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.

I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

Article 51 and the convenient use of the self-defence argument

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British Reaper drone

 

Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:

More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.

On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”

On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government.[1] According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.

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In October, Russia released dramatic drone footage of battles in Damascus amid a propaganda drive.

The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):

On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.

The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.

In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:

Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.

Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:

If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.

Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.

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It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.

But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.

[1] The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »

The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

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.

Can we define terror, or should we let terrorism define us?

In May 2013, the renowned International Institute for Counter Terrorism, the ICT, held a global workshop of legal scholars, experts, analysts, in order to work toward an international definition of terrorism. Without exception, all panelists worked against the effort led by Dr. Boaz Ganor. In his closing remarks, he lamented the frustrating and sterile experience. “We will never reach the level of counter terrorism efficiency and cooperation that is needed (…) without agreeing on the basic issue. What are we fighting? What is the common denominator? (…)  The first issue is that it is a subjective term, and you can not use subjective tools to a subjective term.”

Dr. Ganor later outlines the fundamental issue: that any global cooperation in counter-terrorism is based around sanctions, blacklisting, arrests, detention, prosecution, extradition, and use of force around a concept no one has grasped, but perhaps most dangerously, has refused to grasp. Any international or transnational response to counter-terrorism is based on a loose definition, that is the lowest common denominator of all current legal translations of terrorism in domestic criminal systems. It is therefore unreliable and extensive to the point of creating crimes of terrorism where there are none, because of the Venn diagrams it forces upon an international or transnational arrest warrant, extradition treaty, or intelligence cooperation. Terrorism has become meaningless as a term, say political analysts, because if everything is terrorism, nothing is terrorism. It is a complete fallacy. It is not that everything is terrorism. It’s that everything is made to be terrorism.

In opposition to the exactitude that is required of criminal law, we have resorted to vague concepts denounced by human rights activists around the world. Terrorism creates and implements a system of criminal and state response that is beyond regular counter-criminal systems: it demands extensive human rights and civil rights derogations, sometimes suspensions; it automatically implements resolutions on wider and less restrictive intelligence and military intelligence sharing protocols; it extends and inflates the presence of law enforcement and special counter-terrorism units. The state response to terrorism being a constant state of emergency – called hyper-vigilance-, its use can only be restricted and restrictive. The trend, however, has been to extend it until everyone is under constant threat, at any given time. This is not threat assessment. This is threat permanence.

This essay is not aimed at defining terrorism; we are far from a consensus in what constitutes terrorism in our day and age, as the definitions are as fluctuant as the crimes themselves, and the battles around how a suspect is treated has just as much to do with pre-emptive action as it is immediate reactionary legislature. If terrorism is terror, it is so effective it has paralyzed any political movement in the face of its action; has the power to immediately shut down civil society debate; takes over the media by storm in a way that reinforces what it expresses, and silences what it in fact reflects. If each era had its own society-defining crime – from war to organised crime to arms trade – terrorism is the most modern criminal creation to date, and we have a part to play in its success.

fear

 

Terrorism: the diktat of political ideology

Terrorism and self-determination

Terrorism is commonly understood as being political violence. But not all political violence instils fear in society and state authority. The target of the terrorist attack is just as much a red herring in whether the attack can be called terrorism as much as those referring to it as such. The now-cliché saying of “every man’s terrorist is another man’s freedom fighter” is a sad idiom that has effectively been at the heart of many legal debates: is there a legal framework of considering political violence legitimate? It appears so: insurgency or rebellion against a colonial or tyrannical force, in order to promote the self-determination of peoples, is understood as legitimate violence. It targets an authority that can not be endorsed by principles of international human rights law and has been used to oppress. But because terrorism often targets civilians or civilian buildings, properties, or assets, it loses its legitimacy. Hardly has the history of the IRA in Northern Ireland been so embattled with the question of legitimacy as, perhaps, the case of Hamas in the occupied Palestinian territories. If violence is to be understood as a last resort by a desperate group unable to reach towards political or judicial organs to achieve their goals, insurgency it is, but not terrorism.

A 2004 UN document titled “A More Secure World: A Shared Responsibility” addresses, in part, the threat of terrorism. Without defining what terrorism is, it defines what its consequences are: end of the rule of law, attacks on civilians. It also mentions that counter-terrorism as applied between 2001 and 2004 was already in violation of human rights law, specifically its fundamental part, the right to life. The UN panel in charge of suggesting how to secure said world talked about addressing the causes of terrorism. And in that, arose the concept of political violence in self-determination: occupation. Para. 148:

A thread that runs through all such concerns is the imperative to develop a global strategy of fighting terrorism that addresses root causes and strengthens responsible Stats and the rule of law and fundamental human rights. What is required is a comprehensive strategy that incorporates but is broader than coercive measures. The United Nations, with the Secretary-General taking a leading role, should promote such a comprehensive strategy, which includes:

Dissuasion, working to reverse the causes or facilitators of terrorism, including through promoting social and political rights, the rule of law and democratic reform; working to end occupations and address major political grievances; combating organized crime; reducing poverty and unemployment; and stopping State collapse.

