Northern Ireland in the age of Brexit

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I have long written about how disastrous the Brexit referendum was for the region where I grew up. The future of the Good Friday Agreement, turning 20 this year, and the practicalities of the Northern Irish question – power-sharing, effacement of the border, and co-authority from Dublin and London – have fallen by the wayside in mainstream commentary. Few remember that the “UK” is in fact the United Kingdom of Great Britain and Northern Ireland, that our specific history carries specific responsibilities, the least of which preserving political stability, or the appearance thereof, to keep violence at bay.

With the referendum result came fears no one had truly buried in the nine counties of Ulster, the first one being identity. Identity drives everything, from places of residence to political representation and legal positions. This is a region where people would endanger their neighbour’s lives and safety over a flag, where the colour of the passport really does matter. With European membership, those elements were allowed to take on a different dimension. It never saved Northern Ireland from its sectarian self, but it provided the Good Friday generation with freedom of movement, Peace programs’ funding, and the legal protection of legacy adjudication. For children like me, it became a way out, a ticket to the great unknown: the continent. The story that remains true for the rest of the 27 applies with outstanding relevance to Northern Ireland which future depends more on EU membership than any other conflict-ridden area in the European Union.

What sets Northern Ireland as a priority is the endless shades of green that cross it horizontally east of Co. Donegal: the Border, a fault line that my phone still capitalizes even though colleagues have already documented that it has anything but disappeared physically. There are commuter trains that link Belfast to Dublin on an express, regular basis; cash machines dispense both sterling pound and euro currencies; the region voted to Remain in the European Union, because 20 years is hardly enough to forget the wounds, still occurring, still dangerous, of a conflict over the territory that EU membership in 1973 blew in the open outside of the former “British Isles”.

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I grew up Irish. In my area in Belfast, that has been Gerry Adams’ consistuency since the year I was born, this was no question. We were “Irish, of the Northern kind”, as one of my followers recently described in her Twitter bio. Being Irish is different from being Northern Irish; being British is nothing like being Northern Irish. What the Good Friday Agreement brought about is the possibility of a third identity emerging out of the cards that had been dealt, a way out of the political endgame and the constant DUP / Sinn Fein battle for leadership. Brexit threw a wrench in the machine, and forced a reckoning. Laura Coyle lives in Co. Donegal, in Ireland, but works in Derry, in the North. Directly affected by the referendum, as her livelihood and the legacy of the conflict, a commuter worker, she speaks:

Speaking from personal experience living in and around NI having discussions with NI friends and family, that after the vote, the feeling was one of palpable anger. That once again the people of NI’s existence seemed to matter very little.  Regardless of where they stood politically, the majority of NI voted to remain, and it seemed at least at first, that those who didn’t hold an Irish Passport before but wished for one post-vote viewed it as a ‘ backup’ rather than an stand with any kind of Irish identity. Which to be honest, I found perplexing. People who would have before,  harshly corrected those who described them as Irish – instead preferring Northern Irish, or indeed British, were all of a sudden fine with holding an Irish Passport when it allowed them the freedoms their own government were keen to take away. A shift yes, but one of convenience.

So how do we approach the legitimacy of this shift? Are those passports petitioners less worthy of EU membership and EU identity than those who have fought for reunification their whole lives? This is the dilemma that divides and devours Northern Ireland. Suddenly, republicans are validated and vindicated in their quest of absorption within Ireland, loyalists sold out to the highest bidder as Brexit threatens the power-sharing agreement and exposes London’s lack of concern for Ulster. As of this week, it’s been 13 months since Northern Ireland did not have a sitting Assembly, with ongoing threats that the region’s budget would be directly voted in from Westminster. Following the resignation and death of deputy First Minister Martin McGuinness, the lack of leadership in Northern Ireland is another thorn in Brexit’s side. Coyle continues:

I think the ‘balance’ of power in NI is still as delicate as it has always been. The hope is that the new year would bring further steps to an agreement of power sharing amongst the current parties, for the sake of the people, hoping to, for all intents and purposes, to just keep things on an even keel. However, failing that I think there is a fear that any push from Britain in favour of a particular party over others may kick start events we have long hoped to have left behind.

