It’s 1… 2… 3… I’m still none the wiser.

I’m going to keep this post brief. Along with millions of others, I tuned into the US Presidential debate in Las Vegas last night to see what would come of (borrowing from The Daily Show) Democalypse 2016’s showdown between a deep fried Cheeto versus the singularly most qualified American to run for office – with the exception of incumbent Presidents. It’s already clear which way I see this match-up, but that doesn’t necessarily mean I’m a happy lawyer this morning.

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The next US President will appoint 2-3 Supreme Court Justices; affect next 25 years of American legal development

Sure, Hillary wiped the democracy floor with Donald: one came over-prepared, the other with over prepped hair. It was not much of a contest as we were swiftly reminded of how factually stuffy the Democratic candidate can be (see Q1. Literal vs Living Constitutional interpretation; Q2. 2nd Amendment & the Heller decision/Roe v Wade), and how the guy with R beside his name could make any question about his ‘bigly greatness’ (‘Supreme Court nominees? I have made a list of 20!‘). It was clear which of these two individuals is fit, ready, and competent to be the commander-in-chief, as well as America’s First Diplomat. It was like visiting the slaughterhouse and finding out how sausages are made – on the same day.

However, we’ve all focused so much on the personality of the candidates on both sides that we have forgotten what these debates really are: a glimpse into the next 4 years of geopolitics and international relations.

rare-vintage-rolling-stones-concert-snapback-baseball-hat-cap-0696a32d31c62b27a29b9ef1c011ec89I am not an American. I have Americans in my immediate family who reside in the continental 48, and have great admiration for the idea of America and the American dream – both which are sadly faded like a Rolling Stones ball cap you refuse to offer up to the moth gods.

all_over_the_map_anim_500_clr_13636The US Presidential debates are a crucial platform that we here in the UK and elsewhere in the world, particularly in Russia, observe with great attention knowing that this is the 50/50 split options in foreign policy that will be affecting all of us in coming years. The only thing I can glean from the debate is what I already knew: Trump will repeat praise from any source, including a warmongering Kremlin, right up until somebody with better sense leans in and whispers to him “You are running for the US Presidency, not the Russian.”

That’s not to say that I wouldn’t like better relations between NATO and Russia – though I fear war is coming, I absolutely would encourage the avoidance of such a conflict brimming with the possibility of a nuclear exchange. Trump mentioned that he thinks Putin has outplayed Hillary. He’s half-right. Putin’s long game is legendary, and he is currently exercising his realpolitik muscles to their fullest. However, the suggestion that Trump is a suitable adversary is laughable – Hillary may face a credible opposition from the Kremlin, but Trump is little more than slight speed bump at the office car park to Putin – the former KGB operative wouldn’t even think about Trump 5 seconds after he rolled over him in the geopolitical arena.

The economic discussions about global trade were also abysmal. All we heard was ‘Hillary is for TPP, Hillary is not for TPP’. Despite popular opposition based on hypothetical risks to special interests in the USA, greater trade relationships are applaudable. Sorry anti-globalisation folks, the liberalisation of markets around the world have been the largest single contributor to peace and security throughout the world.

2016-07-02
Hardly a ‘decisive’ or ‘overwhelming’ result considering 17.4 million votes represents 34% of all eligible voters in the Brexit Referendum (38% of registered voters). But we’re doing it anyways, because… democracy.

Not saying it’s perfect – 70 million refugees and still eye-watering levels of poverty around the world suggest there’s still massive work to be done. But TPP, much like the TTIP agreement between the EU & America, actually increases value in these countries. We, in Europe (esp. UK) and the US are haemmoraging economic opportunities based on populist opposition informed by a YouTube video they watched after binge watching Homeland on Netflix. Say what you will of Donald Trump and his followers, we have our own skeletons in Europe that are coming around to air themselves as they may from time to time.shaking_head_in_disgust_anim_500_wht_14992

Will Hillary win on November 8? Yes, very very likely.

