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

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

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

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

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

fear

 

Terrorism: the diktat of political ideology

Terrorism and self-determination

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

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

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

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

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

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

 

Maintenance of the international standstill

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terrorism as state violence

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Terrorism: the manipulation of the manipulative

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

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

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

And so began the permanent war.

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.”

Denial

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.

Anger

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.

Bargaining

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?”

Depression

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.

Acceptance

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.]

Cold War Kids: surveillance in Germany

Article 17 of the ICCPR, ratified by the United States in 1992. It emitted no reservations on this specific part of the Covenant.

A lesson in the abuse of information technology: when Edward Snowden started revealing the extent of NSA’s spying into not only US citizens private conversations, but also those of foreign individuals, government and entities, outrage fell over the world the way dominos fall all over each other, in a cascade, a cacophony of screams and gasps that were only as loud as the ignominy of the revelations themselves. Not everyone was equal in the face of seemingly impotent rage: Brazil was more vocal than a suspiciously quiet Sweden, and France tried hard to balance a diplomatic act that Germany – and more precisely, its press – thoroughly ignored. It’s become impossible to bypass the German rage, to simply take Angela Merkel’s reaction – or lack thereof – to face value. While the UK has remained more or less silent on GCHQ’s collusion, and Spain is trying to mend the broken pieces of its own intelligence shortcomings, Germany is boiling, culminating this week into an all-encompassing call to provide Edward Snowden with the political asylum he was once denied.

There are many reasons why Germany is seeing red, and one of them lies within our own lifetimes. If you are in the early thirties, you remember a time when Europe was divided by an iron curtain put in place by a paranoid and vindictive soviet empire. This paranoia was in part justified and in part an integral component to the regime it created in the DDR. It was 24 years ago, and for two whole generations, the system of surveillance implemented against Germans, both East and West, was intrusive, invasive, violating, violent, isolating, and extremely pervasive in its everyday implications: no one was immune, no trust could be built as part of the social contract, and everyone was preemptively considered a criminal. It permeated German society until nowhere and no one was safe. It created an unstable and flailing national psychology that the fall of the Wall could only begin to stabilize. And a short generation later, Germany wakes up, betrayed again, once again shackled to the whimsy of another nation’s interest, another pawn in the foreign relations chessboard on which national sovereignty is only to be invoked in the name of the war on terror. Once again, Germany loses its grasp on itself.

“the persistance of ignorance”, painting on remaining parts of the Wall, Ostbahnhof, Berlin, 2013

Surveillance is a double edged sword: as articulated by pro-intelligence pundits, it is a necessary evil in the battle against plots, schemes and plans to attack, disrupt, maim and kill. It is a little, sometimes insignificant price to pay to maintain safety – or more accurately, the illusion of safety. In the wet eyes of Gen Keith Alexander laid the crocodile tear of allegedly thwarted attacks against the state, of the “thousand of lives saved” by indiscriminate data collection, and of course, as always and forever, 9/11, the spectre haunting us all and justifying every single means to every possible end.

In a 1961 press conference, Charles de Gaulle addresses the shortcomings of the Soviet Empire during the Berlin Crisis. His words are strangely resonating today as we are witnessing the very same failures and mistakes being repeated by the other empire, the one that supposedly survived, yet carried on horrific methods of population control in order to achieve external security.

… there is something so arbitrary and so artificial that one is led to attribute it either to the premeditated unleashing of frantic ambitions, or to the desire of drawing attention away from great difficulties; this second hypothesis seems all the more plausible to me since, despite the coercions, isolation and acts of force in which the Communist system encloses the countries which are under its yoke… actually its gasps, its shortages, its internal failures, and above that its character of inhuman oppression, are felt more and more by the elite and the masses, whom it is more and more difficult to deceive and to subjugate.

But it is that historical narrative that touches on a sore spot for Germany. A spokeswoman on the preservation of Stasi archives spoke to the Washington Post and said, “But it is precisely because of the Stasi’s hunger for information and its abuse of East Germany’s citizens that we are today so sensitive about modern day surveillance. It is not just about a wiretapped phone — it is a reminder of the fragility of free societies.” Our free societies now bear the scarlet letter of internal failures and oppression – and we must resist being deceived and subjected to its whim.Surveillance is not a random, once-occurring, warranted happenstance. It is a long term operation that should always be justified by clearly defined notions of national security and always subjected to judicial approval. That the NSA scandal appeared to be of extraordinary circumstances – circumventing the rule of law, possibly going even beyond powers granted to the executive was only one part of the outrage it sparked. It’s the widespread and systematic nature of it, the assumption of pre emptive guilt, the notion that each and every single individual might all of sudden, one morning, become a threat to national security, internal or external, and their intimacy, professional relations and personal beliefs be subject to scrutiny are of a pervasive nature that creates a society in which paranoia seeps from every pore. Under the terrifying rule of the Stasi, Germany lived not just in fear of the state, but in fear of each other. In a society which welcomes collaboration with the state, that provides incentives for the media to sit still and write narrative-abiding copy, dissent and debate are not welcome, rejected, to the point of creating a parallel universe in which everything is staged, faked, creating an illusion of liberty that no one buys, instead knowing their safety could be turned around on them any minute should they say the wrong word, see the wrong movie or read the wrong book.NSA surveillance is the resurgence of a disturbing ghosts of tyrannical regimes past. It is a leftover we thought we had gotten rid of when the Cold War came to an end, when the tension of living in a perpetual conflict eased a little. It was just a generation ago, and Germany is still picking up the broken pieces. It it still reconciling, mending, gluing, sticking to a model it took a year to create after the 1989 uprising. Issues of distrust, hard-shell individualism and denunciation are internalized to be sustainable, and they never leave the psyches of people who have suffered through tapped phones, overheard conversations, and opened correspondence. If the NSA merely “just” cast an incredibly wide net of data collection, their insistence on considering Germany a power source of potential or substantive enemies, those methods that may be brand new and updated in their technology but archaic and obsolete in their methodology are reminiscent of the Zersetzung, this practice of systematic surveillance and psychological warfare enabled by the East Germany secret police, the Staatssicherheit – the state security. Even the name is similar. For four decades, up to its official dissolution in October 1990, when Germany was reunited as one single state entity, the Stasi instilled, created, and installed fear in the minds of the citizens living under its all-encompassing eye.

