Richard Delevan’s column in the Tribune serves up the complexity of the McDowell vs CPI story with some alacrity. He starts from the premise the Republic (and most republics) is founded on, ie that the people are sovereign. He accepts that McDowell may have been fully justified in protecting the state from subversive activity. But, he argues, that the people have a right to see the evidence upon which the Minister has taken his extraordinary course of action.He works out from what he argues could be an historical predessessor, that hero of the Roman Republic, Marcus Tullius Cicero:
His way with words got Cicero elected a consul of ancient Rome. He did one brave and vital thing in office. He stopped a plot led by Lucius Catilina, an ambitious nobleman, to overthrow the Republic. First Cicero, under contemporary Dail privilege, made a speech so damning that Catilina fled town. But sleeper agents were left to subvert the city from within while Catilina raised an army nearby. These conspirators sent an envoy to wild Gaul, perhaps to trade expertise in Greek fire for gold; but he was intercepted.
Using this evidence in the Senate, Cicero got the conspirators to confess and then had them sent to the Tullianum prison . . . the Abu Ghraib of its day . . . and hanged without trial. Rome honoured him. Cicero saved the Republic, which was vital. But he did it by exceeding the laws of the Republic, which was brave. Because although he said he acted within his authority, to protect the security of the state, Cicero worried that one day he would face punishment for undermining the very rule of law he secured.
This is a paradox of power.
Republics are occasionally confronted with insidious and existential threats. Meeting those threats . . . by changing, stretching or ignoring their own rules of conduct or by just hoping for the best . . . is up to the people on whose watch the crisis comes.
Asking what Cicero would have made of McDowell’s extraordinary decision to make certain otherwise confidential document available to some journalists, he says:
Cicero might first note the irony. If McDowell or his predecessors had brought Irish defamation laws up to Western standards, we’d have a full hearing in the public arena without recourse to clandestine meetings or Dail privilege. Under proper Freedom of Information rules, the files about the Colombia affair could have been opened to public scrutiny, to everyone simultaneously, including allegations about Frank Connolly.
Informed public discourse could then influence the decision of the Centre of Public Inquiry (CPI) . . . the known work of which is no more threatening than that of Ralph Nader in the US, and arguably of great benefit . . . to continue to employ Connolly and of Feeney to fund the group. And the public would give due weight to the word of a man with serious questions to answer. The sanction short of trial and prison would have been loss of credibility and money at the discretion of the whole public, not one minister.
However he suggests that the minister must now disclose all his reasons and publish his evidence: “I know what I know” simply won’t do. If this is the decisive moment to defeat whatever our current Catiline conspiracy is, if McDowell really wants to stand by the Republic, he’ll make it plain to us plebes.
Stepping outside the laws of the Republic to save it should be painful. Citing Cicero, philosopher JeanJacques Rousseau wrote that dictatorship would sometimes be necessary to repel existential threats to the state. Abraham Lincoln preserved the Union during the American Civil War, but to do it trampled on nearly every freedom and basic law he wanted to secure. What saved the US was that it did not give explicit permission for anyone to repeat Lincoln’s example. It reserved the right to judge leaders whose gambles do not work out so well. In the end, Cicero did what was necessary to save his country. And faced the consequences. He was exiled. Making space within the law for its abuse has been the end of many a republic, right back to the first one.