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.

52187-622609-shining_bike

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.

the-shining-danny-sweater

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 ]

Safe European Home: the Glenn Greenwald divide

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

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

photo-7

Glenn Greenwald addressing the European Parliament Civil Liberties Committee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eleanor Rigby: who has the “right authority” in Northern Ireland?

In its continuous and Sisyphean effort to overcome sectarian violence in Northern Ireland, the Stormont created a commission investigating parades and their importance to local cultural and social life. It appointed Theresa Villiers, Secretary of State, to not only make the decisions as to which parades – loyalist and nationalist combined – were to pass through Northern Irish streets, taking into account local sensitivities and safety concerns. Which is to say, essentially, that Theresa Villiers has been appointed to single-handedly fix the public representation of the northern Irish post-conflict divide in one fell swoop at the head of one commission. I would not want to be Theresa Villiers right now. Dominating news both local and national as a person struggling to find balance and sacrificing her personal life, people seem to forget that Villiers’ job is not an issue of public circulation. It’s an issue of deciding the future of Northern Ireland. It’s terribly unfair and frankly sad to see a woman being empowered with such a daunting and historically-loaded task, while being virtually lapidated for not being immediately successful – or worse, for even being there in the first place. A few things need to be said about Villiers and about her role.

The Parade Commission is more than necessary, no matter how many people feel threatened by its creation.

Parades are an integral part of life in Northern Ireland. They are celebrations, commemorations, anniversaries. That they are to be investigated by an executive body and perhaps halted, suspended or even cancelled is a daunting prospect for community leaders. It means effectively ridding their neighborhood of their annual or bi annual festivities, that they have held in the region for centuries. The Parade Commission is precisely attempting to find the fault line between celebration of what is essentially social identity – but also political identity. There is nothing about any individual placement in Northern Ireland within a certain community that does not hold political bearings. Because those parades are doing just that – parading, which means putting on display for all to see – those political beliefs, it is absolutely important to maintain the peace and safety not only of those parading, but also by those in the communities affected. The nature of most Northern Irish cities – a few blocks held together by zip codes and two way streets, but separated by confession and affiliation – means that the trajectory of the parade is paramount to ensuring stability.

Interface zones, however, can claim belonging to either affiliation, and refuse to be taken hostage by one or the other. And instead of staying away from interface zones, parades insist on walking down those streets and alleys – like Crumlin Road – in an act of defiance that has been characterized as a “culture war”, also known in clear language as “political provocation”. The nature of political identity in Northern Ireland is so not clearly established and left to the two domineering parties, Sinn Fein and DUP, extremes in their own rights, governing over their constituents like democracy and home rule were merely pawns to their game of legitimacy and political bullying. 15 years after the peace agreement, and 8 years after the official IRA ceasefire, this endless and violent game of chess is played during Parade season, from April to October, in a relentless display of either victimization or alleged, self-absorbed superiority. Both narratives are so ensconced in their own beliefs that the very idea of togetherness and respect of someone else’s affiliation is not a possibility; parading means existing, and essence preceded the existence, therefore parading is only the pragmatic, physical embodiment of the idea that gives community leaders a reason to get up in the morning and survey their meek kingdom safe in the fact that neither Dublin nor London will ever intervene again (… but maybe the United States will.)

But political legitimacy through democratic process must be restored. The Parade Commission and in extenso Theresa Villiers must find a way to speak louder than Orangemen flying Union Jacks over the separation wall in Ardoyne; louder than former IRA members commemorating bombers – and not their victims – in Castlederg. And it’s not about screaming or slamming their fists or burning a bigger fire on the Twelfth; it’s about both communities realizing that there is an authority superior to that of their quarrel, which is democratically elected representatives in Stormont. The Parade Commission is the supervising, overseeing institution that must be able to take up action when foreseeing conflict or, sadly, in the wake of a five-days long riot.

subtle

This is not “cultural war”. This is just another expression of conflict.

