It’s been a really trying year

I saw the date approach in my calendar with a nostalgic reminder of the sense of loss I felt then. A year ago, I had landed back at Heathrow in a rush in the hours before the polls opened all across the then-united Kingdom, queuing with other European citizens in the European passports line, a little uncomfortable with the referendum being held in the first place, but otherwise confident. I walked passed several magazine and newspaper stands on my way out, glanced at issues celebrating an upcoming victory for the far-right: an “independence day”, according to Nigel Farage, “freedom” from an institution few understood as anything else but a regulatory body, and most of all, “control”.

Back in New York, expats and Americans alike kept asking for predictions. Of course, 2016 was the year I was constantly proven wrong: I was firmly convinced Donald Trump, for instance, would never win the Republican nomination. I knew Europe always journeyed through cyclical bursts of far-right approval. I wanted to be receptive to criticism of EU institutions – a pet peeve of mine are references to “the EU”, just like “the UN”, neither being homogenous entities – that I often emitted myself. I had been tested, like many Europhiles, by the Commission’s reaction to the refugee crisis. I had been in opposition to a secretive and adversarial EU Council, that Ian Dunt qualified as “shady”. But it was so painfully obvious to me, from the continent, that the Leave camp as lying, over and over again, that I felt confident the British public knew better. We had spent enough time correcting statements that a Brexit vote would mean a withdrawal from the ECHR for it to be understood.
Of all the things I hate (people calling Bushwick “East Williamsburg”, forgetting the h at the end of my first name, anything written by Alan Dershowitz): being wrong. Needless to say, June 23rd was not a good day.

I work in Strasbourg. It’s not Brussels, but close enough thanks to being another seat of the EU Parliament, that the shockwaves radiated all the way to the Rhine. My colleagues and I were at the office early that day, snacking, nervously drinking coffee and checking our phones. It’s not necessarily a strange scene for people working in counter-terrorism. But this vote was about something else. It was about dismantling something we all believed in, although with different degrees of devotion. We were, are, all Cold War kids, children of Mitterrand and Kohl, great-grandchildren of Verdun, Eurostar frequent passengers, some of us coming of age with the Good Friday Agreement, Erasmus-educated, border-hopping staffers. My reaction to Brexit continues to be bipolar. On one hand, I react to it as a lawyer, interpreting article 50, issuing concerns about the Northern Irish border, attacking the arrogance of a bespoke agreement with Europol. On the other hand, it feels deeply personal. It’s a betrayal of my identity, of one growing up thanks and through the European Project – an idea separate from the European Union, with the end goal being that the two should reconcile through democratic, progressive values, pro-immigration, pro-human rights, pro-workers’ rights, an evolution a political finger to De Gaulle and Thatcher and a legal assertion away from US exceptionalism.

I was given the opportunity to let my heart on my sleeve for the legal commentary blog Opinio Juris about Europe, the European Union, the European project, and the fears the referendum brought to light as a Northern Irish citizen. I still haven’t corrected the typos.

When the result was officially announced, my office fell quiet. Sure, the referendum was not legally binding. Sure, the margin was not significant enough to call it a political mandate. Sure, the question itself was vague enough not to give a time frame for withdrawal or how exactly the UK will divorce from the rest of us. There was barely time to grieve, really. Jean-Claude Juncker became aggressive, Donald Tusk chose the bleeding heart route, and all around me, lawyers were suddenly dragged in the spotlight, a place where we feel either really comfortable or really uncomfortable, having to respond to questions for which there was never supposed to be an answer at all. If anything, to me, the UK had entered a historic phase: as a long-time partner in the creation and construction of what would later become the European Union, a major player in its most destructive wars, and an unparalleled ally in security, seeing the island decide to float away on its own in the choppy, freezing waters in the North Sea and taking Northern Ireland with it was impossible to fathom. It wasn’t “control”. It was the sort of “freedom” that one can only achieve when they jump off a bridge, for a split second suspended outside of the laws of gravity, but inevitably about to hit the ground in free fall.

