Justice & Home Affairs

One of the most important books I’ve read over the past couple of years is Tommie Shelby’s Dark Ghettos: Injustice, Dissent and Reform. One of the passages that struck me most forcefully at the time is where he discusses the value of self-respect in the face of oppression. “Those with self-respect,” he writes, “live their lives in a way that conveys their conviction that they are proper objects of respect. For example, they resist the efforts of others to mistreat them and openly resent unfair treatment.” (98)

He has a brief, but powerful discussion of this value in and the need to resist if it is to be affirmed:

Oppression can erode a person’s sense of self-respect, causing one to doubt one’s claim to equal moral status. We can understand an attack on one’s self-respect as an action, policy, or practice that threatens to make one feel that one is morally inferior, that one does not deserve the same treatment as others. To maintain a healthy sense of self-respect under conditions of injustice, the oppressed may therefore fight back against their oppressors, demanding the justice they know they deserve, even when the available evidence suggests that justice is not on the horizon. They thereby affirm their moral worth and equal status.

…. Persons with a strong sense of self-respect sometimes refuse to co-operate with the demands of an unjust society. They stand up for themselves, are defiant in the fact of illegitimate authority, refuse to comply with unjust social requirements, protest maltreatment and humiliation, and so on, even when they know that such actions will not bring about justice or reduce theor suffering. Self-respect, then, can be a matter of living with a sense of moral pride despite unjust conditions. (99-100)

This seems absolutely right to me. Resistance may turn out to be futile in the sense that it brings about no lasting change or improvement in conditions, though we hope that it will. Often, as Shelby says a few lines later on, discretion is the better part of valour, both morally and prudentially. But sometimes people just have to stand up to affirm their status as human beings. And when they do the rest of us have to stand with them, and we deny their value, and demean our own if we turn our backs. This is why the many acts of resistance and protest by black Americans and those standing with them are so deeply moving and significant, however this ends.

The UK Home Secretary, Sayid Javid, has decided to revoke the citizenship of Shamima Begum, who notoriously travelled to Syria at the age of fifteen with two companions and married an ISIS fighter. She is now in a Syrian refugee camp, has now given birth to a child and was reportedly keen on returning to the UK. Begum has given interviews saying that she regrets nothing and that she wasn’t “fazed” by seen the severed heads of those murdered by Daesh. Not an appealing character, but, given that she was groomed as a child by a criminal gang, one who might have been seen as a victim in other circumstances.

The UK government has given itself the power to deprive people of citizenship where this is “conducive to the public good” but the law up to now had been that they had to be satisfied that the person would not be rendered stateless. After all, as we know, if citizenship is the right to have right, statelessness is a condition of near rightlessness. In the present case, they seem to be claiming that a person born in the UK who acquired British nationality at birth can be deprived of citizenship because she is entitled to Bangladeshi nationality through her mother. Shamima Begum has never been to Bangladesh and has no connection to the country. Though her case involves terrorism the UK has also begun to use citizenship deprivation in cases involving “serious criminality”, a vague category that is capable of being defined downwards (as it was when Javid spoke about a group of people recently deported to Jamaica).

Millions of people born in the UK and holding British nationality currently have “access to” another citizenship. It may be Irish citizenship (the entire nationalist population of Northern Ireland!). It may be Israeli citizenship through the law of return. It may be the citizenship of some country in Britain’s former empire, such as Bangladesh. The new expansions of citizenship deprivation theoretically expose all of them to the possibility of exile and banishment to another country should they be convicted of serious crime. The immigration regime has long been one where the rule of law is muted, where due process is little more than what the government says it is, and where means of appeal and assertion of rights are limited. By bringing millions of people into the ambit of such a regime, you render them exposed to a system of arbitrary punishment decided upon by a minister. There are two ways to look at this: either millions of ordinary people are subject to tyranny, or they would never do that to ordinary white people, only to those with a “funny tinge”. Either way lies an appalling vista.

Update: I’ve written [a longer blog](https://www.lrb.co.uk/blog/2019/february/who-s-next) (and with improved legal information) at the London Review of Books blog.