The displacement of the fight over a different platform. The language is the same, the actors are the same, and the territory is also the same, isolating even further those wishing to finally transition from a conflict that will never, ever end if we give it any legitimacy superior to that of the Home Rule it took Northern Ireland so long to achieve. It’s not about mourning the complete independence Eire was never going to grant the five counties; it’s not about desperately grasping the last fine threads linking this morsel of a tiny island to the burning ashes of an empire. But the blond lead the blind, and belonging to entities that no longer exist or are out of reach is better than not belonging at all, and be nobody’s child. And we fight again, resurrecting the ghosts of the Battle of the Boyne and fondly remembering the dull sound of exploded devices in 1973. Northern Ireland is populated by one million people, and twice as many ghosts, haunting the streets and creeping through every orange banner and Gaelic declaration.

As such, the Parade Commission is more than simply regulating pathways and costumes and allowing banners and symbols. It is about deciding whether said symbols and myths are worth destroying property and infusing inhabitants with the overpowering threat of violence as soon as July is around the corner. There is more fear in what may come that what actually takes place anymore; and this threat is ever present, to the point of stopping Belfast’s Lord Mayor from visiting his own park. This generation knows that IRA or UVF threats can still be carried once called, and remembers grimly the aftermaths. So does my generation. And, perhaps, still, the generation coming next. The Parade Commission, in its ever present role, is actually one truth commission in its own right: is it safe yet to express one’s identity in Northern Ireland? From 1998 on, we are still new. We are still hesitating, in the dark, our eyes barely open. And we can only construct our identity in opposition to someone else’s. Once we run out of stones to throw at windows on Woodvale Road, we turn against Villiers, demeaning her position, calling her back from leave after the loss of a close one, and delegitimize her work. It is important for community leaders to constantly remind the population that the authority does not reside in pawns in the Stormont, that they can easily defeat, through simply interrupting Villiers’ work or even resorting to physical violence against elected officials. Parades are a display of identity. Parades are what comes first before the legion arrives as reclaim what is historically theirs to claim: Sinn Fein in its West Belfast fortress, DUP / UVF across the river after Short Strand, UDA all over Shore Road up until Carrickfergus. None expand; but all maintain position and defeat anyone daring to believe Belfast is a homogeneous entity that ought to be governed as one. Bombs are defused and dismantled at least twice a week; they don’t explode as much. But the violence that resides in belittling the democratic process is still there.

What is striking however is how alone Theresa Villiers is.

She is not backed by staff or any other MLA in Stormont. She, herself, must find a way out among the cacophony of disastrous Orange events victimizing themselves in the face of an ever so ephemeral republican menace, or facing a stern but solid IRA / Sinn Fein silence that just won’t budge. She alone is tasked to decide how Northern Ireland will exist and perform its ancient rites in the respect of the law. It is clear that it won’t happen, and it is clear she can not do it herself. Unless Theresa Villiers is backed by community mediators that will have access to community leaders and act as an effective and efficient diplomatic liaison between, say, Ardoyne and the Stormont, the political branch of armed forces will still govern and decide of the life of Belfast inhabitants, from their bus routes to where their children attend school. Home Rule was supposed to stop the cacophony of paramilitary supervision, on one side defending the “oppressed” on the other backing up the “loyalists”. The Parade Commission governs over all of Belfast, from the Black Mountains to Bangor. It governs all of Derry, from the top of the Bogside to the Foyle riverbanks. It has authority over Portadown and Ballymena the way it does Castlederg. Home Rule and a peace agreement meant that we would agree, collectively, decide that Stormont would be where cultural issues would be discussed. That was the day Northern Ireland had the opportunity to emerge as “we” as opposed to a “us vs them”. Northern Ireland is alone. Northern Ireland needs to stop tearing at itself.