As lawyers, we then had to find a way out, a legal answer to a political question. Immediately, what came to mind was a simple truth, a statement of fact: it was not legally binding, so why do anything? But David Cameron had resigned, and “mandate” and “will of the people” became such imposing terms we outlined Article 50 for everyone else. Article 50 says nothing. It provides a time frame. I started writing a few paragraphs everyday, a mock-diary of post-referendum news coverage, that I titled “Weimar Britain”. Every morning, I would call the hour in GMT, list a few highlights of the absurd positions taken by Theresa May or Michael Gove the day before, mention if Juncker or Barnier had gone for a round of golf, and finish with the weather forecast, the last sentence being, “the UK is still in the European Union”. I did that for a few months, the ritual becoming quite popular in my circles, so convinced I was that Article 50 would never be triggered. It just was inconceivable to me. Repealing every EU provision in British common law? Alienating the country from security agreements at a time of heightened security threats? What was that constant logorrhea about a sovereignty that was never questioned nor eroded in the first place? Everything was baffling, incorrect at best, surreal most of the time. And then I was told, in December if I remember correctly, by a certain British journalist, that I was delusional if I believed Article 50 would never be triggered. A few months later, he was proven right, and I was once again proven wrong.

The otherwise excellent Remainiacs podcast, started a few weeks ago, used the term “trauma” to refer to the feeling many experienced in the aftermath of the referendum. I won’t use the term, because my field of work reserves it for a different type of experience. I will continue to say what I feel is loss: a sense of unity, that was never there in terms of EU-wide political consensus; a sense of togetherness, certainly not correct considering how many opt-outs the UK placed on many EU treaties; a sense of belonging, that never extended to many immigrants much like my parents. The European project remains an idea, but it is an idea I firmly believe can translate if we empower the Parliament to oppose the Commission more and if, really, the Council conducts its work in a less shady manner. The role of EU Courts, so often maligned by UK politicians, is paramount. Brexit will not affect the UK’s membership of the Council of Europe, and the country remains part of the ECHR, at least for now. But the days are numbered: leaving the EU was never about renegotiating trade agreements or “taking control” of agricultural regulations. It was about shutting down immigration, about refusing to implement ECJ rulings on civil liberties, about the immaturity and irresponsibility of removing one state from transnational regulations that provide for medical progress and housing safety, among other things. It was a vote not based on concern for the lack of reform in the EU: it was about misplaced and misunderstood British identity, that was placed as superior to other states, and perfectly capable of raising the flag of the Empire after centuries of outward progress.

It’s been a year. It’s been a year of we, in Belfast, Derry, Newry, Enniskillen, having to remind everyone that our region has always been fragile and precarious, that our peace process was ongoing and needed attention. It’s been a year of sharing and re-issuing reports compiled by EU officials on the dire effects of a EU withdrawal on devolved administrations. It’s been a year of my colleagues publishing paper after opinion on the impact of Brexit on the 1998 Good Friday Agreement. Mostly, it’s been a year of reading about the fear, anxiety, and panic at the prospect of the border being raised. Typing this, I found myself capitalizing the word – Border – out of habit. It’s not just any border; it’s a border that symbolized a civil war. It’s a fault line I had known my entire life and that I still shudder, even if it is now disembodied, whenever I ride what is now a commuter train between Dublin and Belfast. It’s a border we were told we were never going to see again, one that Theresa May apparently just found out about, one that Secretary of State James Brokenshire discusses to provide assurances of our safety but without the necessary presence or authority required by the position of neutrality the UK is supposed to hold. There is nothing neutral about Brexit and its complete lack of interest in Northern Ireland. And so, we are entering our sixth month without a government or a Speaker of the Assembly; Dublin finds itself having to be a buffer between London and Brussels while being the key player on the chessboard, without its consent, without it having a say in the referendum being carried out in the first place. Northern Ireland voted to stay, because, as I wrote at the time, it is survival for most of us. It is for many others across the Union.

It’s been a year and I’m swimming against the tide of colleagues and friends leaving the UK to head to the continent, where their legal status is ensured, where they will not be asked for a visa and where their children can stay with their parents: I am moving to London. As I flew back to Europe a few days ago, once again from New York, but this time into Switzerland, I realized my biggest privilege wasn’t the most obvious necessarily. It wasn’t my education that the EU subsidized. It wasn’t my safety from war that the EU launched and protected. It wasn’t my health coverage that the EU ensured and funded. It is my freedom of movement. It’s the two passports – I am a citizen of nowhere – I hold, two EU citizenships, two possibilities of fast-tracking at airports, two possibilities of visa waivers. One is a Schengen nationality, the other is a Common Travel Area one. European citizens are trading this freedom at quite a cost: first the Schengen Information System (SIS II) database, and the Passenger Name Record (PNR) agreement with the US. Those will need work, reform, scrutiny, checks. We have a Parliament, we have Courts. UK citizens may lose their freedom of movement. They may be restricted, suspended, will have to re-negotiate. Education, family life, work, internships, travel, tourism, experience, all of this is dangling off the edge of a cliff.

