8 Jan 2021 | Opinion, Ruth's blog, United States
[vc_row][vc_column][vc_single_image image=”115976″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Happy New Year – or is it Groundhog Day?
In England, we’ve entered our third Covid-19 lockdown. This week dozens of people have been arrested in Hong Kong for contravening the National Security Law and the news has been dominated by American politics. It could still be 2020…
Given the misery of the ongoing pandemic and the horrendous accounts of arrests and imprisonments around the world by repressive regimes, I’d really like to be writing something positive. About the hope that the election of the Reverend Raphael Warnock has inspired – the first black Senator for Georgia in history to be elected: the son of a cotton picker, a pastor who preaches from the same pulpit as Martin Luther King Jr, the man who officiated at John Lewis’ funeral last year. About the bravery of individuals in Hong Kong as the police systematically seek to arrest people. About the strength of Loujain al-Hathloul’s family as they continue to speak out while she is sentenced.
But instead, the words and actions of one man and his followers have overshadowed that hope, strengthand bravery, even in the face of a global public health emergency which has now killed over 1.88 million people.
Since Joe Biden was declared the winner of last November’s US presidential election we’ve seen for the first time in living memory a losing politician in a western democracy fail to accept the result and undermine faith in the very institutions that they seek to govern.
As an observer, some of Trump’s protestations have been so ludicrous that we’ve been able to laugh. But while Trump and his allies have been a source of amusement, he clearly had a plan and his actions and those of his loyalists were designed to test the strength of the US constitution and the USA’s commitment to democratic values.
On Wednesday, we saw the impact of the rhetoric, of the lies, of the hate and fear. Not only did President Trump succeed in inciting violence in the US Capitol to try and intimidate legislators to unilaterally change the outcome of the election. His words led to bloodshed within a building that for many has been a global symbol of stable democracy. His speeches inspired extremists to lay siege to the ‘People’s House’. His tweets directed the mob to target his political opponents, leaving five dead and countless others hurt and traumatised by this experience. It is no wonder that many social media platforms felt the need to suspend his accounts.
I strongly believe in the First Amendment, but no one has the right to incite violence and no one has the right to undermine the core democratic values that we all want to live by. Not even the President of the United States of America.
Our right to free speech is incredibly important, but there is a difference between free speech and incitement. Between free expression and outright lies. And those lines, while usually blurred, on this occasion are stark and people died because the President crossed them.
We have seen extraordinary journalism in the US over the last few days – highlighting the true value of a free press. And now, in the last days of the Trump presidency, much is being written about the impact on US democracy and the future of the Republican Party after its leader tried to lead what can only be considered an insurrection against the legislature.
But the real damage done this week wasn’t solely in America. Everybody looks for leadership, for inspiration, for security. Since the end of World War 2 the United States has been more than a superpower, more than a nation state, it has embodied a set of ideals for people who live under totalitarian regimes. It has been seen, rightly or not, as the epicentre of the Free World, the defender of democratic values and most importantly a beacon of hope for those that have none.
This has been undermined by Donald Trump’s leadership nearly every day since he took office four years ago. And this week the world witnessed him incite violence against his own politicians. He attacked the free media. He lied about free and fair elections in the US. He inspired an extremist militia to storm Congress and the Senate. And five people died. While the world watched.
Repressive regimes around the world have already and will continue to use these events to undermine the concept of America and American values in their own countries. The impact of 6 January will be deep and far reaching and people will suffer because of it.
Joe Biden and Kamala Harris have a huge amount of work to do to rebuild faith in the American dream – and not only in the USA. The world is watching.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also want to read” category_id=”41669″][/vc_column][/vc_row]
7 Jan 2021 | China, Hong Kong, News and features
[vc_row][vc_column][vc_single_image image=”115971″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Two countries, one system.
That, effectively, is the policy in Hong Kong and China after more than 50 pro-democracy activists were arrested yesterday morning under the National Security Law for their part in the pro-democracy primaries last July.
The primaries were held to identify pro-democracy candidates for Hong Kong’s Legislative Council (LegCo) elections which were due in September 2020.
At the time, HKSAR chief executive Carrie Lam said, “If this so-called primary election’s purpose is to achieve the ultimate goal of delivering what they called ’35+’ [lawmakers], with the objective of objecting or resisting every policy initiative of the HKSAR government, it may fall into the category of subverting the state power – one of the four types of offences under the national security law (NSL).”
Lam subsequently postponed the 2020 LegCo elections, citing a resurgence in Covid-19 and claiming support for the move from Beijing.
Lam’s threat has now materialised, with many of the candidates and organisers of the primaries now arrested for breaking the NSL.
