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.



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.

When I knew I had no place left to hide

Edward Snowden and Glenn Greenwald in Hong-Kong. Screencap from Laura Poitras’ movie CITIZENFOUR. (c) Variety

( this was originally written the day after the one-year anniversary of the Snowden revelations. Only published now, as Laura Poitras’ documentary CITIZENFOUR has premiered.)

The anniversary of the first story published thanks to the documents provided by Edward Snowden to Glenn Greenwald came and passed. It has been an intense and nerve-wracking twelve months for journalists, lawyers, activists of all kinds, let alone concerned citizens suddenly bombarded with complex and terrifying information that sometimes felt too overwhelming to process. The young man’s face has become ubiquitous; terms such as “Snowden effect” became commonplace; his revelations have profoundly modified the nature of political relations, within the United States and abroad. It has, most importantly, deeply impacted our own relationship, as citizens, to our governments.

It is a bit unusual for me to dwell on personal effects, but it would be oblivious to the crux of the issue of privacy to omit details of how it also impacts one’s relationships and means of socializing. Being under surveillance modifies a thought process; provokes self-censorship; alters body language; second-guesses previously organic decisions. It has been well-documented in the past, under regimes which mass surveillance aspirations were hardly concealed, but the dire consequences on the collective psyche lasted for generations. To me, reading No Place To Hide is contemplating an outside perspective of my own story of loading the Verizon revelation on an iPhone at JFK, to sitting at this desk with a laptop burdened with encryption software and a masked webcam. It forces a self-reflection I am still not sure I am comfortable with.

“You should rethink your relationships to US citizens.”


I flew from Paris to New York City with a layover in Philadelphia, as my first port of entry within the United States. It was a hot June day, and I lined at customs at PHL with my passport in my hand, and a bag containing my laptop, a few books on what I was working on at the time – ironically, in hindsight, one of which being a civil liberties and public interest law book – and walked toward the blue line signalling I was next in line to be processed before entry on US territory. A sign alerts visitors: CBPs are “the face of the United States”, and they promise courtesy, respect – a respect which includes your privacy, to the extent that the Department of Homeland Security would allow. As the CBPs call “next” in a booming voice over the ten or so booths present to welcome visitors during the height of tourist season, I walk over the blue line, present myself to the agent, hand over my passport and my customs form, and wait. I wait for the inevitable questions – “what are you here for?”, “how long are you staying?”, “what is your profession?” – and the ritualistic fingerprint recording, the photo-taking. All in all, it can take five to ten minutes. Sometimes, it gets longer. And sometimes, the process is stress-inducing.

I had no idea that, at the very time I was waiting for a CBP in PHL, Glenn Greenwald and Janine Gibson were awaiting a legal green-light on the publication of the Verizon story, one close to me in New York, the other on the other side of the world. I had spent eight hours on a plane without access to the internet or recently published newspapers; phone use is prohibited during customs processing.

The line of questioning was fast, repetitive, inquisitive, and prying. I was somewhat accustomed to this behavior, considering my profession and travel patterns. My frequent presence on US territory was also of great interest to CBPs. This time, it got a little deeper. “Who are your friends?”, the agent asked. “How did you meet them? How do you keep in touch? What’s your relation to them?” I started being weirded out. I was also tired, jetlagged, and smelled of plane. “What do you do? Where did you go to school? What did you study?” At this point, I was starting to get angsty, and pictured my lonely suitcase touring the carousel in an endless loop, with no one to retrieve it. I thought I was going to miss my connecting flight to New York. “Why are you coming to the US so often?” And again: “Who are your friends?

Edward Snowden

My friends are journalists, lawyers, writers, activists, musicians, bartenders. Most of them have a lot in common, including their political leanings, their vocal attitude towards local and international affairs, but what they all have in common is me. One hop away from me.

He waited, and stared at me. He then blurted out: “You should rethink your relationships to US citizens.”

He hovered the stamp over my passport, then finally let me in. I staggered towards the baggage pick-up, realising it had automatically been transferred to my connecting flight. I have no memory of crossing terminals to find the small jetplane that would carry me for 40 minutes or so into JFK. I remember the violent nausea as I took place on a blue plastic seat. A young girl next to me wearing a Columbia hoodie asked me if I was afraid of flying. “No, I’m fine”, I said, trying not to dry-heave, as the plane took off, and safely took me back to Brooklyn.


