Against politeness

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Photo by Zach D. Roberts for Nation of Change.

I have been made aware of my European identity early, and often. I was born in France, walked my first steps in Ireland, survived my growing pains in Northern Ireland, was educated in Germany, entered adulthood in Switzerland. Every one of those places is determined and defined by war, either present or past, the scars evident for a naked eye to see. Belgium, the Netherlands, Italy, Spain, the Balkans, Austria, Poland, all those bright blue lakes of my childhood and the snow-tipped cold mountain ranges have carried ghosts, whispers and whimpers of the deported, the exterminated, the shellshocked, the wounded of two world wars, at the very least. When a 20 year old student from the University of Nevada called Peter Cvjenatovic says he attended the “Unite the Right” rally in Charlottesville, VA this weekend because the “European culture” means terrorizing the local population with torches and swastikas, brown shirts and black boots is his right, my stomach churned; I blinked at the photo of his comb-over, his facial traits distorted by fanaticism as he screamed “Blood and Soil” on American ground, and the image of a young Otto Van Wächter came to mind.

It’s a nightmare, a nightmare from which we are told not to wake up; it would be an “alternative” reality, a legitimate product of economic disenfranchisement, a “fringe” not present or represented in the current Trump administration, a “rise” contrary to the decades-spanning files of the FBI’s counter extremism task force. It is none of those things, and this piece aims at explaining two things: the issue of free speech absolutism in times of violent politics, and the necessity to call to action without concession.

Free speech absolutism in the age of Trump

 One of the glaring differences in constitutional rights between the US and European member-states – at range, for the purposes of this argument, states party to the ECHR – is the interpretation of the right to free speech, in freedom of expression, opinion, and information. Contained in the First Amendment to the Constitution in the US and Article 10 of the ECHR, the vast difference is of a historical nature, and can vary from state to state in Europe. When it comes to ban on political parties, memorabilia, symbols, or speech, the United States applies a blanket to free speech with a narrow hate speech caveat. In the case of France, a debate regularly arises on the criminality of denying the existence of the Shoah; in Germany, Nazi memorabilia and even performing the Hitler salute in public are banned. Those, to the outside eye, seem necessary given the specific political context inherent to those two countries. In the United States, it appears that events taking place during the 2016 electoral campaign and more recently in Charlottesville, VA have raised the issue of a narrowing, culling, and roughing up the edges of absolutism.

It started when the American Civil Liberties Union (ACLU) represented the leaders of the “Unite The Right” rally in Charlottesville, after the mayor refused them a permit to march. And march they did: the night before the rally itself, the crowd descended on the University of Virginia (UVA) campus in Charlottesville with tiki torches, singing and chanting slogans while marching in pants and shirts, at night, startling the local population with imagery much too familiar to the South and eerily cognizant of its effect on the western world at large. Many felt the ACLU, an organization crucial to the respect of civil rights in the country and generally affiliated with the organized political left, had let them down. The ACLU had been fundraising since the January transition on a platform of opposing the Trump administration at every turn. In that, they delivered: they took the refugee ban to court; they protected journalists targeted by the president’s desire to control the narrative; they were front and center against efforts to repeal the Affordable Care Act. Representing a hate-filled, extremist movement’s right to protest was perceived as a betrayal. Politically, it may be. But the ACLU is a legal organization based on the equal and fair application of constitutional rights; they are not to blame, absolutism is.

There are plenty of arguments in favor of absolutism. They will all highlight that limits to free speech and freedom of the press would yield to state discretion, to judicial bias, to political suppression. They will misquote Voltaire and discern from the old English law that civil rights are not here to be restricted, and that civility will do part with the belief that all positions are equal. They will argue that it’s necessary for expression to take place so rebuttal can also be present and public, and that pushing extremist views further into darkness legitimizes their claim to oppression. In this specific example, they will say that the history specific to mid-20th century Central Europe and French occupation are not the same as the legacy of the Civil War in the United States. Meanwhile, statues of confederate leaders are tumbled down all across the South, and monuments are being used as meeting points for white supremacists. It is very possible to then argue that the legacy of the Civil War has in fact not been dealt with; that the criminal justice system in the United States continues to disproportionality punish black and ethnic minorities; that police violence is unabated and unrestricted; that affirmative action and voting rights are under attack. Is this a reason to curtail free speech? Is extending hate speech territory a violation of free speech? Should the ACLU not accept First Amendment complaints from white supremacist groups?

