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.
Choosing public interest above professional rules
The question of the right to information offers an exemplary demonstration of this state split in two, with democratic rules at the surface and a policing ‘exception’ deep below. For the proof that what we have here are democracies that have turned against their fundamental principles, leaving just laws by the wayside, is that those governments that initiated or accepted these wayward practices fear nothing more than being caught in the act. This applies as much, alas, to the Democrat administration of Barack Obama as that of his Republican predecessor George W. Bush.
The unprecedented persecution of the rare whistleblowers, those who after witnessing such illegal practices listened only to their consciences as citizens, is in itself the admission of a political transgression. The truth is so scandalous that those who speak it must be silenced, defamed and discredited at all cost. Apart from their youthful audacity, their democratic radicalism and their culture of digital technology and communication, what soldier Bradley Manning, the hacktivist Julian Assange and the computer analyst Edward Snowden all have in common is that they have been treated by the US government as spies, and as such enemies and aliens who have no legitimacy. What an astonishing thing it is to see an economically and militarily omni-powerful democracy throw all it has against a few dissident individuals, in the same manner as authoritarian regimes (notably China).
Thus it is that 25 year-old Manning, arrested and detained in 2010, tried and convicted in July this year, faces a term of life in prison for having alerted the public, via WikiLeaks, to the violations of human rights committed by the US army, exposing an aggressive imperialist foreign policy. Thus it is that Julian Assange, who founded WikiLeaks at the age of 35, has for two years now been living in a windowless room in the Ecuadorian embassy in London in order to avoid extradition to the US on conspiracy charges based on the 1917 Espionage Act. Thus, finally, it is also in the case of Edward Snowden, 30, who found himself in a diplomatic no-man’s land, unable to leave Russia, for having exposed, notably via The Guardian, the gigantic extent of the US electronic espionage system which judges any secret that is not its own to be illegitimate.
To fail to defend them is to give oneself up, and even to abandon belief. To not help them is to renounce our own ideals, those that our governments are so quick to cite in their dealings with authoritarian regimes – or at least when the latter are weak or marginal. Behind the cases of Snowden, Assange and Manning is an attack on democratic principles, on individual rights and fundamental freedom. Their persecutors want us to accept, through silence, complicity or indifference, these regressions of society. Who could challenge the fact that the information revealed by these three individuals is of essential public interest? It is so not only for the future of our democratic states, but also in the cause for a common world that is more united and pacific.
Who can deny that the facts they revealed are part of the same process as the revelations of The Pentagon Papers, a celebrated triumph of ‘the right to know’ in American democracy and which lifted the lid on the hidden history of the US military and political campaign in Vietnam? Who, at the time, could challenge the fact that when military analyst Daniel Ellsberg leaked the 7,000 pages of the top secret Papers to the New York Times in 1971, his actions were a positive contribution to an important public debate and democratic reflexion?
There should be no misunderstanding: by attacking Snowden, Assange and Manning, pioneers in information communication in the digital age, it is also an attempt to beat into submission the wider world of information supply. By neutralizing the turbulent avant-garde, it is the flock in the background that is being rounded up. Because the business of informing – truly informing, by revealing what is unduly hidden - implies the use of information leaked by sources who take risks in the name of public interest, which they consider to be a superior imperative to that regulating their profession.
A visit to the ‘Americas’ page of the website of Reporters Without Borders (RWB), the French-based NGO that promotes freedom of the press and which cannot be accused of timidity in denouncing the practices of authoritarian regimes, gives the measure of what’s at stake for information gathering and democracy. Apart from RWB’s unreserved show of support for Snowden and Manning, and its joint call with Assange for European countries to help Snowden, there is an article condemning the surveillance by the US Justice Department of phone records of press agency The Associated Press, perpetrated to uncover the agency’s sources, and the all-too forgotten case of 31 year-old journalist Barrett Brown. He was arrested in September 2012 after investigating the contents of internal emails from the private intelligence firm Stratfor, some of which were published via WikiLeaks. The charges he faces, at a trial due in September, carry a maximum 105-year prison term!