Am I confident that I have a clear understanding of the international and military policies that will impact globally for the next four years? No more than I was when this circus pitched its democratic tent. And for that reason, I’m concerned. There needs to be clarity, and hopefully (and despite destroying her Republican rival) she will continue to reach out with information to inform both the US electorate and the rest of the planet as we march inexorably towards the conclusion of this dark, dismal chapter in the tale of democracy. I’m not in a rush to test whether 2020 promises more of the same or worse…

Down the Digital Rabbit Hole: Public Expectations of Internet Privacy

black_laptop_spy_watching_500_clr_4398By way of an introduction, HBO’s Last Week Tonight with John Oliver pulled off quite a coup when bringing the issue of state surveillance back to America’s attention. Oliver appropriately highlighted the public’s waning interest regarding the NSA’s sweeping information program PRISM and its analogues, revelations that came to light when an NSA sub-contractor’s employee, Edward Snowden, fled the US with thousands of classified documents which he has illegally disclosed to journalists around the world. Using the format of ‘streeter’ interviews, we are afforded a glimpse of relative unfamiliarity with the subject by a sampling of people on the streets of New York City. However, as has become expected of HBO’s humourous current events show, Last Week Tonight takes the opportunity to drive forward from a simple satirical piece and had its host, John Oliver, travel to Moscow to meet with Snowden to discuss the impact of his actions two years on. Here’s the interview as broadcast on HBO:

In the interests of full disclosure, I am a huge fan of John Oliver, and this piece reinforced my position. Unlike a number of appearances by Snowden in the media in the past, Oliver packed in some serious questions and assertions that have been absent in those other interviews. Perhaps most provocative on a personal level was when the previous streeter footage was shown to Snowden with, amongst other errata, some wrongly identifying him as Julian Assange, the WikiLeaks founder currently under asylum in the Ecuadorian embassy in London.

However, this post is not necessarily a shot-for-shot analysis of Snowden’s statements or world view, nor is it a review of Oliver’s penetrating questioning of, as he puts it, “the most famous hero and/or traitor in recent American history”. The interview is simply the beginning of a more complex issue facing Americans and the rest of the world: What is the relationship between the technology of the internet, the ability of states to intercept information, and the public (civilian) expectations that they may communicate without unlawful interference?

The Internet as a Communication Medium

Snowden rightly states that it is difficult to synthesize the complexity of the technology into a few seconds that fit nicely into a sound bite. Indeed it is: the internet is nothing short of a silicon marvel that has exponentially moved the global human condition closer together. The good, the bad, the in between. The same network of fibre optics and microprocessors deliver your ‘like’ on an old primary school friend’s Facebook post, connect your Skype call with your parents in another country, and allows us all to get news of world events in near-real time – whether through conventional or new (social) media. The international exchange of information has never been faster, wider or convenient.

Now for the inevitable truth: the internet is a tool. Any moral evaluation of its social value is more appropriately a statement of the user. A similar albeit more difficult question exists about nuclear technology, a conversation also mentioned in Sunday’s LWT with regard to ongoing negotiations with Iran over its nuclear ambitions. Nonetheless, the internet has no inherent value but that for which it is utilised. For the most part, human usage of the internet is relatively innocuous and banal. In the present context, included in that is what may be considered low level domestic criminal activities that may lie outside the scope of legitimate national security interests.

However, the internet has the capacity to provide a means of communication for individuals and groups in coordinating and carrying out acts of terror and international criminal activities. Some of these include logistical support to groups like al Qaeda and Islamic State, or may be used by states to conduct illegal actions, such as the current conflict in Ukraine. It does not help that the sheer volume of data flowing throughout the internet masks the trail left by these subjects, making detection increasingly more difficult and prevention of action more so. It would also be salient to consider the novel means of use that are constantly being employed – in certain circumstances, free email accounts are set up and messages relayed using drafts in order to avoid actually sending a message between two people. Some terrorist groups even utilise the increasingly-prevalent VoIP technology used for in-game voice chat for popular video games as means to communicate via the internet. As access to and use of the internet spreads into every conceivable corner of our lives, those wishing to use this tool for violent acts of terror and criminality will develop new and innovate methods to thwart detection by intelligence and law enforcement agencies.