UTV captioned this image “PSNI fatigued by public disorder”. Belfast riots, 2013

If Theresa Villiers is indeed unable to stop the IRA parade in Castlederg, despite a pretty wide-ranging call to hold the so-called festivities, maybe it is time to publicly acknowledge that the Stormont has failed to create and impose its political legitimacy upon Ulster. It has failed to raise its voice against those screaming for violence and heeding the call in the name of an oppressed ancestry. There are other ways to commemorate and remember. In the last few weeks calls for public and judicial inquiries into murders committed at the beginning of the Troubles – spanning 1973 – 1976 for now – have created the possibility of more truth and reconciliation than the simple Bloody Sunday Inquiry, which in itself was a major piece of data gathering, testimonial, witnesses hearings, with the Damocles sword of collusion heading over everyone’s head. Northern Ireland is pressing the fast forward button. If every transitional society goes through a phase of a dim, seemingly stable lull during which no conflict is exploding but no progress is made, 2013 will be the year when Ulster will rise from its judicial slumber an address the underlying issues of political identity across the board. There is a willingness, on the part of victims’ families, not to necessarily place a blame, but to at least know what happened to their loved ones, and what role they played in a war that has plagued the western European continent for centuries.

Home Rule was the promise to have a political identity that would not be color-coded, that would not have its own specific language, that would not have to be confined on either side of the Peace Line. It was supposed to be a Parliament for each and every citizen with the full weight of their civil right under domestic, european and international law. It was the idea that Northern  Ireland did not have to be ruled according to fiefdoms, exist through the mere prism of violence, and express itself in a rhetoric that would be inclusive, not divisive. As I wrote before, the Shared Future Agreement has been shoved down our throats, and it was too much, too fast, too soon. The blossoming number of inquiries in the last few months, from Kingsmills to Omagh, proves that the victims of the conflict may be ready to place their future in the hands of an institution that is not local, military-funded or geographically located, but belonging to all of those in Northern Ireland. It was finally ready not to investigate murders, disappearances and blasts through vigilantism but through judicial and lawful means. It is hope. It is the maturity we may have finally acquired.

If Parades can not be anything more than commemorating a long lost history belonging to a distant past that no longer hurts anyone, then there will be no need for a Commission, for the bullying of Theresa Villiers, or for a sterile conversation constantly hitting a wall or repeating itself like a skipped disc. There will forever be a question of tit-for-tat; if Parade A is allowed, counter-Parade B shall not be outlawed, and will not tolerate any regulation of its usual path. If Parade B is asked to step down, Parade A will gloat over its supposed supremacy and therefore “cultural” authority over Parade B. There is always a parade and a counter parade for as long as Parades have been the drum-marching band rhythm of Belfast and surrounding cities; there has always been a streak of mindless and reckless sectarian violence in its forebearance and in its wake. Paraders must either submit to the Parade Commission in its sometimes awkward attempt to guide political sensitivities, or simply accept to suspend their existence until an agreement is fully reached between community leaders.

Shining city on a hill: Stormont Castle, Belfast

Who has the “right authority” in Northern Ireland?

If the government does not – or is “not capable” – to decide what IRA former-or-not members will feel like doing on their turf, aren’t we retreating back to the pre-ceasefire days? Wasn’t the point of a peace agreement to create an entity that would supersede territorial fatalities in order to promote inclusion and equality? Nominating someone else in lieu of Theresa Villiers is meaningless; she is not the problem, she just tried to be a part of the solution. Getting rid of the Parade Commission will simply be another detour on the sharply edged road to conflict resolution. Reconciliation is nowhere near if we can not even agree on the simple fact that no political identity is more legitimate in its existence than another, and that no political entity is within its right to inflict childish provocation over another. We talk about governance while separation walls are still erected.

Either we empower Theresa Villiers and accept to submit to her decisions, while still allowing democracy to flourish through constructive criticism and peaceful submission of new ideas, or we simply accept that Home Rule has failed, and governing Northern Ireland is just as hard as trying to make an orange tree bloom on its soil.

Remote Control: On Interventionism, Part Deux

Yesterday, the Obama administration confirmed that they would support the Syrian rebels by providing weapons. This is not interventionism, they said. This morning, the New York Times publishes an article supposed to decipher and critically analyze the decision. It miserably fails at both; what is crucial in the decision – passing interventionism, even by proxy, as legit under the Kouchner doctrine – is passed over because the New York Times does not understand the difference, however clearly stated. Three points in the article are object to contention.

