Conservative MP Dominic Raab talks to Mike Harris about civil liberties, free speech and how he “wouldn’t lose any sleep” if the UK’s communications data bill were canned

This is the first of a new Index Interviews series

LONDON, 16/10/2012 (INDEX). Dominic Raab’s father fled Czechoslovakia just before the Second World War. The Conservative politician cites the fall of the Berlin Wall as one of his biggest political influences and Soviet dissident Alexander Solzhenitsyn as the writer whose life he most admires. In many ways, his style is from another generation of politicians; he shoots from the hip describing Vladimir Putin as “a very Machiavellian, ruthless politician”, he is unaccompanied by an aide, and, rarer still, he doesn’t check his BlackBerry every five minutes.

Index is meeting Raab in a side room off Portcullis House, Parliament’s new office block for members of Parliament (MPs) and their staff. On the agenda are free speech issues both in the UK and abroad — from the Leveson Inquiry to the Kremlin’s suppression of Russian NGOs.

Offence and self-censorship

Let’s start with an easy question: Does he believe the culture of offence has got worse? He does.

“There is certainly much more legal restriction on what you can say. We’ve seen it with the incitement to religious hatred debate,” he says, “the glorification of terrorism debate and the ASBOs (Antisocial Behaviour Orders) that originated under the last government.” His concern is that these limitations are making society less open: “We’re narrowing the space where free speech and open debate takes place.

Raab defends preacher Philip Howard, who was banned from street preaching by Westminster Council in 2006:

I used to walk past him on Oxford Street with his microphone. The eccentricities of British life thrive on there being an open space where free expression can take place, and I don’t think most people thought he was such a nuisance that he ought to have been banned from preaching. We’re seeing the salami slicing of free speech.

The law I draw is the very clear one that John Stuart Mill drew, that you shouldn’t be saying things which incite violence or disorder, or cause tangible concrete harm to other people. Mere offence or insults don’t satisfy that test.

Raab is clear he thinks the Crown Prosecution Service (CPS) has over-prosecuted free speech cases in the past citing the Paul Chambers Twitter joke trial case: “Aside from the free speech issue, what a waste of money!”

Paul Chambers, who was found guilty of sending a menacing tweet, last July won his high court challenge against his conviction. He had tweeted in frustration when he discovered that Robin Hood airport in South Yorkshire was closed because of snow. Eager to see his girlfriend, he sent out a tweet on the publicly accessible site declaring: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

On Chambers he adds the firm he worked for was “gutless” for firing him during the CPS prosecution.

Thinking about the Innocence of Muslims controversy, I ask Raab if he thinks there’s a propensity to self-censor on controversial topics. He agrees:

I think politicians are very cautious that anything they say can be skewed or taken out of context. With excessive political correctness we’ve become ever more cautious as a class. On the other hand, there are areas where you have to be responsible in addressing them.

Of course it’s easy to see why MPs may wish to keep their heads down. The news cycle is quicker than ever. An off-the-cuff comment by a politician will trend on Twitter and be picked up by rolling 24 hour news channels desperate to fill their schedules within minutes. Is this super-fast news cycle making politicians self-censor?

“Well, it’s obviously not having an impact on the (Mitt) Romney campaign…” During the campaign, US Republican candidate Romney said his job was “not to worry about those people”, referring to the 47 per cent of people who don’t pay income taxes.

He switches to serious: “The point at which we down tools and stop speaking up for what we believe in there’s no point in being a politician.”

He relates back to his election in 2010, in the aftermath of the MPs’ expenses scandal:

If you look back at the 2010 election, and I think this is true of all politicians, the thing many of us realise most of all is how low the political class were and the fog of mistrust that hung in the air in the aftermath of the expenses scandal. There’s a deeper malaise, a feeling that politicians are colluding in the system and they don’t really stand up for what they believe in they just say what they’re supposed to. That is very dangerous. It is not just a question of political correctness … but a question of public trust in their elected representatives to stand up and have a conviction even if it is uncomfortable.

The expenses scandal was triggered by the leak and subsequent publication by the Telegraph Media Group in 2009 of expense claims made by MPs over several years. Public outrage was caused by disclosure of widespread actual and alleged misuse of the permitted allowances claimed, following failed attempts by parliament to prevent disclosure under Freedom of Information legislation.

It’s an interesting proposition: self-censorship is undermining trust in MPs. It’s certainly a cultural commonplace from The Thick of It to Yes Minister that MPs are unthinking automatons who blindly follow the orders of their special advisors, civil servants or media handlers. Raab thinks this self-censorship is ultimately self-defeating: “Whilst there is huge pressure on MPs in a way there wasn’t before because of social media and the 24 hour news cycle, there is also a huge repository of good will for those who are not deterred by the chilling effect of the professional pessimists in the media. The bottom line is that MPs and elected representatives ought to have a little more backbone and not give in to the online lynch mob.”