Several of the candidates for the primaries had already fled to exile, including Nathan Law, Ted Hui and Sunny Cheung.
The three issued a joint statement saying, “This has yet again proven how the National Security Legislation tramples upon One Country, Two Systems. The indiscriminate arrest concerns political figures from all sides of the spectrum. The unprecedented scale indicates how the Communist government had decided to purge the democratic camp, silencing all dissent.”
The three said that the ambiguity of the law now threatens all 600,000 Hongkongers who cast their votes in the primaries.
Benedict Rogers, CEO of Hong Kong Watch believes the arrests mean no one in Hong Kong is safe anymore.
“The simple act of organising a primary election for the purposes of selecting candidates for the pro-democracy camp ahead of Hong Kong’s planned Legislative Council elections is now deemed an act of subversion under the draconian national security law, carrying with it the potential for years in prison,” he told Index.
“Potentially any expression of desire for democracy or dissent from the Chinese or Hong Kong governments could be a criminal act. The national security law and its vaguely defined crimes of subversion and collusion with foreign political forces, imposed on Hong Kong last July, already threatened freedom of expression in Hong Kong, and now the arrests we have seen in recent months and especially these mass arrests prove that this draconian law has destroyed freedom of expression in Hong Kong.”
The UN clearly agrees with this view that everyone now needs to be waiting for the knock at the door.
A spokesperson for the UN Human Rights Office said, “These latest arrests indicate that – as had been feared – the offence of subversion under the National Security Law is indeed being used to detain individuals for exercising legitimate rights to participate in political and public life.”
The situation all seems a very long way from what is laid out in the Sino-British Joint Declaration which promised to maintain the status quo until 2047.
Lord Patten, who was governor of Hong Kong at the time of the handover, told Sky News that the arrest of pro-democracy activists was a “further turning of the screw”.
He said, “This is a further attempt to destroy the freedoms of a city that has thrived under the rule of law. The people who have been arrested are not radicals, they have not been guilt of violence, they are lawyers, academics, social workers. [These are the] people who organised a vote to choose the best candidates for the elections which were then postponed, arguably because of Covid.”
UK foreign secretary Dominic Raab said that the mass arrest was “a grievous attack on Hong Kong’s rights and freedoms as protected under the Joint Declaration” and that “the Hong Kong and Chinese authorities deliberately misled the world about the true purpose of the National Security Law”.
Tom Tugendhat MP , chairman of the Foreign Affairs Committee, called it a “tragedy”, saying, “Eroding free speech and detaining democrats is an act of violence against the people of Hong Kong and the economy they have built.”
Chinese exiled cartoonist Badiucao expressed his sentiments over the arrests with his latest work.
The UN has also urged the authorities to guarantee the right to freedom of expression in the context of ongoing investigations, including by allowing journalists and news organisations to fully and freely exercise their legitimate functions.
The authorities seem unlikely to comply. Various Hong Kong publications were served with a search warrant asking for the contact information of primary election candidates. This led Tom Grundy, co-founder of Hong Kong Free Press who spoke on our podcast just before Christmas, to say, “Hong Kong newsrooms are not phonebooks for the police to call upon as they wish.”
Whether it was coincidence that the arrests took place on a day when the world’s attention was distracted towards the USA or not – which is not beyond the Chinese Communist Party – many have highlighted the irony.
Journalist Tony Lin spoke for many when he tweeted, “So many nuances need to be addressed, but at core what many ppl fought for in Hong Kong was EXACTLY what DC extremists trying to dismantle in the US: the right to vote.”
In their statement, Nathan Law, Ted Hui and Sunny Cheung express what many are now feeling.
“Foreign governments must reconsider whether Hong Kong should be treated differently from China,” they added. “Leaders of the free world must recognise the ambition and the despotic nature of the Chinese Communist Party.”
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6 Jan 2021 | News and features, Politics and Society, United Kingdom, United States
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Julian Assange/Cancillería del Ecuador/WikiCommons
This week’s decision not to extradite WikiLeaks founder, Julian Assange, to the USA to stand trial for charges of espionage came as welcome relief to Assange’s family and supporters. However, he remains detained at London’s high-security Belmarsh prison after the judge refused bail citing concerns he would abscond.
Before we consider the ruling against extradition as a victory for free speech it’s worth exploring the details of District Judge Vanessa Baraitser’s ruling which risk creating a chilling effect on public interest journalism.
Judge Baraitser’s ruling at no stage allowed for the protections governed by Article 10 of the UK Human Rights Act to halt the extradition. Instead, in denying the US Government’s request to extradite Assange, Baraitser concluded that “the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America”.