That push is real: the fear of direct interference – direct rule – would be the spark to reignite the fire of violence that was never that far behind. In many ways, the convenience of which Coyle speaks is an understandable one: if being Irish means no longer being subjected to London’s destructive whims and condescending approach to the peace process, then being Irish is the identity that can save the region as a whole, and not be the divisive affiliation that has underpinned the conflict for several decades. Being Irish is not just about claiming attachment to Dublin, it is being part of a broader, larger, more inclusive entity – the European Union. In a way, it is an avoidance, a way to escape what is perceived as English ineptitude towards the maintenance of Northern Irish institutions and devolved structures. The preservation of the power-sharing agreement, described in the press as a “Good Friday Agreement failure”, is in fact worth fighting for in Northern Ireland. It is disheartening that, a couple of months’ shy of the peace treaty’s twentieth anniversary, it is such dismissive behaviour and speech that characterizes English approach to conflict transition. Kathryn Beirne, a social and care worker in Belfast, explains: 

Some people are having to face the darkness of the dismissiveness of the UK government. When the assembly is running local politicians are the focus and they are usually responsive (positively or negatively they usually aren’t backwards about coming forwards). The UK government has been far less so, no real voted in NI after all. They either treat the particular issues around the border or the Good Friday Agreement as no big deal….or as something someone should have told them about earlier (clearly people did but were ignored). This, I believe is causing some people to think about how much a part of the UK they really are. 
 
The media coverage from rest of UK is often equally disheartening. Brexit really has played out as an English referendum so the media focus is primarily on English parties, English cities, English needs. When it is pointed out that NI (and Scotland) voted to remain, it is quickly said that it was a UK vote so everyone else can go whistle. Even things specific to NI are framed in ‘rest of UK terms’…Even by Remainers. When the rest of UK learned that NI folk would retain the option of EU citizenship through the option of Irish citizenship hit the fan. Remainers cried discrimination and Leavers cried ‘Brexit means Brexit’. No one was for listening that the whole Irish citizenship for Northern Irish folk is nothing new.

It was only this week, before this piece was brought to light, that the ignorance of Northern Irish issues became more of a devastating, crushing blow. It came first with a Guardian editorial describing the Stormont stalemate over the Irish Language Act as a deliberate Irish republican attempt to undermine the peace process and stability, that can, according to the Guardian editorial board, only be found in British identity; and this British identity would apparently be incompatible with the existence of other languages on the island. The de-politicization of the Irish language in Ulster is indeed a sensitive topic, that the EU has attempted to defuse by recognizing Irish as a language of the European Union; to be part of a cultural heritage landscape, a historical reckoning, one that was part of identity not so much as a political symbol but as an individual choice of legacy the way other minority languages are preserved across the continent. This week also saw the opportune and timely Mother Language Day at UNESCO, highlighting that the absorption of minority languages in larger transnational identities for the purpose of convenience did not mean that those languages did not have a cultural significance in the preservation of plurality of identity in the world.

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Because Northern Ireland has characterized and illustrated its Irish identity with the practice of the Irish language, the very fact that it could be open in Northern Irish schools is “weaponized”, to use a term we thought obsolete but was revived in the Guardian editorial, against unionism, against its otherwise predominant symbols in the region, as an instrument of pro-reunification ideology. It must be said: we are not anywhere close the possibility of reunification with the Republic of Ireland, but what we see is a considerable fluidity that is solely attributable to English isolationism from devolved regions. The reality in the North is that learning Irish is no longer a feature of political grandstanding. In East Belfast, an area with a large, historic, predominant Unionist (with a capital U) population, classes have been offered and have found their audience. The possibility that Unionists could still wish to attach their identity to the Crown whilst recognizing they could also be Irish is no longer mutually exclusive. In the words of writer Malachi O’Doherty, who self-describes as a “unionist with a lower case u”, being Irish is not necessarily an issue. One can be Irish and not seek reunification. This end of a dual vision for the future of Northern Ireland, the suppression of a strictly either/or affiliation, appeared threatening, and it started with the Irish Language Act. The DUP, a party that can only be described as an extreme, has spearheaded the rejection of Irish believing that the whole of Ulster would suddenly be absorbed in the Irish identity curriculum and administrative support – including bilingual road signs, god forbid – present in Ireland. It is worth noting the DUP is alone in holding that view.