It was Jeremy Scahill who broke the news of the PRISM story, on the anniversary of D-Day, at a NYC screening of Dirty Wars. He came on the stage at the end, announcing: “by the time you leave the theater and turn your phones back on, they will burst with a new story that just came out, from Glenn Greenwald, about the intelligence activities of the United States.” A low whisper could be heard from the crowd. I sat all the way to the back, having taken notes on my phone for the duration of the entire movie. I left the room, and didn’t turn my phone immediately back on. I went upstairs, where Scahill was signing copies of his book. As I approached the table, after two pleasantries, I mention I had just been questioned at immigration. He didn’t look up. “It’s probably your travel pattern”, he assumed. Probably. Reasonable. High odds of factual assertion. I slowly walk out, and I hear him ask: “Who do you work for again?” Is it who I am, or is it what I do? I left the theater, and turned my phone back on.

Two days later, at a bar in Bushwick, I am sipping on a bloody mary and John Knefel is drinking a beer, slowly. We both stare right ahead. I don’t remember our exact conversation. I know that we were both making pretty big decisions regarding our professional lives, and realised that they were impacted, or at the very least influenced, by Edward Snowden. “I can’t believe he’s taking it upon himself”, I tell John, or maybe myself. “He’s a kid, and he uncovered an international mass surveillance program authorized by a secret court under counter-terrorism pretenses.” I order a second drink. John turns to look at me. “He’s not a kid, Sarah.” He pauses. “He’s your age.”

The anger really took hold of me when David Miranda, Greenwald’s husband, was detained in Heathrow. Many friends remember that day that I “lost it”; I was recently told that my “feed sounded way more outraged and angry than usual”. The second I found out about his detention at the terminal, while he was in transit from Berlin to Rio de Janeiro, I screamed that it was a violation of Article 10 – the article in the European Convention of Human Rights protecting freedom of opinion, expression, and information. Detained under Schedule 7, an abusive counter-terrorism provision allowing detention without representation and seizure without reasonable suspicion for a prolonged amount of time, Miranda was suspected to travel with files, with information on Snowden, but most importantly, to travel back to Greenwald, who until then could not be deterred from continuous reporting. I was fuming. I posted, “this time, it’s personal”. I was called the next day and told to come down. The NSA leaks were unauthorized intelligence disclosures that could be harmful to national security. I demanded proof of this considerable damage Snowden had allegedly done; a few weeks into the first stories, it seemed it had potential to impact international relations, and had already created tension at the European Union. But I had yet to see a thorough, rational and factual assessment of the “Snowden effect” on politics, domestic and international, from nations members of Five Eyes. As of today, there is still none available; a FOIA lawsuit filed by investigative reporter Jason Leopold returned files that were entirely redacted in their assessment. If the argument of the government is that Snowden made the house of cards crumble, and if we are supposed to buy this argument to alienate and eventually prosecute the young man, we are supposed to turn a blind eye to the complete absence of any substantiated claim. As of today, there is no assessment available of the damage Snowden has made.

Beyond James Clapper’s and Keith Alexander’s careers, of course.


Se mueve, and we all moved through the motions of doing our work, mourning our fallen friends in car crashes, publishing stories, researching, petitioning, asking. But there is a palpable change in the attitude of everyone around me; arrangements are carried out at the last minute; emails are automatically encrypted; phones are shut off and stored away from the conversation; webcams are no longer used; no one logs onto Skype anymore. It is making our lives much more difficult. It is making sleep much more difficult. Traveling, a necessity, becomes a hassle. Then arrives the natural effect of realising one is under surveillance: is it paranoia, or is it awareness? Had we known all along, and had we been oblivious? Greenwald explains it himself: after reporting on NSA surveillance for a number of years, there is a possibility one had become jaded or accustomed to certain methods becoming red-flags for the abuse of counter-terrorism protocols post 9/11. But the Snowden leaks, unprecedented in history, launched a new idea among the population, even the educated and prescient one: a threshold had been crossed, a limit had been met then violated. It was much more than we could handle and anticipate. “Collect it all”, Keith Alexander’s motto, meant indiscriminate collecting; it meant constant collecting; and it meant the total and unquestioned collaboration of internet companies that we had come to trust, perhaps a little too easily, but were a program minent feature in our daily lives, precisely endangering ourselves and everyone we know: our iPhone, our Facebook profiles, our Twitter accounts, our Google chats, our emails regardless of the platforms. The extent to which the NSA was capable of interfering into our daily lives – and not just the lives of those who had understood they had made targets out of themselves in a state of hypervigilance, lawyers, activists – was criminalizing those who were, in everyone’s eyes, protected persons: journalists. Moreover, everyone was now a potential target. Four hops away from a national security journalist, a foreign correspondent, or simply a foreign relation, and you would fall into the NSA dragnet.

