Article 51 and the convenient use of the self-defence argument

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British Reaper drone

 

Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:

More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.

On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”

On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government.[1] According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.

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In October, Russia released dramatic drone footage of battles in Damascus amid a propaganda drive.

The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):

On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.

The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.

In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:

Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.

Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:

If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.

Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.

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It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.

But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.

[1] The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »

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The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

The collective consciousness and the lingering spectre of torture

Col. Larry James, chief psychologist at Guantanamo, 2003; director of the Behavioral Science Unit at Abu Ghraib, 2004. Retrieved at Newsweek, August 2015

More than the release of the Senate’s “torture report”, one of the defining moments of the American public’s reaction to the CIA’s rendition, detention and interrogation (RDI) program was the moment the New York Times decided to stop using the euphemism of “enhanced interrogation techniques” to describe what was and is blatantly torture. Executive editor Dean Baquet wrote in August 2014,

The word “torture” had a specialized legal meaning as well as a plain-English one. While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods. (…) Over time, the landscape has shifted. Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee (…) Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I was reminded of this while reading a piece called “Lives by omission” in the latest issue of Harper’s. J.M. Coetzee published exchanges with psychotherapist Arabella Kurtz on the parallels between fiction and psychotherapy. In this particular excerpt, they examine the process of repression, that Freud explained distinguished human beings from beasts. Coetzee writes, “What we gain in repressing what we do not want to remember we have to pay for with the subterranean poisoning of other aspects of our lives.” Later, he provides a torture analogy:

But is it true that repression necessarily fails? To give an extreme example, certain people who have committed vile acts – torture, murder – seem able to construct life stories (memories) for themselves out of selected fragments of the real (the long hours they had to work, the gratitude of their superiors, the promotions and medals  they received) and to live with and by such memories, while repressing all the ugliness. Classical theory, at least in its popular version, says that such people have unhappy relations with their wives and children. It says they suffer from nightmares. It says that they are secretly haunted by the cries of their victims – by what they try and fail to repress of their “real” past. And indeed, if you put a torturer on trial or if you compel him to undergo a course of psychic rehabilitation, he may begin to recollect those “repressed” cries.

If we see the construction of a personal narrative when committing “vile acts” – and there is no doubt that the operatives, government agents or contractors, that have taken part in the RDI program have committed vile acts – as a success of the psychological process of repression, it is difficult then to legally extract an individual responsibility for said crimes. Or is it? Yes, the gratitude of the superiors, the constant political rhetoric around the efficiency of torture, supposedly scientifically supported and pushed by legal celebrities such as torture-by-warrant proponent Alan Dershowitz – provide comfort, containment, and eventually, a levee against the perhaps inevitable wound inside the human psyche that remains after the crime, a wound that extends to the whole of humanity, as Dostoevsky expressed so well.

When Col. Larry James, former chief psychologist at Guantanamo, responded – reacted – to the APA motion banning its members from colluding with the CIA and the Pentagon on interrogation techniques, he did so by claiming the motion, the legal opinion of which I have written, holds “negative consequences”. In the APA debate taking hold before the vote, James asked:

So I need to know: Does international law supersede U.S. law? Because if the answer to that is yes, this has dire negative consequences for all federal employees, particularly in the VA and the department of homeland defense.

APA president-elect Susan McDaniel said the vote was to “reset our moral compass”. And yet, there is a continued willingness to push a narrative of efficiency and most importantly necessity from which a portion of the US public had started to distance themselves. Even the paper of record had a moment of reckoning with the ubiquitous use of comfortable and convenient paraphrases – enhanced interrogation techniques – realizing their responsibility in the dissonance between public political discourse lied in telling the truth as it stood and stands, not furthering the lie. There is no way of knowing whether Col. James, as a public persona, aligns with Larry James, the private individual, on the issue of torture. Another aspect of the APA motion was that it stopped providing the CIA and the Pentagon with their medical crutch, a huge part of their justification for their actions; it also confronted APA members with themselves, their actions, and their beliefs, depending on how well rooted they were. As sole dissenter, Larry James isolated himself in a landmark decision that will affect future operations of US intelligence agencies and their collaborators. He placed himself on a different shelf, aligned himself with the US’ interpretation of the Convention Against Torture that was laid out by John Yoo. He worried about criminal responsibility if the APA took a position on the absolute prohibition that aligned with international law, not with the American political context of the war on terror.