Language, in fact, should be celebrated as a welcoming, inclusive, expansive and pluralistic approach to identity. Gareth Woods, a translator currently based in Dublin, explains what the learning of minority languages means and how it could in fact play a significant part in the peace process in Northern Ireland:

It is a widely accepted fact that minority languages are in danger of extinction unless given the required care and attention in the form of comprehensive and cooperative language legislation. Following the recent recommendation from the Council of Europe on 7 February 2918, that the UK should introduce legislation to protect the Irish language and the rights of Irish speakers, as well as being listed as “definitely endangered” by UNESCO’s Atlas of the World’s Languages in Danger, it comes as no surprise that the Irish language is one that is dangerously heading toward extinction unless local governments stand up and act on behalf of all citizens. Given that Foras na Gaeilge (FnaG), a cross-border body that promotes the use of the Irish language, is set to bestow Belfast in Co. Antrim and Carntogher in Co. Derry as official “Irish language network” communities as well as strong support from south of the border, it is clear which side is putting more effort into making sure the Irish language isn’t lost forever and which side needs to put bias aside to ensure representation for all communities in the North of Ireland.

But it is not only the ILA. The Good Friday Agreement itself has been under fire after Kate Bradley, the new Secretary of State for Northern Ireland, reported on the failure of power-sharing talks in the Commons. Suddenly, the peace treaty was attacked for being a failure, and for implementing too many roadblocks between the necessities of Brexit and Northern Ireland’s legal obligations under EU and international law. This criticism did not only come from DUP representatives present in the House. They also came from Labour MP Kate Hoey, in quite virulent terms; from alternative-reality Brexiteer and Conservative MEP Daniel Hannan; outside of the political spectrum, such dangerous views were espoused by academics finding room in the Telegraph. For most of Northern Ireland, which voted in favour of the peace treaty at 71.1% in 1998, this was a direct attack on their newfound way of life, their desire to see a different future for their children. In April, a brand new generation would have come of age under the Good Friday Agreement and never known what life was before John Hume. While the conflict is certainly not over and violence continues to interrupt daily life, it is in no way as intense as it used to be, and the more time Ulster spends away from it, the more accustomed it becomes to sharing civil, political, legal, and educational space. It is completely unfathomable to ask parents to tell their children they might see their stability, however relative, revoked because of the self-defeating attempt of leaving the European Union, a decision Northern Ireland, once again, did not approve.

For Lyra McKee, a freelance journalist based in Belfast and who has extensively reported on legacy cases and victims of the conflict, Brexit has harmed Northern Ireland:

I’ve never felt as furious with Westminster as I did as the day of the results. Northern Ireland did not vote for this – our democratic will is being completely and totally ignored. Our needs, the position it puts us in – all of it was completely ignored by the Tories. For the first time in my life, I was wondering what a United Ireland looked like. A friend of mine, another Catholic, once said to me, “You’ll prise my free healthcare away from my cold dead hands” and I’d agreed with him but the UK looks like a sinking ship right now and I’m afraid we’re going down with it – and we didn’t even vote for Brexit!
Being however tied to Ireland as the only other option is not yet something to contemplate in 2018, and comes with very practical, straightforward issues that Dublin has not addressed and is unlikely to in the coming years:
I feel Nationalist desire for a United Ireland has, until now, been completely oversold by Republicans and completely misread by Unionists. It’s not that they were against one but they were completely apathetic on it. If a United Ireland is Unionism’s worse nightmare, well, Nationalism’s worse nightmare has already happened – a United Kingdom – and the sky has not fallen in on us. We’ve been through the worst – The Troubles (the Unionist community obviously suffered hugely through that too) – but we came out the other end of it. And until recently, we had a decent healthcare system which was free and a welfare system which wasn’t great but a damn sight better than what it is now. (…) Then we have an Executive that continually topples or is on the verge of toppling and the “crocodile” rhetoric from the likes of Arlene Foster – that was the biggest own goal of the decade. All that did was rally the Nationalist vote. Collectively, it all ends up fatiguing both of the main two communities, to the point where they’ve lost faith in the institutions.
Has the Good Friday Agreement failed Northern Ireland, or has it failed to provide the leeway that Brexit needs to circumvent the impact on devolved region? It is undoubtedly the latter. The Good Friday Agreement does and should supersede the political insanity and legal overhaul that Brexit requires; the obligations pending upon London were reviewed before the referendum, and were the topic of research conducted by the Human Rights Commissioner for the Council of Europe. The preservation of the rights and funds afforded to Northern Ireland so the region finds its footing away from an endless cycle of violence remains present as ever, whilst simultaneously continuing to be politically manipulated to achieve ends that have little to do with the region itself. For Northern Ireland, it’s more than just a political bargain: it’s survival.

