinet Secretary when he visited us in mid-June. So there have been six months when it has been apparent that there have been names in these documents. I told the Cabinet Secretary personally that we were sharing this material with the New York Times. On 22 July I gave the editor of The New York Times phone number, email address, and Stephen Engelberg from ProPublica. Not once in six months-
Q248 Chair: I find it difficult that you are telling this Committee that you can guarantee the security of all the names of these officers.
It is the UK intelligence agencies who should be looking after the safety of their field agents and confidential sources ! Why should a newspaper editor have to somehow guarantee this ?
In the very unlikely event that there were any identifiable field agents or CHIS in those documents, the UK authorities have now had 6 months to extract them from any possible risk, so if such names do now come out, their lives should not be in danger.
Alan Rusbridger should have made this point to the Committee.
Alan Rusbridger: Your original question was do I believe that the copy that The New York Times has is being held securely. Yes.
Q249 Chair: Well all the copies, anything under your control. You have these names. Can you guarantee that these names will not leak out?
Alan Rusbridger: I can only talk about the copies under the joint control of the Guardian and the New York Times and I can say that that is being held securely.
Chair: You can guarantee it? Right. Now, both the criticism-
Alan Rusbridger: Incidentally, Chairman, I just want to add that in that six months it would have been open to anybody from Her Majesty's Government to come and ask about the names and that has not happened.
Q250 Chair: Has anyone asked you to destroy this information or hand it over?
Alan Rusbridger: It is a matter of public record that the Cabinet Secretary came and asked me to destroy the entire cache of documents, so yes.
Q251 Chair: Right. But you have not done so?
Alan Rusbridger: No, that is also a matter of public record. No, I told the Cabinet Secretary at the time.
Q252 Chair: Let me ask you this finally before I go to other members of this Committee, some of the criticism against you and The Guardian have been very personal, you and I were both born outside this country, but I love this country. Do you love this country?
Those of us on Twitter who were following this session via Parliament TV were universally astonished at this evil McArthyite question.
On reflection some people felt that Keith Vaz was, in some obscure way, trying to help Alan Rusbridger, but it did not look like that at the time to many foreign observers.
Mr Winnick: How do you answer that kind of question.
Alan Rusbridger: We live in a democracy. Most of the people working on this story are British people who have families in this country who love this country. I am 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 the democracy and the nature of a free press and the fact that one can in this country discuss and report these things.
Q253 Chair: So the reason why you have done this has not been to damage the country; it is to help the country understand what is going on so far as surveillance is concerned?
Alan Rusbridger: I think there are countries and they are 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 is not the country that we live in, in Britain. It is not the country that America is, and it is one of the things I love about this country that we have that freedom to write and report and to think and we have some privacy. Those are the concerns that need to be balanced against national security, which no one is under-estimating. I can speak for the entire Guardian staff who have families who live in this country; they want to be secure, too.
Q254 Dr Huppert: Thank you, Mr Rusbridger, for coming before this Committee. I hope we will have similar co-operation from the intelligence and security services because I think many of us would like to ask them questions. Now that they have established they can answer them in public and it should just be the people that they trust to answer questions, they should be able to answer everyone's. Could I also place it on record briefly that I think The Guardian has done a great service to the public debate in this country? I have put that at length elsewhere and we had a Westminster Hall debate on it, and I think it is up to Parliament how to write the rules now.
You have published very selectively. You have taken off these documents only very small elements and published those. If, when you were given the documents, you had refused them and sent them back, what do you think would have happened to the information? Would it have been silenced or would it have been published in some other mechanism?
Alan Rusbridger: That is why I wanted the initial context to be understood. By the way, I do not think there is an editor on Earth who, offered this material, would have sent it back unseen. We asked 30 leading editors in the world to talk about this difficulty of handling secret material and they were all familiar with doing it. They all said they would have done what The Guardian did. You look at it and you make judgments. People talk about mass dumps of data. We have not. I think we have published 26 documents so far out of the 58,000-plus that we have seen. We have made very selective judgments about what to print.
What would have happened if we had sent it back? That is the whole point of my initial point to the Chairman. Glenn Greenwald had this material in Rio. Laura Poitras had a copy in Berlin. The Washington Post had a copy. The thought that this material would not have been published is ridiculous.
Q255 Dr Huppert: As you know, there is a DA-Notice system in the UK that is intended to prevent people being put at risk, particularly where there is real risk to life. Have you had any conversations with the DA-Notice Secretary and have they told you that the material would pose a risk to life?
Alan Rusbridger: Yes, we have. I think we have gone back and counted this. Out of all the stories that we have published, and there are about 35 of them, we have consulted with the relevant authorities on all bar one, which was the first story that we published specifically about GCHQ. I think that was on 16 June. The reason I did not consult with the DA-Notice Committee was a fear of prior restraint, which exists in this country but not in the United States. Since the Pentagon papers case in 1972 it is inconceivable that any American Government would get prior restraint of a publication of this material. That reassurance does not exist in this country. Indeed, we were directly threatened with prior to restraint by the Cabinet Secretary and so I did not seek the advice of the DA-Notice Committee on that story.
I have engaged with Air Vice-Marshal Vallance since. I think Air Vice-Marshal Vallance would confirm that we have been in touch and that there was also, to some extent, a misunderstanding that he said extended to the Prime Minister. I think there was a lot of misunderstanding by the DA-Notice Committee because the Prime Minister has talked about threatening people with DA-Notices. That is not how it works. Air Vice-Marshal Vallance says that the misunderstanding is that he would have kept that material confidential from the Government. We have, in fact, collaborated with him since and he has been at The Guardian to talk to all our reporters.
Q256 Dr Huppert: Did he give you any feedback as to whether what you are publishing posed a risk to life or not?
Alan Rusbridger: He was quite explicit that nothing we had seen contravened national security in terms of risking life. He was explicit about that. That is not to say he would give us a complete bill of health on things that appeared downstream, but nothing he saw had risk to life and most of the time when we have rung him and put stories to him his response is, "There is nothing that concerns me there. This stuff might be politically embarrassing, but there is nothing here that is risking national security".
Dr Huppert: It seems like you followed established procedure for the vast majority of these things.
Alan Rusbridger: On all but the one story.
Q257 Dr Huppert: You have touched on issues that are of fundamental national importance; fundamental questions about the future of surveillance, information that was not given to us on the Communications Data Bill, and a whole range of things about the future of privacy in a digital age. In Germany there is huge interest in this subject. In the US there is huge interest, with parliamentarians trying to revisit legislation and responses from the President. Why do you think there has been so little interest here? A few of us managed to secure this one big parliamentary debate, but otherwise what we have seen, and even there, was attacks on The Guardian rather than Parliament trying to work out what the rules ought to be. Why do you think that is?
Alan Rusbridger: Shooting the messenger is the oldest diversionary trick in the book. I cannot explain why some people have not taken interest in this. My experience is that, when you speak to people about it and explain the issues, they are deeply interested in it. As you say, in terms of the broader debate, I cannot think of any story in recent times that has ricocheted around the world like this has and which been more broadly debated in Parliaments, in the courts and among NGOs.
