February 23, 2005

And then they came for me

Posted by Maria

Via Statewatch, a story of four Air Horizon passengers being prosecuted by the French government for objecting to a forced deportation on their flight. Probably the most chilling aspect is the insistence by cabin crew, policy, the airline and the state that it’s perfectly normal to share a plane with a hysterical man crying “I am not a slave” as he is assaulted and gagged by a glove shoved into his mouth.

This is the reality of European immigration policy, whether we like it or not. And as bizaare and Kafka-esque as it is to prosecute people who object to being made a part of the machinery of expulsion, the fact is that the young Congolese man was safer on a commercial flight than using another means.

Perversely, I’m glad that four articulate and well-connected Europeans are being prosecuted for doing their moral duty. It seems to me that every time we accept a narrowing of human rights as a trade-off for better security, we do so on the unspoken assumption that the person suffering will never be ‘one of us’.

June 10, 2004

The Durbin amendment

Posted by Ted

As most readers will know, it has recently come to the attention of the world that lawyers in the Pentagon’s Office of General Counsel have prepared a memo arguing that torture can be authorized by the President. The argument, as I understand it, is that when the President believes that he is operating in his capacity as Commander in Chief, he has unlimited power, which cannot be constrained by the Legislature. It goes so far as to say that authority to set aside the laws is “inherent in the president.”

Michael Froomkin’s analysis of the torture memo is an invaluable example of the best of blogging. (Also see Jim Henley, Eric Muller, von from Obsidian Wings, among others.)

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

Via TalkLeft, I see that Sen. Dick Durbin has introduced:

an amendment to the Defense Authorization bill to reaffirm US commitment to the Geneva Conventions, the Convention Against Torture, and the International Convention on Civil and Political Rights, and to affirm unequivocally the prohibition against torture, cruel, inhuman and degrading treatment.

TalkLeft has a good deal of information about this, including a sample letter of support for this amendment which can be adapted and forwarded to your representatives in Congress. Here’s a good resource for contacting them. Please do this.

One last point, in which I get a little emotional.

I’d like to say “me, too” to Digby. I spend too much of my life following politics, getting angry or amused or frustrated at the news. This is different. This memo was prepared by a group of highly-educated men and women at the top of my government. They are people who doubtlessly consider themselves patriots, probably with good reason. They were willing to sell out the principles of our Constitution, one of the greatest accomplishments of humankind, in order to torture other human beings.

This knowledge has made me want to cry, out of fury and shame. I hope that the people who wrote this, and the people that authorized it, are driven from the government and disbarred. I hope that they live the rest of their lives in shame, hoping that the next person they meet doesn’t remember their names. I hope that God alone shows them the mercy that they are unable to find on Earth.

From Ogged:

If America ceases to be a free country, you won’t necessarily notice. It won’t smell different, dark clouds won’t gather on the horizon, the roads will remain open, movies will still play in the theaters, and television will, most assuredly, stay on. …Contrary to what we think we know in our bones, there aren’t many effective arguments from self-interest in favor of freedom. Being free just isn’t a matter of convenience, and being unfree isn’t necessarily inconvenient. It’s a matter of principle, and of pride. I don’t think many people care about the principle, but, for a couple of hundred years, Americans have been fiercely, even violently, proud of being free. Are they still?

March 25, 2004

Europe and the War on Liberty

Posted by Maria

Today, European leaders meet to wave through a raft of measures purported to fight terrorism. The public story is that the bombings in Spain have galvanised EU member states into wider and deeper cooperation to prevent and detect terrorism. The reality is that many of the measures to be agreed have little directly to do with fighting terrorism, and much to do with increasing police powers and budgets.

Update Thanks to Maurice Wessling for the correction that the ‘anti-terrorism co-ordinator’ is actually Gijs de Vries, and not Klaas de Vries. Reuters had a mix-up between the two and I followed along. Gijs de Vries’ biog is here in dutch. He was secretary (under-minister) of the Interior from 1998 to 2002, an MEP from 1984 to 1998, and the Dutch representative in the EU Convention negotiations. Maurice reckons de Vries’ appointment still signals a lack of seriousness in co-ordinating European intelligence agencies, saying ‘he has little experience in counter-terrorism and he will have no powers to force any policy. His task will be to write a report. So the name ‘counter-terrorism tsar’ is way over the top.”