So what is next for Northern Ireland? From the testimonies provided above it appears that many are seeking an outlet for their voice, the complexity of their individual and collective stories as well as an opportunity to see what the next twenty years may hold under the Good Friday Agreement. The resentment created by a Brexit no one truly wanted and the lack of political representation at home and in Westminster is a textbook breeding ground for instability that the region knows too well. The imagination and creativity of the pro-Brexit crowd with regards to the border and to the Good Friday Agreement – drone patrols, a custom-made customs union, a new treaty – would all require the support of Ireland, but most importantly the consent of the Northern Irish people. In all this rattle and hum about the will of the people, we never hear about what Northern Ireland wants, let alone needs.

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Hypervigilance

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The NYT alert, after the emergency alert.

On Friday, journalist and writer Ian Dunt proclaimed his exhaustion with Donald Trump. Coverage of the surreal incompetence and permanent scandals of his presidency overshadow what is at play on the world stage – actual crisis, outside of those he created himself. It’s time-consuming, and draining, to have to pay attention to a petulant child whose vision of governance is that of a reality TV show. I responded to Dunt’s piece adding that, while he makes a formidable point on feeding Trump attention on social media, there is a responsibility incumbent to those of us in the professional line of work that is scrutiny, be it judicial or political. When Trump’s words affect policy or translate into the use of lethal force, no matter how flailing the intelligence level, we have to pay attention.

Less than 24 hours later, a vast majority of Americans received an EAS message on their phone warning of mass, impending death. It was then corrected – by a following EAS text, and a statement (on Twitter) from Press Secretary Sarah Sanders. On one hand, this is illustrative of the new lows of which Dunt spoke. On the other, there is one more line drawn in (quick)sand: that the incapability to govern or keep citizens safe, a positive human rights obligation, extend to all branches of government under Trump administration. 38 minutes passed between the first signal pick up of the EAS and the push correction. Luckily, Hawaiian authorities managed to send their own correction within 10 minutes. Thirty-eight minutes is still an awfully long time to spend in fear for those for whom the threat of missiles is incredibly near, nearest than anywhere else on the continental United States. This was another day in the Trump administration, and this constant instability takes a considerable toll.

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Emergency

The Emergency Alert System is, so far, relatively efficient, and is mostly used to warn residents, usually with a local focus, about dangerous weather. The last alert I received on my US number, a 917 area code, was for a flash flood warning (see above). The EAS frequency is also picked up for Amber alerts, that spreads – again, locally – information about a vehicle in which a possibly abducted child would be riding. The EAS has significant potential to inform and hereby extend protection, and avoid the strain on resources for emergency response. It has also transmitted messages regarding active shooters situation, police lockdowns, and anything of a nature to affect the daily routine of any resident. The EAS allows the broadcast on very specifically limited areas, but of course can also be transmitted nationwide. To put it mildly, this is not a tool to be abused.

Other countries have their own EAS or have attempted to develop a similar system, especially after the wave of terror attacks to have swept across western Europe. Applications have been launched more or less successfully, with a view to either alert law enforcement to suspicious activity, to report oneself safe, or simply to warn anyone within an affected zone to seek shelter or move away from windows. The goal is always the same: smartphones have long replaced radio waves, and what would have otherwise interrupted radio broadcast is now able to intercept any signal on any network to preempt further damage or injury. It is difficult to conceive a situation that would be more conducive to sending an EAS threat than an incoming ballistic missile on the northwest of the United States. The context is essential: if weather-related EAS often arrive when televisions have already warned of a problem, or if police activity is, sadly, a regular occurrence in large cities, not everyone has lived through or remember the most tense moments of the Cold War, during which the nuclear threat was heightened. My generation remembers drills, schools teaching basic safety regulations, and has emerged after German reunification with the sense of political terror this generation has not known.

This is, however, the Trump administration, a government that regularly ignores all rules of law or diplomacy and tweets out threats to rogue states in possession of the nuclear weapon for no discernible reason other than the entertainment value on social media. This is the presidency of Donald Trump, where even despots in South America or Eurasia believe there is an exaggeration in bellicose rhetoric. The EAS text could not be ignored, not only because the EAS frequency is specifically designed never to be ignored by recipients, but because the context could have, perhaps, especially to those not in our chosen profession, been believable.

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An exemple of a weather alert for the New York City area, June 2017.