The roll call of people who have said that there needs to be a debate about this include, by my count, three Presidents of the United States, two Vice Presidents, generals, the security chiefs in the US are all saying, "This is a debate that, in retrospect, we know that we had to have". There are Members of the House of Lords, people who have been charged with oversight of security measures here-the former chairman of the IFC, Tom King, said that this was a debate that had to be had and they had to review the laws. The Director of National Intelligence in the US said these were conversations that needed to happen. In terms of the public interest, I do not think anyone is seriously questioning that this leaps over the hurdles of public interest.
Another minor typographical error in the transcript: "IFC" should be "ISC" i.e. the Intelligence and Security Committee
Q258 Michael Ellis: Mr Rusbridger, you authorised files stolen by Snowden that contained the names of intelligence staff to be communicated elsewhere, didn't you? Yes or no?
What an extraordinary aggressive question. Ellis may have been a barrister (did he ever win any cases in court ?) but this Select Committee is neither a court of law nor a police interview room.
Even if it was, that is an entirely counter-productive way of questioning Rusbridger, which immediately gained him sympathy from neutral observers.
By the way, according to the Theft Act 1968 s1, you cannot "steal" secrets or other intellectual property, neither national security ones, nor copyright music or films etc. unless you have stolen the original physical media on which they were stored.
(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.
If all you have done is make illicit albeit perfect digital copies of the information, stored on your own digital media, without "permanently depriving" the owner of the original, you may have committed other offences, but you have not "stolen" anything according to the Theft Act definition.
This is well known in the world of intellectual property law and is something which the public would expect a barrister to be aware of.
Alan Rusbridger: I think I have already dealt with that. It was never-
Michael Ellis: Could you just answer my question?
Alan Rusbridger: I think it has been known for six months that these documents contained names and I shared them with The New York Times.
Q259 Michael Ellis: Do you accept from me that that is a criminal offence under section 58A of the Terrorism Act 2000?
That is clearly not for Ellis to decide, it is a matter for the Director of Public Prosecutions and a Court to decide.
What about the question of mens rea i.e. criminal intent to help terrorists ? This is something which nobody really believes of The Guardian.
Alan Rusbridger: You may be a lawyer, Mr Ellis; I am not, so I will leave that to you.
Q260 Michael Ellis: 50,000 plus files were 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?
Note the weasel words "caused them to be communicated" which is obviously his inept attempt to trap Rusbridger into "confessing" to an offence under the selectively draconian controversial Terrorism Act 2000 s58A Eliciting, publishing or communicating information about members of armed forces etc
This stupid law, does nothing to "protect" the identities of real terrorist targets like Judges, Prosecutors or Prison Officers, whilst "protecting" former intelligence officers, even if they are convicted spies !
Now that it is being abused to put political pressure on investigative newspapers like The Guardian, this law must be repealed as soon as possible.
Alan Rusbridger: I will leave you to express those words. They are not my words.
Michael Ellis: You decline to answer that. Very well. But that was information that contained a wealth of data, protected data that was both secret and even top secret under the protective classifications of this country.
Technically the copies of the documents were of US classified documents which were no longer UK ones - Snowden did not break into GCHQ and grab them, he got US copies, which may or may not have been legally shared with NSA.
If Snowden did have access to GCHQ documents on GCHQ rather than NSA infrastructure, then there should be a Parliamentary inquiry into that appalling breach of national security and Iain Lobban, the Director of GCHQ should be summoned before Committee, but that is outside the remit of the Home Affairs Committee.
Perhaps the Foreign Affairs Committee or the Public Accounts Committee can do something more than the increasingly useless Intelligence and Security Committee, to reassure the public that new measures are in place to reduce the risk of this happening again..
Alan Rusbridger: They were secret documents.
Q261 Michael Ellis: Secret and top secret documents. Do you accept that that information contained personal information that could lead to the identity, even the sexual orientation, of persons working within GCHQ?
Again, the utter astonishment of the people following this live on Twitter was palpable when Ellis uttered this idiotic claim
Alan Rusbridger: The sexual orientation thing is completely new to me. If you can explain how we have done that then I would be interested.
Q262 Michael 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. I suggest to you that the data contained within the 58,000 documents also contained data that allowed your newspaper to report that information. Therefore, it is now information that is no longer protected under the laws of this country and it jeopardises those individuals, does it not?
Alan Rusbridger: You have completely lost me, Mr Ellis. There are gay members of GCHQ. Is that a surprise and that they have a-
Michael Ellis: It is not amusing, Mr Rusbridger. They should not be outed by you and your newspaper.
Alan Rusbridger: I don't think it-
Michael Ellis: What about the fact that GCHQ organised a trip-
Alan Rusbridger: Hold on a second.
Michael Ellis: Either you are going to answer the question or you are not.
Ellis's aggressive impatience lost him any sympathy and probably dismayed even the people in intelligence services who would have liked to have probed Rusbridger more effectively.
Alan Rusbridger: If you let me answer, I will answer the question.
Chair: Mr Ellis, order. If Mr Rusbridger could have the opportunity of answering, then please do go on. Mr Rusbridger.
Alan Rusbridger: On the mention of the existence of a pride group within GCHQ, 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 the GCHQ.
Q263 Michael Ellis: You said it was news to you. You know about the Stonewall website, so it is not news to you. It was in your newspaper. What about the fact that GCHQ organised trips to Disneyland and Paris? That has also been printed in your newspaper. Does that mean, if you knew that, 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?
Alan Rusbridger: Again, your references are lost to me. The fact that there was a family outing from GCHQ to Disneyland-
What possible risk to National Security is a vague report, devoid of any identifying details, of a now long past trip to Disneyland ?
Michael Ellis: Do you accept that these files contain methods of trapping cyber-criminals like paedophiles and hackers?
Alan Rusbridger: The only story that has been identified to us that resembles that description is the story about Tor and I would welcome the opportunity to talk about that.
Q264 Michael Ellis: No, I would rather you didn't. I do not see any need to further publicise that information.
Obviously Tor is too technical for Ellis.
He also seems ignorant of the Streisand Effect. Now that he has tried to suppress discussion of the Tor (non) revelations, more people will make themselves aware of them out of curiosity e.g. Tor Stinks presentation (.pdf)
What about the location of safe houses and other safe locations, secret locations; 58,000 documents that contain that information?
Yes, what about the location of safe houses ?
Why would this information ever be in a shared GCHQ Wiki in the first place ?
Has Ellis been briefed that this is so, or is he just speculating wildly ?
Alan Rusbridger: If you don't mind me just referring to Tor, because we are in danger of having a rather analogue discussion about the digital age, the point about Tor is that anybody who is interested in this would have learnt nothing from The Guardian that is not available on the Tor's own website, so let us get real about this. There is nothing The Guardian published that is endangering people in the way that you talk about that is not there already.
Law enforcement and intelligence agencies also use the Tor network, for the same reasons as political dissidents and criminals - https://torproject.org
Q265 Michael Ellis: Mr Rusbridger, it is not only about what you have published. It is about what you have communicated. That is what amounts or can amount to a criminal offence. You have caused the communication of secret documents. We classify things as secret and top secret in this country for a reason-not to hide them from The Guardian, but to hide them from those who are out to harm us. You have communicated those documents.
Chair: Mr Ellis, is that a question?
Michael Ellis: If you had known about the Enigma Code during World War II would you have transmitted that information to the Nazis?
What a stupid question ! Does Ellis now think that the "lefty" Guardianistas have somehow magically become Nazi traitors ?
