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The Illusion of Secueity and the Loss of Basic Rights

 

In Germany they came first for the Communists and I didn't speak up because I wasn't a communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist.  Then they came for the Catholics and I didn't speak up because I was a Protestant.  Then they came for me - and by that time, there was no one left to speak up. 

Martin Niemüller

Do you know what your rights are?  Of course you do.  Or do you?  In the past year, the rights of Danish citizens have changed.  Denmark is moving towards a security state. And in the holy name of security, political, civil and human rights are being severely restricted – and strangely, these radical changes in society seem to pass somewhat unnoticed by the great part of the Danish population. 

One year ago, a suspected criminal in Denmark had certain guarantees.  There were great limits on the ability of police to read his email and tap his phones.  He could not be coerced into becoming an informant.  He could cross-examine witnesses testifying against him and would be told of all of the evidence that exists, relevant to his case.  Today, there are no such guarantees.     

The war on terrorism was declared by the Bush administration in the aftermath of the terrorist attacks on September 11th and it resonated throughout the world, including Denmark.  As put by the former Danish prime minister: “we’re going up in gear”.  The Danish government proposed – and got passed with broad support from the Danish parliament - the so-called “anti-terror package” which involved changes in several laws. Besides the changes in the penal code, changes were also passed in the law on foreigners, the law on extradition, the law on administrative justice and on the law of consumer affairs in telecommunications.

One major change was broadening the definition of terrorism to include “frightening a population,” forcing state action, or “destabilizing basic political, constitutional, economic or societal structures.” These acts can be committed through a variety of different means, ranging from manslaughter and serious violence to disturbance of traffic security.  They are punishable with a maximum of a life sentence in prison.  Additionally, the notions of assistance to terrorism have been extended. Indirect financial support is a crime.  This means that if I donate to a group that later gives money to causes indirectly tied to the PLO, I might be tried for support of terrorism.  

The changes in immigration law include severe restrictions on granting asylum.  The consequence of this is clearly that more people can be rejected permits to stay in Denmark. When refugees are administratively decided by the intelligence to be presumed terrorist, the decision cannot be appealed. This also applies for people assumed having committed serious crime in general.  The changes has been considered “radical” by the former Danish Centre for Human Rights and “…completely out of proportion…”

The changes in the law on competition and consumers affairs on telecommunication extends the police’s ability to perform surveillance and requires internet service providers to record and monitor all communication and deliver it to the police with judicial approval.  This implies that the tasks of registration and surveillance are put in the hands of citizens, to a larger degree surveying each other – what could be could be considered a slide towards a Big Brother society.

The combinations of rights being taken away are particularly troubling when we consider law enforcement not as a perfectly altruistic institution but as a group of individuals who are capable of mistakes and corruption and are driven by internal political pressures to “get the bad guys”. In the words of Mikkel Vedby Rasmussen, researcher at the Institute for International Studies: “In a situation of warfare the principle of presumed innocence vanishes. Which is troubling in so far as the war on terror is a war where the combatants can be all citizens in your society”. So the accused loses power and basic rights.

Jørn Vestergård, lic.jur, an expert in Danish penal law at the University of Copenhagen explains, “the new paragraphs in the penal law are imprecise and extensive. Also very distant connections to groups, who has a readiness for militant actions, are criminalized and alarming measures of investigation can be taken in the forms of secret administrative justice." Kafkaesque nightmares of being charged without a case and with only limited and secret defence can in other words now become more than lucid dreams and literature; they may actually become reality.  Lene Espersen, minister of Justice, suggests that laws are “…signals as to what society finds acceptable.”  However, laws have actual consequences. 

Al-Aqsa is an example on such consequence though held in the shade of secrecy. Al-Aqsa is an organization which raises money, transferring them to groups that helps orphans in Palestine. In November 2002 the chairman of the organization, Rachid Mouhammed Issa found out that the bank had frozen 40.000 Danish kroner of the organization’s funds. When approaching the Danish police (Bagmandspolitiet), Issa was told that he, together with another member of the board, was being charged for financial support to terrorism.