Here’s pictorial evidence of my reaction reading Mark Landler’s article

1. Samantha Power does not seem to understand the purpose of her job.

Samantha Power recently made headlines in the small world of foreign policy analysts by severing diplomatic ties with Venezuela with a giant pair of scissors handed to her by the State Department. She claimed that Venezuela was dismantling civil society (as defined by Hilary Clinton in a 2010 speech in Poland). It was already bad enough that Power suddenly removed an entire country from a list for allegedly doing what the Obama administration has been pro-actively doing at home; but the world of diplomatic emissaries works in semi-mysterious ways. As the administration envoy to the United Nations, Samantha Power will bear the responsibility of sitting at the Security Council and make decisions that will impact billions of people in situation of imminent or already existing threat of political violence. There was no question more important than the one asked by Bob Corker (R-TN). Yet, as an envoy to the United Nations, she replied that the doctrine was not a legally superior authority than the one of US foreign policy.

That’s not a good start, Samantha.

While no one is questioning the national sovereignty of the United States, any member of the UNSC, or any member state for that matter, principles of the United Nations imply that it behooves the member state to apply them when requested by a majority vote. By claiming that foreign policy dominates over international law – or doctrine – Samantha Power expressed, in one sentence, the very pervasive flip side of the intervention coin: that there is hardly any intervention made solely on the basis of humanitarian, selfless higher duty incumbent to the state to save civilians in the line of fire. The matters of interest and national prevalence over intervention are precisely why R2P (“responsibility to protect”) was decided, declared, and implemented in a 2001 commission on state sovereignty and intervention (ICISS).

Corker is not stupid. There are many conflicts in which the US could have easily intervened and manifested its own interest: Egypt and Syria are two of them. But instead, the US has decided that it will, in the name of preemptive self-defense (sic) bomb children in Yemen and face the “thorny issue” in Northern Ireland. What is incumbent to Samantha Power is to justify what is only perceived by the international community as far overreach in military power and a tendency to police what is outside and clearly beyond the limits of international law. What’s fascinating, however, is precisely using international law to justify military intervention – by proxy. Which brings us to the next point.

Here, Samantha. You can borrow my copy.

Here, Samantha. You can borrow my copy.

2. “The responsibility to protect” doctrine is not obscure.

In fact, not only is it pretty clear, but it is also pretty easily available everywhere. It is, as a matter of fact, idealistic, as Mark Landler pointed out; much of the principles guarding international law are, because principles are, by definition, moral codes of conduct. It’s not obscure (it’s the dictionary). The complexity resides not in the doctrine itself, but in the way it applies to the foreign policy of the member state nominating Samantha Power in a position of diplomatic dominance. There are precisely six criteria of military intervention under the Responsibility To Protect: right authority, just cause, right intention, last resort, proportional means and reasonable prospects. Those criteria are clearly listed in section 4.16. In the context of the United States intervening in Syria, two of those criteria can be raised as an issue and could potentially be a hindrance to the Obama Administration using R2P to cover the fact that they are arming one side of a conflict and taking pro-active part into what is currently a civil war. The first one, the “lesser” issue of the two, if you will, is right intention. There is no discussion regarding just cause in Syria; the body count in itself, as well as Bachar Al-Assad’s track record of constantly violating human rights, could be just cause. But with all intervention, timing is everything. Per the rules of responsibility to protect (4.33):

(…) Any use of military force that aims from the outset, for example, for the alteration of borders or the advancement of a particular combatant group’s claim to self-determination, cannot be justified. Overthrow of regimes is not, as such, a legitimate objective, although disabling that regime’s capacity to harm its own people may be essential to discharging the mandate of protection – and what is necessary to achieve that disabling will vary from case to case. (…) There should be a clear commitment from the outset to returning the territory to its sovereign owner at the conclusion of hostilities, or if that is not possible, administering it on an interim basis under UN auspices.

