A huge storm has blown up in the media and among MPs over the action of the police in arresting the Tory front-bench shadow immigration minister, Damian Green, holding him for nine hours (including two hours of questioning), searching with considerable rigour both his offices (including his office in the House of Commons) and his two homes, and taking away documents, his Blackberry, his mobile phone and, according to some reports, his computer. They also blocked his parliamentary e-mails for most of a day.
It certainly looks as if the police yielded to the itch for drama and allowed themselves to get carried away by their enthusiasm for tracking down leaks of government information and teaching those responsible for them a salutary lesson. They may also have been pretty obtuse if they failed to foresee the amount of indignation and anger that their treatment of Mr Green would inevitably provoke. But before we all get carried away on a tide of protest, it’s worth trying to nail a few myths, many of which are prominently featured in today’s media reports.
Myth No. 1: That Mr Green was arrested and his homes and offices searched by anti-terrorism officers, acting under anti-terrorism law. The police have denied that anti-terrorism officers were involved in the arrest, questioning or searches, and that Mr Green was arrested on suspicion of offences under any anti-terrorism law. Even the police would hardly issue such a denial if the truth was otherwise. (The Guardian publishes this denial but elsewhere reports as fact that anti-terrorism officers arrested Green in connection with suspected offences under anti-terrorism legislation, and prominently publishes a letter protesting at such abuse of anti-terrorism law and powers.)
Myth No. 2: That Mr Green was arrested under the Official Secrets Act. Contrary to some reports, there’s no evidence that Mr Green is suspected or accused of any offence under this Act. (It seems that the arrest etc was on suspicion of “aiding and abetting misconduct in a public office“, a common law offence which seems to refer to the action of the junior Home Office official accused of leaking information to Mr Green, not to any “misconduct in a public office” by Mr Green himself, although this is not yet 100% clear.)
Myth No. 3: That the police action was in breach of “Parliamentary privilege”, a term much bandied about in media interviews and reports. But parliamentary privilege does not protect MPs from arrest or investigation, charge or trial, in connection with suspected breach of the law. Nor does it prevent the police from pursuing their investigations within the Houses of Parliament — especially as in this case they had sensibly taken the precaution of informing the senior official of the House of Commons, the Serjeant-at-Arms, of what they intended to do. (According to several reports, the Speaker was also informed in advance, presumably by the Serjeant-at-Arms if not by the police direct, and raised no objection.)
Myth No. 4: That the documents leaked to Mr Green were classified ‘secret’ (as alleged by, among others, the Guardian; the FT prudently says only that they were ‘sensitive’). We simply don’t know, and probably never will, whether the documents were ‘secret’, ‘confidential’, ‘restricted’, or indeed even ‘unclassified’.
Myth No. 5: That since no ministers were told in advance of the police’s intentions regarding Mr Green, no minister can be held responsible for what the police did; and anyway the police are independent of political control in operational matters (which is true). However, those informed by the police in advance appear to have included the Secretary to the Cabinet and Head of the Home Civil Service; the Permanent Secretary at the Home Office (who had originally asked the police to investigate the leaks to Mr Green); and the Mayor of London, Boris Johnson (who, according to some accounts, did raise doubts over the need to act as proposed). As the FT remarks, “last night Whitehall insiders were incredulous at the idea that [the Cabinet Secretary] and [the Home Office permanent secretary] did not immediately inform ministers once they were told what the police intended to do.” Even if ministers were not told in advance, as they seem to be claiming (although in rather suspiciously cautious language about not having “been involved” in the decision), the fact remains that they should have been. If they weren’t told, they are evidently guilty of a culpable failure to ensure that their senior officials knew what kinds of information needed to be passed immediately to ministers. “Nobody told me, guv” is no defence for a minister whose department has behaved wrongly. If the police are deemed to have exceeded their powers, or to have breached parliamentary privilege (e.g. in interfering in Mr Green’s ability to communicate with his constituents), or to have acted in a political context without proper political authority, or simply to have over-reacted in a manner disproportionate to the nature of any offence apparently committed, then the Home Secretary, Jacqui Smith, is responsible and should resign. This was not a purely operational matter, as the police tacitly recognised when they gave advance warning of it to senior officials and the Mayor.
