Watching You Watching Us
Intelligence agencies have always been fond of watching and watching very keenly. They just watch the wrong people.
The writer is a lawyer and partner at Ijaz and Ijaz Co in Lahore saroop.ijaz@tribune.com.pk
“Every breath you take, Every move you make, Every bond you break, Every step you take, I will be watching you” is how The Police song of the 1980s begins. Thoroughly creepy and obsessive lyrics if one reflects on them. Yet, the song did quite all right, people playing it as a mellow and hollow romantic song, innumerable covers done, etc. It got to a point where the singer, Sting, had to himself say, “I think the song is very, very sinister and ugly and people have actually misinterpreted it as being a gentle, little love song.” Surveillance, security state and the talk of it might not come across as being immediately repulsive or obviously wrong. It can be accompanied by shallow melodies or harrowing warnings; passions numb the senses to the real message and the danger.
Everyone and their cousins are morally outraged at the NSA infringing privacy and the individual sphere violated, etc and rightfully so. Orwell and Kafka are making comebacks all for the wrong reason, yet again. The debate does bring to light the difficulty of maintaining absolute positions in interesting times. That debate is best left to the experts who know that particular context well. At home, there is an argument that has not really taken off. A few months ago, the Pakistan Parliament passed the “Investigation for the Fair Trial Act, 2013”. Briefly, the Act allows the State to obtain a warrant if, amongst other things, the applicant agency “has reasons to believe” that any person is “likely to be associated” with or is “beginning to get associated with” or is in the “process of beginning to plan” or “likely to plan or attempt” a schedule offence. The warrant will be issued by a High Court judge in Chambers without notice to the suspect for a period of 60 days and can be extended indefinitely. The surveillance includes the entire spectrum, audio, video, text messages, emails and has blanket provisions for all conceivable forms of surveillance. There are various other technical legal and substantive Constitutional issues; however the gist given above should give us a picture. “Every breath you take” can possibly be watched. Hat tip to an erudite Barrister Umar Mahmood Khan, I have become aware of many of these issues and nuances by recently attending an excellent presentation given by him.
Let us consider an alternative set of facts. The Pakistan State has failed to convict any high-profile terrorist for the past many years. The conviction rate is abysmally low. Confessions are retracted and witnesses resile. Investigating officers and prosecutors are murdered during trials. Terrorist sectarian organisations operate with impunity, often openly issuing warnings to the heathens. There is much more, but you get the drift. Do these facts mean that there is little room for a bleeding heart, moral absolutist position in immoral times of war? Yes, partially they do. It seems incredibly selfish and arrogant to refuse to cede any privacy when innocent human lives are at stake. I never shared the enthusiasm of my comrades in finding that life without cell phones for a few hours on Ashura, etc, was earth shattering, apocalyptic stuff. Admittedly, ad hoc and no substitute for a comprehensive counter-insurgency strategy, yet makes sense on a utilitarian calculus.
So our legal framework dealing with terrorism is deficient and inefficient and can do with a bit of the “jackboot” and a complete overhaul. The Fair Trial Act ostensibly seeks to shift the paradigm from Prosecution to Prevention, quite a sensible aim in theory. The question then becomes is the “Panopticon” proposed by the Fair Trial Act the appropriate response? No, it is not. Even if we do not have a problem with being watched (which by the way we should have at some level), there is the more fundamental problem of who is watching us? Even if the cliché of eternal vigilance is the price of liberty, etc is accepted; vigilance by whom? The intelligence agencies have always been fond of watching and watching very keenly. They just watch the wrong people and here lies the problem. Hence, the “Investigation for Fair Trial Act” is singularly the worst named piece of legislation that we have had, and the bar is already quite low.
The Fair Trial Act gives immense, even unreasonable powers to the intelligence agencies. The court granting the warrant will have no means of verifying the information provided to them and will have no alternative version because of the non notice and confidentiality provisions in the Act. All surveillance in the past has been conducted on political actors and activists. The information gathered during that vigilance was used at critical junctures required to form coalitions in “National Interest”, from the IJI to the PML-Q (politicians were exempted the initial bill but not in the Act). It is hard to accept on face value the claim that the new intrusive legislation will make our sleep more peaceful and our houses safer. Exhibit A; was our security establishment waiting for the passage of the Fair Trial Act to track down the calls made by and to Mr Ehsan ullah Ehsan when he talked to television anchors on prime time television at a not so calm yet leisurely pace; well this has to be taken with a truckload of salt and is still not palatable. Mr Usman Saifullah Kurd of the LeJ comes and goes into the Quetta Central Jail as he pleases — an establishment which has the Panopticon model in the physical sense, etc. On the other hand, the telephone and the offices of prime ministers have been bugged in the past; personal information procured illegally regarding the highest of civilian officials has been produced in courts, etc.
This is not to say that nothing can be done to change the legal framework dealing with terrorism; but simply that this is not it. The Anti-Terrorism Act 1997 has become incredibly dated, vague and in any event, was designed for a different type of terrorism. Substantive and procedural amendments are required to define acts of terror. The Courts have to become more specialised and speedy; a new specific definition of Terrorism should help. New legislation is required to institute a “witness protection programme” and more stringent laws on hate speech leading up to incitement to violence. The registration of religious organisations and madrassas needs to be regulated and scrutiny maintained to see if they act within their objects and purposes mandate. These are just a few of the reforms needed.