Much has been written about the historically convenient and politically fluid concept of a national security threat. Recent FOIAs filed by MIT researcher Ryan Shapiro on the FBI’s assessment of Nelson Mandela and the ANC‘s role in defeating the apartheid government of South Africa have reminded the collective consciousness that Mandela,this beloved figure whose funeral was attended by the leaders of the free world, was once deemed a terrorist by those very governments, the ANC being removed from the State Department’s terrorist organisation list only in 2008. That Mandela later became a head of state in his own right, reaching the high office after a democratically held election changed the US vision – to the point of the FBI suspecting Mandela would then, in turn, be a victim of terrorism. Would anyone today consider Mandela’s fight less than honourable? Would anyone condemn sternly the actions of the ANC before his rise to power as a people oppressed under state authority based on race? Because the very concept of self-determination implies and involves a rejection of the authority in place, to the point of removing it by force if necessary to install a form of governance that pleases the population, acts of terrorism are often perceived as political violence against the state apparatus itself, the civilian casualties being collateral to the point being made that the authority itself isn’t legitimate. The necessity invoked by the state to protect itself from terrorism is in turn invoked by the fighters to express their will for freedom. The labeling of terrorism, therefore, is a political accusation of the state against which it is aimed: this authority isn’t legitimate and is oppressive. Considering Mandela a terrorist, at the time, meant supporting the apartheid regime of South Africa against an insurgency hell-bent on destroying the status quo.

Do you want… John Brennan to define terrorism? (Reuters)

 

Maintenance of the international standstill

Yet, despite this acknowledgement that crimes of occupation, crimes of aggression, and state corruption are causes of political violence, international bodies of law, by treaty or doctrine, never define terrorism. An interesting passage is the preface to the 1998 International Covenant on Terrorist Bombings recalling the UN General Assembly resolution 49/60 of 9 December 1994 on Measures to Eliminate Terrorism; Article I (3),

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.

As the first UN Special Rapporteur on human rights while countering terrorism, Martin Scheinin, explained in a 2006 report, this intentional vagueness on the part of international bodies not to define terrorism leaves it up to the states themselves to provide a definition according to what is the threat they perceive to their own apparatus. Inevitably, however, this leads a state-sponsored definition of terrorism not in regards to the fear it provokes in the population the state is supposed to protect, but within the authority itself, therefore opening the door to the legitimization of tyrannical regimes labeling their opposition “terrorism”, as opposed to the right to self-determination under oppression.

Calls by the international community to combat terrorism, without defining the term, can be understood as leaving it to individual States to define what is meant by the term. This carries the potential for unintended human rights abuses and even the deliberate misuse of the term. Besides situations where some States resort to the deliberate misuse of the term, the Special Rapporteur is also concerned about the more frequent adoption in domestic anti-terrorism legislation of terminology that is not properly confined to the countering of terrorism. Furthermore, there is a risk that the international community’s use of the notion of “terrorism”, without defining the term, results in the unintentional international legitimization of conduct undertaken by oppressive regimes, through delivering the message that the international community wants strong action against “terrorism” however defined.

The rest of the report addresses the key issue: we know what terrorism is not. We are not sure exactly what it is. Proscription of terrorism conduct refers to the act itself, and led to a partially satisfying treaty – the 1998 Covenant on Terrorist Bombings. This is only part of what terrorism can represent to a nation or a region. But if we do not know what it is, it is difficult to legally justify that terrorism is set apart from the rest of criminal offences within domestic law.

Why terrorism is saved a special place in criminal justice is often justified by the risk it poses: it is an existential threat to the nation as a whole, its stability, and the freedoms it guarantees. After 9/11, the United Kingdom derogated from its obligations under Article 5 ECHR – protection against abusive detention – as a response to “a public emergency threatening the life of the nation”. No other member of the Council of Europe deemed it necessary. However, the decision was respected, both by political allies and by the ECtHR itself. But the conflation of a political threat and the existence of protection against it is legitimate and legal. The state can’t be surprised by an act of terrorism, and therefore should act pre-emptively. David Anderson QC, the Independent Terrorism Legislation Reviewer, wrote in 2013:

… It cannot be suggested that the general run of anti-terrorism laws is justified only in the case of a public emergency or the threat to the nation’s life. A permanent emergency would be a contradiction in terms; permanent anti-terrorism law, as we have seen since 2000, is not.

Later, referring to the named specifics of modern terrorism – international networks, suicide attacks, mass civilian casualties – Anderson concludes:

To take an understanding of terrorism that is derived from history or social science, and allow it to serve as a justification for any number of specific legal powers, is a dangerous course. However serious or unique the problem of “terrorism”, it does not follow merely from its seriousness or uniqueness that special powers are necessary to combat it. If special powers are to be justified, it must be by reference to the particular demands of policing and prosecuting terrorism.

But the permanent emergency to which Anderson refers to is very much present. The constant of anti-terrorism legislation in itself is not representative of the political discourse around which it is centered. The permanent threat is highlighted with the constant, painful, reminder of violence and victimhood past, as well as everything done since in order to prevent it from happening again. Being efficient in the fight against terrorism has become more of a litmus test in leadership than, say, social upheaval or economic stability.

Do you want… Theresa May to define terrorism? (Getty)

 

Global counter-terrorism efforts and the lowest common denominator: salus rei publicae suprema lex?

The only way nations brought together not in the name of a common interest – initially – but of a common enemy work alongside one another around a concept they refuse to communally define can only be done once they reach common ground. The definition of terrorism as applied to international or transnational protocols can not possibly accommodate every intrinsic mechanism of domestic law, especially human rights safeguards. To that effect, collaborating in counter-terrorism means working around the lowest common denominator of what constitutes terrorism. In doing so, the effects of making anything a threat – pre-emptively, hypothetically, and retroactively – contaminates the hyper-vigilance of one given state to all of its allies. This is what happened when the United States sought global counter terrorism partnerships with EU states bound to the Convention on Human Rights and their own domestic applications, hereby making the counter terrorism partnership at odds with a culture of preserving habeas rights even in cases of serious crimes. The UK, having already experienced the dangers of overreaching counter-terrorism legislation with the Prevention of Terrorism Acts (PTAs) in the 1970s made efforts, in 2000, to create a framework specific to terrorism; but as of today, compliance with the Convention is now purely theoretical. In fact, it has become a topic of high contention in the UK as to whether human rights law could still be applied in an “adequate” fight against terrorism.

