In this article, we exclusively talk to four of the world’s leading experts on Justice. The Rt. Hon Lord Woolf of Barnes (Lord Chief Justice of England and Wales from 2000-2005), Susan Herman (President of the American Civil Liberties Union ‘ACLU’), Professor David Kaye (UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression) and Widney Brown (Director, Physicians for Human Rights). We look at the very concept of justice itself, and explore issues ranging from the concept of democracy itself to free speech, civil liberties, war and terrorism, human rights, social justice and more.
In his 1923 book “The Philosophy of Civilization“, Albert Schweitzer describes how, “….Civilization, put quite simply, consists in our giving ourselves, as human beings, to the effort to attain the perfecting of the human race and actualization of progress of every sort in the circumstances of humanity and of the objective world. This mental attitude, however, involves a double predisposition: firstly, we must be prepared to act affirmatively toward the world and life; secondly, we must become ethical.” In context of how we achieve this state he argued, “…the development of civilization comes about – to put it quite generally- by individual men thinking out ideals which aim at the progress of the whole, and then so fitting them to the realities of life that they assume the shape in which they can influence most effectively the circumstances of the time…”
It is these ideals, from a supposedly ‘modern’ civilization which, since 1900 have resulted in the deaths of almost 250 million people (around four percent of the current global population of 6.7 billion) in conflict, massacres, genocide and crippling diseases and famines caused as a direct result of political ideologies. Alongside these ‘publicised’ instances of death we must also consider research (such as that outlined in Sheryl WuDunn’s book ‘Half the Sky’) which shows how, “….it appears that more girls have been killed in the past fifty years, precisely because they were girls, than men were killed in all the battles of the twentieth century. More girls are killed in this routine ‘gendercide’ in any one decade, than people were slaughtered in all the genocides of the twentieth century. ” It is also within this ‘civilized’ society where billions are close to forcibly excluded from participating in the economy and having a chance to live (forcing 1 in 7 people on the planet into hunger), hundreds of thousands continue to be persecuted for the colour of their skin, religious beliefs or sexual orientation and many face incarceration- indefinitely- without trial or cause. In a supposedly liberal ‘west’ the situation is no less dire (albeit seemingly less visible) as millions struggle to gain equality to participate in economic, social and democratic processes- while hundreds of thousands more get marginalised from a society which has the capacity to support them.
Aside from the obvious abhorrence we may feel towards such events, there is a deeper sense of ethical failing which occurs in our minds- a perceived sense of ‘injustice’- manifest our observation that the individual(s) affected in each circumstance have come to a fate (whether fatal or not) which is not ‘fair’. Justice, therefore, rather than being an act of benevolence (as it is often perceived) or a rule (as it is often misinterpreted) is part of the underlying moral framework of our society which allows us, as a species, to maintain stable social unity while being able to engage in individual activities and pursuits. “Perhaps the greatest obstacle to achieving this aim..” observed Kurt Baier in his 1989 essay ‘Justice and the Aims of Political Philosophy‘, “…is our disagreement about how certain familiar values, such as freedom, equality, and efficiency are to be understood, mutually accommodated and realized….” In the past century, the world population has grown from around a billion in 1804, to more than 6.5 billion now- with another 3.5 billion set to join us well-within our children’s lifetimes. It is with this in mind, that we must consider the implications of a society which carries injustice at every strata, in every form.
In this article, we exclusively talk to four of the world’s leading experts on Justice. The Rt. Hon Lord Woolf of Barnes (Lord Chief Justice of England and Wales from 2000-2005), Susan Herman (President of the American Civil Liberties Union ‘ACLU’), Professor David Kaye (UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression) and Widney Brown (Director, Physicians for Human Rights). We look at the very concept of justice itself, and explore issues ranging from the concept of democracy itself to free speech, civil liberties, war and terrorism, human rights, social justice and more.
Lord Woolf was called to the Bar in 1955 and from 1973-74 was Junior Counsel for the Inland Revenue. During this time he represented the Revenue in the majority of their leading cases before the High Court, Court of Appeal and the House of Lords. In 1974 Lord Woolf was appointed first Treasury Counsel (Common Law) a post which he held for five years. During this time he appeared in a great many of the most important cases of the period on behalf of the Government. In addition he acted as an amicus curiae where the courts required assistance for difficult points of law or policy.
Lord Woolf was appointed to the Queen’s Bench Division of the High Court of Justice in 1979, as Lord Justice of Appeal in 1986 and a Lord of Appeal in Ordinary in 1992. Between 1996 and 2000 he held the position of Master of the Rolls and in 2000 was appointed Lord Chief Justice of England and Wales a position from which he retired in September 2005. In 2003, Lord Woolf was appointed a non permanent judge of the Court of Final Appeal of Hong Kong, acting as the overseas judge in that Court, an appointment which he continues to hold. Lord Woolf is president of the Civil and Commercial Court for Qatar. He was named in The Times Law 100 2009 listing the most influential lawyers in Britain.
Susan N. Herman was elected President of the American Civil Liberties Union in October 2008, after having served on the ACLU National Board of Directors for twenty years, as a member of the Executive Committee for sixteen years, and as General Counsel for ten years. Herman holds a chair as Centennial Professor of Law at Brooklyn Law School, where she currently teaches courses in Constitutional Law and Criminal Procedure, and seminars on Law and Literature, and Terrorism and Civil Liberties. She writes extensively on constitutional and criminal procedure topics for scholarly and other publications, ranging from law reviews and books to periodicals and on-line publications.
Herman received a B.A. from Barnard College as a philosophy major, and a J.D. from New York University School of Law, where she was a Note and Comment Editor on the N.Y.U. Law Review. Before entering teaching, Professor Herman was Pro Se Law Clerk for the United States Court of Appeals for the Second Circuit, and Staff Attorney and then Associate Director of Prisoners’ Legal Services of New York.
David Kaye is Clinical Professor of Law and Director of the International Justice Clinic at The University of California (Irvine) School of Law. He is also UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
Prof. Kaye’s scholarship and teaching focus on public international law, especially international human rights law, international humanitarian law, accountability for violations of human rights, and the law governing the use of force. He is just as interested in efforts to translate international law—especially human rights law—in a domestic American context, whether in courts, legislatures, or the executive branches of government, at federal and state levels.
Prof. Kaye has been appointed by the UN Human Rights Council to serve as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, effective August 1, 2014, for three years. With the assistance of students in his International Justice Clinic, Prof. Kaye will report to the UN on some of the key issues in free expression worldwide, such as the safety of journalists, severe restrictions placed on Internet access and usage, the chilling effects of electronic surveillance, hate speech and incitement to violence.
Prof. Kaye began his legal career with the U.S. State Department, handling such subjects as international claims, nuclear nonproliferation, international humanitarian law, and accountability for war crimes, crimes against humanity and genocide. Prior to joining UC Irvine, he co-founded UCLA’s International Human Rights Program and founded its International Justice Clinic, working on projects dealing with accountability for international crimes around the world. In addition to his scholarship and teaching, Professor Kaye is an active member of the American Society of International Law, for which he served on its Executive Council and Executive Committee, and is a member of the Council on Foreign Relations. He has also published essays and opinion pieces in mainstream publications such as Foreign Affairs, Foreign Policy, The New York Times, and The Los Angeles Times.
Widney Brown oversees Physicians For Human Rights (PHR) research, investigations, monitoring and evaluation, documentation, advocacy, and capacity-building projects.
PHR teams exposed the use of chemical weapons against civilians in Iraq and carried out historic exhumations of mass graves in Bosnia and Rwanda for international tribunals. During the past decade, these teams have also provided evidence for criminal investigations into torture and extrajudicial executions in numerous countries – including Colombia, Honduras, Libya, Mexico, Peru, and Sierra Leone – to ensure accountability for serious human rights violations and mass atrocities. PHR has also been at the forefront in developing standards for documentation, including playing the lead role in creating the Istanbul Protocol – the recognized international standard for documenting torture and ill-treatment. PHR’s forensic and research expertise is sought by governments, United Nations agencies, international and national courts, and other human rights organizations. In 1997, PHR shared the Nobel Peace Prize for medically documenting landmine injuries and serving as a leader in the International Campaign to Ban Landmines.
Prior to joining PHR, Brown served as the senior director for international law and policy at Amnesty International‘s Secretariat in London. She was responsible for Amnesty International’s strategic litigation program, standard-setting initiatives, international justice program, advocacy in global and regional intergovernmental settings, and policy development.
