Here is a transcript (mine) of part of an interview that William Hague gave to the BBC back in June: “If you are a law-abiding citizen of this country, going about your business and your personal life, you have nothing to fear. Nothing to fear about the British State or intelligence agencies listening to the contents of your phone calls or anything like that. Indeed you’ll never be aware of all the things which those agencies are doing…”
Of course, in the manner of powerful people throughout time immemorial, the potential difference between ‘law-abiding’ and ‘conforming’ is not something that Mr Hague chose to dwell on. After all, that would mean he would have to talk about – perhaps, even, think about – the difference between a law-abiding democracy and a free society. There is, after all, no guarantee that the former will embrace the latter.
This is perhaps best seen – and with due respect to Godwin’s Law – through the experience of Germany in the 1930’s. It is often not fully appreciated that the Nazi phenomenon was first and foremost the product of success in democratic elections; secondly, in all of its perversity it was consistently carried through by strictly legal processes. (This is, of course, why it is a fascinating area of historical research – the Nazis were nothing if not thorough, and left a comprehensive bureaucratic trail documenting their descent into depravity and darkness, possibly best epitomised in the Wannsee conference of January 1942.) It was Goebbels who first formulated and proclaimed the maxim ‘You have nothing to fear if you have nothing to hide’, and it is disturbing that a member of the Cabinet who has published works of history can echo such language with apparent sincerity.
In order to have a free society, there are a number of elements that need to be in place. Democracy certainly helps – the possibility of ‘throw the bums out’ can act in such a way as to make the political leadership of a state responsive to public pressure. Moreover, a consistent framework of law can also enable a free society, especially if it is applied consistently to every citizen, and not able to be exploited by those with private access to the rich and powerful, whose agendas can be advanced by the judicious application of a ‘Bernie’ to the ‘pretty straight sort of guy’ in power. So my point is not that democracy and the rule of law are, in and of themselves, antagonistic to a free society. No. To use a philosophical expression, they are ‘necessary but not sufficient’. In other words, democracy and the rule of law need to be present for there to be a free society, but they are not enough on their own.
For a free society to function, there have to be a number of competing centres of authority, and a distribution of power. This is what lies behind the famous ‘separation of powers’ in the US constitution, between the legislative, the executive and the judicial; it is, in other words, a remarkably conservative and Burkean vision, where there are plentiful ‘little platoons’ of civic organisation. In a free society there are some things which the state simply is not allowed to do. For example, the medieval understanding of ‘habeas corpus’ established legal protection against arbitrary detention by the state; that is, it established a measure of sovereignty for the individual over against the state. Similarly, there are many ways in which the protection of private property stands as a bulwark preserving individual freedoms. Most of all, perhaps, are all the laws, customs and practices in a society which preserve a tradition of free speech and assembly, within which the authority of a central state can be questioned without fear of legalised harassment and persecution.
These are the issues which have crystallised in my mind relating to the detention of David Miranda in Heathrow Airport last week, and the consequences for the Guardian Newspaper. For those who have not been following the details of the case, David Miranda is the (Brazilian) partner of the journalist Glenn Greenwald, who was the person responsible for breaking the story of Edward Snowden, and revealing the way in which our central authorities (GCHQ here, the NSA in the United States) routinely capture and monitor all of our conversations and e-mail exchanges. Miranda was detained for several hours of intensive and intimidating questioning when he was temporarily in Heathrow, changing flights, and he had property taken from him (computer disks).
This in itself is bad enough, although no doubt a ‘reasonable’ case can be made defending this particular action. However, this led to a quite remarkable sequence of events at the Guardian newspaper offices. The Guardian editor, Alan Rusbridger, had been the recipient of a number of intimidatory requests from our central government, seeking to have the Guardian’s journalistic project (releasing the Snowden material) brought to a close. This, admirably, Rusbridger refused to do. Consequently, at the direct behest of members of the security services, and under their watchful eye, the hard drives of the Guardian computers containing copies of the files were physically destroyed (more details about all of this can be obtained from the newspaper itself).
There is something darkly comic about this, and I am not sure that Monty Python could improve upon such a scene, even if the GCHQ people were wearing red cardinal outfits. The action was, in all practical terms, utterly futile – there is now, after all, this remarkable new invention which you might have heard of, called the internet, which means that not only does the relevant information not have to be stored at the Guardian’s offices, but nor does the journalism published by the Guardian have to be carried out there, or even within the UK at all. So nothing of any significance was actually accomplished. It was simply a form of ritual theatre, a piece of absurdist symbolism displaying just how illiberal and unconservative this Liberal and Conservative government is prepared to be.
The more I ponder such events as these – and there have been many similar ones in recent times – the more I am convinced that nobody who isn’t prepared to be swallowed up by the dominant norms of a culture, whether in terms of sexuality or religious belief or cultural preference can rest easy. Our politicians have become trapped within an institutional logic which seeks to attract more and more power to itself, ostensibly for the purposes of combatting terrorism, but in practice simply doing what all power has always done – try to accumulate more – and in the process force to the margins and into oblivion all those who don’t fit in.
There is no end to this process, except what can be brought to bear from the outside. If we believe that freedom is worth preserving, then this process must be exposed, and contradicted. As a remarkable book dealing deeply with these themes once put it: “People should not be afraid of their governments. Governments should be afraid of their people.”