It’s been one year. Imagine. One year, and no answer.

I heard you like black sites

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

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

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

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

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

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

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

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

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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. 

Something about England: terror trials and press freedom

Court artist’s sketch of Erol Incedal

Of all the things I hold to be true and self-evident:
That all men and women and everyone across the spectrum are born equal under the law,
That fundamental political, civil and human rights in a healthy democratic society are subordinate to the oversight of an informed population,
That the guardians of said information are entitled to freedom from governmental interference, harassment, and intimidation.

Of all the things that have infuriated me over the past two years and committed by the conservative administration of the United Kingdom of Great Britain and Northern Ireland:
The arrest and detention of David Miranda, Glenn Greenwald’s husband, at Heathrow Airport under counter-terrorism legislation;
The passing of the Justice and Security Act of 2013, setting up secret trials for terrorism suspects;
The confiscation of Ian Cobain’s notebooks containing notes from the Incedal trial by Her Majesty’s Intelligence Services.
The latter point has seldom been reported on. Cobain himself has published several pieces about it, framing the event in a broader, sharper light, casting away the politics of national security obfuscation that has become Home Secretary Theresa May’s trademark. Open justice and access to information are violated in the name of protecting national security interests. Why this trial had to be held away from the eyes of the press will never be known: the notebooks were confiscated, grabbed by MI-5 agents outside of the courtroom and are currently held in a vault inside Thames House. What those notebooks contained is even restricted in itself: “On each occasion, the evidence was carefully presented in one of three sessions. Parts of the case were in open court, with the press and the public free to come and go; other parts were held behind locked doors, before a jury whose members were warned that they could go to jail if they ever divulged what they had heard; and parts were held in intermediate sessions, in the presence of the jury and a small group of journalists who are prohibited – at least for the time being – from reporting what they learnedwrites Cobain in March, recalling the events leading to that illusion of open justice. What we know of Erol Incedal, the 27 year old London resident and law student, was that he was found in possession of a bomb making manual in the trunk of his car. We also know that his surveillance started after a routine traffic stop in London. The blackout only resulted in one public curt decision: the court failed to reach a verdict in the charge of committing acts preparatory to terrorism. He was acquitted on the charges of committing preparatory acts of terrorism; he was however guilty of being in possession of the bomb-making manual.

Assuming there is a valid purpose to secrecy in the course of justice, methods are already in place through the submission of PII certificates – confidentiality – by the government to the judge. The evidence itself can thus be concealed from public access, should this pertain to ongoing intelligence activities, military strategies and deployments, or sealed diplomatic documents. PII certificates have similar applications in other countries and other systems of laws, and have worked just fine until then – sometimes even to the point of working too well, when certificates are requested then issues for a troubling majority of the content discussed during the trial. Every case surrounding alleged criminal activity committed by the government’s intelligence agencies have been shrouded in secrecy; the Investigatory Powers Tribunal (IPT) itself extends non-committal statements through its determination / non determination system, which is suggestive, not declarative. In itself, those cover an impressive array of restrictions to the principle of open justice. What the JSA 2013 does, and what happened to Ian Cobain and his peers covering the Incedal trial, has crossed an untenable and inexcusable limit.

Lady Justice at Old Bailey

2013, 2014 and 2015 were not good years to be a journalist in the UK. Those were not good years to work at the Guardian. For wanton acts of publishing to commission of acts of journalism, the King’s Way newspaper has seen its headquarters invaded by GCHQ agents in a humiliating, destabilizing, and thoroughly disturbing destruction of their hard drives allegedly containing the NSA files handed by Edward Snowden – despite GCHQ fully knowing that copies of the files were stored at other newspapers’, as well as disseminated worldwide to precisely avoid their utter destruction. The goal was to belittle and cripple The Guardian. The goal was to show journalists their place in the war on terrorism and the surveillance apparatus. The avowed goal was to make journalists understand it is not their place to reveal anything that would not be preemptively approved by the government. The goal was to make the press hear, as clearly as a clarion on a naval base, that truth was not convenient; that an informed public is a threat to institutional status quo; that any alleged violations of fundamental human rights were proportionally weighed against the protection and the security of the realm; that it is not the job of a journalist to place a question mark at the end of this sentence.