Myth No. 6: That it is the duty of civil servants to leak information to MPs or the media if they believe that the information reveals dishonesty, other immoral behaviour, or policies to which the civil servant objects on moral or political grounds. No such duty exists or can exist. Indeed in any such circumstances an official has a duty to protect the confidentiality of the information in question but also a duty and right to take his or her objections or qualms to higher authority in the civil service, up a prescribed route, and ultimately to the head of the civil service himself. If this produces no redress, the official may ask for transfer to other, unrelated duties, or, in the last resort, must resign, and (provided that he or she is willing to risk prosecution for doing so) only then take the information to an MP or the media. All governments of whatever party and whatever country need to be able to protect certain kinds of information from being revealed publicly, for example when it relates to discussion of possible policy options before decisions are taken, or information provided to government in confidence, or information whose disclosure is likely to damage national security: and they are entitled to rely on the discretion of their officials in protecting that confidentiality. It’s not for an unelected official to override the policies or decisions of elected ministers as to what information should be released, and when it should be released. Those who can’t accept such restraint on their freedom to pass whatever information they like to whomever they like don’t belong in the public service.
Myth No. 7: That whistleblowers are performing a public service and should be protected. There’s room for legitimate debate about this as a general proposition, subject always to the considerations in Myth No. 6 above. But there’s no evidence so far that in this particular case the Home Office leaker was motivated by conscientious objection to any particular government action or policy. The leaks seem from the nature of the information leaked to have been motivated mainly by a desire to provide ammunition to the parliamentary opposition and thus to cause difficulty for the government. If that proves to have been the case, there would seem to be no possible argument for protecting the leaker from the consequences of his or her action.
Myth No. 8: That MPs (especially opposition MPs) and ‘investigative’ journalists can’t do their jobs without receiving leaked information from moles within government. This is stated with startling clarity by John Kampfner, former editor of the New Statesman, in a column in today’s Guardian:
What is the point of the media if it does not see its primary task as gathering information to hold power to account? Investigative journalism takes time and money. One can count on the fingers of perhaps two hands the serious practitioners, many of whom rely on whistleblowers.
It’s depressing to find such an experienced and sophisticated journalist as John Kampfner propounding such a dangerously inflated — indeed distorted — view of the main function of the media, as well as the pernicious doctrine that it’s perfectly OK to collude in, and benefit from, the commission of an offence by another person so long as the objective is the noble one of “holding power to account”. The same untenable view is implied by the Guardian‘s editorial comment today.
It’s right to draw a distinction between on the one hand the action of an MP or journalist who receives a brown envelope through the post, unsolicited, containing juicy information, however improperly leaked, and who then makes public use of it; and, on the other hand, action by an MP or journalist actively to incite a public servant to provide sensitive information in breach of his or her duty of confidentiality. Since improper leaking of information by an official is an offence (whether under the Official Secrets Act or, as here, apparently, under common law), inciting another person to commit such an offence must itself be an offence as well, perhaps in some cases the offence of conspiracy. Damian Green’s Tory colleagues have strongly denied that he had in any way encouraged the alleged leaker to leak, e.g. by offering either money or any other kind of inducement for the leaked information. It may or may not be relevant that the leaker had apparently asked for a job in Damian Green’s parliamentary office and had been turned down.
There are those — and no doubt some of them will comment indignantly on this post — who see no need for confidentiality at any time for any information held by government; who regard all attempts at protecting the sensitivity of certain kinds of information as a conspiracy by ministers and officials to deceive the public by withholding from it information to which it is morally entitled; and who believe that all secrecy is prima facie evidence of criminality. Such an extreme view hardly deserves to be rebutted. There’s no government in the world that works in a totally transparent goldfish bowl; and it’s unlikely that all the world’s governments are engaged in a sinister conspiracy against their own citizens (even if some undoubtedly are). It’s certainly true that successive British governments have been and still are unnecessarily secretive, not venturing to make public much information which in practice could (and sometimes should) be released without the slightest risk of damage to the public interest. The Freedom of |Information Act has gone a considerable way towards overcoming this obsessive secrecy. All the more reason, then, to reduce to the absolute minimum the unsavoury, and possibly illegal, reliance by MPs and journalists on the betrayal of their duty by moles within government. Leaks are of course bread and butter to both opposition MPs and journalists, so it’s hardly surprising that this episode has stirred up such self-righteous indignation in both media and parliamentary circles. Cui bono? The government’s case on the other side is largely going by default: there’s so far been a sad lack of ministers or others stating a perfectly proper and persuasive case with the explanations required to convince ordinary people of its cogency. Most ministers are MPs too, and probably expect to be in opposition shortly, whereupon they too will suddenly recognise the rightness and necessity of leaks.