Presumably Ellis is, imprecisely, talking about the cryptanalysis of the Enigma cipher machines, rather than the "Enigma Code"
Parliament should be investigating the economic damage done to the UK (and US) Cloud based computing internet industry i.e. a national security issue ("economic well-being of the UK") by the deliberate NSA ("BULLRUN") and GCHQ ("EDGEHILL") campaigns of weakening basic cryptographic systems used to protect e-commerce, but Michael Ellis would clearly be out of his depth on this topic.
This is another wasted opportunity to ask a properly probing question about The Guardian and the Snowden documents.
Alan Rusbridger: That is a well-worn red herring, if you don't mind me saying so, Mr Ellis. I think most journalists can make a distinction between the kind of thing that you are talking about and the Enigma Code or the travel or the troop ships. This is very well-worn material that has been dealt with by the Supreme Court and that you learn when you do your NCTJ course. I can make those distinctions, Mr Ellis, thank you.
Q266 Michael Ellis: Have members of the board of The Guardian newspaper conceded to you that the law may have been broken in this matter?
Alan Rusbridger: No.
Q267 Michael Ellis: Have you been told by members of the board of The Guardian newspaper that your job is on the line connected with this matter?
Alan Rusbridger: I think you are under some misapprehension, Mr Ellis.
Michael Ellis: I am asking you a question.
Alan Rusbridger: The board of The Guardian newspaper, if you understood the structure of The Guardian, has no jurisdiction over the editor of The Guardian.
Did Ellis bother to do any background research to prepare his Questions at all ?
Michael Ellis: Did The Guardian-
Chair: Mr Ellis, I think this needs to be your final question.
Michael Ellis: No, I think it is less than six minutes, Mr Vaz.
Chair: Mr Ellis, order.
Michael Ellis: I am coming to a conclusion.
Chair: Mr Ellis, order. I am chairing this meeting. This is your final question.
To annoy even the polite Keith Vaz as Chair of a Select Committee and have to be brought to Order is a disgrace for an MP, but Ellis seems shameless in his ignorance and obvious hatred.
Q268 Michael Ellis: This is not a Labour love-in,
That snide comment was clearly meant as an insult to Keith Vaz.
Mr Rusbridger, and I am asking you some questions that I think you should answer. Did The Guardian pay for flights by David Miranda to courier secret files?
Alan Rusbridger: We paid for Mr Miranda's flights. He was acting as intermediary between-
Michael Ellis: You did pay for those flights? Have they been accounted for as a business expense, those flights? Is the UK taxpayer funding a tax break for the transfer of stolen files?
Chair: You may not be familiar with the tax laws, so I think we will move on to our next questioner.
Michael Ellis: I do not see why you should move on.
Chair: Order, Mr Ellis.
Having to be called to order a second time is even more disgraceful, Ellis should formally apologise to the Committee and the public.
Q269 Mr Winnick: Perhaps you are fortunate not to be in a Moscow courtroom in the 1930s, Mr Rusbridger, with Mr Vechinski asking you questions. Were you surprised at the amount of intelligence gathering that was revealed as a result of what Snowden gave to your newspaper and other media outlets?
A reference to the show trials under Stalin Andrei Vyshinsky was the prosecutor.
On his behaviour at this Committee session, Michael Ellis does not seem to be fit to be a UK prosecutor.
Alan Rusbridger: I think many people are staggered by the amount of-
Mr Winnick: You, yourself, if I may interrupt. Were you staggered and surprised?
Alan Rusbridger: I was staggered. I think we all knew that the intelligence agencies collected a lot of data and people are still trying to make out as though nothing has changed in the last 15 years since the laws were passed. We have a lot of analogue laws that deal with the digital world. I think the last serious law that was passed about any of this material was 2000, which was at a time when Facebook had not been invented and when Google was still doing its initial funding round, and were pretending that the laws that covered crocodile clips on copper wires are stretchable to deal with the collection of maybe 3 billion phone events and the meta data around those a day. Yes, I think there is a staggering amount of information being collected, which has surprised even though who passed the laws that apparently, I say, authorised the collection.
Q270 Mr Winnick: Would it be right to say that since the reports have occurred, while some senior American politicians in Congress denounce, as one would expect, Snowden as a traitor, others have expressed surprise that their own country has been involved in such intelligence-gathering on the sort of extensive scale as Snowden has revealed?
Alan Rusbridger: The people who are most disturbed by the revelations include the people who pass the laws that are being used to justify it. Senator Brenner, who is a right-wing Republican who drafted and passed the Patriot Act, was the first person out of the stocks to say that he was appalled that the Patriot Act that he drafted was being used to justify what he regarded as un-American, to come to your question, Mr Chairman, about patriotism. He was appalled. He said, "This is not what I intended by the Patriot Act", and there are currently three Bills in Congress that are being proposed to limit-
Mr Winnick: Arising from Snowden?
Alan Rusbridger: Arising from Snowden and arising from Snowden through newspapers and through our publication, which are being used-and these are cross-party Bills-to limit what is going on. You are quite right to say that people have been extremely surprised at what has been going on and in Congress, at least, there is meaningful oversight where people are now trying to place some limits on what has been going on.
Q271 Mr Winnick: Coming to our own country, would you say that it has changed the course of debate, whether the oversight is sufficient; the subject, of course, of the recent public session of the Intelligence and Security Committee? I am sure we were all impressed by the robust questioning that took place there at the time, but do you feel that it has changed the course of this particular debate how far Parliament is inadequate at this stage to deal with such a vast amount of intelligence-gathering involving many, many people who are not public figures?
Alan Rusbridger: I think it has absolutely impacted on that debate. I think there are many parliamentarians who are anxious, for instance, about what they were told during the passage of the Data Communications Bill and the so-called capability gap and were rather appalled to learn that stuff that they were being asked to pass was already being done and that this information was not shared with them at the time. I think it comes to the heart of parliamentary oversight and whether what is done in the name of parliamentary oversight is remotely adequate at the moment or whether it is well-resourced enough or whether they have the technological expertise.
I would like to quote one little section because we have now spent about 10 minutes in this Committee discussing leaks that did not happen. The catastrophic leak that did happen was dealt with by the ISC with the following exchange, "Chairman: Can we assume you are having discussions with your American colleagues about the hundreds of thousands of people who appear to have access to your information? Head of MI5: All three of us are involved in those discussions, Chairman. Chair: Thank you very much." That is the only question that has been asked in Parliament about the loss of 58,000 documents through a data-sharing scheme between GCHQ and NSA. If that amounts to oversight, the budget for oversight, even now, is £1.3 million, supposedly a secret incidentally, which is about a third of the amount that Cheltenham Borough Council spends on car-parks.
Q272 Mr Winnick: The Prime Minister in the Chamber said that he wants to reach agreement, or words to that effect, with The Guardian but if The Guardian is not willing to see the point of view of the authorities then, with reluctance, other measures may be taken. Presumably, he is referring to DA-Notices and the rest. How far do you feel there is a threat to the newspaper if you continue to publish revelations from Snowden? Do you feel under pressure?
Alan Rusbridger: Things have happened in this country that would be inconceivable in parts of Europe or in America. They include prior restraint. They include a senior Whitehall official going to see an editor to say, "There has been enough debate now". They include asking for the destruction of our discs. They include MPs calling for the police to prosecute an editor. There are things that are inconceivable in America under the First Amendment.
