4 July 2001. Thanks to Greg Palast.

From Index on Censorship June 1999

KISSING THE WHIP

Britain's two leading editors and a reporter face jail for printing a story embarrassing the government - but objections to this assault on freedom of the press were slow and timid.

GREG PALAST reports on how Britain's journalists learned to love the censorship that lashes them.

On March 17, on an order from the London Metropolitan Police, reporter Martin Bright of the Sunday Observer, his editor and lawyers for the editor of its weekday sister paper, The Guardian, were brought before a judge at the Old Bailey. On pain of imprisonment and unlimited fines, the British court ordered the reporter and editors to turn over all internal notes relating to stories about a former MI5 agent. The reporter and the editors refused.

One week later at a black-tie soiree at the Hilton Hotel, I found myself in a meandering, champagne-lubricated debate with a disturbingly articulate gent defending the government's right to censor and restrict news reports. My interlocutor, Guardian editor and Observer CEO Alan Rusbridger, was the very man facing time in the Queen's dungeon for refusing the court order.

I was not surprised. It is the subtle brilliance of British censorship and news suppression that its prime victims, the nation's editors and reporters, have developed a nodding acceptance of the principles justifying limits on their freedom, a curious custom of English journalists to kiss the whip that lashes them.

The news community's response to the writs against editor Rusbridger, reporter Bright and their papers was slow to form. In a land of cautious protest and measured defense, The Observer itself delayed for a week covering its own punishment, unsure whether readers found their paper's repression newsworthy.

Weeks passed. Finally, a petition was got up, signed by media notables. With their plea to the Government to drop the prosecutions, the petitioners conceded, "We recognise the need to protect national security," a mannered diffidence to the state's ultimate authority over the printed word grating to my American ears. The journalists also demanded: "The Official Secrets Act should be reformed to allow a public interest defense." Reform? The Official Secrets Act prohibits the publication of almost any document or fact which the Government chooses to conceal, from the salaries of public officials to educational statistics. The polite protesters would grant the right of the Crown to arrest journalists, but they requested wide exceptions. Petition organizers knew a demand to abolish the repressive Act outright would have chased away key signatories.

The Guardian editorialized in its own defense, but again, it's complaint was carefully circumscribed. The paper targeted the plain silliness of the Government's writ. The Guardian had done nothing more than print a former MI5 agent's letter to the editor. Ironically, the former agent, David Shayler, grumbled in his letter that the Guardian did not take his allegations against the Government seriously. The Government demanded the newspaper hand over the physical copy of the agent's letter (as it turned out, the computer tape holding an e-mail message) - despite the fact that Shayler himself sent a copy of the letter directly to the authorities.

Similarly, The Observer report contained little more than a note that a US Internet site had posted information corroborating agent Shayler's accusations. Apparently, Shayler had tipped The Observer to this public information. While ANY communication by an ex-agent violates the Official Secrets Act, the police did not need the reporter's letter files, as they claimed, as unique evidence of Shayler's alleged violation of the law - Shayler himself had sent the government copies of his messages to the paper.

Yet, the sheer foolishness of the Government's demanding documents already in its possession is evidence of a more sinister aim. By showing it will punish minor infractions of its secrecy laws, government succeeds in freezing any journalist's attempt to dig out deeper and more dangerous truths concealed within secretive agencies. Worse, journalists, defending their minor infractions, trap themselves into justifying the greater censorship. "As a newspaper," wrote The Observer, "we have no difficulty with secrets or with the principle that secrecy, where necessary, should be protected by the law."

By acceding to limit itself to "legitimate" inquiries, to use the timid terminology of the journalists' petition, the papers open the door to state policing to root out the "illegitimate."

Most American readers, who still think of Britain as Mother of our democracy, will be surprised to learn that the United Kingdom remains one of the hemisphere's only nations without a written constitutional guarantee of free speech and press. That is about to change in October as Article 10 of the European Convention on Human Rights becomes UK law. The Convention will allow Britons, for the first time, " to receive and impart information and ideas without interference by public authority." The case against Guardian AND Observer is the Government's pre-emptive strike to define away those new rights.

The court and government were quick to agree that the new Human Rights law applied to the current prosecution of reporter Bright and the newspapers. This was not good news. Whereas the US constitution states, "Congress shall not restrict the freedom of the press nor of speech" - no ifs, ands or buts -- the European Convention adds a nasty little codicil, "Part 2." In the March 17 hearing, the Judge ruled that the right to "receive and impart information" - i.e. freedom of the press - was subject to Part 2's " restrictions and penalties in the interests of national security." How fitting that in the land of George Orwell, the law bars the Government's controlling the press - unless the Government decides to do so. Prime Minister Blair's minions clearly intend the Guardian Group case to establish from the inception of the Act that a right is no right at all.

