In remission: Miranda v Home Secretary

David Miranda, the threat to the United Kingdom. In “good faith”

Last August, when David Miranda, Glenn Greenwald’s husband, was arrested at Heathrow, the usual tense climate between investigative reporters and the concept of national security had climaxed. It was chilling. It launched an attack on journalism from the ceiling down – a crushing battle aimed at crippling, alienating, and eventually defeating those who acted in the name of public interest. Despite the little attention it seems to have received, nothing in 2013, in the world of civil rights at least, has sent such a message of fear and willingness to crush any democratic spirit than that moment Guardian journalists were made to destroy their own hard drives under the watchful eyes of GCHQ agents. One can’t help but wonder if this event was perceived as either mundane because we have internalised a surveillance state, or insignificant because the Guardian has been so demonized in the eyes of true blue patriots they deserved their fate. Both assumptions are wrong. Both assumptions should be proven wrong.

The Miranda case has been branded as a landmark situation that gave way and motive for a review of the infamous Schedule 7, outlining the powers of detention granted by the Terrorism Act 2000 (ATCSA). It’s a little more complex. Although the judges believed their application for appeal should be made on grounds that the case was fact-dependent, there are several matters of basic, fundamental principles questioned by the provisions of the ATCSA – and the fact the ATCSA is brought up against journalists, or those aiding journalists – that are not fact-dependent. Because the protection that should be awarded to members of the press has been suspended in the name of counter-terrorism, it begets the question of whether terrorism warrants such suspension, and whether the definitions in play in the ACTSA are applicable ones. Although a review of Schedule 7 is underway at Parliament, the recommendations all made for Schedule 7 review are dependant on the definition of terrorism – Article 40 (1) (b).  An officer is granted discretion to assess a terror threat based on that definition, which is vague and circumstancial. It is the belief of many human rights lawyers having observed the increased use of ATCSA powers to persons usually protected from accusations of criminal activity associated to political dissent that it is 40 (1) (b) that can prove to be problematic.

The powers of detention extended to a terrorist suspect are dangerous. What is just as pervasive and dangerous is that said individual can be considered a terrorist suspect in the first place. Terrorism powers always should be granted better and bigger limitation based on the extensive reach they provide. Before the ruling was due, I had mentioned the following –

UK High Court of Justice

Powers granted under Schedule 7, surveillance and improper purpose

Theresa May prided herself in the fall for accessing the demand of a review of Schedule 7, and this a whole year before the Miranda case. Back then, powers granted under Schedule 7 were already difficult to swallow. Although it took her a couple of paragraphs to re-affirm her commitment to the powers of the ATCSA, she threw a small bone at the human rights community and the basic democratic principles by announcing she would launch a public consultation with internal review. This review is prefaced by a solid 67% of respondents saying that, in 2012, Schedule 7 was already “unfair, too wide-ranging and should be curtailed”. The Home Office identified 12 specific questions ranging from detention to strip searches, delays of interrogation and respect of human rights. Of those 12 questions, the internal review concluded 7 needed amendments or modifications. All amendments in question were aimed at reducing the powers of detention, including the maximum time of detention without charge to go from 9 hours down to 6 hours.

David Miranda was detained for 9 hours.

In November 2013, David Anderson QC, the independent reviewer of UK anti-terrorism legislation, released his own report into Schedule 7. He did not conclude the detention powers, as they were, were excessive; he advised that the suspicion from officers that a given individual may be engaged in acts of terrorism fell within the ATCSA definition of terrorism to grant detention. This is a vicious circle. Per his conclusions,

(a) Detention be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention is necessary in order to assist in determining whether he is such a person.

Should this all be still confusing, let’s just give a senior officer discretional powers to extend said detention without charge:

(b) On periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention continues to be necessary in order to assist in determining whether he is such a person.

Now, although the internal review did recommend that specific, terrorism-related officers working in police stations or in ports be trained in quickly determine or assess the potential threat of an individual seeking entry or transit on UK territory, it appears that in the case of Miranda, the work was cut out for them by the Secret Service. Paragraph 9 of the Court ruling prove that Miranda was, in fact, under surveillance by both US and UK authorities and the Custom Border Protection Officers (CBPs) had been informed of his transit through Heathrow, and seriously advised to keep him and search him.

The Security Service (…) had undertaken an operation relating to Mr Snowden. They became aware of the claimant’s movements. At 0830 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO15, the Counter Terrorism Command in the Metropolitan Police, the second defendant. On Friday 16 August a Port Circulation Sheet (PCS), a form of document used to provide information to counter-terrorism officers, was issued by the Security Service to the Metropolitan Police and received at the National Ports Office at 2159. On page 2, against a box asking for confirmation “that the purpose of an examination will be to assist in making a determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)”, the Security Service had entered the words “Not Applicable”. On the same page this was stated:

“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”

The Guardian’s Ewen MacAskill, Glenn Greenwald and Laura Poitras, who recently were awarded the George Polk Award for journalism

Through paragraphs 10 and 11 of the decision comes a conversation between the Secret Service and the Met Police, that maybe further intelligence and information was necessary to use Schedule 7 at Heathrow to arrest Miranda. Later, the Secret Service would send a note – redacted, even in the ruling – claiming that Miranda was carrying material between Glenn Greenwald and Laura Poitras; that this material had been provided by Edward Snowden; that it contained information pertaining to GCHQ activities; and that it was damaging to UK national security. But the most important part, and what has caused the arrest, detention, interrogation, what would be at the core of Judge Laws’ ruling, is the Secret Service’s final PCS on August 17th, which reads with a sense of emergency, of fear, of confusion, of absolute necessity to stop the ongoing free-flow of material that was provided to Greenwald. It is frankly frantic, a little obsessive, and shows the absolute scare that public interest journalism creates in governments willingly engaging in wrongdoing:

“We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence the government, and is made for the purpose of promoting a political and ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.”

Everything you ever needed to know about the UK national security principles and what actively constitutes national security is contained in that one PCS. If the ruling provided any sort of information – besides the acknowledgement that we will touch on later – is that the Secret Service is concerned with protecting national interests, government secrets, and that the furthering of the fundamental rights to press freedom constitutes an act of terrorism that falls within the purview of 40 (1) (b). Thanks to this PCS, we are now all clear on where the Kingdom stands.

Before the ruling emerged today, I wrote about public interest journalism and the fear-mongering propagated by both DNI James Clapper in the US and his lethal allies (*) – Theresa May, Andrew Parker, Chris Grayling, et al: all those endangered lives that Louise Mensch ranted on about do not exist. The only thing that’s endangered is the democratic career of the government officials who engaged into unconstitutional and unlawful actions against their citizens and foreign nationals in the name of the threat later revealed to be inexistent or a simple excuse. It is not because the Secret Service claims that Miranda falls within 40 (1) (b) that it effectively does, but the Met Police can’t contradict a PCS. In fact, officers may not even be thoroughly informed of the true motives behind the PCS (intelligence firewall).