Fear

Something about the EAS is anxiety-inducing. Receiving one while walking down the street means everyone’s phone around you is buzzing with the same alarm-like ringtone. Everyone is alerted simultaneously and this sense of ominous, impending event falls on the group, populated by strangers or friends, that there is a requirement to act at this moment. A weather alert is one thing; ballistic missiles are another. The issue is that, under such politics, the definition of a threat has now largely expanded from what we considered to be an imminent attack on our collective security: it’s not just lone attackers with a van on the West Side Highway; it is the very occupier of the highest office making repeated mistakes that endanger the position of the United States and US citizens as a result. It could have been an irresponsible one to relay this information to a mainstream media, such as CNN for instance, that would have carried the headline for 38 minutes. It is beyond dangerous to use the EAS for something that isn’t verified, isn’t endorsed, and is described as “not a drill”.

There are no more drills. The only use the US could find for them in early 2018 are the immensely saddening fact that school shootings are unimaginably frequent, and institutions have taken upon themselves to teach schoolchildren to hide underneath tables. The United States has been under a state of emergency for almost 17 years now, a fact that has since been forgotten, or perhaps more accurately assimilated in political analysis. France’s 2 year-long stint under emergency protocols and legal derogation pales in comparison despite the damage done. The question is whether Western states have normalized violence – the violence they suffer but also the violence they inflict overseas – to the point that those 38 minutes carry little water in terms of social response. Of course, it was localized; it was also on a saturday night; it was not on the continent; and it was easily dismissed because Trump’s words and actions can be so easily dismissed. It however wasn’t the case for everyone. Some Hawaiian restaurants have reported that people fled en masse, others throughout the world have helplessly tried to corroborate the message. An EAS text should not need to be verified. It should in any instance be sent in error. That this is a possibility discredits the entire notion of emergency, an otherwise legitimate tool of protection, the way the Trump administration has made a joke of UN Security Council sessions.

Should we ignore it?

Dunt was right, as he so often is, but with his decision comes the privilege of being geographically distant from the nightmare that is the Trump presidency. Yet we in the EU remain affected to an extent: that our institutions have to continue interacting with Trump as if he respected his own office, as if his administration and officials carried their work with the expected gravitas. That such a mistake took place a day after we all pondered the possibility of dismissing and “muting” the happenstances across the ocean illustrates that we perhaps do not have that option, and we have a responsibility to understand that Trump’s logorrhea translates into policy. It also translates into formidably impossible hires (Betsy DeVos at Department of Education, for instance, or Jeff Sessions at the Department of Justice); that it impacts the safety of human lives in the US and abroad; that it fails to recognize the importance of governance in this day and age.

Of course, many have claimed that the Brexit shambles in the UK could give the Trump administration a run for its money, with its legal illiteracy and lack of foresight. There is nothing strong nor stable in May’s actions but we can’t ignore them altogether. This goes for a commander-in-chief bragging about having the capacity to launch nuclear action at will and believes he can bypass the Security Council to launch a missile strike on a Syrian airbase. This is a crisis of democracy many more qualified than I, including Dunt, have discussed before. We have a duty to observe and challenge, the way we have right to trust our emergency services and not be told we are at constant risk of immediate annihilation. The easiest way to endure is to be selective with the information we choose to read, to discriminate our sources and the energy we elect to spend on a given event. As a lawyer, this piece not being legal commentary, I find myself speechless, and indeed exhausted. As a citizen, I can’t help but wonder how long such a mess can possibly last, as attracted as we are to the Truman Show- moment in our global history.

It’s impossible to approach coverage with a sensible mind: Trump’s travel ban and May’s immigration policies impact directly the refugee crisis. Brexit and Five Eyes agreements are in the way of international security. The war in Syria and the damage done to Iraq are impossible to remove from the actions of coalition member-states. We should not care about Trump, but we have to. The question is who will outlast whom.

the best of (one of the) worst

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2017 has been marked by symbolic images: of Nazi marches in the United States, genocide in Myanmar, destruction in Syria. Few photos that have featured in end-of-year round ups – Time, the New York Times – have illustrated hope, vision, progressive ideals. So has the written word, a literary record of how the disastrous 2016 has only extended into a nightmare that led to the UN Human Rights Commissioner to lose faith in his office’s capacity to protect and promote.

Below are ten articles that I’ve appreciated reading, that demonstrate commitment to defining what may come to be a historical era and to highlight the intolerable.

 

Making of an American Nazi – Luke O’Brien, The Atlantic

This profile is necessary because it highlights the various complexities of political identities over the course of one’s lifetime. Starting on the fringes of the left then moving completely across the spectrum to the point of terrifying entire communities, this very American Nazi illustrates the banner-carriers of the Trump era: angry, and needing direction, any direction, toward violence.

