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.

 

 

 

I heard you like black sites

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

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

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

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

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

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

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

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

lloyd

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

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

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

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.]

CIA torture and the Control Principle

Screen shot 2014-06-03 at 15.52.21

Portion of the report of the Gibson Inquiry, published on December 19, 2013. The Gibson Inquiry has closed document review in 2012. (1)

 

In 2010, he British High Court, represented by Lord Chief Justice John Thomas dismissed an appeal from the Foreign Secretary in the Binyam Mohamed case and addressed the issue of the UK intelligence services’ use of torture at the behest of the US War on Terror head on. At the time, this seemed a proper, relevant, and necessary illustration of the judiciary’s independence and its need to place executive authority under review. The UK had covered its counter-terrorism operations with a cloud of exemptions, derogations, and immunity since 2000. It went so far as amending laws to create new sanctions, using prerogatives as orders, classifying material which assisted in wrongdoing, and, in the case of the judicial branch, refusing to sit on the operations of a friendly nation-state on the theory that doing so would violate jus gentium—despite the government’s admission of “serious” violations of international law. The British High Court’s ruling was important then, but after the Gibson Inquiry into MI-5 / MI-6 collusion with the CIA closed in 2012, it is even more important now, when hypervigilance, hyperclassification, and multiplying extrajudicial orders give the impression that everything is out of our control, out of our sight, left thoroughly unchecked, and cannot be stopped.

The United States is justifiably focused on the circus-like saga surrounding the release of the Senate Select Committee on Intelligence’s CIA torture report. The very Senate Committee that created the 6,800-page report voted for its release, but a White House paralysed by the possible consequences of its release and a CIA unwilling to accept, reveal, investigate, prosecute, amend, reconcile, or apologize for its part in US torture still block and red-tape the report at every level. However, we seem to forget that 53 other nations were involved in the CIA’s rendition program. If supranational courts have forced some nations to face the reality of collusion and investigate the crimes committed by their leaders, others are in a permanent and affirmed state of denial. As for the UK, the CIA itself has acknowledged that its idea for world domination through torture could not have reached the heights it did without the help of Her Majesty’s most trusted agents. The pressure is on all the way through Westminster, and in the pages of the Telegraph.

Binyam Mohamed, from Ethiopia and UK national, detained at Guantanamo between 2004 and 2009. Here, upon his release. (via The Guardian)

 

The Binyam Mohamed ruling contains a lot that deserves a closer look, or at least another look, with the gift of hindsight. Ideologies, secrets, backdoors, and public acknowledgements—you can find it all if you address the Control Principle and uphold open justice.

 

Fighting secrecy in courts: PII certificates

Intelligence operations that touch on important foreign relations rarely suffer any disclosures. The few leaks that do happen are mostly unauthorized. Many are severely condemned, and almost all become a source of concern for both the subject of the disclosure, whose dubious actions are exposed to the world, and its source, who is vilified and criminalised. However, it is crucial to uphold the independence of the judiciary. The right to truth cannot take a back seat to foreign policy interests, especially in the face of gross human rights violations. Faced with the difficulty of ruling against a pressured and pressuring executive authority and the overarching need to address a case of torture so severe it involved at least four different sovereign states, the High Court weighed in on a conflict of principles that would define the legal battles surrounding the War on Terror: public interest versus lasting foreign cooperation.

1. Is there “uncertainty” in the US/UK relationship?

It is almost impossible to weigh the importance of the UK/US relationship while their intelligence cooperation agreement is still classified. UKUSA – born out of the 1944 “BRUSA Circuit” and famous for spawning the Five Eyes signals-intelligence alliance in 1955 – has defined a transatlantic partnership that predates the War on Terror, and even the Cold War. Seemingly intended to create a rapprochement between Europe and the US after World War II, UKUSA often isolates the rest of the continent to the benefit of a sprawling group of intelligence services —MI-5, MI-6, GCHQ, SAS—serving, aiding, and completely abetting the CIA in its activities overseas. It is preposterous to assume there is any sort of uncertainty in the US/UK relationship, but a legal decision is likely to make precedent if it somehow undermines the principles of secrecy and national security that currently define executive authority in counter-terrorism and military deployment. Such a ruling would undermine the common assumption that intelligence operations are the executive’s sole prerogative and that the judicial will defer to the executive in gauging their importance.

