Hassan v United Kingdom: “human rights law is not rhetorical”

Camp Bucca, Iraq, which prison is under US authority. (Photo: 2009 / NYT)

On December 11, the European Court of Human Rights (ECtHR) heard the case of Tariq Hassan, the applicant, a former detainee of Camp Bucca in Iraq, arrested a month after the beginning of the hostilities, then found four months later, his body riddled with bullets, 600 kilometers away from the camp, his hands tied behind his back. Although he had been released from Camp Bucca, he was still carrying his UK-issued Camp Bucca ID tag. The hearing had made waves: the University of Essex was allowed to submit commentary on the case as a third party, and a delegation of Supreme Court judges from around the world were in attendance. This hearing was not a simple case of jurisdiction, as the United Kingdom representative made it out to be. This hearing touched on two core principles: whether human rights law is suspended in times of armed conflict, and the position of a government regarding its own war crimes when security documents are suddenly declassified. The opening sentence of the United Kingdom set the tone for the following two hours: “if I wasn’t nervous before, I’m nervous now.” And well he should be.

“the UK detained the applicant under the pre-emptive assumption he was an enemy combatant.”

Tariq Hassan was captured by British armed forces in Iraq under the suspicion that he was an “enemy combatant”. Detained and interrogated, he was later released after being considered a civilian by the British, who thought fit to keep him in the camp “as Iraq was a dangerous place”, and a civilian would be better off in a British camp than back home. If both parties are disputing jurisdiction, it is based on whether or not the “active” part of military hostilities were still taking place back then, or if the United Kingdom had effectively become an occupying power, per the Geneva Convention. Throughout the course of the hearing, several inconsistencies on the official status of Tariq Hassan will surface: a civilian, suspected enemy combatant, armed combatant, security threat – all of which can be tied to whether the hostilities were still taking place and the UK was effectively at war, or if persons non engaged into active hostilities could be deemed, by default, civilians. If the UK kept on arguing that military action was legitimate in the case of the applicant, who was found on the roof of his house carrying an AK-47, circumstances need to be taken into account: carrying assault rifles was lawful in Iraq at the time, and the applicant acted lawfully. Whether he posed a security threat to British armed forces in Iraq at the time has always been questioned by the applicant’s counsel, who argued his arrest and detention were linked to the applicant’s activity as a high-ranking official of the Ba’ath party. A debate before the Grand Chamber of the ECtHR could not solve the question of the determined date of the end of active hostilities in Iraq, or what could make an enemy combatant out of a civilian. The issue raised – and the claim made by the applicant under Article 5 – was whether it was justified to apprehend an individual, in a context of armed hostilities, and detain him under the pre-emptive assumption he was an enemy combatant.

The UK will maintain their position throughout the hearing, referring to international humanitarian law (IHL) and the Third Geneva Convention (GC3) in a way that will later explain Justice Secretary Chris Grayling’s position this week. The government asserted and repeated that soldiers are the time were “ill-equipped” to make a judgement on the category of armed combatant they were dealing with, later to say “we can not expect soldiers to apprehend someone, and question themselves: ‘what paragraph of the Geneva Convention is this in relation to?'” he would argue, in response to the Court’s questioning. The counsel, however, argues that the arrest and detention was not arbitrary; detaining Tariq Hassan was “a bargaining chip”, a tool of intimidation against the real target of the military operation, the applicant’s brother, a general in El-Quds Army. The counsel rejects the remise that the applicant was an enemy combatant. Its only crime, they say, was to be related to one, which, in the context of the invasion in Iraq and the permanent, global quest for security and safety launched by the United States and the United Kingdom, is enough to justify arrest and detention. In short, Article 5 does not apply, because one, even as a civilian, is a combatant by proxy, by virtue of blood or location.  The government’s claim that Hassan was deemed “probably a civilian” is just one of many inconsistencies mentioned during the hearing that only confirm the fact that military operations in Iraq at the time, classified up until September, were riddled with issues of territoriality, responsibility and, most of all, accountability.

Appropriate and relevant documentation shed a different light on the story for both parties. The applicant, which alleged a violation of Article 2, was swiftly rebutted by the Government in a way that somehow defies logic: there could be no allegation of ill-treatment, the government said, because, due to its civilian status, the detainee must have been released. Discrepancies on the date of release, the area of the camp in which Hassan was detained, and the obscure circumstances of his release are apparently irrelevant: the Government assumes that no violation could have taken place since the Government would have never been in position to violate the law in any way. The location and the timing of the discovery of Hassan’s body are still an issue of contention; the fact that he was detained after being cleared, however, for “security reasons” – his own security – leaves a lot to be desired as to how the United Kingdom interprets the conditions of Article 5 (1) . Never mind the classification of the operation up until September 2013, about a year after the applicant first made their claims to the Court: as far as the United Kingdom is concerned, in the case of the death of a former civilian detainee in one of their camps in Iraq, “there is nothing to investigate, there is no basis to engage the responsibility of the United Kingdom”.

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James Eadie QC, Counsel for the UK government: “so, this is where Article 5 is .. in juxtaposition with IHL…”

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“… anyway, my point stands, with respect to the Court, that Article 5 is not applicable.”

To evade said responsibility, the Government made it clear it did not recognize the claim of jurisdiction. Ensued a battle of the legality of jurisdiction in the Iraq war, that could be a simple matter of legal hierarchy if it did not imply a vacuum in accountability for possible violations of human rights in Iraq. According to Article 1 of the Convention, extraterritorial jurisdiction is exceptional. What could be more exceptional than the case of an international armed conflict in which the member state later becomes an occupying power? In a sentence that echoes Lord Sumption’s recent assessment of the ECHR, which he accused of “expanding the scope of human rights law”, the Government explained that this case could not be made as a “fundamental development of jurisdiction”, and this on general principle. According to the government, this is an IHL issue, definitely not under the scope of British jurisdiction, therefore the applicant had no claim to petition to the ECtHR. But what constitutes jurisdiction in international armed conflict? The concept of effective control of the area (ECA) will be defined, redefined, stretched and reduced to being clearly meaningless in the eyes of the government, which could not possibly refuse it had ECA under international law without, in the same step, claim it hereby fell under United States jurisdiction. There can be no void of territorial jurisdiction in armed conflict; if a state can claim it has become an occupying power, and “shared some duties” with another occupying power like the UK claimed, it falls beyond the scope of ECA. The Government found itself in the extremely difficult position of trying to reject a claim of responsibility without arguing in favor of another state – an ally – having this responsibility instead. Given the extent of the US and UK collusion in this case, the battle was lost before it even was addressed before the Court.

According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

Trying to reject the ECA, the UK argued  that we “need to be thoroughly cautious when establishing jurisdiction. (…) the UK had become effectively an occupying power (…) and were holding the fine line before anarchy… but that doesn’t mean the UK had effective control of the area.” Since the UK insisted on referring to GC 3 as being the only relevant covenant applicable to this case, a cursory glance at the definition of occupying power the Hague Regulations can be relevant. Article 42,

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Hague Regulations, also mentioned in the opening statements, are pretty clear on the duties of the occupying power and its relation to ECA. On Article 43,

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The reference to the UK holding back against “anarchy” clearly satisfies the “public order” criteria; the application of Article 5 of the Convention is also just as clearly in accordance with the 1949 Geneva Convention protecting civilians. Is there such a thing as a civilian in modern warfare? Has the attack on March 20th, 2003 erased the concept of presumption of innocence? It appears to be so, as the United States often excuse their strikes on non-combatant bases as targeting people loosely linked, or related to, combatants – combatants that have never been defined as such after interrogation and investigation. Tariq Hassan was a civilian, but his status had to be defined as such post interrogation as he was pre-emptively deemed a combatant. This is in violation of the Geneva Convention, regardless of whether the active part of hostilities in Iraq had ended or were still under operation, a concept that the UK tried to raise and was quickly dismissed by the applicant’s legal counsel. The UK seemed to operate under the idea that in times of armed conflict, human rights law is displaced. The Court had several questions in that regard, especially considering the UK had assumed Article 5 would not stand and would prefer to see itself subjected to GC 4. However, GC4 is unequivocal in the protection of civilians in armed conflict.

