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The expanding European security state

Just days after stepping into the White House, President Donald Trump enacted tight restrictions on refugees and immigrants entering the United States, stranding thousands of travelers around the world. The reason for closing the nation to certain Muslim countries is not due to religion, according to the President, but about terrorism, part of his “making America safe again” campaign promise.

The move sparked protests around the world and prompted a number of world leaders to speak out against the new President, including officials in the European Union. Federica Mogherini, an EU official of foreign affairs, called Trump’s policy “unconstitutional” and added: “In Europe we have a history that has told that every time one invests in divisions and walls you might end up being in a prison if you build all walls around you.”

But as the EU has voiced their disapproval for Trump, European leaders are passing similar, albeit less public, policies that infringe on basic human rights and freedoms for greater “security”. These new laws have sparked a trend that Amnesty International dubbed “Orwellian” in a new report titled Dangerously Disproportionate.

Through two years of research, the human rights group found that the nature of the laws passed in Europe under the pretext of fighting terrorism are so severe that the world is witnessing a redrawing of the boundaries between the power of the state and the rights of individuals. It warns that unchecked power is dismantling Europe’s human rights framework “brick by brick”.

Much of the restrictive legislation stems from governments that take normally exceptional emergency measures, such as extended states of emergency, and embed them into ordinary criminal law. This is then justified to the public as combatting terrorism, a notion that many European citizens are keen to support as they are still reeling from deadly attacks in France, Belgium and Germany.

But there is no universal definition of the word “terrorism,” and so when governments say they are protecting the state from acts of terrorism, they are often creating their own broad definitions tailored to fit the laws they wish to pass. There is evidence that some have even used such measures to monitor activists, journalists, NGOs, and opposing members of government.

Even Amnesty International itself found itself a target of British surveillance, when it was revealed as part of a legal challenge in 2015 that UK government agencies had unlawfully spied on the organisation’s communications.

Furthermore, in some instances these “counter-terrorism” policies have created what Amnesty describes as “a modern twist on the Orwellian ‘thought crime’”, whereby some countries will criminalise ‘preparatory acts’. This assumes guilt and undermines one of the core principles of law; innocent until proven guilty. People traveling to certain places or even just preparing to travel may find themselves charged with crimes because the authorities believe they may take part in criminal activity in the future.

States of Emergency

In December 2016, France — whose President recently called on European leaders to give a “firm” response to Trump’s policies — extended its declared state of emergency for an additional seven months, marking the fifth extension since a series of terrorist attacks in Paris in 2015. Interior Minister Bruno Le Roux called the threat of a terror attack “extremely high” and said there is risk of an attack during the upcoming electoral period.

These continual extensions are normalising enhanced powers that give the police and other authorities the ability to use a range of intrusive measures against French citizens without any basis for believing they are implicated in unlawful activity. According to the Parliamentary Commission overseeing the state of emergency, there have been just 61 terrorism-related criminal investigations since it was declared; 20 were listed under the broadly defined offence of “criminal association” to a terrorist and 41 under glorifying terrorism. This is despite law enforcement conducting 4,292 warrantless raids, 612 house arrests — including the 95 who remain under house arrest — and 1,657 identity and vehicle control stops.

Just as President Trump’s immigration ban is being accused of primarily targeting Muslims, the French authorities also appear to be focussing overwhelmingly on the Muslim population. In a previous investigation into the effect of the state of emergency, Amnesty spoke to the owner of a news website whose property was searched. “The emergency measures follow a blindfolded strategy,” he said. “They primarily target Muslims, often without any foundation. In fact, most of the cases do not result in any investigation. Were that the case, if emergency measures were effective in fighting terrorism, Muslims would support them. But they are ineffective, they antagonise Muslims instead”.

In Poland, authorities have thrust state of emergency powers into permanent law through the controversial Counter-Terrorism law, despite having not had a domestic terrorist attack in recent years. This legislation contains a number of measures that violate the Polish Constitution and the European Convention on Human Rights, including warrantless wire-tapping of foreigners’ phone calls, limited freedom of assembly, blocking online content, and complete access to public databases given to secret services.