Before Amnesty International, Brown worked at Human Rights Watch for nine years during which time she served in a variety of roles, including as deputy program director, where she was responsible for overseeing the work of both regional and thematic programs.
Brown has extensive experience doing research and advocacy on a range of human rights issues, including sexual violence in armed conflict and violations in pre-trial detention and prisons, as well as on the promotion of international justice.
The Concepts of Law & Justice
Q: What is the role and purpose of law in a society?
[Lord Woolf] It is there to establish a framework in which the society works; and lay down, first of all, the parameters which form this framework- and secondly provide objective and fair ways of determining whether these have been contravened- and if so? what should be done.
[Professor David Kaye] To define law would probably need a few weeks!
From my perspective, there are multiple purposes of law. One is to provide a framework of protection for those at risk, such as minorities and others. Another would be a statement of what a society values in terms of the behaviour of its members. Another would be to establish fundamental rules of the road for governance, and to assign authorities within governments. Human rights law expects that governments are organised around law, and that asserts a predictability for people in society in terms of what the government can, will and should do.
[Widney Brown] I think it has two roles. One is that it defines the social contract between the people who are governed and the government itself by making clear about what is acceptable, what is unacceptable, and what the consequences are if you do something unacceptable. The second aspect is actually to create a level of certainty in society- that if you don’t have law, people can do the same thing three different times, and have three different consequences- but when you have law, it enables people to understand that ‘this is something I can do freely, this is acceptable’ or ‘this is something I can’t do, and if I do this, there will be consequences’. But that certainty is the opposite of the arbitrariness of, for example, corruption- which undermines law. Laws do reflect societal values by and large. The interesting thing about law is that many of its elements are derived from early religious law. Long before you had nation states or even empires, much of what was adjudicated in people’s lives was adjudicated through religious institutions and leaders. What’s interesting is that you started having empires and kings come into being post-dark-ages who weren’t interested in adjudicating land disputes, marriages, etc but they were concerned about the crimes of treason and taxation. Then, of course, when they realised how much power religious leaders had by making such determination in people’s lives- they reached out and started bringing law under the control of the state or the kingdom. They didn’t write those laws ‘de novo’ they pulled them in. Laws are often, therefore, reflections of old values- often religiously driven values as well as reflecting the interest of the state and its authority.
[Susan Herman] The United States constitution is my primary model in terms of being a source of law, and giving us a framework for how to measure it in terms of justice. Starting with the US constitution, James Madison– who was one of the principal people involved in setting up our constitution, once said “if all men were angels, there would be no need for laws, much less for government.” I think that is a very good place to start, as the meaning of law is that all men are not angels. I think the other assumption underlying the fact that we need law in society- is that not all men are truly empathetic. If everyone truly understood the harm they would be doing to others if they just followed their own self interest and instinct- perhaps we would not need laws. Unfortunately, that’s not true. I sometimes say, when talking on the US constitution and our views on rights and equality that the concept of having individual rights and equality is the golden rule. The idea that we should not be doing, to other people, what we would not have done to ourselves. I think my primary concept of law, therefore, is more utilitarian- akin to J. S. Mill who once said, in effect “my liberty stops at your nose.” I think the purpose of law is to dissuade people from doing harm to others, and to do so in part by punishing them if they do harm others. There’s also a concept that law must provide a statement of the common moral principles of society – that is certainly true to a great extent- through law we express who we are and who we want to be as a society.
Because of my focus on the constitution, however- I worry about law being taken as an opportunity for a majority of people to inculcate into an entire society, and to freeze their own concept of what is a moral life. When we talk about laws such as not killing people or stealing their things, we can all agree on those. When you start getting into other kinds of laws- such as those limiting their choice of lifestyle, or limiting their ability to speak about things that are unpopular. there I am very resistant to the idea that a law can just restate a majority morality.
Q: How do you define justice? and how does one decide what is and isn’t Just?
[Professor David Kaye] Philosophers have debated justice for centuries, and we can think of it in substantive and procedural terms.
Substantively, societies define what justice means for themselves. ‘The international community’ has substantively defined what justice means by discussing what is allowable and prohibited in terms of government relationship with individuals. It’s done that within freedom of expression, and also within the Universal Declaration of Human Rights; looking at physical autonomy, thought, conscience, political participation and so forth.
The idea of rule of law, and why it’s so essential in assuring justice, is somewhat procedural. We have to ensure we have a set of rules that are permanent- that identify to individuals and government how individuals can assert their claims and how governments can assert their prerogatives. If you have procedural rules that establish that, with substantive rules too – you can enable individuals to enjoy a sense of justice. This is the essential foundational framework that you need for any functioning society.
[Lord Woolf] Fundamental to justice is the rule of law. Part of that rule of law is that everybody should be subject to it- so one starts off with what the laws require (the framework), and then, within that legal framework, there are issues where balances have to be struck between conflicting values and when that happens? the role of Judge is a more broader one. To simplify that, his role in many situations is to interpret law. He also, where there is a dispute as to what the factual situation is, is tasked with returning those facts! Not always though- sometimes there is another body who is given the job of determining the facts and he must be loyal to those facts as determined. At the end of the process, though, there can be a need to weigh up the conflicting values and there- the judge should take into account the values of a given society and the other moral and ethical considerations that would bring.
[Widney Brown] I think justice, at its best, what it should be is a system that provides for a fundamental fairness in society. That we live in a place where people are treated equally, that nobody is marginalised and excluded. The obvious way that happens is when groups of people are excluded because of something like their race, religion, or immigration status. A just society would say that it is not ok to privilege some while marginalising and exploiting others. The other thing that justice serves is, again, not just mediating between people- but mediating the impact of institutions on people. Another example where we don’t see enough justice is controlling the actions of corporations. One of the things we look at, at Amnesty International, are transnational corporations in the extractive industries- who may be incorporated in the UK but are doing horrific damage in, say, the Niger Delta but without accountability- leading to economic exploitation which is fundamentally unfair. We can contrast that with the BP oil spill in the US where the laws then worked to provide justice and remedy for the people of the United States. So the same catastrophe- one in the US and one in Nigeria- but the justice system only worked in one place, so we have a fundamental unfairness there.
[Susan Herman] I have two answers to this. The first looks at the central point of the constitution which is that law- where it is democratically created- is not always just and therefore you need superseding principals of justice which have to do with things such as individual rights such lifestyle, morality, religion, self expression (areas where people should be able to make their own decisions). The first thing the constitution does to define justice is to say that the majority, who wish to have their will done in law, cannot impose their viewpoints on a minority of people- that is the concept of individual rights. I think the second thing the constitution says- which is also one of the minimum requirements of a just society- is the concept of equal protection of the laws. There are many countries where if you look on the books- the laws are really admirable. If the laws, however, are not enforced… or not enforced equally (so people are punished differently depending on who they are, or may get the advantage of laws differently depending on who they are)- that is not a just society. That’s one place where justice has more requirements than law. One thing notable about the American experience is that our original constitution said nothing about equality and equal protection of the laws. It wasn’t until after the civil war, when we had a reconstruction-era including the 14th amendment to the constitution, that something akin to equal protection of the laws was seen as something a constitution should provide. It was late in coming, but we have it there now.
One of my favourite quotes is by Solon, considered to be the ‘Lawmaker of Athens’ – one of the people whom Plutarch‘s writings cover. He was once asked what city he thought was well governed. What he said was, “…that city were those who have not been injured take up the cause of one who has, and prosecute those cases earnestly as if the wrong had been done to themselves.” That to me relates to the golden rule, and the rule of empathy. Part of justice is to create a legal system where we require that the injury done to other people is as important as the injury done to ourselves. In talking about the attributes of the United States constitution- I feel the constitution does recognise many of the critically important elements of justice- both the ability of individuals to make their own decisions, and the concept of equal protection of the laws. The third important concept is that of ‘due process’ – how laws are applied to an individual. Whether there has been an appropriate hearing, for example, to find out the facts in a criminal hearing. So we see that liberty and equal protection of the laws are important in a just society.
Q: What is the role of law in the concept of democracy?
[Lord Woolf] The law also provides the framework in which a democracy works. Democracy is, to those who are elected by the vote, an opportunity to make laws- subject to certain safeguards. Laws are essential for democracy to work effectively as much as the concept of democracy itself is committed to the rule of law. To this extent, I would say that there are some societies that work quite well even when their democratic processes are quite weak- as long as there as there are well-established processes for upholding the rule of law. I don’t think democracy works at all well without even superficially recognising the rule of law.
