The row that has blown up over the leaking of the British ambassador’s private opinions of President Trump and his administration has far-reaching consequences.
In a crude but accurate of an ambassador’s job description, Sir Christopher Meyer in his memoir, DC Confidential, revealed that Tony Blair’s chief of staff had instructed him to ‘get up the arse of the White House and stay there’ when George W Bush was President. Having been effectively barred from the White House, suddenly finding himself with little or no access to Washington’s movers and shakers, Sir Kim Darroch had little choice but to fall on his sword.
Back in London a hunt is now on to find the leaker of those secret ‘diptels’; there have even been calls for the newspaper that published them to be charged under the Official Secrets Act. This is explosive stuff because the ‘freedom of the press’ is one of the cornerstones of a free society.
Freedom of the press is the right to circulate opinions in print without censorship by the government. Americans enjoy freedom of the press under the First Amendment to the US Constitution, which states:
‘Congress shall make no law… abridging the freedom of speech, or of the press…’
In the late 1770s this was remarkable stuff. Across the Atlantic, radical MP and journalist John Wilkes landed in jail for daring to criticise the London establishment in the press.
Wilkes was accused of treason and seditious libel for publishing articles critical of King George III’s government. He was arrested, thrown out of Parliament and put into prison. His legal travails, his publications, and his every movement were covered with great interest by the colonial newspapers. To those breakaway Britons, he provided a powerful example of why liberty of the press was so critical: after their observations of London’s heavy hand, they saw press freedom as vital for their new American state.
However, this declaration of press freedom caused concern, even in the new USA. For example, under the existing Common Law, protection against false allegations of defamation was a long standing legal right. How did that square with a press that had the legal right to print whatever it liked? ‘Fake news’ is no modern phenomenon.
Early American courts struggled with the argument that the punishment of ‘dangerous or offensive writings… [was] necessary for the preservation of peace and good order…’ How did that balance with a free press guaranteed by federal law? That difficult question was swept under the carpet for two centuries after the ratification of the First Amendment to the US Constitution.
Not so in Britain, however. In the early years of the 20th century spy fever gripped Britain. An Anglo-German naval arms race bred a panicky – if totally inaccurate – belief that the country was riddled with spies bent on uncovering the defence secrets of British dreadnoughts and dockyards. A worried government rushed through an Official Secrets Act in 1911 with little debate or opposition. The new Act had extremely wide-ranging powers. There were two main sections: Section 1 contained tough provisions against espionage and concentrated on the theft of military secrets; Section 2 dealt with unauthorised disclosure of government information, making it a criminal offence to disclose any official information without lawful authority.
The absurdity of making publication of even a Buckingham Palace menu a crime was quickly spotted by lawyers and widely ignored.
Across the Atlantic this problem came to light during World War I. In a famous case a man called Schenk had been convicted under the US wartime Espionage Act for publishing leaflets urging resistance to the Draft. This went against the right to freedom of speech protected by the First Amendment.
Justice Oliver Wendell Holmes tried to unscramble the contradiction, ruling: ‘the question in every case is whether the words are used… to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’ He went on to add the all-important interpretation of the legal principle:
‘There is no threat to national security implied in the release of this material. It is embarrassing… but it is the duty of media organisations to bring new and interesting facts into the public domain. That is what they are there for. A prosecution on this basis would amount to an infringement on press freedom.’
The Supreme Court agreed, and held that virtually all forms of restraint on free speech were unconstitutional. The key was that embarrassing the government was no crime; the real illegality was the theft of secrets.
Into this delicate legal minefield one of Britain’s most senior police officers has now blundered. Assistant Commissioner Neil Basu said the leak had caused damage to the UK’s international relations, pompously warning that journalists who publish leaked information risk going to jail. Senior legal figures said that Basu, the head of the Metropolitan Police’s specialist operations, appeared to have set out to ‘protect the Government from embarrassment’ after he issued his warning that the publication of the leaked memos could in itself be ‘a criminal matter’.
The subsequent outrage was both unnecessary and predictable. Sharp-eyed lawyers immediately pointed out that in law, the authorities have to prove that ‘damage’ – not mere embarrassment – has been caused to Britain’s international relations through a leak.
However, nothing that Ambassador Darroch said in his diptels was remarkable. He could have been quoting the views of the Guardian or the New York Times on Trump. Nothing has been published that in any way affects national security. So for the Mail to be threatened with the Official Secrets Act 1989 was a clumsy and unwise thing to do. The real crime is the theft and leaking of the secret diptels. Even then the case is arguable: nothing that has been leaked in these particular diplomatic reports threatens Britain’s (or Britons’) security. However, even if there had been sensitive material involved, it is a decision for responsible newspaper editors to decide whether or not they should publish it.
The authorities quickly realised that a PR disaster was looming; from 10 Downing Street downwards the hapless Assistant Chief Commissioner of the Met was thrown under the bus, ethnic figurehead of ‘diversity’ and Common Purpose mole or not. Even London Mayor, Sadiq Khan, who is responsible for policing in London, said the media ‘must not be told’ what they could publish. Sir Paul Stephenson, a former Metropolitan Police Commissioner, and a mentor to Mr Basu when he was at the force, warned that the police must ‘step very carefully and warily’.
Politicians en masse quickly backed away from what was an obvious tar baby; trying to muzzle – let alone jail – newspaper editors in today’s digital communications world would be political suicide, especially when no lives are at risk from the disclosure.
Here is the key: whereas Julian Assange and his unwitting pawn Private Chelsea Manning stole US military secrets and really did put many undercover lives at risk via Wikileaks, nothing the Mail has published risks anything other than the red faces of officials. So, to threaten editors with the OSA and Court Number One at the Old Bailey was a blunder of monumental proportions.
The irony is that the British press are often far too ‘responsible’. For example, over the Rochdale sex gangs and the Elm Guest House MPs paedophile scandals the press kept too quiet whilst great wrongs continued. They knew all about the Pakistani sex traffickers and they knew all about the behaviour of MPs Cyril Smith and Nicholas Fairbairn; but, under pressure not to rock the political or policing boat, the press stayed quiet. Too quiet, too long.
Press freedom is today a delicate balancing act, requiring skilful tightrope walking by editors and journalists. The threats and heavy hand of Mr Plod would be funny – if it were not so serious.