Legally, the ACLU is being consistent. This is the interpretation of the First Amendment as upheld by the Supreme Court. The aforementioned defense of absolutism makes legitimate points that have been demonstrated as correct: there is a long-standing trail of political bias in freedom of expression. One recent element comes to mind, and that is a much cited court case against former presidential candidate Marine Le Pen being booted off court after filing a defamation claim, the judge outlining in his decision that what is true can not be defamatory in nature: it is therefore legal to refer to Marine Le Pen as a fascist in the course of political debate. This did not prove that hate speech laws in France criminalizing historically verified facts or the ban on neo-nazi parties in Germany are a violation of a fundamental right. Speech is not, as much as one would like it to be, a fundamental right. It is not cited as an absolute because its very nature can pose a threat. What we consider when curtailing free speech is the imminence and reality of the threat said speech poses, and in that states do in fact exercise quite large discretion in determination and definition. Political positions are threatening if they dissent or attack the powers that be; religious beliefs can be seen as isolating and discriminatory. If we do consider human rights to be universal in both nature and scope, we must define them by what they are not. If we are to believe civil rights should be accessed by all, limit them to what they do not tolerate. If political rights are to be exercised safely and in the interest of the collective, they cannot be extended to beliefs that in nature are threatening and lethal. When it comes to the ghosts of slavery and Nazism, ghosts that are very much palpable and cyclically return to haunt the West, there is no debate. Refusing to tolerate such positions is not a question of specific party membership, or political affiliation. Refusing racial supremacy goes far beyond a flag, a border, or a constitution. It is committing to human rights. We should, and must, draw a line.

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Photo by Zach D. Roberts for Nation of Change.

Polarizing attitudes and the Free Ride Theory

 A rose may be a rose by any other name, but an old professor of mine coined the following concept as the Free Ride Theory, and it applies. The dominant narrative, in both glossed-over history reenactments or modern cinematography is that most French people were in the Resistance, the Vichy supporters were passive opportunists, the vote to grant Marshal Pétain full powers all but ignored. This was not the case. A small portion of the population was, in fact, supporting the Vichy regime; held anti-Semitic views; called for the end of Front Populaire policies; believed the Reich could restore order and glory to the fading empire. Another small faction found itself on the other side of the spectrum: they joined the Résistance, engaged in sabotage, conducted counter-intelligence missions, provided safe passage to England, dragged compromised comrades behind enemy lines. The large, vast majority was neither. To support Pétain was to support beliefs that could be unpalatable for many; to join the Résistance was to take incalculable risks. Activism was lethal, and for many, the decision was made for them: communists, Jews, gays, pacifists, artists, they would have died regardless. They were young, had no families to feed, and so many found themselves with the need to follow in exile, or simply rejected resistance because they rejected conflict.

When Paris was liberated in August 1944 and General De Gaulle marched on the Champs-Elysees, people rejoiced, cheered, embraced the Allied troops, whether they had been pro-actively engaged in their victory or had hidden in their rooms waiting for the war to end. The latter, according to my professor, benefited from the actions of a few: they were freed without having seen concentration camps, without having lost a limb or a relative. They rejoiced despite not sacrificing anything in the battle. It was, to him, the free ride all passengers on the merry-go-round win if one child grabs the prize. One fights for the many – and the many claim the same prize as the one. It’s the rule of activism: not everyone can contribute to the resistance as much as the other, but all must win. It is a basic fact of socio-political frameworks, and it must be understood that not every citizen was going to be physically present in Charlottesville, VA over that fated weekend during which fundamental values were tested in an almost unprecedented fashion.