For me, a terrorist organisation that is democratically elected- for example- is just as flawed as a terrorist organisation which is not elected. There are many examples of that. I see part of democracy as involving the values which are reflected by the rule of law.
[Widney Brown] To the extent that democracies are about participation of people who are governed and monitoring the relationship with those who govern, the law restrains the possibility of abuse by those in power. The second element which is equally critical, is that in a democracy, what you can find is that the rights of marginalised or minority people can be overlooked. What you have through law- through a concept of fundamental fairness- is a court and legal system which protects minorities from exclusion via what has been described as ‘the tyranny of the majority’.
[Susan Herman] A couple of weeks ago, I happened to be visiting the Gettysburg battle-field and one thing which rings in my head are the words of Abraham Lincoln, who stated that government should be, “…of the people, by the people, for the people.” That, to me, is the central idea of law in the concept of democracy. First that laws should be by the people and of the people and for the people- and when you overlay on that the concept of justice (which paradoxically is a separate concept, though it should be inseparable) that the laws are going to be fairly executed and implemented. That is the role of law in a constitutional democracy- and is a step beyond the purpose of law in society. I find that when I speak about the constitution, and some of the things the ACLU is working on- particularly in the United States- that people are surprised when I tell them that we don’t really live in a democracy. We live in a constitutional democracy. It’s not true that what the majority of people want to do can be put into law- because the constitution defines and sets aside certain principles (a-priori agreements) of who we want to be as a society. The rule of law then means that if a majority of people can get a law passed, that law is nevertheless invalid if it infringes on those fundamental principles. I think that is a very important element of justice, and I think it’s very important in terms of law not just in democracy, but in constitutional democracy. You can have a democracy that is not just, you can have laws that are not just- so the point of justice, in this context- requires something like a constitution, or something else that can take certain values or principles and states that no matter what the majority wants to do- these principles come first and trump everything else and that, to me, distinguishes between the rule of law- and the rule of a mob!
Q: Do you believe that developed nations are offering individuals adequate access to justice?
[Lord Woolf] The extent to which access to justice is given is a very good test as to the quality of the democracy to which you refer. If you regard, as I do, the rule of law as essential for a democracy to work well- then you can’t have a situation where those who allege that they have not been treated in accord of the rule of law, do not have access to justice. I think access to justice is critical to the proper working of the rule of law- and therefore, democracy.
[Widney Brown] With regards to developed countries- often the system is in place to work- whether there is political will to apply the system fairly is a larger question. We see progression in people’s access to justice and we see backlashes against that. That history of a more proactive concept of justice that actively reaches out and protects people who would otherwise be marginalised, demonised and excluded often is then followed by a period of the justice system claiming to remain neutral and failing to protect people- so it is very much an ebb and flow. There are also different definitions.
Globalisation has also changed who is most marginalised in the world in developing countries- you have influx of immigrants and migrant workers- who are treated unequally before the law, which is a real failure especially when their national origin becomes the justification for that exclusion. It is a constant struggle to make justice systems work as they should- which is precisely about promoting that fundamental fairness. Within society you also have to understand how justice is perceived. You can live in a country where justice is perceived as something which is for sale- that’s what corruption is all about. There are other places where justice has nothing to do with the court system- it is literally who carries the biggest weapon. That’s the justice that you have in, for example, the Favelas of Brazil or the streets of Mexico where it’s all about might. What we want to see is a base level of justice- where every aspect, including the criminal justice system, is made accessible to all the people within a country’s territory. There are many obstacles- some are obvious and some are not. For example, you have some countries where women are literally not able to make a report, for instance, if they are the victim of a crime- and if they are able to do that, their testimony may be weighted less in a court etcetera. So that’s a huge obstacle- but there also can be obstacles such as your ability to participate in a justice system if your language is a minority language… so the array of obstacles or barriers that people face when they seek justice through the formal system crosses many different areas.
[Susan Herman] To me, the big question mark about the American constitution is that the constitution- as drafted does not, unlike Solon, make provision for the poorer members of society. The United States constitution, certainly as interpreted, doesn’t really have any sort of protections or provisions that point in the direction of socio-economic rights, or economic justice. Another concept of equality that I find very attractive is that of John Rawls– that a just society, in addition to the preservation level (making sure that people are entitled to make their own decisions in places where they are entitled to do so without harming anyone else- and that they are being treated fairly and equally) Rawls conceived that people have just wants, and that a just society should really be taking care of people and doing something more affirmative. That is something that the United States constitution has not been interpreted to do. I think our Supreme Court has gone overboard in saying that the States have no affirmative obligations to help people- and that the constitution is really just a negative restriction on what government actors can do- and there are many examples of where that comes up. That is, in some ways, unfortunate- but is something that is endemic within American constitutional culture- that the constitution is there to preserve a base-line, a status-quo that leaves everybody in the same place socio-economically.
Looking at access to justice. Under the United States constitution we have a concept of due-process. We also have a concept, under the first amendment about access to the courts, transparency into what the courts are doing, and the guarantee of the right of petition to redress grievances. These are all things that are constitutional principles and offer everyone the opportunity to challenge if a law is un-constitutional or is being unjustly applied. In practice, the great flaw of our constitution is that it seems to be protecting a base-line without recognising what that baseline is. People who are on the fringes and margins often have a very difficult time in putting those constitutional opportunities to practice and in some ways do not have as much access to justice as more affluent people. Let’s take the example of ‘poor people’. The Supreme Court made one very important decision in 1963 in a case called Gideon Vs. Wainwright. They held that the sixth amendment right to counsel– that everyone has the right to counsel in criminal proceedings- meant that if you were too poor to afford a lawyer, the state must pay for a lawyer to represent you. That’s very important and is one of the only examples where the Supreme Court has held that the constitution requires the state to affirmatively do something. That means that in a criminal case, if a poor person is charged, the state does have to give them a lawyer- so they are not totally treated unequally. What this case recognised is that since the state is represented by a lawyer, if you don’t have a lawyer you don’t really have a chance to defend yourself in a criminal case. This relates to justice as ‘fairness’- it’s a due process idea, an equal protection idea- the idea that if the state is going to prosecute somebody that it’s not fair that the state uses all the resources at its disposal to target someone who has no resources- other people can afford their own lawyers, but if someone can’t the Gideon case states that the state involved will have to pay for one. There is a however…
What the state usually pays the assigned lawyers is not nearly as much as what a private lawyer could make, or an affluent person could afford to pay their lawyer, so the implementation of this principal is often a little questionable. The Gideon case doesn’t apply in non-criminal cases- so if a poor person wants to bring a civil case, where they are not being prosecuted for a crime but want to take action against someone they think has wronged them- the courts will, under American law, make ‘some’ provision for that (they won’t require a poor person to pay large filing fees) but you have no right to counsel, so the quality of justice will be determined by how much you can pay for a lawyer to represent you.
During the 1960’s and 70’s, the Warren Court was very interested in principles of justice and equality- this was also a time when there were a lot of legal services organisations being started and I think the United States really came to an agreement to provide more justice for poor people. Many of the legal service and legal aid organisations started then, still survive- but again, the quantity of counsel that you do not have to pay for- is much less than the need. The beginning of the Supreme Court really taking on this job- and committing to justice and equality- was when Earl Warren took over as Chief Justice. His first and most famous case was Brown Vs. Board of Education– where he took on racial segregation in public schools. Justice Warren and the people on the court at that time were truly extraordinary and had a true commitment to due-process and equal protection. They had a tremendous empathy for the poor, for prisoners, for racial minorities and those who were marginalised. They were really setting-up law in a way that it would be implemented with a much fuller understanding of our constitutional principles.
Unfortunately, since the 1970’s there’s been a lot of backlash- and the Supreme Court has been cutting back on a lot of the decisions of the Warren Court which means that we have less access to the Courts report for poor people and prisoners. There has been a tremendous backlash against prison litigation. Congress passed ‘The Prison Litigation Reform Act’ to try and close the doors- and they have also been quite restrictive on the number of cases that prisoners are allowed to bring. There are still opportunities-and there was a case just this term where prisoners in California won a really major victory on the issue of overcrowding in the Californian prison system. To give you some background, Californian prisons were running at 200% of capacity. After years of litigation, the Courts finally ordered- quite controversially- that the prison population be reduced to 137.5%. It’s a victory…. but hard fought. Poor people and prisoners do, indeed, have more difficulty in receiving justice and part of this is that the constitution was originally designed to preserve the rights, opportunities and property of more affluent male white members of society. The post-civil-war reconstruction did change all of that, but the Supreme Court has consistently under-interpreted those amendments as not really changing things that much. So I think we have issues in the United States about the equality of access to justice.
