Neither Apple nor Mr Graham are Spartans, a response to Mr Graham

FBI Badge & gun.

FBI Badge & gun. (Photo credit: Wikipedia)

On 22 February, Robert Graham posted on his blog in response to a Tweet by Professor Orin Kerr.

If you were a crime victim and key evidence was on suspect’s phone, would you want govt to search phone w/ warrant?

Orin Kerr (@OrinKerr) February 22, 2016

Mr Graham raised some points that need to be explored. I offer this commentary to clarify these points as they relate to arguments commonly found in this debate. If left unchallenged, they can distort the debate, which would undermine the potential for democratic policy making.

If the police are against you, who are they for if not the public?

Mr Graham starts with a strange situation. The FBI is against you. If the FBI is against you, then you are likely on the wrong side of the law and by extension society as the law expresses the public morality. In a decent society, the rule of law means that the public consent to the laws as they help shape. Moreover, those who shape the laws or make the laws have to live under them. Thus, they rule and are ruled in turn. No one is above the law. The FBI as the highest law enforcement body within the United States carry a special status so to be against them is to be against the most visible representation of the rule of law. Leaving that issue aside, Mr Graham moves on to a related issue.

When the FBI is equated with ISIS are we even talking to a reasonable person?

Mr Graham suggests that Apple resisting the FBI’s legal request is like responding to an ISIS kidnapping. In doing so, he conflates a number of different ideas and issues. First, responding to a legal warrant from a duly convened court, served by a legitimate law enforcement agency, in a democratically elected regime, is not the same as receiving a ransom note from ISIS. Second, kidnappings are not always or only to obtain funding. The kidnappings also serve a political purpose, to show that the loved ones can be taken. Instead of a ransom they may be part of a larger bargaining or negotiating strategy that is part of international politics. Third, a kidnapping is a crime, it is a coercive act without legitimacy. Serving a search warrant or responding to a search warrant is not coercion. The search warrant expresses a legal system, to which a citizen consents as it is both reasonable and legitimate. The law enforcement agency has to convince another agency, the judiciary, which is also accountable to the public through the democratic process. The police have to have enough reason to search the premise. Thus, the decision has to be justifiable in the court of reason and public opinion. The political system that shapes the laws and the law enforcement agency is based on consent. As the US Declaration of Independence explains a government derives its just powers from the consent of the people. The people consent to the law and the way the law is made, which is what gives its legitimacy. To equate ISIS, which is based on force and fraud, the antithesis of consent, with a lawful order from the FBI seems deeply confused at best and deeply ingenuous at worse if not downright dishonest.

Could America exist if we passed laws no one obeyed?

It appears Mr Graham does not understand the American idea, the experiment in self-government’s intrinsic greatness. He argues that he would pass laws he would not obey. Such an approach suggests he lacks the ability for self-government, which would make him a worthy slave. To be generous, we can accept he would disobey a law he felt threatened his family. Yet, if he were to accept that, then why make the laws in the first place. He seems to want to have his cake and eat it too, which is what Apple wants. They want the protection of the law, the rule of law, so long as it applies to their patents, their physical safety, the enforcement of their credit notes. As long as the law benefits them, they follow it. If it does not benefit them, regardless of what society needs, they will not obey it. To put it crudely, it is Epicureanism. If it feels good do it or obey it. If it does not feel good, don’t do it or disobey it. If all of society worked on that principle, what would America look like? America’s founding transcended the age old problem of one party ruling and the other being ruled, having your cake and eating it too, as we designed a system in which people ruled and were ruled in turn under the law. No one is above the law as all were equal before the law. Curiously, Mr Graham does not want to be equal before the law and neither does Apple. Why?

Apparently Spartans were wrong to sacrifice themselves to resist slavery.

Mr Graham curiously believes that no one would sacrifice their loved ones, or themselves, for the law. He believes that death is worse than dishonour or the fate of the community if the law is forsaken. If this were the case, then we would be slaves for no one would prefer to die than fight for freedom. Fortunately, American history and world history are full of examples of men and women who made the sacrifice for the law. In some cases, they had to sacrifice the ones they loved.

xein’, angellein Lakedaimoniois hoti teide
keimetha tois keinon rhemasi peithomenoi.

Go, tell the Spartans, stranger passing by
That here, obedient to their laws, we lie.[1]

The Spartans understood there were things worse than death. They believed slavery was worse than death for they would be dishonoured. More importantly, they would have dishonoured their ancestors and shamed any descendants.

Is one personal experience a good basis for changing the law?

Mr Graham now turns to the crux of the matter, his personal experience with the FBI. He has my sympathy as it is never pleasant to deal with the power of the state. The experience can be frightening and deeply traumatic. My comments are not intended to downplay the incident or the effect it may have had on him. What I do want to discuss is whether he has drawn the correct conclusions or lessons from the experience and whether these are applicable to the Apple case.

For example, in 2007 (before iPhones became popular) the FBI showed up at my business and threatened me in order to keep something quiet. Specifically, I was to give a talk at a conference on how, contrary to what the company “TippingPoint” claimed, it was easy to decrypt their “signature” files. That company convinced the FBI that it was important to “national security” that I keep such information quiet. So the FBI came to our offices, and first asked politely, then started threatening me, in order to keep the information quiet.[2]

The key passage is that the company convinced the FBI that the issue, the talk, was a national security issue. If the company was able to convince the FBI, it would suggest that there was some evidence for such a claim. Unless, the FBI simply does whatever anyone asks whenever they asked. However, as that is not the lament anyone has ever made about the FBI, I think we can dismiss that possibility.

Instead, we have to consider the FBI are dealing with what they believe, believed, to be a national security threat. The question for Mr Graham is whether he would prefer that the FBI not investigate such claims? More to the point, when the FBI arrive at the target should the FBI simply take them at their word that it is not a threat? We would have a scene off the Simpsons.

FBI: “Excuse me Fat Tony D’Amico we understand you have been beating a man over an unpaid loan. Is that correct?”

Fat Tony D’Amico: “No. We are upstanding citizens. We have always paid our taxes and whoever told you that is lying. We are just minding our business helping someone to understand their sums.”

FBI “Thank you for clearing that up. We will be on our way. Sorry to disturb you.”

No. The scenario is far-fetched. Instead, the FBI would be acting in good faith as they have a responsibility to investigate such matters. If the target is no cooperating they will escalate. It would be strange for them to take an initial no for the final answer.

I had a bad FBI experience so authority is never to be trusted not even the law

Here though Mr Graham extends his story. Unlike the two earlier references on his blog, 2012 and 2015, he now adds an extra dimension threats of blackmail and bribery. Mr Graham raises a question, could a warrant for his phone be obtained based on an allegation of blackmail. He seems to believe that such warrants are granted instantly and without due concern. He assures us, without any evidence, that the warrant would have been easy to get. I struggle to understand how one goes from a claim of potential blackmail to an immediate warrant on a phone. He adds that the company were claiming he was trying to blackmail them. Yet, the FBI, were they to seek a warrant, would need more evidence than a claim that the company was being blackmailed. I appreciate that judges can be considered sympathetic to law enforcement yet even they insist on the rule of law so would require evidence to justify the warrant. Unless Mr Graham is suggesting that the criminal justice system and justices in particular are biased against computer companies. The reality is that we do not find such bias. If anything we find a bias to uphold the law. Perhaps it is that the FBI are visiting people who appear to be breaking the law and the law is the thread that connects these situations. The situation, as described, does not suggest that there is probable cause, which would be needed to justify the search warrant.[3]

Going dark or going light. Why not just make sure everyone obeys the laws?

Mr Graham will not part with his smart phone. He will not reduce his online activity nor will he limit the electronic devices in his home or his property. Instead of changing his habits, his property, his way of life, he wants the community, its fullest expression in the laws, to change to suit his needs. We have a strange inversion of the American idea. Instead of a people obedient to a law they consented to create, we want the law to obey our desires. Why not make laws limiting the use of such cameras? Why not limit the electronic devices? The Amish seem capable of living without technology. If privacy is so important why should we sacrifice the laws, when we can achieve the same effect by limiting our use of devices designed to capture our personal data?

Perhaps we need to look at our laws instead of encryption.

Mr Graham seems to get to this point with his next statement. The warrant upon probable causes has served us well for a long time. What has changed, though, is our expectations regarding privacy. We have willingly accepted the commercial trade off of privacy for convenience and access yet we balk at the same effect done with legal powers derived from the consent of the people. The limit is not on law enforcement. The limit is on what people want in the public domain and what type of society they want. They can forgo some convenience, as many have already, by refusing to provide personal data for access or to use systems they believe harm their privacy. However, none of this matters if the issue remains one in which privacy is seen as a higher priority than the law.

There ought to be a law about that, a political not a technological question.

Mr Graham, like many technologists, seems to be believe that technology is the answer even as he seems to show some understanding of the political element when he talks about what the government “should not be able” to do. He seems to believe that the FBI, and one would imagine by extension the NSA, would want to end encryption. Do police want houses without locks? No. What the FBI want is for the law to be complied with so they can extract the necessary information associated with a crime. What seems strange is why Mr Graham does not believe the government can conscript someone to help it. In the United States there is still the Selective Service Act as a way to draw on the public for help. If the government could not draw on specialists it would be unable to function and the rule of law would be imperilled. If the law could not be defended, then the US Constitution would be in jeopardy. Are we saying that privacy must be protected even at the price of the US Constitution?

Thomas Jefferson understood this issue clearly as he dealt with it 1803 regarding the purchase of the Louisiana Territory.

“[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”[1][4]

The issue was necessity. It is rare that necessity emerges so clearly. In the Apple case, the necessity is 14 dead Americans in a terrorist attack. What necessity would Mr Graham accept for Apple to obey the law if he is unwilling to accept 14 dead Americans? Would 100 be sufficient, 1000? 10,000?

How far will Mr Graham roll back the state, what would Flint residents want?

Perhaps Mr Graham would like to roll back the Environmental Protection Agency (EPA) for it too infringes on the rights of companies by requiring them to take on greater regulations which limit their ability to operate effectively and turn a profit. However, I think he would agree that the people of Flint Michigan would rather the EPA were as robust, proactive, and feared as the FBI appears to be in the technology world.

If all cops are criminals, who protects us? Apple? Google?

Finally, he closes with what would be known as a “clap trap.” A suitably rousing closing to his post with a charge that would likely elicit applause from libertarians. We have to fear the police, lawful authority deriving their just powers from the consent of the people, more than we have to fear criminals who act with no authority, no legitimacy, and no restraint. Mr Graham’s sentence reminds me of the lyric in the Rolling Stones Sympathy for the Devil

But what’s confusing you/

Is just the nature of my game/

Just as every cop is a criminal/

And all the sinners saints/

As heads is tails/

Just call me Lucifer/

[emphasis added]

I trust that Mr Graham is a successful security expert. As a political theorist, he has a long way to go to reassure me that he understands enough of the law or the nature of political consent and obedience to exercise his rights as a citizen. The public domain already shows that it suffers from a collective miseducation in civics as the public appear to believe that the government and the laws are our enemies.


[2] The story is told different by Mr Graham in some of his earlier blogs. (Monday, January 12, 2015)

and here (Friday, September 21, 2012)



[1] Brest, Paul; Sanford Levinson; Jack M. Balkin; Akhil Reed Amar; Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials (Print) (6th ed.). New York: Aspen. pp. 65–67. ISBN 978-0735550629. ISBN 073555062X.