Once again, one of the many pitfalls of Schedule 7 is that it exists in itself to ascertain whether the person falls under 40 (1) (b). There is no necessity for the officers to assess whether the person does before launching a Schedule 7 provision. In this case, due to the PCS, even with little knowledge of the content, there was a suspicion that Miranda would fall within Schedule 7 suspicion…  but the PCS had led them on already.

Glenn Greenwald and David Miranda, after his detention at Heathrow

Disproportionality of a Schedule 7 inspection

The question of proportionality can not exist in a vacuum; and it was Ryder’s submission as counsel for the claimant to refer to previous jurisprudence on what exactly should Schedule 7 be measured against in order to assess whether it was disproportionate or justified. In Bank Mellat v Her Majesty’s Treasury (2013), Lord Sumption, usually not one to rule in favor of human rights law or apprehend a counter-terrorism provision or in an international law context, decided (quoted in para. 39):

“The question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regards to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”

In the Miranda case, all of this can be easily assessed if we remove the idea of a national security protection from its political context and weigh a Schedule 7 provision against the husband of a journalist transiting through an airport. Is the objective of the Secret Service sufficiently important to limit the fundamental right of freedom of the press? Not if this press is acting in the public interest (strike one). Is the situation rationally connected to the objective? The increasing issue of national security not in protection of citizenry or territorial integrity but rather in protection of state interest does not constitute a rational motive, but rather a disproportionate use of force to protect the state (strike two). Could a less intrusive method have been used? In the case of WikiLeaks material and/or Snowden files, both revolutionary in the approach of whistleblowing in the digital age, I once argued that the Computer Misuse Act could have been useful without calling on to espionage or terrorism charges (strike three). Has a fair balance been struck? If the balance is achieved between the severity of the treatment granted to David Miranda and the protection of the United Kingdom, there is no such thing. It is a complex, heavily funded, internationally supported and executively connected state apparatus against a foreign national not even seeking entry or haven into the territory. Miranda was stuck in-between his departure city (Berlin) and his home (Rio de Janeiro). He was trapped. Is there a balance? Would Miranda alone – and the files he was carrying – bring down the Empire? (strike four).

In case one argues against my vision of Lord Sumption’s criteria number 1 and 2, on the national security imperative not protecting from an internal or international threat of violence against the integrity of the nation – that is, the state and the population, not the government – D/Supt Stokley’s testimony of his reaction upon receiving the PCS should clarify the situation of what the national security imperative actually meant in the Miranda case; it meant that it was handed out to an officer that simply did not make the distinction, and was not properly informed of the meaning of intelligence operations. The decision to call on a Schedule 7 detention was made by an agent of the Crown who was unaware of the activities of other agents of the Crown. I find this testimony disturbing in the light of the realities of GCHQ / PRISM activities (para. 37):

It appeared to me on the basis of what I knew about the stolen material, that it could be used to endanger life and cause harm to the members of the public… It was very clear in my mind that this action was not being executed as a means to prevent political embarrassment in the UK… I believed that the information in the claimant’s possession could potentially compromise the UK’s ability to monitor terrorist networks, posing a threat to the safety of the public… In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPs and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to (sic) prevent and detect crime.

Once again, it has been made abundantly clear at a Senate Intelligence Committee hearing in Washington, DC regarding NSA activities and requesting testimony from DNI James Clapper that, in fact, NSA activities barely amounted to truly specific counter-terrorism measures. An article in The Guardian on January 14, 2014 written by Spencer Ackerman quotes Michael Morrell, a former CIA deputy director:

Morrell added that the bulk collection of domestic phone data “has not played a significant role in preventing any terrorist attacks to this point,” further undercutting a major rationale offered by the NSA since the Guardian first revealed the bulk phone-data collection in June, thanks to leaks by Edward Snowden.

Just like Lord Justice Laws, I find no reason not to believe Stokley was genuine in giving this testimony. He just appears to not have been informed, or been purposely misinformed.

a terrorist Washington Metro bus

Article 10 compliance

Again, back in July, I had denounced a violation of Article 10, and would still to this day recommend a review by Strasbourg. But the current climate between the United Kingdom and the ECtHR is tense, to say the least, and asking for a judicial review in a British domestic court based on ECHR compliance is somewhat defiant. This shouldn’t be an issue, however. As of the date of this ruling, the United Kingdom is still party to the ECHR, and is still required to abide by its standards. Just like any state wishing to assert its national principles as being, if not superior, at least equal to supranational or international law, it all lies within a matter of interpretation. In this case, while Mr Ryder relied heavily on the fundamental principles of the freedom of the press in the handling of David Miranda and his relation to Glenn Greenwald, Laura Poitras and Edward Snowden, the Judges saw fit not to weigh the use of the ACTSA against the ECHR, but to assume, pre-emptively, that the law of the land was already ECHR compliant (which it mostly isn’t) and that said domestic law was not to establish fundamental freedoms, see; those fundamental freedoms exist by sole virtue of being on British soil, and the law only seeks to establish the exception. Referring to Attorney General v Guardian Newspapers (1990), quoting Lord Goff in para. 41:

“I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”

I have no words.

To understand where the concept of damaging disclosure comes from, we must go back to first the definition of terrorism under the ACTSA, and the already existing but not terrorism related Official Secrets Act of 1989. Per the ACTSA, as mentioned early in the ruling, terrorism constitutes the use or threat of action where –

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it-

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Under this very, very vague definition of terrorism, anything that is done from group acts of political dissent to actual violence against the population can constitute terrorism; it is too broad a spectrum to consider a journalist on the same scale as a suicide bomber entering a busy Guildford pub on a Friday night. The proper law to be applied here is the OSA 1989, on the information resulting from unauthorized disclosures – concerning even journalists and editors. It is an offence to disclose material:

(b) where the material was acquired as a result of an unauthorized disclosure at some stage by a Crown servant or government contractor (5 (1) (a) (i))

(c) where the material was entrusted to the recipient in confidence, or with a reasonable expectation of confidence, by a Crown servant or government contractor (5 (1) (a) (ii))

(d) where the material was acquired as a result of an unauthorized disclosure at some stage by a person to whom it had been entrusted as in (c) above.

Edward Snowden working for the NSA – a branch of the US government, as a US citizen, pertaining to US information – can only qualify under (d) as GCHQ material and information was relayed to the NSA. But the NSA files constituted classified information. They were handed to Edward Snowden in his capacity of cleared government contractor. The concept of damaging closure under the law can apply, and could potentially restrict the application of Article 10 (2), which only limits freedom of the press in line with the Johannesburg Principles … except for that small line,

preventing the disclosure of information received in confidence

Greenwald with two terrorist dogs

This is where the notion of “pressing need” of the public interest comes into view, in Sunday Times v United Kingdom (1979). There is now a need, in the current political context, to update the current public interest jurisprudence, that has made a certain headway in the protection of press freedom against disclosure that was found non-damaging to the government, or could easily be made in the name of public interest on health risks, armed conflict, all concepts easily provable and publishable – but in this era of constant classification of all possible information relative to an extremely wide range of governmental activity at home and abroad, there is no assessing the public interest in a direct political context. This is a context in which PIIs are requested in Court of Appeals. This is a context in which surveillance is authorized by secret courts. This is a context in which Senate reports can not be disclosed even after repeated requests for obtention. It is maddening. There is nothing that has fallen into the public domain that could help a claimant assert their position that they acted in the public interest; unless there is an effort, on the part of the public, and on the part of their representatives, to see the confidentiality as the issue in itself, a red flag for the possible commitment of abuses. Transparency is an extremely perfected tool of accountability. It is, in fact, the only one.