Q: Why are freedom of expression and opinion so important?
[Professor David Kaye] It’s possible to look at freedom of opinion and expression as both substantive and procedural.
On the procedural side; it’s very difficult to enjoy all sorts of human and civil rights if you don’t have the process of freedom of expression- that is the ability to seek, receive and impart information. Freedom of expression is not unique, but it is unusual that it is substantive and procedural at the same time. It allows individual access to information, in order to make substantive decisions that are important in people’s lives.
At the same time, there is a substantive core to freedom of opinion and expression. The core human rights instrument in this regard is the International Covenant on Civil and Political Rights. In article 19, paragraph 1, it states that everyone is allowed to hold opinions without interference. The without interference part is both procedural and substantive. Paragraph 2 then states that everyone enjoys the right to seek, receive and impart information and ideas of all kinds, whatever the medium and regardless of frontiers.
The substantive and procedural aspects are both critical to functional democracies. You need to be able to hold an opinion, have conscience and express those opinions so long as they don’t involve incitement to violence and hostility.
Unfortunately, I can give you a long list of examples where these freedoms are undermined around the world.
Sedition laws exist around the world. These are laws that say that if you oppose the government, and try to subvert it, you could be prosecuted criminally. While it’s easy to understand why you want to preclude people from raising arms against a government, it’s harder to justify restricting opinions or expression of opinions in democratic society – yet we still see rules that prohibit sedition in places like Malaysia. Around the world, we also see prohibitions on insulting government officials; these laws come in different flavours – sometimes they’re referred to as ‘criminal defamation’ or in the case of Thailand, ‘Lèse majesté’ laws that prohibit insulting the King.
We also see laws relating to blasphemy or apostasy, meaning that governments are able to intervene in deciding what people are allowed to believe as a religion, and what they can express in respect to religious feelings. These laws are deeply problematic, and most often used against minorities rather than to protect individuals against any kind of harm.
Q: To what extent do laws surrounding free-speech, libel, defamation, censorship and their instruments protect and/or subvert public interests?
[Lord Woolf] These questions are not capable of easy solutions. The values to which we refer here are important features of a democracy in accord with the rule of law. There are going to be, from time to time, questions of tension- and it is extremely important that within the rule of law there should be an impartial and efficient justice system. The justice system has the task of upholding the rule of law. There are some very disturbing features of what has been happening recently, but from my vantage point- critical is that there should be respect for those who have the task of administering the justice system (we are referring to judges here) and it is unwise for another principal (if not the principal) player in a democracy to seek to devalue the other.
[Widney Brown] Being a human rights activist, I am an absolute proponent of free speech. I think rigorous discourse and the ability to express your opinion and have that opinion challenged, and to debate ideas, is absolutely critical in a society that is open, that is tolerant, and that grows. We need to have discussions, we need to have open debates, we need to have respectful bit rigorous debates about ideas- that is what makes us grow as a society. What is interesting, now, is that we are seeing a push back against openness towards freedom of expression- so we see hate crimes laws, we see self-censorship in the media because now what you publish can go viral and suddenly you are worried about the consequences of your communication even though it is legitimate speech. I would say the only permissible limit on speech would be if you are actually inciting somebody to violence. That’s not acceptable. There was the classic US case of ‘you cannot yell fire in a crowded theatre‘ but the permissible limits are very narrow and they should be narrow- and we should use the concerns that people have about what happens when speech goes beyond what used to be community boundaries. You had a community newspapers, a community radio-station- then it became national- and now we truly have not just an international formal media, but totally globalised communications- and how we deal with that respectfully without censorship is important.
[Susan Herman] Looking at the constitution, the first amendment is first for a reason in our Bill of Rights. The idea is that free-speech is the engine of democracy. Unless people can express different points of view and have discussions without having the government censor what they have to say, or privilege some points of view over others we don’t have a democracy.
The ACLU has been very much opposed to all forms censorship and to more extreme libel and defamation laws which would prevent people from speaking openly. Free-speech, we believe, promotes the public interest. Internationally, although there are many contentious discussions about human rights I believe there are some universal principals. One thing I’ve been wondering about is the extent to which some of the first amendment assumptions of the United States are really universally applicable to all countries. To give you some examples- the principle that people should be allowed to speak, without censorship or coercion, is a universal principal and universal human right. The details come where you make exceptions to that principal or how you define itself. In Holland, a couple of years ago, there was an MP named Geert Wilders who was being prosecuted for saying nasty things about Muslims. There was a Dutch reporter who was in New York at the time- he was covering the anniversary of Henry Hudson sailing up the Hudson river- and he came to interview me about the Wilders issue assuming that Americans, and the ACLU may have a different point of view about whether it’s OK to prosecute somebody for hate speech. My view is that free-speech means free-speech and that means even if people want to say things that are unpopular or hurtful to others I think there is a cost in limiting that speech. In the United States, our belief is that the antidote to bad speech is more speech. I will tell you one of my favourite examples, which is also an example of an occasion where the ACLU can become unpopular (If you are going to defend free speech, the people that are saying things that are popular- don’t need to be defended). The test cases are all cases of people who are saying things that their neighbour finds unacceptable. We find ourselves very often representing people that we totally disagree with like Nazi’s, members of the Klu Klux Klan and so forth- because that’s where the principle has to be established that we can’t rule out speech on the basis of its content just because some people won’t like to hear it. There was a parade that the Klu Klux Klan did in New York City a few years back. Not very many klanspeople were left who would march in New York City so they really looked rather bedraggled- I think there were about forty people parading. Lining the parade route, however, were thousands of people talking back to them and letting them know what they thought of their stupid ideas! That’s a classic first-amendment model in the United States- that the antidote to bad speech is more speech.
Our assumption is that it’s a good thing to allow people to say nasty things- so that those nasty things don’t fester, you can bring them out into the light and answer them. We think, in the long run, that’s in the Public interest. When I look at some of the laws they have in Europe, there are a number of countries that have holocaust denial laws (you are, in effect, not allowed to say that the holocaust never happened) And sometimes I really wonder whether the American concept of freedom of speech is really fitting in all examples and countries in the same way. Maybe the different history, and different developmental stages do affect what are and are not appropriate exceptions. Our first amendment view is that the long term public interest is best served by letting the people speak, and letting there be dialogue and hoping that the good ideas will drive out the bad- in the marketplace of ideas.
Q: To what extent is it just for nations and other bodies to keep secrets from the public, and what is your view of organisations such as wikileaks?
[Lord Woolf] Firstly it is important to ensure that justice, wherever possible, is open and transparent. Therefore the use of any processes which don’t accord with this paramount principal, if they can be justified at all, have to be justified on an individual basis. This results in a special situation which warrants, on a rare occasion, the transgression of this principal. It is absolutely vital that judges, who have the responsibility of deciding whether such a situation exists, operate their jurisdiction in that regard- in a conservative way, and in a way which gives due paramouncy to the normal principles of open justice. If, however, there are situations where they feel it is justified to exceptionally cross the threshold from the transparent to the non-transparent- there needs to be confidence in the judges, who know all the facts to rule the justification. Why I object to those who seek to undermine the normal-process is that they feel and act purporting to know better than those who know the facts and the justifications therein- so to speak, they are taking the law into their own hands. Society can’t work that way. Society has to have confidence in its judges if they are going to have an effective justice system. If they choose to thwart what judges have decided without using established mechanisms- mainly appealing- they are going to undermine the institutions which they thwart. In recent years, public confidence in their leadership has been chipped away at in this regard. That is often, actually, the consequence of a campaign which does not have a true factual basis.