But I still think the police action was excessive!
Brian
Today’s (20 November 2008) Guardian publishes a letter from me about Lord Bingham’s recent declaration that the attack on Iraq was illegal, and the counter-arguments by Lord Goldsmith, Attorney-General at the time, that it was not. As the edited and published version (perhaps inevitably) omits some of its nuances, here is the original text of the letter as submitted to the Guardian:
Sir,
Lord Bingham‘s authoritative declaration that the UK and US attack on Iraq was illegal, and Lord Goldsmith‘s reasons for disagreeing, raise very important questions and you are right to call for a full public inquiry into them (Time for a full inquiry, Editorial, November 19). The government’s argument that the invasion, without a Security Council resolution explicitly authorising it, was nevertheless legal is set out in the Attorney-General’s advice to Mr Blair of 7 March 2003 and now repeated by Lord Goldsmith. It argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. Any public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.
Any inquiry also needs to establish an authoritative interpretation of the UK’s formal “explanation of vote” on 1441, explicitly disavowing any “automacity” in the resolution (“There is no ‘automaticity’ in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities”). This was widely assumed at the time to mean that 1441 did not imply authority for an attack on Iraq without a further Council resolution authorising it. If it didn’t mean that, what did it mean? Did other Council members agree to drop the explicit requirement for a further Council “decision” in exchange for an assurance by the sponsors of 1441 that it would not be taken as authority to use force without a further decision by the Council?
These may sound like unimportant technicalities, but we need definitive answers to them if we are to be able to judge whether our own elected government committed a war crime in March 2003.
Yours sincerely
Brian Barder (HM Diplomatic Service, 1965–94)
London SW18http://www.barder.com/ephems/
19 November 2008
[Hyperlinks added -- BLB]
There’s a fuller discussion of these and other related issues in my Ephems blog post of April 2005 at http://www.barder.com/ephems/194, which shows how long we have been waiting for answers to all these questions. Some of those answers might be provided in the book about the whole Iraq affair by Sir Jeremy Greenstock, the UK Permanent Representative to the UN at the relevant time, and subsequently the senior representative of the British Government in Baghdad soon after the invasion and occupation. Sir Jeremy, much to his credit, has not been unduly reticent in expressing strong views about the failings of the US and UK governments during his time as a senior public servant and major participant in these events. Unfortunately, however, ministers have so far blocked publication of his Iraq book: all the more reason for a full public inquiry, without further delay, into all the events leading up to and following the invasion and the occupation.
More than five years have passed since March 2003, and there can be no grounds for arguing that the findings of an inquiry, however damning, could somehow damage the status or morale of British or other coalition forces now on active service in Iraq. Whatever the outcome of a proper fact-based scrutiny of the legality, or lack of it, of the original attack on Iraq, no-one can doubt that there’s a sound legal basis, approved by the UN, for the presence of coalition forces now. We need an inquiry, not just to rake over the blunders and probably the crimes of the past, nor even mainly so that those who were responsible for them can be held to account, but more fundamentally so that the necessary lessons can be learned for the future conduct of governments and for the role of the United Nations.
Meanwhile, as we continue to wait, no-one should lightly dismiss the Guilty verdict now pronounced by Lord Bingham, very recently retired as the senior Law Lord and formerly both Master of the Rolls and Lord Chief Justice, generally acclaimed as probably the finest legal mind of his generation. He will have chosen his words with the utmost care and only after rigorous scrutiny of the issues. The suggestion (by a Labour MP) in another of today’s Guardian letters that he should “read UN resolution 1441″ before expressing an opinion is simply sad.