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

There is no displacement of Article 5 of the Convention under IHL. Article 5 of the Convention maintains the status of civilians and still claims that their rights cannot be renounced. In a previous debate at the House of Lords, Judge Brooks had expressed that it was “utterly unreal” that the United Kingdom be held as having ECA in Iraq, even after they had become an occupying power. In effect, the UK is contesting the very Geneva Convention it is proposing to uphold in lieu of the Convention… by claiming two mutually exclusive concepts, being an Occupying Power and being responsible and accountable under law as having jurisdiction per se. The Government claimed, visibly frantic as he tried to assert his position before a Court that was more than skeptical:  “you can not expect states to establish jurisdiction and all affordable existent rights in cases where they can not practically do so”. According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

The Court had several questions. Between the US and the UK, who effectively had jurisdiction? Why is the US interrogating detainees in UK custody? How is the UK arguing it was not bound by the Convention, but by GC 4, and how did it explain the alleged lapse in legal coverage? How is the UK addressing the massive discrepancies between what is reported and what has emerged in light of the declassified Blackwatch documents?

Why does it appear, in light of the opening statement and the applicant’s declaration, that the UK not only had little control as an Occupying Power, but was not operating alone in the classification, determination, and release of its own prisoners of war?

“The extent of control as exercised by the UK in Iraq was far beyond usual military activities”

The applicant’s claim was simple: this is under British jurisdiction. The UK was in control of military operations area; the applicant was arrested by UK state agents; he was interrogated, in part, by UK forces; the UK was in control of the camp, which it had derived from the US. The UK was hereby, under Convention as well as IHL, responsible for the applicant’s welfare. Attempting to create a legal void in a conflict zone to avoid accountability can not be upheld by the Court. According to previous jurisprudence, the concept of state agent has no clause for exclusivity or derogation of rights. If the UK tries to escape jurisdiction and refer strictly to IHL – which, again, is in complete accordance with the Convention, it is simply “to substract out of its obligations”. Smith v Ministry of Defense also discussed the same issue: it extends powers of the Convention at home and abroad. Details revealed by the recently declassified Blackwatch document precises that “British armed force were strongly encouraged to intervene in local disputes”, and “extent of control as exercised by the UK was far beyond usual military activities.” Camp Bucca was created for criminal justice purposes. The complete theory of avoidance and dismissive attitude of the UK government in regard for human rights law under the pretense of armed conflict is irresponsible. As stated by the ECtHR itself in the Al-Nasri case, “human rights law is not illusory or rhetorical”.

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Tim Otty QC, Counsel for the Applicant: “there is no displacement of Article 5 in the absence of derogation. I would like to go back to the facts.”

Perhaps one of the most telling moments of the hearing was the hurdle faced by the UK government in trying to explain that not only did it not provide derogations as facilitated by Article 15, but that instead of following a lawful way to extend its powers of detention – at war and at peace time – it suggested a modification (!) of Article 5. According to the representative, the conflict of legislation intervenes when Article 5 provides a thorough and almost absolute prohibition of arbitrary detention – “but the Geneva Convention allows a belligerent state to kill in warfare; but detention would be restricted because of Article 5?” the so-called absurdity hereby pseudo-denounced by the UK government is expressively what the UK policy in its intervention of Iraq and Afghanistan has demonstrated: that it reserves itself the right to auto-derogate to human rights law in conflict zones, so as to provide not only a realm for its forces to kill, but also detain, interrogate and torture protected persons under international law, for the simple reason that war is war, and war is dirty, messy, bloody, and sometimes, absurd. If anything happened during this hearing, and if anything had to be strongly emphasized from the applicant’s statement, is that nothing can be considered in absolution of human rights law. Contrary to what the UK government claimed, there is no lex specialis that could ever authorize gross violations of human rights law under the pretense of international armed conflict and situations in which armed forces are, as they said, “ill-equipped” to behave lawfully with parties concerned by the occupation. There is no derogation clearly formulated simply by circumstance. Perhaps knowing that a derogation under Article 15 would be refused, the UK simply marched into Iraq, and expected its own domestic courts to affirm that human rights law had effectively been suspended. It wasn’t, has never been and never will be. Only recourse for the UK at this stage would be with withdraw from the Convention, which would mean withdrawing from the rule of law altogether. This will still, nevertheless, not stop the violations of the Geneva Convention to be made.

Once the applicant had made this point, he paused, and said he would “like to return to the facts.”

The declassification of Blackwatch documents has been briefly addressed, but was absolutely necessary in the course of the hearing. The obtention of these documents by the applicant helped focus and speed up a process by revealing discrepancies and inconsistencies between the information formally submitted by the UK to the Court, and what was effectively reported and documented by armed forces on the ground. The previous declassification of Blackwatch documents as obtained by the applicant were heavily redacted, and this for national security concern; whether those concerns pertain specifically to the Hassan case, the applicant continues that it has remained wholly unexplained. The relevance of the arrest and detention of Tariq Hassan by UK forces – and its second screening and interrogation by US forces – seems to be beyond what the UK has claimed, saying the applicant was of “no intelligence value”, and had been hereby released two or three days after his arrest. However, the date of his release in the Blackwatch documents is different than from the date specified by the UK government; the detail that the applicant has been interrogated not just by the UK forces, who had arrested him, but also by US forces, who technically did not hold authority over that part of the camp, was also revealed. Faced with this strange and ominous example of collusion the UK government struggled to find an appropriate answer:

I … I would have to double-check… It is believed to be… I am not certain. (…) There were loads of people in the camp at the time… The US and the UK were sharing duties.

When pressed, after this monologue interrupted by flipping pages and shooting anxious glances, the representative of the government replied: “the punchline (sic) is, there was a sharing of duties by the UK and the US, yes.” Asked whether the camp was effectively, however, under UK authority, the answer was yes. Later on, when pressed by the Court a little more on the question of why the UK had not asked for derogations under European law, the representative replied: “On the question of Article 15, this, haha, er, haha way above my paygrade, I don’t need to, haha, get shouted at hereafter.” It became absolutely obvious at this stage that the declassification of Blackwatch document was a massive hurdle to overcome for the UK government, and answering for its behaviour in the early stages of the Iraq War was not something it was prepared for; an expectation was surely made that it would avoid the scrutiny of the ECHR, given the lapse in time since the arrest of Tariq Hassan, and domestic UK law requiring that inquiries be made in a timely manner (European law also stipulates that investigations must be made in a reasonable timeframe, and no independent investigation has ever been launched in the UK for the death of Tariq Hassan).

It is incumbent to the United Kingdom to face its own decisions (…) in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. 

More dismissively was the question of why Tariq Hassan, supposedly released from Camp Bucca three months before his death, was still carrying his UK-issued Camp Bucca ID tag with him when he died. Asked what the policy on ID tags were, the UK government replied, “we’ll check back on what the policy was (…) but my point is that it doesn’t prove anything about anything.  Contemporaneous evidence was that he was released. If stage agents are involved in the killing, we need more evidence. The theory that we detained the applicant as a hostage for his sought-after brother is not supported. Theories of UK responsibilities are being peddled.” Hassan, who, once again, was still detained in the “civilian area” (sic) of the camp after he was cleared in order to ensure his safety, was last seen and heard by UK forces, in a UK controlled area. The reason why Hassan would leave and be later executed while carrying his UK ID tag appears to be a coincidence to the United Kingdom. If the UK did not have ECA in Iraq, who did?

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“Saying ‘we’ll go to war, we’ll ignore the provision, and argue for lesser rights’ is not, respectfully, a position to take.”

The applicant closed the hearing, replacing the details of Tariq Hassan’s arrest, detention and death into the broader context – the accountability of crimes committed during the Iraq war, and the necessity to refer to existing bodies of law in order to ensure the application of the rule of law even in times of war. The applicant said, “it is not enough for the United Kingdom to answer ‘we will think about that question’, because that question is specifically what this hearing is about”. Truth is, not knowing – or pretending not to know – about war crimes can no longer stand in an era where classified documents are now at the core of a battle between legal specialists and governments for their declassification. Earlier than same week, Ben Emmerson, who had attended the Al-Nashiri, Abu Zubaydah v Poland hearing – called for right to truth and access to documents hidden for “national security purposes”. The retired judge Lord Gibson  just released a report proving the widespread use of torture by British intelligence forces in Libya. The declassification of Blackwatch is no different. Without said declassification and the obtention by the applicant, legal proceedings would have come to a grinding halt. It is incumbent to the United Kingdom to face its own decisions – in situations where it is an occupying power, a belligerent, or in complete collusion with a belligerent state – in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. The applicant was clear in asserting that there is no basis nor justification for the arrest and detention of Tariq Hassan under either European human rights law or IHL.