[Widney Brown] The statement of principal would be that there is an absolute assumption of transparency- and that secrecy is not permissible – particularly by governments, but even by other entities. The Trafigura case is interesting. If we go back to the idea of corporations in the extractive industries, there are countries in which the concession agreement between the government and an oil company are actually secret and cannot be published- well that gives you no ability to know what is happening to the funds that are coming in as a result of that concession, what corruption is happening etcetera. The presumption should be that states and governments should be transparent and information should be in the public domain. There is, of course, a role for confidentiality- you can’t have diplomatic negotiations that deal with crises without some level of confidentiality. Confidentiality is different to secrecy- because as soon as the issue is resolved, what was once confidential should be released into the public domain. There are limited areas where secrecy may be appropriate- that usually goes to issues around security- for instance, if you have intelligence operatives working in another country, revealing their names could put them and other people at risk. So there are narrow areas where I think secrecy is legitimate, so long as it is not being used to cover-up illegal acts, crimes under international law, torture, things like that- committed by the government.
Wikileaks was a game-changer. What happened with Wikileaks was that it took the area of control of information that governments had, even governments that defend freedom of information largely did that with the knowledge that they could control it. Wikileaks was one of the first times that they started understanding that in the world that we have now, where content and information are no longer restricted to pieces of paper- that they had lost control over access and control of information. This is an ongoing battle, and we will see this battle going back and forth for years. This was one of the first times that governments were truly challenged. What they hated was two things. The US government in particular hated that what was revealed showed possible war-crimes and criminal behaviour by, for instance, US troops- which was exposed and absolutely confirmed. As Amnesty, we had often documented these cases and put them in the public domain, and governments would come back and say, “your facts are wrong, you don’t know what you’re talking about.” It was quite vindicating to realise that not only did we have it right, but their denial was based on lies because they had the information that confirmed our report. So that is the first point, that they are using secrecy laws to cover up their bad acts- and that is never permissible. The second level is, of course, exposure of hypocrisy. That wasn’t just the US government, but governments around the world. We realised the levels of duplicity and hypocrisy which drive foreign policy.
[Susan Herman] I just wrote a book on what impact the War on Terror has on ordinary citizens and in that book, I quoted Elaine Scarry– who teaches English at Harvard. She described how the problem with the Patriot Act (passed after 9/11 to give the Government more rights and powers) is that it inverts the conditions of democracy- because it makes what the people say transparent (the government can conduct surveillance and spy on everyone) while what the government does is secret. Either of those alone would be seriously harmful to democracy, but in unison they also cut-off the avenues of repair.
In terms of nations and other bodies keeping secrets, here too we have a principle which is very important- the idea that in a democracy, you have to have transparency and accountability otherwise if the people do not know what the government is doing, then the government is not of the people, by the people and for the people. That’s how you risk tyranny and a government going off in the wrong direction. One of the developments which the ACLU has used to great effect recently is the ‘Freedom of Information Act‘. Under that law, government records are presumptively open. So if somebody says that they’d like to see what the government has in their file on me – or I’d like to see what the office of legal counsel actually wrote about their definitions of torture… what happens is that person can go to court and get a judge to mediate to decide whether or not that information is covered by one of the exceptions to the Freedom of Information Act- because, of course, there has to be exceptions. Nobody argues that the government has to publish in the newspaper where they are sending the troops- of course there are some things that do have to remain secret. The freedom of information act makes a category of things that have to remain secret and then a neutral judge mediates between the individual and the government officials and decides who has the better argument. In that framework, we think there should be a heavy thumb in favour of transparency- which leads to accountability. Once you see what government officials do, you can decide whether to vote for them again, or what you think of their conduct. It is a tremendous problem when there is a lack of accountability.
The WikiLeaks situation is interesting. I’m a little bit on both sides of this. On the one hand- it’s a great thing that the American public knows more about how its government is operating, but on the other hand there are places where it is appropriate for the government to withhold information- like troop movements. The idea that any individual person can be the arbiter of where that’s true, and where that isn’t that’s frightening. I would rather have neutral judges, under the Freedom of Information Act, who have no stake in the outcome personally, making those decisions than some random individuals who are able to steal and publish secrets. We don’t think that the press should be punished for publishing secrets. We supported the New York Times when they published the Pentagon papers, for example. I think that it is not unacceptable to tell individuals that they cannot decide for themselves on which government secrets should be published- and to therefore punish individuals who steal things that really do need to be kept secret.
War, Interventions & Global-Issues
Q: How does a nation decide whether a war or intervention is legal and just?
[Lord Woolf] We have got institutions who are charged with working internationally. They may be imperfect, and we have to work to improve them. We should not, because they are imperfect, fail to make full use of them. One thing about recent interventions into, say- Libya is that everybody has been talking as though the support of UN resolutions are critical- that wasn’t quite where we got to in Iraq. Imperfect as it may be, we do have international law- but it is difficult to enforce, and suffers from uncertainty. We also have international institutions including the new international criminal court- of which the same can be said. We must do the best we can with those. They are imperfect, capable of being subverted and sometimes appear partial.
Looking at issues such as sanctions– I think that we have to work with the institutions we have, and take their decisions and views very much into account. We have to work with principles of public international law as far as they are developed at this stage and continue to move towards a comprehensive principal of public international law- and greater authority for the institutions (including being more supportive of them). We can debate their shortcomings but that in turn must result in improvements- but we are ill advised to ignore them. They may be imperfect, but with all their imperfections- they are better than the alternative of not having them!
[Widney Brown] The question of whether a war is just is a long contested debate. Interestingly, last June in Kampala, for the International Criminal Court they adopted a definition of “a crime of aggression” meaning that “a crime of aggression” is now within the jurisdiction of the court. It is extremely controversial, even though everyone recognises that when the crime of aggression is started and somebody starts a war- invades a country- for no justification whatsoever- that every harm that is a result of that invasion is, itself, illegal. Whereas, if it was a just war then the same actions might not be illegal. It is the culmination of so much harm which is illegal, and that makes deciding whether a war is legal or not so charged. I’m not going to try and give a synopsis of tonnes of legal argument, but there should be a presumption against war- that governments should not invade another governments territory unless there is a truly legitimate and compelling reason. Generally that is only deemed acceptable when the UN security council, under its chapter 7 responsibilities to assure peace and security, deem it necessary.
Q: What is the purpose of human rights law? has it been effective in its application? does it present or face any challenges?
[Lord Woolf] The purpose of human rights law is to identify ‘fundamental rights’. This, however, is a preliminary step to ensuring those rights are upheld. The problem is that there are those who are happy to climb firmly onto the bandwagon of human-rights when they feel that they are supporting their view- but they do so by being selective as to the rights they will support. For example they will support some rights such as freedom of speech but ignore other rights- such as the right to privacy. You simply can’t do that- society must operate in the better spirit of human rights or not at all. You can’t be selective as to which rights you wish to take advantage of.
[Widney Brown] Human rights law has made a remarkable difference to people’s lives. Amnesty international just celebrated its fiftieth anniversary. In 1961 none of the architecture of human rights was in place. You had the universal declaration of 1948, but the treaties that grew out of the universal declaration, the treaty bodies that support that, human rights courts and institutions- all that is architecture that spurred out of the idea that there are universal standards that ensure people’s ability to live with dignity and be treated equally- again it comes back to that concept of fundamental fairness. What you now have are standards that are incredibly important. As with all laws, of course they are breached.
What we struggle with are two different elements of it. We struggle to see that laws are actually adopted. You have some countries where you have extremely well developed laws and jurisprudence that protect human rights and you have other countries where there is an absolute dearth of laws and no systems for enforcing those laws in a way that allow people to realise their rights, so we continue to face both challenges but if you didn’t have the laws then imagine how different the world would be. It’s really clear that torture is wrong under all circumstances. Have we won the battle? no – but does anybody really try to argue that torture is legitimate except for in the most extreme cases? no. And yet, back in 1948 torture was absolutely routine- it was routine in every police station in every country in the world. We have changed the concept of what is allowable behaviour by the state and by state actors. When we first took on the death penalty, people thought we were crazy! At that time, most countries had the death penalty. Now we are down to about fifty eight that still retain the death penalty and significantly fewer who actually execute people – so you can make a difference. We have made a difference in challenging, for instance, the idea that- for ages- it was acceptable to see that whatever happened to women was private and had nothing to do with the idea of human rights. That perception has now changed, but do women still suffer? absolutely! But do we have the laws and the systems to challenge it when they do? yes!.
Q: Do you feel, at a nation and state level, there is accountability for actions perpetrated on citizens or across borders?