[1] Up-date (21 November 2008): Comments below by Robin and Ed Davies show that I was technically and actually wrong to describe the illegal attack on Iraq as a “war crime” — the term used in the original title of this post and also in my letter to the Guardian. I should have said “crime of aggression“, which, as Ed shows, is no less serious:
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. [Robert H Jackson, chief American prosecutor at Nuremburg, quoted here]
(However, I take some comfort from Jackson’s use of the word ‘other’ in this quotation, suggesting that initiating a war of aggression is a member of the family of ‘war crimes’, distinguished from the others by being the ‘supreme international crime’.)
Brian
In case any reader of this hasn’t already heard it, President-elect Obama’s first weekly address, delivered on 15 November, can be seen and heard on YouTube at
http://uk.youtube.com/watch?v=Zd8f9Zqap6U .
It lasts some three and a half minutes.
It’s also available on The Huffington Post (online newspaper) of 18 November at –
http://www.huffingtonpost.com/2008/11/15/obama-urges-congress-to-m_n_144035.html
The meatiest part of the extended interview with the Obamas on the CBS “60 Minutes” programme on 16 November is at
http://www.cbsnews.com/video/watch/?id=4608192n
The rest is on other clickable clips from the programme in the right-hand panel of the page (complete with Viagra commercials).
There’s also a transcript (with more links to the video clips) starting at
http://www.cbsnews.com/stories/2008/11/16/60minutes/main4607893.shtml
and continuing on several more pages (with a link to the next at the end of each page). It combines policy discussion with more personal stuff: well worth hearing or reading, IMFFHO.
Extract on government borrowing (George Osborne and David Cameron please note):
Kroft: Where is all the money going to come from to do all of these things? And is there a point where just going to the Treasury Department and printing more of it ceases to be an option?
Mr. Obama: Well, look, I think what’s interesting about the time that we’re in right now is that you actually have a consensus among conservative Republican-leaning economists and liberal left-leaning economists. And the consensus is this: that we have to do whatever it takes to get this economy moving again, that we’re gonna have to spend money now to stimulate the economy.
And that we shouldn’t worry about the deficit next year or even the year after. That short term, the most important thing is that we avoid a deepening recession. [Emphasis added]
Newsflash:
The fullest account that I can find of Lord Bingham’s important lecture questioning the legality of the attack on Iraq is in the Daily Telegraph of 17 November, at http://bit.ly/dhFn. The full text of Lord Bingham’s lecture seems not yet to be available online. Lord Goldsmith’s response looks like the most explicit statement issued so far of the proposition that there was no need for a “second resolution” of the Security Council. There’ll be some comment on this soon in Ephems — watch this space.
Brian
The final results of the US presidential election are not yet in [16 November 2008], but we know enough to highlight some key figures. With 66.7 million popular votes and counting, and with a lead of 6.5 percentage points over John McCain, Barack Obama won more popular votes than any other US presidential candidate in history: nearly 8 million more than John Kerry in 2004, and a cool 15.7m more than Al Gore in 2000 (when Gore won more popular votes than G W Bush, but lost in the Supreme Court – remember?). Obama’s share of the popular vote (52.6%) was the highest of any Democratic candidate since LBJ (1964), and higher than any Republican since 1956 except GWH Bush, Reagan (1984) Nixon (1972) and Eisenhower (1956).
Some suggest that Obama won because many Republicans failed to vote, but the figures scarcely confirm this: John McCain won 58.3m votes (46.1%, comparable with GW Bush in 2000 with 47.9%), 3.8m fewer than GW Bush in 2004 but 7m more than the same Bush in 2000. Each candidate won a very respectable share of the vote, on probably the highest percentage turnout (over 60%) for 40 years. Those who imagine an entire American population transformed by the election into leftish, colour-blind liberals need reminding that Senator McCain, after a policy-lite campaign driven by smears, innuendos and outright lies, and representing the party of the most unpopular President in American history, nevertheless won 58.3 million votes across the country, including an estimated 55% of white voters, taking almost all the mid-west (from Montana and North Dakota southwards) and the south, apart from Colorado, New Mexico and Florida (which Obama narrowly won, 51–49%). Equally sobering, McCain was ahead in the polls until the breaking of the financial crisis and his frivolous selection of Governor Palin as running-mate, two factors that probably lost him the election.