Painting of people storming the Wall, Ostbahnhof, Berlin

The concept of Zersetzung and its array of surveillance method has been widely documented once police forces gained access to the Stasi files. In complete collaboration with the KGB, Darius Rejali explains, “during the Cold War, the KGB had approximatively 420,000 employees, but its grip ‘relied heavily on an extensive network of collaborators, who spied on colleagues and neighbors’. The Stasi employed more than 175,000 informers and 1 in every 97 citizen was an informer.” In 1990, a special committee was created to handle the Stasi files, called the  Office of the Federal Commissioner Preserving the Records of the Ministry for State Security of the GDR, specifically set up to not only go through the files, but allow the newly created German state to prosecute former Stasi members. The extent of the spying and of its victims was so extensive that a debate raged on whether or not those files should be made public. The question of public interest was raised, as it often is, against a question of national security: would this lead to vigilante justice against former Stasi members? Would it favor a further distrust among reunited families and circle of friends? Would the good being performed through the release of surveillance files outweigh the negative – and endless, through national imagination – consequences of knowing it all from those who sought to know it all?
Public interest won. Over 2 million German and European citizens, between 1991 and 2011, gained access to their own files. It gave them the opportunity to gaze into a past surely not forgotten and assimilate the knowledge that their intimacy was shared with the state, that their security laid in the hands of hundreds of thousands of informants, that they could be considered enemies at any point and snatched from their homes at any moment. Procedures of disinformation and disappearances were also common, and it wasn’t until very recently that the Stasi files were still revealing all their secrets. Today is the anniversary of the fall of the Berlin Wall, and the ghost of the Stasi lays heavy over Germany, as methods of invasion, psychological reeducation, misinformation, and miseducation are now rampant among those victims of the NSA spying. Because of the nature of intelligence, this space of friction between the state interest and public interest could still be raised. In Germany, however, it is of a different nature: the new state born out of the reunification in 1990 is walking on the desolate path littered with the burning ashes of a past too distant to be constantly recalled, but not far enough to be properly and objectively addressed. The NSA has done nothing short of what the Stasi had intended to do with its own Hauptverwaltung Aufklärung, its international operations meant to extend the powers of the soviet empire beyond the limits of the Iron Curtain and covertly assist military operations abroad. The Stasi was feared because it was invisible; anyone and everyone could be an informant; and operations were easily denied and dismantled, so the victim was left with a feeling of devastating powerlessness and the Orwellian image of psychic isolation that can only led to craziness and/or fury. We see nothing different today as every revelation brought forward by Edward Snowden adds one crumbling block after another in the distraught puzzle that is NSA covert operations.

Still from the 2006 movie “The Life Of Others”, about surveillance in East Germany.

The former Stasi headquarters now host a museum. It compiles its methods of surveillance, arrest, and detention, in a system that has since then become emblematic of what constitutes a police state. It also became a memorial to those who have lost their life, identity, or internal compass due to a system that meant to reform expression and opinion, to “redirect” and “reeducate” dissenters, that controlled media, that disappeared whistleblowers, and that killed those who tried to leave. The Stasi’s work, which took its members from the newly rebuilt streets of the city of Dresden to the mountains of South Yemen, has now been part of the collective unconscious as the immodest extreme of communism, of the torture inflicted to citizens that were merely prisoners, and of the “shield and sword” of a Bloc that was meant to crumble under the wave of democracy and individual freedoms that the West was supposed to guarantee. January 15, 1990 – when the Stasi headquarters were raided by East Germans – should stay transfixed into our collective memory as to the dangers of granting too much power and little (if any) accountability to intelligence agencies, themselves having an inherent tendency to function in a closed circuit, away from the political discourse in Congress and the voxpops of popular media. The NSA is not a sword, but it is meant to be a shield, and it is hardly ever questioned the way it should be questioned. Senator Feinstein is fumbling to articulate a policy that would be sound to a constituency legitimately worried as to the future of their privacy and their likelihood to remain free; James Clapper and Gen Keith Alexander are floating the flags of counter terrorism in order to hide and disguise the gross violations of civil rights made in the name of a security we can never achieve; and if France and Spain are struggling to find where they fit in the mass diplomatic puzzle, Germany has, by itself, in 1990, decided that mass surveillance was a tool of torture and control that did not belong to a democratic regime.
The Berlin Wall fell 24 years ago today. German citizens took their own freedom back from the state that protected its interests as opposed to those of its citizens. German citizens now seek independence from United States intelligence, shall they become, again, so soon, mere pawns on the national security chessboard. This is not security. This is abuse.
NSA files must be released, and it is in the public interest to access them.