The other day, [an article by Chris Deerin](http://capx.co/its-official-western-politics-is-now-defunct/), a writer for the Scottish Daily Mail, appeared on my twitter timeline, retweeted and endorsed by several people I respect. The article argued Trump and Brexit mean that “liberal progressives” have lost and that “the model that has more or less dominated Western politics for the past three decades is defunct. It could not be more dead.” “We” misused that hegemony and are responsible for our own downfall:

> We used our hegemony to take down barriers and borders, to connect and build, to (yes) line our own pockets and smugly luxuriate in the goodness of our ideas and intentions. Meantime, we forgot about those who weren’t able to take part, who weren’t benefiting, to whom free trade and open borders meant greater hardship and uneasy cultural compromises. Or, let’s be honest, we didn’t forget – we just chose to conveniently ignore. We stopped asking for their permission, ploughed on through the warning signs, and fell off the end of the road.

Now “liberal” is a funny old word, mostly used as an insult these days by the Jacobin crowd on the one hand and conservatives on the other. Still, I can’t help but feel that my politics is being condemned here as infeasible and dead whilst wondering whether it is in fact true that I’ve enjoyed such “hegemony” for the past 30 years, because that certainly doesn’t gel with my experience.
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The Guardian today [publishes a vast number of leaked reports from Nauru](https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention), one of Australia’s offshore processing sites for asylum-seekers (in reality, a camp for the indefinite detention of asylum-seekers). The reports, or “unconfirmed allegations” as the Australian government would have it, are a harrowing catalogue of physical and sexual abuse, and of consequences for mental and bodily well-being, often suffered by children. These places exist to appease an Australian citizenry hostile to the arrival of “boat people” who believe that such people — even those determined to be refugees by Convention criteria — are not their problem. Though Nauru is a particularly vile example, it would be wrong to think that Australians are alone in their attitudes to refugees and asylum seekers. Other Western governments are happy to do deals with other states beyond their borders to ensure that the wretched of the earth are out of sight, where they can exist as an abstraction, not disturbing the conscience of their own citizens. Human rights, together with other liberal principles like the rule of law, have become, for many liberal democratic states, the exclusive right of the native-born citizen or, at best, someone else’s problem, somewhere else.

I’d be interested to learn from people in Australia now, how much traction this latest leak is getting in the Australian media. A surf to the websites of the Australian and the Sydney Morning Herald suggests not much.

Yesterday’s verdicts that the 96 Liverpool fans who died at the 1989 FA Cup semi-final at Hillsborough were unlawfully killed is a complete vindication for their families who have campaigned for justice for 27 years. It is also a total condemnation both of South Yorkshire Police and of their friends among the tabloid press, the pundits and the politicians who first blamed the victims and then spent years treating the bereaved with contempt. I’ll not say more about the facts and the history here, since [there](http://www.theguardian.com/football/2016/apr/26/hillsborough-families-27-year-struggle-for-truth-vindicated) [are](http://www.liverpoolecho.co.uk/news/liverpool-news/hillsborough-myths-exposed-inquests-tissue-11247115) [plenty](http://www.liverpoolecho.co.uk/news/liverpool-news/hillsborough-disaster-inquests-verdicts-delivered-11240268) [of links](http://www.bbc.co.uk/news/uk-20782891) that people can follow. I just want to say a few general things. First, there is the lesson that sometimes people who campaign against injustice, who stubbornly stick to their task over the decades can win, even against the state and its supporters. Second, we need to notice, again, how injustice comes about and persists where the victims are people who don’t matter in the eyes of the powerful. In 1989, Scousers in general and football fans in particular were people who didn’t count, who didn’t matter, who could be stigmatized and stereotyped as feckless, violent, drunken, workshy and blamed for their own misfortune. Later they were whingers with a “victim mentality”. Third, for all that pundits ridicule “conspiracy theories”, there are sometimes conspiracies by the state and its agents, perpetrated against “people who don’t matter”, and aided by those same journalists and commentators with their contempt for the victims, their lack of interest in the facts, and their deference to the official version. Everywhere, “people who don’t matter”, whose interests are ignored and whose pain is ridiculed, can take heart from what the Hillsborough families have achieved. The next step for justice should be the prosecution of those responsible.

Here at CT we’re not big on posting about topics just because they’re happening. (Unless it’s the 6 Nations, obviously.) But this Apple FBI back door saga is making me feel I should post something, not because it’s topical, not because I know a lot more about it than anyone who reads a decent newspaper / tech journal etc. (because I don’t), but because it’s becoming clear that this event is morphing into something of a turning point in how governments interact with tech firms in the US and, at more of a distance, the UK.

(For a comprehensive and thought-provoking piece on governments and tech intermediaries, read Emily Taylor’s recent piece, The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality, for Chatham House.)