Posted in corruption, Government, justice, philosophy, privacy, statesmanship, surveillance | Tagged , , , , ,

Jenny Jones, the MPS, and the search for better records management

On 8 January, the Guardian reported a claim by a police whistle blower that the Metropolitan Police Service (MPS) had shredded documents illegally.[1] The documents were reports on Jenny Jones who is a Green life peer which were held by the domestic surveillance team. The team gathers intelligence on domestic extremists. The officer claimed they were destroyed to prevent future disclosures. In response, the police explained that they had investigated the claim and nothing was found to substantiate it. They explained that “the unit was responding positively to demands to improve its document retention procedures by destroying information that it had no need to retain and that therefore, should not be retained.”

A records management question requires a records management answer.

To a records management professional, the claim seems dubious. The question that needs to be answered is whether the police managed their records correctly. If they have, then there is no issue. We cannot answer this question definitively without access to the material in question. Instead, we have to rely on what is known publicly and infer a possible answer from that public information. We start by analysing the police statement in light of records management principles and practice.

We shredded documents to improve the way we retain documents.

The police explain that the shredding was needed to improve document retention procedures.

No evidence supporting the allegations that there had been any inappropriate destruction of documents was identified. In fact the lead detective in the case, who spoke to all potential witnesses as part of their investigation, found that the unit was responding positively to demands to improve its document retention procedures by destroying information that it had no need to retain and that therefore, should not be retained.

The information, especially if it relates to a person is going to be a record.[2] As a record, it will need to be retained or destroyed according to the organisation’s retention and destruction guidelines. Thus, there are two immediate questions to answer. The first is: “What is the organisation’s records retention schedule?” The retention schedule will list how long records are to be retained and why. Second, “Where is the disposition log?” When an organisation disposes of records it has to follow a disposition process that records what has been destroyed. Here it is important to differentiate between information, which does not need a disposition log, and a record which would require one. A disposition log is how an organisation can prove that it destroyed a record correctly. The second question is “Where are their retention guidelines?” As mentioned above, the retention guidelines explain how long a record is to be retained. If the police are destroying records or documents, they have to be able to explain the criteria for the decision.

We did not destroy information to keep it from being disclosed. How do you know?

Leaving aside these issues, the response takes a curious, almost defensive, turn.

In particular, the investigation found no evidence to support allegations that information had been destroyed in order to avoid its release as responses to either Freedom of Information Act or Subject Access requests.

What is unclear is why they responded this way as the officer claimed the material was destroyed to prevent future disclosure. He did not claim that a current request was thwarted. The police statement raises further questions.

In fact it found that what information had been held on the relevant databases in relation to the individual referred to by the officer in his allegations had been appropriately released to that individual following their requests for that information and that this had happened many months prior to the time the officer claimed the information had been inappropriately destroyed.

They have implied that they could destroy the documents because they had already disclosed them. If personal data was collated for a SAR response, then that material would need to be retained. The material is a record and not just “information”. Thus, a disposition log would need to be completed if it was destroyed.

The Catt judgement makes this appears glaringly inconsistent.

The incident creates a contradictory position. The Police disposed Jenny Jones’ records quickly yet the same unit insisted that Mr Catt’s records be retained forever. Mr Catt was an elderly peace activist who asked the unit to destroy the personal information they held on him. He argued that he was not an extremist so his details should be deleted. The MPS argued all the way to the UK Supreme Court that his personal data had to be held indefinitely.[3] By contrast, the MPS were trying to dispose of Jenny Jones’ material from the same database. What explains this inconsistency? Why was it necessary to delete or destroy Jenny Jones’s records and information but unnecessary to delete Mr. Catt’s especially as he asked to have his records deleted. From a records management perspective, the inconsistency is problematic for good records management.

The case raises questions about the way the state defends our information rights. The police have behaved in a problematic and inconsistent manner. One hopes they will be able to explain why they have an inconsistent approach and what happened to Jenny Jones’ records. In particular, we hope they can provide a disposition log and retention guidelines. If they cannot provide these documents, it suggests they have more work to do on records management. Without good records management, our access to justice is severely compromised. Is this what we expect from a government and a police service in the 21st century?


[2] Information is what is contained in a document. A document becomes a record when it records or captures an organisation’s business decision. According to the ISO15489 definition, a record is “…information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business.”

[3] The judgement means that the police can retain indefinitely Mr Catt’s records even though he has been convicted of no crime nor has engaged in any violent or dangerous activity. As an elderly peace activist, it is unlikely he would pose an ongoing or continuing threat to the United Kingdom. See for example, the following by Net Pol “The Supreme Court appears to view the deletion of John Catt’s ‘nominal’ records from the domestic extremism database as a significant indication of an “intensive regime of statutory and administrative regulation””.

Posted in corruption, FOIA, justice, privacy, transparency | Tagged , , , , | 2 Comments

Lord Bramell’s apology: A response to Matthew Scott

On his blog, Mr Scott asks and answers two questions.[1]

  1. Should the Metropolitan Police now apologise to Lord Bramall?

  2. What will happen to the main witness, “Nick”, if the police come to regard his evidence as unbelievable?

The questions show the police have mishandled the investigation. They publicised the case which traumatized the alleged suspects. He concludes the police should apologise for having investigated and the way they investigated.

Mr. Scott makes short work of the police claim that they do not apologise for their investigations. He argues that they have apologised when they “got it wrong” so they should apologise in this case for having “got it wrong”. Mr Scott presents a strong, compelling argument. Given his stature, expertise, and clarity, we should consider his argument closely.

Should the Met apologise to Lord Bramall?

He begins by explaining that the MPS have apologised for other times they have made mistakes or “got it wrong”. He lists their mistakes, their apologies, but what is missing though is an apology for an investigation like Lord Brammall’s where the police found insufficient evidence to refer the case to the Crown Prosecution Service (CPS).

He turns to Assistant Commissioner Patricia Gallan’s statement for why the MPS have not offered an apology. The police explained that if they apologised for investigations that did not succeed it would have a chilling effect as officers would not pursue investigations that looked or were difficult to prove. She went on to say that they had to establish whether evidence existed to substantiate the allegations or to dismiss them.

He explains that she misses the point. She should not apologise for the investigation, but the way it was handled. He points to the ill-considered remarks by Superintendent Kenny McDonald as well as the publicity around the police raids. In particular, Mr. Scott focuses his attention on Exaro news.

Journalists can discover information from the police without suborning them.

According to him, Exaro could have only obtained the information in three ways.

(a) The Met deliberately leaked the information;

(b) The Met covertly leaked the information; or

(c) The Met carelessly allowed information to leak to Exaro.

What he does not allow for is that the Exaro may have demonstrated good investigative skills to discover the raids through legitimate sources. We know that other news sources have been able to elicit such information.

He then concludes that in addition to the way the police investigated, the press involvement, there is the question of how long the investigation took before they cleared him.

He then gets to the point.

Of course, nobody should be above the law, but anyone treated as the police have treated Lord Bramall would deserve an apology, and a nonagenarian war hero with a dying wife deserved to be treated with particular care and courtesy.

On the surface, he has a good point. The suspect appears to have been poorly treated.

Beneath the surface, why don’t barristers apologise?

If we dig beneath the surface a different picture emerges. We know the police have apologised when they have made mistakes. Two questions have to be explored. First, have the police acted inappropriately? Mr Scott believes they have for the three reasons he provided. Was Lord Brammell treated differently than any other high profile figure in a similar situation? Was he questioned aggressively for long periods of time? Was held in a cell for hours or days? We have no reports that he faced aggressive or difficult questions under harsh conditions nor of any time in the cells. Was he treated worse than others? Mr Scott provides no evidence that he was. What he overlooks is that Lord Brammell had many powerful friends lobbying on his behalf who publicly decried his treatment. The newspaper gave them favourable coverage. One can confidently assume that the public claims were matched by private lobbying of the MPS and to HMG. His friends, allies, and supporters had a sympathetic platform to express their displeasure. He had sympathetic journalists and commentators to defend him with others who could criticize and lobby the police. Most importantly he had allies who could, and did, attack the police and Exaro. Does the average person receive this support or have access to such a powerful network? In a sense, he has been treated differently and with greater care than the average person for this reason as more pressure on his behalf could be brought to bear on the MPS.

Barristers can inflict a lot of damage, but who apologizes?

Second, is the way he has been treated worthy of an apology? Here we need to compare the case to another profession. Let’s consider the behaviour of the barristers in the case of Abby who was questioned aggressively by seven consecutive barristers[2] every day  over three weeks![3] Yet none of the barristers apologised to the witnesses and the victims for their harsh, direct, questioning when their client was found guilty. If the witness breaks down or suffers from the experience, does the barrister apologise? No. If they are found guilty should the barrister apologise? They got it wrong and their client is guilty. Their best efforts to discredit the witness and their evidence failed. Surely, that is worthy of an apology. Yet, we cannot find one barrister or barrister who has ever apologised for their behaviour in court.[4] Yet, Mr Scott wants the police to apologise.

It is bad for business but no one apologizes.

The case and behaviour of the barristers caught the Bar Council’s attention[5]. In their July 2013 meeting they expressed concern about the adverse publicity.

Members will have read in the press of a number of cases, including a well-publicised grooming trial, where there has been criticism of the manner in which a vulnerable victim or witness has been cross-examined. There are tales of young, vulnerable girls being in the witness box for twelve days, facing aggressive cross-examination. These stories do not sit well with the public. These instances need to be investigated, explained and understood as appropriate.

The Chairman is working with the BSB, Advocacy Training Council (ATC) and senior judiciary to see if there is a way to prevent the ordeal that people are going through and to avoid the most appalling publicity. Lawyers are never popular and this makes advocates look as if what they are doing is inimical to justice.

The Bar Council minutes show that they are concerned that the behaviour is “bad for business.” One could be excused from recalling the scene in the film The Godfather when the Consiglieri warns that the proposed deal was “bad for business”. The Bar Council minutes do not record that anyone expressed remorse or concern for the damage done. There is no call to apologise. Yet, Mr Scott believes that the MPS need to apologise.

I am only doing my job, is that a legitimate defence since Eichmann?

A barrister might claim “I am only doing my job”. That may be true but the MPS can have the same defence. Yet, Mr Scott demands that the MPS apologies. The barrister might argue that the did not know their client was guilty and they could only know that after the court had judged them. The same principle exists for the police. Yet, the MPS are to apologies but not the barrister.

The barrister might argue that they have to test the evidence for they start with the idea that their client is innocent so they have to go to court to test the evidence and argue the case. If they didn’t do that, they would not be doing their job. The same, though, applies to the MPS. They cannot dismiss an allegation until they have investigated. Yet, Mr Scott wants the police to apologise.

Is the implicit argument that men of Lord Brammell’s stature are to be immune from such claims or is it that their stature requires that they be treated differently? If that is the case, then we do not have the rule of law that promises equality before the law, we have rule by privilege. The privileged are to be treated differently. Not only that, the barristers are not to apologise but the police must. Why is it that the Police have to apologise but not the barristers? Is there a deeper argument at work here?

The argument and action suggest a deeper story is to be considered.

If we follow the argument and action of the post a deeper theme emerges. A theme that suggests a possible unstated intent. The structure combines the police criticism with details about penalties for false allegations and wasting police time. If the police are criticised for an investigation, it suggests that they are to be encouraged to pursue the complainant for wasting police time. It makes victims aware of the potential cost of even making an allegation which could to deter future allegations against the powerful and privileged. Even if they bring someone to trial, they know the cost will be high. As one victim said, they would not go through it again.[6] From this intent, a second concern emerges. Will the post reassure powerful perpetrators that the police will not act robustly on allegations? The police may hesitate before an investigation against a powerful or privileged figure. They will need to be convinced by an already reluctant victim who will fear being charged with time wasting. Even if the accuser takes this risk, the perpetrator knows that they can unleash their barrister to force their accuser to relive the alleged incident in excruciating detail. In much the same way an interrogator seeks to break his captive with a barrage of questions, the barrister can discredit the accuser with the steady refrain of “you are a liar”, “you are making this up”, “Utter fantasy, is it not?” until they abandon their testimony. One wants them to talk; the other wants them silenced. Perhaps Mr Scott could explain why we never read of barristers behaving this way to the powerful. Do they attack the abuse of power as strongly as they attack the character of the vulnerable victims?

