Watch out for non-dangerous terrorists!

Ever since the beginning of the month I had to think about a curious announcement I saw in the EUobserver which reported on an interview in the German Bild:

“Germany’s interior minister Hans-Peter Friedrich told Bild newspaper on Monday that there are almost 1000 people in Germany that could [be] classed as "possible Islamic terrorists". Of those, 128 seem to be "dangerous" and have the potential to commit attacks.”

I don’t have much to say on the German Minister’s original statement. except what is this supposed to mean? That Germany is confronted with “only” 128 potential dangerous Islamic terrorists? Then what about the other 872? Are we saying that there are actually non-dangerous terrorists out there? Why do we care about them? Or do we maybe mean that there are 872 people from the Islamic community in Germany that, though not dangerous in a violent sense, are dangerous in that they might hold radical ideas? That we cannot trust them? Or that for one reason or another they simply are personae non gratae, someone the German government would rather not have among society?

It is absolute nonsense but I am not sure anyone still notices it with this decade-old terrorist hypebole: Either something is wrong with our definition of the very word “terrorist” or with our understanding of democracy.

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Taking the (ir)responsibility for Western wrongs: what the West owes humanity

Among all this political correctness, political lies and widespread citizens’ apathy and moral stagnation, it sometimes feels good to hear a provocative voice that, if it cannot shake up the establishment, might at least be able to shake up a bit the public debate. Today that a first series of articles went online commemorating the approaching 10^th year anniversary of 9/11, I want to be this provocative voice: It is time for the West to stop pretending as if we were the only victims of 9/11 and that non-Western lives are worth less than Western ones. And as a first step of this enlightenment, Guantanamo has to go.

Policy options are simple: Give every Guantanamo detainee that you cannot legally convict of a crime in a US federal court based on untainted evidence obtained according to criminal justice standards acceptable for a liberal democracy a “US Greencard”. Yes, the right to permanently live on US soil among US citizens with the prospect of one day acquiring US citizenship. You think I am joking? Hardly. How to transfer the detainees in the absence of budget allocated by Congress to such an action? Have Europeans pay for the transfer of detainees to the US mainland. Paying is what we seem to be capable of best anyway! Too ambitious? Well, alternatively I could suggest have Europeans accept the transfer of Guantanamo detainees to European soil granting them a right to live there freely if we cannot legally detain them subject to the condition that the US accepts the institution of an effective UN Special Tribunal for the US War on Terror to try low-level and high-level US citizens suspected of having committed War Crimes and Crimes against Humanity and subject to the condition that the US agrees to fully cooperate with such a tribunal.

Why am I suggesting this? Because. Because the cheering and chanting of Americans in the streets of Washington DC and New York on May 1 to celebrate the death of Osama Bin Laden shows a twisted sense of justice. Because in mid April 2011, the Red Cross released a Survey that found that 59% of Americans between the age of 12 and 17 “believe there are times when it is acceptable to torture the enemy.” The survey was released just about a week after it was known that the Obama administration would fail to try the alleged conspirators of the 9/11 attacks in a civilian court and that trials are now due to start at the disgraced US military detention facility at Guantanamo Bay, Cuba, instead. At the same time and related to this, news confirmed the Obama administration’s intention to close disgraced GITMO not by relocating the detainees to US soil, but by convincing other States to take them in in return for other favors such as money, the lifting of visa bans and others. It seems ironic that almost at the same time new secret documents were released by Wikileaks that show the unprofessionalism with which US interrogators tried to gain valuable intelligence from Guantanamo detainees by using techniques tantamount to torture that would be considered invalid if submitted for scrutiny to a civilian court.

Finally, another blow to justice was given by the US Supreme Court’s refusal to hear an appeal from Chinese Muslims whose detention at Guantanamo could not be ended due to a lack of an agreement on where to settle them. But note, this despite the fact that their detention was recognized as being “without lawful cause.” Confronted with these defeating news one has to conclude that Guantanamo detainees are apparently relegated to a desperate fate in limbo in the absence of countries willing to take them in. They are going to stay on the infamous military base. Not only that, but with US President Obama’s determination to “look forward, not backwards”, they do not even have a chance of ever seeing their alleged torturers be prosecuted let alone condemned if found guilty since no one in the US who is in a meaningful position seems to advocate for putting US soldiers and high-ranking ex-Bush administration officials on trial for having engaged in and promoted what has been euphemistically renamed “enhanced interrogation techniques”. At the same time, the consensus of the political elite to look forward is not even countered by anything that could be defined as an American public eager to look backwards.

