A Digital Habeas Corpus Arises Amongst a Dysfunctional Pandemic

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The European Union (Courtesy: Bloomberg News)

By Ann-Marie de Veer
Saturday 1 March 2014

Eight months after the Guardian printed its first story about the material sourced by whistleblower Edward Snowden the European Union's (EU) Civil Liberties, Justice and Home Affairs committee (LIBE) published its final report on the US NSA Surveillance Programme.

In the sixty three page report, (full title: Report on the US NSA Surveillance Programme, Surveillance Bodies in Various Member States and their Impact on EU Citizens’ Fundamental Rights and on Transatlantic Cooperation in Justice and Home Affairs), posted on the 21 February and supplemented by thirty two amendments in five (Amdt. 1-4, Amdt. 5-11, Amdt. 12.25, Amdt. 26-28 & Amdt. 29-32) additional documents, the LIBE committee provided a detailed "Explanatory Statement" (pp. 45-51) that covered four key areas:

The scale of the problem
Reactions to mass surveillance and a public debate
Habeas Corpus in a Surveillance Society
LIBE Committee Inquiry Recommendations

One area of particular importance was the committee's recommendation for a European Digital Habeas corpus:

‘A European Digital Habeas corpus - protecting fundamental rights in a digital age’ based on 8 actions:
Action 1: Adopt the Data Protection Package in 2014;
Action 2: Conclude the EU-US Umbrella Agreement guaranteeing the fundamental right of citizens to privacy and data protection and ensuring proper redress mechanisms for EU citizens, including in the event of data transfers from the EU to the US for law-enforcement purposes;
Action 3: Suspend Safe Harbour until a full review has been conducted and current loopholes are remedied, making sure that transfers of personal data for commercial purposes from the Union to the US can only take place in compliance with highest EU standards;
Action 4: Suspend the TFTP agreement until (i) the Umbrella Agreement negotiations have been concluded; (ii) a thorough investigation has been concluded on the basis of an EU analysis, and all concerns raised by Parliament in its resolution of 23 October 2013 have been properly addressed;
Action 5: Evaluate any agreement, mechanism or exchange with third countries involving personal data in order to ensure that the right to privacy and to the protection of personal data are not violated due to surveillance activities and take necessary follow-up actions;
Action 6: Protect the rule of law and the fundamental rights of EU citizens, (including from threats to the freedom of the press), the right of the public to receive impartial information and professional confidentiality (including lawyer-client relations) as well as enhanced protection for whistleblowers;
Action 7: Develop a European strategy for greater IT independence (a ‘digital new deal’ including the allocation of adequate resources at national and EU level) to boost IT industry and allow European companies to exploit the EU privacy competitive advantage;
Action 8: Develop the EU as a reference player for a democratic and neutral governance of the internet;

Against this backdrop of progress by the EU in addressing a problem of global concern there were two notable events that stood out. The first was the list of those who declined to participate in the LIBE hearings:


ANNEX III: LIST OF EXPERTS WHO DECLINED PARTICIPATING IN THE LIBE INQUIRY PUBLIC HEARINGS

1. Experts who declined the LIBE Chair’s Invitation

US
  • Mr Keith Alexander, General US Army, Director NSA
  • Mr Robert S. Litt, General Counsel, Office of the Director of National Intelligence
  • Mr Robert A. Wood, Chargé d’affaires, United States Representative to the European Union
United Kingdom
  • Sir Iain Lobban, Director of the United Kingdom’s Government Communications Headquarters (GCHQ)
France
  • M. Bajolet, Directeur général de la Sécurité Extérieure, France
  • M. Calvar, Directeur Central de la Sécurité Intérieure, France
Germany
  • Mr Gerhard Schindler, Präsident des Bundesnachrichtendienstes
Netherlands
  • Mr Ronald Plasterk, Minister of the Interior and Kingdom Relations, the Netherlands
  • Mr Ivo Opstelten, Minister of Security and Justice, the Netherlands
Poland
  • Mr Dariusz Łuczak, Head of the Internal Security Agency of Poland
  • Mr Maciej Hunia, Head of the Polish Foreign Intelligence Agency
Private IT Companies
  • Tekedra N. Mawakana, Global Head of Public Policy and Deputy General Counsel, Yahoo
  • Dr Saskia Horsch, Senior Manager Public Policy, Amazon
EU Telecommunication Companies
  • Ms Doutriaux, Orange
  • Mr Larry Stone, President Group Public & Government Affairs British Telecom, UK
  • Telekom, Germany
  • Vodafone

2. Experts who did not respond to the LIBE Chair’s Invitation

Netherlands
  • Mr Rob Bertholee, Directeur Algemene Inlichtingen en Veiligheidsdienst (AIVD)
Sweden
  • Mr Ingvar Åkesson, National Defence Radio Establishment (Försvarets radioanstalt, FRA)


The second was the deafening silence amongst the mainstream media (MSM), particularly in the UK. As oft has been the case, the only news outlet to consistently report on this and other issues concerning GCHQ and NSA malfeasance has been the Guardian who have endured considerable pressure from the UK authorities since they were forced to physically destroy their copy of the data sourced by Snowden.

The Guardian's first post on this issue was on the 10 January where it cited a draft copy of the LIBE report and printed five of its key points. On the 12 February it followed up with another report addressing the issue of asylum for Snowden and detailing the ongoing difficulties that the LIBE committee was experiencing in achieving consensus in the wording of the final report.

In contrast, The Times, The Independent, The Telegraph and the BBC have scarcely mentioned the work of the LIBE committee, producing nothing since the final report was published.

There is little doubt that these events, including the lack of representative parliamentary democratic accountability in the UK, the failure of congressional intelligence committee oversight in the US, the deceit and lies of the US executive and now the silence of the UK MSM, clearly demonstrate a dysfunctional democratic pandemic that has almost reached its peak of contagion.

While an EU digital habeas corpus may yet arise, the pandemic continues.