Against politeness

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Photo by Zach D. Roberts for Nation of Change.

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

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

Free speech absolutism in the age of Trump

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

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

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

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

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Photo by Zach D. Roberts for Nation of Change.

Polarizing attitudes and the Free Ride Theory

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

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

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

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

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

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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

 

“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.

 

Strangeways, here we come: redefining public interest

When Barack Obama took office in 2009 under the banner of hope and change, he signed a presidential edict banning the use of torture – and certain euphemisms, such as “enhanced interrogation”, “coercive methods” – against prisoners detained in United States custody abroad, even those ubiquitous and extremely numerous enemy combatants. They however never found relief from those human rights violations: as Jeffrey Kaye explained in a series of important coverage for Firedoglake and in this instance in The Guardian, the Army Field Manual – still in use to this date – still authorizes and details methods of interrogation that effectively amount to torture. As such, the ACLU filed a FOIA requests regarding the treatment of detainees in US custody. Al-Jazeera journalist Jason Leopold filed a similar request in 2013, which he details here, seeking to access documents pertaining to the treatment of detainees. From then on, it became a battle between Leopold and the US Army as to whether he would obtain those files.

Initially, as one would somehow expect given the sensitive nature of the topic and the culture of hyperclassification practiced by the Obama administration, his request was partly denied. The US Army indicated it had identified 35,800 documents relevant to his requests, but Leopold would not be immediately granted access. Usually the beneficiary of a fee waiver – granted to researchers and journalists in the name of the public interest of their requests – Leopold was then told that in order to obtain the documents, he would have to front the prohibitive and deterrent sum of $5,355. Refusing to be intimidated by financial pressure into dropping his request, Leopold continued to file against the Army, which in turn stubbornly refused to relinquish the files. Last week, Leopold received another response from the Army – which is infuriating on one layer and, to me, for the reasons I will expose in this article, was absolutely chilling.

“In determining ‘significance,’ an agency must assess the likely impact of the disclosure on the public’s understanding of the subject in question, as compared to the level of public understanding of that subject existing prior to the disclosure. Because numerous [Army Criminal Investigative Division] investigations related to Guantanamo detainee treatment are already available online, and because the subject has been widely discussed by both the media and the military, we do not find that release of the [Criminal Investigative Division] reports in response to your present request would significantly enhance public understanding.”

A journalist wishing to report on gross human rights violations committed by a secretive administration in the name of a counter-terrorism policy defying the international rule of law does not satisfy the criteria of public interest? This is a redefinition of public interest. Jason Leopold’s request was denied because it wasn’t in the interest of the Army to have those files fall in the public domain. The notion of public interest, obviously narrowed down or enlarged depending on the nation-states and courts defining it, bases itself in the fundamentals of human rights law: freedom of information and its corollary, access to information. Although they seem to be adaptable, fluid and fluctuant, the necessity to return to the core of the significance of the disclosure in the name of public interest has never been more relevant. From the NSA files to CIA black sites, it was through pro-active, aggressive and challenging journalism that 2013 has managed to provide a realm in which the executive could be held accountable. To some extent, it worked; to another extent, it criminalised journalists, forced them into retreat, arrested their lawyers, and turned their own fellow citizens against them.

Trevor Timm (*), lawyer, executive director at Freedom of the Press Foundation (*) only a few months younger than me.

Journalism is not a hobby. It often is a calling, hardly financially rewarding, often extremely frustrating. But in 2014, in the United States, the United Kingdom and beyond, it has become an act of rebellion. It is our civic duty to pay attention to journalists and what happens to them under political duress. It is mandatory to remind the authority challenging them they are protected by the law. Freedom of information is a human right; access to information is a direct and derivate of this human right; and national security derogations must be subjected to judicial scrutiny. Public interest is defined by members of the public, not executive authority.

Freedom of information as a human right

This is not a new debate. The principles remain the same, and have been since the Universal Declaration of Human Rights (UDHR), adopted in 1948 at a United Nations General Assembly (UNGA) with the notable abstention of seven soviet nations and Saudi Arabia. Per Article 19,

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

In a 1995 report, then- UN Special Rapporteur on Freedom of Information Abid Hussain released a report that aimed at focusing on the basic, fundamental principles of freedom of information and its absolute necessity in a healthy democratic society. Unabashedly, Hussain reiterated that the UDHR could not be restricted in the liberties it enshrined, and later conventions adopted in its wake – namely, the ICCPR – could not be safely, democratically and legitimately, be derogated to. Hussain explained that violations and restrictions on freedom of expression never arrived alone, and were usually hand in hand with other human rights violations, committed with impunity thanks to the silenced members of the community who would have otherwise been empowered with denunciation of abuse.