While feeling sorry for all those Americans that look at the above-mentioned developments with the same disgust as I do, I cannot help but to feel that at some point in time American political culture must have gone completely morally bankrupt. How can a presumed-to-be enlightened people tolerate injustices they would never allow to happen to their own kind? As I hinted at in a post commenting on Osama bin Laden’s death, it seems as if the American people has become completely self-absorbed by an antagonizing civic religion that foments an uncritical image of an unjustified war perceived to be launched by the evil “them” against the good “us”. This has to stop. Americans need to understand that crimes against humanity are being perpetrated also in their name. They have to recognize that justice requires them to make up for it and pay the consequences for their country’s action. They should understand that Americans too, have to submit to the laws and recognize that even non-Americans and non-Whites deserve respect for their lives and dignity as human beings. And it is time for the world, and especially America’s Western allies to get this message across to them to cause a course correction. If we fail to do so, I provocatively dare to say, we can unfortunately only expect worse to come from the other side of the Atlantic now that it’s suffering from what some have called “imperial overstretch, perpetual war, and insolvency” and a polarization of their political landscape.

Admittedly, I have been particularly harsh here and this is not to say that Europeans are saints. On the contrary, our absolute and unquestioned allegiance to the Unites States, our cowardness to find our own European ways made us partake in US actions for which also Europe should seek moral redemption. It is time for Europe to show the world that we are not just good at symbolically and hypocritically condemning American wrongs that we in the best case condoned, in the worst case outright welcomed. Indeed, Europe made itself a complicit when it pretended not to see the secret US flights and black sites on European soil, used Guantanamo detainees as a bargaining chip, and failed to act in diplomatic protection of its own citizens illegally detained there, when some European countries (e.g. Spain, or Germany) backed off from prosecuting American war criminals and torturers or to otherwise try to force the US to close the detention facility as well as reinstate the rule of law. With this Europe bears a share of the guilt for the crimes committed against Guantanamo detainees, at least some guilt for willful blindness and acquiescence. And as such Europe too should pay – not just with its money but with a commitment to make the right choices in the future, to call the US up on its actions by offering constructive though outrageous policy solution, even if this sets us on a path of confrontation with our closest ally. If you take the time to think about it, a feared but unlikely-to-really-happen deterioration of our strategic transatlantic partnership is a little price to pay in exchange for at least a tiny little bit of more global justice.

More entries to follow-up on this more in detail will follow soon.

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Osama bin Laden – is it about Football?

I know the media sometimes tend to exaggerate certain phenomena that are maybe not as widespread throughout society as they might want to make you believe through their media coverage. Nevertheless am I the only one irritated by the cheering and chanting of Americans on the streets all across the United States, by the t-shirts and costumes displaying the US flag, by the waving of American flags, the holding up of signs "USA winning," "USA 1 – Osama 0"and by the facebook statuses some of my American friends posted to celebrate the death of Osama Bin Laden? By seeing such a strong emotional reaction I cannot relate to, I am troubled up to a point that I find it almost antagonizing to see such a display of national identity. Who is winning what anyway? And winning against whom? Some self-congratulating newspaper articles or tweets seem to know the answer, while only few people such as the ones here and here question American reactions. What people seem to care less about is that the terrorist threat will not go away, some even speculate there might be an at least short-term increase in terrorist activity as a backlash in response to the terrorist's death. There are still two wars going on, one in Iraq, one in Afghanistan, none with an end or a stable solution in sight. There are drone strikes in Pakistan and in Yemen. Osama's death will stop neither the wars nror the drones. Decentralized networks of terrorists are still plotting new attacks, yet Americans are cheering as if their favorite sports team had just won the Super Bowl!

Another sign says "Obama 1 – Osama 0" (What a boom for the economy, buy the t-shirt here!), and someone explains "Yes, as it's done in sports, we always keep score." But what are we counting here? The rounds each side has won? Well, in that case I would say it stands "USA 1 – Osama 1" (at least) because of the 9/11 attack, not to mention the 1998 bombings on US Embassies in Kenya and Tanzania and the attack on the Navy destroyer Cole, 9/1 in the year 2000. So maybe the count should actually be 1-3 for Osama? Or should we rather count the death toll in which case we would have about 1:3000 for Osama for the killing of innocents in the 9/11 incident? And what about the other terrorists the US already eliminated? This should push up the score of the US if only it were possible to quantify the number! And to be fair, we would also need to add the civilian losses, i.e. deaths, caused in collateral damage in the above-mentioned terrorist attacks, wars and drone strikes. This will be a tough one though: Should I count them as scores for the USA or Osama? Who "deserves credit" for their deaths?

USA winning: I wish I could experience the same relief so many Americans seem to be feeling. Instead, I am feeling the same discomfort I felt when seeing the images broadcasted by Western Media on September 11^th, 2001, with veiled Muslim Women cheering with sounds of Islamic ululation, Muslims holding up flags of Arab countries while others were burning American ones to celebrate the collapsing of the Twin Towers which killed thousands of people. I find both reactions grotesque. If back then I was alienated by what seemed to me a madness and injustice animated by religious fundamentalists, now I feel just as distressed by seeing such a powerful display of a civic religion that appears to me just as fundamentalist and alien. If we consider all the tragedies the war on terror and the terrorists have caused, are causing and will continue to cause all across the globe, doesn't our celebration seem misplaced no matter how important or unimportant terrorist Osama bin Laden might have been? Doesn't it feel like an over-reaction that shows that there must be something awfully wrong about the fundamentals of our societies?