Thanks to Statewatch, the public has access to the proposals being discussed today and tomorrow by the Europe’s leaders. Most of them were already agreed at last week’s emergency meeting of European justice ministers. As a quick refresher for anyone who’s a little hazy about how the EU works, the institutions are imagined to exist in three pillars. The First Pillar is the internal market, and decisions are taken through a complicated system of checks and balance between the Commission, the Council of Ministers, and the European Parliament. The Second Pillar is the Common Foreign and Security Policy and is dominated by the Council of Ministers, i.e. the foreign ministers of the member states.

The Third Pillar is where decisions on justice and home affairs (JHA)issues are taken. As countries tend to be quite sticky about their sovereignty on foreign policy and justice, these two areas have been slower to integrate. JHA policy is driven by the member states, with the Commission acting more as secretariat than an executive, and the Parliament has only nominal oversight. As a (not entirely) unintended consequence, the Third Pillar operates effectively in secrecy. Measures to be agreed are usually released to journalists only on the day the decision is made, there is no proper consultation process, and the only parties to discussion and decisions are the benificiary agencies of the decisions made.

The JHA Council of Ministers is the ultimate in echo chambers; a place where unpopular justice ministers can gather with their brethern to agree on often draconian measures that are then presented to national parliaments as a fait accompli. Unless, of course, some party pooper uses their veto. Third Pillar issues cut to the heart of state sovereignty because they are at the hard edge of differences about the role of citizens and the state. And these are the very issues that state representatives decide in secret, horse-trading with their European counterparts and flogging our liberties to the lowest bidder.

Today, the European Council (of heads of government) will discuss 57 proposals that range from mandatory retention of all citizens’ communications data, to compulsory biometric identifiers, Europe-wide criminal databases, money-laundering, cross-border pursuit, identification of terrorist organisations, creation of a European Border Agency, European “security co-ordinator”, and compulsory collection of passenger name records.

It is a long, long list with little new on it. Statewatch’s analysis says almost half of the measures have little or nothing to do with tackling terrorism. I’d make a slightly more conservative estimate myself – allowing for the fact that money-laundering or other criminal activities can be linked to terrorist groups - but the whiff of naked opportunism is certainly in the air. Mandatory traffic data retention, for example, has been floating around at the JHA Council for almost 3 years now. The UK first introduced it secretly at the Council in the summer of 2001, proclaiming publicly that it hadn’t, and within weeks of 9/11 introduced the measure in national anti-terrorism legislation. Two weeks after 9/11, President Bush wrote to the European Commission asking it to introduce mandatory data retention, even though it is mass surveillance and probably contravenes the European Convention on Human Rights. (How would Americans feel if Romano Prodi bullied them to change, say, the 5th amendment of the Constititution?) The proposal for a Council measure seemed to have died a death in the last year or so, with member states going their own ways, but post-Madrid it’s back on the agenda and likely to be shoved through by 2005.

But, it’s fair to argue that a terrorist attack gives new clarity and urgency and makes the unthinkable thinkable. It should sharpen our focus (or that of our leaders who make far-reaching decisions without the benefit of parliamentary oversight), and help us zone in on the essential policies to prevent and investigate terrorism. Or so you’d think. Unfortunately, mixed in with essential measures to share terrorist information through Europol, we also find proposals to include biometrics on all European passports, or fast-track implementation of the European Arrest Warrant. And measures like mass surveillance using the internet and mobile phones or tracking all citizens’ travel all the time are not restricted to fighting terrorism, but extend to the furtherance of any whim of any law enforcement agency in any European country. Let me be clear, measures that have marginal effects on fighting terrorism should not be rushed through, nor should they be automatically extended to general crime-fighting capability.