On Leveson

The Leveson Inquiry hangs over the British media. Raab points out that the IPSOS Mori Trust in Professionals Poll for years put trust in journalists below politicians: “The public know they’re not getting an honest account from the media”.

That was until the MPs’ expenses scandal.

Now, he views Leveson as an opportunity to help clean up the media. “There are two acid tests for Leveson. Will any proposals deal with the trigger for Leveson, which were the phone-hacking (that was already a criminal offence), and the reports of newspapers bribing police officers? These are the two things that concern me and I think the public care about the most.”

But, he adds: “Whether we need new legislation for this is a different question.”

On statutory regulation versus self-regulation, Raab is clear: “I am a free speech guy. I will be very reticent to move to a system that ends up having a chilling effect on free speech or media debate. There’s a real risk that we get proposals that do the latter, but don’t address the former. But let’s see.”

Communications Data Bill: Fight against criminals or a snooper’s charter?

One of the themes of Raab’s book The Assault on Liberty is decent people entering politics with the right intentions and being got at by the machine of government. In the book, Raab names former National Council for Civil Liberties General Secretary Patricia Hewitt and legal advisor Harriet Harman as two advocates of civil liberties that went on to embrace illiberal laws.

The parallel with the current Conservative-Liberal Democrat government is obvious with the coalition’s earlier commitment to “end the storage of internet and email records without good reason”, followed promptly by the government’s publication of the Communications Data Bill that will do exactly the opposite.

Raab adds: “I think there’s a few things at play. First, your view when faced by briefings on national security will change even if it’s only a shift … The second thing is something we’ve got to get much better at: pushing back at some of the lazy assumptions we’re fed by the security establishment. I mean, you think of the arguments made in favour of 90 days and 42 days detention! I haven’t heard anyone since suggest there is a serious national security issue or counter-terrorism issue.”

On 12 October 2008, the Government finally dropped the controversial plans to allow terror suspects to be held for 42 days without charge after they were rejected by the House of Lords.

“You think of the scaremongering over ID cards and the assertions made by people in the police and plenty in the security establishment … on the risks of not going down that line of regulation, and does anyone seriously think at the end of that debate that ID cards would have made us safer?”

“Ministers have got to be a lot more demanding of the official advice they get and much more probing of it,” he adds.

In some rare Tory praise for their Liberal Democrat partners he adds:

I think coalition probably helps that, but I would say that the new surveillance proposals are exactly the sort that need to be looked at, scrutinised and tested both on the privacy side, the technological viability side, but also some of the wild assertions about the law enforcement value that have been made. I’m certainly not convinced that these proposals are worth the sacrifice of privacy in terms of the law enforcement bang for your buck you’re going to get.

In opposition, the Conservatives said the controversial Regulation of Investigatory Powers Act 2000 (RIPA) went too far, but the Data Communications Bill will go even further. Raab retorts:

In fairness, there have been new checks placed on town hall snooping. Nonetheless, I think if we allowed the latest set of proposals to come through with plans for mass surveillance of every phone call, internet based message, email that we make, Skype and all the rest along with very sobering proposals for data mining and deep packet inspection … I think that would mark a ‘step change’ in the relationship between the citizen and the state. I would be very nervous about crossing that Rubicon unless I am absolutely convinced that it is imperative on the highest security and public safety grounds, and I don’t think that case has yet been made.

He draws a distinction between the Bill and RIPA, acknowledging that it does go further:

The safeguard in (RIPA) is the human manpower needed to sift through all of our personal data is ludicrously high and therefore, whilst there is a principled objection, the reality is, even with 10,000 requests a week for personal data, the impact on privacy is fairly confined. But if you add on the proposals in part two of the Data Communications Act for filtering arrangements and data mining and attempt to draw inference and patterns and trends from lots of our personal information and make judgements or assumptions or pre-judgements, about every innocent citizen as well as the guilty ones, I think that is a real sobering development well beyond qualitatively anything we’ve seen until this point.

I also think there are ways in which the Bill can be salvaged. [But] I wouldn’t lose any sleep if it was canned. We could do much more with the estimated £2 billion worth of money.

He hedges his bet: “If we are going to stick with it, it needs to be focused on terrorism and serious crime, limit very strictly who can have access to the data and I think we need a judicial warrantry system rather than these implicit plans for data mining and other surreptitious techniques which effectively reverse the normal presumption of innocence that we have in Britain.”

There has been a democratic urge towards measures that promote personal safety above individual liberty. In The Assault On Liberty, Raab points to the proliferation of closed-circuit television (CCTV), but it was often democratically elected councillors who introduced security cameras in response to public fears. As Index has pointed out, as the cost of surveillance equipment is dropping more governments are considering implementing it.