These are the first charges using the new terror legislation. Laue Trabjerg Smidt, Issa´s attorney, explains, “There is no case involving the two suspects. They have been accused and targeted by an investigation but have not been brought up on formal charges… Secret meetings have been held in the city court and I’ve been ordered not to discuss the rulings of the court or elements of the case. It is offending their law and order…”   Laue Traberg Smidt explains, “A connection to Hamas has been mentioned in the public debate, but it’s not the view of the lawyer after having heard some of the interrogations….the most likely outcome of this story is that they withdraw the charges in a couple of years, but until then the organisation has been killed, because you can’t collect money for an organisation that doesn’t transfer on the money, because the accounts has been closed by the police."

Just this year, the so called biker law passed which is categorized as a measure against organized crime.  It allows for anonymous informers and witnesses, and limits access to evidence by the defence.  Kjærum suggests this was a secondary result of the terrorism package.  “These start with a prime crime i.e. terrorism and then bikers law… When you give into some of the basic, fundamental principles, you do it in an area where everyone agrees you have to do it.  Then you’ve done it.  The next time, it’s easier with smaller crimes.”   

Why would Denmark, a country so concerned with rights and rehabilitation have adopted such changes?  In attempting to answer this question, we must step back and consider the conflict between rights and security that any country faces.  As Mikkel Vedby Rasmussen explains, “There are two paths colliding.  There’s a renewed focus on rights and view of the citizen as a consumer.  The other element is the renewed focus on problem with security in a globalized world.  The state’s focus is about providing services and security is the most basic one.” So the backslide of rights are both to be explained by actual events in a global world, but also to the new expectations and fears that our dealing with them creates.

The laws themselves cite UN Security Council resolution 1373, which includes measures to be taken in preventing and prosecuting terrorism.  However, in reality, the laws go far beyond what is called for by the Security Council.  Jørn Vestergård, explains, “…suddenly you found out that now, you had to combat terrorism and then you pulled out old ideas that you had been saving.  But the legislation you’re passing now  is general, so it can be used in several other contexts than the criteria set up.”  If compliance with the Security Council is not the explanation, then what is?  Two major categories of reasons can be considered.  First, there are reasons that explain why people and politicians wanted such laws to enhance security.  Second, there are those reasons that explain why the focus on rights was ignored or at least discounted.   

Perhaps the greatest reason that these laws were desired was fear.  Since the end of the cold war, there has been a shift from external to internal threats.  The desire to maintain security cannot be maintained through a military focused on external threats but must be aimed internally.  September 11th provided a stark reminder of this shift.

Sociologists have shown how there is a special focus on crime because of the unpleasant image of someone else deciding to chose me in contrast to the purely accidental though statistically more threatening prospect of car accidents.  In the same way, the risk of a massive attack strikes at individuals.

These risks blend in with a motivation of necessity.  Certain kinds of crimes just cannot be enforced with the laws in place.  As other countries have discovered, bolder criminals require bolder methods of law enforcement.  As Per Larsen, Chief Criminal Inspector with the Copenhagen Police, argues, “…you shouldn’t be so reluctant to deal with such issues that you hurt the broad population and especially its security.“  The witness intimidation common to biker trials had not been seen in the past.  Complex networks of surreptitious monetary transfers did not pose a threat until recently.  Vedby Rasmussen, explains “Guys like Osama Bin Laden are not looking for compromises.  If they had aircraft carriers, they’d use them.  So you can’t use the police, you need to treat it as a war.  But war has never been about rights.  The rights of combatants are limited to not being shot right away.  In criminal law, rights are more important.  We must treat the criminal as someone who may not have done it, but in war, it’s different. If you’re in the wrong place at the wrong time, too bad.“  Of course, this is becomes more difficult when the enemy is not in uniform.”