Except it is. A journalist is not a spokesperson. A journalist is not a press secretary. A journalist is not the political amplifier of those in power. A journalist should always have a question mark.

In a situation that we learn of drip by drip, leak by leak, whistle by whistle, reporting by reporting, the question of access to courts, access to representation, and access to justice becomes more and more obfuscated. It is not just that the trial is heard in secret; it’s that evidence held against the defendant is rarely communicated to their legal representation. In one Kafkaesque twist after the other, the very claim put to the court becomes obscured by the fog of the war on terror. Where justice is expected to shed a light on abusive proceedings, it is itself impended by mechanisms violating its independence and its separation from powers of governance. We do not know how much Erol Incedal knows about what the security services know about him. We do not know if he was fully informed of the charges made against him. We do not know on which grounds his acquittal was decided. All we know is that he was present; journalists, however, kept being held back, pushed away, or let inside for a maximum of three minutes. Ian Cobain’s notes could not have been anything more than what had been graciously and magnanimously exhibited to him in those extremely rare peaks inside the courtroom. His notes could not say, detail, or reveal more than the trial itself had let open on those occasions. And yet, his notes, taken down on a reporter’s notebook, are inside a vault at the MI-5 headquarters.

Thames House, the MI-5 headquarters

In 2014, the High Court decision in Miranda v UK exposed several gaping holes in the safeguards for press freedom in the Empire. Judge Laws, in rare form, referred to a legal precedent – Attorney General v Guardian Newspapers (1990), quoting Lord Goff: “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.” It is now the established law that terror trials can be lawfully held in secret if such is the decision of the Government and is endorsed by the hearing Judge. It is disturbing enough that the fundamental right to freedom of information and press freedom is directed through methods of concealment and confidentiality that are at no point weighed against informed consent or democratic principle, but instead the safety of the organizations that are targeted by the alleged criminal conduct. That the same organizations are now entitled to grab a reporter’s notebook – protected by press freedom principles – and hold it hostage inside a vault like a hazardous substance – goes way, way further than what Lord Goff intended to protect in 1990.

Richard Norton-Taylor tried to explain the situation in a July 14 piece for the Guardian that raises more questions than it provides answers. Officials leave little to account for, and the confiscation targeted eight journalists specifically, on a measure that is unprecedented. It is presented almost like a last resort: “During the trial, the reporters had to leave their notebooks in court. At the end of the trial, eight reporters’ notebooks were taken (…) officials have not been able to explain it. While they say there was nothing sinister in it – the court provided for the crown to store them securely – they also say there was nowhere safe in court for this to be done, so the MI-5 has effectively impounded them.” Cobain provided a quote that is in complete defiance of the “nothing sinister” qualifier: “Only once before, in more than 30 years of journalism, has a state security officer impounded one of my notebooks”, said Cobain to Norton-Taylor. “And that was in Saddam Hussein’s Iraq.

Something should jump to any legal pair of eyes. Why did the Court provide for the Crown to “securely store” reporters’ notebooks in the first place?

Some would argue – Lord Laws, probably – that journalism protection is a privilege, not a right. Lord Goff argued that this right is self-evident, until the law sweeps in to take parts of it away in the name of national security. Both are wrong. Press freedom is a human right, and so is freedom of information. The national security exemption, as defined and strictly limited in the Johannesburg Principles – normative, not positive, the only concession to be made – does not extend to barring access to an ongoing trial entirely, and certainly not to confiscate, indefinitely, notes taken by reporters. Cobain made several unsuccessful appeals to have his notes returned. Lord Thomas heard the appeal made by collective news organizations, to which the aforementioned eight reporters belonged, and concluded that the decision raised “really difficult constitutional issues”. Lord Thomas, never one to fight on behalf of confidentiality – he did, after all, request the partial release of UKUSA in the Binyam Mohamed case – mentioned this disturbing intervention of the executive resulting in the breach of judicial independence. This should never be a norm. This should never be an acceptable or normalized state of affairs. The appeal, adjourned until October, may shed a light on the justifications made by the executive to go to that unbearable extent to silence the press, hinder journalistic work, and shield counter terrorism and terrorism suspects from public scrutiny and knowledge – and in the hands, entirely, of intelligence services.