The Physical Nature of the Internet

I will endeavour to keep this brief: the internet is not a metaphysical concept – it is a physical object consisting of fibre optic cables, computer hardware and various languages of coded software. This reality is psychologically juxtaposed by nature of individual interactions by users of the network – whereas you would previously had to leave your house or invite others in to interact with people, the internet now provides the means of ‘telecommuting’ to work and socialising in 1s and 0s. Moreover, the actual technology we use now to connect obscures the nature of the internet. No more must you be seated in front of a great big desktop tower and screen using dial-up connections over the phone line, as 4G mobile data and WiFi have literally cut the physical cord from our digital devices. In fact, recent statistics have shown that more people access the internet now from their smartphone or tablet device than from a traditional laptop or desktop computer.

Much as a letter in the post sent to another country would travel through multiple locations on its way, the data we send from our phones, tablets, and computers traverses numerous jurisdictions before reaching its destination. In most instances, people cannot state where their information has gone even if they can identify to whom that information was sent. I recall visiting the House of Lords (‘HoL’ – the upper chamber of the UK Parliament) in law school and witnessing a debate over the posting of sensitive information about UK police officers on Facebook. Though I winced more than once at the concept of the internet being misconstrued by HoL peers, I was immediately impressed when one Lord stated that a legislative debate in the UK was pointless as the computer servers hosting the data for Facebook were all located in California, USA.

Therein lies the conundrum.

We may think of the internet as an unbridled worldwide information revolution, but as a physical network it is very much subject to the jurisdiction and governance of domestic laws. However, as data flows from jurisdiction to jurisdiction, there exists the possibility of unknowingly breaking the law of a particular country merely by sending an email via Google.

Consider the Turkish Penal Code Article 301 that has been used repeatedly against any persons suggesting that Turkey’s killing of 30,000 Kurds and more than a million Armenians was a genocide. As such, academic historians, sociologists and lawyers have been banned from Turkey for making reference to the event as a genocide. If I send my genocide conference footage via YouTube to a colleague in Ankara, and that video is routed through a server in Turkey, my next trip to Istanbul may be considerably longer than I may have planned. (The maximum sentence under this law is four years.) Other European countries have similar laws (Italy, Poland, Spain, Germany and Denmark) and collectively there have been over 550 convictions. I may not have intended to cause ‘public denigration’ in any of those nations, but if my communication were relayed through these jurisdictions, my actions may have contravened these laws.

As a general operating principle when using the internet, consider where you are sending your information as much as you might consider what and to whom you are sending material.

What do you consider to be private?

There is an irony to groups like WikiLeaks (who provide an outlet for leaking information) and Anonymous (a group who obtains digital information) in that they actually take advantage of an overwhelming general ignorance towards digital security and utilise it to impose their views as to what the internet should be. I’m sure both started out with the best of intentions, but it would be remiss to not consider the rather large Robin Hood complex that allows each to commit lesser crimes supposedly to prevent greater crimes. (It should be noted that in certain narrowly construed circumstances, this is a legitimate defence at law – the so-called choice-of-evils or general defence of necessity.)

So let us ask the question: what is greater crime prevented? In the context of the United States, most of the legal debate surrounds the Fourth Amendment that protects citizens against unreasonable searches by the government. Just over a year ago, the US Supreme Court declined to hear a case (Klayman v Obama) after a federal court justice had ruled that the NSA’s surveillance programme may infringe on the constitutional right. Other courts have come to different conclusions, and as such the question remains open.

What is essential to understand is the nature of such surveillance – the likes of WikiLeaks and Snowden are preoccupied by the state’s ability to collect information on its citizens. What is rarely talked about however is how much information is voluntarily made available by people using the internet. Between 2008 and 2014, Facebook saw the number of subscribers go from 100 million to 1.4 billion users – with most everybody providing a lot of personal data on a day-to-day basis.

Statistic: Number of monthly active Facebook users worldwide as of 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

As for the 140-character medium of Twitter, their user base grew from 30 million in 2010 to 288 million in 2014 (that’s more users than the US population over 15 years old).