Without having lawfully attempted to extend its powers of criminal justice over the territory of Iraq as permitted by Article 15, the UK chose to act differently and carry out unilateral decisions made without the protection of the law. The circumstances of the death of Tariq Hassan are not clear, even after a two-hours long hearing; the discrepancies in the story, however, are addressing the core of the current climate of national security and foreign policy. There is no immunity in a state of war, and there is no escaping the scope of human rights law simply due to armed intervention. Contrary to popular belief and what is enforced at domestic level in both the United States and the United Kingdom, there are still instruments in place to provide accountability for the hundreds of thousands of Tariq Hassan’s across Iraq, Afghanistan, Somalia, Yemen, Pakistan. In the words of the applicant,

Saying “we will ignore those provisions, we will go to war, and argue for lesser rights” is not, we say with great respect, a position to take.  (…)  Engaging in armed conflict, with all the consequences that will flow, must be done in accordance with international law. The United Kingdom says that a derogation is a measure of last resort.  We say, respectfully, that engaging in armed conflict – or at least we hope – is a measure of last resort.

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Safe European Home: the Glenn Greenwald divide

Can Glenn Greenwald enjoy one fine day of plain sailing weather? Nope. Not this wednesday.

On Wednesday,  the (in) famous journalist, who found himself tied to NSA whistleblower Edward Snowden over six months ago, was to testify before the European Parliament’s Civil Liberties Committee to address the question of civil rights violations and attaining security concerns over the “leaks”. In an apparition via video link that lasted a little over an hour, Greenwald had the opportunity to address the representatives of European countries, themselves either cooperating with or being the target of the NSA – and in some cases, both – to defend his work, his conviction, and what has also become a serious invasion of his own personal life, as one of the few owners of those hundreds of thousands of documents Edward Snowden took with him. It was 5.30am in his timezone: affable, smiling, available, consistent, and firm in his positions, Greenwald opened the door for debate within the European Union on the topic of GCHQ, counter-terrorism policies, and of course that of asylum provisions for Snowden. What has emerged of this hour spent in the company of Members of the European Parliament (MEP)’s company, is that voices clearly and strongly differ on the issue of freedom of the press, freedom of information, and national security. Thanks to Greenwald, at least, those concerns are now out in the open.

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Glenn Greenwald addressing the European Parliament Civil Liberties Committee

“Just the fact that communication exists is reason enough for the NSA to collect and store”

Greenwald opened his testimony by a dose of strong reality. “Keith Alexander made comments about how the NSA wants to collect all data communications”, he started. “The goal of the NSA is to ‘collect it all’, ‘know it all’, ‘exploit it all’.” Reinforcing the idea of an all-encompassing tentacle wielding-monster taking over the world, Greenwald made sure the MEPs present made no mistake: the NSA is not targeting anyone specifically in their methods, nor are they interested in wading through data to look for one specific red flag. The NSA wants it all, and it wants it immediately. “The NSA is obsessed, institutionally, with methods that are impervious to their spying, and are trying day to day to invade those communications slipping away from their grasp.” Greenwald was referring to methods of encryption that have since become common amongst journalists and freedom of information activists – an encryption he did not used before being in contact with Snowden, but that the whistleblower insisted on having him install. Due to the extremely invasive nature of the NSA communications, encryption became a necessity.  The confusion lied within the need for a rationale, a coherent narrative, a political motive behind NSA activities and the incredible scope to which they have been taken. In front of befuddled MEPs, Greenwald affirmed: “the NSA doesn’t need a reason to collect. Just the fact that communication exists is reason enough for the NSA to collect and store. It’s an overarching theme.”

The key of Greenwald’s testimony lies within his explanation that the NSA operates on a new paradigm. If governments and executive agencies have justified derogating to civil rights for counter-terrorism purposes for as long as measures such as Article 15 in Europe would allow them to, NSA has and is way beyond a simple method of surveillance made and meant to provide safety from specific individuals engaged or suspected of engaging in nefarious activities. Greenwald hammered home the point that the mass and indiscriminate collection of metadata was the end goal; not surveillance – which would imply there is something to watch. NSA goal is the watching. All types of intimidate activities one citizen is engaging in in their day to day life, their relationships, their medical history, their professional records, their drinking habits… All of that finds its direct context with metadata. A simple phone call can’t reveal as much as other methods of communications surrounding the topic mentioned in the phone call. There is “virtually no constraints” for NSA and its British co-conspirator, private security firm GCHQ.

There is a reason why the right to privacy is enshrined as a fundamental right; it is through private activities, beliefs and communications that we develop personalities, habits, and opinions. When members of a society are operating under mass and indiscriminate surveillance – usually associated with anti-democratic, tyrannical regimes – they find themselves modifying their instinctive habits, second-guessing their acquaintances, and reframing their opinions in order to conform to what the authority in charge is expecting from them; ensuring their safety by self-censoring, hereby stifling dissent by themselves before it even emerges. In short, mass surveillance deprives us of the freedom to be an individual. Mass surveillance is a violation of fundamental human rights.

Greenwald must be sick and tired of answering those questions by now, but he nevertheless engaged with the first concern to be expressed: the now slightly stale debate of “leaks” – published classified documents – vs security interest”. Calm and collected, Greenwald reaffirmed core principles of what European courts had already decided back in 1989: the decision to publish the documents provided by Edward Snowden was cautious, and journalistic integrity, basic elements of safety balanced with public interest helped make the decision on which documents were to be released through The Guardian and which were to remain in the dark. The apparent consensus around a hypothetical recklessness on Greenwald and Poitras’ part in publishing the document has been the one element placed forward by their detractors, accusing them of lacking basic professional ethics and enough intelligence to discern what was necessary to divulge. Greenwald has always taken the time to explain the painful process of not only deciding if taking on Snowden’s request was the right idea, but also jumping into the paranoia-inducing rabbit hole of following an asylum seeker in possession of classified documents around the world. If Greenwald always takes the time to stress the human cost of Snowden’s actions and plead for understanding and political support of the whistleblower, it’s important to stress that it has taken a toll on Greenwald as well.

“None of that is counter-terrorism. It’s diplomatic intimidation, economic advantage and manipulation of power.”

Addressing this concern was the representative for the Green Party in parliament who expressed concern for Greenwald’s safety, following the episode of the UK’s detention of his partner, David Miranda, under the ATCSA 2000 – in clear violation of Article 10. Of all world governments attacked by NSA, Brazil has been the more vocal, active, and thankfully protective of Greenwald’s activities – in a time when European outrage was somewhat shaded in the wake of revelations that French, British, Norwegian and Danish governments were cooperating with the agency. Greenwald was quick to mention that even in matters of cooperation, “no one and nothing matches the NSA in terms of destruction of privacy. No one is on the US and the UK’s level.” Not content to create a massive, global, violating overreach, the NSA activities created the corollary of destroying the concept of press freedom – attacking and intimidating anyone trying to denounce and oppose their policies. It concerns Greenwald, obviously, but also took the shape of an eerily kafkaesque dystopia when Alan Rusbridger, the editor of The Guardian, faced an inquiry at the British Parliament – during which he was asked if he “loved his country”. In a time where the UK is suppressing civil rights at the speed of light and rejecting the authority of European courts, Greenwald’s warning was ominous: “European legislators should take steps for the protection of journalists.” And of us all, too.

Who else raised legitimacy issues but the British conservative representative? Once again questioning the role of Greenwald and Poitras in releasing these documents, he seemingly objected to the qualification of whistleblower, arguing that to be recognized as such, an agent must have blown said whistle to the relevant authorities within the agency then to legislators. Taking the direct step of contacting a journalist – and an independent one at that – is probably, in the eyes of European conservatives, an unforgivable act of political dissent, of borderline anarchist anti-conformism. Despite the various attacks against Snowden and Greenwald, from both sides of the spectrum, from all walks of political intervention and commentary, the same element remains: this apparent gravity-defying faith that a government not only has the citizen’s best interest at heart, but that refusing to use the (little) resources the system has to offer deserves alienation of punishment. From calling Snowden a traitor to condescendingly beg him to “come home and face the consequences of your actions”, Snowden detractors are willingly – or even worse, subconsciously – omitting one significant detail Greenwald highlighted: the Obama administration has prosecuted more whistleblowers in the last 5 years than ever. The legal protection for whistleblowers is inefficient and, in the case of a federal agency leak, virtually inexistent. More importantly, Greenwald reiterated that Senators who had objected to NSA policies in the past had been silenced of ignored. In the face of seeing the highest ranking legislators in the nation being effaced from a much needed conversation, what was Snowden to do? What other recourse could he sensibly have? Expecting Snowden to have moved within the motions of a system designed to block concern instead of addressing it is simply conveniently ignoring that whistleblowers are thrown down the memory hole.