Raab questions the cost estimates provided by governments for such projects: “I remember with ID cards the original estimate of how much they would cost ballooned when it was looked at independently. I think the best thing that can be said about this is that the public have become increasingly sceptical the more they have seen fairly draconian proposals that haven’t on due scrutiny, whether parliamentary scrutiny or public scrutiny or seeing the operational practice, haven’t actually delivered on their law enforcement goals.”

He’s also optimistic that the public is increasingly sceptical over politicians’ claims over national security:

“There has certainly been a huge amount of populist pandering and scaremongering in the wake of 7/7 and 9/11. I think the public have wised up to this and I also think they listen to the point of principle and the arguments against in perhaps a way they didn’t in the early 2000s.”

It’s this public scepticism and the longer parliamentary scrutiny the Bill will receive that he believes will neuter the most illiberal measures in the draft Communications Data Bill, says Raab.

“There’s a long time frame because of the pre-legislative scrutiny,” he adds, “and then we’ll have the Bill scrutiny … and I think that it will be a similar debate to the one we saw over ID cards which is there will be analysis over the point of principle and on privacy, and then there will be all the technical geeks will come out and scrutinise very carefully the viability. Then there will be quite a few independently minded law enforcement people like former ACPO president Sir Chris Fox saying this will not deal with top-end criminals and terrorists because they are smart enough to avoid this very obvious route of surveillance whether it’s with pay as you go phones, proxy servers, and all the rest.”

Open debate is key to scaling back the Bill. “Time allows for scrutiny which tends to puncture the myths and once the public turn against proposals like this there is no getting them back though actually I think in the long run we end up in the right place.”

Russia

In a previous interview, Raab highlighted Soviet dissident Alexander Solzhenitsyn as the writer he most admires: “When he died last August, I bought a copy of One Day in the Life of Ivan Denisovich, his stark account of the denigration of the Russian people, especially peasants, in labour camps. For me, he stands out despite the fact that — or perhaps because — he wasn’t a liberal campaigner siding with the West in the cold war. He was just a straight talker who loved his country, with the moral clarity and courage to puncture communism’s lingering pretence to legitimacy.”

It therefore came as no surprise that Raab is animated when it comes to contemporary Russian politics, describing newly elected Vladimir Putin as “a Machiavellian, ruthless politician, who will do what it takes to cling on to power and he’s also got a smart sense of propaganda.”

Raab believes in highlighting cases such as that of whistleblowing lawyer Sergei Magnitsky. “It’s an astonishing Kafkaesque situation where a guy that exposes the biggest tax fraud in Russian history then gets persecuted for the same crime. It’s very revealing about the nature of Putin’s regime. We need to keep highlighting this.”

He is proud that the House of Commons unanimously backed his resolution calling for a UK version of the US Sergei Magnitsky Bill imposing targeted economic sanctions of those accused of collaborating in the imprisonment and ultimately, the murder of, Magnitsky. It has been slow progress for Raab but he believes “the government has inched in the right direction. The Foreign Office annual Human Rights report says that it will now be standard practice for anyone against whom there is evidence of torture or other similar crimes to be subject to a Visa ban. That was a shift. And we’ve also seen the Home Office send the Magnitsky files that were presented to the US Congressional Committee to their Russian embassy almost as a watch list to look for the 60 suspects if they try to apply for Visas in the UK.”

He believes that if the Magnitsky Bill passes in the US it will encourage the UK to, and significantly, that Foreign Officers Ministers have indicated a Bill to him. He’s clearly passionate about this case and the precedent this action would set. The Magnitsky Bill “is a neat mechanism that we could apply as a foreign policy tool. It’s about us, it’s not just about interfering or extra-territorial jurisdiction, it’s about us saying do we allow people into this country with blood on their hands, to walk up and down the King’s Road to do their shopping, to buy up property with their blood money. It is not just about their crimes it is about the moral approach we take. At the end of the day, it’s on us as Britain and me as a British lawmaker to take some responsibility for that and I don’t want us to be a safe haven for crooks, cronies and people who have committed the most egregious of crimes as in the case of Sergei Magnitsky.”

But is the process is entirely fair? For as flawed as Russia’s legal system is, none of the accused have been tried in an impartial court of law. Raab insists the punishment fits: “We’re not talking about taking their liberty, we’re talking about not letting them travel to the UK and the privilege of being on British soil or buying up British property. My proposal is that there should be an evidential threshold applied before targeted sanctions, with an appeal mechanism.”

Since Vladimir Putin’s re-election as President of Russia, a number of draconian new laws have been rushed through the Duma including the re-criminalisation of libel, a law to restrict civil society access to foreign funding and new restrictions on freedom of association that have been condemned by the OSCE. So what can the international community do? “Ultimately you’ve got to ask yourself what Vladimir Putin fears. I don’t think he fears an adverse ruling from the Strasbourg Court and I don’t think he fears being ticked off in the Council of Europe. What I think he does care about is diplomatic embarrassment, targeted economic sanctions, which is why I support … the Sergei Magnitsky law. Actions that hit him in the pocket are likely to have far greater influence than trying to think that he’s a good soul and all it will take is some time to smooth out a few of those rough edges.”