To explain how EU member states, and specifically the UK, have aligned their own counter-terrorism policies to that of the US’, even after being at the center of a human rights debate in the application of their former legislation, one needs to take a look at transatlantic cooperation and how it drastically evolved between 2001 and 2008. A 2011  research paper authored by Annegret Bendiek for the Stiftung Wissenschaft und Politik German Institute frames it:

To make matters worse, all past attempts to work out a universal definition of terrorism within the framework of the United Nations have failed. The United States still claims the right t act unilaterally and to use the military means in cases in which the UN refuses to support it. The United States justified its military actions in Pakistan and Yemen by pointing to its right to self defense and id not even try to get formal authorization from the Security Council. In sum, US counter terrorism policy will be characterized by an instrumental use of multilateral structures also under President Obama. The essential difference between the United States and the EU remains that the US combats terrorism by military means, whereas the EU and its member states concentrate on policing and intelligence measures.

If the UN repeatedly asked for cooperation among states in the fight against terrorism, this has led to various international and transnational abuses, due to the necessity to stoop down to the lowest common denominator in the fight against terrorism. In international law enforcement, the blacklisting and surveillance of terrorist suspects – through Interpol’s Orange notices, the Schengen’s Article 99 system and so forth – has to abide by a definition of a criminal conduct all states can adhere to. Although the United States, as stated above, will not shy from using lethal force, the transatlantic cooperation in counter-terrorism has made the strengths of both “visions” of counter-terrorism – militarisation and intelligence – mutually beneficial for US counter terrorism partners. It strengthened existing intelligence sharing agreements, it reinforced military cooperation on already existing bases, and helped disseminate massive defense spending in the name of the war on terror.

It is a testament to the power of terrorism that contradictory perceptions of the threat as seen by the US and by the EU have found a way to reconcile within international security cooperation. The historical experience of the EU – specifically France and the UK – differs from the US, relatively “new” to its status of victim of political violence. If US national security demands are violent in their response and unwavering in their commitment to wage war, the EU sees it as a long-haul, cooperative and interdisciplinary method to combat the threat, from deradicalisation to international deployment of intelligence operations. After 9/11, it becomes obvious in the European Security Strategy that the EU saw it fit to align with the US, specifically the UK, upping the ante in terms of legislation, force, and, namely, surveillance. Because of EU safeguards in terms of data protection, judicial review and the supranational power of the Convention on Human Rights, the pooling intelligence information with the US presented many civil rights and human rights challenges. In so, US-EU counter terrorism agreements are intergovernmental rather than at European level. Wyn Rees, studying the effects of transatlantic counter-terrorism cooperation in 2006, explains:

Bilateralism, rather than multilateralism, has been the watchword for post-war intelligence sharing. Information can be shared with one country, but not with another, thereby rendering difficult to build up broader patterns of dissemination. The US has recognized the value of sharing information, but it has done so through close bilateral relationships with allies. Certain EU countries have established a privileged intelligence relationship, namely the UK, France, and Germany, and this has given them a vested interest in ensuring that the relationship continues (…) The challenge for the transatlantic relationship has been to find a framework in which intelligence can be shared multilaterally. There are enormous advantages for both sides if they can obtain information from single, central sources rather than engage in cross-cutting bilateral contacts. This need not mean that all information be shared with all parties(…) Trust is something that takes a long time to foster, and the transatlantic allies have wrestled with the problem that there is no obvious framework in which to share information.

Following the Snowden documents, which welcome release have inevitably strained the bilateral and multilateral relationships cultivated by the US under the pretense that the necessity to counter terrorism could still be compliant with the legal framework of the countries in which it operated, data sharing and intelligence sharing agreements are put back into question, and observed through a transparency prism that had seemingly never been requested of counter-terrorism partnerships before. These are, namely, the actions of Europol and the European Arrest Warrant; the collection of flight passenger data under the EU-US PNR agreement, and the extensive retention of names and information under US counter terrorism protocols; and negotiations around the EU-US TFTP agreement, a tracking system implemented in order to identify and block any financing of terrorism activities. Those, however, are negotiated at EU level, under EU safeguards. It is necessary for EU member states to individually denounce the human rights violations of their own bilateral agreements, which is unlikely to happen under this new new war against ISIS. Not defining terrorism allows for terrorism-specific arrangements and agreements to remain in place for as long as a threat is identified – a threat, not the threat.