In doing so, the judge accepted the testimony of medical experts who said that Assange represented a potential suicide risk if he were to be incarcerated in the USA; Jeffrey Epstein’s suicide and Chelsea Manning’s attempted suicide are both mentioned in the ruling.
The risk was exacerbated because Assange would likely face so-called special administrative measures which would limit his communication with the outside world and visiting rights.
Baraitser’s decisions regarding the key legal arguments of Assange’s defence are cause for concern and risk creating a precedent which would prevent journalists from publishing sensitive information in the public interest and the ruling appears to have extended the scope of Britain’s Official Secrets Act.
As part of the extradition request, the court had to be satisfied, to the criminal standard, that Assange’s conduct would constitute an offence under the law of England and Wales.
Baraitser said in the judgment: “I have found that Mr. Assange’s conduct is capable of amounting to an offence in England and Wales. It follows that I do not accept that the mere fact charges are brought in the US demonstrates that they are brought in bad faith.”
This argument appears to be based on the premise that Assange’s actions would have fallen foul of section 5 of the UK’s Official Secrets Act (OSA) 1989 which applies to individuals, including publishers, who are not the original leaker of the information. This criminalises “those who disclose protected materials which are damaging and which they have disclosed knowing, or having reasonable cause to believe, would be damaging”.
The US government’s argument is similar and maintains that under US law a free speech defence does not necessarily cover classified information even if it is in the public interest and they said Assange had disclosed materials “that no responsible journalist or publisher would have disclosed” when WikiLeaks published its full archive of 251,000 secret US diplomatic cables without redacting the names of sources.
It is this assertion that has led the US government to charge Assange under the 1917 Espionage Act, which is primarily designed for spies, rather than journalists or publishers.
Before the verdict, Assange’s partner Stella Moris told Index: “They say Julian published information that was secret and therefore he can be prosecuted over it. They never used [this act] to prosecute someone publishing information for the public.”
The defence argued that Assange was “doing no more than engaging in the ordinary and lawful conduct of the investigative journalist”, which is protected by Article 10.
However, Baraitser stated that the Article 10 right to freedom of expression “is not absolute”.
She added: “In my judgment, notwithstanding the vital importance in guaranteeing freedom of the press, the provisions of the OSA 1989, where they are used to prosecute the disclosure of the names of informants, are necessary in a democratic society in the interests of national security.”
She also contested Assange’s assertion that he was acting as a responsible journalist.
“The difficulty with this argument is that it vests in Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection.
“Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where ‘dumps’ of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of ‘responsible journalism’ can sensibly be applied.”
If the judge does allow the US appeal in the next two weeks and Assange is extradited, he will not have recourse to protection under the First Amendment laws which protect freedom of speech. Incumbent Secretary of State Mike Pompeo has previously argued that First Amendment privileges should not be afforded to Assange and WikiLeaks.
Pompeo’s comments were deemed by many to be politically motivated in order to deter the likes of the WikiLeaks founder from repeating similar actions. Being the first administration to use the Espionage Act in such a way seemed to support this.
But Baraitser once again rejected the defence’s argument, deciding that: “The defence points to comments made by Attorney General Sessions a week after Mr. Pompeo’s speech in April 2017 that “[journalists] cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if ‘a case can be made, we will seek to put some people in jail’. However, as the US points out, these comments appear to be no more than statements of what is perhaps obvious, and conditional on whether criminal liability can be established. There is nothing sinister in bringing a prosecution ‘if a case can be made’.”
Again, the Espionage Act is a factor here as it does not contain a public interest defence. Therefore, charging journalists under this Act is considered by many as one-sided and unfair as it removes the protections free speech laws afford.
Index’s position is clear. Governments, authoritarian or not, in order to protect our collective human rights and to enable power to be held accountable, must be open to scrutiny and are a fair target for investigative journalists, even if the definition of what constitutes an investigative journalist is no longer as clear as it once was.
The issue at hand is not about Assange the person, but rather the very principle of a free and fair press which operates in the public interest. That is the principle at stake in this judgment.
Other press freedom organisations, such as the International Federation of Journalists, Reporters Without Borders and the Centre for Investigative Journalism, have also expressed their disquiet with the ruling.
We recognise that there are certainly questions about the manner in which Assange published the information without redacting the names of journalists and activists, a move which was condemned by a number of newspapers which worked with WikiLeaks to reveal the contents of the diplomatic cables.
However, the fact remains that much of the information published about the actions of certain governments was clearly in the public interest.
If the US government can decide on a case-by-case basis who is a spy and who is a journalist then this makes the job of the latter that much more challenging. The fear that investigative journalists may be extradited will mean stories that need to be brought to light will remain in the darkest of shadows.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also like to read” category_id=”5641″][/vc_column][/vc_row]