Gen. Keith Alexander, wearing an EFF tshirt at DefCon 2012

Keith Alexander had showed up at Defcon in 2012 wearing an EFF tshirt, claiming to a room full of hackers and privacy activists that everything was fine. Nothing was fine. Anyone visiting a website that the US government had a potential issue with – say, WikiLeaks – was a target. Anyone wishing to expose wrongdoing of any sort and of any scale could face a disproportionate sentence and be detained in conditions widely denounced as non human rights compliant. Mass surveillance doesn’t elicit safety, it provokes fear. It demands retreat into lonely, muted corners. Its goal is not to protect, but to silence. Blowing the whistle on a busy city street – say, leaking information to an established newspaper or an entity which purpose is to preserve threatened documentation – means the brittle sound will be heard and echoed. There is a chance that the response and its justification will quiet the uproar, but at best, it’s a 50/50 shot. Isolating, criminalizing, deriding, discrediting, manipulating an individual who had expressed concern about certain activities, and making sure that any eloquent display of their political conscience could be easily passed off as freakish, mentally unstable, or simply ignorant is much easier. It allows the information to fall into the memory hole of the collective attention span, and leaves the individual vulnerable to all sorts of harassment that would eventually lead them to jail, or worse. The pain we are capable of inflicting on ourselves when we start doubting our own decision and sanity barely needs interference from intelligence forces. Fighting depression and paranoia is part of the world us lawyers and journalists have accepted as a collateral to the activity. It had now been extended to the entire population. Worldwide.

The importance of Greenwald’s book, besides the story already revealed in a gripping volume by Luke Harding, is his own thought process upon arrival in Hong Kong, keeping in mind the deceptive experiences of previous whistleblowers having taken on intelligence leaks: John Kiriakou, who denounced torture at the hands of the CIA, was in prison. Chelsea Manning, who had denounced war crimes at the hands of the US Army, was in prison and about to face a court martial. Both had exposed mass, widespread human rights and international criminal law violations. Both had acted in the public interest; both claimed humanist and existentialist (even if not so directly acknowledged) aspirations. Most importantly, both, like Daniel Ellsberg before them, articulated their actions were motivated not by a misplaced desire for fame or a willingness to destroy the United States; to the contrary, it was their commitment to the rule of law and specifically constitutional principles that had directed their actions. They were no strangers to courage, and definitely not ignorant. On that last point, it is precisely what made Ed Snowden so insufferable to his detractors: he was extremely articulate, well-read, politically sound, and had turned to a fearless journalist, a former civil rights litigator, who had made a career out of alienating anyone who had failed to abide by principles of virtue and justice. There could not be a pairing more of a thorn in the side of a culture of political deference than a Greenwald/Snowden summit. I, for one, was delighted.

“Do you get paranoid, sometimes?”


One thing all whistle-blowers, especially the ones in recent history, have in common is their loathing of political apathy. It’s the ignorance of basic and fundamental rights, the acquiescence to the violation of the law, but simply, the lack of reaction, the indifference. Again, incorrectly misplaced as a need to become famous as a anti-government radical, this is simply a balance between taking incredible risks in the face of a forceful state apparatus to protect rights no one seems to believe they deserve anymore. At a hearing on an Iraq case in December, I heard the president of the Court tell the lawyer representing the United Kingdom, “human rights law is not rhetorical”. Civil liberties aren’t either. They’re not for US citizens, and they sure aren’t either for the citizens of countries, especially friendly / allied countries, who woke up one day to realising they had been made pawns by the US government, that had vowed to help their own forces destroy terrorism and keep their houses and cars safe. It wasn’t so. In the hands of the NSA, emails, phone calls, data, conversations, appointments, travels, but also reflections, letters, documents, thoughts, feelings, debates, were considered a hypothetical threat. And if it wasn’t a threat in itself, it could be considered one pre-emptively, a concept very crucial to the conduct of the war on terror. Crushing under the weight of an unchecked executive power that Congress didn’t even know had slipped from its grasp, it felt like there was no way to stop the NSA, but to expose it in bright light. Edward Snowden said it himself: he had seen the dark corners of the intelligence world, and what it fears most is the light. What it fears most is our own enlightenment.

