Author Archives: gplawsociety

The Munk Debate: State Surveillance in the 21st Century

In May of 2014, a Munk Debate took place at the Roy Thompson Hall in Toronto regarding state surveillance in the 21st century. Michael Hayden, a retired four star general who served as the director of the CIA, and Alan Dershowitz, a professor of law at Harvard, suggested that democracies are justified in using mass state surveillance in order “to fight complex and unconventional threats” (Munkdebates, 2014). Glenn Greenwald, a journalist and columnist for First Look Media, and Alexis Ohanian, co-founder of reddit, on the other hand, argued that these surveillance programs and the power they generate from information technology jeopardizes our basic freedoms (Munkdebates, 2014).

Pro:

Michael Hayden began by asking the question if there is a legitimate defense to our freedoms. He stated that the answer to this question is that it depends on facts, and “the totality of the circumstances in which we find ourselves” (Canadian Broadcasting Corporation, 2014). He continued by painting a picture of the current state of surveillance, and argued that the descriptions of state surveillance methods are unclear and hard to comprehend. Indeed, most individuals are provided with a current snapshot without any information on what happened before (how these programs developed), information which may in fact provide a different interpretation if examined carefully. As a result, one must take the time to analyze these surveillance programs and recognize the need for them. According to Hayden, surveillance systems are imperative in preserving national security.

Drawing parallels to these remarks, Alan Dershowitz suggested that surveillance, when used properly, could actually protect our civil liberties. He noted that “no state has survived without surveillance and no state deserves to survive with too much surveillance on their citizens” (CBC, 2014). Dershowitz argued that there are varying degrees of surveillance, and that there is a clear difference between street cameras and hidden microphones in your home. For these reasons, he suggested that when it comes to surveillance, matters of degree matter. Interestingly, much of Dershowitz’s statements called for a reformulation of the current state of surveillance, one that imposes constraints in order to strike the balance between the need for protective intelligence and the need for protection against privacy.

Con:

It was clear that the opposition had a number of questions regarding this last point. Alexis Ohanian argued that the right to privacy is fundamental to who we are, and that it must be balanced proportionately with security. According to Ohanian, it is the surveillance state that goes at odds with these rights – and it’s unacceptable. The country faces economical threats, technological threats, and threats surrounding security. He stated that technology backing the internet has been threatened in the name of counter terrorism, thanks to the NSA who has “[collected] information from millions of citizens” (Regan, 2014: 32). Instead of increasing security, Ohanian argued these surveillance programs only make the system less secure. He concluded that “while the internet must be defended, it must not be done at the cost of our security” (CBC, 2014).

Finally, but no less important, Glenn Greenwald argued that there would be no debate if surveillance programs were being used only to survey those who pose a national security risk. As a result, Greenwald believes that these programs have nothing to do with counter terrorism measures. It is not a “limited system of focus” like his opponents suggest. He argues that the best way to describe the NSA and its mandate is through its aggressive boasting. The new NSA collection posture, for example, states that they will “collect it all, sniff it all, know it all, process it all, [and] exploit it all” (CBC, 2014). Greenwald concludes that entire populations who are guilty of nothing are having their communications monitored for no reason whatsoever, and this surveillance is a profound violation of the rights of Americans.

Opinion:

Having initially thought that current surveillance programs were too intrusive, my thoughts began to change after reading an article by Johnny Yoo in the Harvard Journal of Law & Public Policy, which examined the legality of NSA surveillance of phone metadata (call billing records) and electronic communications data (email interception). Notably, Yoo states that while critics suggest that NSA surveillance “is too broad because ninety-nine percent of calls are unconnected to terrorism” (2014: 908), it is justified because finding a ‘needle in a haystack’ requires searching “millions of potentially innocent connections, communications, and links” (2014: 908). In rebuttal to this point, Greenwald and Ohanion would likely respond by arguing that Yoo is using terrorism as a pretext to justify the surveillance of millions of citizens, and that the collection of this information is not “relevant to a terrorism investigation” (Yoo, 2014: 911). However, as evident from the article, FISC (The Foreign Intelligence Surveillance Court) rejects these kinds of arguments because the NSA database has to be broad enough to intercept terrorist calls. Additionally, while Greenwald and Ohanion suggest that terrorism is just a pretext, we cannot deny that terrorism is prominent in the 21st century and poses a threat to national security.