Human rights law is not rhetorical. It was not written as such and is a difficult area of practice. It is often mentioned that legal positivism is a question of morality, conscience and interpretation – all of which being subjective – but it was meant to translate into effective and immediate remedies for those affected by the violations of these peremptory norms. The prohibition of torture, although it is an intersectional and interdisciplinary issue to approach, is no different. It is part of this body of law that holds within it the fundamental principles of humanism and a loaded collective memory. Speaking of the prohibition of torture as the absolute that it is has been derided to great extent since 9/11, as being unpractical and inapplicable on the ground. The role of the APA in supporting torture was to create a sound argument for exemption, a legally acceptable derogation, hitting back at IHRL for existing outside of a reality of constant violence, fear, and imminent threats. The world had changed, we were told; it took a turn for the worst; we would not be much of a society if we did not do whatever it takes into protect each other from those external and shapeless monsters that are jeopardizing all this stability we have created. Torture is a collateral crime; it is the result of our back against the wall; it is an answer of last resort that no one wishes to brag about, but still needs to use when – we are told – all other methods failed.

Few images of British national and Guantanamo detainee Shaker Aamer exist. He insisted that this one, depicting him smiling, was the one use in coverage of his case. Aamer, who should be released by the end October, is still on hunger strike.

But the prohibition of torture is an absolute; human rights law resists against political derogations; and the truth lies outside the scope of Col. James’ arguments. We have had an opportunity to look at this torture-we-dared-not-speak-of in 2006 and 2007 through European Parliament rapporteurs Dick Marty and Claudio Fava. Their work failed to challenge overseas. Europeans, their commitment to the rule of law and their stubborn refusal to accept a war paradigm for counter terrorism will have to wait until Bin Laden is killed. It did not matter. Those reports were academic, had gaping holes where ministers were supposed to testify, untimely, and pitted natural allies against one another on questions of principle.

Feinstein’s report shifted the attention away from the purported accomplishments of special forces overseas to what they were doing in “black sites”, in Bagram, in Guantanamo, and everywhere else. It showed the general public, weary of battles of words, a side to their endless but righteous war they were not ready to face. The backlash has yet to be immense. President Obama admitted the US “tortured some folks”, and there are still no charges, no indictment. There had been a suspension of the repression, a brief moment of lucidity, during which the horror was contemplated. In those moments, there are no nuances. There are no spectrums of opinion; there is no gradual assessment. We are horrified, or we are not. It is a choice. It is fundamental to frame it as a choice, because for the first time, the general public – not lawyers, not activists, not officials-speaking-on-condition-of-anonymity – were in the know. There was an incomplete, yes, but sufficient glance at the truth. We can stare at it, as the APA did, 6 years after the first draft of the motion was submitted, and act on it, fight, struggle, and scratch beneath the surface; or we can turn away. We can pretend those practices were small moments between brackets of our collective history; a bygone footnote of a much bigger context.

The “Hooded Men”, with their legal team and Fr. Murray. Retrieved at the IrishPost, October 2015.

But if it needs repression to be worked out, it is much more important than a footnote. Repression is a tool that shapes one’s identity. The piece I quoted before imagines what a torturer on trial would face, a sort of crash course in psychoanalysis: “… If memory is malleable in one direction, obliterating what disturbs the subject, it is surely malleable in the opposite direction too.” And if the rule of action and reaction also applies to the human psyche – for a stone to roll on a plane surface, it needs a force to project its weight forward – that crucial moment in our collective memory has yet to happen. The catharsis we expected from the passing of the APA motion did not take place. The administration did not take note. The UN committee against torture continues to plead for acknowledgement, truth, accountability, reparations. Those are not symbolic; truth and accountability can begin a process of healing, and of returning to the roots of the absolute prohibition. There is still much we need to know. We need access to the medical files of Guantanamo detainees; we need the stories of those detained at Bagram; we need the memoranda of understanding between the CIA and collaborating countries to understand how the US persuaded member states to take part in the program, from simple material support – Ireland lending the Shannon airport airfield for refuel – to construction and maintenance of sites in Poland, Lithuania, Romania and many other places. Ben Emmerson called the rendition private a vast international conspiracy. How the Obama administration expects us to forgive and forget is just as unclear. Or maybe the expectations are so low in what our collective threshold of tolerance is, that it becomes acceptable to whitewash a crime of this magnitude.