The Special Rapporteur is concerned about the continued intimidation, harassment and use of violence against writers, press professionals and other persons seeking to exercise the right to freedom of opinion and expression. (…) He is also concerned at the many instances of persecution of such professionals and other persons, and about the many reports of convictions under national legislation of such professionals and persons to severe sentences, including prolonged prison terms and corporal punishment, in violation of the right to freedom of opinion and expression as affirmed (…)

If Hussain was still upholding his position today, he would be appalled at the treatment the United States  – commenting on the ICCPR that it would never restrict the liberties granted by its own Constitution – and its government reserve to journalists who expose the abuse of supra congressional legitimacy, presidential authority, and use of force. Hussain spoke in his report about the state of the world shortly after the end of the Cold War, when the press beyond the Iron Curtain belonged to the state and was controlled by the state; when information was distilled by the state; and any modicum of personal opinion was under heavy surveillance as to be quenched before it even had a chance to be heard.

Jason Leopold, FOIA terrorist, third from left

If one is to believe there is no such thing as absolute freedom, absolute liberty, and absolutist application of human rights law, which is the pragmatic aspect of the legal community and the tendency to which domestic courts tend toward, the principle of derogation in the name of extraordinary circumstances, emergency powers, or national security imperatives can and has been applied. Hussain, however, back in 1995, observed – and in hindsight, foresaw – the increasing degree to which the discretion granted to national security could lead to abuses.

The Special Rapporteur finds that the protection of the right to freedom of opinion and expression is not always adequately guaranteed through ratification by States of the [ ICCPR ] and other relevant international instruments. In his opinion, such protection requires a continuous political commitment that includes implementation of specific policies and programmes. Furthermore, the Special Rapporteur much regrets the existence of, sometimes prolonged, crises in which violations of the right to freedom of opinion and expression are justified on the basis of outmoded notions of national security (…)

This is when the thorough application of the ICCPR became an issue of both legality and legitimacy.

Freedom of information as a political right 

In 1966, the ICCPR followed suit in yet another Article 19, this time more specific, more direct, and granting a derogation that was foreshadowing.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (…)

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Morals are subjective; public health can be determined according to contemporaneous  imperatives; public order is usually a measure of exception; however, in the current state of western democracies, discretionary use of national security – which for the purpose of this article will be placed in opposition to the notion of public interest – is allowed. As such, at the time of ratification (1992), the United States did not emit any reservation to Article 19. In fact, it doesn’t need to.

CIA black site in Poland (huffingtonpost)

If derogation for national security purposes can be legitimate, they often are in a situation of temporary suspension of civil and human rights – that must be, always, subject to judicial scrutiny. They can never be made permanent. If such a suspension tends to last in time and escape the inquisitive eye of the courts, and is taken away from the representative body at any point, those rights can be considered effectively violated. The issue of secrecy surrounding national security raises two fundamental questions: a) how is one supposed to know their rights have been violated, if the law itself has been taken back by the executive authority – decisions made by secret courts, unpublished edicts, and obscure, paraphrased interpretations? The disclosure of the law can not become a national security imperative. The law belongs, at all times, and without derogation, to the public domain. At every point in a citizen’s life and in the duration of any given administration, access to the law must be granted. Refusing to disclose decisions either made legal or surpassing legal authority is an automatic red flag for abuse. b) the lack of knowledge, information, expression and opinion leaves a space in which the authority remains completely and absolutely unchallenged. There has never been an issue for which the phrase “knowledge is power” has been more true. Journalism in itself bears the duty of public interest: it reveals, at its core – and can detail, analyse, provide, inform, orientate – what ordinary citizens can not necessarily access in real time. A journalist is a witness of the world in which he evolves; he is the medium through which the political and civil climate, national or international, is expressed. A journalist is a relay. Suppress the possibility for a journalist to access basic information, and the population can no longer exercise its right as an informed electorate to perform its civic duty.