There’s almost an element of Marxist determinism in Raab’s analysis. “Russian membership of the WTO is a good thing. With trade and a burgeoning middle class history says you’ll see they’ll demand more representation the more economic influence they have. The economic argument is an important one.” As a vocal critic of the implementation of the European Convention on Human Rights, I ask him whether he thinks the Council of Europe has over-extended itself? He’s positive: “One of the pros of the EU and the Council of Europe … has been to sign governments up from previously unsavoury or despotic parts of the world and try and get them to live by the rules of the club … which are broadly speaking Western democratic norms.”

He concludes that the role of external parties may be unhelpful: “The truth is the Russian people need to work this out for themselves. I don’t believe in megaphone diplomacy. We need to be subtle and patient.”

With that, Index’s time is up. As I leave, in the Atrium of Portcullis House a prominent MP comes over to Raab to ask him for lunch. His staunch defence of civil liberties has certainly made himself one of the more notable members of the 2010 parliamentary intake. As with all politicians who claim to defend freedom of expression, the litmus test is not their rhetoric but how they vote on illiberal legislation — that test, luckily, is yet to come in this parliament.

Mike Harris is Head of Advocacy at Index. He tweets at @mjrharris

The post Index Interview: The salami slicing of free speech appeared first on Index on Censorship.

Though welcome, the announcement has been met with some skepticism. Malaysians have grown accustomed to electioneering and the imminence of the next, and crucial general elections, is seen as having prompted the besieged prime minister and government to embark on a populist campaign aimed at persuading a beleaguered electorate to allow them to remain in power. Put simply, Malaysians are not convinced that words will translate into action.

While this is in part due to the lack of concrete details as to how and when the proposed steps are to be taken, it is the track record of Mr Najib and his two immediate predecessors, Dr Mahathir and Adullah Badawi, on the matter of civil political rights that fuels disquiet and suspicion. All three administrations are known for having used the laws under consideration, along with a range of other anti-democratic laws, and their influence over the key institutions of state for political purposes. In the minds of many, the subjugation of the Rule of Law has been so extensive so that there is no longer a line between politics and governance where the incumbent government is concerned.

It is this context that has given rise to suspicions as to the government’s sincerity. Mr Najib’s case has not been assisted by his declaration that two new security laws will be introduced, laws which according to Mr Najib’s colleagues will still allow for preventive detention so as to allow the state to deal with terrorism, and racial and religious extremism. How this will free Malaysians to think progressively, as Abdullah Badawi suggests the step will allow, is not apparent and concern has been raised that the new security laws will merely repackage the worst of the allegedly outgoing laws and permit abuses to continue. Details of the proposed replacement laws are yet to be made public.

Even if Mr Najib is to be given the benefit of the doubt, and his stated aspiration of having Malaysia evolve into a more functional democracy taken as being sincere, there is concern that Mr Najib may not have the backing he needs to see the move through. For one, it appears that Mr Najib’s cabinet may have been surprised by the prime minsiter’s stance. Just a day or so before the announcement, the home minister denied any move on the part of the government to have the Internal Security Act repealed.

In the same vein, though Mr Najib declared that the matter would be taken up in parliament as early as October, the minister having oversight of parliamentary affairs informed the media that the new security laws would only be tabled next year, even as he emphasised the continued need for preventive detention laws.

Equally worrying are expressions of discontent and reservations about the wisdom of the intended step by conservative and hardliner elements within Mr Najib’s political party, the United Malay National Organisation (UMNO), and the network of organisations that support the party. Amidst talk of there being infighting within UMNO, it is possible that Mr Najib may be forced to back down or risk being defeated on a vote in parliament. His immediate predecessor, Abdullah Badawi, has recently confirmed how he faced strong opposition within the party in his own efforts to push for reform during his tenure.

It is perhaps significant that even as Mr Najib speaks of embracing a more progressive democracy, a leader of the opposition has been charged with criminal defamation for having offered a perspective, albeit an unpopular one, on guerillas affiliated with the Malayan Communist Party prior to independence.  The suggestion by Mr Mat Sabu that the guerillas involved in a particular incident, which resulted in the deaths of a number of Malayan police officers were, were freedom fighters and heroes was deemed by the Public Prosecutor to have smeared the reputations of the police officers concerned and their families. How so has become the subject of debate to the detriment of Mr Najib.