Career opportunities: journalism as terrorism- the case of Ali Anouzla

Ali Anouzla, journalist, writer and editor at lakome.com

The war on journalism has gone beyond the frontiers of the United States and its always faithful foot soldier, the United Kingdom. A worldwide trend to consider journalism a form of terrorism and in less specific, loaded terms, a form of assault against governance and state power in general has swept across the world, leaving in its wake the feeble flickers of civil and political rights. Human Rights Watch recently published a report on the status of journalism in Yemen, calling it a “life-threatening career”. It’s not just Yemen, or Brazil, or the United States. It is everywhere. The latest assault on freedom of information emerged in Morocco, where independent journalist Ali Anouzla was recently arrested on terrorism charges. His crime? To have published an article criticizing the regime.

Reuters claimed that Anouzla was known, domestically and abroad, for being a pro-active opponent to the regime of Mohamed VI, current king of Morocco, and uncovering stories related to dysfunction of the palace. His readership is, according to fellow journalist Samia Errazouki, loyal and strong in an “unprecedented fashion”. Journalist and editor of his own website, Lakome.com, Anouzla recently published an article regarding the activities of Al-Quaeda in the Islamic Maghreb (AQIM), linking to spanish daily newspaper El Pais, itself linking to an AQIM video promoting jihad in Northern African countries. This article, in no way, shape or form endorsing the beliefs of AQIM nor condoning their action was the reason given by the prosecutor for Anouzla’s arrest. Arrested on September 17 and charged only a week later, on September 25, he will face trial for “providing tools to execute acts of terrorism, acclamation of terrorist crimes, defending terrorism and providing material assistance”. Ali Anouzla linked to a newspaper linking to a video. Anouzla had never in his entire career even brushed with the possibility of ever accepting AQIM’s activities in Morocco or elsewhere.

Ali Anouzla, however, is far from being your average journalist. An independent free thinker, his articles have often disrupted the activities of the state. Anouzla was the one to uncover the Gavlan affair, and regularly denounced the lack of authority – “absenteism”, as he called it – of the King, the complete oligarchy of the inner palace circles, and liberticide lawmaking enforced since the constitutional assembly in 2011. In a statement made by fellow moroccan journalists calling for his release, Anouzla is referred to as the “last independent and free journalist” left after the 2011 constitutional overhaul condemned freedom of the press. Ahmed Benchemsi refers to Anouzla as a “survivor” of the days when Morocco had a free press; he even refers to Anouzla’s arrest as a “hogra, an arabic term describing the commitment of a crime followed by punishment carried out in complete impunity. There is no doubt in the mind of observers of Moroccan freedoms that the arrest of Anouzla is a pretext to shut him down and destroy the activities considered as pervasive on Lakome.com.

A protest in Rabat for the liberation of Anouzla, Sept 27

If the rest of the independent press has been astonishingly silent, the Minister of Communications, however, ensured everybody understood the damaging impact behind Anouzla’s arrest. “This is not a freedom of expression issue”, he stated, “this is a terrorism issue”. Informing people about terrorism, informing people of a possible threat, and discussing the ideology behind terrorism is apparently a form of terrorism. Which implies that infomation in itself is a form of terrorism. A government spokesperson continued: “His arrest has a political impact, because (the article) infringes on the Moroccan model of peace and stability.” What stability exactly?

According to the 1995 Johannesburg Principles, which intend to guide freedom of information and expression in relation to national security, “Freedom of expression and information can only be regarded as a threat to national security if the government can demonstrate expression is intended to incite imminent violence.” If current rhetoric constantly and regularly checks back on what constitutes an “imminent threat”, it is perceived, per Johannesburg Principles and per the guiding doctrine of human rights law, that information regarding violence is not violence; that denunciation of political violence is not violence; that observation of independent information is not violence; that a thorough and argued criticism of the system does not constitute an imminent threat to the system. It is, however, an underlying threat to the system, one that must be maintained and cherished as an instrument of checks and balances. There is no better tool of democracy that an informed population. Anouzla’s crime has clearly been to stand in the way of the King and the generals ruling over the royal palace.

Morocco is judged by the Freedom House to be lacking in free press, and currently ranks 136th in freedom of the press in a recent report by Reporters Without Borders.

Ali Anouzla must be freed and exonerated of all charges.

With great thanks to the team at freeanouzla.com

Corner soul: is freedom of information a human right?

Have we taken freedom of information for granted? The logical corollary to freedom of conscience and freedom of thought, freedom of information is enshrined at constitutional level as a basic civil liberty, ensuring freedom of opinion, independent investigation, the right to dissent, expose facts objectively and sometimes subjectively, creating an informed public owing to journalism the possibility to form a complex and critical opinion of the government they, in democratic societies, choose to represent them. Freedom of information is protected as freedom of speech, freedom of expression, to convey and relate an idea, a belief, a value, a principle and the results of research without fear of retaliation from a government seeking to annihilate opposition. Freedom of information is the freedom of the press; it is the freedom to compare and contrast and conclude what’s best; it is the freedom to figure out what is taking place where we do not have access; it is freedom to understand a world we can’t always see or hear. Freedom of information is not only a link between the public and those who represent it; it is also a link between ourselves, and a link between us and those far away from us and whose fate is somehow, to some extent, in our hands.

