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Richard Falk: Escaping the Abusive State After Snowden

December 6, 2013

The modern liberal state needs to find a decent balance between freedom and security.

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Image from Flickr via svennevenn

By Richard Falk
By arrangement with Richard Falk

The more contact one has with the modern state, even in those societies that have long constitutional traditions entrenching civil liberties, the more grounds there are for deep and growing concern. I suppose that the most dramatic exhibition of the dangers being posed as 2014 approaches, and we are reminded that this will be 30 years after 1984, are associated with Edward Snowden’s extraordinary disclosures of the global network of surveillance being operated by the National Security Agency in the United States. Such a network presupposes that we are all, that is, every inhabitant on the planet to be regarded as worth investigating as potential terrorist threats, and along the way establishing a huge data bank of information that can be used for nefarious purposes at any point to disempower and subvert protest movements or even blackmail anyone seen to be obstructing projects dear to the government or any special interest group that has the government’s ear on matters it cares about.

In important respects more disturbing than the Snowden revelations was the rabid response of the supposedly liberal government presided over by Barack Obama. No stone was left unturned, other than assassination or kidnapping, in the effort to gain physical custody over Snowden evidently with the intention of prosecuting him to the full extent of the law as an odious criminal offender. Foreign governments were badgered to cooperate in the pursuit, a plane carrying the Bolivian president was improperly denied access to the airspace of several European countries and forced to land in Vienna, because it was suspected of carrying Snowden. Such an enforcement dynamic completely overlooked the political nature of Snowden’s crimes, which have been uniformly regarded as placing an accused individual beyond the reach of extradition if outside of sovereign territory, which was definitely the case here, making Snowden legally unreachable even in the event that countries involved had extradition treaty arrangements for cooperative criminal law enforcement. Such treaties did not exist in relation to China and Russia, the countries where Snowden was physically present, and yet the United States persisted in its demands, and treated the Chinese and Russian governments as behaving in a hostile fashion of diplomatic relevance when they rejected the demands of the U.S. State Department to treat Snowden as a routine fugitive from criminal justice. Not so incidentally, the United States government has long shielded those accused of even violent crimes by foreign governments through reliance on this exception to extradition based on the political nature of the crime.

Perhaps, the most troubling aspect of this still festering situation is the energy devoted to Snowden as the whistleblower, more derisively referred to as “a leaker,” while ignoring implications for a humane and democratic future by treating everyone, everywhere as a potential enemy who would be spied upon to the extent technology allowed. There was some mild pushback by Congress, seeking clearer guidelines on the mandate of the NSA, and searching for the outer limits of the permissible encroachment on the privacy of individuals, governments, and economic entities. In the background is a well-grounded suspicion that part of the motivation for global surveillance is to assure a competitive edge for American property, trade, and investment interests, and to gain dirt on foreign diplomats and political leaders.

Overlapping with the official fury directed at Snowden was the broader anger directed at whistleblowers whose disclosures sought to set off alarm bell. Those who had the temerity to disclose governmental criminal wrongdoing were themselves criminalized by a focus on their breach of excessive classification restrictions. It should be clear, as highlighted by Daniel Ellsberg’s notable reflections on the release of the Pentagon Papers gathered in his book appropriately titled Secrets, that the excesses of governmental secrecy are joined at the hip to extravagant surveillance in what amounts to a perverse twinning relationship. The very government that refuses to accept restrictions on its invasions of the privacy of its citizens and people around the world, mounts unprecedented and simultaneous claims that it needs to operate without any accountability behind several high walls of secrecy.

The experiences of Julian Assange and Chelsea Manning are of a piece with that of Edward Snowden: vindictive backlash, exaggerated security claims, and an arrogant refusal to gaze in the mirror.

The experiences of Julian Assange and Chelsea Manning are of a piece with that of Edward Snowden: vindictive backlash, exaggerated security claims, and an arrogant refusal to gaze in the mirror. The Wikileaks/Manning disclosures revealed serious war crimes and governmental cover ups, the existence of which make a strong case for violating pledges of secrecy that are relied upon to hide the ugly dimensions of what is involved in foreign policy, especially in relation military interventions carried out in such distant countries as Afghanistan and Iraq. Should not the American people have a write to know about state crimes committed in their name? Should not the peoples living in foreign countries have the right to know about such crimes that produce suffering and victimization in their supposedly sovereign countries? And when such disclosures do occur, should not the government have the decency to acknowledge its own wrongdoing, and thank the whistleblower and apologize to those who were victimized?

My motivation in writing this piece was prompted by seemingly different more personal outrages associated with the behavior of the liberal state. In the first instance, I have been deeply moved by the continuing tragic saga of Lynne Stewart, a courageous American lawyer who has a long record of defending unpopular political and indigent clients, who has been allowed to languish for months in a Texas jail despite suffering from an acute form of terminal cancer. Her apparent crime that landed her in prison was to pass on information and private messages to the family of “the blind Sheik” (Omar Abdel-Rahman) whom she was representing (alongside Ramsey Clark, the former U.S. Attorney General) in the terrorist conspiracy trial arising out of the earlier 1993 attack on the World Trade Center. What has been most shocking is that despite numerous recommendations from medical and prison officials to the effect that Stewart easily qualifies for “compassionate release” from prison, a position even endorsed by judicial officials, she remains to this day cruelly confined because Charles Samuels, Director of the Federal Bureau of Prisons, has refused to sign off on her plea. This incarceration of Lynne Stewart is such an extreme instance of vicious and sadistic state behavior toward an honorable citizen that its full horror cannot be fully comprehended by a mere description of her experience. For Lynne Stewart’s story to be credibly portrayed will likely depend on some future artistic enactment as by film or fiction. As so often is true, such a descent into the domain of unspeakable evil can only be grasped if expressed through film or fiction.