Do you want… Tony Abbott to define terrorism? (TheAustralian)

One system that has inflated rather than deflated even in the aftermath of the Snowden revelations was the system of terror blacklisting, already decried by Bendiek in 2011 for not being transparent enough so blacklisted individual can seek redress. In a world where terrorism isn’t defined, supporting terrorism, associating with terrorists, or promulgating terrorist material can mean anything – and many of the systems in place to block supporters of terrorism fail the most basic human rights standards. In fact, the UNSC Res 2178 against foreign fighters, passed hastily in September under unanimous consent, demands of UN member states to not only cooperate further in terms of intelligence-sharing, but to also stop the flow of foreign fighters to the twin conflicts of Iraq and Syria, and ensure that their financial resources are dried up. It would be impossible to track unless, of course, the blacklisting system incrementally upgraded and increased to meet this unprecedented threat. Bendiek, in 2011, concludes that the EU is well ahead of the US in developing judicial safeguards against blacklisting following the Kadi I decision. It might be correct on paper: there is no blacklisting case brought against the Council of Europe that the executive body has won. However, the issue of transparency remains for the blacklisted individuals, still unable to bring their case before a court unless they are notified that they have been placed under surveillance, blacklisting, or a no-fly list. All instances of invalidation of a blacklisting, except one, have been made on grounds that there was no information available to the appellant or the Court to motivate and justify the blacklisting – the information remains classified in the name of national security. The one exception, the Nada case, displayed a fundamental flaw in the multilateral blacklisting system: Nada, blacklisted by the UN, was found exonerated in Switzerland (!) as the 1267 UN blacklist was found in breach of the ECHR/ ICCPR.

The more cases of blacklisting, even blacklisting under UN Security Council resolutions, come before courts, the more it appears it is unconstitutional and unlawful under international law, despite being extended by the same international body that promulgated these laws in the first place. The case of A, K, M, Q and G v HM Treasury, before the UK Supreme Court in 2010, found that the necessity to blacklist an individual under the provision of the 1267 UN blacklist was in violation of the individual’s fundamental rights. A document provided by the ECCHR authored by Gavin Sullivan and Ben Hayes details the specific situation of Muhamad al-Ghabra (G):

He was first informed by the UK Treasury that his funds were to be frozen and a few days later told that the reason why was that he had been included on the 1267 list, which UK authorities were bound to implement. What he was not told at that time was that it was the UK authorities themselves that had nominated him for inclusion on the 1267 list. Thus, instead of freezing G’s assets directly under national law (by making a decision which would have been liable to judicial review), the UK government froze G’s assets indirectly, using the mechanism of the UN Sanctions Committee (through a procedure outside the scope of judicial review). G’s experience highlights the ways that the Security Council has been transparently and strategically used as “a venue through wish to wash national executive decisions which would otherwise be subject to judicial control of their vulnerability to court supervision of the interests of the individual.”

And if the UNSC can be used as a tool to further the counter-terrorism purposes of a given state, multilateral agreements outside the scope of judicial review through classification can be just as well, if not worse.

If terrorism is commonly understood as being political violence, it isn’t simply political violence. Terrorism, or the climate of terror it provokes or creates, is the social paralysis. It’s the political impossibility to act within a frame of normalcy. It’s hysteria. The political violence in itself becomes as destructive as the threat of violence. A nation or a region living under the threat of terrorism is holding its breath permanently. When terrorism is not defined, it allows the fear to permeate every organ of society. Unless the devil is placed back in the box, it will be impossible to return to normalcy: the state is in fight or flight mode. Counter-terrorism partnerships install this climate and work toward destroying it, on paper. Instead, because those intelligence sharing protocols inflate the powers of the state to the point of little to no judicial or legislative review, they become extremely beneficial to state organs that would otherwise be restricted in their scope of action. The state of hyper-vigilance caused by terrorism becomes, in itself, self-perpetuating, and turns the state into a body that has allowed itself to work the concept of necessity to the extent it can, if needed be according to self-imposed rules, impose terror in return.

Terrorism as state violence

Journalist Glenn Greenwald, on MSNBC’s The Last Word from October 29, 2014:

… the problem that Israel and the US have is that it is impossible to get a definition that excludes their own behavior, while including those they want to include. So, there never has been a definition. It really is a fearmongering term. If you want to call it ‘killing of civilians to change policy’, we have to apply it to ourselves as well.

It would be irresponsible to only attempt to define terrorism as a challenge to state authority and sovereignty while forgoing the fact that other nation-states apply it to their perceived and defined “enemies” as well. Terrorism as state violence has very much been an unmissable, and hopefully unforgettable feature of the War on Terror: all means necessary to achieve something as unruly and vague as the terms defined in the Authorization of the Use of Military Force: defeat the militant enemy. In fact, the War on Terror could very much be the epitome of terrorism as state violence. From extending attacks to undeclared battlefields to pre-emptive strikes, to the killing of citizens abroad and the thick coat of secrecy surrounding every operation, the War on Terror is the image of terror itself.

On October 29, 2013, relatives of drone strikes victims from Waziristan, the border region between Pakistan and Afghanistan, the location of the most intensive displays of the drone warfare, testified before Congress. Their words, which brought their translator to tears, were only heard by five members of Congress. If the relevance of their testimony did not hit legislature then – or was too embarrassing to attend – it caught the eye of the international community, increasingly alarmed by the lack of regulation with which drone strikes are conducted. Operated by the CIA, the attacks in Waziristan operate completely outside the realm of review, and were qualified recently by the Pakistani Interior Minister as a violation of their sovereignty. This testimony reflects how drone warfare makes ordinary civilians feel, how it affects their daily life, and how it profoundly modifies their behavior, to the point of making them afraid of their environment, so much that what was once friendly and familiar becomes strange and lethal. This is how terrorism affects the society it is perpetrated in, and is applied in this instance to the US-led war on terror:

As I helped my grandmother in the field, I could see and hear the drone hovering overhead, but I didn’t worry” he said. “Why would I worry? Neither my grandmother nor I were militants. (…) When the drone fired the first time, the whole ground shook and black smoke rose up. The air smelled poisonous. We ran, but several minutes later the drone fired again. People from the village came to our aid and took us to hospital. We spent the night in great agony in at the hospital and the next morning I was operated on. That is how we spent Eid. (…) Now I prefer cloudy days when the drones don’t fly. When the sky brightens and becomes blue, the drones return and so does the fear.

