Policing Legal Rights
A Review of Aziz Choudry (ed.), Activists and the Surveillance State: Learning from Repression, Pluto Press, 2019. 264 pp. £29.00 (PB). ISBN: 978 0 7453 3780 7
“So what is the purpose of undercover policing? It has not been successful in the sense of traditional policing purposes: keeping the Queen’s peace, maintaining law and order or securing arrests and convictions” (Apple, 2019: p. 185).
It is now widely known that between 1968 and 2011 the UK based Special Demonstration Squad (SDS) and the National Public Order Intelligence Unit (NPOIU) covertly infiltrated and/or covertly reported upon a number of anti-racist/anti-capitalist groups and family justice campaigns. Police monitoring groups, environmental campaigners, animal rights activists (and others) engaged their legal rights, such as the right of peaceful protest and assembly, to hold various organs of the British state to account. That their monitoring and campaigning efforts were the subject of sustained covert policing operations is a particularly stark illustration of the fact that, as far as the British state is concerned, “...even conduct involving the exercise of a right can nevertheless, under certain circumstances, be described as violent” (Walter Benjamin, 1995: p. 282).
The period in which the SDS and NPOIU were active can provide a rich source of knowledge about “...the nature of this beast that we call the state and why it is always hunting activists...” (D’Souza, 2019: p. 28), but only if it is acknowledged that the primary purpose of the undercover police deployments was to undermine the efforts of members of mainly left-wing groups to use their legal rights to challenge “...the state...and its corporate interests” (Apple, 2019: p. 193). In short, covert operations were intended to monitor and disrupt lawful activities, not unlawful ones. The “...architecture of power within which state surveillance operates…” (Choudry, 2019, p. 3) cannot be properly understood if too much weight is given to the idea that SDS and NPOIU operations took place in the grey and nebulous spaces between criminal and non-criminal conduct; where, within such spaces, the groups to which activists belonged “...could act as fronts for, or offer tacit support to, violent and subversive groups...” (Bonino and Kaoullas, 2015: p. 5), or, although law-abiding themselves, could “...provide safe havens for activists prepared to carry out more serious acts of criminal damage” (Bonino and Kaoullas, 2015: p. 13).
There has never been a time in which the exercise of legal rights by individuals has been fully tolerated by the state. However, at least for states that espouse the values associated with liberal democracy (such as the British state on whose behalf SDS and NPOIU deployments occurred), there was a time when the ‘fiction’ that an individual was abusing the legal rights that had been conferred upon him/her would have needed to be invoked in order to justify state interference with the exercise of those rights. Further, there was a time when it would not have been considered appropriate to turn the full force of the state on an individual “...considered threatening to hegemonic interests, even if they are engaging in legitimate activism...” (Duncan, 2019: p. 56). Instead, a state would have had to resort to more benign (often quite banal) emergency measures in an effort to interrupt the individual’s use of his/her legal rights. In such times, the policing of legal rights had necessarily to be secretive, covert - precisely because, if subjected to ‘traditional’ policing methods, the individual could always appeal to her or his legal rights in his or her defence against any form of police surveillance. Such were the times in which the SDS and NPOIU carried out most of their covert operations. In this light, it is unsurprising that, as several sources have revealed, very few right-wing groups were infiltrated or reported upon by SDS and NPOIU undercover officers (e.g. Lubbers, 2019: p. 235; Evans, 2018). The sources do not specifically outline how the British state responded to the presence of these right-wing groups and the activities on which they were engaged, but it is hardly to be suggested that such groups were not policed at all. What does seem clear is that the policing of right-wing groups, who are less likely to insist upon peaceful and lawful means of dissent, for the most part relied on traditional policing methods deemed suitable for the detection of criminal conduct, and thus fell beyond the remit of the now defunct SDS and NPOIU whose principal focus was not on agitators who contravened the criminal law, but on activists who were seeking societal change through the creative use of their legal rights.
The demise of the SDS and NPOIU in 2008 and 2011, respectively, and the establishment, in 2015, of a public inquiry into the nature of SDS and NPOIU deployments signals a turning point in the policing of legal rights. It is not the end of the policing of legal rights per se, but the end of the covert policing of such rights. Surveillance in the British state does not operate in a vacuum, and, as the contributors to Activists and the Surveillance State compellingly relate, in many liberal democracies, including the UK, it is now openly accepted that the maintenance of a border between lawful and unlawful conduct is not the sole (or even the primary) purpose of policing. Paradoxically, with the huge expansion of individual rights which occurred from the latter half of the 20th Century has come a gradual legitimising of the position that the ways in which those legal rights are exercised by the individuals on whom they are conferred raise legitimate policing questions or concerns. This shift in ideology effectively removes the need for the state to target individuals for ‘exceptional measures’ (such as undercover police surveillance) because they “...simply wish to exercise their democratic right to dissent…” (Apple, 2019: p. 179). In the UK context, this ‘new’ ideology found its most concrete expression in 2010 when the “...coalition government widened the definition of ‘preventing terrorism’ to include challenging non-violent ideas ‘that are also part of a terrorist ideology’, and thus comprising a form of ‘non-violent’ extremism" (Ahmed, 2019: p. 156).
Today, those “...trade unionists...peace and social justice activists, anti-racists, feminists and animal rights activists…” (Morse, 2019: p. 210) who deploy their legal rights to “...challenge the economic bases of those who hold power...” (Morse, 2019: p. 210) will experience the “ ...growth in the exercise of arbitrary power...” (Duncan, 2019: p. 59) of state in the increasingly casual way in which policing operations attend to what previously were meaningful (although never water-tight) distinctions between criminal and non-criminal and lawful and unlawful conduct. For the various contributors to Activists and the Surveillance State, only an analytical approach which prioritises a “...critique of the idea that state security and the construction of some people and ideas as being ‘enemies of the state’ is a form of exceptionalism... (Choudry, 2019: p. 7) will enable activists to adapt their organising strategies to effectively confront the “...domestic and foreign-facing institutions associated with ‘national security’..." (Ahmed, 2019: p. 153), which stand in opposition to their social justice goals.