In terms of violating constitutional privacy rights, the NSA programs need to be examined further. Yoo argues that the collection of phone metadata has the least number of difficulties regarding privacy. This is because a number of court cases have affirmed that “calling information, such as the phone number dialed, [is] beyond Fourth Amendment protection because the consumer [has] voluntarily turned over the information to a third party for connection and billing purposes” (Yoo, 2014: 916). Moreover, we must note that Fourth Amendment protection applies only to the content of communication, which the NSA is prohibited from accessing. Yoo also states that the second NSA program, which collects electronic communication data, is limited to the interception of non-US persons communicating outside of the United States (evident by s.702 of FISA), and the Fourth Amendment does not apply to these individuals.

While I would like to have a concrete opinion on the matter, I believe that a more thorough investigation of the programs is necessary. This post only touches the tip of an iceberg in a sea of state surveillance literature. As evident by Yoo’s article, the NSA programs seem relatively harmless on paper. What I would ask is whether or not the NSA is abusing their power and screening the content of the data in question. Additionally, in terms of the surveillance of email accounts, the NSA claims that they are solely monitoring the communication between non-US citizens communicating outside of the country – but is this true? Indeed, all of the speakers at the Munk Debate had a number of facts to back up their claims, but I would like to authenticate these facts before commenting further.

Note: I found it particularly interesting that General Michael Hayden made a statement in his closing remarks regarding Glenn Greenwald’s facts, and that if they were true, he would vote against the motion too.

Sources Cited

Canadian Broadcasting Corporation. (2014). State Surveillance: The Munk Debate. Retrieved from http://www.cbc.ca/ideas/episodes/2014/05/08/state-surveillance-the-munk-debate/

Munkdebates. (2014). State Surveillance. Retrieved from https://www.munkdebates.com/debates/state-surveillance

Regan, L. (2014). Electronic Communications Surveillance. Monthly Review: An Independent Socialist Magazine, 66(3), 32-42.

Yoo, J. (2014). The Legality Of The National Security Agency’s Bulk Data Surveillance Programs. Harvard Journal Of Law & Public Policy, 37(3), 901-930.

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Expertise and the Criminal Law

Douglas Hay’s article “Property, Authority, and the Criminal Law” examines three aspects of law as an ideology: Majesty, Justice, and Mercy (Larsen 2014). These aspects helped us to understand how symbolism, rule of law, and discretion continue to play a role in our contemporary legal system. After discussing Hay’s article, it is clear that there are other aspects of law as ideology today.

In addition to Majesty, Justice, and Mercy, the courts use of expertise can also be seen as an important ideological aspect of Canadian criminal law. More specifically, we can examine the use of expert witnesses and science. Experts in their chosen fields play a crucial role in the criminal justice system. Without them, juries would find it difficult to deliberate the facts of a given case. This is because expert witnesses give relevant, reliable testimony that helps educate the jury and translates complex ideas into simple terms.

A concept no less important, science is an important tool used by these experts in order to back their claims. Interestingly, academics have suggested that there is an increasing tension between the rule of law and the science of experts (Stygall 2001). This is caused by a concern with “junk science” and the fact that it needs to be distinguished from other recognized forms. For example, conflicting testimony involving two psychiatrists may in fact reveal a lack of true knowledge (Stygall 2001). Nonetheless, science continues to be an important factor in contemporary court decision making.

