Magna Carta Plus News

Glenn Greenwald writes:

At this point, I didn’t believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. In response to the lawsuit filed by Anwar Awlaki’s father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims. That’s not surprising: both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality. But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”: in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

The executive power to secretly execute citizens without any judicial oversight is surely the power of a tyranny rather than a constitutional republic. There would be no way of holding the POTUS accountable for his exercising of such power. It negates the rule of law.

According to Bloomberg.com:

Senator Judd Gregg, a New Hampshire Republican, predicted Congress’s efforts to rescind American International Group Inc.’s bonuses through higher taxes would be thrown out by the courts. He said the legislation before lawmakers violates the constitutional ban on bills of attainder, which restricts lawmakers’ ability to punish individual Americans.

“It’s basically targeted on a small group of people, which is technically a bill of attainder,” Gregg said.

See also: Wikipedia on “Bill of attainder”.

The Register reports:

US citizens could be investigated without just cause under a new plan from the Justice Department, while those who choose to leave the country will have their records kept for 15 years and available to any litigious attorney.

The Justice Department plan won’t be unveiled in detail until next month, but the New York Times is reporting that the plan will to allow the FBI to open an investigation into anyone without clear suspicion, and that’s got civil liberty groups understandably concerned.

Meanwhile the Department of Homeland Security has been quietly building a database of every border crossing by a US citizen, claims the Washington Post, and intends to hang onto the data for 15 years - foreigners will have their data stored for 75 years. All this information sits in a database which will be exempted from the 1974 Privacy Act, which would require individuals to be informed if lawmen request the data.

Both these moves are about solidifying temporary powers that were put into place following the terrorist attack in New York in September 2001, and doing so before Bush leaves office and is replaced by someone who may be less hard-line.

There have been a number of freedom of speech related stories recently that I’ve only just got round to covering, ranging from the UN Human Rights Council’s recent decision to gather information about “abuses” of freedom of speech to a prominent British blog being sued by an individual connected to Hamas. All over the world it seems to me that freedom of speech is being attacked. The details of these recent stories can be found below:

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One of the things I’d like to do with this blog is to shift it towards being less UK-centric. This is difficult given the sheer volume of anti-civil liberties legislation being generated in the UK, but occasionally I do get a chance to cover some non-UK material. For example, this website is dedicated to documenting the loss of civil liberties in the USA since 9/11. I’ve not yet read it in detail but it may be of interest to readers wishing to catch up on the US situation and/or compare it to the UK or elsewhere.

Now for another round-up, this time on freedom of speech related stories of which there have been a fair number in recent months.

• Back in October, the Pub Philosopher pointed out how Britain’s new religious hatred law is beginning to bite:
  

  A number of people have already posted about Father John Hayes, the priest who was interviewed by police on suspicion of inciting racial hatred, after he expressed views about religious dress and radical Muslims in his parish newsletter. Esmerelda wondered whether, given that Father Hayes’s comments were made over a year ago, someone was taking advantage of the new Religious Hatred Act to make their complaint.

  This may give a clue to the response of the police. Usually, the police would look at the evidence in a complaint and then decide whether they thought a crime might have been committed before taking any further action. The problem is, you can’t do that with the Religious Hatred Act.

  Read Section 29B. It says:

  A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.
  
  And you can’t work out what someone’s intention was without talking to them.

  To establish whether Father Hayes had broken the law, the police had to judge whether he was a rabid Muslim-hater, hell bent on stirring up a religious war, or a harmless parish priest engaging in theological debate. Presumably, the senior officer who picked up this case decided that the only way this could be done was by sending two coppers to interview Father Hayes.

  As I said last year, this is one of the most worrying aspects of the new law. It is up to the authorities to decide what they think you meant. They can, if they choose, infer meanings from your words that had never occurred to you when you wrote or said them.

  The letter which led to Father Hayes being interviewed can be found here.