It is as such too soon to celebrate. Satisfaction can however be taken in the fact that there is now official recognition that laws such as the Internal Security Act no longer have a place. For civil society this comes as vindication and proof that the years of activism on the subject have not been in vain. And if there is any more campaigning to be done, it will be staged with the renewed vigour that this has allowed for.

Malik Imtiaz Sarwar is a lawyer in Kuala Lumpur and the President of the Malaysian National Human Rights Society (HAKAM). He was the recipient of the 2009 Index on Censorship, Freedom of Expression Award for Law and Campaigning

The post Malaysia: Reform could change the future of free expression appeared first on Index on Censorship.

First Amendment scholar Geoffrey R Stone wrote for Index back in 2008 that the American public’s right to know had been one of the greatest casualties of the Bush Administration. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor’s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama’s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.

Index: When you wrote for Index at the end of the Bush Administration, the state of the public right’s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?

Stone: I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.

Index: In some cases, that has happened, particularly around changes Obama has made to Freedom of Information policy and classification standards.

Stone: Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it’s been disappointing.

Index: Can you walk through those areas?

Stone: One of those areas has to do with journalist-source privilege. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the bills in Congress to create a federal privilege, but since taking office, he’s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that’s quite disappointing.

Another area where he’s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances – for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that’s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.

The third area where he’s been disappointing has been in State Secrets. The State Secrets doctrine has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can’t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency’s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.

Index: You’ve mentioned that there are several areas in which Obama’s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that’s because all of these issues look different when you’re looking at them from the White House, or because as president he’s been influenced by people with different views within the security world?

Stone: There are a lot of factors that enter into play. One of them is the sense that, “well now my guys are in charge, so we’re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn’t trust George Bush to exercise good judgment on these matters.” So one part of this is that when you’re in a position of authority, you believe your motives are good, and therefore there’s no need for a check on your behaviour. That’s a natural phenomenon, it happens all the time, and I think it plays a role.

Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it’s not as easy to do the things you thought should be done when you were outside the Administration.

A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you’re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don’t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.

Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don’t want to alienate unnecessarily – even though you’re the boss – people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you’re right but decide “I don’t really want to alienate all these people by overriding what they think is their better judgement on these matters.”

There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.

Index: Particularly around the Thomas Drake case, there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?

Stone: I think the latter. My guess is that Obama is not more aggressive; it’s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he’s actually being more aggressive than the Bush Administration would have been in the same circumstances.

Index: Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?

Stone: I think that’s exactly right. There’s no real need to punish these people –– they’re not going to be in the position again to be whistleblowers. If nothing else, they’ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don’t want to be prosecuted and investigated and have your life exposed in the press, and that’s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it’s really about sending a message to other government employees not to do this.

Index: You’ve written a lot about how in past wartimes, the US has made some bad decisions restricting civil liberties – but that we’ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won’t be clear when the time has come that we can have them back again?

Stone: I’ve always been skeptical of the notion of it being a “war without end.” When you were in the middle of World War II, or the middle of the Civil War, you didn’t know when it was going to end. You only knew when it was going to end after it was over. It’s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides – among those who say “we can’t mess around here because it’ll be a life-and-death struggle as far as the eye can see,” and those who say that “there won’t be an end to this, so we have to be especially wary.” I’m much more closely aligned with the latter. If you believe it’s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –– do whatever you can to win this war, civil liberties be damned –– but that we should be especially cautious.

If you ask, “What are the freedoms that we’ve given up as a consequence of 9/11 thus far?” it’s actually not that easy to identify specific things that are egregious. It’s not like the Civil War, where there was a suspension of habeas corpus throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.

The issues that are most threatening are the questions of transparency. Because the government can’t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can’t do that any more, which means you’ve got to really do what you can to prevent people from criticising the government. That’s the instability that’s created here that’s most troublesome.

Guantanamo is a serious concern, and the temptations we fell into –– both with respect to torture and with respect to detention even of American citizens – were very dangerous. But those practices were abandoned pretty quickly. I think it’s the transparency issue that’s the most important, and potentially the most damaging.

The post Assessing Obama’s record on transparency appeared first on Index on Censorship.

The stock answer to the question about the illiberalism of New Labour is that it was due to a wrong-headed response to 9/11, or an obsession with responsibilities over rights as a way of distinguishing New Labour from old, or a courting of populism to keep the Murdoch press on side, or a combination of all three.

But there are two reasons why I think this is too simplistic a knee-jerk response.

First, because it misses the fact that in some ways our society is undoubtedly more tolerant than it was before New Labour, particularly on issues of equality and diversity.

Second, because it ignores a much longer and deeper association between illiberalism and the left (if by illiberalism we mean a lack of respect for the value of liberty and a lack of concern about the power of the state).

I blame it on Marx myself. The state was meant to “wither away,” wasn’t it? We weren’t meant to bother about it much.

It was a Miliband who corrected this disinterest in the state as a potentially oppressive force — Ralph Miliband of course, in 1969, in The State in Capitalist Society.