Does the law protect the powerful at the expense of the weak?

The law favours; society defers; and the criminal justice system rarely punishes the powerful. The powerful are protected by resources and networks, which give them the ability to influences those who seek to hold them to account. If there is rule of law, it should apply equally to all no matter how powerful where the police investigate allegations no matter where they lead without fear or favour. The reality is that for the past 60 years the rule of law has been an occasional visitor to child sexual abuse cases by high profile perpetrators. Curiously, Mr Scott does not want the police to apologise for those failings.

Mr. Scott wants the police to apologise to the powerful, protected, and privileged yet the barristers who attack the poor, weak, and vulnerable victims on behalf of guilty clients never have to apologise. Why?


[2] One wonders why after the 3rd barrister making the same points did not succeed the remaining four thought they would succeed?


[4] The Bar Council was suitably concerned about the case and others to raise it at one of their meetings. see also

[5] The case is not isolated it is one of many. It is hard to believe but the UK criminal justice system has improved in recent years with some guidance for treating vulnerable witnesses. One can only imagine how brutal the barristers could have been in the past assuming a victim could convince the police to investigate and the Crown Prosecution Service to bring a prosecution. See for example, and

[6] One victim who suffered such an ordeal when they gave evidence said they would never give evidence again as it was worse than had their abuser gone free.

Posted in justice, privacy, public opinion | Tagged , , , , , | 7 Comments

January Break

Dear Subscribers,

Thank you for following this blog in 2015. I hope you had a good year for 2015 and I wish you an even more successful 2016. I will take a break from this blog until February.

I will take January off to reconsider the blog, review my writing, and develop some new ideas for posts over the year.

Thanks for reading the blog and I hope you continue to follow it in 2016.

All the best,


Posted in Uncategorized | 2 Comments

Rahm Emanuel’s Funeral Oration for Laquan McDonald: “I’m committed to reform.”

On 7 December 2015, Rahm Emanuel wrote an article, a funeral oration, to explain that Chicago would be reformed after Laquan McDonald’s death. The Mayor wrote that he is committed to reform.[1] On its own a call to reform is expected. After a traumatic event, especially one that draws national attention, the Mayor would want to make changes. All cities are always undergoing reform as no city is perfect. What makes this call to reform noteworthy is it has the semblance of a funeral oration. Like Pericles or Lincoln before him Emanuel tells the public that Laquan McDonald’s death is not in vain. The article is from a superbly talented politician at the height of his powers. His public speeches and deeds demonstrate his political virtuosity where he embodies much of modern American politics. Despite his often brusque manner, he is a masterful deal maker able to neutralize, if not defeat, his opponents. His success is due to his ability to master the political art’s protean nature. Politics is an ever shifting context which requires political leaders to adapt to changes as well as engage their allies and enemies to achieve a collective good. Politics protean nature is best expressed at the individual level by the art of wrestling. Like a wrestler, a political leader has to grapple with an issue or an opponent who seeks to impose their will or vision. A political actor has to set and shift positions as they grapple with an opponent or an issue. In wrestling, the goal is to impose your will on your opponent within the rules. Politics, although cooperative, requires rhetorical and, at times, physical coercion. The political art changes slightly at the highest level when a leader has responsibility for a community. At this level, the political art is like weaving. A leader has to weave together disparate, if not conflicting, groups through a web of policies and laws. The political web protects the community from disunity and external attacks. The external attacks are like economic shocks, environmental problems, or challenges from other political communities. A leader responds to these challenges, through speeches and deeds that encourage the public to rally in support. Thus, an analysis of this article, at time of crisis when the City is threatened by disunity and external attacks, provides an insight into Rahm Emanuel’s political leadership and Chicago politics.

The analysis reveals the Mayor’s political virtuosity and his political homecoming.

The shooting of Laquan McDonald was horrendous. His family deserves justice, and every Chicagoan deserves fundamental changes in how our police officers are held accountable for any abuses they commit.

The Mayor begins with a bold statement. He draws the audience’s attention to the obvious, yet he poses a curious parallel. He does not say that that the every Chicagoan deserves justice. Instead, he says they need a better system to hold the police to account for the abuse. He does not explain why the current system is flawed or who is responsible for those flaws. Nor does he say that the City must prevent or stop the abuse; instead he reassures the public the police will be accountable for their abuse of power. What this suggests is that they have not been accountable in the past, yet that raises the question of why. Why is it that under the Mayor’s term that the police have not been previously accountable? The Mayor does not raise political reform. Only the police seem to need reform even though they only act within a political system that is supposed to hold them to account. Neither the Mayor nor the public’s political representatives seem able to hold the police to account. Is the failure of accountability something that the Mayor now needs a political crisis to achieve? If so, it suggests that the Mayor is not letting a shooting go to waste.[2] One has to wonder, though, why this shooting, why now?

The systemic issues that this incident highlights will not be solved overnight, but I am fully committed to ensuring there is significant, real, and sustained, long-term reform.

The Mayor acknowledges the deep seated problem. What is not clear is why he has not included political reform. He knows that reform of the system will take time. He leaves unasked and unanswered why it has not been confronted before this event. What is also noticeable is the amount of emphasis he has to place on the term reform. It is not just “reform”, or “real reform”, or “significant reform”. He makes sure everyone understands that he is committed to reform that is “significant, real, sustained, and long term”. He uses four qualifiers to the word reform. It is almost as if by adding adjectives he will believe it and most importantly, the public will believe. Will the victims believe it? Perhaps the dead will ask “Why did you avoid the most important word—“effective” reform?”

What is particularly troubling by his claim is that for the past 10 years, the City of Chicago has spent over 500 million dollars for police abuse and killings.[3] Why Rahm has decided to conduct reform becomes a question in itself. What is strange is that the Mayor who decides the reform, which suggests that the reason why reform has not happened before is that the Mayor has not wanted it or could not deliver it. If that is the case, then we have to ask whether the current Mayor is going to reform the police or just ensure the appearance of reform or the appearance of attempted reform.

Within hours of the shooting, the City’s investigation began and within days, the City turned the video over to prosecutors to investigate and bring appropriate charges. Protecting the integrity of those investigations was critical. That is why the video was not made public. Nobody anticipated that they would take more than a year.

Here the Mayor provides a verifiable detail. The City knew about the video for a year. It is not as if the video became known to everyone at the same time. The City, including those who work for the Mayor, will have become aware of its content including its severity,[4] but that does not mean the Mayor saw the video. The Mayor knew the video was important. Many commentators believe that this is decisive. It is not decisive. The Mayor succeeded in Washington DC by an ability to leave no bureaucratic fingerprints when it suits his purpose. He would have his operatives find out what was on the video so he could be told so as to retain his plausible deniability.

What is of note is his claim that he was surprised it would take more than a year for it to be made public.[5] Here the Mayor makes a serious mistake. Even a cursory glance at the published police investigations statistics show that investigations on average take longer than a year. What is unexplained is why the prosecutor took so long to bring charges or what role the Mayor had in that process.[6] He will have known the City fought disclosure. He would have been involved in the decision to pay the family $5 Million. At the same time, his comment raises the claim that making the video public sooner would have prejudiced the investigation without explaining how as other cities have released videos sooner.[7] In what way would it have prejudiced an investigation for it suggests the investigation was completed before it was released? If the investigation was completed earlier, then disclosure could not prejudice it. Otherwise, it suggests that the investigation, or at least the part relying on it, was only completed just before the judge ordered the video’s release. Either way, the City played politics with the video. If they are willing to do that, they are willing to play politics with everything. Nothing can be trusted in such a City. The question is no longer “Who is corrupt?” The question is “Who has integrity?”[8]

When a judge ruled last month that the videotape should be made public, we complied. Shortly before the tape’s release, the state’s attorney brought charges of first-degree murder against police officer Jason Van Dyke.

Here the Mayor raises another point. The City did not have to wait for a judge to force disclosure. They could have disclosed earlier. Instead, they chose to fight the disclosure to force the people making the FOIA requests to file lawsuits for its disclosure. The City’s attitude to Freedom of Information is a common to those who want to avoid accountability. The politically powerful only want to be accountable on their terms, if at all. If the judge had to order disclosure, and the video was withheld to protect the investigation, then it undermines the Mayor’s claim. The video would not undermine the investigation because the investigation was already completed by the time the judge ordered the disclosure. Why would the Mayor make such an empty claim?

When the tape was released, people were outraged — and rightly so. There is no excuse for the actions of that officer. And, I understand people’s frustration that it took more than a year to bring charges.

Here the Mayor understands that people will be frustrated by the delay. Yet, he does not seem to understand why or how it could be delayed despite the published statistics on police investigations.[9] He understands the frustration but does not explain how he will change it or reform it. One can note that he has not said that the police reform will include the prosecutor’s office. Indeed one could note that he has left them out on purpose. If he did, then why mention the delay? It is as if he wants to give the appearance that he shares their frustration but is unwilling or unable to do anything about it even though he is the only one who has the authority to do something about it. What is also curious is that the Mayor misses the opportunity to personalise his outrage. He does not say “I was outraged.” Perhaps, such a statement would be more than a Mayor can say publicly. However, we have to consider he makes various statements about the outrage and his desire for reform, yet he does not personally condemn the shooting. He may have omitted simply because it is obvious or he believes it is unnecessary in such a context.

He does personalize the welcome to the Department of Justice investigation.

We welcome a U.S. Justice Department investigation of our police department. But fundamental change does not need to wait. Next year, police officers serving one-third of our City will be wearing body cameras, which should reduce incidents of excessive force as well as unfounded complaints.

He understands that a public rebuke or a public dispute with the federal government does not help him or the City at this stage. He has to defuse the public and federal attention. In the face of the external attack, he has to appear malleable or pliable. Later, after the people and the national media have moved to other issues, he can criticize the investigation. By then, his patron will be out of office. At this stage, he will welcome the DOJ investigation to gain political leverage to shape the Chicago Police Department (CPD), if not control it. The CPD will have to rely on him to defend them as well as to carry out the reform. It is unlikely that any reforms are going to be required that will be completely unpalatable to the Mayor, as Mayor, even though they will be unpalatable to the CPD. The CPD realize the Mayor has an advantage over them. He can offer them his political capital if they will cooperate, which gives them an incentive to cooperate rather than resist. To reinforce this point, the Mayor has created his own task force. He can create recommendations that will either reinforce or negate the DOJ investigation. Unlike the DOJ investigation, this one is within his control.

What is curious is that the Mayor has presented the police body cameras as an important innovation for accountability and reform. He is at pains to mention that it should (a strange qualification given his earlier insistence that he will have reform) reduce excessive force incidents. On the surface, that sounds plausible. Yet, the dashboard camera did not prevent the Laquan McDonald killing. The officer did not think twice about the camera, or anything else, before he shot an unarmed, defenceless, man 16 times even as he lay dying on the ground. It seems strange that the Mayor and Chicago have to rely on technology to reform police behaviour.