[Lord Woolf] What we’ve been having to learn is that we now live in a global society and whereas national mechanisms have had generations to develop, on a global level that is not the position. Even the United States and the UK have differing views as to the precise application of the principles they hold in common as being fundamental values. The same could even be said of England and Scotland, England and Northern Ireland and so on. This is just part of reality insofar as there is nobody who is capable of regulating, globally, the same “standards” and you have to accept that at this stage of the development of society there is a need to work towards higher standard.. but we are not there yet!
[Widney Brown] This is interesting, because when we talk now- we talk about how information has become globalised and how communications have become globalised in a very instantaneous way. You can tweet something and it can go viral within hours. You can post something on a social networking site that means that people show up for a protest three hours later. On the communications assembly association and so forth, we talk about how borders have been brought down by these functions- but one of the things we are not seeing well is how much justice has become internationalised. I think it is absolutely key to the idea that eventually there will be these safe-havens for people in-power who commit crimes against their own people or against people in another country. There are three elements to the internationalisation of justice. The first one, which is very obvious, is the International Criminal Court where you now have President Bashir of Sudan with an arrest warrant against him. It hasn’t been executed, which is the bad news, but the good news is that his world is getting smaller and smaller. He is realising that there are places where if he goes, he will be arrested and the idea is becoming real that eventually there will be no safe-haven for him. There is also the concept of universal jurisdiction, and the most famous case to trigger that was the case in the UK when Pinochet was arrested when he visited the UK. The idea, quite aside from the International Criminal Court, that there are some crimes under International Law that are so serious that every country has an obligation if they have the opportunity to arrest, charge and try someone for those crimes also exists. Just recently when George W. Bush was supposed to go to Switzerland, we actually called for his arrest in Switzerland and he had to cancel his trip. We had already called the US government to investigate him. He basically wrote a book where he said, “yes, I ordered the torture of these people.”
Torture is one of those crimes where every country has the obligation, given the opportunity, to pursue prosecution of the person for that crime. So that international element- the universal jurisdiction- is another form of internationalisation. The third component that’s less well developed but is certainly getting there is the concept of extrajudicial jurisdiction. I just read recently that the US Supreme Court upheld a case against an oil company based in the US for crimes it committed somewhere in Latin America. So that whole idea that, for instance, if you are in a country where your rights are being undermined and you are the victim of a crime and your courts are unable or unwilling to claim jurisdiction over the perpetrator (be it an individual or corporation) that we can argue that states can actually reach out and claim jurisdiction in those cases- which is different to universal jurisdiction but has a long history in the US under the alien-torts claim act in which both individual people like torturers and corporations have had cases brought against them. The Trafigura case, in the UK, was an example of saying that the UK has the ability to claim jurisdiction in Cote D’Ivoire.
Looking back at World War II, it was not that we didn’t have the concept of war crimes, crimes against humanity and genocide– we had that- you can go back to the Hague conventions and such, but that you actually had justice in an international system afterwards. The problem, of course, is that it was a victors justice. Nobody looked at the USA dropping atomic bombs on Hiroshima and Nagasaki, but you still had the Nuremberg and Far East Tokyo tribunals bring perpetrators of such crimes to justice. The idea, after that, was that there would be the creation of what is now the International Criminal Court. The international law commission started drawing up plans for an international criminal court shortly after the end of the trials in Tokyo and Nuremberg- but the cold war got in the way, and so it was delayed for many years. The International Criminal Court has been a long time being born. I think it is precisely because it took such a long time to build, that it has held the concepts of universal and extra-territorial jurisdiction and began to grow up. But you need all three systems, you cannot just rely on any one and- again- it has internationalised justice in the way that nobody now thinks they can get away with murder and certainly not on the level of mass murder.
[Susan Herman] My greatest level of expertise is the actions perpetrated by the US government either on our own citizens, or citizens of other countries. There is an enormous lack of accountability since 9/11 for actions that the United States has taken. I’ll give you two examples. One is that the ACLU represented a number of people who have extremely credible cases that they were victims of torture and extraordinary rendition. We have clients like Khaled el-Masri, the German of Lebanese decent who was captured on a bus in Macedonia and was sent to a black-hole for months even though he was clearly innocent apparently due to a mistake- because his name was similar to someone else. We brought a law-suit on his behalf which was dismissed by the court on the ground of the state secrets privilege. This is a doctrine the American courts have which means that if the government comes in and states they cannot defend the lawsuit because to talk about the issues contained would compromise national security the court would have to dismiss the case. This has happened on a number of occasions. They have dismissed cases brought by ACLU clients and others against government officials who arrested them without sufficient cause, who were conducting surveillance on them. All-sorts of attempts to challenge officials and hold people responsible post 9/11 have been dismissed by the courts. There’s not a single victim of torture or extraordinary rendition who has actually got a day in court in the United States. Every single case has been dismissed on procedural grounds. A number of other cases have also been dismissed on similar grounds. The American courts, although doing a good job of insisting on some level of due-process at Guantanamo– have really not been helping to provide accountability for some of the victims of the United States’ post 9/11 excesses. There too, President Obama has been at fault. He said at one stage that we should just turn the page and as long as we just agree not to torture anyone in the future and to be more transparent, that there was no need to look back. To me, you don’t turn the page until the truth is written on it. In terms of the international view, across borders- the United States does not participate fully in international tribunals which is another issue. But the lack of accountability for government actions over the last ten years is hugely troubling. Even though we have a new president who was elected partially because the American people were dismayed at the actions of the last president- he is maintaining some of the policies and dragnets and has taken misguided positions on accountability.
Q: When faced by threats such as terrorism, how can a nation balance the need for freedom, with the need for security?
[Lord Woolf] Lines have to be drawn! We have institutions who can authoritatively draw those lines and indicate where you must not go. We have a combination of values which are paramount- for example- the value which forbids torture in any circumstances. There are no grey areas, you just don’t torture! At the same time, you have to have a protection of citizens. This is, arguably, the first role of government- to protect its citizens. So far as you can only keep that value to a limited extent- you must, using your resources, make up for any weakness in those very resources.
Looking at increased government powers in monitoring of communications- I believe that has to be the position. We live in a society where we need to curtail rights so as to be able to protect the right of our members of society. This is another area where drawing lines is important, but very difficult.
[Widney Brown] Since we’ve had the concept of human rights, which is basically a post World War II phenomenon, governments have always sought to find the political justification for why they should not be limited by human rights standards. Originally it was the cold war, so the US said that we do not really need to respect these rights as we have the threat of communism as a global threat which will over-run society, crush everything and therefore we don’t have to respect human rights. At the meantime, the Soviet Union was saying the same about capitalism etcetera, so we have always seen the attempt by governments to identify an external threat and therefore use it to hold human rights hostage. This is nothing new, the discourse we have on security versus rights- it is the latest incarnation of it- but the dynamic of governments making an external threat so they can justify undermining human rights is nothing new.
I think what is important to say here is that governments can do it somewhat effectively because the threat is real. It’s really important that we acknowledge that the threat is real. Nonetheless it is overblown and has been used by governments to make sweeping exceptions to human rights standards. One of our biggest campaigns was to close Guantanamo Bay. The detention centre violates every principal of what is allowable under human rights law. You have arbitrary unlawful detention of people, taken across borders, put in a place where they have no access to lawyers, no access to their families, they are not charged- and they are subject to torture and ill treatment. They are languishing there for years. We’ve been effective in the sense that we have got the US government to acknowledge that they need to shut down Guantanamo Bay, and if they cannot bring credible cases against detainees- those detainees must be released. If there are people there who should be brought to justice, and there are… Khalid Sheik Mohammed is there- then they need to bring them to justice. But, of course, they are caught in the complex web of contradictions they have made, but the very acknowledgement by the US government about Guantanamo Bay and other governments that have participated in particularly significant violations of human rights in the name of security is an acknowledgement that they instrumentalised a very real threat in order to give a carte blanche to their security forces.