If the High Court believes that in dismissing the appeal of David Miranda, it is ECHR compliant, it is a complete fallacy. Only the ECtHR is apt in 2014 to decide whether the confidential disclosure provision of Article 10 (2) should be upgraded and updated through landmark jurisprudence in order to weigh the damage caused by the disclosure against the notion that it served the public – and the international – interest. Assessing the compliance to fundamental human rights in a court that had already granted an anti-terrorism provision against a journalist does not provide the proper safeguards for the true judicial review of human rights.

The Human Rights Centre at Durham Law, chaired by the wonderful Fiona De Londras, with whom I have discussed a counter-terrorism judicial review, has already tackled the issue of Schedule 7 . Although their review concentrated on the impact of counter-terrorism policies on the Muslim community, their requests for change on Schedule 7 find an echo: they call for increased transparency and accountability, which has been severely lacking in this decision; and a radical demand for the length of examination to be reduced to two hours, in order to curtail the “detrimental effect” a prolonged detention can have on the individual. The intimidating effect such law enforcement powers can have on a person – especially one that is isolated from a group as they travel or transit – can not be stressed enough; and it is at the very core of counter-terrorism powers to act as a powerful deterrent. It is however proportionately damaging when the individual in custody meets no criteria of reasonable suspicion.

seriously, get ready.

When it comes to journalistic rights, where are the legal safeguards that can be used to protect them against discretionary powers and media control? The High Court debated another ECtHR case, Gillan and Quinton v United Kingdom (2010), in which the supranational court absolutely refused to let fundamental rights be curtailed through simple, personal, or guided – as was the role of the PCS in this case – decision making.

For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise

Still Article 10 compliant, Lord Justice Laws?

In another case, Sanoma Utigevers BV v Netherlands (2010), the Court even assessed the long-term damage it could do to a journalist, a newspaper, and their relation to sources, credibility, and transparency if there were to be interference with executive authority:

The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources. (…) First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court” was highlighted in one of the earliest cases of this nature (…). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.

Despite this, Mr Kovats, representing the Government, submitted that the ECHR had “not developed an absolute rule of prior judicial scrutiny” on the protection of private interest journalism. (For the sake of the readers, there are two more decisions I did not see necessary to include). On para. 88 of the ruling, the Lord Justice found that indeed, they could not base themselves on existing ECtHR jurisprudence to establish a fundamental rule and model for them to follow.

Rented world

Justice Ouseley did not encumber himself with grand statements. He did not try to contest anything; Justice Openshaw was barely existent. Ouseley just maintained the principles of 40 (1) (b) and supported that an officer, in order to launch Schedule 7 provisions, just needed to “act in good faith”. In what good faith exactly was D/Supt Stokley? Was position was he in, between uncertainty on his government’s motives and the increased pressure of several PCS sent his way? How could be possibly make the decision, without any sort of independent judicial scrutiny, that his actions were lawfully warranted? The truth is, good faith is not a test of good conscience. It is not a test of good morals, or a litmus test for someone’s willingness to stand up to abuses of power. Good faith is what it is. It is fleeting, unreliable, flaky, and perfectly serves the interests of those who benefit, use and abuse the laws they made – and had passed in good faith.

A legislative review of the ATCSA is now necessary given the judicial deference of the High Court to the executive. This is hardly a new concept in debating anti-terrorism law in the UK. In 2004, Lord Hoffmann, then on record in A v Secretary of State for the Home Department, had already challenged the concept of detention without charge or trial against fundamental liberties he believed were enshrined in British law:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such victory.

(*) for those getting the reference: I stand by it.

[ ref.: I get nervous everytime I try to talk in front of a big crowd, a pretty girl, or the police ]

Strangeways, here we come: redefining public interest

When Barack Obama took office in 2009 under the banner of hope and change, he signed a presidential edict banning the use of torture – and certain euphemisms, such as “enhanced interrogation”, “coercive methods” – against prisoners detained in United States custody abroad, even those ubiquitous and extremely numerous enemy combatants. They however never found relief from those human rights violations: as Jeffrey Kaye explained in a series of important coverage for Firedoglake and in this instance in The Guardian, the Army Field Manual – still in use to this date – still authorizes and details methods of interrogation that effectively amount to torture. As such, the ACLU filed a FOIA requests regarding the treatment of detainees in US custody. Al-Jazeera journalist Jason Leopold filed a similar request in 2013, which he details here, seeking to access documents pertaining to the treatment of detainees. From then on, it became a battle between Leopold and the US Army as to whether he would obtain those files.

Initially, as one would somehow expect given the sensitive nature of the topic and the culture of hyperclassification practiced by the Obama administration, his request was partly denied. The US Army indicated it had identified 35,800 documents relevant to his requests, but Leopold would not be immediately granted access. Usually the beneficiary of a fee waiver – granted to researchers and journalists in the name of the public interest of their requests – Leopold was then told that in order to obtain the documents, he would have to front the prohibitive and deterrent sum of $5,355. Refusing to be intimidated by financial pressure into dropping his request, Leopold continued to file against the Army, which in turn stubbornly refused to relinquish the files. Last week, Leopold received another response from the Army – which is infuriating on one layer and, to me, for the reasons I will expose in this article, was absolutely chilling.

“In determining ‘significance,’ an agency must assess the likely impact of the disclosure on the public’s understanding of the subject in question, as compared to the level of public understanding of that subject existing prior to the disclosure. Because numerous [Army Criminal Investigative Division] investigations related to Guantanamo detainee treatment are already available online, and because the subject has been widely discussed by both the media and the military, we do not find that release of the [Criminal Investigative Division] reports in response to your present request would significantly enhance public understanding.”

A journalist wishing to report on gross human rights violations committed by a secretive administration in the name of a counter-terrorism policy defying the international rule of law does not satisfy the criteria of public interest? This is a redefinition of public interest. Jason Leopold’s request was denied because it wasn’t in the interest of the Army to have those files fall in the public domain. The notion of public interest, obviously narrowed down or enlarged depending on the nation-states and courts defining it, bases itself in the fundamentals of human rights law: freedom of information and its corollary, access to information. Although they seem to be adaptable, fluid and fluctuant, the necessity to return to the core of the significance of the disclosure in the name of public interest has never been more relevant. From the NSA files to CIA black sites, it was through pro-active, aggressive and challenging journalism that 2013 has managed to provide a realm in which the executive could be held accountable. To some extent, it worked; to another extent, it criminalised journalists, forced them into retreat, arrested their lawyers, and turned their own fellow citizens against them.