If we look closer at this decision, we face the same situation that emerged in the Laquan McDonald case. The video was not released for a year. Even though the prosecutors had it within hours, they did not file charges until just before the video was released. As the Mayor said earlier, the City resisted the legal request for information as they believed it would prejudice the investigation. The same would occur with the body camera videos. The process will be repeated. Unless the access process is reformed, which the Mayor has not said would be part of the reform, his claim is hollow. It is nice soundbite; it sounds good, full of sound and fury, yet signifying nothing. The City will continue to resist requests for information and the investigations will be delayed, even with a promised protocol on disclosure, the fundamental problem of resistance to accountability has not been addressed. Even if there is better evidence from future videos, it will not change the procedural problems that delay justice. The Mayor knows this, which is why he has called for disclosure protocol only addresses one part of the problem.

What is particularly troubling is the last part of the sentence. The body cameras are not there simply to protect the citizens. They are there to protect the police from unfounded complaints. Yes, that is correct. In an article about the brutal police killing of an unarmed, defenceless man where the Mayor is outlining his commitment to reform to reassure the public, he has explained that the cameras will protect the police from unfounded complaints. Yes, that is correct. The police need to be protected from unfounded complaints in the same measure that citizens have to be protected from excessive force and being shot to death by the police. You have to hand it to the Mayor. He knows how to display chutzpah. The police dismiss 99% of all complaints from Blacks.[10] Thus, it seems strange to say that stopping complaints is going to be a benefit on par with stopping excessive force.

I’ve also appointed a Task Force on Police Accountability to push significant reform in our police department and discipline system. The task force will scrutinize everything from training and monitoring officers, to crafting a protocol for the timely release of police videotapes, to ensuring the integrity of our investigations. It is empowered to offer fundamental changes, and I am committed to implementing them.

Here we see Chicago politics (but really of any successfully run polity’s politics) at play. The Mayor has appointed his own Task Force[11] before the DOJ investigation was announced. As mentioned earlier, this gives the Mayor flexibility, which all political leaders desire, to manage the issue on his terms. He has appointed the task force so we can be certain there is no one on it that he does not want to be on it. As such, it is handpicked to reflect what he wants to achieve. Moreover, if the reforms do not work, he can claim that he wanted reforms. All that he needs is the appearance of the attempt at reforms. In other words, no mayor would openly resist the call to reform in the face of such an event. However, he also knows that he only needs to have the appearance of reforms to placate the demand for reforms.

Had the police wanted to resist this outcome, they would have had to disclose the video themselves so that he would be on the back foot. Such an approach would have required greater risk taking and political courage than the CPD have shown previously. They have succeeded and endured through the great Chicago political technique of waiting out the storm. Chicago has faced scandals in the past, even nationally televised beatings of defenceless protestors in 1968, which have been shrugged off the City’s broad shoulders.[12] The political establishment endures as all parts of the city establishment have a stake in the system’s survival. No part wants reform in any part which will affect their overall benefit. As a result, reform is nearly impossible. The police, though, are now on the back foot as Rahm’s talk of reform and the public spotlight have suggested reform might occur this time except it seems to be the same appearance of reform as all the other times the City claimed it would have police reform after a crisis.[13] The police may have to change the way they work and become accountable. However, the police have not endured as part of the Chicago political establishment by being unable to engage effectively in their own bureaucratic trench warfare. Even with such a public event, it would be surprising if the CPD simply accepted reform that they did not want to implement. In a few years as attention shifts to other issues, the Police and the Mayor will be locked in the political trench warfare to manage the appearance of reform let alone real reform.

The shooting of Laquan McDonald was indefensible. We cannot let anything like it ever happen again. As mayor, I am committed to fixing our broken system and holding our police and my administration to the highest standards. That way, Laquan’s death will not have been in vain.

The Mayor begins the final section of the article with a bold statement. He states that the shooting was indefensible. How can he know? The officer is entitled to trial so such claims could be considered prejudicial. The officer has not made his defence and should have his day in court to explain his behaviour. He then continues in that bold vein by claiming that we cannot let it happen again. How that is to be done is unclear as he does not explain what that will require. We may reduce abuse, but as he expressed earlier, at the middle of his article, the body cameras should reduce incidents, but will it prevent it? One could almost believe he has sandwiched his doubt, qualification, and uncertainty between his bold statements at the start and the end.

The Mayor continues with a commitment to fix the system, hold the police to account, and hold his administration to the highest standards. The obvious question, though, is: “If the administration and the police were not being held to the highest standards before, who will hold them to account now?” We know the City, the administration, and the police have had critics who have been calling for reform for decades.[14] The Mayor makes his statement as if it is the first time, or an innovation, to consider that the system is broken and standards have to be met. Will the Mayor fix a system that has condoned the police behaviour, and pay out over $500 million to settle claims of abuse and shootings by the police over the past 10 years? Can he reform such a system? The brutal truth is that the system is beyond reform. The Mayor cannot deliver what he claims; he can only hope to deliver the appearance of reform. The City knows this and the people know this. The only people who do not realize this are the people who continue to call for reform. The system has no desire to reform; it has shrugged off such reform because no part of the system gains more from reform than they will lose from reform.[15] To put it directly, the City knows that dishonesty, corruption, and silence pay better than honesty, integrity, and accountability.[16] The City’s factions, the powerful financial figures who do business within the city, benefit from this arrangement. So long as crime is kept within the black communities and away from the neighbourhoods where the powerful financial faction live, the City “works”. [17] The city is deeply segregated and as long as white cops shoot black men in black neighbourhoods, the City shrugs its broad shoulders.[18] That is the Chicago way. The task is too great. The divide is too deep. The Chicago political establishment thrives on this segregation and no one; in particular the establishment wants to change it.

The Mayor’s claim is simply empty rhetoric. He knows this which makes his claim so cynical. He cannot reform the system and he has no desire to reform for two main reasons. First, the system, as a system, is designed to work for the mayor. Even if he personally as a moral agent desires reform and abhors the corruption, segregation, and brutality he cannot change the system. His political power, the raison d’etre of the political system including the Mayor’s office, is based on the system. Second, he has nothing to gain from changing the system. What he has to do is deliver the appearance of change. As long as the City and the system continue to work for the powerful factions and the appearance of reform delivers that continuity, he will have succeeded. He cannot affect reform without the corrupt system. He cannot appeal to the people. He cannot appeal to the media. He cannot even appeal to the federal government. The Mayor is trapped in a corrupt system he cannot reform. At best, he can save himself but not save the city.

The Mayor closes the article with the second reference to Laquan McDonald. He invoked him at the start and here at the end to reinforce his call to reform. What is noteworthy is the way in which his language encourages us to believe that Laquan’s McDonald’s death will only have meaning should reform occur. One immediately has to ask whether the other the lives of the other police victims over the past 10 years, if not longer, have been in vain. We would like to believe that the Mayor wants to eulogize Laquan McDonald’s death as a call to remind the City that it needs to reform lest it to suffer his fate. Laquan McDonald’s death is in vain. The Mayor has ensured that it was by the swift financial settlement. His death is another political event to be exploited for short term political purposes that have no long term consequence for Chicago corruption. His death has meaning if it can serve the Mayor’s ambition, but it has no meaning for a city long inured to such deaths.

We end, where we began, the Mayor has set out his ambition for reform based on the opportunity that Laquan McDonald’s killing offers. The Mayor has revealed more than he realized, or perhaps intended, for we now can see that what matters most, what gives events meaning, is if an event or a person can serve the Mayor’s ambition. Yet, the deeper message, perhaps unintended by the Mayor is that his speech is a funeral oration for the City. The City cannot reform itself. It does not matter if he delivers on the reform. He has survived the tactical moment because he has promised the appearance of reform. What he does not realize, or perhaps he does, is that he cannot win the war. Reform is impossible. What we have been treated to a masterclass in political rhetoric, positioning, and political virtuosity as the Mayor shows he can use a crisis to effect and survive by tapping into the City’s enduring ability to resist reform. In that moment, the Mayor came home. He proved he is part of the system.

The brutal truth is that even if the voters oust the Mayor, the system will endure. That is the deeper message of his article. The eulogy is not for Laquan McDonald. The Eulogy is for Chicago’s fight against corruption for it is a fight against itself. Chicago, thy name is corruption.[19]



[2] That Emanuel quote is: “You never want a serious crisis to go to waste.” source for the quotation is The video is insightful for what it says about the financial industry with transparency and accountability, which are two things lacking in Chicago politics and the Chicago Police Department.

[3] The money over that time could have paid for: ”Nearly covers the $600 million contribution that state law requires Chicago to make next year to its underfunded police and fire pension funds. Or Could build five high schools like the state-of-the-art building the city recently developed in the Back of the Yards neighborhood. The 212,000-square-foot school has space for 1,200 students and includes five computer labs, six science labs, a gymnasium and an indoor swimming pool. Or Could pay for the repaving of 500 miles of arterial streets, based on a city spokesman’s estimate of it costing $1 million per road mile. Or Could cover the cost of building 33 libraries like the one scheduled to open this summer in the Albany Park neighborhood. The 16,300-square-foot building includes a landscaped reading garden and 38 public computer terminals.

[4] “The city said the dashboard camera video could not be released while the FBI and the U.S. Attorney investigated the shooting. Take our word for it, they said. The video was described to Brookins as “horrific.””

The tape was not shown to the City Council when they voted to pay the family $5 million to settle their claims in April 2015. “The Chicago City Council approves a $5 million settlement with McDonald’s family before they even file a lawsuit. Aldermen are not shown the video of the incident before approving the settlement, even though city Corporation Counsel Stephen Patton said the footage influenced the city’s decision to settle before a lawsuit.”

[5] For an analysis of the Freedom of Information request process see

[6] “The Wall Street Journal, the Chicago Tribune and a freelance journalist all filed FOIA requests for its release.”



[9] See for example the quarterly reports by the City of Chicago Independent Police Review Authority

[10] One wonders if the City needs the cameras to try to reduce the legal costs. The police brutality is so bad that if someone does bring a lawsuit the city is likely to settle or lose because the police have a reputation for brutality, covering up, and lying.( ) ”But many complaints dismissed by investigators later resulted in settlements after the accusers pursued lawsuits, according to a Chicago Tribune investigation.” On the problem of police corruption and the blue wall of silence see

[11] “Former Massachusetts governor and Chicago native Deval Patrick will serve as a senior adviser to the task force, the mayor’s office announced. Patrick also previously served as an assistant attorney general for the civil-rights division under President Bill Clinton.

The task force will be made up of five members, including:

  • Sergio Acosta, former federal prosecutor
  • Joe Ferguson, former federal prosecutor and Chicago’s inspector general
  • Hiram Grau, former director of the Illinois State Police and former deputy superintendent of the Chicago Police Department
  • Lori Lightfoot, president of the Chicago Police Board and a former federal prosecutor
  • Randolph Stone, director of the University of Chicago’s Criminal and Juvenile Justice Project Clinic and a former public defender” What is noteworthy is that these are all a “safe pair of hands” as the panel does not contain any police critics or victims’ rights campaigners.



[14] See for example the work of Craig Futterman at the University of Chicago Law School.

[15] Even the judges have been caught in corruption probes.

[16] See for example this website dedicated to chronicling the City’s corruption. The 8 reports, the most recent published in May 2015 outline the scale, depth, and scope of the public corruption. From corrupt cops to ghost crews of non-existent workers on the public payroll, the city lives by corruption. Everyone condemns it even as they benefit from it or participate in it. Only the most egregiously corrupt are convicted and usually of a lesser offence.

[17] “While detractors point out that he did nothing to integrate what had then become known as the most segregated city in the nation, others argue that he was acting on behalf of his constituency, who did not want an integrated Chicago.”