Amnesty quotes a member of the Polish judiciary as saying: “Undoubtedly, the Counter-terrorism Law… is more than just taking a sledgehammer to crack a nut. It appears to be an intentional, deliberate act, arming the executive with powerful tools to fight, for instance, those who hold differing views.”

In Hungary, the country’s right wing government, which is strongly against immigration and led by Prime Minister Viktor Orbán, who claims “all the terrorists are basically migrants,” has praised Trump’s hard-line policies and passed state of emergency-type measures similar to Poland’s. This included amending the country’s constitution to give the government the power to use the army in the country for anti-terrorist operations, introduce curfews, restrict the movement of vehicles, ban mass events and reinforce border protection.

Privacy versus Security

Perhaps the most common trend in “counter-terror” legislation is the expansion of surveillance laws, an issue that first came to the attention of the public when NSA whistle-blower Edward Snowden revealed the extent of illegal spying being conducted by the US and UK governments.

While Snowden’s revelations were shocking, few people have shown interest in the privacy versus security debate. Instead they almost overwhelmingly side with security because they are told by their government that greater surveillance will prevent a terror attack, and because many argue “I’ve got nothing to hide”.

Snowden counters this argument, saying that people should not need to justify why they need a human right because the burden of justification should fall on the one seeking to infringe it. He believes that to say you don’t care about privacy is “no different than saying you don’t care about free speech because you have nothing to say.”

Unsurprisingly, given Snowden’s revelations, it is the UK that is responsible for passing one of the most extreme and intrusive surveillance laws ever introduced in the west. The Investigatory Powers Bills, commonly known as the Snooper’s Charter, was championed by Prime Minister Theresa May when she was Home Secretary and officially passed in law in November 2016.

The Act legitimises mass surveillance and gives authorities the power to collect bulk communications data and to hack and manipulate private computers and phones. Internet and phone companies are also required to store the web browsing history of every UK citizen for 12 months, and unprecedented access to that data will be made available to government agencies, in some cases without a warrant.

The government argues that the law is needed to counter “security threats,” but the services responsible for fighting such threats, like the police and security services, are not the only agencies with access to the stored data. It is also being made available to government departments not involved in state security, such as the Department for Transport, the Food Standards Agency, and the Department of Work and Pensions.

“Our online searches can reveal more about us than we realise. They can reveal our health and finances, our sexuality, race, religion, age, location, family, friends and work connections,” civil rights group Big Brother Watch said in a statement. “They can also reveal our internal thoughts, anxieties and desires, information we won’t even share with the people we trust the most.”

Despite the severe implications of the Snooper’s Charter and experts comparing it to the type of legislation expected only in a dictatorship, it was met with little resistance. Yet over 10,000 people took to Downing Street in London to protest Trump’s travel ban with further protests taking place in cities like Edinburgh, Cardiff and Manchester. It is likely that few who took to the streets are aware that by ignoring the Snooper’s Charter their personal data is not only available to their own government but also to the UK’s closest ally and Trump himself, through intelligence sharing.

The law even allows the police to access the records of journalists if a judge signs off a request, potentially creating “a death sentence for investigative journalism” in the UK as noted by Reporters Without Borders’ UK bureau director, Rebecca Vincent.

It lacks sufficient mechanisms to protect whistle-blowers, journalists, and their sources. It also fails to require authorities to give advanced notice to journalists before hacking their devices.

As the Don’t Spy on Us Coalition has said, this is the most extreme surveillance law in UK history. It’s also part of a global trend of erosion of press freedom and other civil liberties in the name of security.

A similar law has recently been adopted in Germany. We are troubled by the possible knock-on impact these bills could have, as they could be used by repressive regimes as cover to pass similar legislation, but without the democratic checks and balances we have.