The efficiency of drone warfare has been recently put into question. If anything, the lack of legitimacy and the backdoor legality has helped radicalise a demographic that would otherwise not become so – the word here being use purposefully – militant. Projects on accountability are rare, but make incredible strides, especially given the secretive nature of the CIA side of the war on terror, and the difficulty of collecting data on the ground, so unreliable is the environment and the sources. Naming The Dead, a project hosted by The Investigative Bureau of Journalism, has identified that only 4% of the drone strikes victims in Pakistan can be factually identified as members of Al-Qaeda, the terrorist organisation blacklisted by two successive UN Security Council Resolutions – the motive behind the war on terror, the ubiquitous enemy combatant, the enemy which must be defeated to restore peace and freedom in the western world. The remaining 96% can be militants from other organisations; soldiers from unidentified factions; but in the absence of an actual identification of a given individual or group as hostile, per international humanitarian law: they are civilians.

Do you want… James Clapper to (unwittingly) define terrorism?

In Yemen, a country ruled by tribal elders and rife with corruption, the incursion of the US drones created not only a climate of fear, but established political instability as a permanence. The millions of dollars lavished upon Yemeni leaders as “counter terrorism aid” is funneled elsewhere. There are a lot of winners of the war on terror in Yemen, but most certainly not regular people, least of them children, living their lives in the mountainous regions. In Yemen, anyone who isn’t aggressively demonstrating its allegiance to the United States is a potential threat. Journalist Gregory Johnsen, specialist of the Arabian Peninsula, researched the circumstances of a December 12, 2013 drone strike that hit the members of a wedding party. The scene he paints is startling and horrifying.

Clustered around them in a sweaty, jostling circle, dozens of men bumped up against one another as they struggled for position and a peek at the remains. Above the crowd, swaying out over the row of bodies as he hung onto what appeared to be the back of a truck with one hand, a leathery old Yemeni screamed into the crowd. “This is a massacre,” he shouted, his arm slicing through the air. “They were a wedding party.” Dressed in a gray jacket and a dusty beige robe with prayer beads draped over his dagger, the man was shaking with fury as his voice faltered under the strain. “An American drone killed them,” he croaked with another wild gesture from his one free hand. “Look at them.”

It’s no contest that Yemen plays a double game. It supposedly agrees to the roaring sound of drones hovering in its skies, but has to calm and quiet the angry voices of the local leaders and families seeing their loved ones being turned into charred human remains.  On June 14, 2013, President Obama released a message to Congress consistent with the War Powers Resolution addressing the situation of operations in Yemen under “Military Operations Against al-Qa’ida, the Taliban, and Associated Forces and in Support of Related U.S. Counterterrorism Objectives” in such concise terms it could hardly reflect the situation on the ground:

The U.S. military has also been working closely with the Yemeni government to dismantle operationally and ultimately eliminate the terrorist threat posed by al-Qa’ida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qa’ida today. Our joint efforts have resulted in direct action against a limited number of AQAP operatives and senior leaders in Yemen who posed a terrorist threat to the United States and our interests.

That is all. Johnsen, however, sees more in the conflict in Yemen. Specifically, he sees the manipulation of unrecorded civilian casualties and the financial corruption that, in fine, benefit AQAP more than anything else. In the end, in a war waged against an enemy without an army, without borders, and without identifiable messages, easily replaced leaders and transnational networks of financing, who isn’t a potential enemy anymore? Johnsen asks:

For much of the past century, the United States has gone to war with lawyers, men and women who follow the fighting, adjudicating claims of civilian casualties and dispensing cash for errors. They write reports and interview survivors. But what happens when there are no boots on the ground? When the lawyers are thousands of miles away and dependent on aerial footage that is as ambiguous as it is inconclusive? How do you determine innocence or guilt from a pre-strike video? When everyone has beards and guns, like they do in rural Yemen, can you tell the good guys from the bad? Is it even possible? And when the U.S. gets it wrong, when it kills the wrong man: What happens then? Who is accountable when a drone does the killing?

 

Terrorism: the manipulation of the manipulative

Working towards an international definition of terrorism, what appears most appalling to the researching eye is not the lack of willpower or strength of intent of legal workers and experts calling for a definition of it, but rather the strength of a refusal to create, in a legally binding treaty, a definition all would adhere to without the possibility of tweaking it according to current events and political necessity. All crimes evolve; all technology evolves; and if laws can become obsolete as time changes and borders move, so can a definition of terrorism beyond the pyramidal, insurgency-like structure the United Kingdom has known since the first Irish rebellion. It’s not the structure, ever so changing, that has to be defined. From lone wolf terrorism to internationally funded tree-like power organisations, it’s not only the action, but the intent behind the action that differentiates an action belonging to criminal justice and one fitting the terrorism definition. It’s the willingness not just to create pain and suffering among a specifically targeted group, it’s to bring all turning wheels to a screeching halt: the political system, in order to create chaos and instability; the social order, paralysed by fear of the randomness of the attack; and the judicial system, derogating power and oversight to the executive in an emergency.