  This shows how laws that restrict what people can say can be used to intimidate someone via the mere threat of a prosecution, by someone who might simply dislike what the person said. This can have just as big an effect on free speech as any actual convictions brought under the such laws and such threats can be used without the speech concerned necessarily being proscribed by such laws.

• Apparently, it is illegal for pub landlords to put up signs saying “FAGGOTS & MINCE NOT ON THE MENU”.

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Back in catch-up mode, this time a selection of stories regarding freedom of speech:

• Organise a petition, face a trial!

  Peter Black AM, highlights the case of Swansea businessman Carl Lewis, who organised a petition to oppose a proposed traveller’s site in Swansea during a by-election campaign where he was standing as an independent candidate for Swansea council. The CRE has instructed lawyers to take action against Mr Lewis under Section 31 of the Race Relations Act which apparently makes it unlawful to bring pressure on someone to act in a discriminatory way, an extremely vague law which looks like a “catch-all” clause to me. Peter Black highlights just how disturbing this development is:

  Whatever one’s views on this matter, the prosecution of local residents who are using legitimate and democratic means to bring their concerns to the attention of the local Council, will set a dangerous and unwelcome precedent. If for example the Council were to proceed with an official site and lodged a planning application would the CRE determine that anybody who objected to it, and any Councillor who spoke against it, were acting in breach of the Race Relations Act?

  There are fundamental freedom of speech issues here that are not helped by the CRE’s own inconsistency. They are not for example prosecuting the Labour Party, who put out a leaflet in the by-election calling on people to vote for them so as to get rid of the gypsy site. Nor are they prosecuting the BNP who also put out dubious literature during the recent by-election.

  Note that the right to raise a petition, as well as being an important component of any remotely democratic society, dates back in English and Welsh law (at least) to the 1689 Bill of Rights:

  That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

• Yes, I know I’ve been very slow on the uptake on the Alisher Usmanov story. For those not in the know, basically, Mr Usmanov didn’t like what some bloggers were writing about him, and instructed his lawyers to get the material removed resulting in a whole swathe of websites, many of which had not published any of the offending material, being shut down. End result, lots of bloggers have taken an interest in the story and rallied round, resulting in the material getting an even wider viewing than it would have done had no one made a fuss. See Chicken Yoghurt and Spy Blog for some summaries, plus check here and here for the offending material itself. Note that Craig Murray (one of the censored bloggers) has material critical of Usmanov in his book without facing any libel charges. Finally Mr. Eugenides sums up the problem succinctly:
  

  And let’s be clear on this point; these blogs are down not because Usmanov has been libelled, but because he says he’s been libelled, and has a room full of paid monkeys sitting at typewriters firing off theatening letters to that effect.

  I don’t give a shit about this character, or Arsenal FC (no offence to any Gooners out there); nor do I share all or even most of Tim Ireland or Craig Murray’s politics. But that’s far from the point. If you can be silenced for calling a businessman a crook, then you can be silenced for calling a politician a crook, too. Then it’s everyone’s problem.

  Most recently, Indymedia have also been threatened by Usmanov/Schillings and Bloggerheads, one of the affected blogs, is keeping up with the affair here.

• Shortly after he took over as PM,I covered reports that Gordon Brown might lift the exclusion zone against protesting within 1km of Parliament, after he’d made a speech where he’d talked about safeguarding and enhancing civil liberties. I’m not aware of the exclusion zone having been lifted yet, over 4 months into Gordon Brown’s Prime Ministership. Moreover, the police were recently refusing to allow a march organised by Stop the War to pass within 1 mile of Parliament and even claimed that no marches were allowed whilst Parliament was sitting, but eventually the march went ahead, though this may have been because of the high-profile of one of the marchers. At any rate, it looks like the police were trying to restrict this march but backed down due to the fuss, and there’s still no sign of the exclusion zone being lifted.
• What did this man do to deserve being tasered?!.
• Reuters reports that the EU has plans to try and block every website that posts bomb making instructions. In fact it’s worse than it sounds (surely any site on the chemistry of unstable compounds could be deemed to be “bomb-making” instructions?!), from the Reuters report:
  

  Internet searches for bomb-making instructions should be blocked across the European Union, the bloc’s top security official said on Monday.