Q273 Mr Winnick: Are you under pressure yourself? Do you feel this pressure from the Government?
Alan Rusbridger: I feel that some of this activity has been designed to intimidate The Guardian, yes.
How can the UK Government preach "freedom of the press" to China or Russia or Iran etc. when they are seen to be intimidating The Guardian ?
Q274 Chair: Thank you. We must move on but, before we do, are you telling this Committee that, as a result of Parliament's failure to oversee the security services and the failure to have the necessary expertise and the failure to have a sufficient budget, that is why you were obliged to publish because, had you not done so, nobody would have found out about this?
Alan Rusbridger: The only way any of this information has come into the public domain is through the press.
Q275 Chair: We should look at our structures better?
Alan Rusbridger: We should and America is. Senator Dianne Feinstein, who is the Malcolm Rifkind equivalent in America and who had been supporting the NSA for about three months-the Merkel telephone call happens, they did not know about that-said at that point, "It is abundantly clear that a total review of all intelligence programmes is necessary". That was the oversight committee saying, "We had no idea what was going on", and that must be true of our own-
Chair: I am sorry. In respect of our inquiry, you think that it would be good if this Committee looked at the structures of oversight as part of the counter-terrorism structure?
Alan Rusbridger: Absolutely. I think that would have been important to you.
Q276 Mark Reckless: You wrote in your letter of 7 November to Gillian Smith that The Guardian had not published the names or identifying information for staff of our intelligence agencies and I think in reply to the Chair earlier you added that you had not used or lost control of that information.
This is clearly a typographical error in the transcript and should be "Julian" rather than "Gillian" Smith MP as mentioned above. Julian Smith has published this letter from Alan Rusbridger of 7th November 2013 (.pdf) on his own blog.
Alan Rusbridger: Yes.
Mark Reckless: Can I clarify, though? In your response to Michael Ellis earlier did you say that you had communicated that information to The New York Times?
Alan Rusbridger: At the danger of repeating myself, we gave the material to The New York Times at roughly the same time as we told the Cabinet Secretary that we were doing that and gave the Cabinet Secretary the name of the editor of The New York Times and how to contact her.
Q277 Mark Reckless: You referred earlier to material given to The Washington Post not being under your control. Did the material shared with The New York Times remain under your control?
Alan Rusbridger: Yes. The material was given to The Washington Post by Edward Snowden himself via a journalist called Barton Gellman. The material that we had with The New York Times is in the joint control of me and the editor of The New York Times.
Q278 Mark Reckless: When you say you had not lost control of the relevant data at any time, does that include the periods when the data was with FedEx, who I understand you have admitted to using to transfer some of that information?
Alan Rusbridger: Yes. No data was lost or we lost control of no data. No names have leaked from The Guardian.
Q279 Mark Reckless: I have previously used FedEx. I would not naturally refer to the period while whatever I was sending was with FedEx as being a period that it was under my control. Is that what you are saying?
Alan Rusbridger: I am saying we have not lost control of it. The reporting of the FedEx transmission 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-trade encryption. It was sent safely, arrived safely and did not involve any loss of control.
Another minor typographical error in the transcript: "military-trade encryption" should be read as "military-grade encryption".
Mark Reckless is another Conservative MP who is a barrister, albeit more polite than Michael Ellis, but who also appears not to have been briefed about the concept of encryption.
Did he somehow think that they were printed paper copies of the documents being sent via FedEx couriers ?
For a legislator who is part of an Inquiry into Counter-Terrorism, that is inexcusable.
Q280 Mark Reckless: You referred earlier to the information having commenced with The Guardian, The Washington Post, Rio, by which I assume you mean Glenn Greenwald, and Germany. Are you saying that all 53,000 files began with each of those four places?
Alan Rusbridger: Can you repeat the question?
Mark Reckless: Before you said Guardian, Washington Post, Rio-I assume Glenn Greenwald-and Germany. You were saying that the data information had started in each of those four places. Are you saying that all of the 53,000 files had started in each of those places?
How has the dubious figure of 58,000 files now become only 53,000 files ?
Alan Rusbridger: I don't think we know exactly who has what. Probably the only person who knows that is Edward Snowden.
Q281 Mark Reckless: Was there any information that you had at The Guardian but that Glenn Greenwald did not until you transferred it to him?
Alan Rusbridger: I don't know the exact answer to that because I don't know who got what in the initial handing out.
Q282 Mark Reckless: Why would The Guardian have bothered to transfer information to Glenn Greenwald if he already had it?
Alan Rusbridger: I do not want to get too drawn into the methodology of how we have worked, but-
Mark Reckless: It is an issue, though, of whether you have communicated this information outside your jurisdiction.
Alan Rusbridger: I cannot be entirely sure what Mr Greenwald had separately from us; what is encrypted in different ways; what is held in what way; what he has that Laura Poitras does or does not have. I have seen him on the public record say that he and Laura Poitras are the only people who have complete sets, but I do not know that to be true.
Q283 Mark Reckless: Has he not said on the public record that some files relating to GCHQ that The Guardian shared with The New York Times were a set of documents that only The Guardian had until you did that?
Alan Rusbridger: I don't want to repeat myself too much. I know that Mr Greenwald has GCHQ material that was given to him directly from Mr Snowden, so I can't tell you exactly what we gave him that he did not have already.
Q284 Mark Reckless: I understand if you choose not to answer this question, but do you consider that you have communicated information on the identities of staff of the intelligence agencies out of jurisdiction contrary to section 58A of the Terrorism Act?
What is this nonsense about "jurisdiction" ?
Terrorism Act s58A makes no distinction about where anything is communicated to or from, it is a bad, catch all law The penalties are the same regardless of whether the offence happens in the UK or overseas.
However, as both Ellis and Reckless fail to point out
(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.
Alan Rusbridger: I think I have answered that to the Chairman.
Mark Reckless: Your answer was not clear, at least not to me.
It was clear to everyone else, except, perhaps Michael Ellis
Alan Rusbridger: I will try to repeat myself clearly. I think it has been apparent to the Government for many months that the material that Mr Snowden leaked included a good many documents that had names of security people working for both the NSA and GCHQ. As I said and I will say it again, I told the Cabinet Secretary in mid-July that we were sharing this with The New York Times.
Mark Reckless: Which you would accept constitutes communicating it outside of the UK jurisdiction.
Why is Reckless repeating himself yet again ?
Alan Rusbridger: Self-evidently they work in New York, yes. I have bought this book along with me today. Some of you will be familiar with this. People will remember, in the mid-1980s, the Cabinet Secretary travelling to Australia to try to suppress this book that was written by a former MI5 agent and we had the ridiculous sight of a British Cabinet Secretary trying to stop the publication of something that had already been published in Australia. What was very much in my mind was the ridiculous situation that we would be in if The Guardian was the only publication in the world that was not able to publish material that was being published in Rio or Germany or around the world.
Q285 Mark Reckless: You have, I think, Mr Rusbridger, committed a criminal offence in your response just then. Do you consider that it would not be in the public interest for the CPS to prosecute you or should that be dealt with in the authorities in the normal way?
What an amateur "When did you stop beating your wife ?" trick question.