I admire Greenwald for his relentless fight to do Snowden justice. But this is a character trait he has always upheld, his entire career. Fighting terrorism became fighting counter terrorism; fighting terrorism became fighting surveillance; fighting terrorism became fighting apathy at home. If the Hong Kong episode reads like a cloak and dagger novel, it is nonetheless real, and one can’t afford to underestimate how taxing it can be – emotionally, physically, psychologically. I have personally been doing this long enough to know that I cyclically “crash” – disappear, sort of, every four years on average, to resurface six to eight weeks later, a little more regenerated. But we have no place to hide. We have no place to store what belongs to the intimate realm; we have no way to conceal the conversations we wish to keep private; and we can no longer trust a casual drink at a bar with a friend, who might be compromised without knowing – and place you at risk by simply being one hop away from you. It is impossible to maintain a constant operational security, like Snowden taught us to have. Mass surveillance is unavoidable, and is robbing us of what makes us individuals, what makes us capable of functioning as self-sufficient individuals. A friend once asked me, “do you get paranoid, sometimes?” I didn’t know what to say. I replied: “I don’t know, should I be?” There is no room left for us to think for ourselves. Any internet connection can be middlemanned. Any non-air gapped computer might be tampered with. Google searches might turn up on someone else’s desk. Deprived of all space to breathe and listen to the sound of your own heartbeat, you turn inwards. And you’re alone.

Screencap from The Life Of Others, a 2006 movie about life under Stasi surveillance in East Germany

That winter, I met The Guardian’s Spencer Ackerman for dinner in Chelsea. It was as casual as two people living and breathing their work could make it. I didn’t even pay attention to the cab ride taking me to our meeting place – driver not speaking english, taking incredible detours all the way up to 34th, refusing to be paid – I just wanted some relative peace and quiet and intelligent conversation. Later, as we waited for a train on a subway platform, I noticed the hair on his temples had gone grey. I teased him about it, gently, but firmly telling him he was way too young. I asked if wisdom had finally caught up with this unrepentant punk. He just looked at me. As the national security editor of the Guardian, coming to the paper from Wired right on the cusp of the first NSA story to be published, Ackerman had had the files in his hand. I sometimes forget what it feels like to be exposed to drastic and harrowing proof of grave misconduct. I had been working on MI-6/CIA torture and covert counter-terrorism operations for so long – over ten years -, never discussing the details with anyone, that I had internalized the material I was reading. Ackerman didn’t. His work, and his writing style, however, illustrated not only a disciplined, detail-oriented man, but also a severe frustration with the lack of reform following the NSA leaks. On the anniversary of the Verizon story, Ackerman recapped all the legislative occurrences, testimonies, debates on the Freedom Act bill, in a manner that displayed little had been done. If our individual and collective behavior had changed, if scales had indeed tipped perhaps, this had not reached the steps of Congress, let alone the White House, reluctant to relinquish the extreme powers granted to the executive by the powers of the NSA and its British counterpart, GCHQ. All over the world, has intelligence-sharing protocols were submitted to judicial review, whether in drone strikes or rendition, courts deferred to the executive, saying that “vital foreign interests” were at stake when it came to the NSA. France remained painfully quiet, and continued to consult with Chuck Hagel on counter-terrorism deployment in Africa; the UK government became more defiant and aggressive by the minute; Germany wrestled with its own history, caught between a Stasi revival and the willingness to become a potent foreign partner in international relations besides the EU. Globally, although it reached the UN and culminated in a resolution condemning mass surveillance, governments failed to sever their ties with the NSA and be left with only their own intelligence to gather and store, this time under more legislative scrutiny.