Statistic: Number of monthly active Twitter users worldwide from 1st quarter 2010 to 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

All you need to do is to check your feed from either of these services to see your friends and acquaintances posting photographs and comments about events that would have previously remained private. Despite Facebook and Twitter offering varying degrees of protection and privacy, most users are either not aware of these tools, not able to locate them in the interface, or not bothered about what they post. The rise in popularity of people who have massive numbers of followers on Twitter virtually encourages others to open themselves up to the voyeurism of the masses. The ‘next big thing’ is usually touted as being found in social media. The most infamous of unfortunate Canadian exports, Justin Bieber, was discovered on the video-sharing site YouTube at the age of 13 – an age that breaches the terms and conditions (‘T&C’) for YouTube’s usage. (Section 2.3 of the Terms of Service)

It has been the subject of many jokes that nobody has ever truly read the T&C for Apple’s iTunes. Eddie Izzard put it beautifully, “Nobody in the universe has ever read the terms and conditions…”

Despite our collective disdain for anything involving fine print, almost everybody using services on the internet have at some point just clicked ‘I have read and agree with the Terms and Conditions’ and considered the act an annoyance. Consumption of internet services is the very nature of the internet in the first place: it is an information provider and receiver, whether or not that information is true, public, private, salacious, provocative, or even illegal. We are so dependent on this service, it has changed the nature of human interaction irreversibly. Without concern, we post information about ourselves to the internet and then become concerned when strangers come to posses this information. (Ask anybody who has had somebody they met in 2012 reference that trip you took in 2004 in an over familiar way.)

Yet, the numbers of people signing up to social media and moving their memories and experiences online is ever-increasing. Most companies now conduct due diligence searches of employees, background searches of this ‘open information’ for clients, and require contract clauses referencing social media usage policies. All done in an effort to minimise the potential of embarrassing public spectacles, typically reinforced after similar PR disasters for others making the headlines.

It is this dependence on being socially connected with our on-line lives that makes programmes like the NSA’s PRISM both economically and practically feasible – we’re putting it out there, so why shouldn’t the government read what we’ve given freely?

Illegal Interference: When state surveillance goes beyond open-source collection

Certain information is collected by states that the average civilian has no access to – the NSA was collecting the meta-data (an unfortunately vague term for what it represents) of calls made by US citizens. What does the meta-data represent? Put simply, it means the number you call and the duration of the call. In some instances, intelligence agencies can obtain the name of the person or company you call. It should be stressed that the content of the call (the conversation itself) still requires a warrant for authorities to eavesdrop on the call.

However, a recent article regarding the FBI’s usage of a cell intercepting technology called StingRay has been made public after the organisation EPIC (Electronic Privacy Information Center) successfully obtained a FOIA disclosure on its usage, not just by federal authorities, but also local police services. What was concerning was the systematic support that the FBI provided local law enforcement in resisting disclosure of the technology – even going as far as to drop criminal charges rather that have this tool exposed for public scrutiny.

judge_with_robe_1600_clr_12812Where law enforcement circumvents the legal requirements of obtaining warrants (and thus having judicial oversight and accountability for ‘reasonable belief’), such procedural failures result in increased miscarriages of justice. Mere suspicion without reason is insufficient in most democracies to permit such intrusion into our private lives (e.g., listening in on conversations on the telephone, intercepting our communications). However, one must draw a distinction between law enforcement (in the USA, this would include the FBI) and their efforts to thwart criminal actions including terrorism, and the efforts of intelligence agencies in their remit to collect information both domestic and foreign in order to provide risk assessments and responses to national security risks.

How does this fit with the why the public feels aggravated (albeit temporarily…) by this intrusion into their online activities? It comes down to what the public expects the internet to be, both in terms of information provider and open means of communication.

Misconceived Expectations: Not-So-Anonymous?

