Will Edward Snowden be given a fair hearing?

Far from committing an act of treason, as several top US lawmakers have suggested, by all appearances the NSA whistleblower has done a public service.

We owe a lot to Edward Snowden, the former Central Intelligence Agency computer technician who exposed large-scale surveillance efforts within the United States and worldwide. 



He’s accomplished what the US Congress could not do and the federal courts have so far refused to do. Far from committing an act of treason, as several top US lawmakers have suggested, by all appearances he’s done a public service.



Thanks to him, we now know about the secret court order compelling the telecommunications company Verizon to disclose to the National Security Agency (NSA), on an “ongoing daily basis”, information on all telephone calls it handles.  We also now know about the secret NSA programme Prism, which allows direct access to information in the servers of Microsoft, Yahoo, Google, Facebook, YouTube, Skype and Apple, among other companies. And we know more about the ways the NSA is able, through its “Boundless Informant” initiative, to collate the information it mines from these efforts. 



These disclosures reveal two trends in the United States’ approach to intelligence - starting with the Bush Administration and, we now know, continued and augmented on President Obama’s watch. 



First, when given the option of broad surveillance powers at home and abroad, US intelligence agencies have taken that option and pushed it as far as possible.  

Why be constrained by the quaint concepts of following individual leads and demonstrating probable cause when they can instead sift through millions of telephone logs and plug directly into the servers of the email and social networking platforms that almost everybody uses? 



This approach is hardly surprising, for any number of reasons. Surely one significant incentive to adopt it is that the courts have held that disclosure of call logs, even in their entirety, need not meet the usual requirements for a warrant.



It is true that obtaining “telephony metadata” - records of calls placed from one phone to another, when and for how long, and, in the case of mobile telephones, through which cell towers - isn’t quite the same as eavesdropping on individual communications. But the courts appear not to appreciate just how much can be gleaned from such data. Especially if cross-referenced with other sources of data, an analysis of call logs can produce a scarily accurate picture of who associates with whom (and at what level of intimacy), how they spend their free time, what health conditions they may have, what their political views are likely to be, and other details of their private lives.



Second, obvious for some time, is the trend of state secrecy gone mad.



The sweeping collection of phone “metadata” was made possible by amendments in 2008 to the Foreign Intelligence Surveillance Act (FISA) which exempt such surveillance from any meaningful oversight. Under the amendments, the government has no obligation to reveal whose communications it intends to monitor, and the FISA court has no role in reviewing how the government is actually using the information it gathers.  Most remarkably, even if the court finds the government’s procedures deficient, the government can disregard those findings and continue surveillance while it appeals the court’s decision.



The American Civil Liberties Union challenged the law’s constitutionality on behalf of Amnesty International, human rights lawyers, and other organizations. Dismissing the case last year, the US Supreme Court said that Amnesty International and the other groups couldn’t show that we were likely to be subject to surveillance. And how could we? Surveillance and the court orders that authorise it are secret.



President Obama said last week that Congressional oversight is the best guarantee that Americans aren’t being spied on. As for the rest of the world, well, we’ve been on notice for some time that we’re fair game
.

And even with the best will in the world, Congress can’t oversee what it isn’t told about. As two US senators observed in a letter last October, “the intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the FISA Amendments Act, and has even declined to estimate the scale of this collection”.



In fact, in March, one month before the Verizon disclosure order took effect, James Clapper, the director of national intelligence, denied collecting “any type of data” on large numbers of US citizens. He’s since characterised his answer as “the most truthful, or least untruthful,” response. 



Even before the US justice department filed criminal charges against Snowden, the United Kingdom had told airlines to deny him boarding on any flight to any country, lest he seek to travel to or through London in an effort to seek asylum outside Hong Kong.



The charges filed again Snowden include theft of government property and espionage. It has also been reported that US authorities have asked Hong Kong to detain him on a provisional arrest warrant. It is also said that an attempt to seek his extradition to the US is being prepared. 



It would be a miscarriage of justice if Snowden isn’t allowed to put forward a public interest defence to the charges. His stated motive was to inform the public of what the US is doing in their name. He’s said that he reviewed the documents prior to disclosure in order to ensure that he didn’t put anybody at risk. And there’s no question that the programmes he exposed are actually matters of public interest. 


If Hong Kong receives a request for Snowden’s extradition, it should insist not only that the charges presented have equivalents in domestic law but also that the public interest defence be available upon extradition. If it’s not, the extradition request should be refused. And if Snowden does seek asylum, whether in Hong Kong or anywhere else, he should be given a fair hearing. 