In that, terrorism is manipulative. But one can only manipulate what it knows so well. That the concept of ‘homegrown terrorism’ seems so foreign and incomprehensible to political elites is truly baffling. Terrorism’s randomness itself is calculated. It will strike whenever is least expected and will touch on what is likely to provoke an overhyped emotional reaction. It is not just seeking blood and warfare, it is seeking fear. It looks toward what a population is cherishing the most, either because its future is dependent on it, or because its symbolism is too strong to ever thought vulnerable. Terrorism is the criminal achievement of a long internal study of the target of the crime. Because no society can survive, let alone thrive, by being impenetrable from the outside, terrorism needs to be understood as an eventuality. It must be taken into account when addressing criminality. A society, a government, a power structure must be prepared to face the threat. But this threat can never override any daily mechanism of the social and political structure. Yet this is what 9/11 derailed. From the fear of London over three decades of uncertainty in pubs, train stations, and any innocent trash can, came a world order of fear, a domination of a perceived necessity of addressing something that does not exist.

Thus was born the modern security state, not out of an avowed thirst for control, but of an insecurity so blatant and so overpowering it has permeated even the most supposedly critical and adversarial of its structure, the media. The fortress that has become the West in the wake of a terrorism threat it knew of but couldn’t exactly fight is transparent in how it lets its own fear control it, to the point that surrendering to the notion of a permanent failure to guarantee the safety of its population gives rise to a use of force beyond limits, beyond borders, beyond carefully crafted rule of international law that was based on political normalcy, not hysteria.

And so began the permanent war.

The Long (Dirty) War

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When counter-terrorism is fought as a proxy war, the scope of application of international law falls second to political legitimacy. The accountability of ground forces is debated in memorandums of understanding supposed to grant belligerent parties immunity. Counter-terrorism powers are extended domestically, diminishing the power of judicial authority and shrinking any attempt at a legislative check on the executive. Secrecy becomes a blanket under which no one can emerge nor breathe. If today’s speech at the General Assembly, coupled with John Kerry’s comment and the authorisation of strikes against ISIS are to be believed, we are continuing a war we can barely remember when it started.

The war against the unseen

The issue of defining one’s enemy in conflict – war, terrorism, insurgency – as “uncivilised” and “only understanding force” the way Obama did with ISIS at the General Assembly implies that jus ad bello not only will not be observed, but should not be observed. As the rule of law was intended to preserve order between nations – most of them empires – that understood each other’s objectives and used diplomacy as a tool of realpolitik, the current, modern wars are more repression than expansion; preemption rather than reaction; and displays of lethal use of force as a supposed deterrent. All of these concepts can be easily debunked by military strategists and political analysts. The problem being the application of international law as a two-tier system: the upper level demands UN sanctioned actions, briefings, arbitration and support; it concerns high stake multinational talks – the Iran deal, the Ukraine conflict – and fails to gain popular support, a people weary of the constant tension of the Cold War and the belief that it is now possible to avoid violence. Diplomacy in lieu of war is seen as a grown up, mature, respectful decision. In many respects, it is. But it only highlights the lack of concern for the lower level, which is othering insurgency, rejecting the cause of terrorism, and abolishing fundamental rights of occupied peoples. Those being addressed in the terms used by Obama will never benefit from the protection of a UN resolution, or perhaps an ex post facto one after it is universally acknowledged disaster is imminent (UNSC res. 1483); they will never face a “courteous enemy” using conventional weapons and registered troops; the territorial and chronological frontiers of this war won’t ever be set in legal stone. Those are wars of annihilation and of utmost control. Those are wars existing outside of the boundaries we set for ourselves over a hundred years ago, because the enemy is not us. The Geneva Convention can’t possibly have been written to fight barbaric terrorists, animals, sociopathic “death cults” roaming villages with M-16s stolen from western powers once arming the local forces. What the law creates is an order to preserve authority and save the political face; counter insurgency and counter terrorism are by political nature dirty. Those dirty wars, as they came to be known in South America in the 1970s, served as the basis to make current and potential insurgents understand their place: below the firepower and arrogant self-righteousness of western states contentedly engaging in state terror, but hiding it under the ubiquitous and semantic concept of existential threat. Semantic – because it’s substantially empty.

Armed Reaper drone belonging to the Royal Air Force being prepped at a RAF airbase in Afghanistan. (c) 2013 dronewars.net

The idea that the lawful conduct of war belongs to the civilized nation-state dates back to the Oxford Manual, a 1880 text following the very first Geneva Convention of 1864. The Preamble of the Oxford Manual presents war as an inevitability, a necessity, something that is impossible to avoid, therefore should be codified and regulated to minimize an idea of what’s needless blood spillage, and waste of human life and potential. Many critics have since derided the concept of a Just War. The Oxford Manual is not about peace; it is about setting limits and binding states to clear boundaries that would be otherwise penalised. If there is such a thing as civilised war, it is a legal concept; it is definitely not a political one, a difference with which Obama has become well acquainted. Per the Preamble,

War holds a great place in history, and it is not to be supposed that men will soon give it up — in spite of the protests which it arouses and the horror which it inspires — because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. But the gradual improvement in customs should be reflected in the method of conducting war. It is worthy of civilized nations to seek, as has been well said (Baron Jomini), “to restrain the destructive force of war, while recognizing its inexorable necessities”.(…) In fact so long as the demands of opinion remain indeterminate, belligerents are exposed to painful uncertainty and to endless accusations. A positive set of rules, on the contrary, if they are judicious, serves the interests of belligerents and is far from hindering them, since by preventing the unchaining of passion and savage instincts — which battle always awakens, as much as it awakens courage and manly virtues, — it strengthens the discipline which is the strength of armies; it also ennobles their patriotic mission in the eyes of the soldiers by keeping them within the limits of respect due to the rights of humanity.