Democratic institutions recognise whistleblowers' duty
On May 3rd 2012, which marked World Press Freedom Day, the White House released a statement by President Barack Obama. “On this World Press Freedom Day, the United States honours the role of a free press in creating sustainable democracies and prosperous societies,” Obama declared. “We pay special tribute to those journalists who have sacrificed their lives, freedom or personal well-being in pursuit of truth and justice.” He cited Article 19 of the Universal Declaration of Human Rights, by which every person has the right “to seek, receive and impart information and ideas through any media and regardless of frontiers” , adding that “that right remains in peril in far too many countries”. He referred only to Belorussia, Burma, Cuba, Ecuador, Eritrea, Syria and Vietnam.
He gave no such statement in 2013. It was of course easier to denounce the attacks on freedom by the authoritarian regimes of small countries, with all the arrogance of the well-meaning strong addressing the weak, rather than to be concerned with the regression of these rights in his own democratic empire. What could the US president now say on the subject to Russian President Vladimir Putin, ruler of a country with a very low level of democracy (another euphemism) after having begged him to hand over Edward Snowden (and who had no other choice than to accept the exit door offered by Moscow)? What would be Obama’s legitimacy tomorrow if he were to criticise one-party state China for persecuting whistleblowers and citizens who expose information the regime wanted to keep secret?
How can one lobby others to promote a principle that one doesn’t defend? For the only common ‘fault’ committed by Manning, Assange and Snowden is to have breathed life into the role of the whistleblower, a democratic role that is increasingly recognised as such by the international community. From conferences to summits, one could lose count of the number of recent occasions where the role of whistleblower has been debated, defended and championed, such as in the Council of Europe of which Russia is a member and where the US sits as an observer country.
Whistleblowers are those who in good faith alert public opinion (and therefore the authorities of a democratic country) to illicit practices. They are not denouncers who, for example, might provide a police state with information on its opponents. What they are is an essential part of the democratic process, placing public interest above professional duty.
The European Court of Human Rights is as explicit as it is constant in its defence of whistleblowers. In a 2008 ruling (Guja v Moldova) it made clear: “In a democratic system the acts or omissions of government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the media and public opinion. The interest which the public may have in particular information can sometimes be so strong as to override even a legally imposed duty of confidence.”
Similarly, a resolution adopted in 2010 by the Parliamentary Assembly of the Council of Europe proclaimed principles of protection that should be afforded to whistleblowers, and called on EU member states to accordingly revise their national laws. The resolution, entitled ‘Protection of whistle-blowers’, includes the mention that “the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies”.
Also in 2010, the leaders of the G20 countries, at a summit meeting in the South Korean capital Seoul, gave priority to the issue of protecting whistleblowers as part of an international drive against corruption. However, they found common agreement to exclude whistleblowers in the fields of national defence or foreign policy.
But what if this protection of the state hides in turn illicit actions, serious violations of rights, attacks on freedom? That is the troubling question raised by Manning, Assange and Snowden who unveiled the fundamental hypocracy surrounding the dividing line between democratic enlightenment and security-obsessed darkness. The case of French financial advisor Pierre Condamin-Gerbier, a whistleblower arrested by Swiss police after his revelations to the French press, parliament and justice authorities of organised tax evasion and money laundering, illustrates how national security arguments can serve as an alibi for protecting corruption when a state places its own interests with those of world finance.
The Snowden leaks have had the welcome consequence of opening a debate in the Parliamentary Assembly of the Council of Europe over the utility of public revelations about rights violations caused by security-driven abuses of democracy. In a draft resolution presented in June and entitled ‘National Security and Access to Information’, the rapporteur, Spanish socialist group member Arcadio Diaz Tejera, proposes: “The Assembly considers legitimate, well-defined national security interests as valid grounds for withholding information held by public authorities” but that “at the same time, access to information forms a crucial component of national security, by enabling democratic participation, sound policy formulation and public scrutiny of state action.” Otherwise put, a place should be allowed for conflict, debate and legitimate revelations.
