Blog post #11, 13 October 2022
If, like me, you like to watch films and series in which policemen pursue bad guys, you may have noticed a recurring theme: regulations that limit the police’s power of action are treated as a source of frustration. You know the story: the detective has his eyes on a suspected criminal, but he doesn’t have enough evidence to get a search warrant or phone tap. The hero in these movies is the guy who breaks the rules to go after the baddie. He leans on a colleague to get the suspect’s phone tapped anyway, or breaks into the bad guy’s house to gather evidence. That this gets the cop reprimanded or suspended only adds to his heroism: he is noble enough to sacrifice his career in his pursuit of justice.
In shows where (secret) agents pursue terrorists, there is the added dimension that the heroes are trying to protect citizens from attack. Bending the rules seems a small price to pay.
But is it? Rules that limit law enforcers’ ability to act are there for a reason. They protect people from getting arrested or harassed without sufficient cause. The aim is to reduce the chance that innocent people become the subject of such actions. That’s not only a nasty experience, but it can lead to stigmatization: if neighbours see the police watching you, they are likely to think you have done something wrong, even if you never end up being arrested.
In recent years, in the pursuit of potential terrorists, rules protecting the rights of suspects and the privacy of everyone have been bent, stretched and removed in countries around the world. In less democratic countries, from Egypt to Russia, far-ranging anti-terrorist laws are used to quash opposition and dissent. In democracies, exceptional measures are generally taken with better intentions: to protect populations from attacks. However, there has been very little attention to the negative consequences of the suspension of regulations that are there for a reason.
In the US, the 2001 Patriot At opened the door to wide-ranging surveillance practices, including those made public by Edward Snowden. The Act also made it easier for the FBI to search homes and place listening devices without approval by a judge – measures that were, indeed, taken in many other countries as well. In America, an added issue was that FBI infiltrators were placed under such pressure to deliver results that they ended up aiding suspects, pushing and provoking them into planning terrorist acts.
After the 2015 terror attacks in Paris, France proclaimed a state of emergency, lowering the threshold for searches, raids and arrests. What this can mean for citizens is shown by these two examples, reported by the Dutch online newspaper De Correspondent:
“There was the restaurant owner who was confronted one evening with forty police officers in his restaurant. The guests present were urged to put their hands on the table. Meanwhile, the doors above were smashed in. The owner’s offer to open them with a key was not accepted. The officers left empty-handed. Apologies for the damage done were not made.
And take Halim, a 25-year-old owner of a motorcycle shop in a Parisian suburb. He was arrested on suspicion of being a member of an unspecified ‘radical Islamist group’ and placed under house arrest. Four times a day he had to report to a police station in the center of Paris. He was said to have taken pictures with his phone in the area where the editors of the satirical magazine Charlie Hebdo were located. Later, a judge ruled that this was not the case and that Halim had called his mother who lived in the area. He no longer had to report, but he had lost his reputation and his customers.”
Of the three thousand home searches carried out by police between November 2015 and February 2016, less than one per cent led to criminal charges related to terrorism. Nevertheless, the state of emergency was later turned into permanent law.
In the Netherlands and elsewhere, people can be prohibited from going to specific cities or being in contact with specific persons, even if there is not enough evidence against them for a criminal case. In addition, citizens are placed on international blacklists for unclear reasons and without opportunities for redress. Dozens of Dutch citizens discovered being on such a list as they were stopped at airports, refused entry to countries and even arrested. The countries concerned pointed to the Dutch authorities, who stated that the people concerned were not subject to any investigation. Still, it was impossible to get the measures reversed.
This is by no means exclusively a Dutch issue; over a million people appear on such lists around the world. A Malaysian Stanford alumna ended up on an American No-Fly list after an FBI agent mistakenly ticked the wrong box on a form. After eight years of legal procedures, a judge ruled that she was indeed wrongly on the list – but still she was not removed from it.
And we haven’t even discussed the practice whereby banks are pushed to monitor their clients and expel them for such suspicious activities as giving money to mosques. Or the constantly expanding surveillance regimes, which turn every citizen into a suspected terrorist.
That regulations can be bureaucratic and frustrating is true. Intelligence and law enforcement complain that rules and oversight keep them from acting as swiftly and efficiently as they would like. This argument also features prominently in the current debate in The Netherlands about a new intelligence law. A fair point, but on the other hand: there’s no evidence that all the extraordinary measures have reduced terrorism. On the contrary, since they often target specific population groups – Muslims mainly – they contribute to stigmatization, polarization and even radicalization. This is exactly what terrorists want. As Russ Feingold said in the 2001 Senate debate about the Patriot Act, “we must examine every item that is proposed in response to these events [9/11 – WV] to be sure we are not rewarding these terrorists and weakening ourselves by giving up the cherished freedoms that they seek to destroy.” Feingold was the only Senator who voted against the Act.
So where are the series in which the hero upholds, or even defends rules that protect civil rights? Or the movies in which the lives of innocents are ruined when they get caught up in the fight against terror? They exist, but are few and far between. Netflix, Hollywood: let’s get to work.