Whilst this book review is focused on the UK’s recent history of undercover policing by SDS and NPOIU officers, the edited collection offers an analysis of "...the history of repression and making groups of people into ‘others’ that is central to national security...” (Kinsman, 2019: p. 133), commencing from a time when “ [a]nti-communism was the hegemonic ideology...in the way that anti-terrorism has become in more recent years” (Boughton, 2019: p. 110). It reaches into the archives of several jurisdictions, including the US (Maria, p. 79-96); Mauritius and South Africa (Duncan, p. 53-75); Australia (Boughton, p. 97-116); Canada (Austin, p. 117-128 and Kinsman, p. 129-152) and New Zealand (Morse, p. 197-214), and, as such, will attract a deservedly wide audience. That police surveillance affects “...some lives...more...than others because of the way in which race functions in this society” (Austin, 2019: p. 127) is a major theme in several of the chapters. Writing of the experiences of South Asian, Arab and Afghan American young men and women in the post-9/11 US context, Maira refers to police surveillance as a “...technology of disciplining and managing racialised populations ...” (p. 81). For Austin, techniques of police surveillance “...evolved out of policing Black bodies and minds within the context of slavery, for the purpose of disciplining and punishing slaves in relation to their labour” (Austin, 2019: p. 118), and even today remain “...tied to the inherent belief that being Black represents a security threat that is to be monitored, policed, and when deemed necessary, detained" (2019: p. 118). Among the “... 16 campaigns run by families or their supporters seeking justice over alleged police misconduct...” (Evans, 2018) which were infiltrated or reported upon are some for whom Austin’s account will strongly resonate. Many of the family justice campaigners whose lawful and peaceful activities were ‘monitored’ and ‘disciplined’ by SDS officers sought to draw attention to failings on the part of the police during the course of investigations into the murders or unexplained deaths of young black male family members; obtaining evidence which showed that the failings were, in part, caused by institutionally racist ideas about black people, including the assumption that certain races are more likely to resort to violence and other criminal conduct.
Having determined that “...conduct involving the exercise of a right can... be described as violent” (Walter Benjamin, 1995: p. 282), the British state proceeded to treat the lawful activities of political campaigners as if they were unlawful - and imposed extra-legal sanctions on them. I draw this review to a close with a summary of what Activists and the Surveillance State tells us of the individual and social costs of police surveillance. In terms of individual costs, several of the chapters allude to the “...implications of surveillance for financial security...” (Maira, 2019: p. 91), with particular reference to the way undercover officers were used to find information about prominent trade union members/officials, which was then used to prevent those members/officials from obtaining work. The use of SDS and NPOIU officers in the ‘blacklisting’ of trade unionists forms part of the terms of reference of the UK public inquiry into undercover policing (see for discussion: Apple, 2019: p. 190-191; Lubbers, 2019: p. 237). Psychological injury is another identifiable category of harm which activists have suffered as a result of being subjected to covert policing operations. In the UK context, some undercover officers from the SDS were found to have deceived women into intimate relationships (as a means towards facilitating their covert operations), bringing about the inevitable psychological consequences for these women once the deceit was uncovered. The use of birth certificates of deceased children in order to create false identities is also a known tactic of the UK’s undercover police, and has also brought about severe mental stress to the family members of the deceased. Tactics as extreme as these do not need to be deployed to cause mental suffering, however, for the relentless gaze of the police in every area of legitimate protest can, alone, bring about its devastating psychological effects (Apple, 219: p. 186, p. 192-193). That 30 non-state core participants to the public inquiry have been granted anonymity gives some idea of the scale of the long term effects on the lives of those subject to SDS and NPOIU covert operations (Inquiry Eighth Update Note, July, 2019: p. 16). It is left to Lubbers to identify one of the key social costs of surveillance, for “... infiltration as a strategy to undermine dissent can have damaging effects, regardless of the sensitivity of the information gathered. Essentially, the fear of being publicly associated with infiltration is harmful in itself. The focus on the possible damage of exposure sometimes keeps people from making a serious assessment of the actual damage of an information gathering operation” (2019: p. 221).
It has been questioned whether the policing of political groups in the UK has continued despite the demise of the SDS and NPOIU. No official answer has been given, but, having read Activists and the Surveillance State, I can find no reason to anticipate any change in the practice, save that surveillance will almost certainly take more overt forms - making activism for social justice an even more hazardous course. That said, it is hard to dispute the fact that the covert nature of the SDS and NPOIU operations contributed to the specific acts of misconduct - especially sexual misconduct - that, among other things, the public inquiry is tasked with investigating; for “i]mmersed in a world of deception and secrecy, intelligence agencies have been known to develop their own morals, norms and culture” (Lubbers, 2019: p. 235).
Walter Benjamin, “Critique of Violence”, in Peter Demetz (ed.) Walter Benjamin Reflections: Essays, Aphorisms, Autobiographical Writings, New York: Schocken Books, 1995, pp. 277-300.
Stefano Bonino and Lambros Kaoullas, L 2015, “Preventing Political Violence in Britain: An Evaluation of over Forty Years of Undercover Policing of Political Groups Involved in Protest”, 38(10) Studies in Conflict and Terrorism, pp. 814-840.
Rob Evans, Guardian, 15 October 2018, “Police spies infiltrated UK leftwing groups for decades”, Guardian, 15 October 2018.
Undercover Policing Inquiry, Eighth Update Note, July 2019.