We have been living in a state of hyper-vigilance and of permanent derogation since 9/11. This is not new; the fearsome climate fostered by the IRA in the UK gave birth to abusive counter-terrorism laws that have nothing to envy the Patriot Act. Internment (indefinite detention), use of torture, discriminating targeting, surveillance, covert armed force – all of this is only now in the process of being reviewed, after much allegations took decades to turn into facts, myths into case files, and bodies to wash up on shores. The damage actually created by abusive counter-terrorism laws lasts generations, and permeates the public discourse in a way that a government can no longer be trusted. It would take a long process of reconciliation and truth-telling to regain political normalcy. Sadly, truth-telling means a free press, independent journalists, and no harassment of their lawyers. The only tools we have come to understand were ours to take was counter-surveillance: encryption. Instead of awaiting a hypothetical (as opposed to eventual) table-turning of an administration that is incapable of admitting wrongdoing, action has to be taken with maximum safety. This means the aforementioned covered webcam, regularly changed PGP keys, offline laptops, and the development of open-source software for anonymity. Luckily, Edward Snowden gathered around himself – or the image we have of him, projected from Moscow – a community of software developers and IT technicians willing to collaborate with somewhat technically challenged journalists, lawyers, writers, researchers, activists and academics. It is a burgeoning community that expands everyday. The safe path, the road most travelled, was to trust the government, to trust the FISA court, and to continue the normalcy of establishment reporting: asking for articles to be vetted, abandoning research told to be too close to the sun, listening in to fearmongering discourse about jihadists in Syria and all the plots that the NSA had defused thanks to its methods of intercepting cables in Pakistan.

But a man who trades his liberty for a safe and dreamless sleep, doesn’t deserve the both of them and neither shall he keep.

[Note: last June, I went with friend and lawyer Moira Meltzer-Cohen to an event at Carnegie Hall where Greenwald was speaking about the book. Said friend had been way more attuned to surveillance than I had been and emphasized how irresponsible it is of people in our field not to practice encryption. She is absolutely right. I would be flagged and interrogated two months later at Newark Liberty. Immense gratitude to Kevin M. Gallagher for his patience while encrypting my tech-challenged self.]

The Long (Dirty) War



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

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.

Career opportunities: intelligence services oversight

After much back-and-forth between the Parliament Home Affairs Committee and the Intelligence Services Commissioner, Sir Mark Waller, a little less than an hour was granted to explain whether the activities of British intelligence – MI-5, MI-6, SIS, but in this case, more specifically GCHQ – were appropriately kept in check. Little attention was given to the hearing; even less was awarded to the extremely tedious and tense context in which Sir Mark arrived at Westminster. This is not obscure and somewhat opaque British parliamentary procedure; it is relevant reflection of the difficulty to keep intelligence services, especially outsources to private companies such as GCHQ, under legislative review. On both sides of the pond, the extreme difficulty of bringing mass surveillance activities to review can only show the premises of a constitutional crisis. If Dianne Feinstein made an impassioned speech on the floor of the Senate calling for the CIA to stop spying on her, unleashing a circus of denial, double-speak, entitlement, and complete irresponsibility, the UK has managed to hit the brakes on the unfolding drama. But it wasn’t easy.

Keith Vaz, chairman of the Home Affairs Committee, MP for Leicester East (Labour)

Intelligence services oversight before Parliament: “inappropriate”

Before diving into the hearing itself, the incredible quotes it brought us, and the tenacity of the members of the Home Affairs Committee, let’s remember that initially, Sir Mark did not want to testify. He repeatedly turned down the polite invitation to come to Westminster and discuss his position – the Intelligence Services Commissioner (ISC) has an oversight mission, which is limited to ensuring GCHQ and MI-5 do not overreach the powers granted to them by Parliament, are not in breach of UK law, and act in proportion to a perceived or identified threat. The purpose of the hearing was to determine whether the ISC had detected any wrongdoing on the part of GCHQ, especially in the wake of the Snowden leaks. Sir Mark, at the end of February, sent a letter to Keith Vaz, the Chairman of the Committee, to explain he believed it was “inappropriate” for him to speak before Members of Parliament. Keith Vaz, who is starting to schedule a certain number of hearings on the issues arising from UK counter-terrorism laws, was unamused:

The Intelligence Services Commissioner plays a vital role in keeping under review the way in which the Home Secretary and the intelligence services use the powers which they have been granted by Parliament. This function was conferred on the  Commissioner by Act of Parliament, and Sir Mark must be accountable to Parliament for the way in which he carries it out.

Indeed, he must. In a healthy democracy, where the separation of powers is well enshrined and never contested, powers granted by Parliament to an executive power should be under the scrutiny of said Parliament. There is no escaping the decision made by Keith Vaz today, who several times made it clear that the political climate and legal implications of GCHQ ran amok called for extraordinary measures. A couple of weeks before the clash between the ISC and Parliament, Ed Milliband, leader of the Labour party, had called for the complete overhaul of intelligence services in the UK, referring to GCHQ as an “unaccountable” power:

I already believe, and this is what my Labour colleagues have been saying, that there are clearly changes that are going to need to be made in relation to the intelligence and security committee and the oversight it provides (…) The issue of oversight of the intelligence services and the way they work is definitely part of this agenda. My commitment is that we do need to look at these issues, they are important.