As the countdown has started on the 30 days during which Congress can oppose the release of long time detainee and British national Shaker Aamer, the question of the motive for his prolonged incarceration – he was cleared for release twice, in 2007 and 2008 – rises again. It is unclear how much we will know about his medical history between his capture and his release, whether medical professionals in London will have access to to treat him, if he will be able or willing to speak. Andy Worthington, a journalist who has spearheaded the campaign for his release, has often pondered whether Aamer was the detainee who knew or saw too much. What this effectively means, we are still not sure. Aamer’s lawyer, Clive Stafford Smith, warned us in an op-ed that a campaign of misinformation seeking to justify the treatment inflicted upon a man never charged with a crime and sold to US authorities by local warlords in Afghanistan would begin. We have a duty not to repress what we know of Shaker Aamer’s torture. We have a duty to resist and endure a debate that should last, no matter how nauseating the details and painful the recollections, until we have full accountability.

When the authors of the APA motion first contacted me, they mentioned my background: I grew up in Belfast, Northern Ireland, under British counter terrorism policies that included the use of torture. It has been part of our small, local, contained history – or so we thought: the evolution of psychological torture, from Kubark to Belfast to Bagram, is now established as linear. On November 30, the judicial review for the case known as the “Hooded Men” will open in the city, and the battle for public versus withheld information will continue to rage. There is a responsibility that lies with those of us who have seen the future of a policy of impunity not to see it reemerge elsewhere.

And this responsibility isn’t rhetorical either.

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

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

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

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

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

fear

 

Terrorism: the diktat of political ideology

Terrorism and self-determination

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

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

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

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

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

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

 

Maintenance of the international standstill

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terrorism as state violence

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Terrorism: the manipulation of the manipulative

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

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

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

And so began the permanent war.

“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.

 

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 ]

All quiet on the eastern front

The cases up for review at Guantanamo are as varied as the inmates themselves; their review boards, still in a dystopian universe of partial, remote disclosure and peculiar choice of classification; their release, despite clearance, more than uncertain. Closing the prison involves trying prisoners that have spent a decade or more inside the walls of a naval base in Cuba under circumstances that can escape their understanding – and that of their legal counsel. In that environment, legal creativity and ingenuity is paramount. And sometimes, it’s the pragmatic and hard cold logic that can perhaps build a way out.

Khalid Odah holds a picture of his son, Fawzi (c) LA Times

Fawzi Odah, one of 12 Kuwaiti detainees

Fawzi Odah is a citizen of Kuwait, the son of an Air Force colonel who had collaborated with the US during the first Gulf War. Captured in early 2001, he was then 23 years old. According to his family, Fawzi was performing acts of charity in Afghanistan when he was mistakenly captured in the post 9/11 frenzy that sent US troops to the region. The Pentagon’s version is vastly different – he would have been seized while roaming the Tora Bora mountains, carrying an AK-47 and swearing allegiance to Bin Laden. US bombs were at the time shelling the area, and Fawzi would have either been helping victims – or participating in the recruitment and training of a London-based terrorist cell. Those versions are mutually exclusive, and only a thorough judicial investigation could bring the truth forward.

The US has been at war with Afghanistan since 2001. Anyone captured on Afghan soil and detained under the provisions of the Afghan war can and should, legally, be considered a prisoner of war. This is what Fawzi Odah’s family and representation are arguing in this case – and in his status of prisoner of war (PoW), Odah should be immediately released as soon as the hostilities end. Problem is, there is no end in sight. If President Obama announced in his most recent State of the Union address that it was time to end “America’s longest war”, the Department of Justice, in Odah’s case, seems to think differently, or, in any case, not buying into the political convenience of announcing the end of a war another administration has started, but failed to bring to a close.