More than ever freedom of information is now being restricted, facing secrecy and classification of documentation, arrest and imprisonment of journalists, probe into newspaper access, seizure of personal documentation while in transit, all in the name of the overwhelming and overpowering concept of national security. The overreach of counter terrorism legislation has led to an impossible and seemingly unwinnable war against freedom of information, at a time when whistleblowers do not benefit from the protection of the law despite their clear intent and objective to act as they do in the name of public interest and defense of the collective. When constitutional rights have failed at domestic level, and security no longer ensures the safety of a citizen to access information about their own rights, can we restore freedom of information in its rightful place? Is freedom of information a cornerstone of human rights?

A “touchstone” of democracy

Freedom of information is not a choice by any democratic society to uphold; it is a fundamental right enshrined in international law on the very first United Nations General Assembly (UNGA) in 1946. In its resolution 59 (I), the UN claims “freedom of information is a fundamental human right… The touchstone of all the freedoms to which the United Nations is consecrated.” In a later report established in 1995 for the UN Commission on Human Rights (UNCHR), Abid Hussain explains:

(…) freedom will be bereft of all its effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.

There lies the suspicion that any violation of freedom of information is an indication, a red flag of further human rights violations to come. This cornerstone of what is merely transparency between a government and the population it represents in order to prevent abuses and declare collective responsibility has been enshrined in the International Covenant on Civil and Political Rights (ICCPR), a 1966 text that aimed to derive civil rights from basic fundamental human rights legislation and ease their transition into domestic law. A Special Rapporteur on Freedom of Opinion declared in 1999 that the ICCPR should suffer no restrictions:

(… ) Emphasizes that everyone has the right to seek, receive and impact information (…) this imposes a positive obligation on Stares to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems (…) as referred to in Article 19 (3) of the ICCPR.

This “right to know” is unequivocal. However, the language of the Special Rapporteur ought to be noted: we understand freedom of information as freedom to receive it – newspaper publication and distribution, television and radio broadcast, online publication – but the Special Rapporteur has also added another component: the right to seek information.  The right to seek information is an important derivative: it means that if one information is not readily available through the regular aforementioned channels, any citizen is within their given right to go and look for it. This involves direct access to information, not simply accessible information. Failure to disclose is not failure to inform; a non-disclosure should be counter-acted by a request to information, under the concept of obligation by a state to respect freedom of information.

Restrictions on freedom of information, however, are tough waters to tread. In the landmark case Miranda v Arizona, the reasoning behind mandatory information of one’s rights was that, without key access to knowing their own rights, “a defendant cannot take a appropriate role in the exercise of those rights”. If freedom of information is a fundamental human right, who are we trying to stop exercising those rights? Like with most modern breaches of human rights, the concept of security has appeared with a notion of public defense and public safety that could only be achieved through covert action. Information about police activities, troops placement, military bases, current investigations and judicial proceedings are restricted from access in order not to obstruct the course of justice. Is it however justice that is being protected when restricting information, or are we keeping it under lock? When it comes to counter terrorism methods, violations are so common and the rhetoric always similar from nation to nation it is becoming sound and acceptable policy to restrict basic civil liberties to be “protected” from an enemy increasingly knowledgeable and ubiquitous. However, this belief is peppered with cases of abuse of those restrictions.

The Guardian headline following the detention of David Miranda

The arrest and detention of David Miranda: information as terrorism 

Glenn Greenwald, the journalist who revealed to London-based newspaper The Guardian the extent of Edward Snowden’s leaks regarding unlawful surveillance of American and European citizens by the National Security Agency (NSA), has suffered much intimidation from the American government since he first started to cover the story. Recently, his own partner, David Miranda, was transiting through Heathrow Airport in London and was arrested then detained for 9 hours under the Anti Terrorism, Crime and Security Act (ATCSA). Amnesty International called the operation “unwarranted and unlawful”. It was.

Voted in 2001, the ATCSA allowed for indefinite detention without charge for individuals arrested on suspicion of terrorism activities. They were considered too dangerous to be released into the public. Under non-terrorism charges, British law requires a maximum of 24 hours of detention, under proof of reasonable suspicion. Suspicion of terrorism does not cover solely the fact of committing an offense; it also refers to detaining information related to that alleged offense. Any failure to provide said information to the authorities is considered an act of terrorism. If Edward Snowden is currently under asylum in Russia and has seen his passport revoked, Glenn Greenwald – and by extension David Miranda – have never been suspected of terrorist activities. However, section 1 of the ATCSA refers to “use of threat of action … (b) designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public; (c) made for the purpose of advancing a political, religious or ideological cause. ”

The European Court of Human Rights has emitted various reserves as to the vote of the ATCSA. Dissenters of the act itself have claimed that its definition of what constitutes terrorism was too broad. Powers granted to law enforcement under this act are also in direct violation of fundamental rights. In the case of David Miranda, the seizure of his property – in this case, laptop, hard drives, USB keys – were covered by para. 3, sect. 5 granting power of seizure of objects when police “has reasonable grounds to believe (they) will be of substantial value”. This reinforces the belief that in Miranda’s case, information is terrorism, since all the powers used against him were granted by the ATCSA (as opposed to, say, the Computer Misuse Act of 2009 that could have covered any WikiLeaks-related charges).  S. 1 of an updated ATCSA from 2006 creates an offense out of publishing “(…) a statement that is understood as direct, indirect or inducement to the commission, predation or instigation to acts of terrorism.” A year later, complaints that the section was way too vague and was in breach of Article 10 of the European Convention on Human Rights (ECHR) regarding freedom of information were made. They were met with the concept of national security, a justification for human rights restriction. Problem is, in the United Kingdom as in the former colony of the United States, what constitutes an issue of national security isn’t clear.

