The March 2014 EU-US Summit in Brussels. Demotix/Olivier Vin. All rights reserved.
We are fast approaching an anniversary of first disclosures made by Edward Snowden. Even though the fundaments of our trust in democratic institutions and human rights safeguards have been shaken, political reality as seen from the European perspective remains more or less intact. What may seem even more frustrating, our understanding of the real politics behind mass surveillance programmes as revealed by Snowden remains limited.
In Poland we still don’t know whether our intelligence agencies cooperated with their US counterparts in blanket collection and exchange of data, effectively circumventing existing legal safeguards. In fact we don’t even know whether the Polish government knew about PRSIM and similar programmes: our democratically elected representatives keep avoiding any serious debate on this issue. How was that possible? Who is to blame?
Disclosures made by Edward Snowden have not led to a significant public outcry in Poland. Human rights advocates and the tech community were quite isolated in their demands for more information and more accountability. Parliamentary commissions responsible for democratic oversight in the area of national security and foreign policy didn’t bother to invite any members of the government to a hearing. Even opposition leaders that would be the first to criticise the government if there was anything they could exploit in this political spat this time remained silent.
Surprising? Not really, taking into account the history of Polish – US cooperation in security-related matters and the economic ratio behind it: regardless of what political force was in power, trade and military alliances are the only truly legitimate concerns in public debate.
Thanks to the almighty rhetoric of the ‘war on terror’, human rights issues do not even count as something that should be ‘balanced’ against or otherwise taken into account. Terrorists don’t count as human beings, after all. It’s simple: either we side with the victims or we are on the side of the murderers – this is how former PM Leszek Miller put it in a recent public debate regarding the Polish black spot which saw prisoners from Guantanamo transferred by us for torture.
It took eight years to bring a legal case against the Polish government to the European Court of Human Rights in Strasbourg and expose its role in the US secret renditions programme. What became rather obvious after a number of journalistic investigations and independent reports (e.g. Dick Marty’s report published back in 2007), is still being denied by former and present state officials across the political spectrum. Looking at the post-Snowden debate in Poland – or rather its careful avoidance – it seems evident that even if Polish intelligence and political leaders were actively involved in international mass surveillance operations, they would use exactly the same strategy of denial that paid off so well in the secret renditions case. How on earth can we prove something that was once labelled ‘top secret’?
Nevertheless, three human rights organisations – Panoptykon Foundation, Helsinki Foundation for Human Rights and Amnesty International Poland – took up the challenge. In October 2013 we filed 362 FOIA requests containing very detailed questions about Polish involvement in US mass surveillance programmes, international cooperation among intelligence agencies and political reactions to the Snowden disclosures.
No surprise: all the most relevant information has been treated as classified or simply refused on the grounds that government bodies do not have such knowledge. Simple and beautiful: just tell them that you don’t know – how could they prove that it is not exactly true if there are no documents available in the public domain? Working as a coalition we will try to prove that not all classified information deserves such status and that the government should know better than it claims before the courts. We won’t accept being fobbed off with superficial answers. But these legal fights will take years and politicians are only too aware of it.
Blatant abuse of secrecy to hide political mistakes and human rights abuses is nothing new under the sun. It has been around since liberal governments invented public security rationale as probably the most efficient tool of exercising power.
Even so, Snowden’s revelations have revealed yet another dimension of this deeply unfair game. Not only are we refused the right to keep those in power accountable, which effectively undermines what democracy should be about. We have also learnt that our elected representatives unabashedly spy on us in violation of legal standards that were written in our constitutions (even though they apparently have something to hide). This paradox is true not only for Poland: in fact, legitimising the politics of mass surveillance wouldn’t be possible in this country if it wasn’t successfully tested by much more influential governments – such as the UK or France – and white-washed by the EU.
Looking back ten years from the perspective of what we have learnt from Edward Snowden, the political rationale for introducing the obligatory retention of all telecommunication data in the European Union (such a directive was adopted in 2006) becomes very clear. The cooperation of the UK and other intelligence agencies with their US counterparts would not be possible if European states didn’t adopt what was effectively a mass surveillance scheme for all telecommunications passing through their territory.
Under the label of counter-terrorism, our governments have implemented a policy targeted at innocent citizens, whose data was stored and made available to both law enforcement and intelligence agencies without the need to prove any sort of suspicion beforehand. Outrageous? Not if justified by both national security reasons and the need to build a single market (after all surveillance costs money and there are companies that suffer unequal treatment across the EU because of that).
That type of political reasoning is successfully exploited even if there are strong legal arguments proving that it is wrong. Politicians know exactly that the vast majority of their voters are not trained to read the laws with any prospect of in-depth comprehension. This is why even sound judgments – like those made by constitutional courts and international tribunals with regard to data retention – may not be enough to stop mass surveillance schemes in the European Union.
In April the Court of Justice of the European Union ruled that the directive which introduced blanket data retention is and has always been invalid. The argument behind this judgement is the same one that human rights advocates have repeated over and over again: no surveillance scheme should be introduced without adequate legal safeguards because it does undermine our fundamental rights and freedoms. Fair enough, but very far indeed from the political reality we live in.
In the midst of the public debate triggered by his disclosures Snowden's request for asylum in Poland and a number of other EU countries was rejected. The Polish Minister of Foreign Affairs didn’t even bother to read it: on Twitter he said that Snowden’s application doesn’t fulfil the formal criteria and won’t be considered. In July, president Obama gave his speech in Berlin, focusing on the nuclear weapons used by “our enemies” in a way most probably designed to avoid any questions about mass surveillance used by his intelligence and our governments. The same month, the European Parliament started its investigation meant to check how mass surveillance programmes affect EU citizens, but simultaneously gave a green light for the new EU-US trade talks to begin.
In November, the US secretary of state, John Kerry, came on an official visit to Poland and gave no public explanations regarding the PRISM scandal. Both the Prime Minister and the Minister of Foreign Affairs admitted that this topic was discussed but refused to share any further details with their concerned citizens. In December, the Transatlantic Trade and Investment Partnership officially became the main political concern in Brussels, both European Commission and the Council announcing that “rebuilding mutual trust” is a priority. So far no serious demands for the suspension of mass surveillance programmes have been made. By taking this approach, the European Union has admitted to its share of the responsibility for whatever has happened to our rights and freedoms.
For anybody watching these developments, it takes a lot of political optimism not to share Edward Snowden's concern that his revelations won't change much in political terms: “people will know the lengths the government is going to grant themselves powers (...) but they won’t be willing to take the risks necessary to stand up and fight to change things” – as he put it in the conversation with Glenn Greenwald.
Through his disclosures we have learnt even more about the weakness of the checks and balances that were meant to keep our intelligence under control than we did about mass surveillance. Currently it takes no more than an evasive answer to a journalist or a simple, “we don’t have such information” in response to a FOIA request to escape political accountability. However, Snowden was also right when he said that at least he gave us a chance to change that, to demand more. So, will we?
Read more from our 'Joining the dots on state surveillance' series here.