If our leaders were serious about fighting terrorism, they’d be doing just that. But they’re not. In the pork-barrel push to shove through every interior ministry’s pet project, we don’t see a laser-sharp focus on the essentials to fight terrorism. What we get instead are fluffy and high-minded statements from prime ministers too removed from the detail to even give a damn, and rafts of extraneous measures, scattergun proposals, sweeping and unaccounted for powers, and the collection of terabytes of information with no way to analyse it to actually help us prosecute the war on terror.

And where co-ordination is really needed – between the national intelligence agencies – the best our leaders can offer us is window-dressing. There won’t be any European intelligence agency (fair enough), but we really, really need to knock heads of national intelligence agencies together, tell them to grow up and get over their little rivalries and turf wars, and start sharing enough analysis and information to warn us about actual terrorist threats. Instead, we get the appointment of a “security co-ordinator” who won’t have the clout to do very much. We know nothing yet about the institutional and legal status of the security co-ordinator. But the person likely to get the job, Klaas de Vries, was Dutch Interior Minister from 2000 – 2002 and is neither hawkish nor experienced enough to make things happen.* Somehow, I don’t see the British, French and German intelligence agencies taking orders from him.

So, in response to Madrid, I see the following;

- rafts of proposals that don’t bear directly on terrorism but do increase the powers of law enforcement agencies.
- accompanied by reams of ministerial waffle that liberty needs to balanced (i.e. annihilated) by security
- unaccompanied by any sense of focus or proportion in the measures
- unaccompanied by a good faith effort to restrict extra police powers to investigating terrorists, not common or garden crime suspects, or tax evaders, or public health risks, or pretty much anyone any government agency might have any interest in, any time
- institutional inertia when it comes to improving the performance of intelligence agencies
- the casting of terrorism as primarily a law enforcement problem whose solution is more power for law enforcement agencies
- constant insistence on the ‘rule of law’, which can’t mean very much when the law can be changed on the whim of an interior minister and his 14 closest friends

Which perhaps sounds a little bitter. But consider how much is at stake here. Measures that don’t bear directly on terrorism aren’t just pointless or opportunistic, they hurt us too. They divert time and resources away from fighting terrorism, and may even create a false sense of security as citizens mistakenly believe the ‘trade off’ of their human rights must have been worthwhile. Secondly, we know from experience in the UK that extraordinary measures against terrorism are renewed, and renewed, and ultimately folded into general criminal justice law.

So, at a time when Americans are learning about opportunistic and unrelated measures taken in the wake of 9/11 that exploit that tragedy and divert resources and attention from really fighting terrorism, Europeans should take a long, hard look at what is being proposed, by whom, and what bearing it will have on preventing and investigating terrorist acts.

*Thanks to Maurice Wessling of Bits of Freedom for his analysis via EDRI. De Vries’ personal website is www.klaasdevries.nl for those who speak dutch.

December 19, 2003

More on inequality ...

Posted by Daniel

Just “feeding the baby” with a couple of links really …

Stuff from Maxspeak, Paul Krugman and Calpundit relevant to our own discussion of “Equality of outcome versus equality of opportunity”. Read them all. (If you want to that is, I mean it’s not like I’m ordering you to read any of them or even suggesting that you’ll be materially less well-informed if you don’t. I’m just sort of suggesting that they might be a little bit more interesting than what’s in the newspaper today)

Personally, I’ve always had a hard time taking this debate seriously. Specifically, I’ve never received (not for want of asking) a satisfactory answer from anyone who talks about “equality of opportunity” to the following two questions (also inspired by my time at business school, which I am coming to believe may have been less wasted than it seemed to be at the time)

1. What’s the point of doing anything if you’re not going to check whether it worked or not?
2. How do you find out whether a course of action worked or not, other than by the results?