[19] Word Origin and History for Chicago


town founded in 1833, named from a Canadian French form of an Algonquian word, either Fox /sheka:ko:heki “place of the wild onion,” or Ojibwa shika:konk “at the skunk place” (sometimes rendered “place of the bad smell”). The Ojibwa “skunk” word is distantly related to the New England Algonquian word that yielded Modern English skunk (n.). Related: Chicagoan. chicago. (n.d.). Online Etymology Dictionary. Retrieved December 27, 2015 from website

Posted in corruption, FOIA, Government, Uncategorized | Tagged , , , ,

Did Cicero writing in 44AD predict the rise of libertarianism and Donald Trump?

Did Cicero writing in 44AD predict the rise of libertarianism and Donald Trump?

In his dialogue De Re Publica (The Republic) Cicero wrote an eerily prescient description of the libertarian movement. In this passage, the character of Scipio quotes from Plato’s Republic. The context is a private gathering where the group try to understand the best form of government. Scipio describes what happens when the people have complete power.

“Therefore, he concludes, “the final result of this boundless licence is that the minds of the citizens become so squeamish and sensitive that, if the authority of government is exercised in the smallest degree, they become angry and cannot bear it. On this account they begin to neglect the laws as well and so finally are utterly without master of any kind.” (De Re Publica Book 1 XLIII 67)[1]

The desire for licence leads the multitude to shake off the rule of law.[2] They will follow their appetites and passions, whatever the mob wants they get no matter the consequence. The consequence from such licence is not more freedom, it leads to tyranny.

We want to be free so let’s elect a tyrant to protect our freedom

Scipio departs from Plato for his own understanding of the situation. He describes how a tyrant emerges from this excessive licence. The passage could easily describe Donald Trump or even Vladimir Putin.

“This extreme liberty gives birth to a tyrant and the utterly unjust and cruel servitude of the tyranny. For out of such an ungoverned, or rather, untamed, populace someone is usually chosen leader against those leading citizens who have already been subjected to persecution and cast down from their leadership—some bold and depraved man, who shamelessly harasses often times even those who have deserved well of the State, and curries favour with the people by bestowing on them the property of others as well as his own.” (De Re Publica Book 1 XLIV 68)

The situation he describes in 44 AD seems to resemble what is happening in both Russia and the United States. What is striking is the way that bold and depraved men emerged in Russia and America.

A bodyguard as a sign of a love of tyranny

In all cases, the leading men who sought tyranny, or praised tyranny, were also surrounded by armed guards. What Cicero suggests is that leading figures that have bodyguards do so to the extent that they desire tyranny.

“To such a man, because he has reason to be afraid if he remains a private citizen, official power is given and continually renewed; he is also surrounded by armed guards[3], as was Pisistratus at Athens; and finally he emerges as a tyrant over the very people who have raised him to power.” (De Re Publica Book 1 XLIV 68)

What is consistent is that leaders like Trump or Putin emerges when one political faction wants to have revenge against another. Such leaders exploit anger, resentment, and fear, by promising their followers they will punish those who create their problems. In the United States, Trump claims that he will make America Great Again. To do this, he will stop those who undermined America’s greatness. Yet, Americans ought to be suspicious of his claims.

Voters may want revenge, but at the cost of their own freedom?

The fable of the horse and the stag is a salutary tale for today’s voters. If you want to punish your political opponents [insert the faction you despise] be careful it is not at the cost of your own freedom.

“The horse agreed to the terms and the man mounted him, but instead of obtaining vengeance on the stag, the horse from that time became the man’s slave. So then,” said he, “do you take care lest, in your desire to avenge yourselves on the enemy, you be treated like the horse. You already have the bit, since you have chosen a dictator; if you give him a body-guard and allow him to mount you, you will at once be the slaves of Phalaris.”[4]

As Cicero explained, a fearful people intoxicated by licence will turn to a tyrant. They will accept his promises of protection to ensure their continued licence.

Will America turn to Trump?

[1] Cicero Volume XVI Loeb Classical Library 213 On the Republic. On the Laws Translated by Clinton W. Keyes 1928 DOI: 10.4159/DLCL.marcus_tullius_cicero-de_re_publica.1928

[2] Lincoln warned America that it had to remain faithful to its civil religion, obedience to the laws, or it would be destroyed from within. In its zeal for freedom, the Libertarian movement encourages a disdain for government and the laws which encourages political licentiousness.

[3] It is worth noting that Roger Ailes goes with an armed security detail and his home is protected by armed guards. One wonders if the need for armed guards reflects his sympathy if not desire for tyranny.

“Ailes begins each workday buffered by the elaborate private security detail that News Corp. pays to usher him from his $1.6 million home in New Jersey to his office in Manhattan. (His country home – in the aptly named village of Garrison – is phalanxed by empty homes that Ailes bought up to create a wider security perimeter.) Traveling with the Chairman is like a scene straight out of 24. A friend recalls hitching a ride with Ailes after a power lunch: “We come out of the building and there’s an SUV filled with big guys, who jump out of the car when they see him. A cordon is formed around us. We’re ushered into the SUV, and we drive the few blocks to Fox’s offices, where another set of guys come out of the building to receive ‘the package.’ The package is taken in, and I’m taken on to my destination. ”Ailes is certain that he’s a top target of Al Qaeda terrorists. “You know, they’re coming to get me,” he tells friends. “I’m fully prepared. I’ve taken care of it.” (Ailes, who was once arrested for carrying an illegal handgun in Central Park, now carries a licensed weapon.) Inside his blast-resistant office at Fox News headquarters, Ailes keeps a monitor on his desk that allows him to view any activity outside his closed door. Once, after observing a dark-skinned man in what Ailes perceived to be Muslim garb, he put Fox News on lockdown. “What the hell!” Ailes shouted. “This guy could be bombing me!” The suspected terrorist turned out to be a janitor. “Roger tore up the whole floor,” recalls a source close to Ailes. “He has a personal paranoia about people who are Muslim – which is consistent with the ideology of his network.””

For a counter argument consider

Allegation: “Ailes had two bodyguards escorting him into the building.”

Ailes: “I don’t have two bodyguards, I have one part-time bodyguard.”

However, FOX appears to attract special NYPD attention depending on threat information.

[4] Aristotle. Rhetoric Book 2 Chapter 20 section 5

Posted in corruption, justice, republicanism, statesmanship | Tagged , , , , , ,

In the UK, political philosophy is a pre-crime

Soldiers of the United States Army Criminal In...

Soldiers of the United States Army Criminal Investigation Division inspecting a crime scene. (Photo credit: Wikipedia)

Only a brave self-confident community can tolerate a man uncompromisingly dedicated to the open quest for truth. –Harry Neumann

On the surface, the idea seems to be ludicrous like something Philip K. Dick might write. He coined the term “pre-crime”[1] to refer to criminalizing thoughts or behaviour before the crime is committed. The idea, better suited to a fervid imaginary world, is now a reality in the United Kingdom (UK). The police and the counter terrorism forces rely on the idea of pre-crime in their work. They call the time and space before a crime occurs as the pre-criminal space, which they want to manage or influence to prevent the crime.[2] It is not enough to punish the crime after it occurs, they want to prevent the crime.

The UK, like the United States, faces terrorist threats. To counter these threats, which they classify as threats to national security, they have developed counter terrorism strategies. The strategies combine law enforcement and national security in a way that requires the existence of a pre-criminal space. Traditionally, law enforcement was what occurred within a state and international politics outside of it. Thus, many states have laws against using their own foreign intelligence agencies for domestic purposes. Moreover, many states will not recognize the authority of law enforcement officers who come inside their borders.

The pre criminal space is a common term in counter terrorism work with the focus on preventing something from happening. It exists before an event which would be a crime under domestic legislation or an act of war in the international realm. However, the goal is not to reduce the opportunities to commit crimes or change the context in which crimes are committed as it in in law enforcement. However, the duality of domestic and international becomes blurred as law enforcement becomes national security.

In the Counter Terrorism Act 2015[3] (CTA2015), which is part of the UK’s Counter Terrorism Strategy (CONTEST), public sector organisations have a duty to prevent terrorism. The PREVENT pillar of CONTEST explains how they will discharge that duty.[4] To help public sector organisations, the government issued guidance and training called “Workshop to Raise Awareness of Prevent” (WRAP). In the workshop guidance, the government says that terrorism begins in the pre-criminal space.

The government wants to manage the pre-criminal space as it believes this to be the only way to stop people becoming terrorists or supporting terrorism. With the PREVENT strategy, the government wants public sector organization to identify and support vulnerable individuals at risk of being groomed in to terrorist activity. They want to prevent these individuals from being radicalized. The strategy says that radicalisation is comparable to other forms of exploitation; it is therefore a safeguarding issue staff working in the health sector must be aware of.[5]

Formally, only a court can determine who is a criminal as they are space in which verdicts are reached. The court does not label someone ‘terrorist’. [6]  By contrast, counter terrorism exists within a political sphere that seeks to identify future terrorists so they can be punished, if necessary, without charge, prosecution or conviction. [7] In the pre-crime space, a person’s behaviour, speech, or thought is enough for the state to act. In particular, the state will act to prevent radicalisation that convinces and encourages people to carry out terrorist acts. As the pre criminal space is where the pre-crime of the radicalisation process begins, the PREVENT strategy focuses on it. However, the criminalisation of potential behaviour is not limited to radicalisation that leads to terrorism.

The potential consequences of your actions can make you a criminal

In the UK, various counter terrorism legislation criminalizes activity based on potential consequences even though no crime or event occurs. For example, if you sell something to a terrorist, even if you do not know they are a terrorist, you can be prosecuted for the sale.[8] The CTA2015 continues the pre-emptive trajectory so that if you speak and thus think about radicalisation or extremism you can be charged with a crime. As mentioned earlier, the goal is to prevent or stop radicalisation. To fulfil this duty, the government created the CHANNEL duty for all public authorities which is a police coordinated multi-agency programme, to identify and provide support to people at risk of radicalisation, the vulnerable person.[9] As radicalisation manifests itself in a variety of ways such as changed behaviour and changed language, the CHANNEL process reminds its members to be vigilant and report *any* concerns. When a person is radicalised, they are encouraged to see violence and breaking the law as a way to solve their problem.[10] Even though many people who are radicalized are not violent, they are encouraged to see violence as a possible if not *the* solution.[11] At its root, what the strategy seeks to prevent is someone going from words to deeds. The public believe that the law only applies to extremists with extremists only those who advocate violence. However, everyone seems to miss the fact that the laws apply to everyone. Everyone, by definition, is a potential terrorist awaiting radicalisation in the pre criminal space. Everyone lives within a pre criminal space according to the strategy. We are all pre criminals awaiting the opportunity to act.

How does this relate to political philosophy?

The short answer is everything. The process by which radicalisation occurs is the same process by which someone is awakened to philosophy with the same potential outcome.[12] When the government literature describes the radicalisation process they also describe how Socrates behaved. He taught his students to question authority. He also suggested that Athens was not the ideal society and that its gods were not worth following. Moreover, one of his followers, Alcibiades was know for genocidal talk when he said “The un-examined life is not worth living.”  If Socrates were alive in the UK today, he would be considered a radicaliser. Even though he never encouraged violence for political change his writings showed dissatisfaction with the existing political regime and he was known to have tyrants and potential tyrants as his students. He would be immediately suspect under the Prevent strategy. He tried to replace opinion about the best way of life with knowledge of the best way of life. Such activity is by its nature designed to challenge if not change opinion about the current way to life. Leo Strauss described philosophy’s threat.