As Hussain said – freedom of information is the cornerstone of democracy.

Article XIX: The Johannesburg Principles

In 1995, a group of experts on national security, human rights and international law convened in Johannesburg for Article 19, an international centre against censorship. The principles laid out by Article 19 are non legally binding, and do not present a need for signature nor ratification. However, they have become customary as affirmed first by the Special Rapporteur Hussain in 1996, but later on in the following years by his successors. Every year, the Johannesburg principles are re-affirmed and quoted by the United Nations Commission on Human Rights. The Principles have one specificity – they aim to be applicable in complete acknowledgement of the derogations provided by the ICCPR, and in recognition with the minimum standards of human rights norms in a state of emergency. In short, the Principles lay out the fundamentals of freedom of information and access to information in spite of national security concerns and war time.

Alexa O’Brien, personified legal database of USG v Private Manning

What is fascinating is how the Principles define national security – more importantly, legitimate national security. According to international law and enforced treaties, national security derogations can only be justified in one case – the protection of the territorial integrity of the state endangered by internal or external use of force. In 1995, those principles clearly referred to international armed conflict or state of insurgency. In 2014, where the notion and vague definition of terrorism includes anything and anyone that can potentially threaten the integrity of the state – extended to the state apparatus as opposed to territorial menace – national security can be called upon whenever a government feels threatened. This state of affairs, which has been exacerbated by continual fear-mongering and the replacement of civic duty with unquestioned patriotism was thankfully anticipated by the Principles. Principle 2 (b):

In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

From class warfare to civil rights abuses, to a culture of secrecy, the Principles have never been more than necessary today. All journalists currently targeted have exposed extreme and international-scale wrongdoing by their own governments: mass surveillance; use of torture; secret prisons / black sites / rendition programs; classified use of military force; prosecution of government whistleblowers; executive and judicial collusion in military tribunals. Even the constitutional lawyers are now potentially under threat. Most of those journalists, from Jason Leopold to Alexa O’Brien, from Glenn Greenwald to James Risen, had to eventually either leave the conventional news outlets that had previously employed them, work freelance, or find a way to create their own media source. All of them, at some point, have expressed uncertainty as to whether they would be allowed to travel. All of them have been granted extensive and complex methods of counter-surveillance and electronic encryption to protect their information, data and sources.

None of them, at all, at any point, have committed any crime, violation, or been guilty of unlawful behavior. They were however referred to as criminals at Senate hearings, or publicly disparaged by government spokespeople. The existential threat that creates the necessity for national security in the realm of freedom of information is not an external use of force that may create violence and mass casualties. It is an internal threat that is not terrorism the way we customarily understand it. National security is employed to cover challenges against the state.

And yet, they are forced underground, sometimes even policed by their own colleagues – what Kevin Gosztola revealed in terms of  “journalists policing journalists“, in which traditional and somewhat government-approved methods of reporting are perceived as more legitimate than disclosure; where public interest is decided by the state, not the dictates of public conscience; and where whistleblowing is not just an inconvenience, but cause for public shaming. In Principle 6 (c), is a denunciation of disclosure or information that constitutes incitement to violence, or could cause damage and casualties. James Clapper had referred to the casualties of Glenn Greenwald’s work. Louise Mensch believed the Guardian revelations endangered agents of the Crown. It will almost be a year since the NSA files were brought to light, and no casualties has ever been accounted. With notable exception, of course, of public respect for Gen. Keith Alexander. Principle 15:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

Burden of proof lies on the executive authority.

Gen. Keith Alexander (businessinsider)