The victory of President Elect Barack Obama is hugely welcome to almost everyone in the outside world, as several polls confirm; but he will have a monumental task in living up to the extraordinary expectations that have been raised as he confronts the challenges of climate change, global recession, world poverty, terrorism and foreign oil dependency, and two unwinnable wars – the poisoned chalice about to be handed to him on 20 January by outgoing President George W Bush.
Selected sources:
http://www.infoplease.com/ipa/A0781450.html
http://www.taipeitimes.com/News/world/archives/2008/11/06/2003427930 (quoting AP)
http://www.100bestwebsites.org/alt/evmaps/electoral-maps.htm
http://www.npr.org/news/specials/election2008/2008-election-map.html#/president?view=race08
Brian
Thanks to my trusty filial Webmeister-in-Chief, Website and Blog Manager, Ephems has had another major makeover. It’s now even more closely integrated with its parent website and the very useful ‘Search’ facility at the top of each page has been restored to health, now for the first time searching the whole of the website and not just the blog. It’s now possible, also for the first time, to append comments to most web pages as well as all blog posts.
The categories in the bar along the top — “Politics”, “Family”, etc. — take you to a list of relevant website pages, but not Ephems blog posts. In contrast, those in the panel down the right-hand side take you to lists of relevant Ephems blog posts (but not to non-blog pages). Many of the non-blog pages are cross-referenced with hyperlinks in blog posts, so it’s generally easy to hop from one to the other.
There are other changes, too, but most won’t affect — or be noticed by — visitors and contributors to the blog and website.
If Manners Makyth Man, vigorous comment makyth a blog. So please keep those comments coming in, whether dissenting or supportive, earnest or witty. Personal abuse and foul language are easily and swiftly deleted, but apart from them (almost) anything goes. Please, though, resist the temptation to write your comment in Word, and then copy-and-paste it into the blog Comment box at the foot of the relevant post. I try to remove all the Word formatting imported with a comment. I do this partly to preserve a reasonable uniformity of style in the blog and to reduce the formatting clutter that documents written in Word generally carry with them, but also because occasionally a comment with Word formatting contaminates subsequent comments with changes of font size and style that are then surprisingly difficult to track down and eliminate. My website guru is working on a gadget that might automatically clean out Word formatting tags and clutter from comments as they are uploaded, but that great work is not yet completed. So I’ll appreciate it if you will write your comment directly into the box provided in Ephems, or as a last resort write it in Notepad (although this has fewer formatting options than the Comment box) and copy-and-paste it from there.
Brian
Last night was an exciting time to be in New York. Our younger daughter, L, voted in the morning for the first time in an American national election since becoming an American citizen: there were no queues outside the polling station, and inside we watched the orderly line of voters patiently waiting for their turn to work the levers in the black-curtained voting booths. Earlier in the day there had been queues stretching from the entrance to the polling station on E 67th street right up to Second Avenue and round the corner going up-town. It was an unseasonably mild, sunny day: a hopeful augury for the innumerable Obama supporters, saucer-sized Obama buttons and T-shirts everywhere, not a sign of McCainines. But this was New York, not America.
In the evening L gave an election night party for an excited crowd of perhaps 30 or 40 friends and relations, ranging from teenagers to septuagenarians like J and me. Obama faces, buttons, T-shirts, and posters filled the small Manhattan apartment. Sixteen-year-old lads with guitars chatted to such affable household names as Gene Drucker, one of the two leaders of the fabulous Emerson Quartet, and his Blackberry-and-iPod-Touch-enabled wife Roberta.
.JPG "A new dawn?")
