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 (NSA). 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 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.’
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.
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 is 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.
Global Justice in the 21st Century 
On Qatar and Gulf Geopolitics
3 SepPrefatory Note: The post below in the slightly modified text of an interview by the Tunisian journalist Awatef Ben Ali on behalf of the Qatar newspaper, Al Sharq, August 26, 2018.)
Q 1: From the perspective of international law, is the blockade on the State of Qatar and the 13 demands of the countries of the blockade legal and respecting international sovereignty?
A: The 13 demands of the Gulf Coalition plus Egypt, as well as the blockade of Qatar, are unlawful, violating Qatari sovereignty by using diplomatic and economic coercion to interfere with activities that are within the discretion of a sovereign state. It is a regional geopolitical tactic that tries to leverage superior power in ways that induce weaker and smaller states to sacrifice their rights under international law. The allegations of support for terrorism are without any factual foundation and are not supported by any credible evidence, and can be leveled at Qatar’s accusers with more justification than the allegation being made against Qatar. Not only are the 13 demands violations of international law, they are also disruptive of proper and customary diplomatic protocol, an assessment reinforced by Qatar membership in good standing of the GCC and its repeated calls for a negotiated end to the crisis.
Q 2: The State of Qatar resorted to the International Court of Justice in The Hague to prove the attacks on the rights of its citizens? How do you view these advocates as a legal perspective?
A: Recourse to the ICJ is appropriate in situations in which an international legal dispute exists, and cannot be resolved by normal diplomacy. Since the outset of the crisis in 2017 Qatar has repeatedly expressed its willingness to accept third party mediation of the dispute, and to do its part to reach a mutually acceptable political compromise. In contrast, the Coalition merely reiterated its demands and showed no willingness to end the crisis by peaceful negotiation. Qatar has every right to make use of its legal remedies under international law, and if it has a treaty right to resolve disputes with other Gulf states by recourse to the ICJ then this is a constructive step that represents a constructive approach to bring the crisis to a peaceful end in accordance with international law and in the interests of justice. Individuals harmed by this unlawful series of coercive steps should receive relief commensurate to the harm experienced, as well as being relieved of any burdens imposed by the Coalition’s policies.
Q 3: Qataris were deprived of Hajj. How does the law and the international community view this Saudi abuse?
A: As far as I know there is no international legal obligation that compels Saudi Arabia to allow Qataris to enter their country to complete the Hajj. There may be religious commitments and diplomatic traditions that have long been accepted by Saudi Arabia in upholding in good faith its role as custodian of the most holy of Muslim sacred sites. Such diplomatic traditions, as exhibited by patterns of practice over the course of many years, have created expectations that such entry to Saudi Arabia for such a religious purpose will be facilitated. Whether a regional or international legal duty should be established should be considered and discussed. It would seem reasonable to impose such a legal obligation for entry and security on Saudi Arabia because Muslims are obligated by their religion to do the Hajj at least once in their life, and this religious undertaking should not be obstructed by political interference. The translation of such a religious duty into a legal right is something that deserves careful consideration, perhaps in the context of expanding the right of religious freedom that is a legally protected international human right that may require more direct protection in view of these recent interferences with Muslim entry to carry out the Hajj.
Q 4: The Gulf crisis has reached a stage of stagnation. How do you see the efforts of the Gulf, American and European mediation?
A: As mentioned earlier, Qatar is ready to submit the crisis to mediation or any reasonable third party procedure, while the Gulf Coalition is adamant in its refusal. As your question suggests there are plenty of willing mediators or third parties from the region and from Europe or the United States. The UN Charter underscores the duty of states to seek a peaceful solution of disputes that threaten international peace and security. Given the turmoil in the Middle East, the Gulf Crisis creates one additional flashpoint that could erupt at any time in dangerous and unpredictable ways. The idea of mediation is a means to give both sides a way of resolving the crisis without either side having to acknowledge defeat or endure some kind of diplomatic humiliation. It seem mandatory, in the spirit of the peaceful settlement of dispute, for the leaders of the Gulf Coalition to accept offers of mediation with a sense of urgency, and not prolong this regionally detrimental crisis that also causes harm to many individuals forced to sever their ties with Qatar, or have their relations with other Gulf countries disrupted in ways that result in unfair, arbitrary, and often heavy burdens.
Q 5: The State of Qatar plays a pivotal strategic role as a regional negotiator through its strong relationship with a number of major countries and its support to a number of countries, most recently Turkey. How do you evaluate this role?
A: An irony of the crisis is that Qatar has in recent years played a consistently moderating role in relation to several regional conflicts, and has engaged in relations beyond the Arab World that have produced economic, security, and diplomatic benefits for the region. Indeed, Qatar has used its wealth and influence in largely imaginative ways to establish mutually beneficial regional and international relationships. In this regard Qatar can be viewed as a small country that has played a diplomatic role beyond its size and capabilities, and could serve as a model of how to be effective as a sovereign state through reliance on the instrumentalities of ‘soft power.’
Q 6: How do you see the problematic developments between Saudi Arabia and Canada? And how do you to evaluate Saudi foreign policy. (The siege of Qatar, the war of Yemen, the Canadian crisis)?
A: Saudi Arabia behavior toward Canada expresses the same effort to bully foreign governments by threats and intimidating moves whenever its leadership feels that its policies have been criticized or its motives challenged. Canada’s criticism of Saudi behavior is quite appropriate given the international character of human rights standards, especially where, as here, legitimate Canadian interests are at stake. The Saudi response to Canada is consistent with their belligerent behavior with respect to Qatar, as well as their outrageous tactics of warfare in Yemen, which include repeated bombing of civilian sites and interferences with the delivery of food and medicine in a country where there exists a strong internationally verified likelihood of mass starvation and where the population is suffering from a series of dire health challenges. The Saudi Arabian attack upon and intervention in Qatar is a moral and legal scandal that as with Syria displays the inability of either the United Nations or geopolitical actors to protect the peace and security of small countries that become targets of aggressive warfare.