But there is something to be said about commitment to those fundamental values, and to this extremely recent need not to polarize, not to draw lines, not to erect barricades, to compromise. Barack Obama was praised as a Democrat president for reaching across the aisle when most had elected him on a quite progressive platform. This created resentment, bitterness, a feeling of betrayal on the less centrist side of the Democratic party. What’s fundamental is however, by definition, not a question of bipartisanship. It is about collective identity: it is not about local policies or electoral cycles. Those values are often written (or described) in constitutional texts. As such, the United States will hold its First Amendment as a fundamental that cannot be taken away from any American. It however does not say that other American must consider this particular exercise of speech as of equal value to, say, the fight for universal health care, or a Gawker article.

Everywhere, human rights are under attack. They were held as a breakdown in national identity during the Brexit referendum. They were defined as responsible for the sharp divide between the presidential candidates in France. They are at the heart of a 5 year-long civil war in Syria. They are denied to millions of refugees in makeshift, sub-par refugee camps in Australia. Under the guise of civility and tolerance, we are accepting their violation as a legitimate political discourse. We are refraining from resisting and encouraging others not to protest them, we are classifying them as a fringe, a phase, a temporary ill to befell our otherwise civilized, evolved, democratic society. They are none of those things and history has proven that by never taking a stand, or by assuming there is a reasonable expectation of equal treatment and republican commitment, we will fail. Later, the fabric of society will be unraveled, slowly undone, until the law no longer protects the vulnerable and the body politic belongs to a violent few.

Now is the time for a strong moral, ethical and legal line to hold against what have constituted the backbone of modern human rights law as we know it. There is no equivalency to be drawn and no position to “agree to disagree” when fundamental rights are so directly at stake and leaders of the movement discuss creating an “ethnostate”. For all the signs that dystopian pop culture has created in the last few years and the success it’s generated – from Black Mirror to The Handmaid’s Tale – the difficulty to translate this generation’s anxieties and fears for the future has not made it onto the streets nor has it formed a substantial support of the recent warning issued by Human Rights Council treaty bodies. An innate and otherwise legitimate denial of violence in any shape or form from centrist corners has yielded passivity, an apathy, lulling vast portions of the population into a false sense of security. Those movements are not “fringe”; they are not “lone extremists”; they are an armed militia, and they have long claimed casualties. For 74% of the attacks committed on US soil to be attributed to extremists in the last 9 years, it is long, long time to show solidarity in disagreement and initiate false parallels. We are who we stand up against.

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It’s been a really trying year

I saw the date approach in my calendar with a nostalgic reminder of the sense of loss I felt then. A year ago, I had landed back at Heathrow in a rush in the hours before the polls opened all across the then-united Kingdom, queuing with other European citizens in the European passports line, a little uncomfortable with the referendum being held in the first place, but otherwise confident. I walked passed several magazine and newspaper stands on my way out, glanced at issues celebrating an upcoming victory for the far-right: an “independence day”, according to Nigel Farage, “freedom” from an institution few understood as anything else but a regulatory body, and most of all, “control”.

Back in New York, expats and Americans alike kept asking for predictions. Of course, 2016 was the year I was constantly proven wrong: I was firmly convinced Donald Trump, for instance, would never win the Republican nomination. I knew Europe always journeyed through cyclical bursts of far-right approval. I wanted to be receptive to criticism of EU institutions – a pet peeve of mine are references to “the EU”, just like “the UN”, neither being homogenous entities – that I often emitted myself. I had been tested, like many Europhiles, by the Commission’s reaction to the refugee crisis. I had been in opposition to a secretive and adversarial EU Council, that Ian Dunt qualified as “shady”. But it was so painfully obvious to me, from the continent, that the Leave camp as lying, over and over again, that I felt confident the British public knew better. We had spent enough time correcting statements that a Brexit vote would mean a withdrawal from the ECHR for it to be understood.
Of all the things I hate (people calling Bushwick “East Williamsburg”, forgetting the h at the end of my first name, anything written by Alan Dershowitz): being wrong. Needless to say, June 23rd was not a good day.