“In studying certain earlier thinkers, I became aware of this way of conceiving the relation between the quest for truth (philosophy or science) and society: Philosophy or science, the highest activity of man, is the attempt to replace opinion about “all things” by knowledge of “all things”; but opinion is the element of society; philosophy or science is therefore the attempt to dissolve the element in which society breathes, and thus it endangers society.”[13]

At the best of time, even in a regime as tolerant of inquiry as Athens was, the activity is dangerous. We know that Athens killed Socrates for they could no longer tolerate his threat to their way of life. His inquiry was too extreme for the city.[14] They had to close off some ideas from inquiry for he was corrupting the youth and did not believe in the city’s gods. In its own way, the Prevent strategy closes off some thought as criminal. Socrates understood that by suppressing him, Athens was hurt itself more than it hurt him.

According to Socrates, the suppression of free inquiry for any reason necessarily corrupts its victims.[15]

Yet, the society cannot exist if it does not suppress those opinions which threaten it. The tension between society and the individual is what makes philosophy a dangerous activity.

Political philosophy is reportable activity under the Counter Terrorism Act 2015

In the UK, such philosophical activity would have to be reported to the police as it would be considered pre-crime.[16] Anyone who discusses the best life, a life that did not conform to the orthodoxy, would be considered to have attempted to radicalize their listeners. You will have encouraged them to think that the regime may not be just, beneficent, or legitimate.[17] As Strauss explained in The Argument and the Action of Plato’s Laws

The quest for the best laws seems to compel the Athenians to transcend the laws of Athens and to become the pupils of an enemy of Athens—to act in a way which could appear to be unpatriotic. p.1

Socrates teaching implied that the basis for ruling was either wisdom or pure consent. Both of these would challenge any regime’s legitimacy. Even though Socrates never sought political office, we know that many of his followers were tyrants or would be tyrants. As a result, he was considered disreputable for he was accused of teaching the tyrannical art. In today’s language, he would be charged with having radicalized his students.

Philosophers used to be able to protect themselves, now there is no place or way to hide.

Philosophers[18] usually protect themselves by philosophizing in private.[19] We note that Plato’s Republic, which discusses the best city, occurred in private household at night and Plato’s Laws occurred during a secluded walk to a cave. Yet, if such behaviour was discovered, it would need to be reported to the police. Another way the philosopher might be able to avoid the charges against him would be to write esoterically. In this the philosopher would avoid talking directly about the topic so as to avoid upsetting the censors. The problem is that under the Counter Terrorism Act, the censor is no longer the government, it is the public. Everyone has a duty to report such behaviour for the failure to report it would make the person an accessory to a pre-crime. Philosophy is now impossible. One can only talk of the orthodoxy for to discuss heterodox views is to be reported to the police. Philosophy that conforms to or confirms the orthodoxy becomes ideology. What is surprising is that all of this has occurred without even a whimper from the country’s leading thinkers. In a sense, it suggests that philosophy, in particular political philosophy, has ended. Philosophy’s end, though, is not because history has ended or we have reached a liberal democratic future, it because as Leo Strauss argued in On Tyranny, all societies seek to tyrannize thought.[20]

Why do people obey the law or do we educate the young to be citizens?

The public who find the political order benefits them see no reason to challenge it or question it. The laws work for them. The political system listens to them, gives them a voice, and delivers for them. They obey the laws as they appear legitimate. They are educated, in a sense, to see the system as legitimate. The laws appear legitimate for the benefits they provide. As part of the education, the citizen is encouraged to believe the regime, which creates the laws, exists by consent and thus serves their interests. As people see Parliament elected, they believe the appearance backed by the laws, which creates a powerful barrier to challenge or change it. Even civil disobedience or an attack on the regime through speech if not by deed, would require someone to overcome the regime’s appearance of legitimacy before change could occur. Such an education, one counter to the regime’s, is now impossible. The terrorism policy, guidance, and training reinforce the status quo by indicating any other education is radicalism. As a result, any inequality political, economic, or social is permanent or nearly permanent as pre-crime can stifle any dissent. It is only enough to show that such thought or speech threatens the regime with the potential that it could lead to terrorist activity to be sanctioned. Even though the policy, the guidance, and the government are at pains to deny or at least downplay that possible outcome, it exists.[21] They will, rightly, point to the guidance that says that some discussion or debate is tolerated. They avoid the obvious point, though, that it can be used to identify would be radicals. Moreover, such discussion can only occur with the understanding the speakers were either authorised by the state or acting as criminals.[22] However, the law creates its own perversity, which undermines the idea of free inquiry which is supposed to support the state.

The government approves all change to maintain the status quo.

The government never asks “Why do people obey”. They take it for granted that people will obey and the order is legitimate. The government acts on the belief that the political system is open to peaceful change where the public domain allows ideas to be discussed even those that might challenge the limits of orthodoxy. In this fashion, they believe that the system is tolerant. They cannot truly understand why people disobey or want to change the political system by persuasion or by violence if necessary. Yet to discuss such an issue, reveals pre-crime’s perverse paradox. To ask why people obey and what makes the political system legitimate or good is to engage in political philosophy. Such an activity, especially outside of an academic setting such as this blog, would be to engage in pre-crime. It raises questions about the regime that could be described as the process to radicalization. The constraints mean that we cannot question the status quo as legitimate and just *even if* we know that it is not. Moreover, we cannot discuss why it is just or what makes it just.[23] The public must not question authority or the status quo for that is to engage in pre-crime.

In the UK 2015, we now have a law that forbids philosophy. You may wish to ask how we came to this point, but if you do, though, you can be charged with a crime.

[1] In his short story, The Minority Report, Dick named the criminal justice agency “Precrime”. The agency worked to identify and eliminate those who will commit crimes in the future. In a sense Dick was following an earlier tradition that believed that some people were born criminals and those criminal traits could be identified and therefore predicted, criminals would have children who were criminals, and thus prevented. Today, counter terrorism agencies try to prevent events from occurring so they seek to anticipate the threats which leads them to view any temporal or physical realm as a pre-crime space. In effect, anything before a crime occurs is a pre-crime space, which allows counter terrorism, in its effort to prevent an event, to combine law enforcement and national security without reconciling the tension between the two. As McCulloch and Pickering point out, there is a tension between the two as law enforcement relies on the idea of impartial criminal justice while national security is partisan and politically charged. Jude McCulloch and Sharon Pickering Pre-Crime and Counter Terrorism: Imagining Future Crime in the “War on Terror” British Journal of Criminology 2009 49 (5) 628-645

[2] See ACPO guidance for the management of extremist speakers 2015


[4] 1.12. Our counter-terrorism strategy will continue to be organised around four work streams, each comprising a number of key objectives• Pursue: to stop terrorist attacks;• Prevent: to stop people becoming terrorists or supporting terrorism;• Protect: to strengthen our protection against a terrorist attack; and• Prepare: to mitigate the impact of a terrorist attack.

[5] NHS England – Prevent Training and Competencies Framework p. 5

[6] McCulloch and Pickering p. 630

[7] See McCulloch and Pickering 2009 p. 629-630

[8] See for example section 5 of the Terrorism Act 2006. as described by Lucia Zedner (2010) Pre-crime and pre-punishment: a health warning, Criminal Justice Matters, 81:1, 24-25, DOI: 10.1080/09627251.2010.505409

[9] The language always stresses that the person who is radicalised is vulnerable. Often times, it is suggested that if they are a potential target they are impaired in some way. It suggests that radicalisation is a pathology which needs a medical response. The question that the government cannot answer is what to do with someone like Martin Heidegger who was radicalised into an extremist ideology? Would he be a vulnerable person under this system? How would the CHANNEL and PREVENT system deal with him? Would he be banned from teaching?

[10] There are a variety of models on the radicalisation process. Most agree that it is a process with debate over the stages, whether the states are distinct, whether one stage is more important than another and whether the right stages are identified.

The UK Prevent Strategy describes it as “Radicalisation refers to the process by which a person comes to support terrorism and forms of extremism leading to terrorism.”

[11] See for example Alex Schmid’s work

[12] We only need to note that Socrates was accused of teaching the tyrannical art (Strauss On Tyranny p.32) and one of his most famous students Alcibiades was known for his tyrannical aspirations as well as well as the tyrannical consequence of a belief that the unexamined life was not worth living.

[13] Leo Strauss “On a forgotten kind of writing” pp 221-232 What is Political Philosophy and other studies University of Chicago Press 1959

[14] The Athenians, like all societies, had a limit set by their fear for self-preservation. Socrates wanted the rule of the wise which would mean that Athens would have to relinquish its rule. The individual would rule the city. In the 21st century, though, political society suppresses speech not for fear of self-preservation but simply out of safety for any citizen. Whereas Athens faced an existential threat before it suppressed Socrates, the UK and the United States have lowered the threat to the death of any citizen from terrorism. We have gone beyond what Hobbes created where man feared violent death, it is now just the potential fear, let alone the reality of such fear or the actual death, that justifies suppressing free speech.

[15] Socrates and the Tragedy of Athens Harry Neumann Social Research, Vol. 35, No. 3 (AUTUMN 1968), pp. 426-444 . P.428

[16] Even though the legislation says that universities have to promote freedom of thought, it does not exempt them from the legislation. Thus, anyone teaching political philosophy or even philosophy would be committing a pre-crime under the legislation as they could be consider to be radicalizing their listener. Under section 31 of the CTA2015, the speaker could have a defence of academic freedom of freedom of speech in an academic setting. However, that does not cover anyone outside that setting.

[17] In particular, if you point out that the regime is not based in consent but that the Queen rules through force of arms, all coercive power within the regime swear a personal oath of allegiance to her, then you indicate that the regime is flawed form a Xenophon’s Socratic perspective. Xenophon’s Memorabilia (I, 2.41-46),

[18] People who teach political philosophy or philosophy are not philosophers.

[19] One could argue that this is nearly impossible with Internet of Things and the myriad forms of surveillance now possible through platforms like Vine, Periscope.

[20] On Tyranny p. 27.

[21] The legislation states that Universities will be required to protect academic freedom. Yet that immediately raises the question of what happens when that teaching threatens the regime? How far will the regime tolerate such teaching?

[22] The government, it would appear, would like to lull the public into believing that the laws, strategy, and guidance only apply to “extremists” and anyone else has nothing to fear so long as they obey the law and do not speak up.

[23]Parliament is exempted from the legislation but as they already exist beyond the law and the system exists to serve them, there is no chance they would challenge or change the system. They resist the rule of law so why should they want to do something even more radical such as question their legitimacy? Lord Neuberger recognized this point when he quoted Lord Justice Laws,

“It may be that my perceptive and far-thinking colleague , Lord Justice Laws, will one day turn out to be right when he argued that, through judicial development of the common law, ‘a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law.61 ’ But we are not there yet.” (the footnote is from: Laws, Illegality and the Problem of Jurisdiction, in Supperstone & Goudie (eds), Judicial Review, (Butterworths) (1997) 4.17 cited in Goldworthy, The Myth of the Common Law Constitution in Edlin (ed), Common Law Theory (CUP) (2007) at 204)

Posted in censorship, justice, philosophy | Tagged , , , , | 6 Comments

Daniel Morgan’s Murder, police corruption, and the health of the UK regime

Daniel Morgan was brutally murdered with an axe. In the days before his murder, he had claimed to have information about a network of corrupt police officers. Despite, 6 investigations and two failed prosecutions, his killers have never been brought to justice. They have escaped justice in part because of police corruption. Police corruption during the initial investigation has made it unlikely that his murder will ever lead to a prosecution. The Metropolitan Police Service failed him and his family. They failed to bring his killers to justice. They failed to address police corruption. They failed to resist and unhealthy relationship with the UK media, in particular News International. The corruption coupled with the corrupt media relationship makes his case notable as it challenges the United Kingdom as a decent society. If Daniel Morgan cannot get justice, who can? When the police and the press are corrupted, who is safe? In response to the corruption, failures, and denial a relentless campaign has forced the government to hold a public inquiry.