But a mere week later, Sir Mark sent the following to Vaz:

I am afraid I remain of the view that it would not be appropriate for me to do so. As my office informed you previously my function is limited to oversight of the intelligence services which is within the remit of the Intelligence and Security Committee (ISC) who as was explained have broadened their inquiry into privacy and security to consider the “appropriate balance between our individual right to privacy and our collective right to security”. In any oral evidence before your committee I could not go further than anything which is in my open report. The position is quite different before the ISC who are able to receive a wide range of sensitive material. The fair and appropriate place for questions to be put to me is before that committee.

The reasons Sir Mark outlines as a motive not to testify before the Home Affairs Committee are the exact same ones his presence was actually kindly, and in accordance with protocol, offered.

As a result, Vaz summoned Sir Mark. This is an unprecedented event in the history of this parliament. Vaz said the Committee was “disappointed” with Sir Mark, but believed his presence was more than necessary. Turns out, summoning the Intelligence Services Commissioner was also directly proportionate to the perceived threat that GCHQ poses to British civil liberties.

Sir Mark Waller, ISC, yesterday at the hearing. a former Lord Justice of Appeals, he retired from the bench in 2010.

The hearing

Set on Tuesday afternoon, March 18, the hearing was set in three parts: the testimony by Sir Mark, that of Nick Pickles and Rt Hon David Davis MP, from Big Brother Watch; and Brokenshire, the Minister for Immigration. When Sir Mark sat down, he appeared defensive, obviously there against his own free will. Vaz, respectful but extremely acute in his commentary, let every member express themselves on the issues that were dear to them. A broad political spectrum was represented; yet the concern was universal. Aware of the extent of what Snowden revealed, and the constant stream of newspaper coverage on his infamous files, how can the UK pretend there is such a thing as effective and efficient oversight? And if so, how could it be demonstrated?

The difficulty resided in not making this hearing an indictment of Sir Mark, whose testimony revealed but one thing – that the system is not adapted to the powers granted to intelligence; that he does not benefit from the necessary resources; and that he might, in effect, be complacent as to the activities of GCHQ. Sir Mark brought figures – in 2013, he was handed about 1,600 warrants to review. His job description, he stressed, was not to green light or obstruct: he is reviewing the necessity and proportionality of the action taken. Out of those 1,600 warrants on his desk, only 200 went effectively through his hands and were subjected to actual oversight. Basic math: that’s approximatively 6%. Vaz, firing questions rapidly, calling Sir Mark on any possible inconsistency, was not to be toyed with: several times, the ISC said the criticism thrown at him was “unfair”. In his view, the intrusion of privacy – as far as he could review – had been justified. Things took a rapid turn to the surreal.

Sir Mark: I went down to GCHQ, I went there…

Vaz: How many times did you go?

Sir Mark: Six times in three years.

Vaz: And that’s enough, twice a year?

Sir Mark: Twice a year, yes.

Vaz: And who did you see, at GCHQ?

Sir Mark: I saw, erm, I saw, he – I saw the number two of GCHQ.

Vaz: And what did you say?

Sir Mark: We had a conversation, and…

Vaz: And you were satisified?

Sir Mark: I was satisfied, yes.

Vaz: Is that how you satisfy yourself, by having a discussion with GCHQ? That was enough? You sat around a table, had a chat, and there was no circumventing UK law?

The issue of holding GCHQ accountable was brought forward on two points: one, whether there was an actual mechanism that made GCHQ’s “cases” – their justification for privacy breaches – themselves submitted to scrutiny, or whether the arguments brought forward by the agency could be relied upon to be truthful and trustworthy. Second, the relationship Sir Mark himself entertained with the heads and officials at the intelligence services, a question brought forward by Blackwood, who expressed at concern at the cordial, maybe even friendly tone he seemed to have with his colleagues at Whitehall. Maybe some distance would be necessary to properly appreciate the work of intelligence services and whether their work is, in its entirety, brought to review, in a manner that is compelling and independent.

Blackwood: How would you describe the relationship you have with the services you oversee?

Sir Mark: I know them quite well, I do.