But the case of Binyam Mohamed proved that a need for judicial review was pressing, that the scope of the CIA rendition and torture program was so vast it could not stand to remain unchecked much longer. The pages-long ruling endlessly debates the hypothetical consequences of disclosing intelligence operations that led Binyam Mohamed’s detention at Guantanamo—the detention of a man who ceaselessly claimed to be innocent and suffered hell at the hands of agents never bound by habeas rules. Here is the core of the debate:

Making it “. . . clear that the US Government’s position is that, if the redacted paragraphs are made public, then the US Government will reevaluate its intelligence-sharing relationship with the UK with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the US Government might carry that threat out and this would seriously prejudice the national security of the UK.” (paragraph 87, quoting paragraph 62 of the judgement)

The Foreign Secretary asserted very clearly that the intelligence-sharing agreement is not necessarily based on a needs assessment and equality in providing information but is deeply rooted in complete codependence which he must protect above all else—including, it seems, from the judiciary’s authority over wrongdoing committed by services under executive power. In fourth judgement, the Court ruled that exposing the truth was one valid concern in a case that was arguably necessary to place in the public domain due to the grave violations it illustrated. However, the threat of the US turning its back on the UK due to a breach of trust by pulling out of UKUSA was an even concern than the condition of Binyam Mohamed and countless other victims of the War on Terror, from Kabul to Rabat, from Bucarest to Cuba. The fourth judgement made clear that executive interests supersede human rights law:

Whatever views may be held as to the continuing threat made by the Government of the US to prevent a short summary of the treatment of Mr. Mohamed being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the UK to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law . . . it must now be for the US Government to consider changing its position or itself putting that information into the public domain. (Para. 107)

Simply put, the consequences would be so grave to the UK that the Court refused to take such a responsibility and instead let the US decide whether to ultimately reveal—or maintain as classified—information in a case against a UK agency concerning UK agency wrongdoing and presented in a UK court of law.

US Secretary of State Hilary Clinton (l) and UK Foreign Secretary William Hague (r), July 2011 (Reuters)

This is the extent of the Control Principle. It is so unbelievably central to the mere survival of the imperialist island that it is willing to sacrifice fundamental rights and detach parts of its democratic principles in order to maintain core agreements that are essential to maintaining the executive authority in power. UKUSA is more than an intelligence sharing agreement; as its acronym suggests, it is an almost literal blood-sharing treaty on which the national security and foreign policy of the two most influential world powers is based. The fourth judgement made it clear that the Foreign Secretary would not risk weakening the UK’s life force just for some man whose identity was so unimportant that his alleged crimes barely warranted address in a court of law.

2. Is disclosure a breach of trust?

How much trust does the US and the UK vest in UKUSA, and what measures can hold operations created and carried out under its provisions accountable to justice?
According to the Control Principle, the country that provide information is responsible for its confidentiality, never the country that receives the information. If one end is closed, the other is open, by principle. In reality, however, this principle is often subject to political affiliations, bilateral agreements, and traditional respect for the classification and secrecy inherent to intelligence sharing protocols. A country that provided another with information might consider the receiving country revealing its methods, sources, or content a breach of bilateral agreements that could harm the vital foreign interests in the name of which the US and the UK have colluded on many recent foreign intelligence cases—the GCHQ/CIA case of a drone strike in Pakistan in Noor Khan v. Secretary of State, for example. LJ Thomas was right in asserting that, in matters of national security, the judicial branch defers to the executive, which is traditionally responsible for diplomatic, military, and intelligence decisions. However, the judicial also has a democratic right to check and balance powers granted to the executive—be they constitutional powers, like national security, or extraordinary powers beyond legislation in times of exemption, like counter terrorism—by intervening in time of wrongdoing. In this capacity, the judicial has the authority to place the control principle under review.