Trevor Timm (*), lawyer, executive director at Freedom of the Press Foundation (*) only a few months younger than me.

Journalism is not a hobby. It often is a calling, hardly financially rewarding, often extremely frustrating. But in 2014, in the United States, the United Kingdom and beyond, it has become an act of rebellion. It is our civic duty to pay attention to journalists and what happens to them under political duress. It is mandatory to remind the authority challenging them they are protected by the law. Freedom of information is a human right; access to information is a direct and derivate of this human right; and national security derogations must be subjected to judicial scrutiny. Public interest is defined by members of the public, not executive authority.

Freedom of information as a human right

This is not a new debate. The principles remain the same, and have been since the Universal Declaration of Human Rights (UDHR), adopted in 1948 at a United Nations General Assembly (UNGA) with the notable abstention of seven soviet nations and Saudi Arabia. Per Article 19,

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

In a 1995 report, then- UN Special Rapporteur on Freedom of Information Abid Hussain released a report that aimed at focusing on the basic, fundamental principles of freedom of information and its absolute necessity in a healthy democratic society. Unabashedly, Hussain reiterated that the UDHR could not be restricted in the liberties it enshrined, and later conventions adopted in its wake – namely, the ICCPR – could not be safely, democratically and legitimately, be derogated to. Hussain explained that violations and restrictions on freedom of expression never arrived alone, and were usually hand in hand with other human rights violations, committed with impunity thanks to the silenced members of the community who would have otherwise been empowered with denunciation of abuse.

The Special Rapporteur is concerned about the continued intimidation, harassment and use of violence against writers, press professionals and other persons seeking to exercise the right to freedom of opinion and expression. (…) He is also concerned at the many instances of persecution of such professionals and other persons, and about the many reports of convictions under national legislation of such professionals and persons to severe sentences, including prolonged prison terms and corporal punishment, in violation of the right to freedom of opinion and expression as affirmed (…)

If Hussain was still upholding his position today, he would be appalled at the treatment the United States  – commenting on the ICCPR that it would never restrict the liberties granted by its own Constitution – and its government reserve to journalists who expose the abuse of supra congressional legitimacy, presidential authority, and use of force. Hussain spoke in his report about the state of the world shortly after the end of the Cold War, when the press beyond the Iron Curtain belonged to the state and was controlled by the state; when information was distilled by the state; and any modicum of personal opinion was under heavy surveillance as to be quenched before it even had a chance to be heard.

Jason Leopold, FOIA terrorist, third from left

If one is to believe there is no such thing as absolute freedom, absolute liberty, and absolutist application of human rights law, which is the pragmatic aspect of the legal community and the tendency to which domestic courts tend toward, the principle of derogation in the name of extraordinary circumstances, emergency powers, or national security imperatives can and has been applied. Hussain, however, back in 1995, observed – and in hindsight, foresaw – the increasing degree to which the discretion granted to national security could lead to abuses.

The Special Rapporteur finds that the protection of the right to freedom of opinion and expression is not always adequately guaranteed through ratification by States of the [ ICCPR ] and other relevant international instruments. In his opinion, such protection requires a continuous political commitment that includes implementation of specific policies and programmes. Furthermore, the Special Rapporteur much regrets the existence of, sometimes prolonged, crises in which violations of the right to freedom of opinion and expression are justified on the basis of outmoded notions of national security (…)

This is when the thorough application of the ICCPR became an issue of both legality and legitimacy.

Freedom of information as a political right 

In 1966, the ICCPR followed suit in yet another Article 19, this time more specific, more direct, and granting a derogation that was foreshadowing.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (…)

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Morals are subjective; public health can be determined according to contemporaneous  imperatives; public order is usually a measure of exception; however, in the current state of western democracies, discretionary use of national security – which for the purpose of this article will be placed in opposition to the notion of public interest – is allowed. As such, at the time of ratification (1992), the United States did not emit any reservation to Article 19. In fact, it doesn’t need to.

CIA black site in Poland (huffingtonpost)

If derogation for national security purposes can be legitimate, they often are in a situation of temporary suspension of civil and human rights – that must be, always, subject to judicial scrutiny. They can never be made permanent. If such a suspension tends to last in time and escape the inquisitive eye of the courts, and is taken away from the representative body at any point, those rights can be considered effectively violated. The issue of secrecy surrounding national security raises two fundamental questions: a) how is one supposed to know their rights have been violated, if the law itself has been taken back by the executive authority – decisions made by secret courts, unpublished edicts, and obscure, paraphrased interpretations? The disclosure of the law can not become a national security imperative. The law belongs, at all times, and without derogation, to the public domain. At every point in a citizen’s life and in the duration of any given administration, access to the law must be granted. Refusing to disclose decisions either made legal or surpassing legal authority is an automatic red flag for abuse. b) the lack of knowledge, information, expression and opinion leaves a space in which the authority remains completely and absolutely unchallenged. There has never been an issue for which the phrase “knowledge is power” has been more true. Journalism in itself bears the duty of public interest: it reveals, at its core – and can detail, analyse, provide, inform, orientate – what ordinary citizens can not necessarily access in real time. A journalist is a witness of the world in which he evolves; he is the medium through which the political and civil climate, national or international, is expressed. A journalist is a relay. Suppress the possibility for a journalist to access basic information, and the population can no longer exercise its right as an informed electorate to perform its civic duty.

As Hussain said – freedom of information is the cornerstone of democracy.

Article XIX: The Johannesburg Principles

In 1995, a group of experts on national security, human rights and international law convened in Johannesburg for Article 19, an international centre against censorship. The principles laid out by Article 19 are non legally binding, and do not present a need for signature nor ratification. However, they have become customary as affirmed first by the Special Rapporteur Hussain in 1996, but later on in the following years by his successors. Every year, the Johannesburg principles are re-affirmed and quoted by the United Nations Commission on Human Rights. The Principles have one specificity – they aim to be applicable in complete acknowledgement of the derogations provided by the ICCPR, and in recognition with the minimum standards of human rights norms in a state of emergency. In short, the Principles lay out the fundamentals of freedom of information and access to information in spite of national security concerns and war time.

Alexa O’Brien, personified legal database of USG v Private Manning

What is fascinating is how the Principles define national security – more importantly, legitimate national security. According to international law and enforced treaties, national security derogations can only be justified in one case – the protection of the territorial integrity of the state endangered by internal or external use of force. In 1995, those principles clearly referred to international armed conflict or state of insurgency. In 2014, where the notion and vague definition of terrorism includes anything and anyone that can potentially threaten the integrity of the state – extended to the state apparatus as opposed to territorial menace – national security can be called upon whenever a government feels threatened. This state of affairs, which has been exacerbated by continual fear-mongering and the replacement of civic duty with unquestioned patriotism was thankfully anticipated by the Principles. Principle 2 (b):

In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

From class warfare to civil rights abuses, to a culture of secrecy, the Principles have never been more than necessary today. All journalists currently targeted have exposed extreme and international-scale wrongdoing by their own governments: mass surveillance; use of torture; secret prisons / black sites / rendition programs; classified use of military force; prosecution of government whistleblowers; executive and judicial collusion in military tribunals. Even the constitutional lawyers are now potentially under threat. Most of those journalists, from Jason Leopold to Alexa O’Brien, from Glenn Greenwald to James Risen, had to eventually either leave the conventional news outlets that had previously employed them, work freelance, or find a way to create their own media source. All of them, at some point, have expressed uncertainty as to whether they would be allowed to travel. All of them have been granted extensive and complex methods of counter-surveillance and electronic encryption to protect their information, data and sources.