Until then, indeed, and until Lord Thomas makes a not so difficult, but politically adverse decision regarding the independence status of the British judiciary in matters of terrorism and those who report on the security state -until then, there is little one can do to ensure that those notebooks won’t be tampered with. Until then, we can’t expect the freedom of the press to be fully exercised from inside the borders of England and Wales.

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.

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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).

This is England: erosion of civil liberties under Cameron

Illustration for Pink Floyd’s The Wall, 1979

When Margaret Thatcher died this spring, England was faced with two options: deal with its extremely conservative, socially deprived and individualistic past, or build and consolidate on the fresh ashes of social division to create a more cohesive society based on solidarity and strong civil rights values. Efforts were made to turn the Thatcherite past into a monument to what shall never be repeated, but England remains under conservative leadership. Torn between a strong insularism and a timid willingness to sit at the european table, the United Kingdom is progressively seeing its worldwide influence fade, as Commonwealth countries find their independent voice and refuse to be led by an ageing Queen. British identity is struggling, between a Northern Ireland province that never simmers down to the broken promises of an intervention in Afghanistan. But the small island’s problems don’t lie abroad; they are domestic, and they are violent, bleeding red, alarm-ringing signs that the society is in crisis. As nationalism takes over Western Europe again and the ghosts of imperialistic dominance are drowning the once serene voices of international organisations, England is slowly but surely destroying the signs of good will it had granted its citizens in the past.

England is part of the Old Continent. And just like the rest of its French, German, Spanish and Italian counterparts, it has known the terrifying and long-lasting consequences of terrorism. There is nothing new, groundbreaking or policy-altering change in bombs exploding in London. It’s the nature of the threat itself that changes – from ethnopolitical to global – but what is more worrisome is the response stays the same: disproportionate, liberticide, and under new european policies and legislation, unlawful. If the goal of terrorism itself is to alter the fabric of society to a point that it no longer remains the same and spins around an axis of confusion, then terrorism has achieved its goal. The Prevention of Terrorism Act(s) of 1974 onwards were implemented, failed, criticized, then obliterated in favor of a more egalitarian and respectful law enforcement regime. But the seed of extrajudicial action was planted. Once you taste blood, you want more. The erosion of civil liberties in the United Kingdom as a response to an alleged permanent threat that justifies domestic security by any possible means started in 2000, and shows no sign of stopping. In fact, it had greatly accelerated under Cameron, under whom the external threat became internal, and suspects were subjects of Her Majesty. Here’s a round-up of all the decisions made by the executive to make England the dystopia Andrew Lloyd imagined.

Anti-Terrorism, Crime and Security Act (ATCSA) 2001

A government’s duty is to provide security for its citizens: safety from harm – war, invasion, colonisation – and security from domestic threat – crime and terrorism. Anti-terrorism laws don’t have to necessarily violate fundamental liberties to be effective. It is a false equivalency to assume that safety and security need to overcome successful protection  of civil liberties and human rights. The political discourse surrounding the implementation of dangerously liberticide anti terrorism laws has succeeded in forcing the belief that populations need to give in what they earned in order to be protected. Losing in order of winning has never been a compelling argument. In the wake of 9/11, everything was up for grabs: right to attorney, duration  of detention, seizure of property, pre-emptive capture, and even the use of torture. It was all said to be for the greater good, which simply has never been properly and effectively demonstrated. Terrorism has become one of those words so painfully overused they lose all meaning and can be inserted in any speech in order to hammer a point home – usually, an ominous one for those of us guarding the rule of law.