The difficulty in addressing the circumstances of Binyam Mohamed’s arrest, detention, interrogation, and torture lays with the fact doing so would reveal the working relationships between the UK and the US in the War on Terror. Weighing the confidentiality of intelligence-sharing protocols against the need for open justice, however, LJ Thomas carefully crafted what he referred to as “an exercise in judicial patience.” He detailed his very thought process based on questions of principle, on one hand, and previous jurisprudence justifying an extraordinary case of release and publication, on the other. The Foreign Secretary, William Hague, immediately submitted public immunity certificates in order to protect the confidentiality of UKUSA. Here, collusion between the UK and the US was more than an allegation; the court factually asserted it, with LJ Thomas himself referring to UKUSA, although not by name but by content, saying it was “no secret” that the text existed and that it was still in operation:

It is no secret—and indeed it has been an unbroken theme of the Foreign Secretary’s position—that there is a close intelligence sharing arrangement between the UK and the USA. If the redacted paragraphs do not themselves contain secret or intelligence material, and the intelligence-sharing arrangements between the UK and the USA are publicly declared, one may enquire why the redaction is necessary. In essence it comes to this: Unless the control principle prevails, the intelligence-sharing arrangements between the USA and the UK will be reviewed, and the following review may, not will, become less “productive” to presumably, the disadvantage of both countries, although I shall assume to the much greater disadvantage of the UK. The Foreign Secretary believes that such consequences will inevitably follow any contravention of the control principle, whatever the circumstances in which or the reasons for the court’s decision that it should be disapplied. The difficulty therefore arises from the control principle itself, and its application in troubled times.

Sir Richard Dearlove, chief of secret intelligence from 1999 to 2004, who recently made headlines for demanding more oversight of UK intelligence operations (2)

What LJ Thomas mentions may not be known conventionally or acknowledged officially, but it has been a constant in diplomatic relations for a long time, disseminated through conversations with journalists and in legal analyses: UKUSA exists, and both government have highlighted and perhaps even reinforced it in the “troubled times” that are the War on Terror. The control principle would allow the UK to breach UKUSA’s promises of confidentiality unless the Foreign Secretary could sufficiently prove that disclosure would be extremely damaging – not just the information itself, but the fact that a judicial court of the UK would release the information in its own sovereign right without the US’s prior consent. Jonathan Sumption QC, speaking on behalf of the Foreign Secretary, argued that such a disclosure would be “profoundly damaging to the interests of this country” and even “irresponsible”. As for the Foreign Secretary himself, in his Summary Grounds of Resistance to support his demand for public immunity, he never fell short of emphatic qualifiers:

. . . the claim was said to be “unarguable,” and the allegation that the UK government had been “mixed up” in, so as to facilitate it, the alleged wrongdoing (by USA authorities) is untrue”. It was averred that “no department or agency of the UK government was involved in the claimant’s alleged torture in Morocco and Afghanistan. Nor has the UK government done anything to facilitate the Claimant being subjected to torture.” The contention was effectively repeated in the Detailed Grounds of Resistance: “[T]he pleaded case on facilitation wholly fails.”

The Court refused Binyam Mohamed, who knew UK agents were present during his interrogation and may have facilitated his seizure, the right to access documents pertaining to his detention, in complete violation of open justice. Mohamed’s lawyers rooted their claim for disclosure of those documents—not only to the claimant but also to anyone having access to the ruling, which is everyone—in a 35-year-old principle in the case Norwich Pharmacal Co. Formulated in circumstances far different from the gruesome and harrowing complexities of the rendition program, that principle maintains that the perpetrator in a situation of facilitation, even involuntary, must cooperate in the course of justice:

If through no fault of his own a person gets mixed up in the tortious acts of others as to facilitate their wrongdoing, he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. . . . Justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

What Norwich defines is not even collusion. It does not require intent and does not even demand liability from the third party. Still, it view disclosure as justified and part of the course of reparative justice. The Foreign Secretary’s response seems disproportionate. He did not wish to to protect the public from finding out that the UK collaborated in torture. Rather, he simply did not wish to disclose information related to the intelligence activities of another nation—even intelligence activities inflicted on the body of a British national. What is now a question of “vital foreign interest” darkens and becomes more ominous by the minute: it seems that preserving UKUSA is more important than the rules of law that bind the Foreign Secretary—not only in his position of governance, but, as LJ Thomas said, as any other litigant. If Norwich applies to a severe case of premeditated collusion resulting in gross human rights violations, and it surely does, then it reinforces the demand for disclosure. Redacted paragraphs related to the surveillance and arrest of Binyam Mohamed show that the UK did not “involuntarily facilitate” the actions of the CIA. Rather, the CIA was aiding the UK in apprehending a suspect they believed was a threat to the UK because they believed threats to UK national security also posed threats to the US. This is how Binyam Mohamed ended up in Guantanamo Bay:

(i) The SyS and the SIS were interested in (Mr. Mohamed) because of his residence in the United Kingdom, his connection with suspected persons in the United Kingdom, the period of time spent in Pakistan and Afghanistan, those whom he was said to have been with and the gravity of the allegations made against him at the time.