Truth of the matter is, in political history, there are simply no instances in which a government was given the extensive power of mass surveillance without eventually abusing it. Engaging in “responsible and accurate” journalism is supposed to be an effective remedy to a woefully inadequate system of checks and balances. Greenwald has restored the idea of “activist journalism”  in which the responsibility he is undertaking touches on the core of the right to truth recently reaffirmed by the United Nations addressing the issue of hyper classification and resulting judicial blockade. Western governments have been so stuck in this permanent loop of freedom versus safety that a security state has been implemented without much possibility for freedom of expression – hereby becoming what they were initially denouncing. As Greenwald commented, “abuses must be challenged in courts and be subjected to accountability, but that’s not the case. None of that is counter-terrorism. It’s diplomatic intimidation, economic advantage and manipulation of power.”

Greenwald’s actions are in essence not that radical; they are merely acts of personal conscience 

What to make of this intervention? Despite expected ignorance on the American front, the UK was very quick to respond to Glenn in the form of more misguided attacks and deliberate lies. Louise Mensch, the internet’s litmus test of intelligence, was of course first in line to disparage Greenwald’s intervention and reanimate Cold War ghosts of trading secrets with foreign enemies and engaging into information leaking for profit. If Mensch should be easily dismissed, she was followed by Julian Smith, a British MEP who falsely accused Rusbridger of lying to Parliament on the subject of Snowden documents and their delivery / retrieval by Greenwald. The mistake Smith made was to make his commentary on the very public platform of social media to which  Greenwald is very well attuned, and Smith later deleted his tweets and retracted himself. However, Smith is far from being an isolated individual in England as of late. The day after the hearing, Chris Grayling, the Justice Secretary, affirmed he saw little use for European courts of law, specifically the European Court of Human Rights (ECHR), always critical of the UK’s counter-terrorism policies and violations of Article 5. Following a series of cases against the ATCSA 2000 shortly after 9/11, the ECHR released a factsheet of counter terrorism and human rights law asserting that it is indeed possible to combine the two as long as fundamental rights were proved to be non-derogating, or at least their derogation submitted to the Court. A week after Hassan v United Kingdom was heard at the ECHR (commentary to follow), the UK’s self-professed atlanticism is veering on a dangerous edge, and its treatment of Greenwald, Miranda, Snowden, Rusbridger and their allies should be treated as a massive red flag. Retreating into an isolationist position, engaging into “ill-taken military aventures” in the name of a permanent, systematic and completely submissive cooperation with the United States in matter of armed intervention and intelligence, the new faces of British totalitarianism, from Andrew Parker to Theresa May, can only be met with the activism of an informed public. The crux of a participative democracy is transparency, and any action taken to fight the right to truth should be translated as an assault on basic civil liberties. Greenwald’s actions are in essence not that radical; they are merely acts of personal conscience carried out in the public interest, in the utmost integrity however in the face of governmental radicalism. Snowden did what he thought was right, and took his conscience to the one he thought he could rely on.

Chelsea Manning turned 26 years old in prison this week, her fourth birthday in jail for doing what she thought was right – denouncing war crimes committed by armed forces and authorized by executive power. She will spend the majority of her life behind bars as a prisoner of conscience in a nation branding itself as the biggest democracy in the world. Edward Snowden is likely to be on the run for a long time as well, despite a possibility of being granted amnesty in return for the documents he has yet to release.

The spokesperson for the committee thanked Greenwald for his participation in the conversation. She explained that “democracy is different from tyranny because we have parliamentary and judicial oversight.” She paused. “But we are limited”, she said, knowing full well the scope of the European Union could only extend as far as its member states would allow it to go, especially if the ECHR’s jurisdiction is no longer recognized. “If you have more you want to share”, she finished, “we would be interested.”

Read Spencer Ackerman’s breakdown of Judge Leon’s ruling, affirming primarily that NSA’s metadata collection is a violation of the Fourth Amendment. (Feel free to ignore John Yoo’s rebuttal).

Al-Nashiri, Abu Zubaydah v Poland: the right to truth

Abu Zubaydah, whose eye was removed by the CIA during detention

“the hearing (…) lasted far beyond the usual 90 minutes. It lasted over three hours.”

On December 2nd, 2013, the European Court of Human Rights (ECHR) held an in camera hearing in the cases of two Guantanamo detainees, Al-Nashiri and Abu Zubaydah, petitioning against Poland for facilitating their detention, torture, and rendition to the United States where they have been detained – without charge – ever since. Their lawyers, representing them in the European institution based in Strasbourg, France, filed simultaneously, allowing their cases to merge and form a more cohesive pattern against the use of what Europe has referred to “black sites” of the CIA: detention sites, secret prisons, located in remote areas, where local law enforcement either turned a blind eye or thoroughly collaborated with American intelligence on suspects of terrorism in the vague, overwhelming and never ending “War on Terror”. During that hearing, representatives of the Polish government, Judges and counsels for both applicants heard testimonies from expert witnesses on the use of torture on the applicants and the specially chartered flights that took them from Thailand to Poland, and from Poland to the United States.

The following day, the hearing consisted in the Polish government forming an argument before the Court as to whether its domestic investigation of the allegations – launched in 2008 – had met the standards of fairness, length and equity required by the European Covenant of Human Rights. Beyond the strict legality of the argument, lawyers for both parties – and especially their Polish advisors – were unequivocally denouncing the political pressure exerted on the Polish government and its intelligence officials onto the Department of Justice, where the investigation has been lingering for five years now, and seeing no sign of ever coming into a close. Nowak-Far, the Under-Secretary of State for the Ministry of Foreign Affairs, opened the seance with a somewhat unassured claim that “trust must be established” that resolution of the investigation would be made domestically; that the Polish government had no intention of burying the case under paperwork or, as counsel suggested, the weight of classified information pertaining to intelligence activities, not only on Polish territory, but also per their agreement with US intelligence officials. Quickly into Nowak-Far’s argument, the issue of secrecy reared its ugly head, in a constructed speech that is all too frequent in the current climate of foreign affairs. Poland, which had requested that the hearings be made behind closed doors – subsequently refused by the ECHR, as per their rules of transparency – lamented that “media pressure, public pressure” were affecting the investigation, meant to be objective and impartial. According to Nowak-Far, Poland is, since 2008, still collecting evidence of the rendition of torture of the applicants, and believes any disclosure or even recourses to a superior Court is “premature”. There was an definite sentiment of wishing to keep the ECHR away from Polish proceedings, and to attribute to the Polish government, and its discretionary use of government secrecy, the right to dispose of the investigation in a manner that they felt was “convenient”. This adjective would be often used against them by the applicants’ legal counsel during the course of the hearing, which lasted far beyond the usual 90 minutes. It lasted over three hours.

No matter how intensive the preparations of the Polish government – by Nowak-Far, at first, later followed by Sliwa, Deputy Krakow Prosecutor of Appeal – it could not manage to hide the blatant and outstanding inconsistencies of the case. From the moment the use of rendition had emerged for Al-Nashiri and Abu Zubaydah, in 2005, it took three additional years for Poland to launch an investigation, a delay that is unacceptable under European standards and especially outrageous given the violations committed by Poland. The second issue was the considerable amount of classified information that was not even made accessible to legal counsel. The entire case is shrouded is secrecy, cloaked with political intrigue, and veiled by the notion of national security – Poland’s and the United States’. At the heart of the Al-Nashiri and Abu Zubaydah case lies the concept of whether national security, its intrigues, its myths, its almost occult following bequeaths the violation – gross and systematic – of human rights not only on European territory, but later on United States territory after leaving the European Union (the Covenant strictly forbids the extradition of any citizen if said alleged criminal is at risk of unfair trial, torture or capital punishment.) Poland has tried its hardest to delay the investigation, to the point of even changing prosecutors on three different occasions, one while one prosecutor was hearing M. Pietrzak, one of the counsels for Al-Nashiri. What the Court heard on December 3rd was nothing short of sheer incompetency in the part of the Polish administration to meet the human rights standards it failed to uphold while the secret prison while still active under CIA supervision. The representatives of the government of Poland looked worried and at a loss for words when counsel after counsel addressed the Court with damning tales of their relationship with the Polish Department of Justice, which spoke volumes as to the ways in which an executive power can go to hide what could be to its disservice.

the European Court of Human Rights, the morning of the hearing.