"In your response just then" is covered by absolute Parliamentary Privilege afforded to witness before a Select Committee. Any use of this "admission" in Court would breach the 1689 Bill of Rights as it would require the Questioning of the Proceedings of Parliament by a Court, which is forbidden unless an exemption is specifically written into an Act of Parliament, which is not the case for the Terrorism Act 2000.
For a lawyer not to know this or to to pretend otherwise, brings the whole system of Select Committees into question and makes Mark Reckless MP look improperly briefed or stupid.
Alan Rusbridger: I think it depends on your view of free press. In America Attorney General Eric Holder came out within the last two weeks and said that, on what he had seen so far, he had no intention of prosecuting Glenn Greenwald. He has gone further. He said that under his watch as Attorney General of the US he will not prosecute any journalist doing their duty journalistically. In New York within the last month I debated with the former general counsel of the NSA, Stewart Baker, and he makes absolutely the distinction between what Snowden did and what journalists did. He said, "Once the information is in the hands of the journalists that is protected material," and my reading of our own DPP and the guidelines that he laid down during the Leveson process is that public interest will weigh very carefully and very highly in any deliberations he takes.
Q286 Mark Reckless: Did Glenn Greenwald not also make a distinction between journalism, including what he was, according to him, engaged in and what he says The Guardian was doing, which was the distributing or indeed trafficking across international borders that information?
Yet again Reckless is harping on about (irrelevant) international borders.
Alan Rusbridger: We were sharing this information with journalistic colleagues on The New York Times in order to stimulate a debate which presidents and legislatures around the world think vital.
Q287 Chair: Just to clarify, is there a current police investigation into The Guardian?
Alan Rusbridger: I don't know.
Chair: Nobody has communicating with you or interviewed you or asked you any questions about this from the Metropolitan Police?
Alan Rusbridger: I have seen Scotland Yard say that they are holding an investigation into the matters generally. No one has told us whether that includes The Guardian or not.
Chair: For your records and for public record, the Committee has decided to call Andrew Parker, the head of MI5, in open session next year.
That is a very interesting announcement by Keith Vaz.
However, it appears that Andrew Parker has not yet agreed to appear before the Committee at all. c.f. this report a couple of days after the HASC session:
N.B. Andrew Parker probably knew no more about specific details of GCHQ and NSA snooping programmes than the members of the Intelligence and Security Committee or the National Security Council or the full Cabinet did.
The Home Affairs Committee should really be summoning the Director of GCHQ Ian Lobban to appear, but they will probably leave that to the Foreign Affairs Committee, since the Foreign and Commonwealth Office is nominally in political charge of GCHQ (and also the Secret Intelligence Service MI6) rather than the Home Office, which is supposed to be responsible for MI5 the Security Service.
Q288 Paul Flynn: Did you have advance notice of the questions we are asking you today?
Mr Winnick: Including yours.
Alan Rusbridger: I was not. I was told the general areas of concern that might be covered.
Q289 Paul Flynn: Were you stunned at having an open meeting of the Intelligence and Security Committee with their carefully manicured questions and rehearsed answers, a Committee that is accused of being a poodle to many Governments, including being cheerleaders for the Iraq war? Do you think this raises the question that the scrutiny provided by that Committee is inadequate and we need a reform?
Alan Rusbridger: As I said, I think lots of people, including former chairs of the ISC, have said that we need to re-look at the oversight, and Sir Malcolm Rifkind has himself said that he wants to look into his own Committee. I hope this will be an opportunity for people to talk about how oversight could be approved, because I think there is no question that it should be.
Q290 Paul Flynn: The United Kingdom Government's reaction to this has been very different from any other Government and Frank La Rue, the United Nations Special Rapporteur, has said the UK Government's response is "unacceptable in a democratic society", and The New York Times said, "The UK Government is challenging the idea of a free inquisitive press". Isn't that true?
Alan Rusbridger: I think what has been going on in the United Kingdom in the last six months has dismayed many people who care about free speech or free press and that includes NGOs. It includes at least two UN Special Rapporteurs. It includes people in Europe and many editors around the world.
Q291 Paul Flynn: Does the fact that a 29-year-old Hawaiian and 850,000 other people had access to the information suggest that our potential enemies have access to it, too?
Alan Rusbridger: It is in the witness statement of Oliver Robbins, the Deputy National Security Advisor, that they have been working on that assumption since Snowden disappeared with the material.
Deputy National Security Adviser, Cabinet Office Oliver Robbins' witness statement (.pdf)
Q292 Paul Flynn: Were you shocked by the revelations of the intense surveillance of allies by this country in a place like the G-20 and so on?
Alan Rusbridger: Again, there is the question of the public interest; the fact that President Obama effectively had to concede that his country had been bugging President Merkel. There has been no denial from Australia that they were intercepting the phone calls of the President of Indonesia and his wife. That was the thing that led Senator Feinstein to say that she had to review all the activities of the intelligence services because, clearly, this was going on without knowledge. You will remember that the United States came out and said, "Okay, we will stop bugging these gatherings of the IMF", or the World Bank or the European Parliament or all these things that they had been bugging. We do not know, but there were some specific organisations of allies devoted not to espionage or to hostilities but to bridge building and peace making; a lot of institutions set up after the World War II and the United States has come out and said, "We won't be bugging them anymore", which to me is an implicit admission that they were.
Q293 Paul Flynn: Do you think that the reaction of Government was less to do with security and more to do with the fact that we have traditionally been neurotically secretive?
Alan Rusbridger: Funnily enough, the DA-Notice Committee that we have been talking about earlier have just published their minutes of their last meeting in November. That is a meeting of the press side and the official side, and the vice chairman of that body said it was important to distinguish between embarrassment and genuine concerns for national security. The vice chairman felt that much of the material published by The Guardian fell into the former category. A lot of this stuff is embarrassing because it has come into the public domain rather than threatening national security.
Q294 Paul Flynn: Would you agree that you have performed a very important public service for legislatures and for everyone else? A difficult question I know.
Alan Rusbridger: There is no doubt in my mind. I will say this again and it is not blowing my own trumpet-
Paul Flynn: Please do.
Alan Rusbridger: Well, it is not done in that spirit; this has been a coalition of newspapers, including newspapers in Europe. If the President of United States calls a review of everything to do with intelligence and that information only came into the public domain through newspaper then it is self-evident, is it not, that newspapers had done something that oversight failed to do? I would say that was true of this country and of the United States.
Q295 Nicola Blackwood: Mr Rusbridger, I am interested to understand how, as an editor, when you come into possession of documents of this nature that clearly indicate a big story for you but also contain very sensitive, national security material, you go about judging what you can publish and what you can't publish.
Alan Rusbridger: I don't know of an editor in the world who does not agonise about these kinds of decisions in the way that you would expect. We touched on it earlier. We are all patriots and we all care about security.
Q296 Nicola Blackwood: To be more specific, how in this case did you go about it in terms of the specific process?
Alan Rusbridger: I discussed this with colleagues who are some of the most experienced colleagues in Fleet Street in terms of dealing with this kind of material. It is important to know that in the last six months there have been more than 100 contacts with the official side of things. In America that has been with the White House, with the Director of National Intelligence, with the FBI, with the NSA, with the National Security Council and with the Pentagon. In this country it has included Downing Street, the Cabinet Office, the National Security Advisor, GCHQ themselves and the DA-Notice Committee. We have consulted on more than 100 times with the agencies in order to be aware of their concerns before we publish material.