But whilst Labour may have been more Methodist than Marxist, we shouldn’t underestimate the influence of the intellectual tradition which never really saw the problem with the state — provided it was in the right, or rather left, hands.

When Marx mocked the “so-called rights of man”, and his collaborator Engels rejected any notion of a “human morality” which “transcends class antagonisms”, (to quote him directly) they dismissed out of hand a rich seam of what I would call liberal egalitarianism from the Levellers, to Tom Paine through to the Chartists.

This philosophical tradition – with its focus on democratic accountability, liberty and pluralism — was largely airbrushed out the Labour movement’s DNA, except as heroic stories of individual struggles.

After Marx, the purpose of the left was not so much to change the state but to control it (to paraphrase him badly).

Yet in the late 18th century, radical liberals routinely discussed the nature of political power in a democracy and what measures were necessary to keep the state’s oppressive and centralising tendencies in check.

One of the reasons, of course, why this seam of thought has been dismissed so lightly by socialists over the decades, is that it was associated with a liberalism antithetical to the state in principle and hostile, or indifferent, to its potential to address inequality.

But this was to overlook the rich tradition of liberal egalitarians, most famously Tom Paine, who in Rights of Man Part Two effectively produced a blue print for a welfare state 150 years before Beveridge, including a nascent child benefits and pension scheme.

In the early 1990s, when I found myself advising Tony Blair — as Shadow Home Secretary –– on the introduction of a bill of rights through what became the Human Rights Act (HRA), I tried to suggest that Tom Paine was a largely forgotten natural hero and mentor of the Labour movement, whose linkage of democratic reforms with civil liberties could make sense of the constitutional changes that John Smith was committed to and, importantly, the links between them. As you might have noticed, I didn’t get very far.

Early policy documents sought to tie support for the HRA with the Labour Party’s historic championing of the “oppressed and underprivileged against the power of the strong and powerful” (a direct quote from a 1993 policy paper).

But in 1996 Peter Mandelson wrote that the purpose of New Labour’s support for a bill of rights was to end accusations that Labour was “prepared to sacrifice individual rights on the alter of collectivist ideology”. Incredibly, according to this, the New Labour target in introducing the HRA was not the state but the trade unions.

For both New and Old Labour, in different ways, the state was the solution, but rarely the problem. By the time Labour was in power — and particularly after 9/11 –– successive Home Secretaries began to sound like the direct descendents of the 17th century authoritarian, Thomas Hobbes, with their frankly robotic mantra that the first duty of the state was to provide for the safety and security of the citizen.

Had they not heard that this premise had been the subject of hot debate for over 200 years? Had they never come across the Enlightenment revolutionaries and thinkers who maintained that on the contrary, the first duty of the state was to protect the rights and freedoms of men and women, including, but not solely their security?

In the words of the famous French Declaration “the aim of all political association is the preservation of the …rights of man”.

The post-war Universal Declaration of Human Rights (UDHR) remodelled this Enlightenment assertion for the modern age, to address the tensions between liberty and equality.

Influenced by the socialists and social democrats who largely drafted it, the Declaration attempted to develop a practical, as well as philosophical, answer to the age old question: when should individual freedoms be limited to a) protect the common good and b) enhance the equality of those who need the greatest protection?

One of the most irresponsible acts of the Labour government was to introduce the HRA — a direct descendent of the UDHR — without any serious attempt to explain or promote it in these terms, and then proceed to fight tooth and nail every case anyone ever took under it and introduce a raft of legislation which showed contempt for its values.

This not only egged on the tabloids but allowed some critics to claim the HRA was used as a smokescreen behind which the government introduced a whole host of illiberal measures. I’ve got a little list of them here and by my reckoning its 23 and counting.

Not all of these measures were entirely without any justification, of course. Many — like CCTV or the retention of DNA — open up complex and difficult dilemmas about freedom and security and reflect deep concerns about crime and anti-social behaviour which the poorest in society – who can’t hide in gated communities – look to the state to protect them from.

Evidence of a see no evil, hear no evil approach to the torture techniques used by some of our allies was shameful. But sometimes all it would have taken was greater regulation and a more stringent commitment to the presumption of innocence to avoid charges of authoritarianism.

Whilst the new Home Secretary, Theresa May, has repeated “the first duty of the state is security” mantra, at least she coupled this with “this is no excuse for an abuse of [counter terrorism] powers”.

Of course there has been a long and principled tradition of the left defending civil liberties — campaigning against successive Prevention of Terrorism Acts, miscarriages of justice and restrictions on protest — regardless of which party was in power.

But unlike right wing libertarians, the left’s critique of state power can sometimes sound selective and inconsistent, based on opposition to particular laws rather than a coherent analysis and set of principles about state power.