Towards a definition of disclosure of public interest

What constitutes public interest varies from state to state and from era to era. It varies depending on the political situation of the nation; it varies depending on the extent of the disclosure. As such, and as repetitive jurisprudence against The Guardian and The Observer in the United Kingdom between 1979 and 2002, public interest is, as mentioned earlier, weighed against national security interests. There is no definition as one is inversely proportionate to the other. It therefore belongs to the public conscience of the whistleblower and/or the journalist to disclose what they believe to be in the public interest. It is a matter of conscience, personal, and national. Most importantly, it is a matter of responsibility. Will the disclosure, non-redacted or partially redacted, will impact the lives of others? Will the disclosure lead to acts of violence, domestically or internationally? Most importantly, will the disclosure in itself be damaging, and if yes, to whom? In the case of the NSA files, there have been gratitude expressed by other states for the release of information they would have otherwise not suspected, as most operated in good faith. They led to overhaul of telephone lines at the European Parliament; draft United Nations resolutions on the right to privacy; new methods of counter-surveillance developed by states impacted by the NSA. They did not only change the face of western foreign relations as we had perceived them since the end of the Cold War; it also impacted the lives of ordinary citizens for whom the overwhelming, crushing state apparatus has robbed them of a right to fair trial. The NSA files were damaging disclosure. But this damage had the consequence to not only bring about an element of fundamental truth in diplomatic relations, they also forced citizens to question the legitimacy of their own government. This has only just started, and is still heavily resisted from a non-negligeable part of the population. But it has started. And in this, NSA releases constituted public interest.

To get back to the work of Jason Leopold and whether his request to obtain files on the treatment of detainees constitutes public interest, a quick look at his work of the past two years provides a sufficient overview of what Leopold is after, and what he seeks to achieve. There is a pattern of defying a culture of classification, which in itself was bound to provoke governmental agencies to react and stonewall him, despite rights provided by the FOIA; there is a pattern of seeking information relative to widely reported human rights abuses at the prison of Guantanamo Bay; but within this, lies the bigger imperative of putting together a narrative spanning much longer than reporting on the War on Terror usually spans. Leopold is evidently after tracing a historical, chronological analysis of all decisions surrounding counter-terrorism that have created the abusive policy that we all live under. For instance, one of his most important work to this day has been the obtention and release (in full!) of the diaries of Abu Zubaydah, a Guantanamo detainee captured in Pakistan, tortured in several sites – including secret CIA bases in eastern Europe – and his detention at Guantanamo. Far from being the unique tale of one single inmate, the release of the Zubaydah diaries provided an incredible and unparalleled look into the collaboration of the United States with foreign intelligence, the systematic span of CIA interference on sovereign states and secret deals with foreign governments, and the widespread practice of torture – despite the edicts Obama signed since his tenure in office.

Ben Emmerson QC

Several cases investigating CIA black sites are currently pending in several courts; against Poland, at the ECtHR; against Lithuania, domestically; and in a parallel investigation by UN Special Rapporteur on human rights while countering terrorism, the ever so relevant Ben Emmerson, attacking the culture of secrecy as practiced by the US government in systematic human rights abuses around the globe. Filing as a third party in the Abu Zubaydah v Poland in December in Strasbourg, Emmerson had a few words regarding freedom of information and public interest:

 the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society. (…) It may appear counter-intuitive to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.

Ben Emmerson is a man who has always chosen his words extremely carefully, keeping in mind the weight they carry upon those they are cast. Entitlement to a right does not mean it can be taken away from the citizenry at every governmental whim or according to a specific political agenda. Entitlement means permanence and non-derogation. It means it can be called upon in times of necessity. It means the dictates of public conscience carry within themselves the power of surpassing an abusive use of national security powers; it means they belong to the citizenry and their witnesses – journalists.  When public interest is suppressed in the name of national security, it no longer is national security. It is national control.

That declassification of CIA material that Emmerson called for, in his capacity of barrister and UN special rapporteur, Jason Leopold is tackling with his full weight. Senator Feinstein’s $40 million report on the use of torture and CIA black sites has yet to be released, despite containing information that could be extremely useful in the current litigation and investigation upon abuses committed under Bush and Obama. There came the crushing frustration of inter-governmental authority: despite Feinstein herself wishing for it to be released, at least in part; she has been blocked with the CIA, disagreeing with the findings of the report, and wishing to keep it classified. In the midst of all self-provoked confusion, Leopold filed a FOIA request to obtain the report. It was bumped back to the Department of Justice, which replied with that line:

Subject to Executive Branch classification review to protect against the public disclosure of classified information, SSCI has reserved complete control to make any public release of the document once Executive Branch comments are provided to SSCI for review.

Now, who do you trust?