In the case of England, the challenge was to provide comprehensive security apparatus, from law enforcement to intelligence, while maintaining a degree of security matching the risk involved in being involved in foreign wars, hereby becoming a target of terrorist groups formed and trained where UK military forces were intervening. The second challenge was to reassure the European Union that the mayhem provoked by the PTAs were not to be repeated. If the PTA of 1989 created the most wide, vague and ill-defined meaning for terrorism (“use of violence for political ends”), thankfully a 2000 Terrorism Act came to define it a little more, followed by the European Union’s 2002 Council Framework, which both referred to terrorism as crimes committed to influence a governmental or non-governmental institution in performing – or abstaining – from their duties. Those crimes can be committed with a political, religious or ideological cause. But as with everything regarding and encompassing political duties, the definition of what constitutes ideological cause can often be spun on its axis to mean dissent; and dissent can also manifest itself in violence and be referred to the crimes against persons and property mentioned above, when dissent in its peaceful form – freedom of expression, opinion, religion and press – are repressed to the point of leaving few alternatives.

the ‘Birmingham Six’, one of the most famous cases of miscarriages of justice under powers granted by a Prevention of Terrorism Act.

Detention powers and European law

It is within this context of criminalisation of dissent that powers given under the ATCSA take on their ominous and gloomy frame. Violations of the European Convention on Human Rights (ECHR) were made on three points: 1. indefinite detention (article 5), 2. deportation  and 3. extradition where the defendant is at risk of death, torture or other mistreatment (article 3.) Most of the control orders issued in the ATCSA are left at the discretion of the Secretary of State, meaning extrajudicial law enforcement powers lie in the hands of one unsupervised individual; and Secretary of State must issue a justification based on issues pertaining to national security. As we have explained before, what is considered an issue of national security is, once again, often arbitrary and discretionary. As thus, Section 21(1) indicates that the mechanism for indefinite detention power must satisfy those two criteria. An Appeals Commission is created for the person to have their situation reviewed, but it is important to note that in order to pass a bill containing violations of the ECHR, the UK government issued a derogation to the covenant, made possible… by the Convention itself, through Article 15. However the wording is where the core of the problem can be easily identified. Article 15 (ECHR): derogation is allowed “… in times of war or other public emergency… to the extent strictly required by the exigencies of this situation.”

When the ATCSA fell under the scrutiny of the House of Lords, it almost failed the litmus test. In the case of A v Secretary of State for the Home Department (2004), the appeal was heard by a nine-member panel, eight of which found that the powers granted by the ATCSA were in violation of the Convention. The response was a specific PTA issued in 2005 with non-derogating control orders, to be subjected to court review and do not impose as long a measure of indefinite detention than the ATCSA. However, the arguments placed in favor of a respect of the Convention in times where a derogation could be made according to Article 15 are coming back in full force, even after a debate in the House of Lords followed the 2005 London bomb attack by Al-Qaeda. The question as to whether extreme powers granted by anti-terrorism acts should supersede human rights is as relevant as ever, in an era where recent detention of Glenn Greenwald’s partner David Miranda was made under anti-terrorism provisions, while not even being on British territory and offences carried against him were not guaranteed under the EU Council Framework’s definition of terrorism (we explained that those were “preparatory offences”, as in “support of terrorism” – hereby implying that journalism is terrorism.) Recourses to the ATCSA should be made few, far-between and always under the supervision of a Court: a judicial review is mandatory to ensure the lawfulness of law enforcement intervention when powers are left to the discretion of the executive. However, recent measures enforced by Theresa May regarding the deprivation of citizenship for persons suspected of terrorism are equally as worrisome.

Deprivation of citizenship and international law

A declaration was made on November 12th that individuals owning British citizenship and proven international terrorists as per the ATCSA definition could be deprived of said citizenship, even if it was found that it would effectively make them stateless. This is an absolutely unlawful decision as per the provisions of the Universal Declaration of Human Rights, Article 15, unequivocally claims that “everyone has the right to a nationality”. Citizenship is not a flag, a badge to wear or simply a name printed on a passport; with citizenship is issues the rights granted by the state in question, its judicial and enforcement protection, at home and abroad. Depriving a person of citizenship and even right of abode anywhere will make it virtually impossible for anyone to settle down and be granted the fundamental rights of any citizen of a law-abiding country. Revoking one’s citizenship is usually one of the highest forms of punishment ever enacted by a state, usually reserved to citizens found guilty of the high crime of treason. Since the fall of the empires and the end of the Cold War, where national interests receded from under the coat of heavy nationalism and bipartisanship, the idea of treason has become more or less obsolete in civilian criminal law, and became an outpost of military tribunals for countries who have declared a state of war. This is not the case for the United Kingdom, despite the seemingly apparent need for derogation orders, but Theresa May includes deprivation of citizenship anyway: if it sounds like war, smells like war, and is legally enacted as war, is it effectively war?