My immediate reason for writing in this manner has been an unfolding tale of apparently well-intentioned cruelty by the state that occurred recently in Great Britain. A 35 year old pregnant Italian woman, whose name cannot be disclosed under British criminal law, was visiting the UK a few months ago for the sake of job training course at Stansted Airport in Essex, not far from London. While there she apparently stopped taking medication for a preexisting bipolar condition, resulting in what has been described in the media as “a panic attack.”

I doubt that even the most absolutist monarchy would be as contemptuous of humane treatment as has been the behavior of this British welfare/judicial bureaucratic nightmare, an unfolding post-Kafka horror story.

Only then did a perfect storm engulf her life. Her disturbed condition was reported to British authorities under the Mental Health Act whose personnel stepped in and took over the case. In disputed testimony the woman was alleged to need to be constrained. Accordingly, she was transferred to a mental hospital where she was heavily sedated, during which time her baby was delivered by C-Section surgery without her consent, and even her knowledge as she was unconscious. Her lawyer contends that she at all times, including when suffering from mental distress, retained the capacity to give or withhold her consent from the procedure undertaken. If correct, a state-ordered invasive approach to her pregnancy was certainly improper, a violation of the most basic of reproductive rights. Even if she was not sufficiently stable to make an informed decision, it seemed at least necessary to refer such a question to a responsible process of assessment, which was not done as far as is known, or consult with a family member.

But the abusive behavior did not stop after the child was born. Quite incredibly, some reports contend that she was not even allowed to see her own baby, while others say she was allowed for two days to have her baby in the hospital room, but it was then summarily removed with the intent to sever her connection permanently. She returned to Italy where her health and mental stability were fully restored by resuming medication at which point she appealed to British courts to acquire custody of the child who had by this time been turned over to foster care. Her appeal was denied despite her Italian nationality, place of residence, and the evidence that she was a competent mother to children growing up under her parental supervision. She didn’t owe the slightest allegiance to Britain and yet her desire and capacity to handle the upbringing of her biological child was rejected by judicial fiat. In a secondary development, her former husband, the father of the child, who was living in America appealed to a British court to have the child brought up by his sister, the aunt of the child, who was certified to be a highly responsible person with excellent parental qualifications and a readiness to undertake the task. The request was denied by the British judge on the ground that there was no ‘blood’ link with the American relative, and that kinship was not sufficient. The result, to date, is the assignment of the baby to a foster home that has no familial connection whatsoever, denying the mother even visitation rights. I doubt that even the most absolutist monarchy would be as contemptuous of humane treatment as has been the behavior of this British welfare/judicial bureaucratic nightmare, an unfolding post-Kafka horror story.

Even granting the well-intentioned innocence of government in relation to these problematic undertakings affecting this mother and child, it is one more distressing example of what happens to people when the government insists that it knows best what to do in situations of admitted social and ethical complexity. In this instance, it is not acting beyond the law or above the law, but within the law. What took the place was decreed from start to finish by official institutions and administered by bureaucrats probably thinking that they were doing their job in a responsible fashion. As has been observed in some critical writing in the British print media, this story has come to light in part because the victim mother had the resources and composure to seek help from lawyers and friends, as well as the Italian government, and was perceived as a “European.” If instead she was an unlawful immigrant or, worse, a Roma, it is likely that the public would never even have heard of these events, and the whole episode would have been kept within the black box of standard operating procedures when it came to handling the grievances of those among us who are unwanted and marginalized.

Without civic activism of a militant character we can wave goodbye to the promise of genuine democracy.

In my view, these seemingly disparate occurrences are all expressions of the moral arrogance of the modern liberal state, and its failure to strike a decent balance between freedom and security. There is no doubt that the recent challenges posed by extremist non-state actors do require adjustments in how government protects those resident within its borders, but the tendency to exaggerate the threat so as to instill sufficient fear in the population to justify the wide spectrum of responses that feature high defense spending, Guantanamo and Abu Ghraib at one end and Snowden and Manning at the other end is what should be an occasion for an entirely rational collective panic attack in democratic societies, showing healthy signs of deep attachment to the values and practices of freedom, and when there is instead relative quiet, it adds to concerns about a general mood of passivity, resignation, and even acquiescence in “the new authoritarianism,” encouraging more of the same. Such patterns in the domain of national security are reinforced by such gratuitous abuses as when harmless prisoners are deprived of contact with their loved ones when at death’s doorstep and a newborn child is removed forever from the love and care of a desiring mother for the sake of some misguided ideas of petty bureaucrats engaged in “social services” and “welfare.”

We can and must do better, above all as citizens engaged in the protection of the sort of society we wish to live in; without civic activism of a militant character we can wave goodbye to the promise of genuine democracy.

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation.

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