None of them, at all, at any point, have committed any crime, violation, or been guilty of unlawful behavior. They were however referred to as criminals at Senate hearings, or publicly disparaged by government spokespeople. The existential threat that creates the necessity for national security in the realm of freedom of information is not an external use of force that may create violence and mass casualties. It is an internal threat that is not terrorism the way we customarily understand it. National security is employed to cover challenges against the state.

And yet, they are forced underground, sometimes even policed by their own colleagues – what Kevin Gosztola revealed in terms of  “journalists policing journalists“, in which traditional and somewhat government-approved methods of reporting are perceived as more legitimate than disclosure; where public interest is decided by the state, not the dictates of public conscience; and where whistleblowing is not just an inconvenience, but cause for public shaming. In Principle 6 (c), is a denunciation of disclosure or information that constitutes incitement to violence, or could cause damage and casualties. James Clapper had referred to the casualties of Glenn Greenwald’s work. Louise Mensch believed the Guardian revelations endangered agents of the Crown. It will almost be a year since the NSA files were brought to light, and no casualties has ever been accounted. With notable exception, of course, of public respect for Gen. Keith Alexander. Principle 15:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

Burden of proof lies on the executive authority.

Gen. Keith Alexander (businessinsider)

Towards a definition of disclosure of public interest

What constitutes public interest varies from state to state and from era to era. It varies depending on the political situation of the nation; it varies depending on the extent of the disclosure. As such, and as repetitive jurisprudence against The Guardian and The Observer in the United Kingdom between 1979 and 2002, public interest is, as mentioned earlier, weighed against national security interests. There is no definition as one is inversely proportionate to the other. It therefore belongs to the public conscience of the whistleblower and/or the journalist to disclose what they believe to be in the public interest. It is a matter of conscience, personal, and national. Most importantly, it is a matter of responsibility. Will the disclosure, non-redacted or partially redacted, will impact the lives of others? Will the disclosure lead to acts of violence, domestically or internationally? Most importantly, will the disclosure in itself be damaging, and if yes, to whom? In the case of the NSA files, there have been gratitude expressed by other states for the release of information they would have otherwise not suspected, as most operated in good faith. They led to overhaul of telephone lines at the European Parliament; draft United Nations resolutions on the right to privacy; new methods of counter-surveillance developed by states impacted by the NSA. They did not only change the face of western foreign relations as we had perceived them since the end of the Cold War; it also impacted the lives of ordinary citizens for whom the overwhelming, crushing state apparatus has robbed them of a right to fair trial. The NSA files were damaging disclosure. But this damage had the consequence to not only bring about an element of fundamental truth in diplomatic relations, they also forced citizens to question the legitimacy of their own government. This has only just started, and is still heavily resisted from a non-negligeable part of the population. But it has started. And in this, NSA releases constituted public interest.

To get back to the work of Jason Leopold and whether his request to obtain files on the treatment of detainees constitutes public interest, a quick look at his work of the past two years provides a sufficient overview of what Leopold is after, and what he seeks to achieve. There is a pattern of defying a culture of classification, which in itself was bound to provoke governmental agencies to react and stonewall him, despite rights provided by the FOIA; there is a pattern of seeking information relative to widely reported human rights abuses at the prison of Guantanamo Bay; but within this, lies the bigger imperative of putting together a narrative spanning much longer than reporting on the War on Terror usually spans. Leopold is evidently after tracing a historical, chronological analysis of all decisions surrounding counter-terrorism that have created the abusive policy that we all live under. For instance, one of his most important work to this day has been the obtention and release (in full!) of the diaries of Abu Zubaydah, a Guantanamo detainee captured in Pakistan, tortured in several sites – including secret CIA bases in eastern Europe – and his detention at Guantanamo. Far from being the unique tale of one single inmate, the release of the Zubaydah diaries provided an incredible and unparalleled look into the collaboration of the United States with foreign intelligence, the systematic span of CIA interference on sovereign states and secret deals with foreign governments, and the widespread practice of torture – despite the edicts Obama signed since his tenure in office.

Ben Emmerson QC

Several cases investigating CIA black sites are currently pending in several courts; against Poland, at the ECtHR; against Lithuania, domestically; and in a parallel investigation by UN Special Rapporteur on human rights while countering terrorism, the ever so relevant Ben Emmerson, attacking the culture of secrecy as practiced by the US government in systematic human rights abuses around the globe. Filing as a third party in the Abu Zubaydah v Poland in December in Strasbourg, Emmerson had a few words regarding freedom of information and public interest:

 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 to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.

Ben Emmerson is a man who has always chosen his words extremely carefully, keeping in mind the weight they carry upon those they are cast. Entitlement to a right does not mean it can be taken away from the citizenry at every governmental whim or according to a specific political agenda. Entitlement means permanence and non-derogation. It means it can be called upon in times of necessity. It means the dictates of public conscience carry within themselves the power of surpassing an abusive use of national security powers; it means they belong to the citizenry and their witnesses – journalists.  When public interest is suppressed in the name of national security, it no longer is national security. It is national control.

That declassification of CIA material that Emmerson called for, in his capacity of barrister and UN special rapporteur, Jason Leopold is tackling with his full weight. Senator Feinstein’s $40 million report on the use of torture and CIA black sites has yet to be released, despite containing information that could be extremely useful in the current litigation and investigation upon abuses committed under Bush and Obama. There came the crushing frustration of inter-governmental authority: despite Feinstein herself wishing for it to be released, at least in part; she has been blocked with the CIA, disagreeing with the findings of the report, and wishing to keep it classified. In the midst of all self-provoked confusion, Leopold filed a FOIA request to obtain the report. It was bumped back to the Department of Justice, which replied with that line:

Subject to Executive Branch classification review to protect against the public disclosure of classified information, SSCI has reserved complete control to make any public release of the document once Executive Branch comments are provided to SSCI for review.

Now, who do you trust?

All quiet on the eastern front

The cases up for review at Guantanamo are as varied as the inmates themselves; their review boards, still in a dystopian universe of partial, remote disclosure and peculiar choice of classification; their release, despite clearance, more than uncertain. Closing the prison involves trying prisoners that have spent a decade or more inside the walls of a naval base in Cuba under circumstances that can escape their understanding – and that of their legal counsel. In that environment, legal creativity and ingenuity is paramount. And sometimes, it’s the pragmatic and hard cold logic that can perhaps build a way out.