The legacy of the Patriot Act
Under pressure from the revelations provided by Edward Snowden, and from the support he has received, notably from those defending an American democracy that meets the constitutional promise of its First Amendment, Barack Obama was finally forced to recognise from where the evil had come: not from the leaks published in the press, but from the Patriot Act, adopted in the autumn of 2001 and never challenged under his presidency. On the defensive, the US president admitted during a press conference on August 9th what had been his essential mistake, that of not having dismantled the ‘State of exception’ that the act created and which has been in place for more than a decade.
Enlargement : Illustration 3
What exactly is the Patriot Act? Quite simply the legal power to act illegally. This naturally requires no judicial mandate, only the consent of the president. It was a coup d’état pulled off by the neo-conservatives, making profit from the shock and blindness in the aftermath of 9/11. It put the security-obsessed state beyond reach of democratic accountability, placed it out of control by parliament or the media, making the ‘war on terrorism’ a norm rather than an exception, not a momentary campaign but one unlimited in time.
This law is in itself a crime against democracy. It is an illustration of the higher motivations of the whistleblowers that Edward Snowden chose to pass for publication the information he had to Glenn Greenwald, a US lawyer who became a blogger in 2005 and whose regular denunciations of the Patriot Act became the contents of a book published in 2006 entitled How Would a Patriot Act? Defending American Values from a President Run Amok. After Barack Obama was elected as president on just such a tide of contestation and awakening, he in the end only attempted to repair the effects and not the cause. Yes, torture was happily ended, but the detention camp of Guantánamo Bay in Cuba is still there, with prisoners still held in isolation and still untried and who have no other means of protest other than hunger strikes.
Above all, the ‘state of security’ has never ceased increasing its reach, benefiting from the industrial and cultural (and even civilisation-al) revolutions for which digital tools provide the technological engine. The battles fought with drones (used to an extent of which many people are unaware) like the surveillance of the internet, offer the practical example of the ascension of this ‘state of exception’. New forms of total domination can emerge without any space for these to be publicly opposed. Because in a democracy – which is an ideal that is never complete and a notion that is always under construction - the border between warring, authoritarian conservative politics and drifts towards totalitarianism is never absolutely closed. Only vigorous debate, the vigilance of public opinion and the strength of counter-powers can make that border tight.
German philosopher and jurist Carl Schmitt (1888-1985) is well known as a theoretician of the ‘state of exception’. The undeniably strong and creative works of Schmitt, who moved from conservatism to Nazism, did not concern only the barbarity in Europe to which he was an accomplice, but also that which – at least, if we don’t heed the warnings - is to come. To proclaim the ‘exception’ already implies silencing contestation. In the opening text of his 1934 essay, Political Theology, published one year after Adolf Hitler came to power, Schmitt wrote that "sovereign is he who decides on the exception." By “exception” he refers to the installation of a regime that no longer follows the rule of (just) law. He designates an enemy whose very irregularity demands an irregular response. “In the exception the power of real life breaks through the crust of mechanism that has become torpid by repetition,” Schmitt wrote.
Fear thus becomes an argument for those in power, pitting society against itself in a fantasy of homogeneity, leading it on an endless hunt for scapegoats or The Other – he who is dissonant, different, threatening. The adversary of those in power is easily identified as the enemy within, a figure of otherness that must at all cost be reduced, excluded or even destroyed by preventive counter-violence. It suffices to listen to the common speeches promoting the war on what is called Islamist terrorism to become aware of this ‘state of exception’ which hands politics over to the police.
The comfortable environment of security that this offers is an illusion within which democracy loses its way and by which its vitality, its pluralism, its creative conflicts become ruined. We cannot count upon our governments (at least not in the first resort) to avoid this peril, as demonstrated by the cowardly attitude shown by European countries towards Edward Snowden. Rather, it is down to each of us. We must break out of indifference, give voice to our indignations and take our risks. It is the other lesson learnt from the eruption of whistleblowers at a global level: the early movements of a new political approach, of networks and relations, the unexpected, from the weak to the strong, whereby the fragile first steps of a new world to come reveal better strategists than those of the blind power of a world in decline.