I work in Strasbourg. It’s not Brussels, but close enough thanks to being another seat of the EU Parliament, that the shockwaves radiated all the way to the Rhine. My colleagues and I were at the office early that day, snacking, nervously drinking coffee and checking our phones. It’s not necessarily a strange scene for people working in counter-terrorism. But this vote was about something else. It was about dismantling something we all believed in, although with different degrees of devotion. We were, are, all Cold War kids, children of Mitterrand and Kohl, great-grandchildren of Verdun, Eurostar frequent passengers, some of us coming of age with the Good Friday Agreement, Erasmus-educated, border-hopping staffers. My reaction to Brexit continues to be bipolar. On one hand, I react to it as a lawyer, interpreting article 50, issuing concerns about the Northern Irish border, attacking the arrogance of a bespoke agreement with Europol. On the other hand, it feels deeply personal. It’s a betrayal of my identity, of one growing up thanks and through the European Project – an idea separate from the European Union, with the end goal being that the two should reconcile through democratic, progressive values, pro-immigration, pro-human rights, pro-workers’ rights, an evolution a political finger to De Gaulle and Thatcher and a legal assertion away from US exceptionalism.

I was given the opportunity to let my heart on my sleeve for the legal commentary blog Opinio Juris about Europe, the European Union, the European project, and the fears the referendum brought to light as a Northern Irish citizen. I still haven’t corrected the typos.

When the result was officially announced, my office fell quiet. Sure, the referendum was not legally binding. Sure, the margin was not significant enough to call it a political mandate. Sure, the question itself was vague enough not to give a time frame for withdrawal or how exactly the UK will divorce from the rest of us. There was barely time to grieve, really. Jean-Claude Juncker became aggressive, Donald Tusk chose the bleeding heart route, and all around me, lawyers were suddenly dragged in the spotlight, a place where we feel either really comfortable or really uncomfortable, having to respond to questions for which there was never supposed to be an answer at all. If anything, to me, the UK had entered a historic phase: as a long-time partner in the creation and construction of what would later become the European Union, a major player in its most destructive wars, and an unparalleled ally in security, seeing the island decide to float away on its own in the choppy, freezing waters in the North Sea and taking Northern Ireland with it was impossible to fathom. It wasn’t “control”. It was the sort of “freedom” that one can only achieve when they jump off a bridge, for a split second suspended outside of the laws of gravity, but inevitably about to hit the ground in free fall.

As lawyers, we then had to find a way out, a legal answer to a political question. Immediately, what came to mind was a simple truth, a statement of fact: it was not legally binding, so why do anything? But David Cameron had resigned, and “mandate” and “will of the people” became such imposing terms we outlined Article 50 for everyone else. Article 50 says nothing. It provides a time frame. I started writing a few paragraphs everyday, a mock-diary of post-referendum news coverage, that I titled “Weimar Britain”. Every morning, I would call the hour in GMT, list a few highlights of the absurd positions taken by Theresa May or Michael Gove the day before, mention if Juncker or Barnier had gone for a round of golf, and finish with the weather forecast, the last sentence being, “the UK is still in the European Union”. I did that for a few months, the ritual becoming quite popular in my circles, so convinced I was that Article 50 would never be triggered. It just was inconceivable to me. Repealing every EU provision in British common law? Alienating the country from security agreements at a time of heightened security threats? What was that constant logorrhea about a sovereignty that was never questioned nor eroded in the first place? Everything was baffling, incorrect at best, surreal most of the time. And then I was told, in December if I remember correctly, by a certain British journalist, that I was delusional if I believed Article 50 would never be triggered. A few months later, he was proven right, and I was once again proven wrong.

The otherwise excellent Remainiacs podcast, started a few weeks ago, used the term “trauma” to refer to the feeling many experienced in the aftermath of the referendum. I won’t use the term, because my field of work reserves it for a different type of experience. I will continue to say what I feel is loss: a sense of unity, that was never there in terms of EU-wide political consensus; a sense of togetherness, certainly not correct considering how many opt-outs the UK placed on many EU treaties; a sense of belonging, that never extended to many immigrants much like my parents. The European project remains an idea, but it is an idea I firmly believe can translate if we empower the Parliament to oppose the Commission more and if, really, the Council conducts its work in a less shady manner. The role of EU Courts, so often maligned by UK politicians, is paramount. Brexit will not affect the UK’s membership of the Council of Europe, and the country remains part of the ECHR, at least for now. But the days are numbered: leaving the EU was never about renegotiating trade agreements or “taking control” of agricultural regulations. It was about shutting down immigration, about refusing to implement ECJ rulings on civil liberties, about the immaturity and irresponsibility of removing one state from transnational regulations that provide for medical progress and housing safety, among other things. It was a vote not based on concern for the lack of reform in the EU: it was about misplaced and misunderstood British identity, that was placed as superior to other states, and perfectly capable of raising the flag of the Empire after centuries of outward progress.