Khalid Odah holds a picture of his son, Fawzi (c) LA Times

Fawzi Odah, one of 12 Kuwaiti detainees

Fawzi Odah is a citizen of Kuwait, the son of an Air Force colonel who had collaborated with the US during the first Gulf War. Captured in early 2001, he was then 23 years old. According to his family, Fawzi was performing acts of charity in Afghanistan when he was mistakenly captured in the post 9/11 frenzy that sent US troops to the region. The Pentagon’s version is vastly different – he would have been seized while roaming the Tora Bora mountains, carrying an AK-47 and swearing allegiance to Bin Laden. US bombs were at the time shelling the area, and Fawzi would have either been helping victims – or participating in the recruitment and training of a London-based terrorist cell. Those versions are mutually exclusive, and only a thorough judicial investigation could bring the truth forward.

The US has been at war with Afghanistan since 2001. Anyone captured on Afghan soil and detained under the provisions of the Afghan war can and should, legally, be considered a prisoner of war. This is what Fawzi Odah’s family and representation are arguing in this case – and in his status of prisoner of war (PoW), Odah should be immediately released as soon as the hostilities end. Problem is, there is no end in sight. If President Obama announced in his most recent State of the Union address that it was time to end “America’s longest war”, the Department of Justice, in Odah’s case, seems to think differently, or, in any case, not buying into the political convenience of announcing the end of a war another administration has started, but failed to bring to a close.

In his latest message to Congress consistent with the War Powers Resolution, President Obama detailed the mission in Afghanistan to great lengths (Libya was a one-liner, Somalia a barely longer afterthought).  He concluded (emphasis mine):

As I noted in my report of June 14, 2013, on March 25, 2013, the United States signed a Memorandum of Understanding (MOU) with the Afghan government under which the United States transferred all Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government. Pursuant to the MOU, any new Afghan detainees are to be transferred to Afghan custody and control within 96 hours after capture. United States forces in Afghanistan continue to detain approximately 53 third-country nationals under the 2001 Authorization for the Use of Military Force (Public Law 107-40), as informed by the law of war.

But can said law of war be truly applied to the indefinite detention that has taken place at Guantanamo for the last 12 years? Is any detainee captured in Afghanistan (as opposed to those found in Yemen or Pakistan) entitled to the protection of the laws of war? There is hope in attempting to grasp a shred of logic, a glimpse of consistency and holding on to the vain idea that the rule of law could ever be called upon when it comes to the horrific fate of the inmates of Guantanamo Bay. This is an unprecedented idea of defence, clearing and release of detainees, and it begs attention for the simple reason that it is at least addressing the fact that Afghanistan has maintained the appearance of a traditional battlefield.

At least for the majority of military deployment. (1)

US troops out on a patrol, Afghanistan, 2009

The 1950 Geneva Convention and Prisoners of War

The 1950 Geneva Convention relative to prisoners of war, their classification, determination, treatment and – eventually – release applies

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Whether or not the conflict in question is in an active phase of hostilities or not is not subject to debate when discussing the provisions of the Geneva Convention. Under Article 4, anyone considered a belligerent and thus captured by one of the contracting parties to the conflict can be considered a prisoner of war. By asking the United States to recognise his status as such, Odah would subject to demonstration the narrative brought forward by the Pentagon, in that he would have been seen carrying a weapon (Art. 4-2-c), a member of a militia (Art. 4-2), and belonging to an authority not recognised by the party having captured them as a PoW (Art. 4-3).

Granted, any person not falling under the straightforward and somewhat easily determined categories of Article 4 can still be detained, without benefiting from the status of protected person – civilians, journalists, medical personnel and chaplains, to summarize – until such time as their status has been determined by a competent tribunal (Art. 5.). Has this time come for Fawzi Odah? Are twelve years long enough for a status of belligerent to be determined by a competent court? In a 2004 decision, Rasul v Bush, brought forward by the ever so relentless Center for Constitutional Rights, Judge Kennedy’s decision raised the issue of the amount of time that passes for indefinite detention to become endless and hopeless detention:

The detainees at Guantanamo Bay are being held indefinitely and without benefit of any legal proceeding to determine their status. As the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The CCR, in their summary of the case linked above, explains that several amicus briefs had been filed in addition to the written argument to the Supreme Court, including that of former American PoWs. This defence just might work, despite the fact that a prisoner of war is still protected by the basic rules of war as defined in the Geneva Convention, which have been violated at will during detention at Guantanamo. A prisoner can not renounce to any of his or her rights under the Convention; and recognition of said status could hereby impose duty to act upon the United States due to violations of humane treatment of said PoWs (articles 13, 14, 15  and 16 have all been violated in Guatanamo Bay. (2))

Guantanamo Bay’s Camp Delta: “Honor bound to defend freedom”

If we accept to – hopefully temporarily – suspend seeking reparation and retribution for the treatment of the detainees at the naval base, and concentrate on the release of the prisoners, in this case Odah – one of the last two Kuwaitis still being held in the prison – the Geneva Convention is clear. This is when the situation of the United States, and President Obama’s promise both in his address to Congress and this year’s State of the Union, meddles into confusion, uncertainty, lack of transparency, if not an egregious discrepancy between presidential wish fulfilment and the thorough pragmatism of the Department of Justice. Per Article 118,

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

In his State of the Union address on January 14, President Obama told Congress, America, the world:

More than 60,000 of our troops have already come home from Afghanistan.  With Afghan forces now in the lead for their own security, our troops have moved to a support role. Together with our allies, we will complete our mission there by the end of this year, and America’s longest war will finally be over.

Between presidential promise and alarming reality

In a piece published today in the Los Angeles Times and written by Richard Serrano, the issue of the Department of Justice catching up on the end of the war in Afghanistan has been made clear: US District Judge Kollar-Kotelly has dismissed the suit, calling it premature. And it is. A promise is not a ceasefire; a presidential speech will not sign the official end to the hostilities; an executive tradition such as the State of the Union and the general call to support the President does not constitute a thoroughly detailed enforced foreign policy. It certainly does not give any specific end date to the war. But it could have given some hope to men detained for over a decade, and who can not see any silver lining beyond the barbed wire fence of the prison. The proverbial end to the war “cannot be known at this time“, said the filing, and concluded,

It is inappropriate to engage in speculation at this time as to the timing of the future end of the hostilities.

Because the war in Afghanistan also launched the War on Terror, which will not end, and perhaps never end if counter-terrorism is vowed to become foreign policy in and of itself, if national security becomes the only motive for international and unilateral intervention, and if presidential edicts replace the War Powers Resolution. The end of the active phase of the hostilities in Afghanistan will not imply the complete withdrawal of US troops in Afghanistan. It will certainly not mean that the proxy war that has been effectively implemented and perfected under the Obama Administration will suddenly cease, hereby providing an end to the reason Guantanamo Bay even existed in the first place. The interpretation of what constitutes an active war has evolved since the Second World War, and has been radically altered by the concept of an international, global, cooperative “war on terror”, this worldwide pseudo-mandate to act and intervene in the name of an unknown, vague, unidentified and especially not judicially indicted enemy. Again, in the State of the Union:

For while our relationship with Afghanistan will change, one thing will not: our resolve that terrorists do not launch attacks against our country. The fact is, that danger remains.  While we have put al Qaeda’s core leadership on a path to defeat, the threat has evolved, as al Qaeda affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, and Mali, we have to keep working with partners to disrupt and disable these networks. In Syria, we’ll support the opposition that rejects  the agenda of terrorist networks.