To conclude, a movement which stands for the many not the few, can — if it does not tread carefully — conflate populism with democracy. Sometimes it is the few who need protection from the many and it is ethical leadership from a movement driven by liberal egalitarian values which could provide this protection.

Whilst equality and liberty may not have as happy a marriage as Cameron and Clegg, as I’ve tried to suggest, they don’t need to fight each other to the death.

If New Labour saw its mission as reconciling social justice with economic prosperity, Renewed Labour needs to turn its attention to reconciling equality with liberty.

There’s a rich tradition to draw from.

It can be done!

This is an edited version of a speech given by Francesca Klug at the Index on Censorship Event “Why Has The Left Become So Illiberal! at the Compass conference 2010

Francesca Klug is Professorial Research Fellow at the London School of Economics

The post Why has the left become so illiberal? appeared first on Index on Censorship.

Britain — as we are told frequently — treats surveillance differently from other countries. From CCTV cameras on public streets to the gigantic fingerprint and DNA databases of the innocent, the UK has the dubious honour of being a world leader. In recent years, voices on the right and left have converged in protest. The Daily Telegraph’s Philip Johnston, and the Observer’s stalwart, Henry Porter, have often sounded remarkably similar. Nevertheless, society as a whole, including the courts, seemed willing to accept that modern policing and public safety require that we all needed to be watched, and logged and assessed.

Over the last 12 months, however, something changed. In December, the European Court of Human Rights disagreed with a House of Lords decision and declared that the British policy of retaining fingerprints and DNA of the innocent breached human rights. It was an important decision for two reasons. First, the Strasbourg court was forceful in its criticism of the House of Lords. It reminded Britain that it was seriously out of step with other European democracies. Second, the decision was a salutary reminder to libertarian conservatives that the Human Rights Act, and the Strasbourg jurisdiction, may not be so bad after all.

The trend has continued. In February the European Court confirmed that holding foreign nationals without trial was a breach of their rights; but it went further and suggested that basing their detention on “intelligence” information, heard in secret, may also breach the right to a fair trial.

Shortly afterwards, the House of Lords dealt a mortal blow to the use of secret intelligence evidence in control order cases, where “suspected terrorists” not convicted of any crime, are required to live under a range of oppressive conditions including close monitoring of their movements. Also this summer, the Court of Appeal overruled the High Court and found for the first time that retaining the pictures of a campaigner for “intelligence purposes” had been disproportionate and breached his right to privacy.

All of this has coincided with other developments that suggest growing disquiet about existing powers. The government has finally accepted the end of its surveillance society election albatross — identity cards. The Home Office has agreed to review and reduce its use of police terrorism powers, particularly section 44 of the Terrorism Act 2000, which allows arrest without reasonable grounds for suspicion. Even the appointment of Sir Hugh Orde as the new president of ACPO is significant. He has talked less of “intelligence-led policing” and far more about “policing based on human rights”.

If many of the wide powers claimed by the state are now both unpopular and unlawful, how did we arrive here in the first place? The received wisdom is that it is the fault of New Labour and the centre-right. They were carried away in an effort to ‘protect us’ from everything from terrorism and hoodies to credit card fraud and foot and mouth. Before we knew it, they were using the Regulation of Investigatory Powers Act to see if little Billy had been walking on the grass. The truth is more complicated.

Last month, in her radio series Jeopardising Justice, the leading human rights barrister Baroness Helena Kennedy QC provided an alternative thesis. She noted that one of the ways that that surveillance and suspicion has crept into our criminal justice system was, unwittingly, through the initiatives of progressive lawyers from the left. During the 1970s their antipathy to what they believed to be a reactionary legal system that failed to protect the vulnerable led them to devise creative solutions for battered women and others. They used civil injunctions and other means to provide a remedy, when the obstacles to proving criminal allegations had proved too difficult. Thirty years later, in an ironic tribute to those ideas from the left, the same principles are being used to expand the powers of the state. In doing so, the government has side-stepped ancient protections provided to suspects by the criminal law. Instead of evidence and proof being the key requirements for dealing with offenders, it is now surveillance, intelligence and suspicion. This approach has come to underpin everything from ASBOs and restraint orders, to witness anonymity provisions and counter-terrorism powers.

There is an important lesson here on how all of us tackle the balance between the power of the state and the freedom of the individual. While we may think we are “winning” by achieving a just result in an individual case, in time we may come to realise that the compromise was too high. Good intention, convenience, and the desire for the vulnerable to be safe, should not be allowed to override the principles which form our legal heritage and of which we should be so proud. Each time we permit surveillance to promote public safety, or curb freedom of expression in order to ensure that no-one is offended or disturbed, we begin to walk a dangerous path. The police must, of course, be entitled to gather the intelligence that they need to prevent unlawful behaviour and keep protest within lawful limits. But thankfully the public, the courts and even the government are increasingly recognising that there are important limits. We may want our safety protected, but we want our liberties protected too.