The public inquiry[1] set up in May 2013 to explore the evidence from the police and others sources has the following terms of reference.

  • Police involvement in the murder
  • The role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption
  • The incidence of connections between private investigators, police officers and journalists at the News of the World and other parts of the media and corruption involved in the linkages between them.

A previous post covered the first item on police involvement in the murder. It suggested that the relationships needed to be mapped to see their effect.

The paper focuses on the second point. It defines political corruption and explores the failure to confront corruption on three interrelated levels—the individual, institution, and the regime.


At the institutional level, the police had a corrupt relationship with News International. The company subverted police objectives. At the regime level, the police were corrupted by the regime’s demands.

The analysis will interest to anyone researching corruption. The institutional corruption can also apply to corporations who can be subverted by a powerful patron. The regime level will interest scholars in political philosophy as it connects the regime level to a particular problem. Most importantly, I hope it will be of interest and use to anyone who has followed the Daniel Morgan case. Police corruption threatens the citizen’s safety by weakening their access to public justice. Without a secure access to public justice, a decent society or decent politics is tenuous. When a citizen lacks access to public justice, they appeal to force or power as justice through consent to the laws is impossible. For the UK regime, this threat is particularly problematic.

I welcome your comments on this paper. I encourage you find out about Daniel Morgan’s murder.[2] It exemplifies the problem of justice when the police are corrupt. If Daniel Morgan cannot get justice, who can?


[1] The Daniel Morgan Independent Panel (DMIP) home page is here:

[2] The following are a list of sites, in no particular order, that contain useful information about Daniel Morgan, his life, his death, and the long, strange, frustrating case. The Morgan family’s campaign to get justice for Daniel. The Wikipedia entry about his murder A well known legal blogger’s material on the case. A blog with a good history of the case. A blog that covers the police issues including relevance for the phone hacking cases and police corruption A good resource on police corruption and the Daniel Morgan case.

Posted in corruption, justice | Tagged , , , | 1 Comment

Initial analytical thoughts on Paris Attacks.

English: Hideout of Osama bin Laden, the locat...

English: Hideout of Osama bin Laden, the location of his death, in Abbottabad, Pakistan. (Photo credit: Wikipedia)

The following are some initial thoughts on the Paris attacks. The analysis relies on information in the public domain and includes what is known about previous attacks of a similar nature. I hope the following helps others to understand the questions that will need to be answered over the coming months. The goal is to inform the general public about the attacks.

The attackers

As the authorities continue to identify the attackers, we need to analyse the attacks. The attacks were coordinated which raises the questions of how, where, and when were they planned. Were they planned abroad and executed locally? If this is the main operating assumption, then several more questions emerge.

If the attackers coordinated their efforts, how did they communicate? If they relied on an external network for support what was the system they used to communicate? Did they rely on encrypted phones? Or, did they rely on less technological systems such as coded letters, face to face meetings, and pre-set plans? If they relied on encryption, was the French intelligence unable to track them? If the attackers were using less technically sophisticated systems, how can the intelligence services adapt? In particular, will this be a template for future attacks in US or UK?

The targets

The authorities will need to consider why the targets were chosen. The threat model will help them to protect against future attacks. However, we do not know why they chose these targets except for their availability and vulnerability. Many commentators have suggested that they were chosen as they were less guarded or “softer” than higher profile sites such as the Eiffel Tower. If they were, then we need to look at ways to protect those targets, which may need short term changes, such as identity checks, increased surveillance on known networks, changed security patrols in such areas.

Was President Holland a target for the attack on the football match? It is unlikely as the attackers will know he would be heavily guarded. The stadium may have been a target as it would contain a large crowd as well as a large television audience. If the President was the target, how did the attackers know he would be at the match? Although the President may not have been the target, the French authorities will need to check their security rules as well as publicity around the President’s travel itinerary.

The attackers would have chosen a specific time and date. However, we do not know why they chose this date or time so they may not be symbolic as they are opportunistic. If the date is symbolic or is connected to something else, future threat profiles will need to cross reference dates in the future.


The recovered weapons will help the authorities understand the network that supported the attack. The weapons will have been purchased abroad. Where and when they were purchased will provide details about the attackers’ logistics. The same questions will be asked about the grenades and other explosives. Many times these are bought separately and provided to a pre-arranged drop. The weapons will also show the level of training and experience the attackers had. They may have travelled abroad for weapons training or may even be ex-military. Even though the weapons are not advanced, the user needs some training and experience to use them effectively.

If the explosives are homemade, then it indicates they could not buy them. The weapons seem to be ones that are relatively easy to get and traffic without raising as much attention. More exotic weapon such as chemical weapons or a fertilizer bomb will attract more attention. At the time of writing, we do not know the type of explosives or their make. If a network supplied the attackers, the weapons may have been purchased by a different group so it would not seem linked to the group or their plan.


It is too soon to call this an intelligence failure. The phrase is now used as a sloppy short cut to say the authorities failed if an attack succeeds. It creates a false image of intelligence and how the security services detect, disrupt and prevent such attacks. Often times, the intelligence exists but no one can see the pattern until after the missing details emerge. We do not know what intelligence was available and how the warning signals were shown from the noise. We have to remember that intelligence is about connecting the dots quickly *backwards* to prevent something. No one can connect the dots going forward as contingencies can always disrupt or delay plans.

The French intelligence services may have seen signals and were in the midst of unravelling them when the attacks occurred. If we consider the following scenario, we can see the difficulty with intelligence and surveillance. The French could have received intelligence that an attack was planned this week in Paris. What exactly would they do? They could increase security or awareness, but where do they focus? The main targets? As they know neither the date nor the time nor the place, it is hard to prevent such an attack even if you pick up signals.

As we know from the 7/7 attacks in the UK or the Lee Rigby attack, it matters little if an attacker is “known to the police” as they do not have the resources to track everyone constantly in real time and know their motives. They face limited resources; especially the natural issue of what is a “threat”, against variable threats which means they have to manage the current risk against an expected risk.

If the plan was set up several months ago and applied over 48 hours, then it is harder to prevent. How can the French police intervene even if they have real time intelligence that an attack is due the week of 9 November? The French would be unlikely to know the quality of a plan designed 6 months ago and be able to connect it to events that might or might not unfold over the next 48 hours.

Counter Intelligence

To disrupt or prevent attacks or plots, the authorities need to penetrate those networks. To penetrate a network, though, the authorities need more than electronic surveillance. They need to have human intelligence that can provide reliable intelligence. The intelligence agencies have to be able to decide whether the source is legitimate or trying to spread false information.

As we know from the attempt to track down Osama Bin Laden, Al Qaeda can conduct counter intelligence. They killed a number of CIA officers after they were enticed with plausible intelligence on Bin Laden. All intelligence agencies have to sift the valid signal from the noise and the false signals.

Was there a cost to responding to Charlie Hebdo?

The French authorities may have disrupted their own intelligence networks to capture the Hebdo attackers, which left them vulnerable to the latest attack. We have to consider that the intelligence effort to find the Hebdo attackers, such as squeezing assets for information could reveal those assets. It may have reduced their use as an asset. Once others are aware of people in a neighbourhood or a community are involved with the security service, they might be killed or avoided in the future, which reduces their effectiveness as an asset. The Charlie Hebdo attack may have been a practice for this attack or as a cover for this to distract the French from the other plots. We have to consider the possibility that there could be sleeper cells that can be activated to plans prepared months earlier.

A further problem is that the attackers may have coordinated their attacks from abroad. The local networks that the French monitor would be unaware of the attack. If the attackers arrived recently, it would be too late to warn the authorities. For example, someone hears something on Thursday but does not know its significance. They might tell their French intelligence handler but the urgency or importance of the information is not understood. Moreover, it may need to be connected to information not yet known.

The counter intelligence and anti-terrorist work is designed as much to stop attacks as to make it more difficult to prepare. Security is always layered and works from the most extreme or abstract (nuclear war) to the very basic (police on the beat). The whole system has to work together for an attack to be prevented. The more security layers and the types of security both soft, or passive, a legitimate government that creates a shared identity, and the most aggressive, drone strikes on senior leaders in Syria, are needed to deter, prevent, and stop attacks. It is rare that all systems work or can work perfectly. The attacker only has to succeed once the defender has to always win. Much will depend on luck or accident to prevent attacks.

I hope that this analysis helps readers understand the attacks and the difficulties associated with preventing them. The questions it raises will need to be answered to respond effectively. There are no easy solutions only a lot of questions to be answered.




Posted in Government, justice, public sector, statesmanship, strategy | Tagged , , , , , , | 1 Comment

Scott vs. Watson what does Matthew Scott’s attack on Tom Watson tell us?

English: Tom Watson speaking at the 5th COMMUN...

English: Tom Watson speaking at the 5th COMMUNIA Workshop at London School of Economics, 26th March 2009. (Photo credit: Wikipedia)

In his Telegraph article of 21 October 2015, [1]Matthew Scott argues that Tom Watson’s behaviour has damaged the various Child Sexual Abuse (CSA) investigations. He makes several interrelated arguments. The first is that Mr. Watson’s intervention has diverted police resources from other cases.

“The Labour MP’s interfering in cases like that of Leon Brittan means resources have been diverted from far more pressing investigations.”

The claim sounds very bold and could have some validity. However, Mr. Scott never backs this statement up with any evidence about police capacity and what he means by resources. The police do have finite resources, yet we have not heard that their resources are stretched. Moreover, the police are experienced in dealing with multiple operations. Perhaps, Mr. Scott could substantiate his claim with evidence so that it can be tested.

Did Watson derail a possible criminal trial? Why do we argue the counterfactual?

We turn to his particular concern within the article. He argues that the Watson’s focus on Leon Brittan, especially under parliamentary privilege*** (clarification), would have derailed any case should one have emerged. On the surface, such a view is compelling. Yet, if we consider the argument in depth, we start to find it is not as robust as it appears. Moreover, it raises the question of why Mr. Scott is so keen to defend a dead man when the living victims remain without justice.

What is the purpose of Mr. Scott’s article?

We begin with Mr. Scott’s opening statement. He argues that Mr. Watson’s responses to the Home Affairs Select Committee (HASC) would have had no effect on those who oppose him or support him. If that is the case, then what is the point of the article? Who is it that Mr. Scott wants to convince and what is it the case that he wants to make?

He appears to want to make the case that Mr. Watson’s transgression appears to be that he has

“not given enough thought to the way his interference might have derailed any criminal trial, if there had in fact been any evidence resulting in a trial.”

Here we find a curious situation. Mr. Watson is to be criticized for not knowing the future. I am not sure anyone knows the future. How could they know the possible consequences of their behaviour beyond an immediate impact? Furthermore, we do not know if a criminal trial would even have occurred. Thus, we are to be convinced by Mr. Scott that Mr. Watson should not have spoken up as he did not know the future, did not know how this might influence a future criminal case, and did not know whether the evidence would have led to a trial.[2]

Mr. Scott wants to argue about a situation that never happened? Why?

Here is the curious issue. Why is Mr. Scott concerned about something that did not happen and even if it did happen, the criminal trial, how can he know what evidence, if any would be admissible or prejudicial? It appears that the sins he wishes to condemn in Mr. Watson are exactly what he is practicing.

