Simon Chesterman - One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty

ONE NATION UNDER SURVEILLANCE

A New Social Contract to Defend Freedom Without Sacrificing Liberty

SIMON CHESTERMAN

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Simon Chesterman 2011

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Was he free? Was he happy? The question is absurd;
Had anything been wrong, we should certainly have heard.

WH Auden, The Unknown Citizen

The nature of this research calls for some measure of discretion. In 1998, the Washington Times reported that US intelligence services were able to monitor Osama bin Ladens satellite phone. A CIA agent later argued that bin Laden stopped using the phone because of the story, and that a causal link joined the decision to publish to the September 11 attacks on the United States. As I suggest in Chapter three, the account somewhat exaggerates this particular incident, but one must accept that the subject matter is sensitive. For present purposes, it is sufficient to note that certain details of past and current operations will be glossed over and that most interviews were on a not-for-attribution or off-the-record basis and thus will not be identified. Since the book is primarily forward-looking, it is hoped that this will not unduly distort either analysis or prose.

I am, nonetheless, extremely grateful to the many current and past practitioners who were kind enough to share their time and their insights with me in New York, Washington, DC, London, Ottawa, Canberra, Singapore, and elsewhere. In addition, I received valuable comments on various parts of the text from William Abresch, Rueban Balasubramaniam, Gary Bell, Curtis Bradley, Tom Donnelly, Michael Dowdle, Michael Ewing-Chow, Trevor Findlay, Adrian Friedman, Michael Fullilove, Richard Goldstone, Allan Gyngell, Stephen Humphreys, David Jordan, Liliana Jubilut, Richard Junnier, Benedict Kingsbury, Chia Lehnardt, Lim Yee Fen, Karin Loevy, David Malone, Madan Mohan, Paul Monk, Muhammad Aidil Bin Zulkifli, Roland Paris, Sharanjeet Parmar, Joost Pauwelyn, Danielle Louise Pereira, Priya Pillai, Victor Ramraj, Lakshmi Ravindran, David Tan, Tan Hsien-Li, Patricia Tan Shuming, Tan Teck Boon, Teo Yu Chou, Laura Thomas, and Ludwig Ureel. Errors, omissions, and violations of Official Secrets Acts are the responsibility of the author alone.

Thanks also to the many students from New York University School of Law and the National University of Singapore who have participated in the Intelligence Law seminar that I have taught for the past few years. Their insights and their questions frequently helped shape my own views on this topic.

The book develops certain ideas first published elsewhere. These earlier works include Shared Secrets: Intelligence and Collective Security (Sydney: Lowy Institute for International Policy, 2006); The Spy Who Came In from the Cold War: Intelligence and International Law, Michigan Journal of International Law 27 (2006) 1071; Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis, Michigan Journal of International Law 28 (2007) 553; We Cant Spy If We Cant Buy!: The Privatization of US Intelligence Services, European Journal of International Law 19 (2008) 1055; I Spy, Survival 50(3) (2008) 163; Deny Everything: Intelligence Activities and the Rule of Law, in Victor V Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press, 2008) 314; Secret Intelligence, in Rdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2009); and Intelligence Cooperation in International Operations: Peacekeeping, Weapons Inspections, and the Apprehension and Prosecution of War Criminals, in Hans Born, Ian Leigh, and Aidan Wills (eds), International Intelligence Cooperation and Accountability (Routledge, forthcoming). Permission to reproduce the relevant passages is gratefully acknowledged.

My final thanks go to Ming and our family, for showing me what is really worth watching closely.