(ii) We have no doubt that, on the basis of that information, the SIS and SyS were right to conclude that [Mr. Mohamed] was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. There was therefore every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to cooperate as fully as possible with the US authorities to that end.

The problem is that gathering intelligence in accordance with the rule of law excludes the concept of full cooperation with the US authorities when it comes to terrorist suspects in the War on Terror. Continuing:

(iii) It was clear from reports that (Mr. Mohamed) was held incommunicado from 10 April 2002 whilst a series of interviews were conducted by the US authorities in April 2002, during which he had asked for a lawyer and had been refused . . .

(ix) By 20 September 2002, it was clear to the SyS that (Mr, Mohamed) was being held at a covert location (either by the authorities of the United States or under direct control of the United States) which was not a US military facility, such as Bagram. It is clear to us that they knew that he was not in a regular US facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the US authorities had direct access to information being obtained from him.

Aerial view of the Salt Pit, a CIA black site just north of Kabul, Afghanistan

Of course, UKUSA is not solely responsible for what happened to Binyam Mohamed and countless others whose rights were denied to prosecute the War on Terror. The CIA rendition program encompassed 54 countries, including the United States, all of which cooperated willfully and with the acquiescence of local authorities. To various degrees, all 54 work under intelligence sharing agreements similar to UKUSA. What makes UKUSA so special is the very specific nature of the diplomatic, military, political, and legal relations between the UK and the US—a deep entrenchment enshrined in an agreement dating initially to 1940. Each country has proved to be invaluable to the other. They are, in fact, almost incestuous. If current relations between the UK and the European Court of Human Rights (ECtHR) are more than glacial, the government can only halt the rule of law and judicial review of intelligence-sharing agreements using political and diplomatic protocols. The political normalcy of “vital foreign interests” regarding intelligence gathering and sharing are now even more important to the activities exercised and practiced by the executive of both nations involved in the bilateral agreement. The content of UKUSA is classified. Having been placed to the forefront of current conversation due to being the genesis of the Five Eyes program, UKUSA contains much more—and the very fact that it exists may in itself become an objection to the understanding that intelligence principles are sacred and far beyond the concept of public interest.

The language that the Foreign Secretary used to justify his public immunity certificate may be vague in rhetoric, but it is vastly telling in its interpretation. In paragraph 45 of the ruling, LJ Thomas contemplates the arguments the government brought forward and questions the very nature of UK-USA relations, so necessary that they can apparently destroy political stability:

The Foreign Secretary’s first PII certificate referred to the uncertainty which would be introduced into the working relationship between this country and the USA if the disclosure were ordered. The second PII certificate stated in terms that “disclosure of US intelligence information by order of our Courts would breach the trust and the fundamental requirement for confidentiality that lies at the heart of the UK’s liaison relationship with the US intelligence agencies. . . . It is not simply confidentiality and the secrecy of intelligence material that is an issue, however, but also the issue of the control that one government has over the intelligence information that it shares with another government in the expectation of confidentiality. . . . Breaching this principle will have significant implications that run far more broadly than this case.”

It is difficult at this stage not to simply demand the full disclosure of UKUSA in order to understand these “significant implications,” highlighted so strongly that they almost demand that we ask the question of what exactly is at stake. LJ Thomas’s ruling precipitated a hypocritical, voluntary disclosure of the 1955 version of the agreement, displayed on the NSA website as a quaint historical relic from the early days of the Cold War. The second part of this paragraph seems to let LJ Thomas know that he is facing something that is much bigger than his actual mandate:

The third PII certificate, acknowledging that the UK courts had power “in principle to disclose information provided by a foreign liaison service or derived from such information without the consent of the provider (and even against its expressed will),” concluded that the exercise of the power would be “extraordinary.” That was close to the Foreign Secretary’s assertion in the meeting with Secretary of State Clinton on 12 May that “the British Government would continue to make the case that it continued to be an inviolable principle of intelligence co-operation that we did not give away other people’s secrets.” An “inviolable” principle does not appear to acknowledge or permit any exceptions. Expressed in this way, the control principle assumes a level of primacy which diminishes the responsibility of the court as the ultimate decision-marker virtually to extinction.