“Poland not only should have known, but Poland did know”

What emerged from both counsels was fierce determination and the appeal that a sovereign Court might work in their favor. Ms. Singh, counsel to Al-Nashiri, opened the proceedings on the applicant’s side with a powerful and focused call to administer justice in a case that has failed to see any protection of the rule of law for its applicants. The Court, she said, would be the first to “meaningfully address the issue of torture”. In a passionate call to “end the impunity”, she re-assessed the “cogent, credible and categoric testimony” heard during the previous day’s hearing that Al-Nashiri had indeed been transported to Poland, sent to a secret prison built specifically for those practices, detained, then sent back to the United States where he remains today. Legal counsels have even obtained documents from both CIA and USG that attest to that effect – while Poland neither confirms nor denies the accusations, it remains vague and unassertive as to whether it has indeed participated in activities under US auspices. In the case of rendition, Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

M. Pietrzak’s characterisation of a “politically inconvenient” investigation for Poland was echoed by M. Hughes, representing Abu Zubaydah. The applicant, being in detention in Guantanamo Bay for over a decade without being charged, is now, according to his counsel, in “debilitating conditions”. Those crimes were committed by state agents acting, according to M. Hughes, in the name of state secrecy. The counsel insisted that the Court takes into account the severe aspect of the case, which is that those violations of fundamental human rights were committed by state agents, for a nation represented at the Council of Europe. The responsibility is born by the government of Poland, acting in complicity with the United States. The “effective remedy” promised by the rule of law by which each Council of Europe member state is require to abide has not been delivered by Poland, which failed to conduct any fact-finding mission; all the evidence presented, beyond a reasonable doubt, came from independent sources – human rights organisations, investigative journalists – while Polish state agents were placed at the disposal at the CIA under what M. Hughes called “open-ended means”, clearly indicating that Poland had no interest in ever trying to reign in or limit the scope of CIA activities on its territories, no matter how grave the violations and difficult the cover-up operation. The responsibility of the state, he said, can’t be denied. “Poland not only should have known”, he concluded, “but Poland did know”.

Ben Emmerson, QC – UN Special Rapporteur of Human Rights While Countering Terrorism (un.org)

The intensity of the hearing, however, was only matched by the presence of Ben Emmerson, United Nations Special Rapporteur to the protection of human rights while countering terrorism, an issue that has required his expertise a little too often in recent years. Mr. Emmerson, attending the hearing as a third party, insisted on offering his comments to the Court, in a way that took the case out of the legalist field that Poland wished it had maintained, and into a broader and wider scope that question not just the treatment of Al-Nashiri and Abu Zubaydah by Polish and American forces, but also the question of secrecy, confidentiality, classification of information, and access to legal counsel and representation. Mr. Emmerson attended the hearing in order to affirm and perhaps re-affirm the United Nations’ Human Rights Council’s commitment to the right to truth – both as an individual and collective component. In this he wishes to address the ECHR as “we speak in one voice in the understanding of this right”. The role that this case will play in jurisprudence recent and future will be not only to guarantee that the public may know about the suffering of the applicants, “but of other victims, of similar crimes, as members of the public have the right to know what happened”. This declaration comes in direct, diametrical opposition to the wishes of the government of Poland, repeatedly asking, begetting the Court to not let the details of the hearings be reported in the press, not let members of the public attend the hearings, and even blocking lawyers from accessing classified information – information that M. Pietrzak said “should not even be classified”. Both counsels have admitted to having been allowed to access classified information on only two occasions – one for only three hours, the second for fifteen minutes (!) without possibility of photocopy, remote access, and transportation of files. Mr. Emmerson, and through him the United Nations’ Human Rights Council, believe that the accountability of state officials in what he qualified to be “gross and systematic human rights violations” could only be achieved through transparency.

This hearing, and the case of those two applicants before the Court on this December day, is in the direct following of a process of seeking the truth since the Bush-era conspiracy of extrajudicial rendition and extrajudicial processes of suspects of terrorism. In recent years, however, through various jurisdictions, the process has “sped up”, and has implicated an extraordinary number of member-states, besides the United States (54 in total so far). In the high value target program of the CIA, the use of torture was systematic. Mr. Emmerson was deliberately choosing short sentences, and maximum-impact wording for an intervention that was unprecedented in the ECHR. “I use the word torture without hesitation”, he said. “I do not recognize the CIA term of ‘enhanced interrogation'”, this euphemism destined to cover the blithe horror that torture conveys. The judicial proceedings in Italy this year, against the CIA rendition program involving Italian intelligence officers accused of cooperating with the CIA, “was nothing more and nothing less than a straightforward application of the rule of law that bounds each member of the United Nations”. Although Mr. Emmerson strongly encourages the multiplication of proceedings regarding rendition, he expressed his “regret” at the still unbelievable scope of the crimes committed under what he dubbed “an international conspiracy”.

Mr. Emmerson focused on the main issue that riled up the legal counsels of both applicants: that evidence had to be found from outside sources than the Polish investigation, and that every shred of detail they were legally supposed to access was barred from classification and national secrecy. At this stage, Mr. Emmerson explained he formally submitted to the Court a copy of the 2011 Feinstein report – the result of a Senate Intelligence Committee investigation into the CIA high value target program, which Feinstein herself qualified of a “regrettable mistake” (sic). The frustration of the constant impunity and lack of accountability of heads of state on issues of national security may be the biggest issue in violations of international human rights law to this day; the presence of a United Nations Special Rapporteur at a ECHR hearing only highlights further the necessity to reach a common and global agreement on the superiority of fundamental human rights above issues of national security, especially when said national security fails to abide by standards of human rights law when countering terrorism – a post specifically personified by Mr. Emmerson, and a question that the ECHR answered in 2002, releasing a set of guidelines for member states following a series of petition for human rights violations by the United Kingdom under their Anti-Terrorism, Crime and Security Act (ATCSA) 2000. Mr. Emmerson was delighted to also announce that a report on similar activities and collusion in the United Kingdom had been made by Lord Gibson, and the publication was imminent; not in a matter of months, he said, but in a matter of days, in what may be the most comprehensive overview of British and American intelligence cooperation in these matters.

Back in March, Mr. Emmerson took to the Guardian to express his commitment to uncover the truth behind the practice of rendition, and presented a report to the UN Human Rights Council in Geneva calling for the United States, as well as the United Kingdom, to release information regarding the practice under the Bush Administration. The evidence, he said, must also contain what has been exposed by The Guardian and the BBC. It is important to be reminded of this editorial for two reasons: one, the Obama Administration has carried on the practices of the Bush Administration, not only in matters of rendition, but in matters of complete secrecy, of national security classification, of lack of transparency, of covert operations and of extrajudicial techniques of interrogation specifically and counter-terrorism more generally. The accountability that is requested by Mr. Emmerson should of course date back to the first days of the Patriot Act but also continue under the policies of President Obama, whose actions in Pakistan, Yemen, Iraq, Afghanistan, Somalia, and in the military base of Guantanamo Bay must be uncovered, released, exposed in full, in matters of public interest. What makes Mr. Emmerson’s battle for transparency under the Obama Administration so difficult is the current climate is to destroy, intimidate, detain and charge whistleblowers, from Edward Snowden to the tragic case of Chelsea Manning, the recent imprisonment of Jeremy Hammond and the war on the PayPal 14 – the financing behind WikiLeaks. The war on information is no longer a myth or a strange paranoia roaring an ugly head around newrooms. It’s effective and, in its pursuit of Chelsea Manning in military trials, also defers to military commissions digging through charges of espionage and conspiracy: the Administration is, in fact, at war, and not only with those evanescent, vague and ubiquitous terrorists. It is at war against its very own constitutional principles. The second point to emerge in Mr. Emmerson’s quest for accountability in human rights violations is what he calls the “right to truth”. This right to truth is in direct opposition to the current culture of secrecy, of executive authority bypassing regular legislation, of presidential edict avoiding democratic voting, and the extreme militarisation of law enforcement that serves to silence the dissent.

Extent of the damage (washingtonpost.com)

“Confidentiality in no way absolves them of responsibility.”

The point of contention, which should be addressed by the Court in its deliberation, was whether the right to truth – accorded to the applicant receiving victim status – could be extended to the general public. If, in the Del Prada Rio v Spain case, the ECHR granted a personal right to truth to the applicant, the UN wishes for this to be extended to the collective in the name of freedom of information and access to information. The CIA high value target program can be traced back to a foreign policy of systematic violations and enforced disappearances dating back to Latin America in the early 1980s. The United Nations Special Rapporteur on Freedom of Expression said it clearly – “the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.” The exposure of grave and systematic violations can not be dependent on the willingness or the disposal of a victim to launch proceedings – the victim, or if deceased, their family, which can be found reluctant to seek judicial redress for various reasons. It is therefore up to the citizenry and specifically the members of the media to invoke the right to freedom of information in cases of systematic violations as to ensure the accountability of the guilty. The presence of the United Nations at the hearing was to be placed in a political and security context. It did not need to reaffirm the commitment to human rights law, embedded into the ECHR; it needs to address the global, international risk of being faced with constant classification of information in the face of important proceedings that need to establish the fundamental and non-derogating character of human rights. Emmerson insisted: “the success of initiatives to counter terrorism depends on persuading societies that democratic governments are committed to the rule of law and respecting human rights. To end impunity.” With a snark it was hard to conceal, he insisted it was “hard to win the hearts and minds” when horrible crimes are committed under the cloak of executive authority.