Safe European Home: the Glenn Greenwald divide

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

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

photo-7

Glenn Greenwald addressing the European Parliament Civil Liberties Committee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is England: erosion of civil liberties under Cameron

Illustration for Pink Floyd’s The Wall, 1979

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

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

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

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

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

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

Detention powers and European law

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

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

Deprivation of citizenship and international law

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

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

Home Secretary Theresa May

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

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

Anti-Social Behaviour, Crime and Policing Bill – 2013

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

When protests become riots. Tottenham, London, August 2011

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

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

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

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

insert subtle reference to declaring war and battle coming down

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

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

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

Corner soul: is freedom of information a human right?

Have we taken freedom of information for granted? The logical corollary to freedom of conscience and freedom of thought, freedom of information is enshrined at constitutional level as a basic civil liberty, ensuring freedom of opinion, independent investigation, the right to dissent, expose facts objectively and sometimes subjectively, creating an informed public owing to journalism the possibility to form a complex and critical opinion of the government they, in democratic societies, choose to represent them. Freedom of information is protected as freedom of speech, freedom of expression, to convey and relate an idea, a belief, a value, a principle and the results of research without fear of retaliation from a government seeking to annihilate opposition. Freedom of information is the freedom of the press; it is the freedom to compare and contrast and conclude what’s best; it is the freedom to figure out what is taking place where we do not have access; it is freedom to understand a world we can’t always see or hear. Freedom of information is not only a link between the public and those who represent it; it is also a link between ourselves, and a link between us and those far away from us and whose fate is somehow, to some extent, in our hands.

More than ever freedom of information is now being restricted, facing secrecy and classification of documentation, arrest and imprisonment of journalists, probe into newspaper access, seizure of personal documentation while in transit, all in the name of the overwhelming and overpowering concept of national security. The overreach of counter terrorism legislation has led to an impossible and seemingly unwinnable war against freedom of information, at a time when whistleblowers do not benefit from the protection of the law despite their clear intent and objective to act as they do in the name of public interest and defense of the collective. When constitutional rights have failed at domestic level, and security no longer ensures the safety of a citizen to access information about their own rights, can we restore freedom of information in its rightful place? Is freedom of information a cornerstone of human rights?

A “touchstone” of democracy

Freedom of information is not a choice by any democratic society to uphold; it is a fundamental right enshrined in international law on the very first United Nations General Assembly (UNGA) in 1946. In its resolution 59 (I), the UN claims “freedom of information is a fundamental human right… The touchstone of all the freedoms to which the United Nations is consecrated.” In a later report established in 1995 for the UN Commission on Human Rights (UNCHR), Abid Hussain explains:

(…) freedom will be bereft of all its effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.

There lies the suspicion that any violation of freedom of information is an indication, a red flag of further human rights violations to come. This cornerstone of what is merely transparency between a government and the population it represents in order to prevent abuses and declare collective responsibility has been enshrined in the International Covenant on Civil and Political Rights (ICCPR), a 1966 text that aimed to derive civil rights from basic fundamental human rights legislation and ease their transition into domestic law. A Special Rapporteur on Freedom of Opinion declared in 1999 that the ICCPR should suffer no restrictions:

(… ) Emphasizes that everyone has the right to seek, receive and impact information (…) this imposes a positive obligation on Stares to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems (…) as referred to in Article 19 (3) of the ICCPR.

This “right to know” is unequivocal. However, the language of the Special Rapporteur ought to be noted: we understand freedom of information as freedom to receive it – newspaper publication and distribution, television and radio broadcast, online publication – but the Special Rapporteur has also added another component: the right to seek information.  The right to seek information is an important derivative: it means that if one information is not readily available through the regular aforementioned channels, any citizen is within their given right to go and look for it. This involves direct access to information, not simply accessible information. Failure to disclose is not failure to inform; a non-disclosure should be counter-acted by a request to information, under the concept of obligation by a state to respect freedom of information.

Restrictions on freedom of information, however, are tough waters to tread. In the landmark case Miranda v Arizona, the reasoning behind mandatory information of one’s rights was that, without key access to knowing their own rights, “a defendant cannot take a appropriate role in the exercise of those rights”. If freedom of information is a fundamental human right, who are we trying to stop exercising those rights? Like with most modern breaches of human rights, the concept of security has appeared with a notion of public defense and public safety that could only be achieved through covert action. Information about police activities, troops placement, military bases, current investigations and judicial proceedings are restricted from access in order not to obstruct the course of justice. Is it however justice that is being protected when restricting information, or are we keeping it under lock? When it comes to counter terrorism methods, violations are so common and the rhetoric always similar from nation to nation it is becoming sound and acceptable policy to restrict basic civil liberties to be “protected” from an enemy increasingly knowledgeable and ubiquitous. However, this belief is peppered with cases of abuse of those restrictions.