LJ Thomas, who does not sound amused in the slightest by the blood promises exchanged between two Foreign Affairs peers, essentially understands that intelligence supersedes the rule of law in a way that can suffer no judicial review. But if the “international conspiracy” of the CIA rendition program is not extraordinary then what is?

CIA rendition map trajectory: including black sites, refuel stops, and detention zones (Europe, North Africa). Chart by Trevor Paglen

 

“the exercise of the control principle would be extraordinary.”

This decision matters because of the control principle that prevents disclosure on one end while authorizing it — in principle — on the other. When it comes to rendition and torture programs, the tendency to cover accessed, accessible, and processed information is US-centric. As the CIA’s activities have came under increasing congressional review, politicians and journalists have largely framed them as matters of strict American concern, and, more importantly, American accountability. They dominate US-based media, which perceive them only through an American prism. As a result, politicians and public alike have come to see issues like how the government has classified the CIA torture report and which branch of government has the hypothetical authority to release it only as US problem. Most media outlets completely omit the 53 other sovereign nation-states that cooperated with the CIA, with the exception of a handful of unconventional journalists unafraid of tapping into raw sources.

But investigations all over the world have released information about the program in various batches. US news outlets initiated a few—most notably a 2007 report from ABC news that itself precipitated investigations in Lithuania. The UK has managed to keep the degree of its involvement in the CIA torture program largely under wraps for two reasons. First, legislative review has been slow because many MPs do not possess the security clearance necessary to access relevant material on MI-6, MI-5 activities, hindering legislative review. Second, it is impossible for UK courts to sit on the activities, especially intelligence-related activities, of other sovereign states. If the latter is a well-enshrined principle of international law, the former is a worrisome indictment of an overwhelming national security principle overriding basic democratic checks and balances. This is a sore point in the UK, where judicial deference in matters of national security has been put to the test, each time with respect to UKUSA.

Put shortly, it might be possible to release information on CIA activities by looking at what the CIA requested from other agencies.

Screen shot 2014-05-29 at 07.42.30

The distrust inherent in intelligence communities raises the question of trust not between the government and the governed, but between governments themselves. Failing to uphold that secrecy by disclosing another nation’s intelligence, in violation of a classified intelligence-sharing agreement, would effectively destroy that agreement and undermine the credibility of the intelligence both nations share. If a nation sees its partner in an intelligence-sharing agreement as untrustworthy then it is unlikely to share intelligence high quality or value. A study on intelligence sharing in counter-terrorism by J. Walsh explains this in some detail:

. . . This understandable concern with security opens the possibility that shared intelligence might be of questionable reliability. States sometimes forgo the benefits they would accrue from defection in the short run in order to maintain their reputation for honest dealing. But concerns about security also complicate efforts to reassure partners by undertaking publicly observable commitments that, if violated, would undermine a government’s reputation. The details of most intelligence sharing agreements are kept secret from third parties. This makes it difficult for one partner to harm another’s reputation through an accusation of defection, since doing so necessitates revealing details about the intelligence that has or was supposed to have been shared.

The question remains as to whether the US would consider a judicial review of the intelligence—not the UKUSA intelligence agreement itself—to be a violation of the UKUSA agreement if it is part of a domestic judicial review rather than an investigation by a supranational or international court. The Foreign Secretary will not wait for an answer to that question. Defection is an issue of the state’s reliability at home and abroad. As the above table from Walsh’s study points out, the “transaction cost” is low because the US sees EU nations as trustworthy, reliable, and committed to achieving its same goals in the the War on Terror. After all, anything that could be a potential threat to the US could also threaten EU nations. From the nature of intelligence sharing and intelligence operations between the US and EU states, Walsh concludes,

. . . the gains that each state secures from sharing are larger than the expected cost of defection by the other state. Sharing should be straightforward to arrange here, and the participating states should focus on developing technical mechanisms—such as shared databases, common security procedures, joint training of personnel, and so on- that allows them to share information efficiently.

