Not Strange that Hope Has Been Lost

Some time ago, I sat on the news panel in the Good Morning World program on Radio1. As always, we would consider three questions, and on this morning, one of the questions was linked to Edward Snowden’s evidence that the U.S. intelligence agency, the National Security Agency, can see just about everything we do online. The question posed to our panel was whether the Swedish government ought to do something to “protect its citizens’ integrity” online. To this I replied “sigh” and expressed a certain apathy for the idea. My resignation generated some disappointed emails. How could I not demand that the government do something?

Since then, the issue has gained new and more concrete interest in the run-up to President Barack Obama’s visit. It opens up the opportunity to highlight this monitoring racket. Besides, Obama has begun a volte-face. On Friday, he announced that it will become easier for the public to gain insight into the wiretapping programs. Among the outlined measures, an independent panel was mentioned, which will review the NSA’s surveillance powers, as well as an independent attorney, who will argue against the state in the court that will decide upon surveillance. The president also pledged that as many confidential documents as possible will be made public so that the people can gain greater insight and understanding into why the NSA’s surveillance program is vital.

Obama is obviously not unaffected by all the criticism. Maybe the time is ripe for the Swedish government to submit some complaints. However, is the government credible as our integrity’s knight- in-shining-armor? Are we certain that it is a good idea to put Reinfeldt and Obama in a room and ask them to discuss surveillance? The inherent risk is that they will begin to bounce around the idea of crowning their curiosity with control mechanisms that are decorative rather than functional. Obama’s desire for action is all well and good, but what are the odds that it will end up like something that resembles the frameworks we have here at home — like one our government established, the Defense Intelligence Court, which Stefan Wahlberg, acting editor-in-chief of Dagens Juridik aptly described last year:*

“Now, an independent and impartial court would be responsible for the observance of the laws and thus ensure that individual citizens are not erroneously caught in the National Defense Radio Establishment’s [FRA] gigantic database. The only thing we really know about this court is that it consists of several sworn judges, who grant permission for the intercepts the FRA wishes to pursue. All other information about the court operations are — consistently, 100 percent — classified. The cases are not open to negotiation, they are not accounted for retrospectively, and the attendance of outsiders to these negotiations is precluded. Even statistics on the court’s activities are classified.

Given the fundamental principle of the publicity of our courts, one can rightly say that this is about an unorthodox court, where not only the outcome of the cases is secret, but also the cases’ actual existence.”

And it does not stop there:

“Another of these democratic control mechanisms is the so-called integrity protection ombudsmen required by law to serve in the Defense Intelligence Court as an adversary to the FRA. These agents will assiduously and faithfully protect the interest of citizens behind the court’s solidly closed doors. There has not been a single occasion during the three years that the court has existed, however, that any of these representatives has ‘appealed’ the court’s ruling. I write ‘appeal’ in quotation marks because the court’s decision by law cannot be appealed.”

I think that “sigh” was the appropriate response to the question. Depressingly.

* Translator’s note: This is a Swedish legal review publication; quote is from Sept. 10, 2012.