[Susan Herman] I think the first answer is, with difficulty! Right after 9/11, people were very panicky about what had happened and the temptation was to surrender some of our fundamental principals in the hope of becoming safer. There were a number of different things which happened in the United States. People talk of Guantanamo- a headline incursion on our principles of due process. The idea that you could just lock people up indefinitely with no hearing to determine whether or not they were really enemy combatants? I think that was a tremendous deviation from due-process. And in that area, the Supreme Court was somewhat helpful, and we have had- at least- some hearings. I don’t think they are, perhaps, as careful as they should be- but it’s a start. We also gave up on a lot of liberties because of the temptation of congress and the president to set up all-sorts of dragnets, the idea that you have to do extensive surveillance and have all-sorts of information in data-banks because maybe you will be able to catch a terrorist that you would not otherwise be able to catch. And you have to therefore have criminal laws that have few defences, without much burden of proof required for the government- because maybe then you will be able to catch a terrorist you wouldn’t otherwise be able to catch. We all know, however, that when you lay out dragnets… you also catch the unintended- and the first amendment freedoms of speech, association and religion have all suffered because of the criminal laws and surveillance that we have been tempted into doing. Post 9/11 the government also became much less transparent. They developed the ‘mosaic theory‘ that any little piece of information about how we were combating terrorism, about what kind of surveillance we were doing, and how it was operating- was dangerous because if the enemy were to combine that little piece of information with other little pieces of information, that might be helpful to them because they could adapt- and therefore, the presumption was to not tell anyone anything- to keep it all secret. That lack of transparency became an enormous problem.
The ACLU started using the Freedom of Information Act- and we did have some success with the courts- there were some judges who decided that some information was not harmful, and that the American public had the right to see particular things. The power tended to flow to the executive branch, and not to the legislative branch or the courts. George W. Bush once said he was “the decider.” Under the American constitution? he is not the decider. We have three branches to run checks and balances- and they all decide the important things together. We are about to have the tenth anniversary of 9/11, and although it is understandable to me that right after 9/11- in a panic- we did change a lot of laws and went too far in the direction of giving up our freedoms because we thought we were getting increased security- which was not always true- a lot of these measures were both counterproductive and ineffective. After ten years? we should be rethinking that. There was great report done by the Eminent Jurists Panel of the International Commission of Jurists. This was chaired by Arthur Chaskalson, the former Chief Justice of the South African constitutional court and included Mary Robinson and a number of other interesting people. They spent several years visiting countries who had felt at threat of terrorism to interview people and find out how they had changed their laws in response to the threat of terrorism- and to really look at how that had gone. Their overwhelming conclusion was that in most cases, where countries have changed their laws in response to the threat of terrorism, it was a mistake.
Terrorism is not as exceptional as many people make it out to be. It is a problem of criminality primarily, and their belief was that if nations really shored up their rule of law of justice systems, that they would be better off applying that rule of law. One expert said at the time that it was not like 9/11 put us back in a state of nature where we should give up all the laws. This is why we designed our laws. We have hearings, we have courts, we have congress- because that is how we should be responding to all threats. I feel that this exceptionalism idea-that there is something so different about terrorism that all the usual laws, treaties and rights can be thrown out of the window, was very unfortunate- and I hope now, ten years later- that we may be able to re-think some more of that.
Q: What is the role of anonymity and encryption in the digital age ?
[Professor David Kaye] It’s important for people to step back and think about how our public discourse operated 20, 100 and even 500 years ago and really ask how the digital age differs from that time, and what the protections were in the ‘analogue’ age; and how those apply in the digital age.
Thinking firstly about anonymity. In the UK and USA, and in some other countries – the idea of anonymous political speech has enjoyed a pseudo-celebrated status. It was possible to publish pamphlets and anonymous columns in newspapers for a number of reasons; but mainly to ensure an idea was expressed in society, even if the idea caused the speaker some kind of physical or reputational damage. Individuals need to have the right to express themselves in a way that doesn’t undermine their own protection; and we need to ensure that ideas and information that might not be popular get out into the public. Anonymity is a tool that allows this.
There are different ways in which individuals can access anonymity online today. Tools such as the TOR network and so forth give anonymity, but governments are concerned about it for a variety of reasons. Maintaining the availability of anonymity, however, is essential.
The digital age, as remarkable and exponentially expansive as it is, makes a lot of information available to governments, and this includes identity. We need strong anonymity to protect people that might be adding to the public discourse, or who are trying to expand or develop their own ideas, knowledge and opinion; but are doing so in environments where even search causes risks.
Turning to encryption, there are a lot of arguments for why this matters in an economic and privacy sense. If we compare this to a pre-digital age where you would keep your papers or maybe your diary under lock and key, in a safe or wherever you felt you could protect it – people would need to invade your physical space to access it. We now keep all of our information including our opinions – on our laptops, or in the cloud, where people can get much more easy access to them. We often spread our ideas and opinions much more easily and accessibly through digital communications channels. In this environment, encryption is essential to provide a way whereby people can put their ideas and opinions into an electronic safe; ensuring that only those who are intended to see them, do.
As important as privacy is, encryption puts flesh on its bones. Encryption creates the private spaces for us to enjoy our freedom of expression.
Q: What is the impact of surveillance on society?
[Professor David Kaye] Generally, electronic surveillance is reducing the space for our private lives and- by it’s nature- it shapes our willingness to share information and express ourselves- both privately and publically.
Over time, and perhaps in an imperceptible way, we’ll find ourselves less willing to share information. CCTV, electronic surveillance and so forth is one element of this – but we’re allowing a sharing economy to function too. This is how Google, Facebook and Twitter operate! They depend on our willingness to share information. To their credit, a lot of these big corporate actors are reducing the amount they share with the government, but the information is still out there , and we have to think through carefully what kind of sharing economy and surveillance is acceptable to us.
In a place like the UK, but also in the USA, we see a convergence around the idea that the digital age is all about threat; the ease of terrorists and criminals to take advantage of the digital age. It’s critical to think not just about the threat aspect- which also happened with the advent of pen and paper by the way – but what we’re willing to lose when it comes to surveillance and sharing, and what are we willing to sacrifice in that respect.
The digital age is having a deep impact on society, and we’re only just thinking through what those impacts look like.
Q: How do you feel that communications and technology (including social networks) are impacting Justice?
[Lord Woolf] This is an issue which has to be discussed, and we have to hope that those who are involved in justice come together to provide international codes that these organisations will comply with should organisations involved in technology wish to be reputable.
[Widney Brown] Staying on the positives first. These are just other tools for us to work with to expose violations and crimes and getting people to support the idea that there should be justice for the victims. What is interesting, though, is that why the tool is new, the use of technology or other means of communications has a long history. I jokingly say that Amnesty International was the first global network- a group of individuals. We didn’t use Facebook, we used the international postal system to write letters to dictators asking them to release prisoners of conscience- but we did it together. As individuals we got together and said we’re going to make a difference in the world. In 1961, we started having an effective international postal system that meant you could write a letter that worked. Thousands, if not tens of thousands of prisoners of conscience have been released. Now, quite frankly, mail is sort-of ‘obsolete’ but we’re using new media to convey the same messages. The way that we use technology is to expose and to witness and to demand that actions be taken to either protect people from abuses, or ensure that they have a remedy when they suffer those abuses. There is no doubt that technology is something that we always need to use as a tool to promote rights. I want to also make a point here- there is nothing deterministic about technology. That is a mistake people make. What is happening with new digital technologies is exciting, but the technology itself is neutral meaning it can be used just as much to undermine rights as to help promote them. That goes to both thinking about how states and other powerful actors are going to bend technology to serve their good and less-than-good purposed and the need therefore which exists to drive the technologies and make the commitment to not become pawns of abusive actors. That danger is there, we saw it with Vodafone killing the cellular network in Egypt- to the hacking of Facebook accounts in Tunisia and stories that we know about internet service providers turning over information about their clients where governments demands for that information was absolutely illegitimate. Another example that we have that is less focussed on the state, is the role of hackers. One example I’m going to give is that I think Wikileaks is amazing- it’s levelled the playing field. The idea that the world is flat with regards to the economy… It flattened the earth with access to information and gave people the opportunity to get their information out there through user generated content- BUT what happened when governments lashed out at Wikileaks was that hackers went-in and because of the Julian Assange story, hacked into the prosecutor’s office in Sweden and exposed the names and identity of the two women who had put in a complaint against him. That’s hackers undermining the rights of another person. We cannot have people outside government actually using their skills as hackers to undermine or impinge on the rights of their fellow human beings.
[Susan Herman] I think that current communication technologies are having a fascinating impact as an organising tool. The experience in Egypt shows that making more information available to people, more readily really does help to expose injustice and provide methods of organising- to speak back to the government. I think that the whole presumption of our first amendment- the more speech the better- is really something that’s borne out by the use of Twitter, Facebook, etc. I think that technology also has tremendous capability to ameliorate censorship and government control of speech in places where governments have been heavy handed in trying to prioritise a particular point of view. Some of the modern technologies in communications enable people to get around government censors. I was talking to one woman, for example, who did a lot of business in China. There were a lot of things she could not access there, for example, the BBC was censored on certain issues. She did, though, have a virtual private network- and through that network, even though she was in China she could access the BBC fully and so forth. It seems to be that technology really promises to break the strangle-hold of censorship in countries where censorship has been rife and heavy-handed. I think that’s a very positive development about which we can be very optimistic and I think that communication technologies finally make government of the people, by the people and for the people much easier and more likely.
