Against the ‘state of exception’, the crucial battle to save freedom of information

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The game of diplomatic bluff played out in the row between the Unites States and Russia over the asylum offered to former NSA computer analyst-turned-whistleblower Edward Snowden disguises an essential issue that concerns all of us, writes Mediapart editor-in-chief Edwy Plenel. That issue, he argues here, is how a ‘state of exception’, symbolized by the US Patriot Act and which cites supposed security concerns above the just rule of law, is surreptitiously extending its already vast power amid hitherto widespread indifference. A battle is on to force its retreat, and it is being fought here, on the internet.

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A ‘state of exception’ is taking over from the state of justice and law, becoming the rule on a global scale, without borders or limits, and which wants to stamp itself as a universal standard. Our guilty indifference to what is happening is making it all the easier to impose.

Its origins are in the US riposte to the 9/11 terrorist attacks, an offensive that, in the name of the ‘war on terror’, became a silent coup d’état against our fundamental rights and freedom. It spread everywhere, in the secrecy of widespread surveillance, unifying countries beyond their flags and national anthems into a sort of profound world state.

The internet and the new communication channels that have opened up with the digital revolution have become the major battleground in this global confrontation between our individual rights (notably those of expression, of opinion, of movement, of protest, of beliefs and that to be different) and policing policies that are ready to sacrifice these liberties in the service of a supposed superior law of collective security.

In the image of the past transformations of society, such as the Renaissance period in Europe which was marked by both invention and destruction, wars and free thought, this digital age is at a crossroads, a point of hesitation in choosing between progress or regression: that of a new public space that offers a recovered and reinvented democracy, or the emergence of an Orwellian secret world in which reigns general suspicion and permanent surveillance.    

This is what is at stake in the case of Edward Snowden, the former CIA and NSA computer analyst who leaked details of mass surveillance programmes to the media. Its beneficial effect has been to make us aware of the true extent of the violations of human rights led by the US, and the contagion of these violations in Europe. Hidden behind the alibi of promoting security, the National Security Agency (NSA) spies on the whole world without any mandate to do so nor any judicial control. It watches over legal institutions, ordinary citizens, the embassies of US allies, the social media, studying the conversations of Skype users and the contents of emails. 

What’s new here is not the global reach of the surveillance – already illustrated a decade ago by the revelations concerning the signals interception programme ECHELON -  but rather the uncontrolled and unlimited nature of the activities to which anyone, anywhere and at any time can become a target. This infinite extension of its practices, under cover of a new freedom of communication provided by the digital revolution, is the result of the Patriot Act , a law of exception adopted by the US amid the aftermath of shock from the 2001 terrorist attacks. Now, the public across the world has suddenly discovered that the special powers it created do not target only the supposed terrorist enemy, but potentially also everyone else and notably the immense number of internet users across the globe.

The violations of rights that became seemingly ordinary occurrence in the irregular war waged against a terrorist enemy (kidnapping, torture, disappearances, isolated detentions and so on), led to a situation whereby this exception has become banal, to the point of flouting the fundamental rights of individuals, whoever they be. Everything is open to surveillance, from personal correspondence and conversations to personal relations and social groups. It is an old truth that the creation of any exceptional powers carries the danger of introducing a rot within democracies, to the point of placing them in peril.

Suddenly, we now realize that our collective indifference to the fate of prisoners in the US detention camp of Guantánamo Bay in Cuba  disarmed us in face of the expansionist aims of military and police organizations and their recurrent desire to act in the shadow of public view, debate and control. By not having known how to defend the principles of justice and law, including for the benefit of those who do not respect such principles, we have exposed ourselves to the progressive weakening of our own freedoms. We have become so used to a new normality of what were exceptional powers – and to accept that any questioning of them is inappropriate with regard to the urgency of security requirements - that our capacity to defend these principles has been sapped. 

This is not to place in question the legitimate right of sovereign states to defend themselves against identified threats through surveillance practices that also demand secrecy. But in the same manner that the fight against terrorism is not a war as such – unless we seek a war without end that encloses us in a fear of others – espionage has nothing to do with unlimited actions that regard the whole of society as a target. At least not in a democracy. By setting that out, one can clearly see the poison created by the politics of fear. By designating a global and indistinct enemy, the proper boundaries of suspicion are erased, placing the secret of state at the heart of political policy to the detriment of, and contrary to, the principle of openness behind democratic deliberation and sovereignty.

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