Definition of what constitutes secrecy in Britain falls under five criteria: defense of the realm, prosecution of war, disposition of armed forces, weapons of mass destruction, and last but not least, activities of security and intelligence services, that already had The Guardian in hot judicial waters (Attorney-General v The Guardian Newspapers Ltd, 1988). Recently, those counter-arguments to freedom of information claiming that the free-flow of information, through whistleblowing or leaking, is detrimental to national security have been the cornerstone of domestic policy on surveillance. Because european and by extension international law are laws created by states and implemented by states, restrictions are also implemented by same states for their safety: restriction on Article 10 is in its own section 2, where freedom of information is restricted in matters of national security regarding “territorial integrity or public safety”. (see the Spycatcher case). As established before, fundamental rights guaranteed by statutes similar to Article 10 should not be restricted and any restrictions are to be “checked”.

In Sunday Times v United Kingdom (1979), this national security “necessity” was defined by a “pressing social need” and subject to overall european supervision. In various injunctions made in 1986 and 1987 against the Guardian and the Observer, there was question of whether the protection of national security was “sufficient” to justify the imposed restriction. National security does not, inherently and intrisically, become a justification against civil liberties. It is not a direct counter argument. The two can perfectly coexist without asking for jurisprudence to create a norm. Courts’ opinions shifted over time, while outrage over the Prevention of Terrorism Acts (PTAs) of the 1970s and their dire consequences on “irish terrorism” morphed into the response to a more global, less focused ATCSA. Two criteria remain: sufficient prohibition and proportionate reaction in the injunctions made against freedom of information and freedom of the press. It is abundantly clear at this point that neither of these criteria and none of the aforementioned barriers of protection have been applied in the detention of David Miranda.

Whether free-flow of information can actually present an issue in the case of government and – as in seen recently in the Chelsea Manning case – military whistleblowers is a question of “damaging disclosure”: is the information being published and distributed presenting a real risk to deployed troops, law enforcement operations or diplomatic relations? There is no standard. The government in place at the time places the bar on what it considers to be damaging, what it sees as being a disclosure and what it believes should be classified. In two landmark decisions in Britain (Guardian v United Kingdom, 1992 and R v Shayler, 2002) the extent of the damage is challenged by the concept of “public interest”. Civil liberties – as in the right to seek and receive information as a citizen – is perceived as being equal, if not superior, to the notion of classification due to security. If the population can benefit from an information being disclosed, and can take action for or against a policy as a direct result of the presented information, the notion of damage due to disclosure no longer stands.

Then and now

Death or better days: on the legal protection of whistleblowers, pt. 2

This is the importance of whistleblowing: this is where the core of the debate is. Who benefits the most from leaks being published online? Who is using this information, often presented in a format non easily accessible to non-knowledgeable members of the public? More importantly, what will be the population’s reaction to this information? If there is no such thing as a citizenry presented as a smooth, fluid, homogeneous entity, a reaction can be strong, vocal, and sometimes violent. If a government is attempting to protect itself from popular opposition, ranging from ousting at the next election to overthrowing the regime, it will of course consider the disclosure as damaging. It is in the nature of power to protect itself from what could harm it. Aristotle said it was in human nature to seek knowledge. In the question of freedom of information, it is therefore in the nature of a healthy, democratic and hopefully open society to constantly interact in a state of friction between state interests and civil liberties. If what we hope to achieve one day is complete superiority and unchallenged state of fundamental rights, it will have to be in a representative executive body that never classifies information, never operates under secrecy, and never takes a quizzical look at its domestic newspapers. Has it ever existed?

If friction is mandatory, if it must exists to keep power in place for representative purposes – but keep power constantly questioned and challenged, then friction will be maintained, arbitrated by judicial powers, provided they are not asked to uphold laws themselves not in accordance with the supraconstitutional or supranational ideals they have implemented. Britain will be answering to the European Court of Human Rights one more time in the case of David Miranda; the United States have already witnessed a titanic combat of legal wits when David Coombs, attorney to Chelsea Manning, attempted to explain to Judge Denise Lind the importance and responsibility incumbent to any citizen to hold crimes accountable. The contempt and disdain portrayed by Lind during her interaction with the defense counsel have not done the concept of judicial impartiality any justice. When Coombs tried his hardest to create a space for friction and even provoke it by extending the domain of the conversation on not just the means employed to leak information, but the very reasoning behind Chelsea Manning’s actions, a hand was raised as if to silence the broader implications of disclosure. If freedom of information is a human right, it has both a negative and a positive corollary. On the positive, it can be claimed, and obtained, by any citizen wishing to access information. On the negative, it forces an obligation upon the state to not only let information circulate, but also to provide access, and never restrict it. It is an active force, that creates obligations that are hardly ever met, as civil liberties are more and more restricted, only challenged when met with forcible judicial opposition by concerned parties. The only way we can make freedom of information a pro-active right again and impose the negative upon the state is to stay in a constant situation of alertness, and remain aware that restrictions are being implemented to intimidate anyone seeking information. It may be difficult to discern restrictions placed upon the daily circulation of information, as so many mediums are now competing to grab our attention, on relatively relevant issues.