It’s been a year. It’s been a year of we, in Belfast, Derry, Newry, Enniskillen, having to remind everyone that our region has always been fragile and precarious, that our peace process was ongoing and needed attention. It’s been a year of sharing and re-issuing reports compiled by EU officials on the dire effects of a EU withdrawal on devolved administrations. It’s been a year of my colleagues publishing paper after opinion on the impact of Brexit on the 1998 Good Friday Agreement. Mostly, it’s been a year of reading about the fear, anxiety, and panic at the prospect of the border being raised. Typing this, I found myself capitalizing the word – Border – out of habit. It’s not just any border; it’s a border that symbolized a civil war. It’s a fault line I had known my entire life and that I still shudder, even if it is now disembodied, whenever I ride what is now a commuter train between Dublin and Belfast. It’s a border we were told we were never going to see again, one that Theresa May apparently just found out about, one that Secretary of State James Brokenshire discusses to provide assurances of our safety but without the necessary presence or authority required by the position of neutrality the UK is supposed to hold. There is nothing neutral about Brexit and its complete lack of interest in Northern Ireland. And so, we are entering our sixth month without a government or a Speaker of the Assembly; Dublin finds itself having to be a buffer between London and Brussels while being the key player on the chessboard, without its consent, without it having a say in the referendum being carried out in the first place. Northern Ireland voted to stay, because, as I wrote at the time, it is survival for most of us. It is for many others across the Union.

It’s been a year and I’m swimming against the tide of colleagues and friends leaving the UK to head to the continent, where their legal status is ensured, where they will not be asked for a visa and where their children can stay with their parents: I am moving to London. As I flew back to Europe a few days ago, once again from New York, but this time into Switzerland, I realized my biggest privilege wasn’t the most obvious necessarily. It wasn’t my education that the EU subsidized. It wasn’t my safety from war that the EU launched and protected. It wasn’t my health coverage that the EU ensured and funded. It is my freedom of movement. It’s the two passports – I am a citizen of nowhere – I hold, two EU citizenships, two possibilities of fast-tracking at airports, two possibilities of visa waivers. One is a Schengen nationality, the other is a Common Travel Area one. European citizens are trading this freedom at quite a cost: first the Schengen Information System (SIS II) database, and the Passenger Name Record (PNR) agreement with the US. Those will need work, reform, scrutiny, checks. We have a Parliament, we have Courts. UK citizens may lose their freedom of movement. They may be restricted, suspended, will have to re-negotiate. Education, family life, work, internships, travel, tourism, experience, all of this is dangling off the edge of a cliff.

It’s been one year. Imagine. One year, and no answer.

Going to a town

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Next month will mark 13 years since I’ve become a practicing lawyer. It’s been 13 very, very long years, during which I’ve learnt more about managing the long term effects of sleeplessness than anything else. Every year I reflect on the context of the practice of human rights law, and every year I find myself questioning this commitment, until I reach the same answer: I would never do anything else.

The last 12 months have not been quiet and comforting for this profession. Our colleagues in the magistrature have become enemies of the people. Our friends and peers in Turkey have been arrested and detained in an authoritarian purge. Across the Atlantic, we de facto represent dangerous dissent. Suddenly our work becomes more political than it’s ever been. It means it’s also more than necessary than it ever was.

This little note has been inspired by two conversations on Twitter, a platform of predilection for lawyers it seems, which confirmed two strongly held beliefs of mine: one, we are profoundly unhappy and deeply cynical, as illustrated by a thread on the (otherwise excellent and erudite) Secret Barrister’s timeline, asking practitioners to detail the consequences of their job. The answers ranged from high levels of alcohol intake to breaking down of marriages. Long hours, for some, low fees (yes), sexism, poor to execrable relationships with the press, never ending debates on jurisdiction and uncertainty of political decisions lead to the difficulty to see purpose in fulfilment in the practice of the law.