Blackwood: Would you say you have sufficient authority?

Sir Mark: Well, yes, I do.

Blackwood: With the number you gave us, the little number of cases you actually oversee, compared to the wide range of services?

Sir Mark: You know, they have to take into consideration the fact that, for every case they submit, there is the possibility of a judge looking at it.

Which, for the number of cases that Sir Mark is effectively looking at, hardly constitutes a deterrent.

GCHQ headquarters in Cheltenham, England, where you can apparently go and have a chat (if you’re Sir Mark).

The question of oversight is not a simple judicial one. It boils down to the very concept of trust, that must exist in-between state actors, but also, as members of parliament, must reside between the Committee and the executive, so members of the public feel reassured that there is a working system of checks and balances that ensures them protection of the law is always present. Winnick, as for himself, could not hide his disdain and contempt for GCHQ; he was rocked by the Snowden leaks, as many members of Parliament were, and believes the culture of secrecy well extends to members of government – and that, for every case that is officially submitted to Sir Mark, many may not even be sent for review at all. Ellis himself was more direct:

Ellis: Do you look at specifically selected warrants, or do you receive a random number?

Sir Mark: You can look at them specifically if you want.

Ellis: How do you know you are looking at all the cases open by GCHQ?

Sir Mark: Ah, this is a question I get all the time.

Ellis: So what’s the answer?

Sir Mark: Listen… It is a big… Everyone knows what everyone else is doing at GCHQ… And if… if it could happen, it would be a huge conspiracy.

A conspiracy, by definition, is something that is hidden, that remains in the shadow, that has to be purely speculative due to partial or complete lack of information. Thanks to the Snowden  leaks, explained Winnick, we know those are no longer a conspiracy, but actual facts. Winnick, a senior member of the Committee, said he took the information released by the Guardian “very seriously”: “There was no investigation. There was no probe. You took their word. I took the Snowden report very seriously – there should be an investigation.” Ellis insisted at length on the respect he had for Sir Mark and his position; for the utmost necessity of an oversight commissioner for intelligence services; for the complexity of his task when he seems to be charged with the impossible. But the problem is, Snowden opened a door into the massive double tanker that is the intelligence services in the UK, and now the information will not stop coming out, one way or another. He raised more concerns: “We keep hearing reports of mass shredding at the Metropolitan Police, of documents disappearing, and we want to make sure you are not by-passed.” At this point in the hearing, it was hard for Sir Mark not to feel like the responsibility for GCHQ abuses rested on his shoulders, for overlooking the immensity of the futuristic plot of the NSA/GCHQ domestic and foreign intelligence capabilities. It seemed that, as he enunciated that the ominous Section 94 of the Telecommunications Act was not under his purview, that he simultaneously admitted his powers of oversight were in essence and in effect of extremely and dangerously limited scope.

Flynn then spoke up.

Flynn: We have been misinformed. We have been lied to – in Iraq, in  Afghanistan, and on the CIA rendition program. There is a record of this misinformation. You seem to be satisfied – but I, as a Member of Parliament, I have been lied to; mistakes, or complete lies. I think you have been complacent.

Sir Mark: It’s unfair.

Flynn: But who is supposed to inform us then? Who can we believe?

For all his faults in domestic policies, Ed Milliband however hit the nail on intelligence oversight – a system of accountability is the only way to restore a democratic balance in government, between powers granted by the executive in application of its power, and by the legislative in representation of the population’s need for security, safety and law enforcement. Any abuses must be held under strict scrutiny by the other two branches – legislative and judicial – so not only would the abuses be prosecuted, but the laws themselves could be modified or restricted in light of dysfunction. That the very clause making data surveillance possible is taken  away from the oversight of the ISC is, in itself, an abuse of power, a legal – but not lawful – means to ensure that the executive power is not entirely kept in check, and that some agencies will be left to keep running and functioning even if the government changes, modifies, or is somewhat suspended.  Flynn’s last question may seem a little naive, perhaps a little childish. But the concept of trust between those entrusted with representing the interests of the population and those with the power of protecting them is the only safeguard in a system that survives on friction and tension. Without oversight, and without the possibility for a Committee such as this one to access, hear, and question a man in the position of Sir Mark, the legislative and judicial branch are merely decorative in the fight against terrorism.