Q297 Nicola Blackwood: I suppose my question is, have you gone through all the 53,000 documents and have some been specifically excluded from publication and will they not be appearing? Have others been put under "Yes, okay for publication"?
53,000 again, not 58,000 ?
Alan Rusbridger: In terms of publishing documents, I think we have published 26.
Nicola Blackwood: Yes, but I am more thinking about the ones that have not yet been.
Alan Rusbridger: We have published a few individual pages from documents that have been redacted. I would not be expecting us to be publishing a huge amount more. With 26 over six months, I would say it has been a trickle.
Q298 Nicola Blackwood: What about the ones that have been communicating to the United States? I understand in some of those the names have been redacted and some of them have not. How did you go about deciding which names to redact and which ones not to?
Alan Rusbridger: Let us be completely clear about this. The Guardian has not used any names. On the rare occasion where we have used individual slides from documents that had names on, we absolutely redacted those. It has been said that The Guardian used names. We did not use names.
Chair: Mr Rusbridger, you made it clear that no names have been used.
Alan Rusbridger: Yes, but nevertheless it-
Q299 Nicola Blackwood: Yes, but that is not the question that I asked here. Where you communicated the documents to the United States, and in some cases in those documents you did redact the names and in other cases you did not, how did you decide?
Alan Rusbridger: No, you are wrong. I am sorry.
Nicola Blackwood: I am sorry. I thought that was the case.
Alan Rusbridger: No, we have not used-
Nicola Blackwood: You have not redacted any names?
Alan Rusbridger: We have not used any names. We have redacted-
Nicola Blackwood: No, but where you have communicated the documents to other papers that you-
"communicated the documents"
Is there some sort of briefing paper which the Conservative MPs are using ?
Alan Rusbridger: I see, before transmission?
Nicola Blackwood: Yes.
Alan Rusbridger: Yes, you are quite right.
Q300 Chair: Sorry, what is she right about? I am confused. Is she right that you sent the names or you redacted the names?
Alan Rusbridger: At the risk of repeating myself, there were names in these documents. The Government has been aware of that. Those documents were shared with The New York Times.
Q301 Nicola Blackwood: Did you redact any of those names before sending them?
Alan Rusbridger: Not before they were sent.
Nicola Blackwood: You just sent the names as they were out of the country?
Alan Rusbridger: The New York Times has not used any names either.
Q302 Nicola Blackwood: Did you have an agreement before you sent the documents that they would not be used?
Alan Rusbridger: We did.
Nicola Blackwood: You did. What about with The Washington Post?
Alan Rusbridger: The Washington Post was leaked material directly by Edward Snowden.
Nicola Blackwood: Okay. But you are working with them, I understand.
Alan Rusbridger: We are not working with The Washington Post.
Nicola Blackwood: You are not working with them at all, no.
Alan Rusbridger: The only other body we are working with in America is ProPublica. The chief of ProPublica is a man called Paul Steiger who has 16 Pulitzer Prizes to his name and is extremely experienced in handling this kind of material.
Q303 Nicola Blackwood: Did you send documents to him?
Alan Rusbridger: That was the material I referred to earlier; one story, a small number of documents. Again, it is open knowledge. I gave the Cabinet Secretary his name, too, in mid-July.
Q304 Mark Reckless: Can I ask why you didn't redact those names before showing them to The New York Times?
Alan Rusbridger: There were 58,000 documents, Mr Reckless.
Q305 Mark Reckless: The public interest defence is not actually the journalism but that you did not have the time or did not want to spend the resources going through them before showing them to The New York Times?
Alan Rusbridger: There were conversations with the Cabinet Secretary that led me to think that it was wise to share this material.
Q306 Chair: How many people were at the secret ceremony, attended by yourself and others, that took place in your basement?
Alan Rusbridger: There were two from the GCHQ side and I think two or three from The Guardian.
Q307 Chair: You just broke up the hard discs and the laptops. Is that right? Is that what everyone was doing?
Alan Rusbridger: Yes. It is harder to smash up a computer than you might think. I believe they have things like food mixers into which you can drop the computer, which reduces them to dust.
Q308 Chair: So the food mixer was brought to the basement of The Guardian and you popped things in?
Alan Rusbridger: No, we did it with Black & Deckers.
Q309 Chair: Was there any point in that exercise if you had the documents anyway and you were going to publish them, the food mixer thing?
Alan Rusbridger: The serious point is, and it goes back to Spycatcher, that I was completely clear with the Cabinet Secretary that there were copies elsewhere and that the destruction of these computers was not going to stop reporting. I think-
Chair: But they still went ahead and brought the food mixer and you still had the ceremony?
Alan Rusbridger: We did it with our Black & Deckers, but to their instructions. I accept this was a hard choice for the Government. I think they were balancing a free press with security. I understand the nature of the choice, but the point was that I think the alternative to having the newspapers-and you can criminalise newspapers all you like and try to take them out of this-the next leak or the next Edward Snowden or the next Chelsea Manning will not go to newspapers. They will dump the stuff on the internet.
Q310 Chair: Yes, we understand that is a wider point, but on the ceremony it was just a public relations exercise in the end?
Alan Rusbridger: I would not say that, but I would say if their aim was to stop publication and to have a dialogue of the sort that we were having-and Mr Robbins' witness statement makes apparent the reason they did not go for an injunction was because they felt that we were behaving responsibility-they lost control of the documents the moment they destroyed them in London.
Q311 Yasmin Qureshi: From what you have said this afternoon, is it the case that you say that what the newspaper published would not have caused any harm to any intelligence personnel nor put to risk any intelligence operation dealing with security issues?
Alan Rusbridger: I don't know because no one has come to me and said, "This is the specific harm that you have done". I have seen lots of people who have dealt with the security agencies. I have seen the former Lord Chancellor. I have seen former Home Office Ministers and former Foreign Office Ministers, Paddy Ashdown, who was a former Royal Marine. I have seen people who are serious figures who have dealt with the agencies who say that one should always treat the claims of national security with proper scepticism. I think that is a proper thing. The only story that any Member of Parliament has directly referred to is the story about the Tor, the so-called deep internet, which I am very happy to talk about if anybody is interested.
Q312 Yasmin Qureshi: Ben Emmerson, Queen's Counsel, who is the UN Special Rapporteur in counter-terrorism, has just announced they are going to be looking into this whole issue about intelligence-gathering or information-gathering by the US and the UK. I am just going to summarise what he said. He said it is the role of the free press to hold a Government to account and some of the suggestions from the Tory MPs that The Guardian should face criminal investigation are outrageous and even some of the tabloid newspapers are joining that. Are you welcoming the UN investigation into the whole issue of gathering information and the extent of it?
Alan Rusbridger: Absolutely. I think we have just had a long and tortured debate about Leveson and during that debate we heard repeated assurances from all three party leaders that politicians would not interfere in the press. It seems to me at the very first hurdle Parliament is in danger of falling in that. As I quoted earlier, the general counsel of the NSA-so this is not necessarily a friend of journalists, he is a full-time securocrat-said, "Of course, we did not want this stuff in the public and I perfectly understand why intelligence agencies want to keep all this stuff secret". But once it is in the public domain and once it is in the hands of the press, the NSA guy says, "The press must be protected", and that is a wonderful thing about America and I think it is a lesson that we are still learning in this country.