“The hospitals were slaughterhouses” – Louisa Loveluck and Zakaria Zakaria, Washington Post

If we are to document years-long systematic human rights violations, taking place amidst one of the most dangerous conflicts of this era, we must rely on a courageous local and international press to listen to victims and cross information with surviving on the ground. The scale of the torture inflicted upon thousands and thousands by Syrian regime in incommunicado prisons located inside hospitals is stomach-churning. This is one of many pieces that makes denial, especially on international scale, especially egregious.

The Uncounted – Azmat Khan and Anand Gopal, New York Times

Documenting the crimes committed in conflict requires a critical and stable approach to data collecting, and a strong sense of empathy transcribing survivor’s story.  If the Pentagon has attempted to clarify the discrepancies between its own investigations and claims by human rights agencies, the truth lies in those lives, those elements, those near-certainties – it lies with those uncounted, because of a category that no one bothered to reveal. The interactive piece compiled months of research and humanizes those we barely see as dots on a screen.

The Unclaimed Dead – Ryan Devereaux, The Intercept

For well over two years Devereaux has carried with him the weight of covering US border security and US immigration police, with increased risk and danger under an administration that has waged war on freedom of movement and right of entry. Border patrols, ICE raids, and the burden of undocumented immigrants feature prominently in the work that, again, is meant to highlight those never addressed, never spoken about out loud, those who died at the feet of an outdated and unlawful vision of state sovereignty littering those dark lines on bureaucratic maps.

A Journey Into the Destroyed Heart of the ISIS Capital – Martin Chulov, the Guardian

Strikes on Iraq were well covered, but strikes on Syria were seen as part of interference in an internal conflict and benefited from much less transparency. The destruction of Syrian civil spaces however, between Russian and coalition air drops, disappeared at an appalling rate, killing civilians even as they fled. A few months before most of the west declared victory on ISIS-held territories, and with Lebanon already processing the return of Syrian refugees, this illustrates that there is not much, if at all, to go back to.

The Ungrateful Refugee – Dina Nayen, the Guardian

Grasping the full picture of displacement is almost impossible, but we must never lose sight of what refugees and asylum seekers have suffered to reach the place where they can live rather than survive. The myth of the “good refugee” endures and perdures, requiring lack of political confrontation, immediate and unconditional gratitude, despite the rights granted to them under the 1951 Convention to fully participate in civil and political society where they have settled.

Of Course Ireland Was Going To Be a Thorn on the Side of Brexit – Dr. Alan Greene, his own blog

It was too late when most of the British commentariat realised that Northern Ireland was an unstable issue in Brexit negotiations underpinned by international legal obligations and the threat of ripping the extremely thin safety net of the peace process. For all the talk about the existence of the border between Ulster and the Republic, mostly from local commentators like Siobhan Fenton, the one that stuck was a half emotional, half resigned interdisciplinary take on border-living in our generation, stuck between the conflict and transition, by a legal scholar.

Freed From ISIS, Not the Torment – Rukmini Callimachi, New York Times

Of all the war crimes and crimes against humanity that ISIS has compiled since its existence, one element has been a painful reminder of the group’s capacity to commit genocide: sexual slavery. Women were routinely dehumanized, but industrially so when they belonged to a group they considered to be unworthy, such as Yazidi. With photos by Alex Kay Potter, this piece gives women who have lost everything a space and a relay to the world at large.

A Most American Terrorist – Rachel Kaadzi Gharisah, GQ

It’s a very long read that digs deep at the American heartland, at its myths, its intentionally disregarded history, and the figures that trailed Donald Trump’s run for presidency. Dylann Roof has been sentenced to the death penalty for the murder of 9 churchgoers in Charleston, SC, and his lank, sickly disposition casts a long shadow over 2017 America’s struggle with a more persistent and emboldened white supremacy.

UN Rights Chief Will Not Seek New Term “In Current Geopolitical Context”

I will end on this sour, bitter note that has shaken the foundations of many of my colleagues and their institutions: the UN Human Rights Commissioner, Zeid Ra’ad Al-Hussein, has circulated a memo explaining why he will not seek a new term at the Office of the High Commissioner for Human Rights (OHCHR) in Geneva: politics – and political context – have made it nearly impossible for human rights promotion and advocacy in 2017.

 

 

 

Against politeness

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Photo by Zach D. Roberts for Nation of Change.

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

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

Free speech absolutism in the age of Trump

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

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

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

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

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Photo by Zach D. Roberts for Nation of Change.

Polarizing attitudes and the Free Ride Theory

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

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

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

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

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

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.