It is easy to argue for desperate times, desperate measure, etc. However, that argument is “ahistoric”, those traditionally and solely charged with conducting these desperate measures have displayed different priorities. And no piece of paper or “Peeping Tom” model will change that. Till the time that paradigm shift comes (which hopefully is underway); caution has to be exercised. It is difficult to maintain fundamental values and rational thought in a State of War; precisely when it is needed the most. Just because something needs to be done does not mean anything will do.
Published in The Express Tribune, June 16th, 2013.
Everyone and their cousins are morally outraged at the NSA infringing privacy and the individual sphere violated, etc and rightfully so. Orwell and Kafka are making comebacks all for the wrong reason, yet again. The debate does bring to light the difficulty of maintaining absolute positions in interesting times. That debate is best left to the experts who know that particular context well. At home, there is an argument that has not really taken off. A few months ago, the Pakistan Parliament passed the “Investigation for the Fair Trial Act, 2013”. Briefly, the Act allows the State to obtain a warrant if, amongst other things, the applicant agency “has reasons to believe” that any person is “likely to be associated” with or is “beginning to get associated with” or is in the “process of beginning to plan” or “likely to plan or attempt” a schedule offence. The warrant will be issued by a High Court judge in Chambers without notice to the suspect for a period of 60 days and can be extended indefinitely. The surveillance includes the entire spectrum, audio, video, text messages, emails and has blanket provisions for all conceivable forms of surveillance. There are various other technical legal and substantive Constitutional issues; however the gist given above should give us a picture. “Every breath you take” can possibly be watched. Hat tip to an erudite Barrister Umar Mahmood Khan, I have become aware of many of these issues and nuances by recently attending an excellent presentation given by him.
Let us consider an alternative set of facts. The Pakistan State has failed to convict any high-profile terrorist for the past many years. The conviction rate is abysmally low. Confessions are retracted and witnesses resile. Investigating officers and prosecutors are murdered during trials. Terrorist sectarian organisations operate with impunity, often openly issuing warnings to the heathens. There is much more, but you get the drift. Do these facts mean that there is little room for a bleeding heart, moral absolutist position in immoral times of war? Yes, partially they do. It seems incredibly selfish and arrogant to refuse to cede any privacy when innocent human lives are at stake. I never shared the enthusiasm of my comrades in finding that life without cell phones for a few hours on Ashura, etc, was earth shattering, apocalyptic stuff. Admittedly, ad hoc and no substitute for a comprehensive counter-insurgency strategy, yet makes sense on a utilitarian calculus.
So our legal framework dealing with terrorism is deficient and inefficient and can do with a bit of the “jackboot” and a complete overhaul. The Fair Trial Act ostensibly seeks to shift the paradigm from Prosecution to Prevention, quite a sensible aim in theory. The question then becomes is the “Panopticon” proposed by the Fair Trial Act the appropriate response? No, it is not. Even if we do not have a problem with being watched (which by the way we should have at some level), there is the more fundamental problem of who is watching us? Even if the cliché of eternal vigilance is the price of liberty, etc is accepted; vigilance by whom? The intelligence agencies have always been fond of watching and watching very keenly. They just watch the wrong people and here lies the problem. Hence, the “Investigation for Fair Trial Act” is singularly the worst named piece of legislation that we have had, and the bar is already quite low.
The Fair Trial Act gives immense, even unreasonable powers to the intelligence agencies. The court granting the warrant will have no means of verifying the information provided to them and will have no alternative version because of the non notice and confidentiality provisions in the Act. All surveillance in the past has been conducted on political actors and activists. The information gathered during that vigilance was used at critical junctures required to form coalitions in “National Interest”, from the IJI to the PML-Q (politicians were exempted the initial bill but not in the Act). It is hard to accept on face value the claim that the new intrusive legislation will make our sleep more peaceful and our houses safer. Exhibit A; was our security establishment waiting for the passage of the Fair Trial Act to track down the calls made by and to Mr Ehsan ullah Ehsan when he talked to television anchors on prime time television at a not so calm yet leisurely pace; well this has to be taken with a truckload of salt and is still not palatable. Mr Usman Saifullah Kurd of the LeJ comes and goes into the Quetta Central Jail as he pleases — an establishment which has the Panopticon model in the physical sense, etc. On the other hand, the telephone and the offices of prime ministers have been bugged in the past; personal information procured illegally regarding the highest of civilian officials has been produced in courts, etc.
This is not to say that nothing can be done to change the legal framework dealing with terrorism; but simply that this is not it. The Anti-Terrorism Act 1997 has become incredibly dated, vague and in any event, was designed for a different type of terrorism. Substantive and procedural amendments are required to define acts of terror. The Courts have to become more specialised and speedy; a new specific definition of Terrorism should help. New legislation is required to institute a “witness protection programme” and more stringent laws on hate speech leading up to incitement to violence. The registration of religious organisations and madrassas needs to be regulated and scrutiny maintained to see if they act within their objects and purposes mandate. These are just a few of the reforms needed.
It is easy to argue for desperate times, desperate measure, etc. However, that argument is “ahistoric”, those traditionally and solely charged with conducting these desperate measures have displayed different priorities. And no piece of paper or “Peeping Tom” model will change that. Till the time that paradigm shift comes (which hopefully is underway); caution has to be exercised. It is difficult to maintain fundamental values and rational thought in a State of War; precisely when it is needed the most. Just because something needs to be done does not mean anything will do.
Published in The Express Tribune, June 16th, 2013.