The United Nations Special Rapporteur ended his intervention by stating that freedom of information and human rights violations are intrinsically intertwined. The right to an effective remedy implies the right to open proceedings, and open proceedings imply access to information, which all lead to the right to truth. The United Kingdom, which has refused to enshrined Article 13 of the Covenant in domestic law, will soon bear the full responsibility of the implication of human rights violations.

Ms. Singh, in conclusive arguments, followed in the path of the Special Rapporteur insisting on Poland trying to “obscure the truth”. The longer the delay, the more difficult it is for the legal counsel to access witnesses, to extract testimonies, and to provide evidence. The facts presented at the in camera hearing were not contestable, she explained, “because they are true”. Mr. Hughes carried on: “Poland is unwilling to face reality. Confidentiality in no way absolves them of responsibility.”

Is it a war on journalism, or a war on information?

Josh Kitto is a senior at the School of Oriental and African Studies (SOAS) in London, and majors in journalism. We recently had a few drinks at a pub in Islington near the Guardian / Observer headquarters after the London premiere of Dirty Wars. We discussed freedom of information as a human right, a concept Josh ‘Kitten’ Kitto was very keen to discuss. Last night, independent journalist Jeremy Scahill intervened on Democracy Now! to explain the Obama administration’s “war on journalism”. But what is it exactly, and how does it play out? After debating that using journalists as targets of counter terrorism and playing the card of security trumping public interest was nothing new, and was, in fact, quite a repeated, cyclical pattern, especially in the UK, Josh and I continued the conversation over a 6 hours span. Here is the transcript.

(background: read our post on Freedom of information as a human right // Existentialism as humanism: the case of Bradley Manning // Journalism as terrorism: the case of Ali Anouzla)

Alan Rusbridger, editor of The Guardian, during his hearing at the UK Parliament on December 3rd, 2013

“When the truth is obscured, it’s the screen that needs to be removed, not the finger pointing at it.”

Josh: Observation: Scahill could talk about a war on journalism without talking about himself and cottage cheese. Rania wrote up something yesterday, haven’t had a chance to read it yet, about research showing a third of journalists self-censor to prevent government observation … Also, as I realised when he was doing the Q&A, why does he talk about the CIA like it didn’t exist before 2001 and like Obama is the first ‘national security liberal’?

Sarah: Problem in counter-terrorism patterns is, whether you want it or not, there is a pre and a post 9/11. In 2002, the ECHR released new guidelines (PDF)  and divided them as such as well. There is also when Emmerson got into play. So talking about CIA post 2001 is important because it fits a more legitimate pattern as far as the national discourse was on counter-terrorism and foreign policy… Which in this case, worse: counter-terrorism as foreign policy. On the issue of Obama being a national security liberal… It’s because it’s basically the touchstone of his policy and the way he conducts his entire executive authority. It’s also extended to such an outrageous extent – substituting legislation for edicts, etc – that no other president in recent history did.

Josh: One question that should be discussed is how different a war on journalism and individual journalists is. I’m thinking about how deeply embedded the media is in the national security state, and as seen with Leveson, in their relationships with the police.

Sarah: I think the whole current concept on war of journalism has re-emerged – and I say “re” because as I mentioned, it’s nothing new – when Glenn came up with the Snowden documents, and in this regard, I think Glenn has been targeted specifically, and considered a threat as a person. Problem is, Glenn didn’t do that in a vacuum. He’s a constitutional lawyer, he’s always been a fervent supporter of fundamental civil liberties, he’s taken on strong, landmark cases ever since law school. As an individual he made a job of pushing the envelope and as such I have tremendous respect for him. He’s clearly one those unconventional lawyers Emmerson was referring to. Now as a journalist he’s applying the same vision and same ethics, but without the disciplinarian framework of the law, and somehow without its protection as well. It was him and by extent his editor, Rusbridger, against the state apparatus. Much later, other newspapers in other countries joined in: El Pais, Le Monde, Der Spiegel, to name a few. But they did so in collaboration with Glenn. As critical as I am of Pierre Omidyar, I understand Glenn’s wish to branch out into a structure that will have him perform his own specific brand of journalism in an unconventional framework – we see that word again – in the aftermath of the NSA story. But through this story emerged the regular, more conventional patterns of a war on journalism: it was the very fact of reporting on national security that posed an issue. Because national security isn’t transparent and progressively stopped being accessible, journalists had to push the door open, through the use of repeated FOIAs and thorough investigations – sometimes covert. It’s not journalism that is the problem here; it’s the fact that journalism can no longer be done the way it should be because of implemented barriers. But instead of questioning national security itself, we criminalise journalists for “going too far”, for “threatening” the stability and security of the country. You don’t threaten any structure whatsoever by reporting on it. A journalist is merely a medium for the truth. When the truth is obscured, it’s the screen that needs to be removed, not the finger pointing at it.

But of course there are emblematic figures, like Glenn- and the question remains as to how many will stand up for one that has been brought down. I understand Glenn’s decision, but I think it would have been equally important to remain at The Guardian to make a stand that he and his team refuse to be intimidated. Is that what you think Scahill was referring to?

Josh: Umm…I think there is a difference between the criminalisation of information and how it is reported.

Sarah: True. Elaborate.

Josh: So in this War On Journalism, Scahill mentions Chelsea Manning and Aaron Swartz.Now…do they fall under the jurisdiction of free press protections? You’re the lawyer. Are they targeted by a national-security state that also has interests in maintaining a certain relationship with establishment media? Yes. So I am wondering if what we are seeing is in fact an attempt to restrict information rather than journalism as such. And that’s where cases like Greenwald’s come in.

David Miranda (l) and Glenn Greenwald (r), at Heathrow Airport after David Miranda was detained under the ATCSA 2000

“If this information is not made available precisely because no one wants it denounced, then it is incumbent to those who can somehow access this information to place it at our disposal.”

Sarah: The extreme particularity of Manning is that she was in the armed forces therefore did not fall under civilian jurisdiction. That’s an issue I wrote about before; she was tried in charges proper to the military commissions, whereas what was at the core of what she did was clear freedom-of-information, which is a human right enshrined in domestic law, therefore should have benefited from civilian protection. But she a) was enrolled b) accessed the information in her military capacity c) distributed the info in her military capacity, so she slipped from our grasp. It’s terribly deplorable. Military commissions are often assimilated to violations of the right to a fair trial. The specificity of having an armed forces whistleblower is a current war on terror issue, and the legal protection must be extended to them as well. It’s difficult.

As for Aaron Swartz, here’s the problem – I mentioned it before as well: it all depends on what and who we consider a journalist. Aaron wasn’t a journalist, but he accessed and redistributed information. Now, if said information is considered in the public interest, he should be protected by FoI – access to information, the corollary of freedom of information, is considered a human right as well. And in the era of WikiLeaks and online activists, the domain of information distribution and access has been widely enlarged, and not restricted to j-school degrees and a NYPD issued press pass… Information distribution is not journalism, it’s the reporting that makes it journalism, ie. what you make of said information. Example: Scahill used Wikileaks as a source for his investigations on JSOC. Wikileaks is the means, Scahill is the medium. In assimilating Swartz and online information to the war on journalism, he’s extending the scope of said war to the war on information itself. But it’s intertwined.

By what I mean, is that you take a journalist, working for whatever company / structure / outlet, reporting on national security, but said journalist can’t access information: it’s classified, it’s under gag order, it’s protected by security interest, it’s military material, etc. any journalist would push forward if they have the sense they’re onto something: they will file FOIAs – which is already in the current climate considered radical – and yeah, they will look to alternative sources, of course. And WikiLeaks allows them to access this information to do their job. Now whether or not WikiLeaks can distribute all of that information is about the jurisprudence on public interest, but in the current situation, when you know and have been a witness of unlawful arrests, killings, strikes, intervention – when you’re investing the gross, systematic scope of human rights and constitutional liberties violations, you are in public interest to denounce it, it’s your responsibility as a journalist. If this information is not made available precisely because no one wants it denounced, then it is incumbent to those who can somehow access this information to place it at our disposal.

It’s a war on the information that is being made available to the journalists they’re fighting against. And yes, the only way not to have a war on journalism obvious and totalitarian, you prove that all your regular news outlets are out there and working as usual. BBC, Daily Mail, CNN, NBC. You say that Chuck Todd is totally free to do and say what he pleases, and you try to discredit the investigative heads that tear at the curtains. I think that’s what Scahill meant when he said Obama was trying to align every type of journalism to the NBC model. As in making journalism a talking head profession as opposed to having an inherent investigative / activist component. I’d contest the “activist” part though.