I’m going to assume you know most of the facts and the larger repercussions, and just jot down a few observations of my own and that I’ve come across in various digital rights back channels. [click to continue…]

The English columnist Nick Cohen had [a piece on immigration in yesterday’s Observer](http://www.theguardian.com/commentisfree/2016/feb/06/liberals-harsh-truths-help-refugees-syria). For those who don’t know his work, Cohen is a former left-wing radical journalist who has now renounced “the left” for its supposedly regressive views and who, post-epiphany, lashes “liberals” and others in the pages of the Spectator and Standpoint. A Paul Johnson for a new generation.

His latest effort is full of his trademark jibes that “the left” is soft on Putin, together with swipes at stock figures such as the “no-platforming student dogmatist”. But let’s leave the fluff and the fury aside and concentrate on the substance of his piece.
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The UK’s Foreign Secretary, Philip Hammond, made a speech this morning at RUSI, the main military-focused think tank in the UK. That’s the same Foreign Secretary who when at the Ministry of Defense decided to can one fifth of the army, speaking at the same think tank that put out a report yesterday saying Hammond’s government will cut about 43,000 more soldiers – from an army of less than 100,000 – if it’s re-elected. That’s the Foreign Secretary presiding over an FCO whose Russia experts have been let go and scattered to the four winds of oil companies, think tanks and academia, because God knows the UK doesn’t need that kind of expertise. That’s the same Foreign Secretary who can barely spell Brussels, let alone bear to go there, and who is quite satisfied leading the foreign service of a country that increasingly distrusts and fears all things foreign. That one.

Hammond’s speech is easy to summarise: Russia is very mean and bad; ok fair enough, we didn’t foresee ISIS; but if only people would stop all this pointless bleating about the security services’ oversight and transparency, we could get on with our job of protecting the people of Britain. How strong. How plausible. How brave.

It’s only at the level of detail, or rather its self-serving and specious claims, that Hammond’s speech breaks down.

What Hammond says: ‘We said we would legislate to ensure that cases involving national security information could be heard fairly, fully and safely in our courts. And we did.’

What the government did: further entrenched secret courts and a parallel justice system where evidence against individuals cannot be seen by them or their lawyers, destroying the principle and practice of fair trial.

What Hammond says: ‘We said we would strengthen independent and parliamentary scrutiny of the agencies. And we have by making the Intelligence and Security Committee a statutory committee of Parliament.’

What the government did: Make Parliament’s Intelligence and Security Committee a statutory committee. Whoopee. Anyone who thinks the ISC provides effective oversight should watch some video of its fawning audiences security service leaders or examine the politicised timeline and gutless redactions of its report on the murder of the soldier Lee Rigby. Failing that, examine the record of career securocrat Malcolm Rifkind, its Chair who just resigned for peddling access to the Chinese. [click to continue…]

> And when they [the wise men] were departed, behold, the angel of the Lord appeared to Joseph in a dream, saying, Arise and take the young child and his mother, and flee into Egypt, and be thou there until I bring thee word: for Herod will seek the young child to destroy him. When he arose, he took the young child and his mother by night, and departed into Egypt: And was there until the death of Herod: that it might be fulfilled which was spoken of by the Lord by the prophet, saying, Out of Egypt have I called my son. (Matthew 13-14).

Joseph, Mary and Jesus were able to get asylum in Egypt, having, as they did, a well-founded fear of persecution, and when it was safe for them to return, they did. Today, by contrast, wealthy states (like the Egypt of the time) do all they can to prevent those fleeing political or religious persecution from getting across the border. The barriers are such that many people take desperate risks to escape the regimes they are threatened by in Syria or Eritrea, and end up drowning in the Mediterranean. Those that do make it are often disbelieved, stigmatized as “bogus” asylum-seekers, and even prosecuted for using false documents to enter.

Many of the citizens of those wealthy states will take part in Christian religious services over the next few days, perhaps the only time they do that year. Many will be people who vote for parties committed to “clamping down” on migrants and erecting further barriers to the persecuted. Let’s hope that at least some of them notice that the Christmas story is also a story of refugees.

PR Strategy: “TECH COMPANIES MUST DO MORE”

The problem:
Britain has declining ability to get US Internet companies to share information they’re not legally obliged to.

The cause:
Snowden revelations mean US companies keen to dissociated themselves from close and informal intelligence cooperation; first to go is the UK. Also, they are using more encryption.