Two, in my specific area of practice, counter terrorism, defense and security, we are drowning under the weight of government secrecy on one side, and a culture of disinformation on the other. Few other issues are as inherently manipulative as security, few depend so much on perception and emotive reaction. Our attempt as lawyers not only to carry on with our day-to-day activities, monitoring emergency, accessing suspects in detention, ensuring the compliance of counter-terrorism legislation with transnational and international provisions, no small feat in itself, now also includes a self-imposed duty of information. I say self-imposed because none of us are under any obligation to develop any sort of public profile or to publish on non-academic platforms. There has been a wider desire to understand the inner workings of a system that was evidently destroying lives, to shine a light on principles of accountability at a time when moral outrage isn’t significant enough to effect change.

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I have always maintained, to the dismay of some, that the practice of human rights law is not advocacy. The universal application of norms demands universal enforcement; scrutiny must be exercised on an equal footing; and judicial redress demands unequivocal commitment to the right to truth. Alleging a human rights violation must not be lodged with the purpose of attaining a political score; it isn’t about hammering a rhetorical point home. Human rights, fundamental or derogating, translate into very real protection, in war or in peace, in heightened or low threat, against state power the same as against non-state armed groups. Yet the politicization of those rights, always predictable, too often inevitable, has now completely undermined the enforcement of those norms. If we lawyers can do a better job at explaining our role within the immense machine that are human rights organisations and institutions; if we can provide another element of access to necessary information, and spread knowledge of rights to which every individual is entitled, now is that time. We do not always reach the target, but we place critical tools into the public domain. It’s a priceless endeavour if the goal is to raise support against legal aid cuts, provide financial cushion to provide protection to refugees and asylum-seekers, to highlight changes in legislation that isolate individuals from courts.

While I have often worked alone and would continue to do so, and generally avoid large-scale debate because trained the old-school way, it matters to meet like-minded colleagues that push the practice forward through expertise, respect for the craft, and commitment to values. Public interest academics, professors and all-around commentators such as the invaluable Kevin Jon Heller have proven time and again how irreplaceable their input was. From violation of fundamental rights of refugees in Australia to briefing UN member-states on the ICC’s aggression amendments, Heller is not only contributing to a historical legacy of international criminal law, he is also steering not-so-young lawyers such as myself in the right direction. It is also more than worthy of note that Darragh Mackin, the young solicitor from Newry, whose mind absorbs information and focuses on legal detail in a stunning and breathtaking way, has now been named partner at the seminal legacy and human rights Belfast firm KRW. Few of us can boast of having achieved that level of excellence at his age; the reason why Mackin makes such a difference in the practice of his work is his unparalleled dedication to the people and causes he represents, from the Hooded Men to Ibrahim Halawa. This isn’t about publicity. It’s about the practice of law being a proxy for the maintenance of peace and the access to an equality we are sworn to uphold. It matters that it is being recognized, and that once in a while, perhaps once a year, under the sentimental cover of anniversaries and commemorations, we celebrate that we are part of a much larger group of people that, underneath it all, work towards inscribing change.

To answer that stranger in a strange social media land, yes, I am proud of the way I was educated and trained, I am humbled by the work of my colleagues, most of whom I would have never dreamt to call peers. This follows years of whispering to one another, “it will get worse before it gets better”; there will many more sleepless nights and many deplorable incidents of violence, death, torture, aggression, occupation, before we see a new dawn break, like it happened before. We are vessels; we are, in essence, the evolution of international relations away from belligerent status quo and lethal inequality.

But this is never something we could have done without journalists, without activists, without citizens of the world, without committed representatives. Before the elections in France, Brexit negotiations, peace talks in Syria, disarmament affairs, states of emergency, ad hoc tribunals, access to documentation of torture, mass surveillance, and destruction of hospitals continue to be a staple of our everyday lives, here’s to human rights defenders and those who defend them.

Something about England: terror trials and press freedom

Court artist’s sketch of Erol Incedal

Of all the things I hold to be true and self-evident:
That all men and women and everyone across the spectrum are born equal under the law,
That fundamental political, civil and human rights in a healthy democratic society are subordinate to the oversight of an informed population,
That the guardians of said information are entitled to freedom from governmental interference, harassment, and intimidation.