The Guardian headline following the detention of David Miranda

The arrest and detention of David Miranda: information as terrorism 

Glenn Greenwald, the journalist who revealed to London-based newspaper The Guardian the extent of Edward Snowden’s leaks regarding unlawful surveillance of American and European citizens by the National Security Agency (NSA), has suffered much intimidation from the American government since he first started to cover the story. Recently, his own partner, David Miranda, was transiting through Heathrow Airport in London and was arrested then detained for 9 hours under the Anti Terrorism, Crime and Security Act (ATCSA). Amnesty International called the operation “unwarranted and unlawful”. It was.

Voted in 2001, the ATCSA allowed for indefinite detention without charge for individuals arrested on suspicion of terrorism activities. They were considered too dangerous to be released into the public. Under non-terrorism charges, British law requires a maximum of 24 hours of detention, under proof of reasonable suspicion. Suspicion of terrorism does not cover solely the fact of committing an offense; it also refers to detaining information related to that alleged offense. Any failure to provide said information to the authorities is considered an act of terrorism. If Edward Snowden is currently under asylum in Russia and has seen his passport revoked, Glenn Greenwald – and by extension David Miranda – have never been suspected of terrorist activities. However, section 1 of the ATCSA refers to “use of threat of action … (b) designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public; (c) made for the purpose of advancing a political, religious or ideological cause. ”

The European Court of Human Rights has emitted various reserves as to the vote of the ATCSA. Dissenters of the act itself have claimed that its definition of what constitutes terrorism was too broad. Powers granted to law enforcement under this act are also in direct violation of fundamental rights. In the case of David Miranda, the seizure of his property – in this case, laptop, hard drives, USB keys – were covered by para. 3, sect. 5 granting power of seizure of objects when police “has reasonable grounds to believe (they) will be of substantial value”. This reinforces the belief that in Miranda’s case, information is terrorism, since all the powers used against him were granted by the ATCSA (as opposed to, say, the Computer Misuse Act of 2009 that could have covered any WikiLeaks-related charges).  S. 1 of an updated ATCSA from 2006 creates an offense out of publishing “(…) a statement that is understood as direct, indirect or inducement to the commission, predation or instigation to acts of terrorism.” A year later, complaints that the section was way too vague and was in breach of Article 10 of the European Convention on Human Rights (ECHR) regarding freedom of information were made. They were met with the concept of national security, a justification for human rights restriction. Problem is, in the United Kingdom as in the former colony of the United States, what constitutes an issue of national security isn’t clear.

Definition of what constitutes secrecy in Britain falls under five criteria: defense of the realm, prosecution of war, disposition of armed forces, weapons of mass destruction, and last but not least, activities of security and intelligence services, that already had The Guardian in hot judicial waters (Attorney-General v The Guardian Newspapers Ltd, 1988). Recently, those counter-arguments to freedom of information claiming that the free-flow of information, through whistleblowing or leaking, is detrimental to national security have been the cornerstone of domestic policy on surveillance. Because european and by extension international law are laws created by states and implemented by states, restrictions are also implemented by same states for their safety: restriction on Article 10 is in its own section 2, where freedom of information is restricted in matters of national security regarding “territorial integrity or public safety”. (see the Spycatcher case). As established before, fundamental rights guaranteed by statutes similar to Article 10 should not be restricted and any restrictions are to be “checked”.

In Sunday Times v United Kingdom (1979), this national security “necessity” was defined by a “pressing social need” and subject to overall european supervision. In various injunctions made in 1986 and 1987 against the Guardian and the Observer, there was question of whether the protection of national security was “sufficient” to justify the imposed restriction. National security does not, inherently and intrisically, become a justification against civil liberties. It is not a direct counter argument. The two can perfectly coexist without asking for jurisprudence to create a norm. Courts’ opinions shifted over time, while outrage over the Prevention of Terrorism Acts (PTAs) of the 1970s and their dire consequences on “irish terrorism” morphed into the response to a more global, less focused ATCSA. Two criteria remain: sufficient prohibition and proportionate reaction in the injunctions made against freedom of information and freedom of the press. It is abundantly clear at this point that neither of these criteria and none of the aforementioned barriers of protection have been applied in the detention of David Miranda.