Q313 Yasmin Qureshi: My final question relates to the fact that there have been articles published in your newspaper and, I think, others have expressed at times-and I know the Chair has alluded to this-about the fact there is a question about the extent of parliamentary oversight of the working of the security agencies. I know in the end Parliament will make its own decision, but do you have some suggestions as to a possible way that Parliament can in fact improve or have more oversight of what the security agencies are doing?
Alan Rusbridger: I think somebody has to hold the ring between these conflicting debates. We are not talking about one public interest here. Security is obviously a very great public interest. No one is contradicting that. There is a public interest in privacy and there is public interest in the economic health of tech companies, the economic basis of the digital economy in this country. I have seen a figure of £36 billion as the likely damage to US and UK companies because people are not going to trust these companies on the basis of some of the stories that have come into the domain.
I think you need a privacy advocate. You need somebody external who has the technical knowledge, which I doubt many of the members of that committee have. They have a small budget of £1.3 million. I think there are all kinds of questions that parliamentarians have started asking: whether it is right for this not to be a full select committee of the House, whether it is right that the Chair should be a person who has had dealings with intelligence committees and responsibility for them, whether they have enough resource and so on. I am hearing very helpful suggestions and very interesting suggestions about how the ISC might be reformed as a result of newspaper coverage.
Q314 Ian Austin: What is point of principle? It is obvious, is it not, that all Governments are going to gather intelligence and all Governments are going to keep that information secret? Why should I accept from you that you are better placed to judge what bits of that information should become public? Why are you better placed to be able to be able to judge that than the heads of the security services who say Al Qaeda is having a field day and this has helped Britain's enemies?
Alan Rusbridger: I am not claiming to be better placed than the heads of the security agencies. I am just saying there is a broader debate than just security and the democracy that I want to live in-
Ian Austin: I accept that.
Alan Rusbridger: I don't want the national security to be used as a trump card that says, "I am sorry, you can't publish anything else because national security is going to trump that".
Q315 Ian Austin: I am not suggesting that. What I want to know is when the people who are experts in this, dealing with it all the time, serving the country and trying to protect us all, say that this is stuff that should not be in the public domain, how can you argue that you and the colleagues at The Guardian that you consulted are better able to make a judgment on that? Obviously you do because you went ahead and published it.
Alan Rusbridger: Let us talk about the Tor story. Tor, for members of the Committee who are not familiar with this, is a system of communicating in encrypted form. It was built by the US Navy. It is funded to this day by the State Department. Why is it funded by the State Department? It is funded so that dissidents in horrible countries can communicate safely. That is a good thing, isn't it? It is also used by paedophiles. That is a bad thing.
If we publish a story after talking to the White House for three weeks to say that this is a network that still seems to be safe to use, is that a good thing or a bad thing? It is bad for dissidents and it is good for paedophiles. We use our judgment and, to come back to the earlier question, there was nothing The Guardian published that is not on the Tor's own website.
So Michael Ellis's attempt not to discuss Tor before the Committee failed, miserably.
Q316 Ian Austin: Yes, but I think there are two separate things here. It is one thing to report on the extent of surveillance and to say this information is being gathered and to report the facts that this is happening. That is one thing. I think it is something very different to then transmit the information in a risky way, in an insecure way, which could put at risk security personnel. Those are two very different things, aren't they? I am not worried if the Americans are embarrassed. Reporting the extent of surveillance is fine, but I think the transmission of information and the way you managed it is something very different.
Alan Rusbridger: I took you question to be the judgment of editors versus the judgment of security services, but you are making a different point now.
Ian Austin: It is a separate question, yes.
Alan Rusbridger: We can talk endlessly about how the material was held. The only time the material has leaked has been from the NSA, not from The Guardian.
That is a powerful point, which bears repeating.
Ian Austin: No, I understand that.
Alan Rusbridger: You understand that point.
Q317 Ian Austin: Why were some of the names redacted? I am not clearly why some of the names and some of the information that was sent was redacted and some of it was not. Is it because you did not know what was in all of the 58,000 files before they were sent?
Alan Rusbridger: The redaction was of any documents that we published that might have had a name on it. We have not used any names. In redaction I am talking about published material.
Q318 Ian Austin: Stuff that was just transmitted as it was?
Alan Rusbridger: We did some cleaning up, but we did not clean up every one of the 58,000 documents.
Q319 Ian Austin: What proportion of the 58,000 documents were read before they were sent to other people?
Alan Rusbridger: I could not tell you. I don't know.
Q320 Ian Austin: You don't know what was transmitted do you? The guy Miranda when he was transporting this stuff had the files encrypted but he had a bit of paper in his pocket with the passwords to unencrypt them. That does not strike me, as Ollie Robbins said, as being the best way of looking after secure information.
It is still obviously more secure than the NSA's handling of UK secrets.
Since Austen has brought up the topic of "that guy Miranda" in this Counter-Terrorism inquiry, it is strange that none of the MPs have asked anything about what Rusbridger thought about the abuse of the Terrorism Act 2000 Schedule 7 powers against the family member of the then Guardian journalist Glenn Greenwald and whether this was a threat to a free press in the UK .
Alan Rusbridger: That is not-
Ian Austin: I think that is a matter of legitimate concern.
Alan Rusbridger: What you say is factually not quite right.
Ian Austin: That is what Ollie Robbins told the Telegraph.
Alan Rusbridger: If you read his witness statement-
Ian Austin: I have it here.
Alan Rusbridger: -it is not quite right. What he talks about is the password to one file, which was a kind of index to other files. If you read Mr Robbins' witness statement, which was made 11 days after the material was seized, it is apparent that the encryption on the files themselves have not been broken by GCHQ's finest. There is a supplementary witness statement given some time later in which the case they make for retaining the files is that the police could not break the kind of encryption that was being used.
Ian Austen (a Labour MP although you might not guess this by looking at his website which fails to mention "Labour" on its front page at all) appears not to have understood this carefully worded statement at all.
Deputy National Security Adviser, Cabinet Office Oliver Robbins' witness statement (.pdf)
Austen seems to have failed to research the statement by:
Metropolitan Police Service Detective Superintendent SO15 Counter-Terrorism Command Caroline Goode witness statement (.pdf)
which shows that the only 75 "documents" (are these GCHQ ones or entirely different ones ?) or perhaps only fragments of files, have been "recovered", probably from the "deleted space" of the hard disk, certainly not by using the password on the paper or by breaking the TrueCrypt and / or other strongly encrypted data.
Obviously if the encryption had been broken or the passphrase was known, then they would have had instant access to thousands of files, which is clearly not the case.
N.B. Austen should have pressed Rusbridger about why David Miranda was carrying any sort of paper with a password on it and why there was even " a kind of index to other files" capable of being forensically recovered at all, but he (and the rest of the Committee) failed to do so.
Q321 Ian Austin: Was any of the information taken home from the Guardian by any of your staff?
Alan Rusbridger: No.
Q322 Ian Austin: In the documentary about WikiLeaks, James Ball says that he took a copy of the encrypted documents back home to his flat, but in this case you are absolutely certain that that did not happen?