Josh: Ha. Well. Quite. So what I am also interested in is whether there is this genuine realignment in journalism, where ownership and traditional outlet decline is exacerbating government curtailing and therefore allowing for a historical “War on journalism”, or whether it ebbs and flows as part of the national security state’s inherent desire to curtail and censor – i.e. attributing a particular motive to a ‘war on journalism’, rather than seeing it as part of the state’s inherent desire to define what ‘acceptable limits’ are.

Sarah: So you mean the war on journalism is not necessarily linked to national security interest but just media control in general?

Josh: Well I’m wondering if it’s both. I think what we’re both doubting is whether there is this historical moment of a ‘War on Journalism’? From different perspectives of course. And it is hard to deny that post 9/11 there is a legal and political expansion of security state and the limitations it imposes. Whether it equals a symmetrical ‘War on Journalism’ I am less sure.

Sarah: My question to Scahill – all my questions are rhetorical – is whether he considers his situation, his and Glenn’s and to some extent Michael’s to be extraordinary, outstanding. If he believes they’ve been singled out specifically for their activities, in a specific context of targeting sore points in national security, or if he sees this moment as historical in the way history repeats itself. Again, we’ve seen this before. Has Scahill argued on specific points that made it defining? Journalism as terrorism existed before 9/11, in less clear terms, but that was because it was the action of releasing information that was the target, as whereas now, as we exposed, it’s how we access the information as well as its release. It follows the restriction pattern on the ATCSA 2001 – “possession of information on or about acts of terrorism” is just as criminal as actually carrying them out.

For the record before I went to London I asked Scahill if he had faced any issues at customs, because in that context I believed there might have been. If nothing happened, the question is about information rather than journalism, in this case. I think Emmerson’s comments at the hearing I was at on Tuesday may answer your questions. Jason is tackling it for AJAM, but here is a part of my write-up on his statement:

“The point of contention, which should be addressed by the Court in its deliberation, was whether the right to truth – accorded to the applicant receiving victim status – could be extended to the general public. If, in the Del Prada Rio v Spain case, the ECHR granted a personal right to truth to the applicant, the UN wishes for this to be extended to the collective in the name of freedom of information and access to information. The CIA high value target program can be traced back to a foreign policy of systematic violations and enforced disappearances dating back to Latin America in the early 1980s. The United Nations Special Rapporteur on Freedom of Expression said it clearly – “the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.” The exposure of grave and systematic violations can not be dependent on the willingness or the disposal of a victim to launch proceedings – the victim, or if deceased, their family, which can be found reluctant to seek judicial redress for various reasons. It is therefore up to the citizenry and specifically the members of the media to invoke the right to freedom of information in cases of systematic violations as to ensure the accountability of the guilty. The presence of the United Nations at the hearing was to be placed in a political and security context. It did not need to reaffirm the commitment to human rights law, embedded into the ECHR; it needs to address the global, international risk of being faced with constant classification of information in the face of important proceedings that need to establish the fundamental and non-derogating character of human rights. Emmerson insisted: “the success of initiatives to counter terrorism depends on persuading societies that democratic governments are committed to the rule of law and respecting human rights. To end impunity.” With a snark it was hard to conceal, he insisted it was “hard to win the hearts and minds” when horrible crimes are committed under the cloak of executive authority.”

“So is the national security state more its own branch now, acquiring its own interests, namely the curtailing of information?”

Josh: is it easier for the state to curtail specific journalists rather than information? If so (yes), does it need a ‘War on journalism’?

Sarah: The state – and I mean the US government first, UK second – tried to isolate and alienate specific journalists, yes, by discrediting not only their work but also their personality. Because this new emerging brand of journalism born out of blogging and online activity has basically made everyone a potential reporter, traditional journalists – in the way Feinstein would love to describe them – are not so happy with the competition, they deem their methods sloppy, illegitimate, whatever. The government conquers by dividing in this case, the way people are riling up against Glenn because the Snowden leaks were “unlawfully obtained” documents, they barely even needed to intervene. It was a shameful and pathetic thing to witness because whistleblowers have released documents forever and it would have been, as I said, irresponsible of Glenn to ignore what had been sent to him. So, the state is trying to pass them off as some sort of undereducated, rough rogues, just because their methods are supposedly unorthodox. Well, sometimes you gotta take the path less traveled.

Then there was this awful smear campaign against Glenn, you know, trying to make him pass as some sort of perverted creep associating him with a porn producer past, or questioning his values publicly, accusing him of “profiteering” off the leaks – and people were just too happy to follow down that trail because Glenn is coherent and consistent and his personality doesn’t bow down to public pressure; he has no PR firm around him, you can’t make him likeable, and there’s nothing worse than someone who’s always right! How fucking annoying is that? So the war on journalism is started by a state that claims to be a victim of isolated individuals with so-called anarchist ties that just want to ruin their country’s safety, and that’s where the UK parliament’s interrogation of Rusbridger comes in. It was terrifyingly Orwellian to watch, it literally made me shake, I was so uncomfortable watching it. I had Cold War, security-über-alles flashbacks. And then this creepy part where he’s asked if he “loves his country”? Doesn’t that remind you of the Bush-era policy of being with me or against me, or being told what is your nation’s interest as opposed to defining them for yourself as an informed citizen which – hey! – is the cornerstone of freedom of information: participatory democracy only works if you have an informed audience. So controlling the media is paramount to a police state because they get to decide what’s right and wrong, what’s safe and isn’t, and suddenly you have dissenting voices saying they’re the ones making us unsafe. That was also something said at the hearing, too. This war on journalism may be journalistic-specific because they undermine those attached to whistleblowers, but on the other hand seem to support those who sit quietly at the White House Correspondents’ dinner and clap approvingly. As opposed to imprisoning all journalists regardless of their assumed political leanings, recent investigations etc. so it may sound that they go after “activist journalists”, but in my view, if you’re a journalist, in a way, you are already an activist.

Edward Snowden and US WikiLeaks journalist Sarah Harrison in Moscow

Josh: I’m wondering then if a lot of it comes down to the ‘motivations’ of the national security state. So where my doubts come in is when this declaration of war on journalists began exactly. Does it have a specific ‘motive’ as in the Cold War or is it more to do with, as you said earlier, the conflation of national security with counter terrorism? And in many ways the executive (in the US) always has that conflation with foreign policy. So is the national security state more its own branch now, acquiring its own interests, namely the curtailing of information?

Sarah: Scahill’s position confuses me in that regard, hence why I wanted to address it. I think we’re seeing the latter arriving. We’re not exactly there yet, because there is relative possibility of freedom on the judicial branch. But yes we’re seeing a rhetoric of national security interests trumping everything else, especially in regards to international rights – human and political rights (enunciated in the ICCPR – that the US didn’t ratify until 1992). There is nothing above the state, whose interests – supposedly for the safety of the collective – are a best bet to safeguard than collective rights in the name of progressive emancipation. That is very dangerous, when you start having a belligerent rhetoric calling your own citizens “enemies”, while your duty is to protect them unless they’re in clear violation of criminal law with malicious intent.

“A lot of the actions in the recent decade can be seen as a ‘historical moment’ of trying to draw and define the limits of the empire’s decline.”

Josh: Because there are different conclusions you could draw. So either there is this new independent branch of the state which is acquiring its own interests or there is this new kind of unaccountable branch which is being drawn under the executive’s control (JSOC/kill list). That’s not just a technical or semantic issue. Because you can see Scahill politicking at the Q&A with “I’m an American/America is supposed to be etc.” Now that may just be rhetoric. But I think there is an assumption that the US acts on a base imperial level, and that currently it has gone beyond its imperial means and limits. If the focus is on a war on particular journalists, where Scahill will be allowed to claim a personal victory in whatever way he defines it, then the focus is on returning the US to that base imperial level. If the focus is on information, and the new dimensions the national security state is expanding into (and the interests it is defining, namely controlling its own citizens as combatants), then the focus is a lot less narrow. And the question of US imperialism becomes different then, and a lot of the actions in the recent decade can be seen as a ‘historical moment’ of trying to draw and define the limits of the empire’s decline.

If that makes sense, then I’m sorry for sounding like a poncy academic.

Sarah: haha, no, I totally agree.

Josh: And in that sense I think the whole debate about a ‘war on journalists’ is defined by ‘relative democracy’. Is there is a perceived relative decline in the curtailing of freedom in reporting? I would say yes in many ways. Does it amount to a specific ‘war’ in which the national security state and reporting is in direct opposition? Not so sure.