The war and the threat are not over. Everyone is just as safe as before. No one is winning. No one can. It is not football. Yet, I hope I am wrong. I hope I underestimate the importance of Osama's death which would change things for the better. May the best man have finally won?

Unfortunately every time a football season ends, a new one is just around the corner. It's never ending.

I wonder who will be next season's winner?

Wikileaks and the struggle for sovereignty

At the end of 2010, the entire world seemed to talk about one thing: Wikileaks. And among the many things that have been said, I am puzzled that one of the most basic questions doesn't seem to have been explored at all, namely under what pretense does the United States seek the extradition to US authorities of Wikileaks' founder Julian Assange? Leaving aside the political question of Wikileaks' and Assange's morality and the limits of the freedom of press, I grew up in a society that believes in the rule of law. Therefore, whoever wants to prosecute Assange for undesirable actions has to first state the legal basis on which this is supposed to happen. Put differently, what law defines the elements of a crime that Assange is said to have committed? The US Foreign Intelligence Surveillance Act? The US Espionage Act? I reformulate my question: what relevant law did Assange actually breach in a way to commit a crime that would give authorities in Europe the legal right to extradite him to the United States? 

Let's take a look at the basics: Citizens are commonly believed to owe certain obligations to their State such as those that can be grouped under the category of "loyalty" or "civic duty". Generally, they are bound to comply with the laws of their country wherever they are. Moreover, also those merely being present in the country are called on complying with the country's laws and customs. Conversely, a State can lay no claim on the behavior displayed in another State's territory by non-citizens not residing in the former. It is for this conception of the international system based on the concept of citizenship that, as a general rule, as an Australian citizen residing in Europe, Mr. Assange couldn't care less about US law: He doesn't owe any obligation whatsoever to the US, let alone has a duty to safeguard US national security, interests or secrecy. Therefore, only if the domestic law of Assange's country of citizenship (or of usual residence) or the law of the country on the territory of which his actions were carried out defined the leaking of a foreign government's secret correspondence as a crime, would Assange's actions amount to unlawful conduct. If this were the case, then he could be prosecuted, but even then, only in these countries.

For his prosecution in the US one would instead have to prove a tie between Assange and the US that legitimately subjected him to US law, or prove that his acts constituted crimes under international criminal law. (The only other law that could be said to matter in that it is universally applicable, notwithstanding possible practical limitations of its applicability due to constitutional constraints and safeguards.) Without such a proven tie, from a legal point of view Assange is out of reach of US jurisdiction, rendering all US law inapplicable and hence completely irrelevant to the Wikileaks case as far as the weighing by authorities in Europe of a US extradition request is concerned. Any other conclusion would endanger our very understanding of the rule of law and our basic principles of criminal law that we in the West pretend to hold so dear. 

More so, one could even argue that in case the US tried to apply US law to Assange, the US would itself incur in a breach of law – a breach of international law to be precise. Indeed, according to the principle of non-interference a State who seeks to extend its jurisdiction beyond its border or citizens breaches international law by interfering in the internal affairs or sovereignty of another state – in this case by pretending its law should apply to someone who has no tie based on citizenship or territorial presence to the State enacting the law. This problem is well known to scholars of international law under the name of "extraterritorial effects of national jurisdiction". 

In that sense, fighting Assange's extradition to the US isn't just a matter of agreeing or disagreeing with Wikileaks. It is part of a much broader fight to safeguard our democracy by saying no to the extraterritorial effects of US law: US Congress does not hold and should never be given the power to rule over non-citizens residing abroad or to criminalize behavior held by non-citizens far away from US territory. These other States' citizens aren't subject to the jurisdiction of the United States of America and should never be. The message to the US government should be clear: Hands off of other States' citizens! 

[Comment one: For those believing that the US has a legitimate interest in prosecuting Assange because he violated US law, I would ask you to consider if you allowed Thailand to demand the extradition of US citizens smoking pot in a Dutch coffee shop, or Iran to seek the extradition of unmarried European women for "adultery"? I did not want to make these analogies, as these prospects sound too ridiculous to even be worth contemplating. Yet, the analogy holds. One could ask: But aren't Assange's acts about terrorism? About international security? Don't they constitute a special type of crime? Maybe a transnational crime? A crime that is globally relevant? Well, do they? Really? How so? Disseminating information should never be defined as an act of terrorism or a crime of global relevance – of global relevance, yes, but not a crime. And for sure it shouldn't be defined so unilaterally!]

[Comment two: Given the breadth of this topic and the sometimes complicated interplay between national and international law, I hope people understand why I hardly provide any links in this entry. For most of my statements here I make reference to my international and constitutional law classes at university, but I encourage everyone to read some good law books to make up your own mind.]