Anonymity, or the perception that one is anonymous on the internet is more or less a common misconception that people have of their activities online. In fact, in order to access the internet in a manner that may conceal your identity, most people do not even know the first steps. There are tools out there to assist in this, touted to allow users to ‘browse the Web in confidence’ or to circumvent state-based censorship (e.g., the Great Firewall of China, etc.). This may be great if your concern is anybody discovering your love of cute kitten videos or Last Week Tonight’s YouTube postings. However, what if your intentions run significantly darker?

It's what you can't see that gets you...
It’s what you can’t see that gets you…

Most of the internet is obscured from search engines and metacrawlers that index the ‘entirety’ of the visible internet. Consider the metaphor of an iceberg: what you see on the surface cannot prepare you for the enormity of what you cannot see. It is here where criminals, drug dealers, killers-for-hire, terrorists, and their ilk come to ply their trade.

Earlier this year (2015.02.04), Ross Ulbricht, the founder of the Silk Road website – a sort of eBay for crime – was convicted on seven charges, including money laundering. Reflecting on the conviction, the Canadian CBC Radio show The Current interviewed Alex Winter (the director of an upcoming documentary film about Silk Road), as well as Ulbricht’s mother Lyn.

What struck me was the insistence by Lyn Ulbricht that “it is impossible to prove somebody’s identity online”. Ask anybody who works in forensic I.C.T. (I.T.) services, and you will quickly be dispelled of this popular myth. We all leave a digital footprint – it is only the degree of perseverence by an investigator that determines whether you remain anonymous or not. A number of countries are now introducing legislation to aide in combating on-line trolling and stalking, both typically being characterised as criminal harassment in nature. Most local police forces now have in-house experts in forensic I.T., and most regional/national police forces have dedicated task force units to deal with the digital side of crime.

To reiterate: none of us are truly anonymous on-line. Just because you’re holed up in your house in your bathrobe alone does not mean somebody somewhere can’t see what you’re doing, or trace your rants back to the very device you’re using right now.

Time for the Tin Foil Hats? Not quite…

The first step to really being safe on the internet is to understand what it is. Much like most of the modern world, the science behind how the internet works has taken on mythological attributes in place of insisting on its users actually understanding the technology. We do so only at our peril.

Secondly, though it may sound worse than a root canal at the dentist’s office, try reading the terms and conditions, as well as the privacy policies of the websites you use. Most of the populist bleatings of privacy infringement are reduced to a low din upon being informed that consent to disclose information was given at the time the aggrieved party joined the website. Pleading ignorance of such a consent is difficult: why do you think you had to tick the box declaring that you had actually read the T’s & C’s?

Finally, on the overall concern that the government is peeking at your ‘dick picks’ (you’re wishing you watched the LWT Interview at the beginning of this post now…), it’s extremely to remember something important: don’t do anything on-line you wouldn’t consider doing ‘IRL’ (in real life). Why? The internet is the real world, with real people and real consequences. Here are a couple of videos that make the point:

But the government spooks shouldn’t be snooping at photos of my junk! Indeed. Photos of ‘your junk’ are unlikely to trigger DEFCON 1, and there is virtually no reason that the CIA or the NSA should even take notice. They should be focussed on the ‘clear and present dangers’ that exist out there in cyberland. However, the digital toolset necessary for those agencies to prevent terrorism or cybercrime is always powerful enough to dip into your snapchats or vines. And, like any other workplace, there are a couple of people who will abuse their positions by keeping tabs on personal connections without cause. For those people, perhaps you should consider a more appropriate career hosting Jeremy Kyle or Jerry Springer-type shows on daytime TV – the responsibility of safeguarding any nation is clearly beyond your abilities.

However, rather than shouting down the government agencies for being efficient at collecting information that you have freely put out there for the world to see, we should all take a step back and consider how much privacy we have given up on-line in a desire to have the most friends or followers. As 1 June 2015 looms around the corner, and is the date on which the US Congress & President need to renew the PATRIOT Act (where most of the surveillance authority comes from), I welcome a reasoned debate on a point-for-point review of those powers. It is a balance that we must strike: not too much government surveillance, but also not such blind exposure of our personal lives. The government cannot invade your privacy at will, they require authority to do so (judicial or legislative). But you better believe what information you give away freely is infinitely harder to argue later should have remained private.