Obama (c) with VP Biden (l) and Speaker Boehner (r)

The danger remains, but the danger is always present. Any nation-state at any given point can be subjected to attack, unless a Westphalia-like fragile status quo emerges from the 125 countries present at the United Nations. The presence of a danger in no way implies thorough military development, domestically or abroad; in no way does it imply the increasing number of permanent bases abroad; in no way does it demand the full cooperation of other nation-states in their own military deployment in third countries. Any of those actions can be considered an active part of hostilities.

But I will not send our troops into harm’s way unless it’s truly necessary; nor will I allow our sons and daughters to be mired in open-ended conflicts.  We must fight the battles that need to be fought, not those that terrorists prefer from us – large-scale deployments that drain our strength and may ultimately feed extremism.So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing.  That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

The key word here is “aggressively”. The cooperation with the UK, with France, with other NATO allies will surely bring about more active hostilities aside, especially in Africa where danger in Mali has already placed France in a difficult position; where the rules of UN-sanctioned intervention have been all but bypassed in Somalia; and the dim, slow roar of an approaching drone, although unmanned therefore not planned by ancient and obsolete laws of war, still remains an active part of the blood shedding and difficult targeting that is war.

If anything, the Department of Justice has refused to give in to the prudent and patient political rhetoric that is, in effect and deprived of all its emotionally engrossing figures of speech, propaganda. It is claiming an end to war, the longest war, and the promotion of peace while aggressively monitoring foreign deployments and using systems of intelligence, surveillance, captivity, detention, targeted intervention and fantastic, K. Dickinsian levels of technology to fight a war that had never been fought before. It is perhaps more effective to dismiss the idea of a foreseeable end to war. It is also terribly disheartening, disenchanting, and ominous, to deem “inappropriate” the concept of ending a war that has already outlasted any other.

But can we tell a man caged in a prison he had never heard of before, fighting a war he didn’t recognise,  in a country that wasn’t his,  for a crime he says he didn’t commit, that there is no end in sight?

(1) the author is currently working on a judicial review of counter-terrorism laws that will address the legal question of counter-terrorism as a proxy war. 

(2) this includes a vast number of similar provisions specifically detailed in the Convention in addition to the general provisions of the articles listed. Some of which relative to right of legal counsel, right to education and religious activities, and fair trial – which is never satisfied by military commission.

Judicial activism and the right to truth: al-Hawsawi and Lithuania

Mustafa al-Hawsawi, 2012

Last month, an extremely important case hearing took place in Strasbourg, at the European Court of Human Rights (ECtHR). It detailed the collusion of the government of Poland with the CIA in creating a secret prison on its territory, in which prisoners were detained, interrogated, tortured, then shipped to the United States on unchartered flights before being detained again at the horrific naval base of Guantanamo Bay. The worst illustration of a lethal EU-US partnership in the so-called War on Terror was finally exposed, after much obstacles were removed. Lack of transparency, hyperclassification, judicial deference, protection of “vital foreign interests”, and the usual disdain for the basic fundamental rights of terror suspects have led to a considerable delay in trying the Guantanamo Bay inmates, but also to broadcast in a court of law the crimes committed by the nation states and their agents. In the fight against terrorism, counter-terrorism is also on trial.

The establishment of CIA black sites on European soil has been a profound source of shame, a delicate diplomatic issue. Yet a comprehensive document dating back to 2006, the Marty Report, commissioned by the European Parliament to investigate and assess the extent of member-states collaborating with the CIA , brought to light how massive the scale of cooperation has been. If the case of Poland has become a textbook situation for collusion –  from paying airport employees in cash to hide departing flights to the US, to refusing access to classified documentation to defence lawyers – it is important to keep in mind it is not an isolated situation. This week, Lithuania has managed to score a victory in its judicial battle within its own domestic courts, without the help of Strasbourg, in a case that highlights two fundamental difficulties and hurdles in the prosecution of the CIA torture program: not only had the Lithuanian prosecutor refused, twice,  to open an investigation into the prison located in the small village of Antaviliai, but all the information used to re-open the case was not governmental documentation at all – it was journalistic investigation made public that had allowed to provide new information.

Mustafa Al-Hawsawi is a Saudi national, currently detained in Guantanamo Bay as a high value detainee and faces trial by a military commission for his role as a financial backer of the 9/11 attack. He was captured in 2003 in Rawalpindi, Pakistan. According to him, he was then transferred to Lithuania where he was handed to US authorities, subjected to torture and disappeared – he would have remained in the secret prison for two whole years, between 2004 and 2006. It’s only then, in September 2006, that US officials formally acknowledged his detention at Guantanamo Bay. As a high-value detainee, Al-Hawsawi was at a much higher risk of torture than any other inmate, according to a report by the ICRC; later, Ben Emmerson, the UN Special Rapporteur on human rights while countering terrorism – who filed as a third party in the Abu Zubaydah v Poland case – reported, in 2013, that the situation of CIA black sites and the practice of extraordinary rendition for terror suspects involved 54 nation states total, from Lithuania to Morocco and from Poland to Thailand.

The forest on the road from Vilnius to Antaviliai, Lithuania

Thanks to investigative journalist Jason Leopold, we know much more about the arrest, disappearance, detention and torture of Abu Zubaydah than we could have ever hope to find if we had followed the often blocked, often stonewalled round of a traditional legal investigation. In the case of Al-Hawsawi, the road was paved with ill-intentions, over a five-year period: in 2009, an initial investigation into the case was made thanks to a report by ABC news, yet charges were dropped seemingly due to lack of evidence. Back then, Defense Minister Rasa Junkeviciene had released this statement:

“Prosecutors need facts. This is how I understand their decision. One shouldn’t forget that this is not only a Lithuanian issue, and if other states fail to give necessary information, or people who know something also don’t want to give information, then in fact it’s pretty hard to say something.”

Although this sounds logical and a fair assessment of how charges could be dropped in a case of serious violations of international law, this highlights the difficulty to access information when so much redaction, red tape or complete classification of material can not be accessible through the classic and regular means of transfer of information in a transnational case. It was obvious that due to the lack of compliance displayed by the United States at the time, further investigation into the lost two years of Al-Hawsawi’s life would lead to empty boxes, unaccessible documentation, or even possibly a request not to look further into this case. However, thanks to the ABC News report, the Lithuanian Parliament created a committee tasked with investigating the alleged CIA black site. And they found one. In fact, they found two. But those were empty, and there was absolutely no written trace, documentation, or evidence made available to them that any prisoners under any authority had been brought to those sites.