It is important to keep in mind that above all, freedom of information is maintained and kept by journalists and writers, researchers, not simple pawns on the chessboard of civil liberties, but active agents who are protected at the highest level – by the Geneva Convention. Any restriction on the access to information by a journalist, any intimidation formed against them – or their close ones – in order to unlawfully seize the information they possess, halt the publication of an opinion or a fact, destroy collected data, block a server, or worse, physically restrain them by putting them in a prison cell is not just an attack on a profession, it’s an attack on a civil liberty, on a fundamental cornerstone of democracy, and a human right.

 

There’s a lot of things, if I could I’d rearrange: on Bradley Manning pt 2

Yesterday, during its closing arguments, prosecution against Pfc. Bradley Manning said the following: “If youbetray your country, you do not deserve the mercy of a court of law.” 

Prosecution has obviously very little and extremely restrictive understanding of what constitutes the law, what constitutes one’s own country, or what it takes to “betray” it.

…No, it isn’t heads or tails. Whatever happens, it is by my agency that everything must happen. Even if he let himself be carried off, in helplessness and in despair, even if he let himself  be carried off like an old sack of coal, he would have chosen his own damnation: he was free, free in every way, free to behave like a fool or a machine, free to accept, free to refuse, free to equivocate: to marry, to give up the game, to drag this dead weight about with him for years to come. He could do what he liked, no one had the right to advise him, there would be for him no Good nor Evil unless he brought them into being…condemned forever to be free.

Bradley Manning was given the opportunity to read a statement to Judge Lind, to the court, to the press that was covering his “trial”, to the Wikileaks presence, to anyone in the world who would lend an ear and listened. It has been deemed an apology, because he did use the words “I am sorry”, but what I read through it is the sorrow of a young man who realised he may have fallen on deaf ears. It is our responsibility to make Bradley Manning understand that his actions and his years in solitary confinement have not been in vain.

Bradley Manning is sorry; sorry to have hurt the Department of Defence, as if it was a homogenuous entity that could feel, that could love and hurt, that could make decisions according to a conscience it has several times during the trial referred to as a disease. He is sorry to have hurt the United States; another blanket identity that is neither social nor political, neither free nor enslaved, neither clean nor unclean, neither faithful nor a traitor. There is no heads or tail in the Bradley Manning situation; there is no right and there is no wrong, there is simply a path that has been seen, perceived, understood to be the one to take at one specific situation in space and time. A path that clearly has been qualified as unlawful and unauthorized, that has warranted the arrest of a 22 years old young man whose identity he did not even know, and his confinement in conditions that have been decried over the years. If Bradley Manning has anything to be sorry about, it’s having to be there on this stand, inside a uniform that somehow seems too big for him, his frail shoulders barely carrying a gaunt face, eyes too young to truly belong to someone who has gone through the tribulations of answering to their own government, a government at war, in a perpetual, global, endless, ubiquitous, and dirty war. Bradley Manning is apologizing so we don’t have to.

The hardest concept to probably grasp as a citizen and, even more so, a member of the armed forces is the consequences of one’s actions, the responsibility that goes with carrying them through, seeing them through and bearing the burden of their long-lasting repercussions. Bradley Manning believes he did not intend for his disclosure of information to go that far. This will always be debated, and this historical situation will clearly not have a collectively agreed-upon resolve or any sort of closure anytime soon. There is no way of knowing whether releasing footage of cables and their international consequences on western armed forces forcing their way through various battlefields had been foreseen by someone barely out of their teens and not even well-versed into geopolitics.  The constant attempt to establish mens rea by the prosecution just fell short of understanding what type of character Bradley Manning is, through lame and insulting means of defaming his identity, insulting his intelligence, and bereaving his family. The question surrounding whistleblowing should never be “how”; disclosure of classified information is just as much a question of information surrounding secrecy. It’s not about contacting Julian Assange or using Wikileaks, which is merely a platform that exposes rather than explains, displays rather than deducts, and supposes rather than proposes. Whistleblowing is about the why. It’s about why this information is so critical to the US Government that they’re willing to imprison a young man for life and isolate him from any support he could possibly get, until his hypothetical future remorse eats him alive.

In the state I was in, if someone had come and told me I could go home quietly, that they would leave me my life whole, it would have left me cold: several hours or several years of waiting is all the same when you have lost the illusion of being eternal.

His apology was just as much of a question. If he referred to “broader consequences” of his actions – beyond his regimen, beyond his military, beyond the territorial borders of the United States – with the vague, flimsy and clearly fluid grasp that one could hope to have in an era of extraterritoriality – Manning provided a statement that could just as well be ended with a question mark as it did a period. Manning asked, out loud, how he could have ever thought he could “change the world for the better”. Prosecution was right: Manning is conscience-afflicted. Even after three years of detention, of isolation, of confinement and humiliation, Manning is still asking the one question that motivates every single individual, regardless of their race, gender, creed, profession, or better yet, country of citizenship: what could they possibly do, as citizens of a world they no longer understand, to make a profound and lasting impact on the future generations? What means do we have at our disposal, lawful or otherwise, to enact those changes and enshrine them so they are respected? There are no whistleblowers in the military because armed forces have a goal. They have a clear objective, and they abide by it. There are given orders, and a narrative, and they stick to it, as they force themselves through hostile territories, uncertainty, sudden drop in life expectancy, and the dull yet piercing sound of a grenade exploding nearby. We have to provide our foot soldiers with a story broad enough to encompass the stench of rotting dead bodies and the despair of a seemingly endless tour. We have to let our soldiers know there is a reason. If any citizen living in peace time is entitled to live a life free of strategy and focus, if so is their wish, a soldier is tied to action through pure, absolute necessity. Manning questioned that necessity. Manning questioned the resolve, unjustified the body count, and defaced the national modus operandi surrounding the wars it was spreading like wild fire. Manning may not know if there is a reason to live, but he knew there was no reason to die.