The media narrative:
‘Tech firms must do more in the fight against terror’

TIMELINE
The Warm-up Phase
30 September
Home Secretary tells Conservative Party conference of ‘outrageous irresponsibility’ of Liberal Democrats in blocking greater surveillance powers for the police and security services, and says Britain will ‘face down extremism in all its forms’. Also, children’s lives put at risk by the Lib Dems.

Late October
Security minister James Brokenshire meets Google, Microsoft and Facebook in Luxembourg to ‘discuss ways to tackle online extremism’.

4 November
New head of GCHQ, says on front page of the FT: Web giants such as Twitter, Facebook and WhatsApp have become “command-and-control networks… for terrorists and criminals”. They must do more to co-operate with security services.

14 November
Prime Minister addresses Australian Parliament before G20 Summit: Facebook, Google, Twitter must live up to their social responsibilities and do more to take down extremist material from the internet.

All Systems Go

Sunday 23 November
Home Secretary does the softening up – goes on television to say the terror threat is greater than ever and the “time is right” to give police and intelligence agencies greater powers to require tech firms to give more data to the government.

Monday 24 November
ISC releases its heavily redacted report on the Lee Rigby murder. It finds operational failings in the intelligence agencies:
• MI5 delays investigating Adebolajo following his arrest for suspected terror offences in Kenya;
• Failure to scrutinise his phone records – which showed contacts with overseas jihadists;
• GCHQ failing to report evidence linking Adebowale to extremists;
• Police failure to arrest Adebolajo just before the attack – on suspicion of drug-dealing – after they “lost his address”

ISC’s Chair ‘accused internet companies of providing a “safe haven” to terrorists – an unnamed tech firm had failed to recognise and hand over radical postings by Adebowale to the government – but said despite a string of failings by the security services, which had repeatedly monitored both men before the attack, there was nothing they could have done to prevent the murder of Rigby.’

Lib Dem committee member, Ming Campbell, says “It is a remarkable coincidence, some might say, that the home secretary should have chosen to make public her further proposals on the eve of the publication of the ISC report. No doubt the purpose of doing so was to link her proposals to the committee’s conclusions. The committee never considered those proposals.”

Tuesday 25 November
Prime Minister to ISC: ‘Tech firms must do more to fight extremism’
Leader of the Opposition agrees. (Well, he can’t be soft on terrorism, can he?)

Wednesday 26 November
Sun headline: FACEBOOK – BLOOD ON THEIR HANDS

To be published later today: draft bill extending police and agency powers of data access ‘to tackle extremism’.

Or you could just re-read: ‘Why this Army Wife Says ‘No’ to the Snooper’s Charter‘

UK CT readers, please read this Open Rights Group myth-buster on the surveillance legislation the three main parties have stitched up behind closed doors, and plan to vote through as an emergency tomorrow. Is your MP planning to vote for it? If they are, ask them if they will support a (to be tabled this afternoon) amendment that will bring the sunset clause down to 6 months – surely enough time to fix the ’emergency’.

(More analysis from Paul Bernal here.)

(Email your MP here.)

What is DRIP?
The Data Retention Investigatory Powers Bill (DRIP) will require internet and phone companies to keep their customers’ communications data for up to a year. It is being rushed through parliament this week: MPs will vote on Tuesday and the Lords will vote on Thursday.

DRIP will replace the Data Retention (EC Directive) Regulations 2009. The legal basis of these regulations has been uncertain since the Court of Justice of the European Union (CJEU) after the CJEU found the EU Data Retention Directive 2006/24/EC to be invalid.
Legal wranglings aside, the ruling was very clear. Keeping everyone’s data in case they commit a crime seriously interferes with our right to privacy and our right to a private family life.

Additionally clauses 3-5 extend UK surveillance law – RIPA – to US and foreign companies. These measures are controversial, not related and there is no evidence that there is any reason for any rush.

Below are five arguments that the Government is using to justify its passing – and the real reason why it shouldn’t.

“This is an emergency”
The CJEU ruling was delivered on 8 April, 2014. The government has had three months to address the court’s findings. We believe that it is the threat of legal action by Open Rights Group and other organisations that has prompted this ‘emergency’ legislation – not the threat of terrorism or criminal activity. The government should not mislead us about the urgency of this legislation. Given its significance and the threat to our civil liberties, It should not be rushed through without proper parliamentary scrutiny.