[Sub-head: D-Notice Blues]

On April 15, the censorship-self-censorship vaudeville opened a new act. That day, reporter Bright saw a copy of a 4-year-old MI5 document detailing the security agency's bungled attempt to recruit a Libyan spy, a cock-up which appears to have led to the murder of a Libyan dissident living in London. The "TOP SECRET DELICATE SOURCE UK EYES" document can be read by anyone with a mouse and time on their hands at www.Cryptome.org. Observer reporter Bright drafted a story (with Antony Barnett) about the information on the web-site.

Despite its open publication on the site, repeating this information invited criminal and civil penalties. (In fact, READING the web-site's content is a crime in the United Kingdom.) To avoid another writ, The Observer contacted the Defense Advisory Committee, the "D-Notice" committee, a kind of government confessional where journalists may whisper their unpublished thoughts and information and ask, in confidence, "If we publish, will we have sinned against the State?" The agency suggested that if paper could prove their news report contained no new news - an interesting restriction for a newspaper - then prosecution MIGHT not follow.

However, there was another censor yet to contact: the Treasury Solicitor who held a two-year old injunction against any British newspaper publishing any information whatsoever from former agents. Just 5 minutes before the printing deadline, the Treasury telephoned. Four hours passed (and four editions with front page filler where the article could have run) as the government bargained with the editors and the paper's lawyers who, in the face of ruinous fines, found themselves with little choice but to fax to MI5 the unpublished draft of the story.

The paper asked two simple questions: would publication violate the law? And, can we publish? The government said it would not stop publication, but neither would not promise not to prosecute the reporters and editor if publication went ahead. MI5's position had a serpentine brilliance: blocking the article would get them a, "OBSERVER GAGGED AGAIN!" headline. By keeping open the HINT - but not the THREAT - of prosecution, the official spooks meant to lure the paper into withdrawing the story while the government could claim it censored nothing.

Laudably, the paper went ahead with publication for its last edition, though it "voluntarily" left off the web site's address. Reporter Bright finds the procedure deadly to the ethics of news coverage. "It's crazy but the law says we can't do what journalists should always do: check with the sources, review the key documents. We have to break the law to break the news."

[Self-censorship is in the breeding.]

The D-Notice Committee, the reluctance to ban publication outright, the seemingly sympathetic bargaining, all serve to foster the habit of self-censorship. Rarely does government brandish the implements of coercion because news people are bred to a strong sense of the boundaries of public discourse. In this class-poisoned society, elite reporters and editors are lured by the thrill of joining the inner circle of cognoscenti with ministers and titled military intelligence men. The cost of admission is gentlemanly circumspection.

Britons, as they constantly remind me, are SUBJECTS not citizens. British-born journalist Christopher Hitchens, scourge of authorities on two continents, stunned Americans by submitting to deposition by US government prosecutors during the impeachment trial of President Bill Clinton. Clearly, habits of subjugation die hard.

The state extends its power to punish unruly reporters through libel laws which, in effect, privatize enforcement of state censorship. I have yet to publish a single column in a British newspaper as written, uncarved by lawyers fearful of ruinous court action by well-funded litigious bullies running the gamut from McDonald's Corporation to the Prime Minister himself.

Astonishingly, some British journalists are not shy about borrowing this brutal weaponry of the state to censor others. The Government's writs to the Guardian followed just after closure of the Magazine LM. The lefty periodical had disclosed that a powerful piece of British anti-Serb war propaganda, a photo of starving Bosnian prisoners behind barbed wire, was "manipulated." The pro-government photojournalists, backed with corporate funding, made good use of the British court's revulsion with LM's admittedly vile and preposterous denial of Serbian fanatics' war crimes. The legal fees more than the judgment bankrupted the dissident publication.

These libel laws, while crippling the work of investigative reporters (the Guardian's computer won't accept any copy prior to a reporter's answering the machine's query, "LAWYERED?") hardly protect the public. England's tabloids like the DAILY MIRROR are notorious cesspools of character assassination, rumor and vicious fabrications.

The censorship debate, to the extent there is one, is helplessly tangled with controversies over journalistic ethics. The step down the slippery slope to endorsing censorship usually begins with a justifiable concern for individual's privacy. Concern turned to obsession after the public blamed press hounds for allegedly chasing Princess Diana to her death. At the cocktail party, the editor Rusbridger posed the case of a news photographer taking snooping shots of a family in their garden. Fair enough; but it is not clear why an editor needs Jack Straw, Britain's Home Secretary, to mark out the ethical boundaries for his journalists.

When other arguments against unfettering the press fail, the ultimate defense by officials eager to censor and journalists ready to comply is that a government open to scrutiny is "not British." Certain freedoms offend what some Britons call their "culture" which, on examination, is nothing more than a debilitating combination of long-established habits of subjugation mixing too comfortably with the preferences of the powerful. As revolutionaries from Ho Chi Minh to Margaret Thatcher have shown, cultures can, and must, change.

***

American journalist Greg Palast, based in New York and London, writes a fortnightly column for The Observer. Palast is best known in the Britain as the investigative reporter whose undercover work led to "Lobbygate," the first major expose of corruption within the Blair Government.

You may read and subscribe to his reports and view his BBC TV broadcasts at www.GregPalast.com.