The ‘art’ of limiting freedom of information

Just a few months ago, citizens across the globe were amazed to find out about the existence of two massive communications surveillance programs run by the US government. The latter’s justification for such a violation of basic privacy rights ran along predictable lines: the programs were efficient because “they prevented many terrorist attacks.” There was never any specific information regarding these terrorist actions, which obviously leaves citizens with a bitter feeling that only increases their skepticism.

But less predictable is the response the government might give regarding the case involving Edward Snowden, the ex-NSA contractor and alleged whistleblower who told the world about these programs.

Some of the leaked documents indicate that the NSA and the British intelligence agency (GCHQ) allegedly spied on Julian Assange and WikiLeaks. In this particular case, Assange was defined as a “malicious foreign actor,” which is to say that he was classified as a threat to national security. WikiLeaks was apparently under such close surveillance that its website postings were monitored and the IP addresses of website visitors recorded. Another document describes how the United States pressured allied countries to get them to treat Julian Assange as a criminal. This is simply unacceptable in a democratic country that prizes itself on upholding the rule of law.

Article 19.2 of the United Nations Covenant on Civil and Political Rights states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Assange was defined as a “malicious foreign actor,” a threat to national security

These same fundamental rights are reflected in other regional human rights protection documents, such as: article 10 of the European Convention on Human Rights; article 13 of the Inter-American Convention on Human Rights; and article 9 of the African Charter on Human and Peoples’ Rights.

Exercising these rights may be subject to legal restrictions considered necessary to ensure respect for the rights or the reputation of others, and to protect national security, public order, public health or public morality. But just like any other restriction, these must be applied in a strict sense.

What is vitally important here is that all these legal documents regulate freedom of expression and freedom of information in the same article, as the former is the basis for the latter, and because freedom of expression is not possible without the freedom to impart and receive information.

That is to say that access to information is a necessary condition to fully exercise freedom of expression and other rights. If one is not informed, his or her opinion may still be valid but incomplete, or at least different from what it would be if this information had been made available. And this affects other areas, such as exercising the right to vote.

That is why the United Nations Human Rights Committee has stated that freedom of expression and freedom of information are of the utmost importance in any democratic society.

It is a paradox that both Assange and WikiLeaks are being treated as a threat instead of what they really are

These rights, though theoretically very deep-rooted in Western democratic societies, are the cause of much tension between the state and citizens. Generally speaking, there is a clear tendency by some governments to limit these rights. This predisposition takes shelter in a broad, often contra legem interpretation of the legal restrictions mentioned earlier.

Against this backdrop, several mechanisms have already been deployed: the best known is the “war on terror,” which provides justification for an alleged protection of national security and for a systematic violation of citizens’ rights and freedoms; these are precisely the two mechanisms used against Assange and Wikileaks.

It is a paradox that both Assange and WikiLeaks are being treated as a threat instead of what they really are: a journalist and a media outlet exercising the fundamental right of receiving and imparting information in a pure state, without editing or censorship, without partisan interests, without economic or political pressure to influence it. Perhaps this is precisely what is creating so much fear and concern: the lack of control over information that it represents.

A clear example of this was the release and distribution of a video showing a US air raid that caused the deaths of Namir Noor-Eldeen and Saeed Chmagh, two workers for the Reuters agency in Iraq. The agency unsuccessfully tried to obtain a copy of the video, which was finally released on WikiLeaks, debunking the Pentagon’s official version of events and proving that it was a raid against civilians.

And so American and British authorities are presumably investigating and spying on Julian Assange, WikiLeaks and its employees not to protect national security or to protect society from any threats, but to defend themselves from the possibility of being investigated in turn. In short, it’s all about protecting the state from its own citizens.

Are we faced with a war against freedom of expression and information?

During the proceedings against Private Manning, the prosecutor stated, in connection with the Espionage Act – an obsolete piece of legislation though still in force – that he made no difference between a source who provides information to WikiLeaks and one who does so to another media outlet such as The New York Times. In this sense, it is worth asking ourselves: are we faced with a war against freedom of expression and information? Or with some sort of tendency towards, or “art” of, limiting freedom of information? If so, and there is evidence to suggest it, we could be entering slippery terrain that we will not easily manage to cross unscathed.

The reply to all this must be firm: war against terrorism cannot in any way legitimize the prosecution of individuals who publish information about illegal or irregular practices by those in government. Nor can it justify the surveillance of journalists or media outlets, much less prosecuting them for exercising a fundamental right in a democratic society. Any such action must be fully investigated, and its instigators must be investigated as well, as they are contradicting the true meaning of the right to information and access to the same, as underscored by the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, in his general report to the General Assembly in September 2013.

Meanwhile, Julian Assange will soon have spent two years as a refugee inside the Ecuadorian embassy in London, thanks to the political asylum granted him by President Rafael Correa, who is sensitive to the human rights in question and aware of the risk Assange would run if left in US hands. This decision has placed Correa at odds with the most powerful nation in the world; meanwhile, the months keep passing by while Assange remains trapped between British isolation and silence from Swedish legal authorities, in what amounts to a flagrant violation of his rights and an official aggression against a human being that is unprecedented in recent times.

Baltasar Garzón is a lawyer.