Moreover, fear and necessity have entered into a mix with politics.  Politicians can benefit from creating fear where there is none and must respond to fear even when that response is not rational.   When an event, such as September 11, occurs, people assume that something can be done to prevent it.  Politicians are pressured to act and face a prisoner’s dilemma, even if they realize that a law is not wise, any politician who does not support it opens himself up to being viewed as weak on terrorists.  Jørn Vestergård commented, "...both politicians and bureaucrats were exposed to an enormous pressure to show ability to act. One of the ways of acting is through the making of new laws. In that connection it can in poignant situations where the medias are boiling over and the minds of people are raging, become questions of less importance, whether there's an actual need for new legislation, if the new rules are working, if can lead to consequences completely different from the ones intended, and if something can be squeezed through which actually didn’t have anything to do with the case."

This phenomenon is both a rational role of the state and a failure by leaders. Morten Kjærum, Director of the Danish Institute on Human Rights explains this phenomenon “Politicians react to real problems but they also react to trying to accommodate pressure, real or not real, and fears from populations.  You have to understand that incredible fear.  It´s the same as creating harsher sentences.  I don’t think many people think it helps, but people get a sense of security from doing it, real or false.”  In some sense, therefore, that creation of a sense of security is rational.  However, it is also a product of a political failure.  Morten Kjærum explains, “One of the things that politicians should do is help people understand the world…but they haven’t.  The Social Democratic Party came forward with this package and wanted to get re-elected by seizing on the momentum of 9/11 and calling for an election soon after.”

In the wake of this pressure to increase security, there has been surprisingly little of the countervailing pressure to protect rights.   This may be the most troubling aspect of the recent rights security phenomenon.  Why has this occurred?

One possible reason may simply be the magnitude of the fear and necessity, which makes people less interested in the primacy of rights.  Kjærum notes, “Look at human rights laws.  You have a right...Then in paragraph 2, that can be derogated if it’s necessary in the society.  You find this balance between the rights of the individual and greater collective goods.  But is this where you can do whatever you want to?  Of course it isn’t…However, treaty bodies give states a lot of latitude when fighting terrorism.  It’s seen as such a threat to the state that they should be given room to maneuver.”    

Another possible reason is far more frightening.  We are reminded of the poem written about resistance to holocaust, mentioned above.  Morten Kjærum takes it further. “If it’s just them.  Terrorists?  I’m not a terrorist so it will not affect me.  Bikers.  I’m not a biker so it won’t hit me.  Foreigners.  I’m not a foreigner, so it won’t hit me….It affects groups that are marginalized, somehow, in society so that you can create a broad base of support.”        

This belief that “it won’t affect me” coincides with certain perceptions about those specific groups being marginalized.  We’re in general seeing immigrant groups with a markedly higher crime rate than the rest of society. The danger is that this makes the stigmatisation socially acceptable. Kjærum says “All of this is dangerous in relation to creating hatred, racism, xenophobia, and undermining solidarity in society. … How far can you extend solidarity beyond the tribe? Denmark is like one tribe. How far can you extend solidarity when you link others to terrorism and others to crime?”

This phenomenon can also be observed in the ways that the terrorism law is used, primarily targeting people of certain nationalities. This is observed by Laue Trabjerg Smidt who claims that "If Issa had been called Peter Hansen, then there'd be no case … the case has in political spheres base in old fashioned Islamaphobia and fear of strangers.”

Of course, these laws can affect everyone.  Even if perceived in the original context in which they were created, my email could become the new wallpaper in a police intelligence office if I supported a group that builds homes for refugee Palestinians and might also receive some funding from Hamas (terrorist networks are often connected to grassroots community service efforts, something which endears them to local populations helping with recruiting, reinforcing the ideological purposes of their mission, and making it quite difficult to get locals to turn on them).  If I dated a woman who was involved in certain illicit activities, I might find myself on trial without knowledge of what evidence was being used against me.  However, the impact of these laws may extend further.

What is at stake?  Everything.   That’s why human rights are so important.  They defend everybody.  The way you treat marginal groups is how you can judge a society.  Rights are being abandoned due to fear and political ambition.  Who is there to stop it?  All we have is the reminder, “it won’t affect you.”

 

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Denmark Denmark 2003

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