Matthew Ryder is a barrister specialising in criminal law and human rights

The post UK: Rebuilding freedoms appeared first on Index on Censorship.

The post Honduras civil liberties decree lifted appeared first on Index on Censorship.

This is what I call the pact. In each country it varies; citizens hand over different liberties in accordance with their own customs and priorities. In some it is press freedom; in some it is the right to vote out their government; in some it is an impartial judiciary; in others it is the ability to get on with their lives without being spied upon. The model for this new world order is Singapore, the state in which I was born, and which has long intrigued me. I am constantly struck by the number of well-educated people there who defend a system that requires an almost complete abrogation of freedom of expression in return for a good material life.

The pact belongs not just to states in transition such as Russia and China. It belongs also closer to home. Citizens in all systems have colluded, but in the West we colluded most. We had the choice to demand more of our governments, to rebalance the relationship between state and individual, but for as long as the consumerist going was good we chose not to exercise it. What mattered, particularly for the middle class, were “private freedoms” — the right to own property, to run businesses according to contract law, the right to travel unimpeded and the right to determine one’s own personal life.

The unspoken trade-off was this: the state would resist the urge to intervene in the private realm as long as the citizen did not “cause trouble” in the public realm. Public freedoms became disposable.

During the past two decades of globalised glut, the pre-eminent freedom was financial — the right to earn money and to consume it unimpeded. Political leaders such as Gordon Brown even extol shopping as a patriotic duty. This, combined with the Internet and other technological advances, created a cultural homogeneity not seen before. The super-rich, the quite rich and the aspiring rich, whether in Shanghai, São Paulo or South Kensington, inhabited a uniform world of the same designers, the same communications tools and the same holiday destinations. A cultural conformism was born, a herd mentality that provided an easy environment for those in power to operate in.

My travels took me to a beach party for the wealthy in Moscow (where they imported the sand from the Maldives), to a round-table discussion at a golf club in Shenzhen, to behemoths of excess in Dubai and Abu Dhabi, to maudlin conversations with sacked newspaper editors in Italy, which by any standards of political and constitutional theory is close to being a failed state. They took me to anti-corruption local politicians in Mumbai and to American liberals.

Nowhere, however, has left me as depressed as Britain. From ID cards and CCTV, to a national DNA database, to long periods of detention without charge, to restrictions on protest, to the most stifling libel laws of any equivalent nation, the UK government has rewritten the relationship between state and the individual. In doing so, it has met little popular resistance.

For a decade, Britons enjoyed increasing prosperity, indulging in their favourite hobby of borrowing and spending money. The people that really mattered, the top one per cent, were pampered as never before. Tony Blair and Gordon Brown resisted all attempts to tax or regulate them. When I once wrote about Singapore that the state was “providing a modicum of a good life, and a quiet life, the ultimate anaesthetic for the brain”, I could have easily been referring to my own country. The tragedy is that Britain had an extraordinary opportunity to combine an emphasis on social justice with civil liberties. By the end of the new Labour era, not only are these liberties in jeopardy, but representative democracy has rarely been weaker.

Yet much of the rage directed at politicians is synthetic. It is hard to make the case that the people were duped. Blair and Brown had been fairly frank about their priorities. The role of government was to create the environment for wealth creation, and to use all the forces at the disposal of the state to stop those who threatened that good.

What does all this say about us and about our choice of freedoms? In the end, how important is public freedom? In Britain pockets of civil society remain strong. But how much change has it really brought about? How many fall into the category of troublemakers? What percentage of the population consists of NGOs, defence lawyers, dissenters or investigative journalists? How many people take part in marches? Participatory democracy has all but disappeared. And even where it has occasionally broken through into the mass consciousness, such as the huge anti-war march in London in 2003 on the eve of the Iraq conflict, it made no difference.

Will a new generation of world leaders produce something different and more inspiring, a post-crash version of freedom that inspires and addresses the many iniquities around the world? I fear the answer is a resounding “no”, although I hope I am proven wrong. People’s priorities reflect the socio-economic conditions of their time. So although it may have been the bankers and hedge fund managers who caused the immediate mess, the bigger culprits were we, the people, particularly in the West, for allowing democracy to mutate into something it should never have become — a vehicle to deliver consumption.

In Britain, as elsewhere around the world, a critical mass of people vested in their leaders almost unlimited powers to determine questions of liberty. In return they were bought off by a temporary blanket of security and what turned out to be an illusory prosperity.

Freedom for Sale by John Kampfner is published today by Simon & Schuster

This article was originally published in The Times

The post Don’t risk real freedom for short-term material gain appeared first on Index on Censorship.

The post Sweden’s Pirate Party wins EU seat appeared first on Index on Censorship.