Michael Bochenek is Amnesty International's Director of Law and Policy

A poster showing Edward Snowden. Photograph: Getty Images
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The English left must fall out of love with the SNP

There is a distinction between genuine leftism and empty anti-establishmentarianism.

After a kerfuffle on Twitter the other night, I am all too aware that writing something even mildly questioning of the SNP government is the British equivalent of approaching a lion pride on a kill. Nevertheless, seeing the almost hero-levels of mental gymnastics tweeted by Mhairi Black, in the week of the Hillsborough inquiry whereupon Nicola Sturgeon posed with a copy of The Sun endorsing her re-election, prompted me once more to consider just how spectacular the distance has become between the SNP that stood against Ed Miliband versus the SNP today and in government.

Mhairi tweeted: “So Kezia wants to put up the taxes of Scottish people to subsidise Tory cuts that her party supported in Westminster?”. Confused? So am I.

This follows in a series of SNP revisionism on what austerity is and the excuses the SNP has hidden, not quite so conspicuously, up its sleeve to not act on its new tax powers, so as not to break its bond with Middle Scotland. They insist that Labour’s plans for a penny tax are not progressive, and have framed it in such a way that an anti-austerity plan has now become a subsidy for cuts Labour actually haven’t supported for more than a year now. Just like that, the SNP is a low-tax mimicry of Toryism.

But it isn’t ‘just like that’. The SNP have governed from an economically cautious stance for seven years. For a brief period, they borrowed Ed Miliband’s clothes. But once the Red Wedding had been completed, they returned back to where they started: as successors to New Labour, though that is hardly fair: they are far, far less redistributive.

So why is it, in the 2015 election, and even today, many of us on the left in England still entrust our faith in SNP rhetoric? Still beat the drum for an electoral ‘progressive’ coalition with a party that doesn’t seem very happy to embrace even the concept of higher taxes?

My theory is that the SNP have successfully, indeed more successfully than any party in Britain, adopted the prime hobby of much of the Left: ‘againstism’.

‘Againstism’, clumsy I admit, is to be against everything. This can include a negative framing of being anti-austerity but not pro-anything in its place. But in this instance, it means to be anti-establishment. The latter, the establishment, is what Labour as a party of government always has aspired to be in competing to be the national government in Westminster - which is why elements of the Left will always hate it and will always vote against it. In a way, some of the left is suspicious of governance. This is occasionally healthy, until it prevents real progressivism from ever being elected.

While in government, Labour could be seen as sell-outs, rightly or wrongly, because they became the establishment and had no one but themselves to blame. The SNP are the establishment, in Scotland, but can nevertheless exercise ‘againstism’, even with new tax powers. They always will so long as Westminster exists, and so long as their main motivation is independence. This is why the bogeymans that sustain nationalism are not natural allies of social democracy; to achieve social democracy would be to remove the bogeyman. This means that the Lesser New Labour tradition within which they govern will continue to go unnoticed, nor be doomed to eventual death as New Labour itself suffered, nor be looked back on as an era of neoliberalism. The SNP can just avert attentions back to the Westminster establishment. ‘Againstism’. Paradoxically, the way the SNP have managed to come to exploit this is because of New Labour's devolution. Devolution has created, for the first time, the perfect environment for an establishment in one part of the country to blame the establishment in another. It has allowed for the rise of an incumbent insurgent. The SNP can campaign as insurgents while still being incumbents. It is a spectacular contradiction that they alone can manage.

Insurgency and anti-establishment politics are not, of themselves, a bad thing. We on the Left all dip our toes in it. It is a joy. It is even more fun for us to be successful. Which is why the celebratory mood that surrounded the SNP gains in Scotland, a paradigm shift against one incumbent for another, is, objectively, understandable. But these insurgents are not actually insurgents; they are the illusion of one, and they have had the reigns of power, greater now for the Scotland Bill, for seven years. And they have done little radical with it. The aim of an anti-establishment politics is to replace an establishment with something better. All the SNP have done is inherit an establishment. They are simply in the fortunate position of managing to rhetorically distance itself from it due to the unique nature of devolution.

This is why some of the Left still loves them, despite everything. They can remain ‘againstists’ regardless of their incumbency. They do not have the stench of government as a national Labour government did and inevitable would have. So the English Left still dream.

But now, with this mounting evidence and the SNP’s clumsy revisionism, it is up to the English Left to distinguish between genuine leftism and empty anti-establishmentarianism, and to see the establishment -via governance- as something to define for itself, to reshape as something better, rather than something to be continuously against. This is, after all, what Attlee's government did. The SNP have not defined the establishment, they have continued someone else's. It's up to us to recognise that and fall out of love with the SNP.