Of all the things that have infuriated me over the past two years and committed by the conservative administration of the United Kingdom of Great Britain and Northern Ireland:
The arrest and detention of David Miranda, Glenn Greenwald’s husband, at Heathrow Airport under counter-terrorism legislation;
The passing of the Justice and Security Act of 2013, setting up secret trials for terrorism suspects;
The confiscation of Ian Cobain’s notebooks containing notes from the Incedal trial by Her Majesty’s Intelligence Services.
The latter point has seldom been reported on. Cobain himself has published several pieces about it, framing the event in a broader, sharper light, casting away the politics of national security obfuscation that has become Home Secretary Theresa May’s trademark. Open justice and access to information are violated in the name of protecting national security interests. Why this trial had to be held away from the eyes of the press will never be known: the notebooks were confiscated, grabbed by MI-5 agents outside of the courtroom and are currently held in a vault inside Thames House. What those notebooks contained is even restricted in itself: “On each occasion, the evidence was carefully presented in one of three sessions. Parts of the case were in open court, with the press and the public free to come and go; other parts were held behind locked doors, before a jury whose members were warned that they could go to jail if they ever divulged what they had heard; and parts were held in intermediate sessions, in the presence of the jury and a small group of journalists who are prohibited – at least for the time being – from reporting what they learnedwrites Cobain in March, recalling the events leading to that illusion of open justice. What we know of Erol Incedal, the 27 year old London resident and law student, was that he was found in possession of a bomb making manual in the trunk of his car. We also know that his surveillance started after a routine traffic stop in London. The blackout only resulted in one public curt decision: the court failed to reach a verdict in the charge of committing acts preparatory to terrorism. He was acquitted on the charges of committing preparatory acts of terrorism; he was however guilty of being in possession of the bomb-making manual.

Assuming there is a valid purpose to secrecy in the course of justice, methods are already in place through the submission of PII certificates – confidentiality – by the government to the judge. The evidence itself can thus be concealed from public access, should this pertain to ongoing intelligence activities, military strategies and deployments, or sealed diplomatic documents. PII certificates have similar applications in other countries and other systems of laws, and have worked just fine until then – sometimes even to the point of working too well, when certificates are requested then issues for a troubling majority of the content discussed during the trial. Every case surrounding alleged criminal activity committed by the government’s intelligence agencies have been shrouded in secrecy; the Investigatory Powers Tribunal (IPT) itself extends non-committal statements through its determination / non determination system, which is suggestive, not declarative. In itself, those cover an impressive array of restrictions to the principle of open justice. What the JSA 2013 does, and what happened to Ian Cobain and his peers covering the Incedal trial, has crossed an untenable and inexcusable limit.

Lady Justice at Old Bailey

2013, 2014 and 2015 were not good years to be a journalist in the UK. Those were not good years to work at the Guardian. For wanton acts of publishing to commission of acts of journalism, the King’s Way newspaper has seen its headquarters invaded by GCHQ agents in a humiliating, destabilizing, and thoroughly disturbing destruction of their hard drives allegedly containing the NSA files handed by Edward Snowden – despite GCHQ fully knowing that copies of the files were stored at other newspapers’, as well as disseminated worldwide to precisely avoid their utter destruction. The goal was to belittle and cripple The Guardian. The goal was to show journalists their place in the war on terrorism and the surveillance apparatus. The avowed goal was to make journalists understand it is not their place to reveal anything that would not be preemptively approved by the government. The goal was to make the press hear, as clearly as a clarion on a naval base, that truth was not convenient; that an informed public is a threat to institutional status quo; that any alleged violations of fundamental human rights were proportionally weighed against the protection and the security of the realm; that it is not the job of a journalist to place a question mark at the end of this sentence.

Except it is. A journalist is not a spokesperson. A journalist is not a press secretary. A journalist is not the political amplifier of those in power. A journalist should always have a question mark.