One negative about this, however, is that because information is so readily available from any individual- there has been a tremendous challenge to the traditional media and press. To the extent that the role of the freedom of the press in the United States is really changing and instead of being the province of organisations like the New York Times and Washington Post that are hierarchical and have a lot of quality control, and invest a lot in investigative journalism… I think we lose a lot when the traditional press is becoming economically challenged because individual people who want to write something on a blog (the Wikileaks model) create a tremendous problem for the rest of us in determining whether or not that information is reliable. There aren’t the filters that major newspapers have. I’m not saying the traditional news media couldn’t be fooled, but there were people whose job it was to check the accuracy of what was being published. That’s a concern- in today’s world there is the view that all information is equal regardless of whether or not it’s true. The other problem is that individual people who are publishing things on the internet don’t really have the resources to conduct investigative journalism in the way the press readily has- there has been any number of examples in the United States where enterprising reporters, supported by an organisation like a newspaper or television station, have gone out and really done investigative journalism and uncovered problems that people didn’t really know about in ways that could be tremendously influential. With the traditional press being economically challenged, they have less ability to play that role. From the point of view of the ACLU, our role is changing. We are really taking on more of that job and feeling that it is more critical for us to do investigations and write reports- not just to respond what we learn.
Q: How do you balance transparency with secrecy from a government perspective?
[Professor David Kaye] There’s a procedural and a substantive way of thinking about this.
Article 19 provides for the rights to opinion and expression, but also notes that with expression comes responsibility. It allows governments to restrict expression where provided by law, and where governments are pursuing a legitimate objective such as national security, public morals or public order. This means that restrictions need to be necessary and proportionate.
Government has to protect things such as the right to life, but has to do so according to rule of law, judicial supervision, and specific rules that are narrowly drafted and applied- meeting specific objectives. This applies to everything from freedom of expression, to government efforts to limit transparency and availability of information.
In national law around the world, we see a huge amount of over-classification of information and resistance by governments to share information and attacks leading to prosecutions on whistle-blowers and leakers. We need to consider whether those governments are really meeting the requirements of the law from a procedural and substantive standpoint.
There is an on-going struggle between government and the people as to what should legitimately be out in the public for review. It’s a shame that it’s such a struggle because governments, especially in democratic society, only exists to execute the will of the public as determined by democratic institutions. The only way that individuals can really understand the vast bureaucracy of government is to have sunshine laws, legislative oversight, to have the ability for those inside bureaucracy to call attention to waste, fraud, illegality and so on. If we don’t have those things, we’re undermining people’s right to know.
If you look at most of what’s hidden from people, it’s often for reasons of embarrassment rather than public order, national security and so on.
Q: Do we need to reconsider our human rights for the digital age?
[Professor David Kaye] The law is good. We have all the law that we need, at least internationally. If we look at Article 19; regardless of the media you use, the framers of these instruments knew that technology changes – they knew it would be other media, not just TV, newspapers and radio. The law is designed to give us principles that apply regardless of the media we are using.
The question is that in an age where so much information is so readily available to those who have access to it, how government fear of this new world of information translates to society. Governments should be seeing this as an opportunity for transparency and an opportunity to develop democratic systems and rule of law. This should enrich public discourse, it isn’t right now – but over time, I think it will.
Q: What are your fears and hopes for the next generation as they enter a digital age of freedom and expression ?
[Professor David Kaye] My fears are near term. What we see is a negative reaction, or a counter-response, to the mass availability of information and the remarkable connectedness that the online revolution has offered to us over the past 20 years.
Governments are taking advantage of the internet at a moment where so much of our information is available to government. There is a very high risk of abuse of our own personal information, and over time that could become a natural way of operating for government, and that risks locking-us in to a world where governments have an expectation to access to our information.
Framing encryption and anonymity is a response to securing our communications in such a way that we are able to hold and share opinions that we have always had throughout our history
Technologists, and technology, should give us hope. Technology will always be a step-ahead of government, and will be able to create these zones of privacy. I hope governments will understand this, and will not undermine our ability to create these private spaces for personal development, access to information, and so forth.
Over time, individuals who don’t enjoy access to the information revolution- particularly in places of extreme poverty- will also gain access to the information we have in the developed world. Information is power, and that’s especially critical in places where people have such little access to power and influence. This is a cornerstone in political participation, economic development and growth.
We can see from these insights that Justice very closely resembles the form outlined by John Rawls in his 1958 essay for ‘The Philosophical Review’ where he states, “Justice is to be understood in its customary sense as representing but one of the many virtues of social institutions, for these may he antiquated, inefficient, degrading, or any number of other things, without being unjust. Justice is not to be confused with an all inclusive vision of a good society; it is only one part of any such conception. It is important, for example, to distinguish that sense of equality which is an aspect of the concept of justice from that sense of equality which belongs to a more comprehensive social ideal. There may well be inequalities which one concedes are just, or at least not unjust, but which, nevertheless, one wishes, on other grounds, to do away with…” He continues, “…the conception of justice which I want to develop may be stated in the form of two principles as follows: first, each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all; and second, inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone’s advantage, and provided the positions and offices to which they attach, or from which they may be gained, are open to all. These principles express justice as a complex of three ideas: liberty, equality, and reward for services contributing to the common good.”(Note that where referring to a ‘person’, Rawls intends one to interpret the term depending on the circumstances. In political philosophy, this could mean an individual, nation, province, political party, business or organisation, team, religious society and so on. Rawls does, though, identify that there should be a ‘logical priority’ given to human individuals above other structures.)
We must also concede that society has grown up. We are no longer in the protracted infancy of our holocene, but in a period (popularly referred to by Nobel Prize winner Paul Crutzen) called the Anthropocene where the humanity can have an existentially positive or negative impact not just on itself, but on the entire planet. As Schweitzer noted, “…We are living to-day under the sign of the collapse of civilization. The situation has not been produced by the war; the latter is only a manifestation of it.”
It is with this in mind, that we must change our views of society- from an overly simplistic view of human nature (as has been the trend in a century of social and political sciences) to a more developed one- recognising that our profoundly conceited sense of achievement- our sense of modernity- is emergent from nothing more than ego. As Theodor Adorno (A German born sociologist and philosopher) identified, “…Human progress can be summed up as the advance from the spear to the guided missile, showing that though we have grown cleverer, we have certainly not grown wiser……”
In the theatre of Justice, this realisation is necessary to highlight the protracted differences between the ‘flat-earth’ view of society which policy makers often adopt, and the truth- that we are a society made of ever-richening and phenomenal interplays of complex social networks- supported by culture, institutions and a fractal structure of groupings from family, to friendships, colleagues to religious groups and on to nation states and the civilisation as a whole. For there to be true equilibrium in this dynamic system, the concept of ‘justice’ must be interpreted and applied holistically- society is, after all- based on the principal that social cooperation, “makes possible a better life for all than any would have in each were to live solely by his own efforts.”
John Rawls, in his ‘Theory of Justice‘ summarised this by stating, “Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of a society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by the many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is only tolerable when it is necessary to avoid an even greater injustice.”
It would be difficult for us to honestly say that our ‘modern civilisation’ obeys these tenets of having ‘equal citizenship’ as being as settled issue- and ‘rights secured by justice’ as not being the result of political bargaining or other interests.
Our society, like the adolescent we described earlier, has strength in creativity, innovation, technological and intellectual endeavour and through those has developed faculties which have lifted hundreds of millions out of poverty, and provided us (predominantly in the developed world) with economic opportunity and greater wealth than at any point in human history. This has made society ‘clever’ but the gaping injustices we see (ranging from individual children being denied education because of their gender or racial background- to illegitimate protracted global conflicts) now place us at a unique precipice in our story, where we must realise that we are ‘in this together’.
Society as Ayn Rand identified is, “…the process of setting man free from men..” and as Walter Cronkite observes- and allows me to conclude, “…there is no such thing as a little freedom. Either you are all free, or you are not free.”