In his latest message to Congress consistent with the War Powers Resolution, President Obama detailed the mission in Afghanistan to great lengths (Libya was a one-liner, Somalia a barely longer afterthought).  He concluded (emphasis mine):

As I noted in my report of June 14, 2013, on March 25, 2013, the United States signed a Memorandum of Understanding (MOU) with the Afghan government under which the United States transferred all Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government. Pursuant to the MOU, any new Afghan detainees are to be transferred to Afghan custody and control within 96 hours after capture. United States forces in Afghanistan continue to detain approximately 53 third-country nationals under the 2001 Authorization for the Use of Military Force (Public Law 107-40), as informed by the law of war.

But can said law of war be truly applied to the indefinite detention that has taken place at Guantanamo for the last 12 years? Is any detainee captured in Afghanistan (as opposed to those found in Yemen or Pakistan) entitled to the protection of the laws of war? There is hope in attempting to grasp a shred of logic, a glimpse of consistency and holding on to the vain idea that the rule of law could ever be called upon when it comes to the horrific fate of the inmates of Guantanamo Bay. This is an unprecedented idea of defence, clearing and release of detainees, and it begs attention for the simple reason that it is at least addressing the fact that Afghanistan has maintained the appearance of a traditional battlefield.

At least for the majority of military deployment. (1)

US troops out on a patrol, Afghanistan, 2009

The 1950 Geneva Convention and Prisoners of War

The 1950 Geneva Convention relative to prisoners of war, their classification, determination, treatment and – eventually – release applies

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Whether or not the conflict in question is in an active phase of hostilities or not is not subject to debate when discussing the provisions of the Geneva Convention. Under Article 4, anyone considered a belligerent and thus captured by one of the contracting parties to the conflict can be considered a prisoner of war. By asking the United States to recognise his status as such, Odah would subject to demonstration the narrative brought forward by the Pentagon, in that he would have been seen carrying a weapon (Art. 4-2-c), a member of a militia (Art. 4-2), and belonging to an authority not recognised by the party having captured them as a PoW (Art. 4-3).

Granted, any person not falling under the straightforward and somewhat easily determined categories of Article 4 can still be detained, without benefiting from the status of protected person – civilians, journalists, medical personnel and chaplains, to summarize – until such time as their status has been determined by a competent tribunal (Art. 5.). Has this time come for Fawzi Odah? Are twelve years long enough for a status of belligerent to be determined by a competent court? In a 2004 decision, Rasul v Bush, brought forward by the ever so relentless Center for Constitutional Rights, Judge Kennedy’s decision raised the issue of the amount of time that passes for indefinite detention to become endless and hopeless detention:

The detainees at Guantanamo Bay are being held indefinitely and without benefit of any legal proceeding to determine their status. As the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The CCR, in their summary of the case linked above, explains that several amicus briefs had been filed in addition to the written argument to the Supreme Court, including that of former American PoWs. This defence just might work, despite the fact that a prisoner of war is still protected by the basic rules of war as defined in the Geneva Convention, which have been violated at will during detention at Guantanamo. A prisoner can not renounce to any of his or her rights under the Convention; and recognition of said status could hereby impose duty to act upon the United States due to violations of humane treatment of said PoWs (articles 13, 14, 15  and 16 have all been violated in Guatanamo Bay. (2))

Guantanamo Bay’s Camp Delta: “Honor bound to defend freedom”

If we accept to – hopefully temporarily – suspend seeking reparation and retribution for the treatment of the detainees at the naval base, and concentrate on the release of the prisoners, in this case Odah – one of the last two Kuwaitis still being held in the prison – the Geneva Convention is clear. This is when the situation of the United States, and President Obama’s promise both in his address to Congress and this year’s State of the Union, meddles into confusion, uncertainty, lack of transparency, if not an egregious discrepancy between presidential wish fulfilment and the thorough pragmatism of the Department of Justice. Per Article 118,

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

In his State of the Union address on January 14, President Obama told Congress, America, the world:

More than 60,000 of our troops have already come home from Afghanistan.  With Afghan forces now in the lead for their own security, our troops have moved to a support role. Together with our allies, we will complete our mission there by the end of this year, and America’s longest war will finally be over.