With these concepts in mind, it is not surprising that the spectrum of expertise in the legal system is vast. Expert witnesses who specialize in engineering, land slides, and linguistics can be contrasted with more prevalent specialists like psychologists, psychiatrists, and DNA analysts (Stygall 2001). Psychologists, for example, can be used to give the court a diagnosis, paint a picture of the offender, or interpret test results. An expert regarding landsides, on the other hand, may be able to specify what in fact triggered the disaster. This proves that whatever their specialties might be, expert witnesses become crucial in solidifying arguments before the court.

It must also be acknowledged that expert witnesses are in no way similar to other ‘powerless’ witnesses (Stygall 2001). Experts are generally well educated, members of the upper-middle class, as well as social and educational peers of attorneys and judges (Stygall 2001). Their testimony and research helps to produce consensus among academic and scientific communities. Indeed, expertise works as an aspect of ideology because it manufactures our consent as individuals. This is further accentuated in courts, where testimony from experts can have an effect on the decision making of juries and judges.

The structure of legal discourse can also affect the testimony of expert witnesses. This was apparent in a case involving psychologist Maggie Bruck. Bruck was a key witness in a child abuse case involving 90 children who held allegations against their daycare workers in 1998. During the cross examination, she felt as though the prosecutor was avoiding the truth. Moreover, she noted that the he consistently asked her about studies she had not mentioned (Stygall 2001). Even though Bruck was an expert in psychology, she felt as though the prosecutor was asking questions outside of her field of expertise. This violation of Bruck’s discourse rights raises a concern that “the legal discourse community controls how and what is said in the courtroom” (Stygall 2001: 333).

The preceding sections have explained the use of expertise and how it plays a role in our contemporary legal system. The discussion must now switch gears and explain why expertise is an aspect of law as ideology. First, from a Marxist perspective, it could be argued that a combination of legal discourse and expertise can serve the interests of the ruling class. This is because Crown attorneys can manipulate expert witnesses and question their expertise. Not limited to the case above, this form of hegemony is evident in other cases involving RCMP experts. An attorney in one such case stated that “in [situations] in which police officers testified as experts, it was very difficult for defense lawyers to find people with the expertise to challenge them” (Fine 2014).

In addition, one could argue that expertise in the courtroom serves the interest of the ruling class because expert witnesses are elites themselves. As mentioned previously, expert witnesses are educated members of the upper-middle class, and expect to be listened to. Moreover, they perform a legitimating and justifying function in that their testimony is seen as academic, reliable, and thorough. This allows the legal system to function in society without being questioned. Expertise and science also work as an instrument of reproduction. Future generations, for example, will undoubtedly view science and the work of experts as legitimate. This is because law is located in the social superstructure, and characterizes the use expertise and science as legitimate. These concepts are portrayed as normal so that the people involved are not imagining otherwise; they see it as natural and inevitable.

This post has sought to explain that expertise and the use of science is at the forefront of contemporary legal systems. Expert witnesses provide relevant, reliable information that can educate judges and juries, yet continue to let them work as independent tribunals. We can also conclude that law, as a ruling ideology, helps to produce consensus and manufacture our consent. As a result, expertise can be identified as a current aspect of law as ideology, since it serves to protect the interests and ideas of the social superstructure.

Note: Nearing the completion of this post I found an article by Sean Fine (2014) that revealed that the Supreme Court has notified Canadian prosecutors that they are to no longer use expert witnesses, including police officers, who give opinions based on their experience. What do you make of this decision?

Sources:

Fine, S. (2014, February 20). Supreme Court Halts use of expert opinions. The Globe and Mail. Retrieved from http://www.theglobeandmail.com/

Larsen, M. (2014). Terror, Leniency, and Law’s Ideology.

Stygall, G. (2001). A Different Class of Witnesses: Experts in the Courtroom. Discourse Studies, 3(3), 327-349. Retrieved from http://dis.sagepub.com.ezproxy.kwantlen.ca:2080/content/3/3/327.full.pdf+html

Susan van Scoyoc: Psychologists as expert witnesses

The Law Works – Expert Witnesses

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