He then focuses on how Mr. Watson may have dealt with “Jane” the person who has made the rape allegation. He focuses on how xxxx questioned Mr. Watson over this issue. However, Mr. Watson is not a police officer and his role as an MP is not to conduct investigations or to interview constituents under caution. If this is what MPs are supposed to do, it seems a rather extreme way to deal with constituents. If MPs are to deal with constituents under police caution, how many people would want to talk to their MPs?

Everyday constituents contact their MPs about issues. Mr. Scott in referring to Victoria Atkins seems to suggest that every interaction needs to be considered on whether it might prejudice a criminal trial. How an MP is to do this when they do not know if a criminal trial is pending, or is even viable, seems unclear. Neither Mr. Scott nor Victoria Atkins explains how anyone can know whether a criminal trial might be prejudiced except the judge and the Crown Prosecution Service. In particular, if the statements are made within the privacy of the MP’s surgery, how will they create a prejudice as the only people involved are the MP and the constituent?

The five points to Mr. Scott’s case, do they bear scrutiny if they were applied to him?

Then Mr. Scott makes a rather curious statement.

“At every stage, Watson was implicated in driving on a police investigation that otherwise would never have happened.”

First, Mr. Watson is an MP he does not work for the police. Second, how does Mr. Scott know whether the investigation would have occurred or not regardless of Mr. Watson’s involvement? As the testimony before the HASC by the police stated, they have a duty to investigate rape allegations. Third, how does Mr. Scott know that Mr. Watson has such authority over the police and can direct their investigations *at every stage*? His evidence seems strangely circumstantial.

“First he introduced Jane to the police.”

If Mr. Watson as MP passed the allegation to the police what else was he to do? Was he not to do this? If not, why not? Surely, as a barrister Mr. Scott would want allegations of a crime reported. Unless, he is suggesting that MPs do not pass allegations to the police. If so, why?

Second he refers to the letter Mr. Watson wrote

“When the experienced DCI Settle, the officer in charge of the case, decided any further investigation would amount – in his words – to a “baseless witch-hunt”, Watson then wrote an inflammatory letter over the officer’s head, to the DPP herself, in effect demanding that Brittan be interviewed.”

When we look at the letter, we realize quickly and clearly it demands nothing. The language is banal and seeks to find out what is happening. It does not make a demand nor does it state that something must happen.[3]

Third, Mr. Scott concludes that what he asked for was a witch hunt

“In other words, he was asking the DPP to perform what the officer in charge of the investigation actually did regard as a “witch-hunt”.

Yet, we look at what prompted the letter and it was the statement that the suspect was not interviewed *which is contrary to ACPO/CPS guidance* [emphasis added]. Thus, Mr. Watson is wondering why the procedures he would have expected to be followed were not followed. Yet, this is claimed to be a witch hunt. Surely, Mr. Scott as a practicing barrister is not suggesting that anytime a police officer interviews a suspect they are conducting a witch hunt. By his logic, this appears to be the case.

He then turns to the fact that the letter was made public.

“The letter – although not at that stage Brittan’s identity – was made public on the Exaro News website, and shortly afterwards a new police team was brought in to review the inquiry.”

What we know, though, is that Mr. Watson did not send the letter to Exaro. He had no control over that disclosure. However, that the press became involved and that had an effect is the accepted way of doing business in the UK. Surely, Mr. Scott knows that other Murdoch papers such as NOTW and the Sun put and continue to put extensive pressure on the Police, the DPP, and the CPS to influence their work. He seems upset that someone other than a Murdoch paper has done what the Murdoch papers have done for years. Why?

He then turns to the issue at the heart of the letter—Brittan was interviewed.

“Brittan was interviewed, although, it seems, to very little purpose, except to reinforce the impression that there was no credible evidence against him.”

What is curious is that Mr. Scott knows exactly what was asked and that the police had nothing useful from the interview. How does he know what the police asked and what Mr. Brittan answered?

What type of MP would Mr. Scott’s criticisms create? We already know: consider Mr. Martin

If we consider the above in a wider context, Mr. Scott’s thesis appears strange and contradictory. Based on the points he has made against Mr. Watson, we would have to conclude that Mr. Scott would not want an MP to listen to his constituents. If he were to listen to his constituents, it should only be under police caution and the meeting should be recorded. Further, the MP is not to bring any of these concerns to the police unless he knows them to be true and they would not prejudice a possible case. In many ways, it appears from his criticism of Mr. Watson he would want him to act as another MP, Mr. Martin, MP for Consett, behaved about Medomsley Detention Centre for young offenders.

I raised the issue for you and they said it was nothing, what else do you want me to do?

When Mr. Martin was an MP he received repeated claims of abuse at the Medomsley detention centre in his constituency. The first was in 1967, the next was in 1981 following the deaths of two inmates aged 17. At each stage, the MP Mr. Martin took the government’s response at face value. At each stage, the government reassured him that there was nothing to the allegations. What we now know is that there was a regime of brutality and abuse over decades so horrific that hardened police officers were shocked by it. For decades, the young inmates were beaten, brutalized and raped. When Neil Husband was active at Medomsley he raped and brutalized young men on a regular basis and it is now revealed a paedophile ring operated at the centre.[4] Despite many investigations, his abuse was never discovered. Most telling when Mr. Leon Brittan visited in March 1985, as Home Secretary, he praised it for the positive impact it was having! [5]

No one ever apologises for the horrors during their time in office, why?

Whitelaw, Brittan, and Thatcher never apologised for the abuse that flourished for decades The Crown has never apologised to any of the victims.

Mr. Scott seems to want to have more MPs like Mr. Martin and not like Mr. Watson. Why?

Is this the type of MP that Mr. Scott wants to encourage? Is this the type of approach he would take on behalf of one of his clients if they came to him with an allegation of abuse?

Mr. Scott continues with his claims. He suggests, indirectly, that DCI Settle was moved from the case because of Mr. Watson.

DCI Settle was removed from his duties – even though, as events have shown, he was clearly right – and as we now know from his evidence he has done “very little” since. The Met can ill afford to lose officers like him on to extended gardening duty.

Here we have a deeper issue. Mr Scott praises DCI Settle’s approach as he assumes that post hoc ergo proctor hoc that the outcome was known before the question was asked of Mr. Brittan. Moreover, Mr. Scott appears to endorse DCI’s Settle’s initial decision not to interview Mr Brittan after a rape allegation *even though it is ACPO guidance that the suspect is interviewed following a rape allegation*. Perhaps Mr. Scott would explain why he believes police procedures should not be followed for Mr. Brittan. Why is it that Mr. Brittan should be exempted from the rule of law? Would Mr. Scott endorse this behaviour if “Jane” were his client?

Is the real issue that Mr. Brittan was inconvenienced by the rule of law?

We now turn to the underlying issue within Mr. Scott’s article. How Mr. Brittan was treated by the police and the CPS.

Meanwhile, a dying man was left in limbo as the police refused to accept the CPS view that the case didn’t begin to justify their involvement.

We are not told how Mr. Watson was at fault for the delay between the police and the CPS. However, it would appear that somehow he is to blame. As Mr. Scott continues:

It was a scandal and a disgrace. Yet even as Brittan was hardly dead, in January 2015 Watson was penning a diatribe against him in the Mirror, something for which he finally issued an apology.

What was a scandal and a disgrace we are not told. We are left to infer, from what Mr. Scott has implied, is that Mr. Brittan being left in limbo was the scandal and disgrace. Yet, the real scandal and disgrace is that Mr. Brittan could have been interviewed earlier, if DCI Settle had decided to do it, and the issue would have been resolved without requiring Mr. Watson to pursue the issue on behalf of his client.

Mr. Scott describes a catastrophe but for whom? Mr. Watson or Mr. Brittan?

Mr. Scott continues to claim that Mr. Watson’s involvement has been catastrophic without explaining how or why. He simply asserts this claim with no evidence.

But Watson’s campaign over the Lord Brittan rape investigation has been little short of catastrophic. Because of Watson’s intervention, Brittan died without being told that he was regarded as innocent of rape.

We are left to infer that what was catastrophic was that Brittan died without being told he was regarded as innocent of rape. Yet, is that a catastrophe? Every day there are people left uncertain of their fate before the police, the prosecutors, the Courts and the government. Someone in this case, it is a catastrophe. More importantly, it would appear we are to infer this catastrophe was Mr. Watson’s fault as he initiated what the police should have done from the start. The cost is now explained.

It may not approach the suffering of the Brittans but a decent and conscientious policeman has also been left swinging in the wind. Resources have been diverted from far more pressing investigations.

The issue is now the suffering of the Brittans and the police man. We can appreciate and sympathize with the Brittans that their family member has had to face these allegations. They have had to live with this media circus. Yet, they would also appreciate that the law is to be followed, that the police are to act appropriately, and the investigations are to be done correctly. Surely, Mr. Scott would agree that the law stands above any individual’s suffering as that is the basis of the law since at least Sophocles’ Antigone. Unless, for some reason, Mr Scott believes that Leon Brittan should be exempt from the law and police procedure.

This case may never have reached court? The other might but Mr. Scott never mentions them. Why?

Mr. Scott closes as he started making a claim about the potential impact on a possible criminal case should one have even reached the stage where a trial would have begun.

And it is doubly fortunate that there was no substance in Jane’s allegations. If there had been, as Victoria Atkins’s questioning demonstrated, Tom Watson’s bungling interference might well have led to any real case falling apart.

We have to consider why Mr. Scott even wrote this article. What purpose did it serve? At best, it was an attack on Mr. Watson using the victims, the innocent, as a shield and justification thus, the indirect concern over resources and a possible criminal trial. What is it that Mr. Watson had done? He had acted on behalf of a constituent. He did his job. We know that the law and the police procedures had not been followed correctly. On all of these issues, why is Mr. Scott opposed to Mr. Watson? Is Mr. Scott against an MP acting on behalf of his client? Is Mr. Scott willing to accept at face value what is said about his clients? Does Mr. Scott want the law and the police procedure to be suspended when it involves powerful figures, especially dead ones? He needs to explain why the powerful dead need such a vigorous, vociferous defence and the weak living victims languish without a voice to hold the powerful to account.

What we write and what we defend or attack reveals something of our character.

We can judge a man’s character by what ideas he decided to believe, what causes he would defend, and what injustices he would attack. I know what Mr. Watson has chosen. What has Mr. Scott chosen?


***Clarification 28 October 2015. I have been contacted about the phrasing of this sentence. Mr. Watson did not name Mr. Brittan in Parliament. It was referring to his response in Parliament to a request that he apologise for an article he wrote about Leon Brittan.

In 2012 when Mr. Watson raised his question in Parliament at the Prime Minister Question Time about the pedophile ring (see 9 seconds)  in Westminister he did not name anyone but did raise a question about a powerful pedophile network linked to Parliament and No. 10 (see 38-38 seconds)

My apologies if the passage reads as if Mr. Watson had named Mr. Brittan in Parliament or that Mr. Scott was referring to Mr. Watson naming Mr. Brittan. Neither of those is a correct reading of the passage.


[2] As someone pointed out last year the case was unlikely to get to trial, let alone be prejudiced by a public statement, given its circumstantial nature.

“At the end of the day, if the CPS had agreed to pursue charges against Mr X, it would have been Jane’s word against Mr X. After 47 years there would have been no forensic evidence and there were no witnesses to the rape. Even if Mr X could be placed at the ‘crime scene’ the prosecution would still have to have proven that Jane did not consent and all of this ‘beyond all reasonable doubt’ for a jury to find Mr X guilty of rape.”

Surely, as a trained Barrister, Mr. Scott would be aware of these issues. It seems passing strange he is certain that a criminal trial would have followed and that Mr. Watson’s involvement would have prejudiced it.




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