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?

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About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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