Sarah: As I said yesterday this is a repeating pattern. It’s violent and blatant now and completely unavoidable and forcing people to take sides, to confront their own idea of what nation they want to live in, what protection they expect, and to what extent they’re going to go to have this “safety” enforced. We all have limits and thresholds; some of us are just more attuned to this kind of denial of civil liberties and intervened a while ago. For others, it took the detention of David Miranda. But you still see people defending Obama, because he’s a constitutional lawyer with a Nobel Peace Prize, therefore through some sort of warped definition, he can’t make the same mistakes Bush did or lower the US to the Egyptian level of press freedom. I had to argue with a girl the other day calling Glenn a criminal – not for his actions specifically, but for abating Snowden. I had to tell her that releasing this information so she could make up her own mind was literally Glenn’s job. Her reply? “We need to trust the state, and they give us enough information for us to decide what foreign policy we want”. Mmm girl, no. Quite the opposite, in fact.

So there is this whole collective denial that we finally have an educated man in office so he can’t screw us over, because he knows the difference between civil liberties and police state. Well turns out knowing where the line is drawn in the sand doesn’t mean you can’t cross it if you’re in an authoritative position to do so. A war, however, implies both parties know exactly where said line is, recognise it, and I’m worried it might actually be pushed back and forth constantly, or be strictly defined by personal ethics as opposed to an uniform code of conduct.

Josh:  Michelle Alexander has made an interesting point, which is the links between the tradional domestic forms of surveillance and drones. And that the domestic and foreign security establishments are more intertwined (or put another way, counter terrorism as national security). More intertwined than ever.

Most amazing photo ever found of Jason Leopold, journalist with Al-Jazeera America, and FOIA terrorist

Sarah: Again, I think that if we want to say there’s a war on journalism and not a war on information, it’s a specific type of journalism that is at war, the one that is relying 100% on an unrestrained freedom of information. And I guess Scahill sees himself in that vein? Do you consider him unconventional and unorthodox? I’ve followed him for a long long time, for almost as long as I’ve been doing this job, right after Kosovo, and he sounds pretty… Normal to me. But I think his own personal political views have come into play after the enforcement of counter terrorism laws post 2001 in which he must have gone, “okay, I need to take a stand.”

Josh: The first thing, absolutely. So what kind of journalism is being curtailed? Hmm…not quite sure which one. Because the most important journalism is not always the most ‘threatening’ to specific security interests as such. Do I consider him unorthodox compared to a Martha Gellhorn or a Marie Colvin, or even a John Pilger? Not as such. Pilger is probably threatening, but for different reasons.

Sarah: That’s my whole point – counter terrorism as national security, constantly. It’s not possible. It’s the post 9/11 world way of establishing security, and that’s just not a sustainable model. Thankfully – to some extent – the EU has control mechanisms and has tried to curtail terrorism way before that, and has been able to analyse the descent of the US into a massive security apparatus pretty accurately, until the UK, sneakily, made the same moves despite having been told off by the ECHR for an abusive number of petitions. They’re constantly derogating! Constantly! So, to me, the UK restricting freedom of information the way the US isn’t new to me. There is constant collusion between the two countries; if the US has taught the UK about deploying intelligence, the UK has definitely taught the US about controlling their own media. Can we, in that case, talk about radicalisation of journalism in response to restrained freedom of information? I’m using radicalisation knowingly, as a red flag.

Josh: Does this prevent the establishment of an independent ‘national security state’? In the UK I think you could argue the police have become a branch with an independent set of interests to the state, or rather ‘the establishment’. Like policing potential incitement rather than incitement.

Sarah: But even then – it’s the question that national security is superior to fundamental rights that is problematic because it’s making a return as a justifiable cause for violations. Security! Terrorism! Blah! And all of a sudden, everyone is supposed to be quiet and let the work be done, because The State Knows Best, whereas even in cases of possible derogations under Article 15 – they’re supposed to be made punctually for an established case of emergency, whereas now, as we pointed out, national security interest is not A policy, but THE policy.

Correct. ACLU just released this – assessing similarities between US and UK.

“Criminalisation of information for national security reasons is the first red flag step towards a control / police state.”

Josh: So there’s this shift in the state’s rationales on one hand. And on the other, I am wondering whether there has always been a hierarchy in journalism re: the state’s relationship with the media, in which certain reporting has always been subsumed.

Sarah: Potential – all doing everything pre-emptively. Pre-emptive strikes. Pre-emptive detention. Detention without charge. Pre-emptive censoring that becomes auto censoring. After a while you internalise those methods and you ask yourself if you’re doing the right thing before writing. It’s very pervasive when it permeates your own moral compass.

Josh: Where the interesting element of a ‘War on Journalism’ could come in is the fact that the Bush and Obama administrations have selectively leaked more than most. So then the issue would seemingly be what information and how it is reported that is the problem, rather than information as a whole getting out.

Sarah: Isn’t that the whole problem with WikiLeaks?

Josh: Essentially.

Sarah: And, as an extent, the way Pierre Omidyar – who must have known / supported the PayPal blockade – is now creating a new media venture while being on the team opposite WikiLeaks, which has been instrumental in Glenn and Scahill’s work.  If we accept the premise that released information should be selective – my issue is, who gets to make that decision? In my view, this is the responsibility of the journalist, to decide what is in public interest and what isn’t; what he needs, and what he can accept to be kept in the dark.

Josh: It was the information dump that was the problem. The problem of course as so many mainstream journos were keen to point out was “BUT WE ALREADY KNEW THIS!!!” …..true? But that’s normally when the state selectively leaks that information. I mean it was interesting to see in Dirty Wars the official transcript by Obama expressing concern over freeing journalists in Yemen. But it wasn’t the information itself, rather how it is managed when it is revealed in something like a WikiLeaks dump, in these ‘informal’ institutions.

Aaron Swartz

Sarah: But to go back to Emmerson – he insisted that transparency had to be complete in counter-terrorism operations “to restore the public’s faith in the system”. So… Maybe a complete database is better than having an oligarchy for the selection.

Josh: The Swartzian approach.

Sarah: Exactly. You can claim transparency because it was released, it was information. But was it ACCESSIBLE? If it wasn’t, it amounts to the same for the public. It takes a third party to jump in the trenches and dig, and that’s where journalism comes in. That’s why to me, if you don’t want to make a shitload of information available, I can accept it for as long as you won’t restrict journalistic access to it; if someone petitions for it, there is a motive of public interest. No journalist goes in for the sake of doing it; bottom line is to be read and understood. And we go back to what constitutes journalism, who can be a journalist and therefore obtain access.

Josh: What I think is interesting here is not necessarily specific journalists as the vehicle, because I don’t know if the national security state sees it as necessary to DECLARE WAR on them (any annoying journalist can be dealt with). I think it’s about the ownership of information, the complete database. I am going to write on media ownership soon, but my thing about Leveson is that the debate about media reform about ‘ownership’ of democratic structures in how information is relayed.

Sarah:  So again, you’re not in favor of restricting access at all – otherwise there is an idea of selection that implies ownership or detention of information. And journalism would be analysis of said information rather than release. Right? Is that what Scahill meant by his reference to Swartz? I think this is where I actually confess I didn’t watch it entirely because I started twitching, stopped and went back to watching This Is England.

Josh: Hahaha. I’m not sure exactly. I think where I am coming from is maybe a division between journalism and information in terms of specific protections. I mentioned earlier the divide between assuming a base imperial level of the US and going beyond its means, or an expansion of the terms of the national security state, and how the former allows Scahill to define it in terms of individual journalist’ access. The latter is more about imperial decline etc. So if it is the latter rather than the former, does it require a different set of protections for information and not just ‘journalists’ who can selectively reveal? Annoying journalists can be dealt with, but Aaron Swartz and Chelsea Manning have to be “dealt with”.

Sarah: “Annoying journalists can be dealt with.” Look at you. Are you advocating enforced disappearance for Ezra Klein?

Josh: Ha. Well…

Sarah: In terms of protection… Of drafting / implementing a different set of protection… I don’t know. To me freedom of the press derives from freedom of information. And it was never questioned until information was criminalized. And it went back and forth. Usually criminalisation of information for national security reasons is the first red flag step towards a control / police state. It’s the main indicator. So there is an imperial aspect to it.

Josh: Does this freedom for information require protections for intermediaries alone then, or around a sort of communal protection of this information? The Swartz case is a good example of this debate. I would say that the question is not a war on individual journalists, but that the expansion of the national security state, and the state AS national security and counter-terrorism, has an innate capacity and need to control information by determining who can access and own it.

Sarah: And as such, emerged a more aggressive brand of journalism that was open in its defiance of state secrecy, which created an open conflict, specifically because those individuals used the very information the state intended to control.

Josh / @cromulentjosh     Sarah / @K_isanasshole

 

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