Former president Valdus Adamkus and former prime minister Algirdas Brazauskas, the executive authority in place at the time, denied any allegations. The investigation, which came to a screeching halt in 2011, had however unearthed some pretty disturbing evidence, that, linked to other similar cases of detention and torture at CIA black sites, could determine a pretty serious pattern of corrupting local officials, building sites in remote rural areas, and circumventing airport rules for flights to depart and land unsuspected. According to the Prime Minister, who took part in the committee:

The committee also said that five airplanes “linked to the CIA” landed in Vilnius and Palanga airports from 2002-2005, and on at least two occasions border procedures were bypassed with the help of high-ranking Lithuanian State Security officials.

As I wrote in December following the Abu Zubaydah hearing, which I attended, the facts of the case soberly enunciated by the lead counsel, Ms. Singh, illustrated one thing – that it would have been impossible for the CIA to have operated in Poland without national officials knowing about the site. In fact, as it was said then – “not only should Poland know, but Poland did know.” Ms. Singh recounts the different steps taken into the detention and rendition of Abu Zubaydah:

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.

al-Hawsawi at his arraignment in 2008. (c) Janet Hamlin

If Poland appeared to have maintained a political facade since the case was first brought to its attention in 2008, things were not sailing smooth with Lithuania: the Foreign Minister resigned in 2010 over the black site investigation. Back then, President Grybauskaite had publicly acknowledged she knew about the presence of CIA black sites in the country, but following the Parliament report lacking information regarding prisoners, their identity, and travel dates to the prison, Usackas, then Foreign Minister, strongly dismissed all allegations that any torture site, CIA-operated or otherwise, had detained prisoners. Grybauskaite said she had lost trust in the members of her government at the time, and asked her Prime Minister to dismiss Usackas. Usackas, in turn, resigned from his position.

In 2011, Amnesty International obtained information that was relevant to the case and urged Lithuania to re-open an investigation into the secret prison. The claim made during the Abu Zubaydah hearing that an investigation into collaboration with the CIA was “politically inconvenient” echoes the case of Lithuania. It appears that the Parliament report should have consisted in enough evidence to either admit or dismiss the case in court. Since the report could neither assess the presence of prisoners nor the knowledge of executive officials at the time, counsel for Al-Hawsawi relied on investigative missions and victims’ testimonies to provide new information to the Court. The admissibility of this evidence was contested by the Prosecutor. In Poland, lawyers for the government alleged that media publicity and “interference” (sic) with the investigation had made it difficult to carry on in what they believe would be a consistent and objective manner; that NGOs were pressing an agenda on Poland to prosecute human rights violations they weren’t sure existed. The issue of transparency and the obtention of material outside the realm of the legislative inquiry or the executive’s agreement to disclosure is yet another pattern in the prosecution of CIA crimes. Disclosures, both prosecutors argued, are premature, and affect the course of the inquiry by being influential.

They’re influential because they expose the failure of the authority to comply with the judicial inquiry.

In the case of Lithuania, however, the prosecution failed short of upholding the important role of journalistic investigation and obtention of victims in the care of human rights-focused organisations. Says Joe Margulies, a professor of law at Northwestern and counsel for one of the victims, said in 2011:

“[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

In September of last year, things moved at an incredibly fast pace. Basing their evidence on publicly available information such as EU Parliament reports, flight data gathered by NGOs Reprieve and REDRESS, the counsels submitted a new complaint calling for a new investigation into the detention of Al-Hawsawi. The complaint explained that a thorough and effective investigation had to be made to “secure evidence, seek clarification, seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view of ensuring they are prosecuted.”

Ben Emmerson, QC

The importance and effect of publicly available information and thorough disclosure could not be stressed enough in this case. The similar that has emerged against Poland will pave the way for those that will surely follow. Ben Emmerson had re-affirmed his commitment to the right to truth as a universal human right and a cornerstone of the legal commitments binding on all member-states not just at the Council of Europe, but at the United Nations. From our piece on Abu-Zubaydah, again:

“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 month following the filing, the Prosecutor informed both NGOs that he refused to launch an investigation. They immediately appealed his decision. The EU Parliament in Strasbourg adopted a resolution on October 10, 2013 urging Lithuania to re-open an investigation into CIA black sites, in regards to 4 cases already pending at the ECtHR, and a fifth application made in a domestic court in Italy:

whereas Parliament has condemned the US-led CIA rendition and secret detention programmes involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance through the use of European airspace and territory by the CIA; whereas Parliament has repeatedly called for full investigations into the collaboration of national governments and agencies with the CIA programmes;

whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so;

Reiterates its call on those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light, and to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls in particular on the Member States to investigate whether operations have taken place whereby people have been held under the CIA programme in secret facilities on their territory; calls on the Member States concerned (France, Italy, Lithuania, Poland, Romania and Sweden) to respond to the letters sent by the UN Special Procedures;

In this staunchly strong-worded resolution, which urges member states to launch thorough and detailed investigations from government records to phone records, and even forensic investigations at the prison sites themselves, the EU Parliament follows a trend of transparency regarding the collaboration with CIA of EU member states, and has called on every member states not to just comply with recommendations and requests of the ECtHR, but also those made at the UN. The practice of rendition and black sites by the CIA is not an American concern; it is a worldwide concern, that must be addressed by all member states.
In spite of this call, the appeal was just as quickly dismissed.  Yet another one was made, in a remarkable show of consistency and perseverance in the pursuit of truth and justice – and this time, the Vilnius Regional Court upheld the demand for an investigation, and the case is now re-opened. The Regional Court claimed that previous dismissal by the Prosecutor General had been “groundless”.  Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, was justifiably and understandably delighted with the news. The persistence of the counsel for Al-Hawsawi must be commanded. In a statement released shortly following the decision of the Vilnius Regional Court,
“The Lithuanian government and Prosecutor General must now open a full and effective investigation into Mustafa al-Hawsawi’s claims and ensure that any other individuals who have alleged that they were held in secret CIA detention there are afforded the same right.”
As of today, investigative journalist Jason Leopold, whose thorough body of work includes the obtention and publication of the diaries of Abu-Zubaydah, clearly detailing his arrest, detention, and torture, has filed a Freedom of Information Act (FOIA) lawsuit to obtain a copy of the Senate Intelligence Committee’s torture report and CIA activities, chaired by Senator Dianne Feinstein. This is the exact same report that Ben Emmerson asked to be released in this UN report from March 1, 2013; a situation he called “a pressing concern”.  After Leopold’s amended claim, a response came, a peculiar and unusual one: his request was denied; the Senator has “full control” over the report and its hypothetical release. The Court argued it had no jurisdiction over Leopold’s claim. The Senate’s torture report will not be released anytime soon.

Al-Hawsawi is still detained in Guantanamo. NGO REDRESS, represented pro-bono in the case, filed a motion on October 17, 2013 to submit against the classification regime blocking them from accepting complaints to third countries, hindering the investigations in the case, which amounts to a violation of his right to a fair trial. On November 27, 2013, the military judge denied the motion.