Q 7: How do you see the role of Abu Dhabi and its quest to dominate the Gulf region?
A: I am not an expert on the behavior of the UAE in the region, but from recent appearances, their behavior resembles and reinforces the hegemonic ambitions of Saudi Arabia, and threatens to cause wider regional warfare by its support of policies of confrontation with Iran. It is important for peace, security, and sustainability that this kind of hegemonic diplomacy by UAE should be abandoned. Among other concerns, the region is very vulnerable to the hazards of global warming, and these aggressive moves cause political preoccupations that divert energies and resources from challenges that are present and need to be addressed before it is too late.
Q 8: How would ‘the Deal of the century’ affect Saudi Arabia and the UAE. How do you interpret this deal and its impact on the Palestinian cause and the Arab world?
A: Of course, in one respect it is premature to comment on ‘the deal’ as its contents have not been formally disclosed, and are the subject of rather divergent lines of interpretation.
It is a serious political mistake to attribute great importance to Trump’s uninformed boast to make ‘the deal of the century.’ All indications is that this is a deal that will never achieve the status of a serious conflict-ending proposal that is balanced and takes the rights of both peoples into account. From all indications, what Trump/Kushner have in mind seems to presuppose the surrender of Palestinian politicalrights, including the right of self-determination and the right of return, receiving in return ‘a bowl of porridge.’ Such a deal is and should be a non-starter in the post-colonial age, and will be rejected by every important Palestinian voice, including those living in foreign countries or in refugee camps in the region. It will be a costly diplomatic mistake for Saudi Arabia and the UAE to be seen as encouraging such a flawed approach to the Palestinian national struggle, an approach that would almost certainly include considering Jerusalem to be under the exclusive sovereign control of Israel. Trump has already indicated that moving the American Embassy to Jerusalem has removed the issue from any future peace negotiations. Israel has revealed and confirmed itself as an apartheid state by recently passing the Nation-State Law of the Jewish People denying equal rights to non-Jews as a matter of law. If Saudi Arabia and the UAE side with the Trump diplomacy that seeks to achieve a final betrayal of Palestinian rights, they will find themselves on the wrong side of history as well as antagonizing Arabs, Muslims, and partisans of human rights and justice throughout the world. Instead of the deal of the century that is a formula for the declaration of an Israeli victory and Palestinian defeat, the governments of the region should be demanding a peaceful solution based on dismantling apartheid structures, ending the blockade of Gaza, and acknowledging the rights of the Palestinian people. From all appearances this will not be remembered as ‘the deal of the century’ but cast aside as ‘the most fraudulent bargain ever put forward in the century.’
Q: What is your international low opinion about the latest news published by New York Times describing the electronic spying operations of Israel and Emirites, including the targeting of the Emir of Doha and a lot of political leaders?
These spyware developments are serious but hardly new in what they seek to achieve. Throughout the history of international relations governments pay money and use a changing variety of methods to gain access to the secrets and private communications of their adversaries. What makes this issue surface as in these recent allegations of the use of spyware against private communications of the leaders of Qatar, including the Emir and his family, is the growing sophistication of the technology and its ability to penetrate what had previously considered to be secure channels of communication, evidently including surveillance of cell phone conversations. Another striking feature of the present atmosphere is the role of private sector profit motives either reinforcing or challenging broader foreign policy positions. For instance, the UAE has no formal relations with Israel, but it happily purchases spyware from an Israeli company, NSO, exhibiting a relationship that could not exist without the knowledge and likely the approval of the Government of Israel.
From the perspective of international law, espionage has always had a double reality. On the one side, it is an unlawful form of interference with the sovereignty of a foreign country, which the target government criminalizes with punishments inflicted at its discretion, while the government responsible for the espionage glorifies its agents, or falsely denies their dirty deeds. On the other side, its practice is so common, and taken for granted, that it is difficult to regard allegations of espionage or surveillance as other than propaganda, with the government complaining, pretending to be outraged while itself relying on similar mechanisms to carry out espionage for its own security or to advance its policies.
The only sensible approach at this time is to ask whether the spyware being developed so radically alters the privacy of leaders and the security of states as supporting an argument to negotiate a new treaty of prohibition, similar to the prohibition of certain weapons of warfare such as biological and chemical weapons. This is the issue that should be discussed and debated to discover whether there is a
practical way to regulate and implement any prohibition of unacceptably intrusive espionage that can be agreed upon. A novel feature of digital spyware is that can penetrate deeply into the most secret recesses of foreign societies without requiring any physicalintrusion, and therefor it is spyware without spies, and resembles drones on the rather frightening frontiers of warfare where the human presence is eliminated, and the battlefield populated by machines capable of causing devastation of the most severe character.
As the Edward Snowden disclosures demonstrated a few years ago, governments are also using this technology to establish elaborate surveillance networks directed at their own citizenry, undermining trust and freedom in democratic societies. Thus the issues raised by the new types of spyware extend beyond espionage as practiced in international relation, and touch upon the nature of constitutional democracy in the 21stcentury.
These are important issues for our time that need to be faced as openly as possible, but without a misleading exhibition of legalism and moralism, which thinly veils propaganda designed to blame others for behavior that is common to all international participants.
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Tags: espionage, Gulf Crisis, Hajj, international law, Qatar, Saudi Arabia, Snowden