The cases of Edward Snowden and the WikiLeaks publisher Julian Assange have aroused all manner of discussion. But the legal aspects have been somewhat overlooked in the Spanish media, even when harsh terms are used in revilement of these two personalities, holding that their acts have violated the privacy of persons who appear in the leaked documents, and that they are "predators of liberty" (Vargas Llosa, in the pages of this newspaper).
I consider, however, that what might prima facie appear to be violated is not so much the right to privacy, as the right to secrets of state. That is, what has (lawfully) been classified as secret and thus excluded from public knowledge, in order to preserve legitimate "goods" that can be considered deserving of protection in the interests of state security.
Concerning the information in the WikiLeaks cables - of only marginal interest - or in Snowden's leaks, what derives from this information from diplomatic or similar ambits, is general public knowledge of matters that often, though not always, concerns security, or the role played by certain political actors. Of course, in many cases the same leaks also violate the personal privacy of persons mentioned in them. But what is chiefly at stake is the security of the state, although it is not necessarily put in danger. So it is interesting to take a closer look at the exact meaning of the term "secrets of state," at least in systems based on democratic principles.
From the legal angle, the Snowden case poses a problem in terms of his loyalty to the administration he was serving
"Secret of state" is a limit placed on the general principle of freedom to publicize all actions of the public power. It answers the need to exclude from public knowledge certain themes that concern the security of the state itself; a limit to the fundamental right to send and receive information affecting the citizen, with particular attention to the news media and to certain public employees.
However, there is no doubt that, within the coordinates proper to a democratic state, secrecy is an exception and not a rule. It must always be clear that when national security is invoked, it refers to the military ambit and to security with regard to threats proceeding from the exterior. It cannot be a wild card that enables a government or its agents to apply the term "secret" to any information whatsoever.
One good example of the necessarily exceptional character of secrecy is the fact that many democratic states have recognized the citizen's right to access to information generated by the public administration. The earliest law of this nature was enacted in Sweden as early as 1776, while the 1966 US Freedom of Information Act recognizes the right of access to administrative documents. Many other countries, including Spain, have laws, not necessarily well observed, which at least pay lip service to this principle.
From the legal angle, the Snowden case poses a problem in terms of his loyalty to the administration he was serving. But the information that has become public knowledge thanks to the repented spy's action has enabled us to know, for example, that the United States had an electronic spying system focused also on the European Union. This is a fact that, in any open society, is undeniably a matter of public interest. The US government cannot just point to the defense of national security. President Obama's cynical argument is unacceptable: "I think we ought to make it clear that all intelligence services, not only ours [...] have a task: to attempt to reach a better understanding of the world, of what is going on in the capitals of the world, on the basis of sources that are not available in The New York Times and NBC News..."
Had it been the other way round, it is hard to imagine Mr Van Rompuy of the EU saying something of this nature. After all, when such sources are used in such an all-embracing manner, the real predators of liberty are the political representatives of the democratic state.