The German law cited by Vincent is a new surveillance law adopted in October 2016 which a member of the United Nations called “unnecessary and disproportionate” because it appears to discriminate against foreigners. However, German Chancellor Angela Merkel recently slammed President Trump for his immigration policy, saying: “I have made it clear once again that the fight against terrorism does not justify a general advance against certain countries and people with a certain belief.”

The law gives the intelligence services the ability to monitor all network data of German telecommunication companies in the country, and the data, which can be shared with foreign intelligence services, is stored for up to six months. It also allows authorities to collect communication data of non-EU citizens outside Germany when the interception point is in Germany and when necessary to “identify and prevent threats against internal or external security” and “gain other insights of importance with regard to foreign affairs and security politics”.

As in the case of the UK’s Snooper’s Charter, many Germans took to the streets in protest of Trump and his policies, with demonstrators in Berlin calling for tolerance and warning of fear mongering and racism.

Other surveillance laws have been implemented in Austria, Belgium, France and Hungary, each with the stated goal of combatting terrorism, and each bringing with them a number of implications on the future of citizens’ rights to privacy and free speech. Some of the worst of these come through mass surveillance which the UN privacy chief called worse than anything in the classic George Orwell novel 1984.

Beyond eroding personal privacy, these measures also send a message to authoritarian regimes that it is acceptable to suppress information, restrict freedoms of speech and expression, and monitor people who act counter to the state’s wishes. At the end of 2015, when western governments attempted to criticise China for new spying laws that pose a serious threat to dissidents and activists, Beijing ignored the criticism. Instead, they accused the west of hypocrisy, pointing out that they had implemented similar counter-terrorism surveillance in their own countries and that the UK’s recent surveillance legislation had acted as a model for their new laws.

Internet security is also at risk as mass surveillance relies on there being vulnerabilities in networks and requires technology companies to ensure there are ‘back doors’ to access data. These back doors can just as easily be exploited by criminal hackers as government agencies. 

The domino effect

These are just a small number of examples where unchecked power in Europe is creating the conditions for possible oppression. Donald Trump’s election has ushered in an unpredictable future for both the United States and for the world and this is particularly true for minority communities and refugees desperately fleeing war and persecution.

But as many fear the possible ways in which the President can use executive powers it is important to note that he has these powers because they were inherited from his predecessor. President Obama failed to limit executive powers, like he once promised, and instead extended them in the name of fighting terrorism and national security. Under his administration, terrorism suspects were detained without trial, thousands were executed under the drone assassination programme, the nation’s mass surveillance programs were covertly expanded, and he conducted an unprecedented crackdown on whistle-blowers.

Under the belief that Obama was a trustworthy and ‘good’ President, he was rarely called out for his aggressive use of executive authority and was at times even praised for it. But now that President Trump has been elected the same people who turned a blind eye to Obama’s extreme policies fear how Trump may wield them.

Edward Snowden warned of this very danger after leaking details of the US government’s surveillance programs under Obama: “A new leader will be elected, they’ll flip the switch, say that because of the crisis, because of the dangers that we face in the world — some new and unpredicted threat — we need more authority, we need more power. And there will be nothing the people can do at that point to oppose it. It will be turnkey tyranny.”

This domino effect is the same danger that many states across Europe may have to face should they elect a leader willing to use “counter-terror” laws in any way he or she likes. This is clear when looking at just a small number of the many emerging right-wing parties across the continent. In Austria, the Freedom Party has recommended the public arm themselves in response to the refugee crisis; in the Netherlands the leader of Party for Freedom called for a ban of the Koran, comparing it to Mein Kampf; and in Germany the leader of Alternative for Germany said police should “use firearms if necessary” against refugees. The risk to British citizens’ rights is also increasing as the current government is looking at removing the Human Rights Act from British law and, after leaving the EU, possibly pulling out from the European Convention on Human Rights completely.

As George Orwell, author of 1984, once wrote: “Threats to freedom of speech, writing and action, though often trivial in isolation, are cumulative in their effect and, unless checked, lead to a general disrespect for the rights of the citizen.”

Photo: J. D. Mack/Creative Commons