Applying this to the rendition program definitely extends to way more than collecting surveillance data: It is about the financial cost of deploying specially trained troops, training local armed forces (from law enforcement to paramilitaries), and sharing a defence apparatus. In short, allied states demand support not just from intelligence agencies but also from state departments, defence departments, and judicial departments—branches of the executive normally separated in their actions and subjected to different budgets.

Attempts to obtain documents related to CIA activities will fail outside of the US, whether they are pursued through legislative or judicial review. But the CIA never worked alone. A 2004 internal report requested by the Office of General Counsel acknowledge that the agency’s torture and rendition programs could not have worked as well as they did had so many other nations not collaborated so willingly. The extent of collaboration in Europe is staggering: Two reports—by rapporteurs Marty in 2006 and Fava in 2007—managed to track down rendition flights, prison names, and even the duration of detention. Most of what we actually know of the CIA’s torture program is in the possession of the EU Parliament and the European Court of Human Rights, where, in December 2013, Ben Emmerson referred to the program as “the largest international conspiracy.” Assuming that Sen. Dianne Feinstein holds and controls the only body of information regarding the torture program is a mistake. Collaborating agencies can disclose what the CIA will not, and nations in which the CIA operated can request it for review. If the CIA’s High-Value Detainee program simplistically could evade responsibility through extraterritoriality, it may have committed the expensive mistake of ignoring the importance future administrations in the countries where it operated would place on the right to truth.

What matters in the intelligence-sharing relationship is who in a bilateral agreement has the power, the control. Who has the resources, political and financial, to ensure compliance every step of the way. Who, in short, is the dominant state. Exercising the control principle on the UK front would result in controlled, lawful release of information about the CIA rendition program. That would imply that the UK is the dominant state in the US-UK relationship—that it has full sovereignty and dominance over its intelligence agencies and is capable of acting unilaterally and individually without asking for the CIA’s prior consent. In a paragraph cited above, however, Thomas presumes that violating UKUSA would be more damaging to the UK. That effectively means that the CIA controls the UK’s compliance in its counter-terrorism operations:

Dominant states must pay costs to manage a hierarchy as well. They must devote resources to closely monitoring subordinates’ compliance, to providing the benefits outlined in their agreement to share, and to punishing defection. For one state to effectively play the role of the dominant partner, it must control considerable political and economic resources of value to the subordinate state. Such power resources allow the dominant state to offer more valuable benefits and to more credibly threaten effective punishment when it detects defection. . . . Agreeing to . . . riskier forms of cooperation signals to the subordinate that the dominant state is reasonably secure that their hierarchical arrangement will work effectively.

Since UKUSA is still classified, the door is wide open for wild speculation on what the credible punishment can be in case of defection—or assimilated defection, should a Foreign Secretary fail to obtain a PII certificate like in the Binyam Mohamed case. More relevant, however, is the extent to which the UK and other states cooperated with the CIA’s torture and rendition program. Providing intelligence, detaching agents, deploying armed forces, and providing resources both material (planes, secure landings trips in airports) and political (corruption of governing agents to ensure silence, creation of prisons outside the legal system, interference and tampering with evidence during inquiries) all count as “riskier forms of cooperation.” As the dominant state, the US must be confident in its hierarchical system. But why? In order to answer that question, we need to see the UKUSA agreement.

Screen shot 2014-06-03 at 16.31.25

First page of the 1955 UKUSA Agreement, declassified in 2010. (3)

Can we look elsewhere for disclosure of CIA activities under the rendition program?

We also need subordinate states to exercise their own right of control. As long as the executive branch sees independent judicial review as a sign of defection, arguments like those put forward by the Foreign Secretary will always halt investigation and attempt to either scare judges into demanding release of information or maintain permanent confidentiality by creating closed submissions and closed rulings. If secret courts provide secret rulings on secret documentation, the end result will be the same—democratic accountability for violations committed by intelligence agencies will remain at absolutely zero.

Requesting accountability is a daunting, seemingly endless task. Patching together information on systematic and widespread human rights violations on each corner of the globe is a harrowing, Kafkaesque game of fill-in-the-blanks, with officials flat-out denying implication in the face of irrefutable evidence. And there is always the horrifying possibility of finding more than we dug for. Looking at the rendition and torture programs through a single national prism focuses only on a tiny portion of what that contains. Ultimately, it is a disservice to the hope for international prosecution.

