Security services should not have "carte blanche"
OpenDemocracy, 5 June 2015
It seems obvious that human rights must be compromised to guarantee security in the face of armed violence. Obvious but wrong.
Myths die hard, in particular when they play on fears. One of the most common myths of recent years is that we have to forfeit some of our rights to live in safety. It might be counter-intuitive to say so but this is indeed a myth. The best way to ensure our safety is to have security services comply with the rule of law, not violate it.
The activities of such services are certainly of paramount importance to ensure our safety. They therefore require the necessary powers to carry out their operations. If their work goes unchecked, however, their operations can profoundly affect our lives. They can put us at risk of death, deprive us of our liberty, inflict torture, intrude on our private sphere, and reduce our freedom to speak and our right to receive and impart information.
‘Extraordinary renditions’, mass surveillance and extra-judicial executions are just some of the most well-known security operations which have violated human rights, without making us safer. This has happened for several reasons but one stands out: current systems of oversight of security services were and remain largely ineffective.
In Europe, states have relied on different agencies for oversight: parliamentary committees, independent oversight bodies and institutions with broader jurisdictions such as ombudspersons, data commissioners and judicial bodies. If some systems present interesting features on paper, none seems fully to guarantee a robust defence of the rule of law. In the US it took years of scandal before timid safeguards were introduced to put a check on abuses in the struggle against terrorism.
We could consider such steps as progress and in a way they are. But current discussions in a number of countries are undermining it. Take France. The Senate there has discussed this week a highly controversial bill on surveillance and is scheduled to adopt it next Tuesday. The bill was hastily introduced by the government in April to streamline the work of the security services and grant them more powers, at the expense of important safeguards.
The law would in fact permit surveillance methods which might lead to arbitrary intrusions into private lives—not only of suspects but also of persons who communicate with them, live or work in the same place or even just happen to be near them. More worryingly, these intrusive measures would be applied without any judicial authority verifying beforehand their legality, expediency and proportionality. This would give excessive powers to the executive, with clear risks of abuse.
The French case is emblematic of an underlying, fallacious reasoning among governmental authorities. They say that the fight against terrorism cannot be slowed by procedures which might compromise security operations. This might apply to certain very urgent and specific cases but it cannot justify mass surveillance or unfettered powers. Here the European Court of Human Rights has set the record straight.
A year ago the court condemned Poland for violating its human-rights obligations in relation to the conditions of detention, interrogation and transfer to the US of two terrorist suspects. It reaffirmed the principle that governments cannot bypass fundamental democratic checks and balances—not even while fighting terrorism. If a degree of secrecy is sometimes necessary, this can never be used to cloak serious human-rights violations.
This legal boundary is supported by a more empirical lesson— that forfeiting human rights in the fight against terrorism is a grave mistake, is ineffective and has far-reaching consequences. By trampling on our values, unchecked security operations breed contempt for the rule of law and play into the hands of undemocratic movements.
More, not less
If states really want to ensure our safety, they must inject more human rights into their security operations. Arguably, the most urgent measure is to ensure that security agencies operate under independent scrutiny and judicial review. Effective oversight is first of all democratic. This requires primarily the involvement of parliaments, which must be granted intrusive overseeing powers and the ability really to influence decision-making and operations.
A second requirement is prior authorisation of the most intrusive measures, including surveillance, and establishment of a body able to issue legally-binding decisions over complaints by individuals affected by security activities, with access to all intelligence-related information. Thirdly, the judiciary must be involved in the decision-making process of intrusive measures and must be free to play its ex post role to ensure accountability.
Only if these criteria are met can we ensure that what security services do does not come at the expense of human rights. Yet this will help them enjoy the necessary public support and trust indispensable to successful operations, as security leaders know.
There is no contradiction between security and human rights—they go hand in hand. Less human-rights protection means less security and vice versa. By reinforcing democratic oversight of security structures, governments would increase their credibility among the public and weaken support for anti-democratic causes. Eventually, this will make our societies safer and stronger.