David Anderson QC, the Independent Reviewer of Terrorism Legislation in the UK, has followed the Sir Mark / Keith Vaz relation closely, and his commentary can only be taken in so the testimony brought forward by Sir Mark revealed the gripping, indeed, necessity to overhaul the ISC, its prerogatives, its powers, and most importantly, its staff. The ISC is created  by RIPA 2000, which Shadow Home Secretary Yvette Cooper denounced as being insufficient and not up to date on the recent and evolving challenges brought by digital privacy. RIPA was, in fact, written in 2000, at the same time of the very first introduction of the anti-terrorism act (ATCSA, also revised in 2001) and current oversight come from the Intelligence Services Act (ISA), dating back to… 1994.

Edward Snowden, NSA whistleblower, “in Putin’s Russia” according to Ellis.

Big Brother Watch, present in the second part of the hearing, reiterated the necessity to update, upgrade and adapt current oversight legislation to the actual capacities of GCHQ – capable of bulk data collection, metadata storage, extensive methods of developing and installing malware – that otherwise escape this obsolete system. It took several minutes and an extremely tense back-and-forth between Nick Prickles and Ellis to establish that the Snowden leaks were in the public interest; that they refused to see it any other way, and that they were, in fact, looking at provisions of the Human Rights Act to defend their position to fight against privacy intrusion (this provoked a little sneer from Ellis, which is unsurprising). If Rt Hon Davis MP seemed content of a recent meeting with Sen Feinstein, whose oversight powers he found “very robust”, both men were quick, concise, yet powerful by stating that none of the activities of GCHQ were in fact linked to deterring acts of terrorism or halting any ongoing plot. The justification for mass surveillance does not stand the test of oversight, they believe, and the UK would do well to transfer the debate on intelligence services into the more public sphere. And this conversation – to refer to Sir Mark and GCHQ, if there is to be a conversation around a table – between Big Brother Watch and the Committee revealed more than both sides probably expected.

Rt Hon Davis MP: Feinstein made the greatest speech in the Senate last week, denouncing CIA bullies. She provides robust oversight.

Winnick: She only went after the CIA once she found out she was a victim of the CIA. This is not “robust”.

Is there value into comparing the US platform on debating NSA and CIA activities into the UK? The US, much like the UK, was forced into this debate. It was thrown upon both countries upon revelations from a third party that, as Ellis said, “stole documents from his employers and fled to Putin’s Russia” (the reference to Russia being Putin’s and being Russia carried on for a certain amount of time, deflected by Prickles who evidently showed tiredness at having to assert this was way beyond the point).  There is no disputing the damaging status of the Snowden disclosures. But damaging to whom, exactly? To an image of brilliance and rule of law that was shining across the globe? To a self-created idea of unchecked but unaccountable power in a system purporting to be democratic? Prickles re-affirmed: the leaks were in the public interest. The knowledge they gave was invaluable.  Rt Hon Davis MP ended his part of the hearing:

Rt Hon David Davis MP: British people tend to be more trusting of their establishment. But this is changing. And that’s because of what we were told.

This is a statement released by Sir Mark in the month following the Snowden leaks, expressing his communications with GCHQ and his satisfaction they were acting appropriately.

In remission: Miranda v Home Secretary

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

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

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

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

UK High Court of Justice

Powers granted under Schedule 7, surveillance and improper purpose

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

David Miranda was detained for 9 hours.

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

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

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

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

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

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

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

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

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

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

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

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

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

Glenn Greenwald and David Miranda, after his detention at Heathrow

Disproportionality of a Schedule 7 inspection

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

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

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

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

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

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

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

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

a terrorist Washington Metro bus

Article 10 compliance

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

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

I have no words.

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

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

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

(2) Action falls within this subsection if it-

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

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

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

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

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

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

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

preventing the disclosure of information received in confidence

Greenwald with two terrorist dogs

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

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

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

seriously, get ready.

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

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

Still Article 10 compliant, Lord Justice Laws?

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

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

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

Rented world

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

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

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

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

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

Safe European Home: the Glenn Greenwald divide

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

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


Glenn Greenwald addressing the European Parliament Civil Liberties Committee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sarah: True. Elaborate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Edward Snowden and US WikiLeaks journalist Sarah Harrison in Moscow

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

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

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

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

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

Sarah: haha, no, I totally agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Josh: Essentially.

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

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

Aaron Swartz

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

Josh: The Swartzian approach.

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

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

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

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

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

Josh: Ha. Well…

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

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

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

Josh / @cromulentjosh     Sarah / @K_isanasshole


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