In a situation that we learn of drip by drip, leak by leak, whistle by whistle, reporting by reporting, the question of access to courts, access to representation, and access to justice becomes more and more obfuscated. It is not just that the trial is heard in secret; it’s that evidence held against the defendant is rarely communicated to their legal representation. In one Kafkaesque twist after the other, the very claim put to the court becomes obscured by the fog of the war on terror. Where justice is expected to shed a light on abusive proceedings, it is itself impended by mechanisms violating its independence and its separation from powers of governance. We do not know how much Erol Incedal knows about what the security services know about him. We do not know if he was fully informed of the charges made against him. We do not know on which grounds his acquittal was decided. All we know is that he was present; journalists, however, kept being held back, pushed away, or let inside for a maximum of three minutes. Ian Cobain’s notes could not have been anything more than what had been graciously and magnanimously exhibited to him in those extremely rare peaks inside the courtroom. His notes could not say, detail, or reveal more than the trial itself had let open on those occasions. And yet, his notes, taken down on a reporter’s notebook, are inside a vault at the MI-5 headquarters.

Thames House, the MI-5 headquarters

In 2014, the High Court decision in Miranda v UK exposed several gaping holes in the safeguards for press freedom in the Empire. Judge Laws, in rare form, referred to a legal precedent – Attorney General v Guardian Newspapers (1990), quoting Lord Goff: “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.” It is now the established law that terror trials can be lawfully held in secret if such is the decision of the Government and is endorsed by the hearing Judge. It is disturbing enough that the fundamental right to freedom of information and press freedom is directed through methods of concealment and confidentiality that are at no point weighed against informed consent or democratic principle, but instead the safety of the organizations that are targeted by the alleged criminal conduct. That the same organizations are now entitled to grab a reporter’s notebook – protected by press freedom principles – and hold it hostage inside a vault like a hazardous substance – goes way, way further than what Lord Goff intended to protect in 1990.

Richard Norton-Taylor tried to explain the situation in a July 14 piece for the Guardian that raises more questions than it provides answers. Officials leave little to account for, and the confiscation targeted eight journalists specifically, on a measure that is unprecedented. It is presented almost like a last resort: “During the trial, the reporters had to leave their notebooks in court. At the end of the trial, eight reporters’ notebooks were taken (…) officials have not been able to explain it. While they say there was nothing sinister in it – the court provided for the crown to store them securely – they also say there was nowhere safe in court for this to be done, so the MI-5 has effectively impounded them.” Cobain provided a quote that is in complete defiance of the “nothing sinister” qualifier: “Only once before, in more than 30 years of journalism, has a state security officer impounded one of my notebooks”, said Cobain to Norton-Taylor. “And that was in Saddam Hussein’s Iraq.

Something should jump to any legal pair of eyes. Why did the Court provide for the Crown to “securely store” reporters’ notebooks in the first place?

Some would argue – Lord Laws, probably – that journalism protection is a privilege, not a right. Lord Goff argued that this right is self-evident, until the law sweeps in to take parts of it away in the name of national security. Both are wrong. Press freedom is a human right, and so is freedom of information. The national security exemption, as defined and strictly limited in the Johannesburg Principles – normative, not positive, the only concession to be made – does not extend to barring access to an ongoing trial entirely, and certainly not to confiscate, indefinitely, notes taken by reporters. Cobain made several unsuccessful appeals to have his notes returned. Lord Thomas heard the appeal made by collective news organizations, to which the aforementioned eight reporters belonged, and concluded that the decision raised “really difficult constitutional issues”. Lord Thomas, never one to fight on behalf of confidentiality – he did, after all, request the partial release of UKUSA in the Binyam Mohamed case – mentioned this disturbing intervention of the executive resulting in the breach of judicial independence. This should never be a norm. This should never be an acceptable or normalized state of affairs. The appeal, adjourned until October, may shed a light on the justifications made by the executive to go to that unbearable extent to silence the press, hinder journalistic work, and shield counter terrorism and terrorism suspects from public scrutiny and knowledge – and in the hands, entirely, of intelligence services.

Until then, indeed, and until Lord Thomas makes a not so difficult, but politically adverse decision regarding the independence status of the British judiciary in matters of terrorism and those who report on the security state -until then, there is little one can do to ensure that those notebooks won’t be tampered with. Until then, we can’t expect the freedom of the press to be fully exercised from inside the borders of England and Wales.