Background: After the CJEU ruling, Open Rights Group and other organisations contacted the Home Office to ask them if they would be asking internet service providers to stop retaining data. In May, the Home Office responded by saying that ISPs should continue to retain data. Last month, over 1,500 ORG supporters wrote to their ISPs asking them to stop keeping their data. They responded by saying that they were acting under the instructions of the Home Office.

“This is not an extension of powers, it’s restoring the status quo”
The Prime Minister said, “we are not introducing new powers or capabilities” but in fact DRIP does not just deal with Regulations that were made illegal by the CJEU ruling. Clauses 3 to 5 of the Bill make amendments to the Regulation of Investigatory Powers Act (RIPA). DRIP extends the government’s surveillance powers in two ways:

It extends the territorial scope of RIPA – this means that the government can issue interception warrants for communciations data to companies outside of the UK.
It extends the definition of “telecommunications service” within RIPA. The effect of this is unclear, but it appears possible the new definition could include services such as Gmail.

“It’s the only way we can catch criminals”
We agree that the targeted retention of communications data can help the police to tackle serious crimes, such as terrorism and child abuse. However, the CJEU ruling outlined a low threshold for deciding to retain data. For example, if a serious crime if committed, data could be retained for a particular geographical region to support a criminal investigation. This means that the police could still retain data for specific investigations, rather than the blanket surveillance of all citizens.

The CJEU ruling was clear that blanket data retention interfered with our right to privacy and our right to a private family life. Other European countries, including Austria, Belgium, Bulgaria, Germany, Greece, Romania and Sweden, have rejected it. These countries continue to tackle serious crime without undermining their citizens’ civil liberties through blanket data retention.

“There is a sunset clause”
The Bill will expire on 31 December 2016. The government claims that this will ‘strengthen oversight and transparency’ but that is two and a half years away. Given that the Bill is to be rushed through parliament in a week, we believe that this date is too late to allow for proper parliamentary scrutiny. If legislation is to be rushed through without debate, an earlier expiry date of 31 December 2014 would allow for scrutiny in six months.

“The Bill includes concessions that take into account the CJEU ruling”
DRIP ignores the main part of the CJEU ruling – that blanket data retention severely interferes with the fundamental rights to respect for private life and to the protection of personal data. The government has claimed that other aspects of the Bill will strengthen oversight and transparency. For example, they claim it will restrict the number of public bodies that can request communications data. Yet this concession does not appear in DRIP or the secondary legislation that will implement it.

The UK’s Institute for Public Policy Research has just published a new report on immigration, “A fair deal on migration for the UK”. Given the recent toxicity of the British debate on migration, with politicians competing to pander to the xenophobic UKIP vote, it is in some ways refreshing to read a set of policy proposals that would be an improvement on the status quo. Having said that, the status quo is in big trouble, with the Coalition government having failed to reach its net migration target (the numbers are actually going the wrong way) and with open warfare breaking out between ministers. Given the current climate, however, this probably marks the limit of what is acceptable to the Labour Party front bench (who have notably failed to oppose the current Immigration Bill), so it represents a marker of sorts, albeit that it is a strange kind of thing to be masquerading as a progressive approach.

The report is structured around the need to respond to the current “crude restrictionist” approach to immigration and positions itself by rejecting other views which it characterizes as “failed responses” (pp. 9-10). Leaving aside the “super pragmatist” approach which is actually remarkably close to their own, these are the “super-rationalist” and the “migrants rights activist” approaches, the first of which consists of telling the public clearly what the current social scientific research says and the second sticking up for a vulnerable group on grounds of justice. Since both of these groups have strong grounds for doing what they are doing — telling the truth and fighting injustice, respectively — it seems rather tendentious and self-serving to represent them as being simply failed attempts to do what the IPPR is trying to do, namely, influence senior politicians.
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I don’t usually link to the bits and pieces of media that I do – it’s for a different audience than the CT audience. But I’ll be doing the “Warren Olney show”:http://pri.org/programs/point tomorrow, and it promises to be … lively – the other guests are Stewart Baker, Josef Joffe and Joseph Wippl (a former CIA security professor, who I don’t know). Wish me luck.

Responding to concern about PRISM and the issue of whether intelligence collaboration with the US enabled British agencies to circumvent legal restrictions, Foreign Secretary William Hague told us that “law-abiding citizens” have nothing to fear. Not only do I not wish to be the kind of person Hague thinks of as “law abiding”, more generally it is social movements that willfully break the law that are most likely to bring about change and to threaten established power and privilege. And it is just such movements, and their leaders, who are at risk from pervasive state surveillance of our communications.
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