September 11, 2003

The collected wisdom of David Blunkett

Posted by Maria

“The legislative measures which I have outlined will protect and enhance our rights - not diminish them, justice for individuals are reaffirmed and justice for the majority and the security of our nation will be secured.” So David Blunkett told Parliament when he introduced the Anti-Terrorism, Crime and Security Bill, in autumn 2001. The Act allowed the UK to derogate from Article 5(1) of the European Convention on Human Rights and Article 9 of the UN International Covenant on Civil and Political Rights concerning the liberty and security of individuals. Today, the UK is still in the ‘state of emergency’ used to justify these derogations to its international human rights commitments.

“I don’t want anyone to be under the misapprehension that some group of very innocent individuals who just wandered into this country are somehow going to be banged away for life.” Last week, three law lords ruled that the House of Lords should hold a hearing on the legality of the indefinite detention without charge of a dozen foreign nationals.

On the use of Section 44 of the Terrorism Act 2000 to stop and search 995 anti-war protesters at an RAF base earlier this year; “The Terrorism Act 2000 is not being applied in the prevention of protests at RAF Fairford. Powers under this legislation are applied solely for the prevention and investigation of acts of terrorism.” On the use of Section 44 to stop and search protesters outside an arms fair in London this week; “I have asked that the head of the counter-terrorism branch should report back on why it was that they chose to use that particular part of the counter terrorism legislation rather than wider public order legislation.” UK police forces cannot use Section 44 without informing the Secretary of State. The Act in question is intended to target terrorists, not citizens invoking freedom of expression and assembly in a democratic country. Either Blunkett is giving the nod to using terrorism legislation to curb legitimate protesters, or the police are running out of control.

“We could live in a world which is airy fairy, libertarian, where everybody does precisely what they like and we believe the best of everybody and then they destroy us”. Or we could live in a country where the foremost legal experts believe human rights have been fatally undermined by the ‘war on terror’; the Law Society of England and Wales*, Liberty, and Amnesty International. Surely there is a middle ground.

On seeing the Anti-Terrorism, Crime and Security Act through Parliament; ‘I genuinely think that the British people will say, “Well done. Parliament has shown itself in a good light and we are proud of what you have done.”’

Update
Statewatch reports on use of Section 44 too, noting that while peace protesters were detained under terrorism legislation outside the arms fair in London. Inside, there are cluster bombs a-plenty for sale. Using terrorism provisions police have arrested two protesters for “behaving suspiciously”.

Disclosure; I wrote the chapters on communications data retention and Third Pillar powers.

September 09, 2003

Visa Schmisa

Posted by Maria

Next month I plan to go to Washington D.C. for a fellowship event of the 21st Century Trust. But with the new visa rules to the US, I can’t simply rely on being white and English-speaking to get me through immigration without a scratch. Luckily, citizens of countries belonging to the Visa Waiver Program (VWP) won’t need a visa as long as they have a machine readable passport. My passport isn’t ‘machine readable’, so from 1st October I’ll need to either have a new passport or apply for visa.

It took a half hour’s study of the website of the US Embassy in Paris for me to determine that, yes, I probably do need a visa to travel to Washington D.C. next month but, no, I didn’t really know what kind of visa it would be, and no, it wasn’t clear at all how long it would take. Also, I’d have to surrender my passport to the embassy straight away, and probably wouldn’t get it back for the 6 weeks between now and my US trip, and I mightn’t even get the visa in time. In the meantime, I would have to cancel other essential business trips (not really an option), possibly give up a morning’s work to go sit in the embassy and wait to be interviewed (to determine I’m not a terrorist - they can tell from the eyes), and pony up almost 100 euro for the privilege. If I had any questions, I could call the number and just ask - at E14.50 a call. Oh, and if the Embassy mistakenly debits my account twice or puts the 100 euro application fee in the wrong place, that’s just tough. I won’t be getting it back.

So, to summarise. In order to receive permission to travel to the US (which I of course accept is within a sovereign country’s right to grant or refuse), I would have to hand over a significant amount of cash and my passport, wait an indeterminate amount of time, cancel other work in the meantime, and still have no certainty that I’d get my passport and visa back in time to make my trip at the end of October.