As the wine and beer and diet Coke flowed and heaped trays of food vanished down anxious throats, two television screens and the computer monitor delivered instant news of results beginning to trickle in. We cheered when CNN, followed by the other main channels, projected an Obama victory in Pennsylvania, then soon afterwards in Ohio too. Sighs of relief and rapid calculations: a CNN poll analyst demonstrated on an interactive map that even on the most optimistic reckoning for McCain, he couldn’t now reach the magic 270 electoral college votes. Then, on the dot of 11pm, the screen was filled with a new CNN projection: OBAMA ELECTED PRESIDENT. We cheered and clapped and there were some tears.
We had to wait some 30 minutes or so for the McCain concession speech, a lot more graceful and generous than his campaign had been up to this moment of defeat. Another few minutes’ wait, and almost on the stroke of midnight, Barack Obama, President-elect of the United States of America, led his wife and young daughters out onto the stage in a packed Grant Park in Chicago to wave to a crowd estimated at 125,000 people, cheering and waving back, laughing, smiling, weeping. A momentary close-up showed the tears rolling down the cheeks of Jesse Jackson, somewhere in that vast crowd. Obama had his serious look, head lifted in that slightly aloof magisterial way of his, but then his face lit up with his broad, happy grin: he kissed Michelle, then each of his little girls, and went to the rostrum and microphone to acknowledge wave after wave of cheers from his happy adoring supporters. Later there were clips of delirious crowds dancing and singing in the streets across the world from Sydney to — of course — Nairobi.
So there was welcome symbolism in the accident of the victory speech launching a new day, moments after midnight. For us there was even more potent symbolism in that timing: on the stroke of midnight our older granddaughter, L2, turned 18 and came of age; born in England to an American father and a British mother, just a few hours too late to be entitled to join her parents on that historic 4 November, 2008, in voting for the new President. We drank champagne to celebrate the two happy events and I told the new adult that in four years’ time she would be voting to re-elect the President. Enthusiasm and renewal and coming of age were in the air.
L’s partner D, the evening’s generous host and caterer, read my mind and offered me the use of his computer to record the evening’s historic (for once the accurate adjective) events for this blog. I was tempted, but it was by now past 1am and I wanted a few hours to mull over it all. On Lexington Avenue as we began to disperse to our hotels and apartments there were still some people celebrating, but moments later it began to rain. Absit omen!
Reflecting this morning on a momentous night J and I were irresistibly reminded of another joyous election night, on May-Day, 1997, when another young fresh-faced leader, elected after years of destructive right-wing rule, came on national British television, kissed his wife and bade us welcome a new dawn for our country, as his supporters cheered and wept and waved and laughed. Tony Blair’s message of optimism and change 
had also lifted our spirits. The glorious early summer weather of election day had also seemed to confirm the start of a new age, and indeed for the first few years of the new government many cobwebs were swept away and wrongs remedied. But the expectations that Blair and Brown had raised were impossible for any mere human or group of humans to satisfy over the long haul. And the circumstances that they inherited were incomparably more manageable and malleable than those which will face President Barack Obama as he delivers his inaugural address to an expectant nation, to a passionately relieved and hopeful world, on 20 January, 2009.
The damage and wreckage of the George W Bush years will take years to clear up and repair: two bloody and hopeless wars, a world economy in collapse, America in imminent danger of a new depression. Yesterday millions of Americans voted for more of pretty much the same under John McCain, many of them convinced that Obama, not content with being black, was and is a ‘socialist’ (we should be so lucky!), a Muslim, a neophyte and a friend of terrorists. Some will make the effort to accept the decisive verdict of democracy in action: others won’t be able to do so. We should keep reminding ourselves that if it had not been for the collapse of the American economy half-way into the election campaign and a suicidally inept and irresponsible choice by McCain of a running-mate, Obama might well have lost this election. The Republican minority in the Senate will have ample opportunities to block or delay radical measures from the Obama White House. Obama himself is already committed to expanding the unwinnable war in Afghanistan. Above all, none of the extreme difficulties facing the new administration at home as well as abroad will be susceptible of quick fixes. But the relief, joy and hopes of almost the whole of the rest of the world will be behind Obama, as he seeks to put flesh on the bones of his brilliant and pithy campaign slogan: Yes, we can.
Yes, he did.
Brian
New York City, 5 November 2008
http://www.barder.com/ephems/