Waiting for local judicial administrations to run their course, and fall on the desk of a judge with Thomas’s value system, may sound pointless. However, it might prove more effective than waiting for the US Congress to hold its previous administrations to account. If the EU Parliament reports were comprehensive enough to launch investigations into member-states, the path to figure out the extent of cooperation in nations still in denial is to find a way, through open justice, to release intelligence-sharing agreements. As LJ Thomas writes (emphasis mine),

[T]he confidentiality principle is indeed subject to the clear limitation that the government and intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so.

Although the Foreign Secretary accepts that the principle is not absolute, he contends that, having made his own examination of the overall interests of justice, the control principle should be upheld. . . . I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgement . . . that should be that. However, although in the context of public safety it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court.

Some in both the UK and the US have put forward that any disclosure of any kind based on any value or principle, be it personal or enshrined in law, can’t justified because of national security concerns. It is however important to ensure that the exercise of open justice and national security are not mutually exclusive. No one in the business of holding intelligence agencies legally accountable for their actions has ever contended that national security is a baseless construct for the containment of outside insurgency dating to imperialistic times. Global terrorism is real, and threats exist. We have thwarted some, and we have avoided others. But in an era where the word “terrorism” has been rendered virtually meaningless from overuse and the phrase “national security” has been thrown at both congressional and judicial reviews to order members of government’s silence and assent, it is hardly radical to request thorough oversight of counter-terrorism operations. In fact, it is an act of patriotism that highly regards the safety and security of fellow citizens. State hypervigilance is never a sign of a healthy democracy or a transparent society. It is a sign of paranoia that conflates of security with the status quo. An independent legislative review complete with muscular courts can restore not only political normalcy with temporary derogations but also help disclose information safely and in the interest of domestic prosecution of government abuses.

The CIA torture program has encompassed so many administrations and requested the skills and assets of so many agents worldwide that its investigation cannot be restricted to the US. Other states in intelligence-sharing agreements with the US must replicate Thomas’s actions. Each and every one of these countries has various degrees of dominance and subordination with the US and can exercise the control principle to release information on their activities and CIA demands should the US never be able to release its report. When it comes to intelligence sharing agreements, the US will lose its position of dominance.

 

 

 

(1). The Gibson Inquiry’s report has proved unsatisfactory on many levels. On the subject of rendition, it considers that the Marty and Fava reports are inconclusive and facts are unchecked. As the Inquiry itself stated, “The report does not find facts or reach conclusions. It is based on the scrutiny of documents, no witness has yet had the opportunity to explain or add to this information”. It is, therefore, thoroughly incomplete. Sir Peter Gibson himself acknowledged the report raised just as many questions.

(2). In an ironic twist surely not lost on anyone, Dearlove was referred to as the UK’s “own Snowden” in July 2013, when he revealed being in the process of penning a book detailing the events leading up to the Iraq war from his own perspective. Given the stalled state of the Chilcot Inquiry, Dearlove’s book could be a bombshell. A year later, Dearlove then demands more oversight for MI-6 and MI-5 operations, right after Sir Mark, ISC, was summoned to the Home Affairs Committee.

(3). The history of UKUSA from 1943 to 1955 is now available on the NSA website since 2010. The full declassified .pdf is here – Cold War centric infographics that seem to imply UKUSA is a relic of McCarthyism are on the National Archives website.

In remission: Miranda v Home Secretary

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

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

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

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

UK High Court of Justice

Powers granted under Schedule 7, surveillance and improper purpose

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

David Miranda was detained for 9 hours.

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

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

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

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

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

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

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

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

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

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

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

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

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

Glenn Greenwald and David Miranda, after his detention at Heathrow

Disproportionality of a Schedule 7 inspection

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

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

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

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

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

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

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

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

a terrorist Washington Metro bus

Article 10 compliance

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

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

I have no words.

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

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

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

(2) Action falls within this subsection if it-

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

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

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

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

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

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

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

preventing the disclosure of information received in confidence

Greenwald with two terrorist dogs

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

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

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

seriously, get ready.

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

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

Still Article 10 compliant, Lord Justice Laws?

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

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

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

Rented world

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

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

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

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

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