I’m off to go re-read the iTunes T’s and C’s for gazillionth time… they probably just inserted a comma, but that could make all the difference in the world.

iTunes Conditions have changed. Please review our new Terms and Conditions for Use before continuing...
iTunes Conditions have changed. Please review our new Terms and Conditions for Use before continuing…

The Road to PhD: Day 1 – Application and Ideas

stick_figure_sit_in_question_mark_1600_clr_2623

I have spent the last year or so struggling to determine where my career should go next. As a matter of background, I wrote my LL.M Thesis on the Scottish Referendum and the international legal aspects that should inform that process. Necessarily, my interests were more than academic – research and writing must eventually be tested in the crucible of reality. In this instance, that meant continuing observations and analysis of the Referendum, including the aftermath. (I authored a submission to the Smith Commission post-referendum with regards to the implications of the promises for further devolution and constitutional change during the campaign.)

This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.

stick_figure_hold_earth_1600_clr_1925However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?

More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)

Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…

To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community  at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)

table_of_the_world_1600_clr_8705There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a  political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.

However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.

And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.

 After all, what’s the worst that could happen?

Do not look at the Ark!
The Raiders of the Lost Ark (Copyright 1981 Paramount Pictures and Lucasfilm)

 

Alanis Morissette is God?
Dogma (Copyright 1999 View Askew Productions and STK)

 

Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.

An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Brilliant addition to this now-unfortunately unavoidable conversation for Canadians. Fully endorse your consideration of Mark’s statements here.

Justice in Conflict

Ottawa. (Photo: Creative Commons / Endlisnis) Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on…

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Oh Canada: A Eulogy for Innocence

CAN Pegman w tearOh Canada…

You are the country of my birth, my youth and that beacon in my heart that reminds me that another way is possible where our individual and collective voices trumped violence and terror. Alas, our voices are now momentarily silent from the shock that has followed from the targeting of our soldiers on home soil. Our hearts have taken a blow as we consider the implications that the events in Québec and Ottawa have for our unique multicultural democracy.

As noted by MPs whilst locked down in the Parliament speaking to the world’s press, ‘ours is an open society that is welcoming for all’. There were no barriers preventing these individuals from storming Parliament Hill because that is not the Canada we want – one where our politicians and institutions reside behind fortified ramparts, only accessible after multiple security checkpoints. One Canadian journalist even stated that there is weekly yoga open to the public on the lawn out front.

We should remember that the casualties of these attacks have been two soldiers at home.

Our collective sorrow at the presence of political violence in Canada is understandable. I had grown up thinking of our soldiers as wearing the blue berets of peacekeepers. I enjoyed the positive reputation that the country of my birth afforded me when travelling elsewhere in the world. Having moved to the United Kingdom, I still get a prompt apology when an incorrect assumption is made based on my distinctly non-British accent. (To be fair, I always say there is no reason to apologise. I’m from Toronto. As Alec Baldwin quipped in 30 Rock: “It’s like New York, without all the stuff.”)

FLQ and the October Crisis of 1970

But this is not the first time that Canada has borne witness to such acts on home soil. In 1970, during the FLQ October Crisis, terrorists (I won’t even acknowledge their agenda for separatism – it is an insult to those separatists in Québec who act peacefully as one should in a just democracy) kidnapped a British diplomat (James Cross) and killed a Québec Provincial Minister (Pierre Laporte), and also set off almost a hundred explosive devices during their campaign. Ultimately, James Cross was released in exchange for safe passage to Cuba for the kidnappers. However, in order to deal with the crisis, the War Measures Act was invoked, suspending habeus corpus, and the military was deployed in Québec and Ottawa to re-establish order. This crisis was where Prime Minister Pierre E Trudeau famously stated: “Just watch me” in response to a question of how far he would be willing to go to deal with the matter.