A two-tier system doesn’t mean the conflict is necessarily disproportionate in terms of the violence inflicted by belligerent parties. But quotes such as this one – “America will be a respectful and constructive partner. We will neither tolerate terrorist safe-havens, nor act as an occupying power” indicates the creation of a blurred, dangerous zone of mingled politics in which the US will claim not to interfere with self-determination, while deciding – with various degrees of forced input – how said determination should be achieved. It isn’t defined per se by ancient standards of warfare. It isn’t marked by clear boundaries written in treaties. It has become acceptable that, not only counter terrorism belonged to the law of armed conflict – a concept convenient for the imperialist nature of foreign intervention – but that said armed conflict was to be governed outside of said laws, possibly justified legally ex post facto and often retroactively. In fact, counter terrorism belongs to the realm of domestic law and answers to the same jus gentium that has always existed. Unless, of course, the authorization for the use of military force has given way to a frustrated, exasperated and exhausted Special Rapporteur who, in March of this year, rhetorically asked the U.S. if international law had to be amended or perhaps rewritten to remove possible obstacle to whatever the U.S. believed should and could be done outside of their realm to answer a potential, hypothetical and hardly eventual “threat” to the nation.

So far, nothing. It is convenient and comfortable to act in a realm that is presented as new, and keep journalists, lawyers and commentators of all corners guessing. The more questions are raised and the less answers given, transatlantic executive powers are gaining in strength and unilateral authority. The leeway granted by their own approved lawyers is outstanding, but not unprecedented. It is shocking, mostly due to factors that should never be implemented simultaneously: the lack of transparency and the shortness of collective memory.

Inter armas silent leges

The first has proved to be the most impressive tool of war. Secrecy is as useful to an administration at war with an undefined and unlimited enemy as are Humvees and sol-air missiles. It has permeated every governmental agency; it has even kept the legislative at bay by relegating its members to a bottom-tiered personnel that shouldn’t be burdened with the nauseous details of military tribulations. It has created a domestic conflict between the executive and its fourth estate, to the extent of turning the latter into an enemy itself, subjected to the same punishment as those foreign threats. The state of hyper vigilance has become the state itself. It is inflated, overgrown, unkempt yet fearfully respected. To maintain appearances, the character of a “reluctant warrior” has been created to fit the era: authority and power no longer lie in the ability of going to war as it once did, but in the possibility that one might do so if they unilaterally decided it could. Ultimately, the result is the same: what is considered strong and worthy of respect can only translate into use of force. The old mechanisms of blood and iron that characterized the imperialist nature of Europe throughout the post-enlightenment centuries has once again covered the west in a blanket of fearful speeches and conservation of pseudo-democracy. Secrecy is only there to stop inquisitive eyes from realising little has changed since the Cold War. Secrecy is there so the horrors inflicted in the name of safety are never weighed against it, in case the people would decide their safety isn’t worth that much pain. Secrecy keeps everything at bay: human rights, democratic principle, popular consultation, and political normalcy, which is, the daily running of government in peacetime. Secrecy favors a permanent state of war. Because we hardly get to see those in theater deployment, we can only trust those in power and hope for the best. We can only speculate and go to bed hoping the elite is right.

In an article commenting Obama’s speech on September 10th authorizing air strikes against ISIS, Spencer Ackerman wrote:

In the space of a single primetime address on Wednesday night, Barack Obama dealt a crippling blow to a creaking, 40-year old effort to restore legislative primacy to American warmaking – a far easier adversary to vanquish than the Islamic State. Obama’s legal arguments for unilaterally expanding a war expected to last years have shocked even his supporters.

Ahead of Wednesday’s speech the White House signaled that Obama already “has the authority he needs to take action” against Isis without congressional approval. Obama said he would welcome congressional support but framed it as optional, save for the authorisations and the $500m he wants to use the US military to train Syrian rebels. Bipartisan congressional leaders who met with Obama at the White House on Tuesday expressed no outrage. (…)

Taken together with the congressional leadership’s shrug, Obama has stripped the veneer off a contemporary fact of American national security: presidents make war on their own, and congresses acquiesce. (…)

John Yoo, architect of the AUMF 2001, pagan servant to the god of Perpetual War

What’s considered questionable now, and still yet by what amounts to a fringe of commentators, has however been taken place for quite a while. It was fashionable, in the early stages of the Obama counter-terrorism strategy, to conflate legitimacy with legality, and consider lawful what was necessary – politically. It had become a fixture of American legal commentary to justify overinflated use of executive power for the simple reason that in times of war, the President ought to have the authority to do what it takes to protect the realm – a concept that is easily politically understood, but just as easily judicially curbed for all history tried to teach mankind since the dawn of empires. Because counter-terrorism powers are by nature an exaggerated version of normalcy, they are meant to be limited both in scope (subjected to judicial and legislative review) and in time (there is no such thing as a permanent derogation). Arguing counter-terrorism under law of armed conflict belongs to another more detailed and more focused article; but in short, in extends war time powers – limited only in time by military strategy – to what should and ought to be confined for the preservation of the rule of law and democratic principle. Because a terror threat is elusive and can take place at any time, this is arguing in favor of human rights law derogation as a permanence. The only possible review we could hope for are the limitations of international humanitarian law, often finding themselves violated before it even reaches our eyes and ears.

Same Preamble to the Oxford Manual quoted above continues in the same vein; arguing that the universality of what would become customary international humanitarian law must be agreed upon so all are bound by the same rules. By creating coalitions outside of international organisations created specifically for that purpose, or seeking the help of local governments far from acquiescing to any sort of human rights order but motivated by gaining the spoils of war, the idea of proxy intervention for a threat neither imminent nor existential removes the guarantees of jus ad bello, in which the peoples suffering from the strikes and those suffering from having to support those strikes would be somewhat protected. There is no telling when and where the strikes would begin nor end; we will be told what the executive will tell, and rely on those with security clearance to provide information, provided they do want to do so.