What has WikiLeaks got to do with this ?
Edward Snowden clearly did not want to go down the WikiLeaks route of "publish everything"
It is instructive that Edward Snowden chose the nickname Verax i.e. truth teller, rather than Mendax (deciever, liar) which used to be an old nickname used by Julian Assange.
Alan Rusbridger: Yes. We were not blind to the sensitivity of this material and we went to more precautions over this material than any other story we have ever handled and this was not being carried around in that way.
Q323 Ian Austin: Just one point of clarification. In the early questions you were asked about the DA-Notices and you said that there was one story that did not follow that process. Was that the Tor story or was that something else?
Alan Rusbridger: The one in relation to DA-Notices? No, that was a story that I think falls into the category of political embarrassment rather than national security. It was about the bugging of leaders at the G-20 meeting in London.
Q324 Chair: In your Orwell lecture in November 2011 you set out a number of criteria, five Rusbridger tests, that journalists must follow if they are going to be involved in intrusive behaviour. Indeed, The Guardian has been commended by this Committee and others for the work you did on phone hacking. Do you think that what you have done meets those five tests in regard to sufficient cause, the integrity of motive, the methods used, that there is proper authority and that there is a reasonable prospect of success? Have they met those tests?
Alan Rusbridger: Yes, we were discussing that this week. I think they are very good tests.
Chair: They are yours.
Alan Rusbridger: It is harm versus good. It is authority. It is proportionality: 1%, not all of it. It is not fishing expeditions. One of the things I said to the reporters right at the beginning of this is, "We are not going to use this as a bran tub for stories. There is stuff in there about Iraq and Afghanistan. We are not even going to look at it". That is not what Edward Snowden was doing when he wanted responsible journalists to go through this material. I believe we have abided by those five tests.
Q325 Chair: Are you in touch personally with Mr Snowden?
Alan Rusbridger: I am not.
Chair: You are not, but somebody else is on your behalf?
Alan Rusbridger: Not since Mr Greenwald left The Guardian. We have no contact with him.
Chair: Can I say to colleagues who have indicated they wish to ask a further question that I am going to ask you to ask only one question? We have the Commissioner coming in. I would like Mr Rusbridger to go before he arrives not for any reason other-I don't suspect anything is going to happen-than that we have another session on counter-terrorism.
Q326 Dr Huppert: There are many interesting things but I would be grateful for any advice you can give us on how we can resolve this fundamental problem that the security services will tend to say, "Trust us, this is a problem but we can't prove it to you", and there is simply no way to explore that properly. We also have the issue that terrorism, like paedophiles, as referred to by my colleague earlier, is clearly something that is so heinous that you should do anything to stop it, and this is often used to argue for further legislation. What is the solution to this conundrum? How can we avoid ourselves being in this constant position where the security services will just claim things and there is no way to establish it? The agencies have the oversight. How can we break that gap? What would your recommendations be?
Alan Rusbridger: As briefly as possible and this is clearly the dilemma at the heart of it. In the real world this is going to come back to Parliament and Parliament and Congress, all countries with security services, are going to have to work out this question of oversight, but those committees, it seems to me, must contain the technological challenge and the representatives of civil society who can represent the public interest in things that are not purely security.
Q327 Michael Ellis: Mr Rusbridger, your journalist James Ball said in the documentary called We Steal Secrets that he took top secret encrypted documents back to his flat, as Mr Austin has pointed out to you. In an online interview, I think on BuzzFeed with David Miranda, he said one of your staffers at The Guardian was due to carry some stolen secret files, got cold feet and then they were sent via FedEx. Did you know that FedEx conditions of carriage included at section 8(16) that that would be an unauthorised thing to do? I think you said to Mr Reckless that you had used FedEx. My question to you is that, bearing all that in mind, do you not accept that you have been at the very least woefully irresponsible with secret information and thereby people's lives?
Allegedly breaking the FedEx conditions of carriage ? Michael Ellis is vainly clutching at straws.
" 8. ITEMS UNACCEPTABLE FOR CARRIAGE
16.SHIPMENTS THE CARRIAGE, IMPORTATION OR EXPORTATION OF WHICH IS PROHIBITED BY ANY LAW, STATUTE OR REGULATION;"
You cannot have a "Shipment" of information or secrets, only of the physical media upon which they might be stored.
Neither the Terrorism Act 2000 nor the Official Secrets Act 1989 prohibits the export of digital media. presumably neither GCHQ nor NSA original media were used by either Edward Snowden or by The Guardian
Alan Rusbridger: The James Bull quote, as you know, is about Wikileaks not about this story at all. It has nothing to do with this story and, no, I don't accept your premise.
Another transcript typographical error: it is "James Ball" rather than "James Bull"
Michael Ellis (Conservative) and Ian Austin (Labour) both need to do more basic research on their Questions
James Ball @jamesrbuk Tweeted:
"The quote referenced relates to before I worked for the Gdn, was Iraq War Log docs, not NSA, and was actually about me NOT taking it home."
Q328 Mr Winnick: Can you clarify the situation of where you go from here or where The Guardian goes from here? The Prime Minister, and I don't quote directly, said in the House that threats have been made, some may describe it as intimidation, use whatever word one would like. Will The Guardian continue to publish, despite all that, revelations from Snowden that you consider should be in the public domain?
Alan Rusbridger: We have been working slowly and responsibly through this material with some of the best journalists in the world, with 100 contacts with Government and agency sources, so we will continue to consult them. We are not going to be put off by intimidation but nor are we going to behave recklessly.
Mr Winnick: I am glad to hear that.
Q329 Paul Flynn: What question do you think this Committee should ask the head of MI5 when he is here, bearing in mind he likes advance notice of questions?
Alan Rusbridger: I think the question that Mr Huppert raised at the end is the crucial one. I have met most of the heads of agencies and I know they are serious people who think about these things but equally it is apparent that some elements of the intelligence services-I am speaking generally and not necessarily about ours-have been a bit out of control, literally, because they were not within the control of people who should have known about it. That is a dangerous state of affairs and, if it is true of America, it is to some extent true here because of the relationship between NSA and GCHQ. So I think the question for the head of MI5 is the one that Mr Huppert raised, which is what is the forum in which this can be meaningfully overseen by people who have an understanding of the technology, are adequately resourced and understand the broader questions and the broader public interests of civil society that are engaged by these questions.
Q330 Chair: Are you quite satisfied that those who protect our country by gathering information and dealing with terrorist organisations like Al-Qaeda, Al-Shabaab and other organisations have not been undermined by what you have done, and those of us who sleep safely in our beds at night should not feel that they have been undermined at all by what The Guardian has done?
Alan Rusbridger: The biggest threat is if you are working in a situation where there are people inside these organisations who are so troubled by what they see and who are troubled by the relationship between the legality of what is going on and what engineers can now do-as President Obama said, what they can do as opposed to what they should do. As long as you have people among those hundreds of thousands of people who are so troubled that they are going to leak these massive databases in order to generate the public debate that the President says is necessary, then you have no security. President Clinton talked the other day about that we are in danger of having a world where there is no privacy and no security. That is a bad situation for everyone, so I think there are mature conversations to be had as a result of what has been published.
Chair: Mr Rusbridger, thank you very much for coming here. You have been clear and open in your evidence. Thank you.