During that crisis, Warrant Officer Class II Walter Leja of 3 Field Engineer Regiment was gravely injured whilst attempting to disarm an FLQ mailbox bomb. He was later awarded the George Medal by Queen Elizabeth II. A watchman, Wilfred O’Neill, was killed when another bomb went off at a Canadian Army recruitment office in Montréal.

The legacy of this crisis was such that violent political extremism was condemned as repugnant and unnecessary, and as testament future separatist efforts were pursued under the rule of law by peaceful means.

Oka: A Breakdown of Relations with First Nations

In 1990, following encroachment upon lands subject to claims by the Mohawk Nation and an attempt by Québec Police (Sûreté du Québec) to dismantle a barricade around that land, a stand-off ensued between the Canadian Military and the paramilitary arm of the First Nations, the Warriors. In a famous image from the tense events, a Native Warrior stood face-to-face with a Canadian soldier in an effort to provoke violence. Here is the CBC evening news report on that day:

What makes this distinct from the FLQ, and what gives pause to labelling the events as ‘terrorism’ is difficult relationship that has endured between the Government of Canada and the First Nations. Under the original alliances with the British Crown, the First Nations were recognised as ‘friends of the Crown’, as opposed to subjects – the status of non-native Canadians.

A colleague of mine who served in the Canadian Forces at the time was deployed to Oka. Conversing with him on the matter, he stated that it was the most difficult mission he had ever undertaken. Given that he was also deployed in the first Gulf War, I asked how this engagement differed. His answer was as stark as it was to the point: “When I looked down sight of my rifle, I realised I was aiming at a fellow Canadian. I’m not sure I could’ve shot.”

A Mohawk Warrior and a Canadian soldier engage in an iconic scene from the Oka Crisis

Sadly, during the initial police intervention, SQ Corporal Marcel Lemay was struck and killed by gunfire. The stand-off lasted 78 days, with the Mohawks and the military commander Lieutenant-Colonel Robin Gagnon (Royal 22e Régiment) negotiating for a peace. It should also be noted the intervention of the Mohawk women who intervened and ordered the Warriors to de-escalate tensions. However, this crisis formed the basis for further tensions in other parts of Canada with First Nations peoples. Much is yet to be resolved.

Post-9/11: Responding to the ‘War on Terror’

The events of 11 September 2001 in the United States prompted Canada to reorient our military efforts to support the American-led and ISAF/NATO operations in Afghanistan. Putting Canada ‘on a war footing’, Canadian military forces entered Afghanistan in late 2001, with the initial insertion conducted by the elite Joint Task Force 2 (JTF2).

 PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

On 17 April 2002, four soldiers from 3rd Battalion Princess Patricia’s Canadian Light Infantry (‘PPCLI’) were killed, and eight wounded, following a friendly-fire bombing by an American F-16 mistaking the Canadian’s live-fire training operation for a Taliban assault (the Tarnak Farm incident). These casualties were the first for Canadian Forces since the Korean War.

Capt Nichola Goddard
PPCLI Capt Nichola Goddard, the first female military casualty in Canadian history (2006.05.17)

In another tragic first, on 17 May 2006 Canada suffered its first female servicemember’s fatality, when PPCLI Captain Nichola Goddard’s armoured vehicle was struck by RPGs.

The toll on our soldiers from the Afghan conflict was extreme. According to currently available reports, 158 soldiers were killed and 1,859 were injured or wounded. The Canadian public attitude towards the war shifted from supportive (from 2001-2005, only 1 in 5 Canadians opposed the war) to opposition (by 2010, 56% were opposed to the mission in Afghanistan). However, throughout the conflict, the dissent was mostly directed towards the political decisions and not targeted towards Forces personnel.

On 15 March 2014, the last Canadian soldiers in Afghanistan returned home.

This week…

WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. 2014.10.20)
WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. (2014.10.20)

On Monday (2014.10.20), two soldiers walking in a parking lot outside a veteran’s support centre were run down by a car driven by a 25-year-old man who was known to police for radical ideology and sympathies for the terrorist group ISIL/ISIS/Islamic State. 53-year-old Warrant Officer Patrice Vincent succumbed to the injuries he sustained in the attack. The other soldier is still in hospital. The perpetrator also died of injuries sustained when he was shot by Québec Police attempting to apprehend him.