Or, alternatively, I could just phone up the Irish Embassy (free and gratis, except for the price of a local call), have a nice chat with a pleasant woman from Donegal who would promise to pop into the post today the information and application forms for a machine readable passport (19 euro) and a replacement passport for me to use while they process my new one(19 euro). We might even chat about the heavy showers we had in the city last night.

So simple, there must be a catch. Here it is; the machine readable passport will allow my movements to be tracked and recorded by governments other than my own, and governments that have no concept of data privacy. So if I ever inadvertently get on a watch list (and it’s not hard, as US anti-war protesters have discovered), I’ll have precious little chance of getting off it.

Machine readable passports certainly have their uses. But they’re also the thin end of the wedge to demands by the US government that EU citizens put biometric identifiers on their passports within the next couple of years. Some people think this is a great idea. Already, businessmen are lining up at Heathrow to have their irises scanned instead of waving their passports and visas. The convenience is fantastic. Until your unique identifier is associated with some bad data. If your data key is your iris, try revoking that.

So there you have it. The Visa Waiver Program (VWP) for owners of machine readable passports lets you avoid the whole administrative hoopla, expense and uncertainty of actually applying for a visa. I’d have to be insane not to trade off a bit of my privacy for all that convenience. But surely that’s not the only trade off here? Aren’t I also trading off my privacy for some extra security?

Applying for the visa means going through checks by the USG, which is probably why it costs so much. Having a machine readable passport simply means that my own government has issued me a travel document with a very long number written on it. So, unless we are to presume that citizens of VWP countries are negligable terrorist risks, there’s no overall gain in security. What VWP offers, going forward, is a better means to track citizens’ movements. It doesn’t, to my knowledge, actually screen anyone. It has some potential to reduce the threat of terrorism in the future - by creating a means to capture the personal data of the entire travelling population - but it doesn’t pay off now, and we have no guarantee (or even claim) that it will in the future.

Like everyone else, I just hope it works. Most people will agree that the consequences of a false negative in airline security can have far more devastating consequences than a false positive. But I keep wondering, if the trade-offs truly are worthwhile, then why aren’t governments more honest about what they really are?

August 09, 2003

Canadian Lawful Access Consultation

Posted by Maria

The Canadian justice ministry has published the results of last year’s consultation on communications interception. Reading it is like entering an alternate universe where sanity and moderation prevailed. There’s no sign of the draft legislation yet, but the signs are good that it may actually contain the ‘balance’ between law enforcement, human rights and industry interests we’re always hearing about but I have yet to see. And for a justice ministry, the Department of Justice of Canada runs an exemplary consultation.

I’ve blogged before on the corrosive effects of justice ministries scrambling to make the most of September 11th to extend their powers at the expense of citizens’ rights. So it’s refreshing to see a justice ministry that, going on the external signs only, is bucking this trend. A few stand-out features of the Canadian consultation are:

- It has a clear statement that the consultation and resulting legislation are meant to serve the three most affected interests; law enforcement, privacy / human rights, and the communications industry.

- Law enforcement agencies seem to have been encouraged to publicly make their case on the same basis as other stakeholders. Sure, they probably still get privileged access to decision makers behind closed doors, but having to argue for and explain to the rest of us the reasoning behind increased law enforcement powers can only be a good thing. And it makes for informative and thought-provoking reading too.

- The ministry states explicitly that this legislative work is not a direct outcome of September 11th, but follows from Canada’s obligation to ratify the Council of Europe Convention on Cybercrime and also G8 responsibilities for mutual cooperation. This is an important signifier of intent and it sets a tone of reasonableness which I haven’t seen in debates elsewhere.

- The Canadians re-state unequivocally that data retention is not on the table, and that data storage, a much more human rights compliant policy, is going to be introduced. (For explanation of these two policies in this context, see the ministry’s helpful FAQ.)

The proof of the pudding is in the eating of course, and there’s no indication of when the draft legislation will be published. But comparing both the content and conduct of this consultation to others I’ve seen on this issue, I find the Canadian approach encouraging. They give all impression of actually wanting to hear what people think.

One little aside; of the 200-odd submissions the Canadian government received from individuals, only 2% were from women.