Clearly right intention has never been considered if only for a split second when discussing foreign policy at all in the last twelve years. This considered, the definition itself raises the complex issue of aiding a group to achieve self-determination. That is the goal of the Syrian rebels: to overthrow Al-Assad and create a new regime under which torture and constant policing will no longer be an everyday occurrance. There is perhaps no greater nor noble aim than to achieve the principle laid in Article 1 (2) of the UN Charter; same article that justified revolutions under Soviet rule, and that is still screamed out from rooftops in occupied palestinian territories today. Self-determination meant the end of all colonisation; but as sovereignty is attacked by intervention, who or what is qualified and legally authorized to decide which combatant party is holding the flame of self-determination? If, politically, the question of Syria is relatively simple, international law does not authorize “the advancement of a particular combatant group”. In short, if one state believes the Syrian rebels should be given advantage of firepower over the regime, they can choose not to invoke international law to justify their interventionism. They can call it interventionism, not responsibility to protect. You know. Which is what it is. Interventionism.

The second criteria that is perhaps the real “thorny issue” on the United Nations’ side is the question of authority. Who has the authority to decide what a sovereign state can and cannot do within its own borders? Article 2(4) of the UN Charter answers plain and simple that no other state can be legally involved in another state’s handling of its own affairs. Creating a supranational power as wide-range and far-reaching as the United Nations forced a whole article worth of reassurance. The writers of the R2P report are aware that the criteria on which military intervention is legally justified are tough “because the action proposed is itself extreme: military intervention means not only an intrusion into a sovereign state, but an intrusion involving the use of deadly force, on a potentially massive scale.” There is no precision on what constitutes strict domestic jurisdiction in the UN Charter; the fundamental text was meant to be the bedrock of the international institution the legislation was to lay on, not the law itself. The Security Council (UNSC) reserves itself in Articles 41 & 42 the right to take action on “any threat to the peace, breach of peace, or act of aggression”. There is no further mention of a possible authority being invested in one specific state. No state can individually intervene in one given conflict unless specifically authorized by the UNSC, being supervised and controlled by the UNSC, and forming an international armed force created by the UNSC. If anything, the UNSC is a substitution to individual nation-state intervention.

The UNSC fails. A lot. Sometimes it acts, but fails in its results. It would be completely unrealistic, especially in the current climate, to expect the UNSC to solve each and every problem the world encounters in its attempt to not only reach global security, but achieve total independence from former Cold War powers. As we see, the way it cyclically does, the rise of nationalism fire the spark of conflict, the authority of the UNSC is sometimes dispensed to what it calls “regional powers” – which more often than not refers to NATO. If major concerns were raised over NATO’s intervention in Kosovo, their justification of the conflict spilling over onto NATO member states’ borders was later legitimized. This is interventionism justified by containment. There is an open door, however, of jurisprudence of the UNSC on not only authorizing regional organisations to act against non-member states, but even to justify their intervention post facto. This strange addendum to criminal law – which has a non-retroactive principle – is explained in section 6.35:

The UN Charter recognizes legitimate roles for regional organisations and regional arrangements in Chapter VIII. In strict terms (…) the letter of the Charter requires action by regional organisations always to be subject to prior authorization from the Security Council. (…) There are recent cases when approval has been sought ex post facto (Liberia and Sierra Leone), and there may be certain leeway for future action in this regard.

Again, this is no way authorizes military action by individual member states. There is talk of the grave consequences of inaction, and the Syrian population has been suffering them every single day for the past two years and a half. It is time to consider action in Syria and stop being afraid of any possible intervention in the region. It is already spilling over and drowning neighbor states into its own blood. Syrian refugees are flooding over into Iraq. Lebanon’s Hezbollah has taken upon itself to intervene, and is now penalized by the European Union. Israel is upset at Hezbollah intervening. This conflict, both in its duration and its long term implication for the region, has to be stopped. Whether it is incumbent, as Power said, to the United States to effectively improvise on their means of intervention and skirt around international law by not sending troops but arming local rebels is up for debate. Syrian rebels have made previous requests for military back-up in the form of weapons to the European Union, to no avail. This is, however, definitely a form of military intervention, however avoiding the risks named in the report, meaning, occupation of territory, and foreign overthrowing of the regime. If Al-Assad is leaving is throne of bared naked human bones, it will be by and through the hand of his own people. That is self-determination in effect, in all the powerful force of the UN Charter’s “all necessary means“.