According to the British Nationality Act 1981, Part V, Section 40, subsection 5: “The Secretary of State shall not deprive a person of British citizenship (…) unless (…) it is not conducive to the public good that the person continue to be a British citizen.” We encounter the vague notion of “public good”, which I would tend to assimilate to the notion of “public interest” made in order to justify declassifying and/or publishing national security documents in our article on press freedom. Once again, a security decision is made for what appears to be the general welfare of the Kingdom, as opposed to protection of political interest. Depriving of their rights to citizenship, the person would then be demoted, probably deported, and unlikely to claim judicial and civil rights granted by the Kingdom. Deprivation of citizenship clearly includes that the United Kingdom also wishes to separate themselves from an individual in cases of possible extradition and/or rendition, in the diplomatic back-and-forth that occurs when a citizen of one country commits criminal offences in another, while both countries are not in a declared state of war. Once again, the notion of combat looms angrily over the legislation. Under subsection 3, (b) explains a person may be deprived of their citizenship if they have “during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in any manner (…) as to assist an enemy in that war.” It is coming full circle to the idea of preparatory offences under which an individual, whilst not committing a criminal action in itself, is aiding, abating, or communicating information that may lead to this action. Deprivation of citizenship under a definition of terrorism may then occur to anyone in possession of documents that are considered a threat to the nation. A nation that is, once again, not necessarily in a state of declared war.

Home Secretary Theresa May

The Nationality Act however had in mind to respect the rule of law and never render anyone stateless. Still in Section 40, subsection 5 (c) “the Secretary of State shall not deprive a person of citizenship if (…) that person would thereupon become stateless.” Where does the State’s responsibility lies in a citizen committing criminal actions abroad? The United Kingdom abounds in possibilities of trying the criminal domestically, in courts fully endowed with anti-terrorism provisions, with domestic and foreign intelligence at their service and – hopefully – the full cooperation of the country under attack. This is an idealist perspective in which we assume that a State will not be punishing a citizen for their actions but therefore enact the full force of the law they have themselves violated. Domestic provisions for international crimes have proliferated in European countries, due to the easiness of travel in the Schengen Zone; in the United States, despite violations of the Fifth Amendment; and extradition treaties have been modified in the wake of this global jihad that has western powers grabbing for all the possible power they can get in order to create a fortress of national security, civil liberties of their citizens be damned. The history of statelessness, dating back to the executive cowardice of european governments under Nazi rule in the early 1940s, is so marred by the horrors inflicted upon individuals rendered wanderers and unprotected persons that it was made a fundamental, unalienable right to be protected by a State. Is the United Kingdom so faithless in its own law enforcement and judicial system that it would rather deprive an individual of the most basic of their freedom rather than see them through the system? Or is it a way to appear unconventionally tough on potential terrorists that it would deter British citizens from ever associating with or committing terrorism-related offences?

Bulging, bursting at the seams, overwhelming counter-terrorism laws are just like capital punishment – they never prove to be effective. They are no deterrent. The ideological, political, religious or otherwise cause that it animating the individual committing those offences will find a discourse that will challenge the nation-state in a manner that leaves no possibility but to either detain this person indefinitely – which is illegal – or creating criminal processes that can contain not only the individual but also the material they can diffuse. Sadly, in recent manners, the terrorism in question has solely been associated with dissent. The external threat that has motivated the ATCSA has now moved internally, hence the increasing provisions against domestic threats. And this is how a new bill is making its way to Parliament to further silence dissent.

Anti-Social Behaviour, Crime and Policing Bill – 2013

Under this new proposed law, currently at Parliament, powers would be granted to councils – local executive – to ban protests they consider “disruptive”. The Public Space Protection Orders (PSPOs), generally restricting mundane and trivial activities such as dog walking or public drinking – could be extended as to ban any activity “detrimental effect on the quality of life of those in the locality”. This is loosely worded enough to ban protests, demonstrations, and even recent occupations of public spaces if the local council is deciding that such activities, rounded up under freedom of expression, are detrimental to the public good. On one hand, it is admissible to claim that protests can often take a turn to violence. Expression of minority rights can be met with harsh reactions from the general public. A protest celebrating controversial events can quickly lead to battle. A portion of the population that feels under-represented politically and/or in the media could feel that only through action can it be heard and understood. There is no effective way to ensure that any given protest would not give way to property damage, clashes with law enforcement or even attacks on persons. To ensure nothing bad would happen, it would imply banning the risk itself – banning protests. But freedom of assembly is protected by law.