But in order to attain this end it is not sufficient for sovereigns to promulgate new laws. It is essential, too, that they make these laws known among all people, so that when a war is declared, the men called upon to take up arms to defend the causes of the belligerent States, may be thoroughly impregnated with the special rights and duties attached to the execution of such a command.

When it comes to making the rules “known among all people”, the issue of secrecy becomes paramount to ensure relative support for the use of force. Chelsea Manning, the whistleblower enduring a 35-year prison sentence after years in solitary confinement for having revealed information relative to the Iraq and Afghanistan war that the government deemed not appropriate for the general public, raised her hand in the days before the strikes to doubt the presidential strategy.

I believe that Isis is fueled precisely by the operational and tactical successes of European and American military force that would be – and have been – used to defeat them. I believe that Isis strategically feeds off the mistakes and vulnerabilities of the very democratic western states they decry. The Islamic State’s center of gravity is, in many ways, the United States, the United Kingdom and those aligned with them in the region. When it comes to regional insurgency with global implications, Isis leaders are canny strategists. It’s clear to me that they have a solid and complete understanding of the strengths and, more importantly, the weaknesses of the west. They know how we tick in America and Europe – and they know what pushes us toward intervention and overreach. This understanding is particularly clear considering the Islamic State’s astonishing success in recruiting numbers of Americans, Britons, Belgians, Danes and other Europeans in their call to arms.

Terrorism is meant to scare. It is meant to paralyse, to halt, to stall the course of daily political, social and legal activities. It is intentionally disruptive. By rooting itself into a refusal of the so-called “values” – a very much subjective concept that is more moral than ethical and doomed to fail in times of political instability – of a given state or alliance of states, terrorist groups succeed in recruiting those marginalised by those states. Ethnic minorities, targeted political groups, disenfranchised social categories are all susceptible to join the ranks of the disruption by violence. Most importantly, terrorism never happens in a vacuum. It is a reaction to a state of affairs. By provoking the West in an appalling, repellant, barbaric and bloodthirsty way – the beheadings of James Foley and Steven Sotloff are stomach-churning – ISIS is calling onto the West to face a monster it is worried it has created. And it might as well have: intelligence agencies from both sides of the Atlantic are trying to assess how many of their own nationals are currently fighting along side the pseudo caliphate in Iraq and in Syria. Hysteria has now corrupted the West to the point that presumptions of guilt are being discussed, confiscation of passports are frequent, and fruitless police raids are conducted under the pretense it is keeping us safe.

President Barack Obama, accepting his Nobel Peace Prize in 2009.

Yet we become a failed state. We become a state that is so at war within itself and within those dissenting with the policy, the value, the belief, the ingrained doctrine, the political spectrum that we fight fire with fire, and we wage war in a way that is unlikely to end, because the violence is fed through this action. Calling on the illegality of the strikes on Syria is a step forward to restore accountability, but it might be too late. The framework for evading Congressional support or constitutionality of action has been set in motion a while ago, and we have internalised the terror, from both ISIS and the state; the fear, from both ISIS and the state; the violence, the surveillance, the torture, the raids, the political fire drills, the defense budgets and the ever so frequent NATO meetings. Gregory Johnsen tracked down the precedence for this politics of use of force as a default setting, an emotional knee-jerk reaction against something we can barely name and have no information on.

This is about prevention and preemption, exactly the sort of thing that candidate Obama said presidents were not authorized to do without congressional approval. But Congress seems to have little desire to vote on military action ahead of midterm elections in November, and, after last year’s confused approach to military strikes in Syria, Obama seems to have just as little interest in asking permission. Instead, whether out of expediency or outlook, he appears to have altered his views on constitutional power, and in doing so found himself relying on the same theories he once criticized. (…) In an apparent attempt to elide some of these inconsistencies in constitutional interpretation, the White House is also considering what amounts to a backdoor authorization that, according to the New York Times, would have Congress appropriate money for Obama’s military plans. A sort of gentleman’s agreement that gets around direct congressional authorization, the plan would allow for deniability on both sides. Obama could claim he has congressional authorization without ever asking for a vote, while Congress could signal its support without individual members being forced to take a stand. President Bill Clinton retroactively used a similar maneuver in 1999 for airstrikes in Kosovo.

Militarism was never the sole component of imperialism. It involved egotism on the part of the power-hungry elites; it demanded silence and acquiescence from the press and authors; it requested the life of sons and the submission of daughters. Terrorism is not a new threat. It was never born with 9/11 and will not end once ISIS is over and done with. The counter-terrorism laws devised by the United Kingdom to keep the Irish insurgency under its boot has expanded to the point it can hardly be stopped. The framework is that military action shouldn’t be authorized without legislative approval and without knowledge of an imminent threat. In the last decade, intelligence has been manufactured, and constitutions have been bypassed. At the time this is being written, the UK Parliament is about to be recalled to discuss their own involvement in Syria. Looking at a globe right now is staring at a million red flashes of emerging and ongoing conflicts. This is the real security threat that is menacing global safety: the blatant insecurity of a power that doesn’t know how to restrict itself. If politics are a discipline of control, counter-terrorism is an exercise in restraint and strategy. Granting extensive counter-terrorism powers and planting it on the throne of war is unleashing a force that will take years to be restrained again.