But this is not, and can not constitute a responsibility to protect. This is a responsibility to intervene, and the conditions of intervention are laid bare. It is now up to the Security Council to decide if they will give it a go. Yet I have to disagree with Dr. Albright, no matter how much this pains me: it is not up to you to decide how to interpret R2P. It is up to the United Nations, as an international force, as a collective, to decide how to possibly expand or restrict, define or lessen the clarification, update or not, what R2P meant at the time of the ICISS. The United States may have a seat at the Security Council; it has to be reminded, over and over again, that it is not the Security Council.

3. This is not a funny time in US politics. It’s a time of dissent.

But Mr. Williamson, who served under President George W. Bush, said there were deeper reasons for the American aversion to foreign entanglements, having to with fatigue after a decade of war. “It’s a funny time in American politics when you have Rand Paul allying with the left about not getting involved overseas,” he said.

This quote from the New York Times article this blog post is based on is infuriating. This is not about Rand Paul or his father allying with anyone; this is about a non-partisan, clear-cut divide between believers in interventionism, worldwide, borderless, boundless, and limitless – and those who have a distinct belief that not only is war not financially viable for the United States, it is not a viable foreign policy either, as it increases the danger against domestic security and further fuels the terrorism risk that has already impacted the country even in recent months. The nation is being drawn and quartered over interventionism. One side wants to revert to the Cold War era when Latin America was the playground for intelligence agencies and their carte blanche over regime guidance led to the torture and deaths of millions of Chileans and Nicaraguans. It was a time when the world was divided between blue america and red soviet, and the map was just a bipolar splash of color that made no sense and forgot about the human lives that tried to fit in those straight lines that were never genuine or natural borders. Another side of the country is not necessarily isolationist, but tries to believe in bigger and firmer values, such as the power of diplomatic relations, a strong and authoritative State Department led by a presidential nominee they can trust. For many, the place of America in the world has to be restored not through Washington bullets, but through trust and righteous conduct. There is nothing strange, weird, or inadequate about this vision. It may seem completely unrealistic and eerie for someone who served under W. Bush, I will concede. For many old timers of the State Department, war was the only way to assert authority, and the European Union was a weakling for no longer addressing internal or international conflicts with the tip of their bayonet. The EU was licking its wounds and waiting on East Germany to get up from its knees.
But Williamson – and Mark Landler – have to understand one thing: as idealistic international law can be, it is driven by a natural sense that security and comfort, through peace, will only be achieved through justice and unity. Those are empty words in this day and age. Believers in concepts such as the rule of law or supraconstitutionalism are seen as hippies or radicals. We see overpowered law enforcement blare through our streets and defile fundamental freedoms that we had taken for granted for centuries, simply because the T-word can no longer be uttered without sending a shiver through the collective spines. Everyone wants to be safe. No one likes to see suffering, pain, strife, blood, lives lost to meaningless power struggles and financial hunger. But there is a just war. There is a just cause. And what cause is more just than that of the people striving to be free? And what cause can be better supported but by standing by international law? I understand the quick satisfaction of winning over the system, of walking around the institution, of being the funnier and clever guy in the corner with great wit that defeated the grey hairs of the Security Council. I understand wanting to break free from those reigns, but they exist for a reason. Maybe Rand Paul and his father are not necessarily strange or funny. Maybe their allies aren’t simply sheep trying to join Molly Ringwald and the rest of the cool kids in Congress. Maybe there is this sinking feeling that unless we stop trying to be the bigger guy, we will have an army of smaller guy knocking on our door and throwing international law to the dogs just like we did. It’s not submission. It’s not feeble to decide to abide by international law, to sign the Convention Against Torture, or to send a dignified emissary at the General Assembly. It actually takes a strong nation to stand at the Security Council and waive its national interest in order to protect, worldwide, and assume its responsibility.
So, America, are you ready to be strong?