When protests become riots. Tottenham, London, August 2011

This ASBCP bill uses the word “detrimental”, which includes that it would damage the quality of life and harm local residents. A council ban on protests would be pre-emptive; would-be protesters applying for a permit would be effectively denied before their message was given a chance to be heard. Article 10 and 11 of the ECHR provides protection for freedom of assembly and everyone holding a placard or chanting a slogan. Once again, the ECHR also, on the other hands and in the interest of national safety / security, provides a non-blanket authorization and clarifies in Article 11 (2) that no restrictions can be enforced, unless “those prescribed by law and are necessary in a democratic society in the interest of national security and public safety, for the prevention of disorder or crime (…)”. Should the new ASBCP bill be submitted to the test of regulation under European law, it is a sure fact that Article 10 (2) will be raised on allowing councils to ban protests. However, it is absolutely fundamental to understand that what is considered “disruptive” or “detrimental” buy any standard does not necessarily mean “disorder” or “crime”. Disorder, legally, creates an issue of public safety. Disorder is not litter on the street or chanting disrupting nearby classes. Disorder is an attempt at creating chaos among the democratic and free order. A protest in itself does not constitute disorder, and is in no way shape or form to be considered pre-emptively criminal. However, it has become a tendency to consider rights – any civil rights – as a privilege never to be abused. In Hubbard v Pitt (1976), Lord Denning understands the freedom of assembly as follows:

Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate, and to protest on matters of public concern. As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic it is not prohibited.

This slightly condescending way of defining “good order” is restrictive as it is impossible to prevent the way a protest will turn out. The student protests of 2011 clearly turned into riots and called for an emergency situation in the city of London in response to the incredible damage to property and the prolonged state of disorder when protesters were met by the London Police. British law has, traditionally, not held the right to protest in high order. It has never granted, through extensive court rulings – Nagy v Weston, a 1965 deciding a protest needed to be ‘reasonable’ to be lawful – a right that was superior to that of the decision to maintain public order. In short, up to rights granted by the ECHR, the right to protest and the freedom to assembly were a privilege, tolerated simply by the executive and lawfully manned by police, for people feeling disregarded and disadvantaged to take to the streets and manifest their opinion.

A small addition has also been made regarding the powers granted to law enforcement. The Independent reports that “People falling foul of the new restrictions would then be punished with on-the-spot fines, which could be issued by private security guards working on commission for councils.” The outsourcing of law enforcement is another red flag regarding accountability on civil and human rights grounds, as they are not held to the same standards as warranted officers and channels through which citizens can report unlawful or disproportionate use of force from an officer. Outsourcing law enforcement means creating a new array of rules and regulations under which those contractors or “guards” are allowed to arrest, fine, and use force against a British citizen, while not being accountable under the rule of law. The possibilities of abuse are endless, and if private security guards are needed in addition to civil servants to preserve the peace and public order, this effectively implies that the ASBCP bill will assume every protest inherently has the potential to become violent and disruptive, that every procession or demonstration can be deemed detrimental to the local residents or visitors. It is, in fact, a criminalisation of what constitutes freedom of expression under Article 10 of the ECHR.

insert subtle reference to declaring war and battle coming down

So what is the future of derogation under European law? Should European Courts be held referees as to whether the United Kingdom is abusing their rights and reservations as planned by the Convention in matters of national security? How much of national security is worth preserving in matters of civil rights? If anti-terrorism laws are to be frequently enacted, if intelligence has to be constantly extended, and if derogations are to be often granted, the rule of law will become secondary to civil rights interests, and will take a step down in legislature. The United Kingdom – and therefore other nations free to follow in its path – will become a police state. But for those of us shivering at the idea of public disorder and buying into the fearmongering of the Cameron administration, rest assured that the more territory the law loses, the more lawlessness gains.

In A v Secretary of State for the Home Department, Lord Hoffmann explained:

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. This is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.