  Internet providers should also prevent access to any site giving instructions on how to make a bomb, EU Justice and Security Commissioner Franco Frattini said in an interview.

  “I do intend to carry out a clear exploring exercise with the private sector … on how it is possible to use technology to prevent people from using or searching dangerous words like bomb, kill, genocide or terrorism,” Frattini told Reuters. (emphasis added)

  This is crazy. The man wants to actually stop people using certain words in their articles or in search engines! Note that the Reuters report itself would fall foul of the ambitions attribute to Mr. Frattini here.

  The Register reports a more recent speech by Mr. Frattini that mentions plans to make it an offence to post bomb-making recipes on the internet. This speech makes no mention of the blocking of websites that uses certain words, but we’ll probably have to wait until the formal proposals come forward before we see what is actually in the pipeline.

• Apparently, writing an email like this, got the American author suspended from his University course and told he would have to undergo a compulsory mental health evaluation if he was to be allowed to return.
• The Racial and Religious Hatred Act 2006 was brought into force at the beginning of October. This Act made it an offence to incite religious hatred, where to fall foul of the law you’d need to use “threatening” language or behaviour and the prosecution would have to prove intent to foment hatred.

  The problem here is not so much the precise definition of the offence, or even the possibility of someone being jailed when they criticise a religion, but rather it is the likely effect it will have on people prior to the point at which legal proceedings might be instigated, as the Pub Philosopher explains in an article posted after the bill passed:

  People will register that the law has been passed and that there are now penalties for saying nasty things about Islam. Most will not read the small print and will decide that it is simply safer to keep quiet. Managers, unsure of the law, will flinch in the face of demands and accusations from Muslim staff who decide to test the limits of their new legal rights. Expect to see more cases like the ridiculous ban on pig toys in Dudley.

  Even in its modified form, the Religious Hatred Bill will close down debate about religion and will restrict free speech. Last night’s government defeat may have preserved some of our legal freedom to criticise religions but the new law will create an atmosphere in which fewer people are prepared to take the risk.

  For example, could a protest in which placards of the Danish cartoons were being waved be construed as “threatening” behaviour? What if some militant (and thus vocal) Muslims claimed they felt threatened by such a protest, finding it intimidating?

• Finally, it appears that British diplomats may face a life-time gag preventing them writing articles or letters drawing on the expertise they gather during their careers, even in retirement. As Brian Barder explains in the Telegraph:
  

  Official secrets are protected by the Official Secrets Act, which rightly binds officials for life, both as government employees and after retirement.
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  The new rules go much further, banning any unauthorised expression of opinion not just by serving officers but also by retired diplomats for the rest of their lives, if such an expression “draws on, or appears to draw on, official information or experience gained in the course of official duties”.

  This applies even if no breach of secrets is involved.

  Had this been in force a few years ago, it could have prevented publication of the ground-breaking letter of 52 former ambassadors and other senior ex-diplomats constructively criticising the Government’s Middle East policies.

  It would prevent ex-diplomats with unrivalled experience “gained in the course of their official duties” from writing articles or letters to the newspapers or giving media interviews on controversial foreign policy issues such as Iraq.

  It would have closed down several stimulating and informative blogs and pre-empted many diplomatic memoirs.

  Baroness Pauline Neville-Jones, formerly a senior diplomat, would presumably have been prevented from serving as the Conservative spokesperson on security in the Lords. (emphasis added)

A common slogan used by many of those who support measures that put the general population under surveillance, such as CCTV and the British national identity scheme, is “if you’ve got nothing to hide, there’s nothing to fear”. I’ve criticised this slogan before, as have Samizdata (e.g. here, at their sister blog White Rose and here), UKLiberty and the No2ID weblog.