It’s strange what confinement does to inmates. Truth is manipulated and distorted until guilt, even an artificial one, seeps in. In solitary, where no one can confront one’s truth to their own, one’s story to their own, or cross-examine information received through the unilateral communication of their defence counsel, we try to understand the reason why we’re here. Punishment needs to be understood. We need to, somehow, have done something to deserve it. What the prosecution tried to make Bradley Manning understand through this whole ordeal is that no one was suing him because they wanted to, out of sheer sadism, or because they were the apparatus of a tyrannical regime. They enshrouded themselves – falsely, absolutely falsely – into the legitimacy of the law so their actions against Manning would gain the authority they would otherwise not obtain. A Kafka novel based on judge, judgement and execution, “In the penal colony”, offers the scene of a journalist coming to explore a penal colony in a faraway land, in which a Commandant had enforced a strange but apparently effective means of punishing his inmates: the Harrow. The explorer, having never seen penal reformation before, had questions, but the Commandant always shakes them off, with staunch certainty, claiming, “My guiding principle is this: Guilt is never to be doubted. Other courts cannot follow that principle, for they consist of several opinions and have higher courts to scrutinize them. That is not the case here, or at least, it was not the case in the former commandant’s time.” In other words, unless we believe in the guilt of those judged guilty and sentenced to pain as a result of their guilt, we would not be able to stand it. We must conform to the idea of justice as it performed, otherwise there is no justice at all. As the inmate slowly dies on the torture machine, the Commandant tells the journalist: “it reads, ‘be just’. Surely you can see it now.”

Manning through his young, unsteady hand through the looking-glass of what is essentially an underground society. On one hand, are the actions performed by the government abroad, or even domestically, that must perdure in order to ensure its own perenniality. That those actions are condemned by law, domestically or abroad, does not matter, because the law, by definition, is accessed in a public forum, for the people, as written by the people, and enacted by their own peers. The law is not an instrument of secrecy; it must be accessible to all, because ignorantia juris non excusat. Trying to skirt around the law, walk around it, manipulate it, reword it, reframe it, rewrite it in order to benefit from it instead of using as a tool for blind equality is something any citizen should worry about and pay attention to. Alexa O’Brien, one of the few reporters covering the Manning case, has been extremely vocal about the lack of access to not only military law,  which she has been instrumental to deliver to each and every one that followed her – but also the inner workings of the court, Judge Lind, the prosecution, and the situation the defense counsel, David Coombs, was in. A government is yet another tool of the people. It should never force itself or be forced underground under the false pretense of security. There is no such thing as brutal use of force for someone else’s own good, let alone the collective. Freedom of information is the bedrock on which a functioning democracy is based on, and never as much as in the Manning case has the rule of law found such a strong ally as in independent journalism. Manning has been guilty of revealing that justice has been obstructed; O’Brien has taken upon herself, and on her own, to give it a voice, to give Manning a voice, to stand up against the wall of silence we are now facing when entering a court of law.

Manning’s very existence is the contradiction to the prosecution’s statement. Manning did not betray his country; he may have, if so is allowed, betray his country’s interests, and surely there is a penalty for that, but a penalty on halting benefits and hindering mass murder should not carry the life of a man who has barely seen sunlight in years. Manning, regardless of who he is, regardless of where he stands, regardless of what he has done, is, and should be, always, safe in a court of law, to stand, to speak, to provide instruments to his own defense, and be judged by his peers. And judged he has been; through a free-flow of dubious, questionable and extremely biased information; through a chaotic attempt at securing support outside of regular channels; through an increasingly vocal and gracefully, happily, thankful presence of an international community that has seen in Manning the hope of – not stopping the Empire, but simply being a grain of sand in the whirring wheel. Manning held a mirror to Judge Lind, who could barely make any shapes in the reflection, so far away she stands from the broader consequences Manning was referring to. The consequences of Manning’s actions reach far away and beyond the narrow and obsolete statutes of military courts. They belong to any self-empowering, self-respecting international institution that has seen the United States ratify treaty after treaty securing the civil and political rights of all, respecting national sovereignty of foreign governments, and maintaining the world safe from aggression and upholding the sanctity of life. The Manning pill must be a bitter one to swallow; but I will never forget the steel-like, blood-like taste in my mouth the moment I read that line.

A court of law does not provide mercy, or inflict punishment. A court of law only provides what is fair based on presented evidence. A court of law is not an instrument of intimidation, it is an instrument of equality. May those prosecuting Manning for having faith in beliefs he does not even know he holds dear fall short of ever seeing the inside of an international criminal court. Manning will be sentenced, and he will purge his sentence; he may appeal, and the circuit might go all the way to the almighty Supreme Court, where the very definition of the role of a court of law might be once again redefined by a select few who hopefully will have a better grasp on the way a nation is going, once it has violated every principle it once stood for, and once it has betrayed the international community by hiding its actions in plain sight.

Manning did not betray his country; he rose above it.

Western foreign policy in Egypt caught between realpolitik and ballotocracy

At the time of publication, Egypt is still counting its dead, among which journalists and christian church worshippers. The Egyptian military’s massacre in Rabaa is following the failure of American and European diplomatic efforts, the ousting of President Morsi, and general political instability since the first political protests in November 2011. The international outrage at the events unfolding in front of our very eyes can not match the reaction of Egyptians. We talked to Nelly Corbel, a Cairo-based political scientist.