Corporal Nathan Cirillo, 24, was killed by a gunman while standing guard over the Tomb of the Unknown Soldier at the National War Memorial in Ottawa, Canada (2014.10.22)

Then, earlier today (2014.10.22), a gunman approached the National War Memorial in Ottawa and opened fire on the honour guard protecting the Tomb of the Unknown Soldier. Despite medical interventions by civilian by-standers, Corporal Nathan Cirillo died of his gunshot injuries.

The gunman proceeded towards the Canadian Parliament buildings, entering inside and reportedly firing more than thirty times. The Sergeant-at-Arms (typically a ceremonial post) for the Parliament, Kevin Vickers, intercepted and killed the perpetrator just outside the rooms where Canadian MPs were holding their caucuses. Reports have suggested that the federal police (RCMP) and Canadian Army are still looking for multiple suspects believed to be involved. Most of the capital was subject to lockdown until 2025hrs EST. Parliament Hill remains closed to the public.

…going forward

The subtitle of this post is ‘A Eulogy for Innocence’. The innocence I speak of is that which all Canadians have in relation to our self-image as a tolerant nation inclusive of all that transcends the problems elsewhere in the world. This innocence is, unfortunately, one of youthful naivety. Canadians are today, perhaps more than at any other time, now realising that not everybody else in the world thinks fondly of our Northern paradise. Furthermore, we also must come to realise that our servicemembers experience real peril when we send them out on deployment. While these professionals carry the Maple Leaf on their shoulders, they represent the best of us: compassionate in the face of tragedy, defiant in the face of tyranny, and resolutely heroic in the face of danger. The True North Strong and Free.

When they come home, however, Canada should be the one corner of the earth where we all share in these values. They should not find themselves facing the possibility that their fellow citizens may pose a danger to their lives.

Caption
Fusilier Drummer Lee Rigby, Royal Regiment of Fusiliers, who was murdered outside the Royal Artillery Barracks in Woolwich, London by British-born radical extremists. (2013.05.22)

Living in south-east London, I was very close to where Fusilier Drummer Lee Rigby was murdered on the streets of Woolwich outside the Royal Artillery Barracks. The deranged acts of his killers were a result of similar radicalisation as had occurred with the attacker on Monday. (The gunman in Ottawa has not, at time of publication, been identified by authorities as having shared in radical ideology.) And it is further lamentable to consider that here in the UK, soldiers on home soil have had to be on guard against numerous threats in the past, including from the IRA. To see so many soldiers in uniform in public during the 2012 Olympic Games was disconcerting at first, but they did a wonderful job of securing the venues and providing assistance where needed.

Nonetheless, I think that any person serving their country should never have to hide that identity for fear of retribution whilst at home. But pragmatic security concerns have made it so. After all, rhetoric will be of little comfort to their family if practical measures could have saved a soldier’s life.

What makes me sad is that these measures that I have grown accustomed to here in Britain could possibly be necessary back in Canada now. The barriers outside Westminster Palace (British Parliament) and the security just to enter will need to be considered for Parliament Hill in Ottawa. Self-protection measures for soldiers in uniform in Canada will have to be developed in order to keep them safe when amongst the public.

But saddest of all for me is that after today’s horrific tragedy, is that my military friend’s psychological dilemma of even pointing his rifle at a fellow Canadian may no longer be a justifiable concern. When citizens take advantage of their mutual goodwill towards each other to commit heinous acts of violence, suspicion may be the legacy that lingers longest amongst us.

I sincerely hope that I am proven wrong.

UPDATE (2014.10.26): It is too early to consider how this week’s events could alter the national conversation that most Canadians know we must have in order to go forward from this tragedy. However, I wish to point out that I have never heard a more patriotic and emotionally-rousing performance of the National Anthem prior to any Hockey Night in Canada. Click here: Ottawa, Toronto, Montreal unite for stirring Canadian anthem (Courtesy NHL)