However a particularly compelling illustration of why the slogan “nothing to hide, nothing to fear” is so wrong-headed, and how law abiding people can be put at risk by those who gather information about them is provided by the spate of recent stories involving large (often governmental) organisations losing, or otherwise publicly exposing, personal details of the people who deal with them:

• Organisations who are reported to have exposed personal details on the internet include the pharmaceuticals giant Roche, whose systems exposed people’s medical details, RyanAir whose online check-in facility sent confidential information across the internet unencrypted, the Foreign Office, whose system for online application for Visas exposed the details of Indian applicants and Britain’s NHS whose (now scrapped) MTAS system exposed the full personal details of medical students applying for posts as junior doctors.
• Organisations reported to have lost personal data, unwittingly given it away or to have had it stolen include the US Transport and Security Administration who have lost a hard drive containing the details of 100,000 employees and former employees, Southend Borough Council who had a computer containing sensitive files about vulnerable children that ended up being sold on eBay for £1.70 after a mishap in their computer recycling program and UK retailer Marks and Spencer, who had a laptop stolen containing the details of 26,000 members of staff.

The above are just a handful of recent stories, and I’m aware of other examples going back years. For example numerous cases of organisations losing, public exposing or abusing the personal information they store are also documented in UK Liberty’s article on data abuse.

In each of these cases, the personal details of law abiding citizens, often numbered in thousands or tens of thousands, have been compromised and may have fallen into the hands of those who might try and impersonate them or otherwise use the information against them. So much for “nothing to hide, nothing to fear”.

The British government claims its national identity scheme will help combat identity theft, but it seems to me that it is more likely to enable identity theft because not only will it store all all the information needed for someone to pretend to be you in one place, but its National Identity Registration Number will end up indexing both your national identity register entry and your entries in other databases both private and public. The NIRN and much of your personal information on the NIR will be shared with many public and private sector organisations and be accessible by thousand and thousands of officials.

It beggars belief that lapses in security similar to those reported above would be minimised by such a system or that the opportunities for stealing the information would be minimised either. And, unlike the systems above, your participation (if you’re a permanent resident of Britain) in the scheme will not be voluntary if the government gets its way.

A friend has sent me links to two privacy related stories from the US:

• Apparently, the US Justice Department is building a database that will store case files from the FBI, Drug Enforcement Agency and other federal law enforcement agencies, that will be made available to local police forces around the country:
  

  The system, known as “OneDOJ,” already holds approximately 1 million case records and is projected to triple in size over the next three years, Justice officials said. The files include investigative reports, criminal-history information, details of offenses, and the names, addresses and other information of criminal suspects or targets, officials said.

  The database is billed by its supporters as a much-needed step toward better information-sharing with local law enforcement agencies, which have long complained about a lack of cooperation from the federal government.

  But civil-liberties and privacy advocates say the scale and contents of such a database raise immediate privacy and civil rights concerns, in part because tens of thousands of local police officers could gain access to personal details about people who have not been arrested or charged with crimes.

• Another story highlights the use of CCTV to capture a killer. The amount of footage obtained from various sources in this cases suggests to me that the US is beginning to catch up with Britain in the pervasive use of CCTV.

Both cases illustrate how modern technology is driving considerable changes with regards to privacy, including enabling people to be surveiled in increasing detailed as they go about their lives, and enabling information to be shared easily amongst many thousands of law enforcement officers.

The CCTV example shows that there are benefits to the increasingly pervasive use of CCTV, and the easy sharing of information between federal and local police forces may also allow easier coordination of efforts in cross-jurisdictional cases.

The main question is how best to enable these benefits to be tapped whilst protecting people from the abuses that such systems can enable. If the police can trace an individual’s movements when solving a crime, it is clear they could also do so for more sinister purposes. Likewise, the easy sharing of case files between federal and local police enabled by the database carries a danger of the information being misused.

It is worth noting though that the plans for sharing case files are far less intrusive, and far less of a danger than many of the database schemes currently being proposed or implemented by the British government, which typically involve sharing information related to the entire population across government departments, without regard to innocence. Case files are at least limited to those who have been investigated for crime.