WikiLeaks and the liberal mind

Transparency is not the only liberal value.

The release by WikiLeaks of US government cables is a sheer triumph for transparency.

Transparency in diplomatic and governmental matters is important, for behind the cloak of secrecy and plausible deniability can lie malice, selfishness and incompetence. Open access to reliable information enables us to participate effectively in a democratic society: in particular, voters can get beyond the self-serving spin of politicians and media outlets. In the wise words of Louis Brandeis, one of the greatest jurists in American history, sunlight is the best disinfectant.

But transparency is not the only liberal value. There are others, and these are important, too.

For example, there is the value of legitimacy: those who wield power in the public interest should normally have some democratic mandate or accountability.

However, no one has voted for WikiLeaks, nor does it have any form of democratic supervision. Indeed, it is accountable to no one at all. One may think that this is a good thing: that with such absolute autonomy WikiLeaks can do things that it otherwise might not be able to do. One could even take comfort that WikiLeaks represents the "good guys" and is "doing the right thing".

Be that as it may: one must remember that such self-assumed moral authority is conceptually indistinguishable from the vigilante. If transparency is important, then so is accountability.

Another liberal value is legality: the belief that actions – especially those that affect others – should have a basis in law. The Guardian and New York Times quite rightly have taken the newsroom of the News of the World to task because of the alleged unlawful and criminal conduct of reporters and investigators in gaining unauthorised access to mobile telephone voice messages.

But legality is not just for tabloid newspapers: it (presumably) applies also to broadsheets. Transparency may well be trumping legality in this particular instance, but this does not negate that legality is also important in a liberal society.

A third liberal value is privacy: the belief that, in certain human affairs, private space is required. Here, it is important that people retain the ability to conduct some communications strictly on the basis of confidentiality. If there is no such assurance of confidentiality, there may be no flow of useful information. For example, even the Guardian and its journalists do not publicly disclose their internal legal advice.

In dealing with those who can provide useful information about illiberal and perhaps dangerous regimes sometimes such an assurance of confidentiality can be crucial. Privacy will be less important than transparency in most cases, but such a presumption cannot be an absolute rule.

The disclosure of diplomatic cables appears so far to have been a good thing, and no obvious harm has yet been caused. WikiLeaks has come out of this exercise rather well, notwithstanding the off-putting moral certainty of some of its supporters and their eccentric tendency to un-evidenced conspiracy stories.

Nonetheless, WikiLeaks remains a powerful but undemocratic and unaccountable entity that shows a general disregard for both the rule of law and the practical need for certain communications and data to be confidential. So, from a liberal perspective, there is a great deal to commend WikiLeaks, but there is also a lot that should cause a liberal to be concerned.

David Allen Green is a lawyer and writer. He is legal correspondent of the New Statesman and was shortlisted for the George Orwell Prize in 2010.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Will the collapse of the EU/Canada trade deal speed the demise of Jean-Claude Juncker?

The embattled European Comission President has already survived the migrant crisis and Brexit.

Jean-Claude Juncker, the embattled President of the European Commission, is likely to come under renewed pressure to resign later this week now that the Belgian region of Wallonia has likely scuppered the EU’s flagship trade deal with Canada.

The rebellious Walloons on Friday blocked the Comprehensive Economic and Trade Agreement (CETA). The deal for 500 million Europeans was at the final hurdle when it fell, struck down by an administration representing 3.2 million people.

As Canada’s trade minister, Chrystia Freeland, walked out of talks in tears and declared the deal dead, fingers were pointed at Juncker. Under pressure from EU governments, he had agreed that CETA would be a “mixed agreement”. He overruled the executive’s legal advice that finalising the deal was in the Commission’s power.

CETA now had to be ratified by each member state. In the case of Belgium, it means it had to be approved by each of its seven parliaments, giving the Walloons an effective veto.

Wallonia’s charismatic socialist Minister-President Paul Magnette needed a cause celebre to head off gains made by the rival Marxist PTB party. He found it in opposition to an investor protection clause that will allow multinationals to sue governments, just a month after the news that plant closures by the world’s leading heavy machinery maker Caterpillar would cost Wallonia 2,200 jobs.

Juncker was furious. Nobody spoke up when the EU signed a deal with Vietnam, “known the world over for applying all democratic principles”, he sarcastically told reporters.

“But when it comes to signing an agreement with Canada, an accomplished dictatorship as we all know, the whole world wants to say we don’t respect human right or social and economic rights,” he added.  

The Canadian Prime Minister Justin Trudeau was due to arrive in Brussels on Thursday to sign CETA, which is backed by all EU leaders.

European Council President, Donald Tusk, has today spoken to Trudeau and his visit is currently scheduled to go ahead. This morning, the Walloons said they would not be held to ransom by the “EU ultimatum”.

If signed, CETA will remove customs duties, open up markets, and encourage investment, the Commission has said. Losing it will cost jobs and billions in lost trade to Europe’s stagnant economy.

“The credibility of Europe is at stake”, Tusk has warned.

Failure to deliver CETA will be a serious blow to the European Union and call into question the European Commission’s exclusive mandate to strike trade deals on behalf of EU nations.

It will jeopardise a similar trade agreement with the USA, the Transatlantic Trade and Investment Partnership (TTIP). The Commission claims that an “ambitious” TTIP could increase the size of the EU economy by €120 billion (or 0.5% of GDP).

The Commission has already missed its end of year deadline to conclude trade talks with the US. It will now have to continue negotiations with whoever succeeds Obama as US President.

And if the EU cannot, after seven years of painstaking negotiations, get a deal with Canada done, how will it manage if the time comes to strike a similar pact with a "hard Brexit" Britain?

Juncker has faced criticism before.  After the Brexit referendum, the Czechs and the Poles wanted him gone. Hungary’s Prime Minister Viktor Orban muttered darkly about “personnel issues” at the Commission.

In July, it was reported that Angela Merkel, the most powerful politician in Europe, was plotting to oust Juncker. Merkel stayed her hand, and with German elections looming next year is unlikely to pull the trigger now.

When he took office in November 2014, Juncker promised that his administration would be a “political Commission”. But there has never been any sign he would be willing to bear the political consequences of his failures.

Asked if Juncker would quit after Brexit, the Commission’s chief spokesman said, “the answer has two letters and the first one is ‘N’”.

Just days into his administration, Juncker was embroiled in the LuxLeaks scandal. When he was Luxembourg’s prime minister and finance minister, the country had struck sweetheart tax deals with multinational companies.  

Despite official denials, rumours about his drinking and health continue to swirl around Brussels. They are exacerbated by bizarre behaviour such as kissing Belgium’s Charles Michel on his bald head and greeting Orban with a cheery “Hello dictator”!

On Juncker’s watch, border controls have been reintroduced in the once-sacrosanct Schengen passport-free zone, as the EU struggles to handle the migration crisis.

Member states promised to relocate 160,000 refugees in Italy and Greece across the bloc by September 2017. One year on, just 6,651 asylum seekers have been re-homed.

All this would be enough to claim the scalp of a normal politician but Juncker remains bulletproof.

The European Commission President can, in theory, only be forced out by the European Parliament, as happened to Jacques Santer in 1999.

The European Parliament President is Martin Schulz, a German socialist. His term is up for renewal next year and Juncker, a centre-right politician, has already endorsed its renewal in a joint interview.

There is little chance that Juncker will be replaced with a leader more sympathetic to the British before the Brexit negotiations begin next year.

James Crisp is the news editor at EurActiv, an online EU news service.