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on the world: a view on human rights

Freedom is Slavery: Counterterrorism laws in 1984 2014


False narratives

France 24, France’s state-run international news channel marked the anniversary of the September 11th 2001 attacks in New York with an exclusive documentary and discussion about Guantánamo Bay. The title, “From Sarajevo to Guantanamo, the journey of the Algerian Six”, intimated that the show would deal with the case of six Algerian prisoners arrested in Bosnia shortly after 9/11, who were later handed over to US custody and “rendered” to Guantánamo Bay, one of whom was allowed in 2009 by France to resettle there with his family on humanitarian grounds. Instead, the documentary focused on just one of the six – Belkacem Bensayah, in his first media interview since having been released to Algeria against his will in December 2013.

Never charged or tried by the US and acquitted by the Bosnian courts, Bensayah’s story is otherwise little known. The programme offered little further enlightenment. Ignoring the rest of his life story and world history, the programme was only interested in the fact that he had left his country and travelled around the world using false identities and passports almost thirty years ago. According to the programme makers, that gives Bensayah all the hallmarks of a terrorist. The programme tried to link him to contemporary conflicts, but the narrative presented was simply non-existent. For a media unconcerned by facts, there was still a purpose to be served.

The day before, 10 September, Barack Obama made a major security speech in whic1984-300x225h he announced the US would lead an international coalition against the Islamic State (IS) militant group and outlined a 4-point strategy. Along with air strikes in Iraq and Syria, part of the strategy involves “a comprehensive and sustained counterterrorism strategy”. France, a key member of the new coalition had, in 2003, along with other mainland European states – the “Old Europe” – openly opposed the war in Iraq, famously leading to the Republicans renaming French fries “freedom fries”. This time, however, France is not only firmly on the bandwagon, it is eager to take its position at the front of the pack.

“Fighting terrorism is defending freedom”

On 15 September, Paris was the venue of a summit of 30 states that pledged support for military action in Iraq but not Syria. The same day, France’s parliament debated and, later, passed new counterterrorism measures. The measures were introduced as a draft bill in July by the French Interior Minister Bernard Cazeneuve. Circumventing the Ministry of Justice and the judiciary, the choice of ministry to introduce the bill indicates the flawed logic of such measures, which shift powers from the courts to law enforcement agencies and the administrative authorities.

Three main criticisms of the bill were flagged early on: the bill creates a new offence of “individual terrorist enterprise” criminalising the actions of individuals who may act as “lone wolves”, without apparent links to any organisation or other groups of individuals, before they have been committed. The French digital freedom advocacy group La Quadrature believes such measures make all citizens terrorism suspects. Other key criticisms are passport controls, including the confiscation of passports, restrictions on the freedom of movement of citizens and preventing individuals from leaving the country; this provision could affect up to 230 people and penalises actions that have not actually occurred.

I Spy

The most far-reaching and broad provisions concern internet monitoring, allowing the authorities to block websites assumed to defend or encourage terrorism as well as requiring internet service providers (ISPs) and webhosts to remove any relevant material, effectively encouraging internet “spying” as some media and activists have labelled it. The French newspaper Le Monde, in an editorial, accused the bill of pushing France along the same course of government spying on citizens as the National Security Agency (NSA) in the US. Both real and virtual borders are targeted by the bill, restricting the freedom of movement both within physical and virtual spaces.

The bill has drawn criticism from many quarters, particularly digital freedom activists and the legal profession. The judges’ trade union (Syndicat de la Magistrature) issued a scathing criticism, pointing out the anti-democratic, and potentially discriminatory and illegal nature of some of its provisions. According to the trade union, the draft bill not only “undermines democratic principles but grants the public authorities excessive monitoring and surveillance powers, with disregard for the freedom of expression and of movement, and has applications that go far beyond terrorism”.

Although ostensibly aimed at countering terrorist activity and targeting France’s minority Muslim community, much of the criticism has focused on this as an excuse to extend surveillance and control of the wider public: suspicion is sufficient to deny fundamental freedoms. The left-wing Libération newspaper described the law as a “defeat for democracy and a victory for terrorism”. In response to criticism by journalist Edwy Plenel, Bernard Cazeneuve stated that “fighting terrorism is defending freedom”. The bill received broad support across the political spectrum and will now travel to the upper house (the Senate) for further debate in October before becoming law.

Failing to specify the actual pressing threat France faces that justifies such laws or the true purpose behind such widespread surveillance, the French media instead looked to justify the measures by measuring them up against those being considered or applied elsewhere in Europe, in the United Kingdom, Germany, Belgium and the Netherlands. Similar measures related to increased surveillance and spying on communities and the public, passport, nationality and travel controls and passport confiscation are also proposed as well as “deradicalisation” programmes, without mentioning the past or anticipated success or legality of such measures. Rather than address specific threats within their own borders, states in Europe are looking beyond to their neighbours in an attempt to outdo each other or at least standardise both counterterrorism and surveillance laws.

Law? Huh! What is it good for?

In support of their argument against using terrorism as a justification for widespread surveillance, activists cited the European Court of Human Rights ruling in the 1978 case of Klass & Others v Germany, in which it was held that Council of Europe member states “may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate” and that “whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse”.

A draft report issued by the European Parliament on its inquiry into the NSA surveillance programme in Europe stated that terrorism can “never in itself be a justification for untargeted, secret and sometimes even illegal mass surveillance programs” and the inquiry “Considers it very doubtful that data collection of such magnitude is only guided by the fight against terrorism, as it involves the collection of all possible data of all citizens; points therefore to the possible existence of other power motives such as political and economic espionage.”