Whether free-flow of information can actually present an issue in the case of government and – as in seen recently in the Chelsea Manning case – military whistleblowers is a question of “damaging disclosure”: is the information being published and distributed presenting a real risk to deployed troops, law enforcement operations or diplomatic relations? There is no standard. The government in place at the time places the bar on what it considers to be damaging, what it sees as being a disclosure and what it believes should be classified. In two landmark decisions in Britain (Guardian v United Kingdom, 1992 and R v Shayler, 2002) the extent of the damage is challenged by the concept of “public interest”. Civil liberties – as in the right to seek and receive information as a citizen – is perceived as being equal, if not superior, to the notion of classification due to security. If the population can benefit from an information being disclosed, and can take action for or against a policy as a direct result of the presented information, the notion of damage due to disclosure no longer stands.

Then and now

Death or better days: on the legal protection of whistleblowers, pt. 2

This is the importance of whistleblowing: this is where the core of the debate is. Who benefits the most from leaks being published online? Who is using this information, often presented in a format non easily accessible to non-knowledgeable members of the public? More importantly, what will be the population’s reaction to this information? If there is no such thing as a citizenry presented as a smooth, fluid, homogeneous entity, a reaction can be strong, vocal, and sometimes violent. If a government is attempting to protect itself from popular opposition, ranging from ousting at the next election to overthrowing the regime, it will of course consider the disclosure as damaging. It is in the nature of power to protect itself from what could harm it. Aristotle said it was in human nature to seek knowledge. In the question of freedom of information, it is therefore in the nature of a healthy, democratic and hopefully open society to constantly interact in a state of friction between state interests and civil liberties. If what we hope to achieve one day is complete superiority and unchallenged state of fundamental rights, it will have to be in a representative executive body that never classifies information, never operates under secrecy, and never takes a quizzical look at its domestic newspapers. Has it ever existed?

If friction is mandatory, if it must exists to keep power in place for representative purposes – but keep power constantly questioned and challenged, then friction will be maintained, arbitrated by judicial powers, provided they are not asked to uphold laws themselves not in accordance with the supraconstitutional or supranational ideals they have implemented. Britain will be answering to the European Court of Human Rights one more time in the case of David Miranda; the United States have already witnessed a titanic combat of legal wits when David Coombs, attorney to Chelsea Manning, attempted to explain to Judge Denise Lind the importance and responsibility incumbent to any citizen to hold crimes accountable. The contempt and disdain portrayed by Lind during her interaction with the defense counsel have not done the concept of judicial impartiality any justice. When Coombs tried his hardest to create a space for friction and even provoke it by extending the domain of the conversation on not just the means employed to leak information, but the very reasoning behind Chelsea Manning’s actions, a hand was raised as if to silence the broader implications of disclosure. If freedom of information is a human right, it has both a negative and a positive corollary. On the positive, it can be claimed, and obtained, by any citizen wishing to access information. On the negative, it forces an obligation upon the state to not only let information circulate, but also to provide access, and never restrict it. It is an active force, that creates obligations that are hardly ever met, as civil liberties are more and more restricted, only challenged when met with forcible judicial opposition by concerned parties. The only way we can make freedom of information a pro-active right again and impose the negative upon the state is to stay in a constant situation of alertness, and remain aware that restrictions are being implemented to intimidate anyone seeking information. It may be difficult to discern restrictions placed upon the daily circulation of information, as so many mediums are now competing to grab our attention, on relatively relevant issues.

It is important to keep in mind that above all, freedom of information is maintained and kept by journalists and writers, researchers, not simple pawns on the chessboard of civil liberties, but active agents who are protected at the highest level – by the Geneva Convention. Any restriction on the access to information by a journalist, any intimidation formed against them – or their close ones – in order to unlawfully seize the information they possess, halt the publication of an opinion or a fact, destroy collected data, block a server, or worse, physically restrain them by putting them in a prison cell is not just an attack on a profession, it’s an attack on a civil liberty, on a fundamental cornerstone of democracy, and a human right.