On wednesday August 14, the Egyptian security forces moved to disperse the two months long sit-ins in support of former President Morsi after repeated and delayed ultimatums. The dispersal of the two protests led to widespread violence across the country from street battles to sectarian attacks. An emergency law was declared and a curfew put in place.

The powerful images coming out of Egypt brought worldwide attention, questions and outrage: what happened? how did we get to this? This is what military coup lead to! Like Sarah Kay, many feel confused and appalled. How can the West, namely the EU and the US condone the military coup; it was an evidence that a military coup would lead to such carnage. The West was too weak in their visits to the post- July 3rd government.

My question to them is: what could they have done?

Lets step back to take a look at specific events in Egypt’s last year and the international relations at play in the region since the ‘Arab Spring’.

The constitutional debacle

In November 2012, former President Morsi issues a decree giving himself absolute powers including those over the judiciary and reinstating emergency law under a new name to allow him to clean the state from old regime remains. Upheaval by revolutionary groups is immediate. The country witnesses nationwide protests, Human rights groups, syndicates and civil society condemn the decree and a sit in settles in front of the presidential palace asking for the removal of the decree.

The response from the Presidency and the Muslim Brotherhood comes in a two-fold action: the sit-in is violently dispersed with no warning by militia and the president reminds the decree will be cancelled as soon as the new constitution is ratified.

Therefore the drafting of the constitution which had been debated for over two years with numerous councils created, dissolved and witnessed massive member resignations was approved in an Islamic-leaning constitutional committee. A draft is agreed upon overnight. Two weeks were given to the citizens to prepare for the referendum over the highly controversial draft. Finally the constitution is ratified by some 60% of ‘yes’ from a third of eligible voters. Egypt moves on with a constitutional process led through a majority rule and no efforts for consensus building in a divided country.

This turning point in Morsi’s presidency was very weakly addressed by the international community, partly because a few days earlier he was applauded by the same community as the truce-broker in a heavy conflict on the Gaza strip between Hamas and Israel. The series of political faux pas conducted by the Morsi administration after this never stopped from 24 hour long decrees increasing taxes and removing subsidies over daily goods to the ‘brotherhoodization’ of institutions.

West: between balance of power and ‘ballotocracy’

In light of these events, any sound political analyst could have easily seen the below unfolding.
There are four large political segments: remnants/supporters of the old regime, the powerful military institution who owns over one third of the country’s economy, the Islamic leaning groups with international branches and the revolutionaries.

In the presidential elections the first two voted for Shafiq and the latter two mainly voted for Morsi. The revolutionary forces, which is not homogenous can be considered as the ‘swing group’ who decides at each cross roads based principles rather than because of loyalty to an institution. Their votes will go in favor of an idea or against one.

After the decree, Morsi lost the support of a fairly large portion from this group of voters who ultimately voted against the old regime figure: Shafiq. Since then opposition started organizing against the Muslim Brotherhood, their offices across the country were regularly attacked and the divisions deepened by the lack of genuine dialogue and consensus building from the presidency.

Therefore, in light of the above, western political analysts could have done the math: the revolutionaries who learned from their past failures in elections from a lack of alliance would ally with those who would help them against the MB. In that moment, the West utterly failed at exerting pressure against President Morsi to push him into a deep consensual effort. Rather they turned a bling eye on the situation and the summer 2013 events was a logical consequence within internal Egyptian politics.

Why not pressure Morsi to follow a consensual path?

Egypt is a critical country at the regional and international level:

1 – it’s geographical position between Sudan, Lybia and especially Palestine/Israel
2 – its symbolic importance in influencing regional politics making it an epicenter.

Therefore, dealing with Egypt is a very delicate waltz. After supporting the military regime for decades to insure peace with Israel, the Egyptian uprisings of 2011 has put the West in front of a dilemma. The military took over the transition but elections are taking time. The earlier the elections take place the more evident it is the Muslim Brotherhood will win them. The West stands for the protection of Israel and democracy, so how can it work if the mother group of Hamas comes to power through the ballot? As we say, keep your friends close and your enemies closer. The West therefore chose to prioritize improving relations with the MB as if they were the ultimate result of democracy in Egypt at the very least for the public eye.

This move was a complete miscalculation of the forces at play in Egypt where rule of law is barely practiced and where the military are a force to be reckoned with, not only because of its economic and armed power but also because of it’s symbolic importance in the eyes of a very large portion of the population. The recent call for supporting action against the Pro-Morsi sit in saw hundreds of thousands of supporters in the streets.

Finally, it must be understood that the situation in Syria sent a strong message to dictatorships in the region: the balance of powers are shifting and countries have once more the opportunity to play the West/East alignment game. The full supremacy of the West in the post cold war is over. Proxy wars are very much alive and the West cannot take the risk of loosing Egypt.

Morale of the story: if the West was indeed focused on democracy and a process focused transition, it would have seized its chance when it still had it back in November to pressure the new government in despair for foreign aids to prevent this military intervention. Now Egypt is up for grab again, the balance of power has shifted, the military is once more all powerful and the seduction operation to get Egypt back is on.

 

Nelly Corbel works at the Gerhart Center for Civic Engagement and Philanthropy at the American University in Cairo. She is the Executive Director of the Lazord Foundation. Franco-egyptian, she has been based in Cairo for over five years.