European states must have nonetheless felt vindicated in their approach when, on 24 September, a summit at the UN Security Council presided by Barack Obama unanimously passed resolution no. 2178 on stemming the flow of “foreign (terrorism) fighters” around the world. The term “foreign fighter” draws attention to the dubious nature of this threat, much like the equally vague terms “unprivileged belligerent” and “enemy combatant”.

Who needs laws, or indeed international law? In the former case, stringent new anti-terrorism laws will no doubt help the popularity of French president François Hollande, which has fallen to a record low of 13%. In international law, hypocrisy is a norm: the USA and France have both carried out air strikes in Iraq, the pretext for these domestic counterterrorism measures, without authorisation. The threats faced by Syrian and Iraqi civilians, especially internally displaced persons and refugees, continue to concern very few people.

“At far higher risk of being hit by a car than being blown up by terrorists”

France is not the only country seeking to strengthen its arsenal of counterterrorism laws over the past few months. In June, Australia and the US signed a new defence agreement to increase defence and security cooperation. A little over a month later, in mid-July, a new bill was published, the National Security Legislation Amendment Bill (No. 1) 2014, amending existing laws on national security and the intelligence services. Again, much of the focus is on passport and travel controls, digital surveillance, and giving disproportionate powers to the Australian Security Intelligence Organisation (ASIO). Once again, mere suspicion is sufficient to warrant arrest, detention and punitive sanctions.

Before the bill had its second reading on 23 September, concerns were raised that provisions that give greater powers and immunity to ASIO agents in carrying out counterterrorism operations could result in the use of torture. According to reports and legal advice obtained by one senator, the provisions could allow agents to inflict “physical and psychological” damage on suspects. The government eventually backed down on this provision and others such as the permanent use of preventive detention and control orders before it was passed by 44 votes to 12; some of these draft provisions have since resurfaced elsewhere.

Any serious debate on issues affecting the fundamental rights and civil liberties of all Australians was curtailed just a week before on 18 September when over 800 police officers took part in Australia’s largest ever anti-terrorism operation in Sydney and Brisbane, in which 15 people were arrested and only one person charged. Some have accused the raids of being an orchestrated stunt to help pass the new law. Coupled with the fatal shooting of a teenage terrorism suspect and the stabbing of two police officers in Melbourne shortly after, reasoned debate has been substituted with hysteria and has resulted in a violent backlash against Australia’s Muslim community. In the meantime, the amended bill cleared the Senate with provisions that would grant ASIO access to monitor the internet, impose a 10-year prison sentence on journalists and whistleblowers who disclose confidential information and grant increased surveillance powers. This bill is expected to be passed by the House of Representatives shortly and become law.

This flank of the issue covered, on the same day, the Australian Attorney General George Brandis QC introduced a new bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, with powers to limit travel for “foreign fighters” and extend preventive detention orders and control orders. Although targeting a reported 160 people in total, the actual provisions could have more far-reaching ramifications for others. This bill has been criticised by some quarters as just being a means for Tony Abbott’s government to ramp up support for its policy failures in other areas.

Special relationship

In early September, British Prime Minister David Cameron announced new anti-terrorism measures principally aimed at confiscating the passports of potential “foreign fighters”, extending control orders and terrorism prevention and investigation measures (TPIMs) and preventing dual national holders from re-entering the United Kingdom for a period.

Sound familiar? The considerable overlap in the counterterrorism policies proposed by different countries is to be expected. On 7 May 2015, the United Kingdom will hold a general election and elect a new government. Over the past 4 years, laws and policies implemented by Cameron’s right-wing Coalition government have seen a stark rise in poverty, homelessness, public sector privatisations and millions of citizens quite virtually living on the brink and from day-to-day. The Islamic State and its supporters have nothing to do with this state of affairs; it is a similar situation in France, Australia and elsewhere, causing the popularity of leaders to plummet. With so-called democratic governments completely enthralled to private corporations, and impotent to deal with real problems as a result, politicians can only appear powerful and popular when they pick on vulnerable minorities and imaginary enemies.

It is also perhaps no coincidence that one week before parliament resumes on 13 October, when further details are likely to be added and debated on these measures, British former Guantánamo prisoner Moazzam Begg* goes on trial on terrorism charges related to Syria. Begg was never charged or tried at Guantánamo or for almost ten years since his return to the UK in early 2005. In addition, he has had to wait almost 8 months to stand trial on unusual charges. Former and current Guantánamo prisoners provide expedient scapegoats for a wide range of matters.

Big Brother is Watching YOU

According to former Australian military intelligence officer Clive Williams, “Australians are at far higher risk of being hit by a car than being blown up by terrorists”; terrorism and militant groups may pose a risk but one that is no greater or more urgent than many others. Terrorism provides both a distraction from the everyday concerns and struggles for survival of people and a pretext to extend the reach of the surveillance state.

The homogenisation of counterterrorism policies is a further triumph for large corporations and proof that the threat, if any, is inflated. But that does not matter. The politics of fear, hate and insecurity is lucrative and in the increasingly corporatised and non-transparent state, it is also a perfect means to control dissent against other policies that restrict fundamental rights and freedoms, abuse human rights and channel public funds, intended for public services, into private projects that serve solely private interests. Indeed, the fearful public can pay for the tools of its own oppression and state apparatus, such as the judiciary, that cannot be harnessed can be circumvented instead. The biggest winners under these laws will no doubt be private surveillance and monitoring companies owned by larger international corporations, whose wings seem to spread ever further while the traditional state, civil society and fundamental freedoms continue to beat a steady retreat into oblivion.

* On 1 October, all charges against Moazzam Begg were dropped and he was released following new secret evidence that undermined the case against him

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