Between presidential promise and alarming reality

In a piece published today in the Los Angeles Times and written by Richard Serrano, the issue of the Department of Justice catching up on the end of the war in Afghanistan has been made clear: US District Judge Kollar-Kotelly has dismissed the suit, calling it premature. And it is. A promise is not a ceasefire; a presidential speech will not sign the official end to the hostilities; an executive tradition such as the State of the Union and the general call to support the President does not constitute a thoroughly detailed enforced foreign policy. It certainly does not give any specific end date to the war. But it could have given some hope to men detained for over a decade, and who can not see any silver lining beyond the barbed wire fence of the prison. The proverbial end to the war “cannot be known at this time“, said the filing, and concluded,

It is inappropriate to engage in speculation at this time as to the timing of the future end of the hostilities.

Because the war in Afghanistan also launched the War on Terror, which will not end, and perhaps never end if counter-terrorism is vowed to become foreign policy in and of itself, if national security becomes the only motive for international and unilateral intervention, and if presidential edicts replace the War Powers Resolution. The end of the active phase of the hostilities in Afghanistan will not imply the complete withdrawal of US troops in Afghanistan. It will certainly not mean that the proxy war that has been effectively implemented and perfected under the Obama Administration will suddenly cease, hereby providing an end to the reason Guantanamo Bay even existed in the first place. The interpretation of what constitutes an active war has evolved since the Second World War, and has been radically altered by the concept of an international, global, cooperative “war on terror”, this worldwide pseudo-mandate to act and intervene in the name of an unknown, vague, unidentified and especially not judicially indicted enemy. Again, in the State of the Union:

For while our relationship with Afghanistan will change, one thing will not: our resolve that terrorists do not launch attacks against our country. The fact is, that danger remains.  While we have put al Qaeda’s core leadership on a path to defeat, the threat has evolved, as al Qaeda affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, and Mali, we have to keep working with partners to disrupt and disable these networks. In Syria, we’ll support the opposition that rejects  the agenda of terrorist networks.

Obama (c) with VP Biden (l) and Speaker Boehner (r)

The danger remains, but the danger is always present. Any nation-state at any given point can be subjected to attack, unless a Westphalia-like fragile status quo emerges from the 125 countries present at the United Nations. The presence of a danger in no way implies thorough military development, domestically or abroad; in no way does it imply the increasing number of permanent bases abroad; in no way does it demand the full cooperation of other nation-states in their own military deployment in third countries. Any of those actions can be considered an active part of hostilities.

But I will not send our troops into harm’s way unless it’s truly necessary; nor will I allow our sons and daughters to be mired in open-ended conflicts.  We must fight the battles that need to be fought, not those that terrorists prefer from us – large-scale deployments that drain our strength and may ultimately feed extremism.So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing.  That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

The key word here is “aggressively”. The cooperation with the UK, with France, with other NATO allies will surely bring about more active hostilities aside, especially in Africa where danger in Mali has already placed France in a difficult position; where the rules of UN-sanctioned intervention have been all but bypassed in Somalia; and the dim, slow roar of an approaching drone, although unmanned therefore not planned by ancient and obsolete laws of war, still remains an active part of the blood shedding and difficult targeting that is war.

If anything, the Department of Justice has refused to give in to the prudent and patient political rhetoric that is, in effect and deprived of all its emotionally engrossing figures of speech, propaganda. It is claiming an end to war, the longest war, and the promotion of peace while aggressively monitoring foreign deployments and using systems of intelligence, surveillance, captivity, detention, targeted intervention and fantastic, K. Dickinsian levels of technology to fight a war that had never been fought before. It is perhaps more effective to dismiss the idea of a foreseeable end to war. It is also terribly disheartening, disenchanting, and ominous, to deem “inappropriate” the concept of ending a war that has already outlasted any other.

But can we tell a man caged in a prison he had never heard of before, fighting a war he didn’t recognise,  in a country that wasn’t his,  for a crime he says he didn’t commit, that there is no end in sight?

(1) the author is currently working on a judicial review of counter-terrorism laws that will address the legal question of counter-terrorism as a proxy war. 

(2) this includes a vast number of similar provisions specifically detailed in the Convention in addition to the general provisions of the articles listed. Some of which relative to right of legal counsel, right to education and religious activities, and fair trial – which is never satisfied by military commission.