The urgent need to save a free, universal internet
"The Internet, our greatest tool of emancipation, has been transformed into the most dangerous facilitator of totalitarianism we have ever seen,” writes Julian Assange in his 2012 book Cypherpunks: Freedom and The Future of the Internet, which is includes a series of conversations with hacktivists Jacob Appelbaum, Andy Müller-Maguhn and Jérémie Zimmermann. “These transformations have come about silently, because those who know what is going on work in the global surveillance industry and have no incentives to speak out,” continues Assange, writing just months before Edward Snowden’s revelations about the NSA’s mass surveillance practices.
To be aware of the potential catastrophe is the best means of avoiding it. The conversations contained in the book illustrate a mixture of concern and hope, and the aim of Assange and his fellow contributors is to mobilise opinion amid a battle of which the outcome is not yet decided. This combat is one that pits the new liberating spaces that digital technology offers for our dreams of concord and exchange against the conquest of these same spaces by the apparatuses of states.
“The state, like an army around an oil well, or a customs agent extracting bribes at the border, would soon learn to leverage its control of physical space to gain control over our platonic realm,” writes Assange. “It would prevent the independence we had dreamed of, and then, squatting on fiber optic lines and around satellite ground stations, it would go on to mass intercept the information flow of our new world - its very essence even as every human, economic, and political relationship embraced it.”
He adds: “And then the state would reflect what it had learned back into the physical world, to start wars, to target drones, to manipulate UN committees and trade deals, and to do favours for its vast connected network of industries, insiders and cronies.”
It is here that the battle is played out. “As states merge with the internet and the future of our civilization becomes the future of the internet, we must redefine force relations,” urges Assange.
The defence of the internet, of a free and universal internet, thus becomes a decisive political issue, in which at stake is the ability of humanity to control its destiny. In one of the conversations in Assange’s book, French hacktivist Jérémie Zimmermann stresses that the internet is “the most important tool that we have” with which to confront global problems, and describes its preservation as “an essential task for our generation”.
Far from being the utterances of marginal and obsessive militants, this argument rejoins those of one of the pioneering thinkers on the issues of the Information Age, Manuel Castells, a Spanish-born sociologist who, after teaching in France, embarked on an academic career in the US in 1979. Castell’s 2009 book Communication Power, which reflects on the means and conditions of emancipation from the surveillance that abounds in our information society, has just been published in France. In his preface to the French edition, the renowned French sociologist Alain Touraine describes Castells’ work as “one of the most important contemporary social sciences books” and which helps “to orientate ourselves in the changing and confusing world in which we live”.
In his book, Castells underlines: “The technologies of freedom are not free. Governments, parties, corporations, interest groups, churches, gangsters and power apparatuses of every possible origin and kind have made it their priority to harness the potential of mass-self communication in the service of their specific interest. Furthermore, in spite of the diversity of these interests, there is a common goal for this variegated mob of the powers that be: to tame the liberating potential of networks of mass self-communication.”
The rise of the latter, observes Castells, “is only one episode in an ongoing struggle between the discipline of being and the freedom of becoming.” The collective spaces created by the communications revolution are, he warns, “being expropriated to expand for-profit entertainment and commodify personal freedom.”
To prevent this confiscation requires mounting a defence of the internet to ensure its freedom, its integrity, its vitality, its potential to emancipate and its horizontal communication – and consequently to also defend those who are the boldest internet activists.
Castells concludes that “perhaps the most decisive social movements of our age are precisely those aimed at preserving a free Internet, vis-à-vis both governments and corporations, carving a space of communication autonomy that constitutes the foundation of the new public space of the Information Age”.
If Mediapart’s position here needed clarification, it would suffice to say that it is part of that collective movement, accompanying its diversity, espousing its novelty and defending its boldness.
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English version by Graham Tearse
This editorial by Edwy Plenel can be read in French by clicking here. Earlier this year, Edwy Plenel appeared at a New York University conference when he spoke (in English) about the challenges and opportunities for the new media in bringing greater accountability and democracy to society, the history of Mediapart in exposing corruption under governments of the Right and Left, and in particular the lessons to be learnt from this website’s role in revealing budget minister Jérôme Cahuzac’s secret foreign bank accounts, a scandal that continues to rock the French political establishment. Click here to watch the video of his presentation.