Here’s the opinion of the UN working group on arbitrary detention, which has concluded that Britain and Sweden have arbitrarily detained Julian Assange. It calls on both countries to release him, and pay him compensation.

I wondered in my earlier post how the working group might classify the “detention”—in fact, it puts it in what it calls “category III”, where detention is arbitrary because of a grave non-observance of the right to a fair trial. I thought that was obviously the least likely possibility (Sweden being unable to put Julian Assange on trial at all, as things stand) but the working group has concluded otherwise.

The reasoning of the working group is thin, to say the least. It begins by noting that Assange was segregated from other prisoners for the ten days he was remanded in custody in Wandsworth prison—and simply goes on to say (para. 86)—

arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance …

without considering whether the decision to segregate him was justified, and without considering the fact that he had lawyers and applied for bail, so was not “left outside the cloak of legal protection”. On this approach, every segregated prisoner in the UK is arbitrarily detained.

Assange’s detention, the working group goes on, continued for 550 days in the form of what it calls “house arrest” (para. 87):

During this prolonged period of house arrest, Mr. Assange had been subjected to various forms of harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day and a bar on being outside of his place of residence at night. In this regard, the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.

This is of course the period in which Julian Assange was released on conditional bail and living at Ellingham Hall. Its quite true he had a curfew, and had to be there during the night hours. It’s true he was tagged, and had to report daily to the police. But otherwise as I understand it he was free to come and go. And these admittedly strict bail conditions are understandable given that Assange had already flown out of Sweden, where he was wanted. The working group does not consider why those bail conditions were imposed, the fact that Assange could have applied for a variation of bail, or that his move to the Ecuadorian embassy can be said to justify, after the fact, the judge’s imposition of bail conditions.

Breathtakingly, the working group fails to mention the fact that Assange entered the Ecuadorian embassy after losing his Supreme Court battle against extradition. And as far as his prolonged residence there is concerned, the working group says (para. 90)

Mr. Assange’s stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty …

but never actually addresses the question whether this really is detention, and even if it is whether Britain and Sweden are the “detainers”. Indeed in the next paragraph (91) it says revealingly

What matters in the expression ‘arbitrary detention’ is essentially the word “arbitrary”

which perhaps explains the lack of analysis of whether there is now any “detention”. To be fair, the working group says (para. 91)

Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty

but of course neither Britain nor Sweden has “placed” Julian Assange in the Ecuadorian embassy.

Perhaps paragraph 97 of the opinion gives us most insight into the working group’s approach. It criticises

a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration

complains that Assange

is still left even before the stage of preliminary investigation with no predictability as to whether and when a formal process of any judicial dealing would commence

and offers the insight that

From a time perspective, it is worse than if he had appeared in Sweden for questioning and possible legal proceeding when first summoned to do so

before concluding—

it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination.

Yet at no point does it consider whether Julian Assange might be even partly responsible for any of the delay, uncertainty or “indefinite procrastination”. This sums up an awfully reasoned opinion that in effect accepts all Julian Assange’s arguments uncritically.

In contrast, the dissenting opinion of Vladimir Tochilovsky is to the point, and hard to argue with. As far as the embassy stay is concerned, he says (para. 3)

In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.

As for the period on conditional bail, he says

In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” … Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.

Philip Hammond is right: this working group opinion is ridiculous.

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We awoke to the extraordinary news that Julian Assange had announced he’d leave the Ecuadorian embassy in London tomorrow and submit to arrest if the UN working group on arbitrary detention turned down his complaint to them. Shortly afterwards, the BBC reported that the working group has come down in his favour. That would be an astonishing conclusion for the working group to reach.

We won’t be able to read the working group’s opinion at least until tomorrow. In the meantime, here’s the 42-page submission Julian Assange sent to the working group, and that it seems has persuaded them.

The reason this opinion is so astonishing is because it’s hard to see how either Britain or Sweden can be described as detaining Julian Assange at all, or depriving him of liberty (to use the expression the working group prefers (see pages 15-16 of its 2015 annual report).

Julian Assange refers in his submission to cases like Riad and Idiab v Belgium in which the European Court of Human Rights ruled that two failed asylum seekers were deprived of liberty contrary to article 5 of the ECHR when effectively trapped in an airport transit zone. In that case, the Belgian authorities took the two men to the airport to technically free them, following court decisions ordering their release; in the transit zone they were able to leave only by consenting to deportation. It seems they were wholly dependent on charity for food and drink.

But in his own case, of course, Assange was not taken to the Ecuadorian embassy by the British authorities. Nor is his being there part of any official strategy to force him out of the country. He truly is there by choice, and the fact that he’s not deprived of his liberty either by Britain or Sweden is conclusively shown by the fact that both countries would very much like to do so, if they can get their hands on him.

When we do see the opinion, a point of special interest will be how the working group categorises this “deprivation of liberty” in terms of the classification scheme it adopts:

A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);

B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);

C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).

D) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV)

There is a category V — where detention is discriminatory — but Julian Assange does not allege that.

The working group might well put this “deprivation of liberty” in “category I”: once you conclude that a situation like Julian Assange’s amounts to a deprivation, then it will clearly be impossible to find a legal basis for it. That’s because neither Britain nor Sweden is currently able to exercise any official powers over Julian Assange, and cannot therefore identify any legal powers they’re exercising, or justify them. There’ll be some irony about it, if this if their conclusion.

“Category II” is I suppose possible, if the working group thinks this is all a conspiracy to silence or punish Asange’s work with Wikileaks—so that the detention results from the exercise of his freedom of expression under article 19 UDHR.

It’s hard to see how they can find a “category III” deprivation of liberty, since he’s not on trial on Britain, and Sweden is unable to put him on trial. Nor is it obvious how either country has gravely impaired the fairness of any future trial in Sweden.

Finally, “category D” is I guess a possibility, if the working group starts from the assumption that Assange is a refugee (Ecaudor has granted him diplomatic asylum, a concept not accepted by Britain or most countries outside Latin America) and is “in custody” without the possibility of review. Even that’s hard to imagine since he can apply to the High Court at any time, arguing that the police or government are holding him in breach of the Human Rights Act.

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I’ve already criticised what I think is a fundamental contradiction undermining the Court of Appeal’s judgment in the Miranda case. But there’s another aspect of the judgment that I must mention, which may well be of more lasting importance.

The power used to stop and question David Miranda is conferred by paragraph 2(1) of Schedule 7 of the Terrorism Act 2000:

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)

such a person being defined by section 40(1) which provides that a

“terrorist” means a person who …

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Deeper in the legal labyrinth, the definition of “terrorism” is in Section 1:

(1) In this Act “terrorism” means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

So the purpose of stopping and questioning David Miranda was, according to the framework laid down by this legislation, to see if he was a person concerned in terrorism, very widely defined.

Applying this definition of terrorism on its face, as I wrote in 2013, you might well argue that publishing the content of sensitive intelligence-related documents could “create a serious risk to the safety of the public”, and so satisfy section 1(2)(d). The Guardian’s arguably campaigning use of the Snowden documents could be said to advance a political cause, satisfying the section 1(1)(c) condition: a political cause need not be a malign one. And you might say use of the documents by the Guardian to create a public debate is “designed to influence the government” as required by section 1(1)(b).

The apparent width of the definition of terrorism here is a matter of concern. I thought the argument made for David Miranda in the first instance judicial review proceedings had some force, and I noted examples his counsel Matthew Ryder QC gave:

Firefighters threatening to strike, he said, would endanger life, would want to influence government and would be taking political action. Were they terrorists? Or if government had a secret plan to keep us all safe by installing cameras in every home, an investigative journalist revealing the plan might risk lives (remotely at least) in an attempt to have political influence.

Ryder didn’t succeed with Lord Justice Laws, but took a similar approach on appeal (see para. 46 of the judgment):

Mr Ryder gave another example: a group of junior doctors wishes to erect a sign to protest about Government policy towards the NHS. Inadvertently, some members of the group erect it in a way that accidentally endangers the life of a passer-by. Mr Ryder submits that, if the literal interpretation of “act of terrorism” adopted by Laws LJ is right, the junior doctors erecting the sign with a political message have committed acts of terrorism. They have taken an action designed to influence the Government to advance a political cause, which (even if entirely unknown to them) endangered the public or created a risk to health and safety.

And now, on appeal, Matthew Ryder has succeeded in persuading the Court of Appeal to depart from pure literalism and to read some mental element in to the definition of terrorism.

At paragraphs 51-2 of the judgment, Lord Dyson says

First, the literal interpretation involves according to the word “terrorism” a meaning which is far removed from its ordinary meaning … Secondly, the fact that the literal interpretation potentially gives rise to unpalatable consequences … raises a serious question as to whether it can have been intended by Parliament … Thirdly, the interpretation does not reflect the aim and intention of the promoters of the Bill as expressed to Parliament.

In my view, these three factors when taken together provide a powerful reason for rejecting the literal interpretation.

Lord Dyson looked at section 1(2) in particular, and chopped it into three “categories”: the first category, subsections 2(a) and (b), covers threatened action which—

(a) involves serious violence against a person

or

(b) involves serious damage to property

As far as these are concerned, he said (para. 53)—

It is not an ordinary use of language to describe a person as being “involved” in violence or damage to property if he is not aware that he is being so involved or if what he does is accidental. On this point, I respectfully disagree with what Laws LJ said

In relation to the third category, covering threatened action which—

(e) is designed seriously to interfere with or seriously to disrupt an electronic system

Lord Dyson said (pra. 54), tying his thinking to the first category also, that

The third category of action is … clearly defined by reference to the state of mind of the actor. For the reasons that I have given, I consider that the first category of action must also be considered as importing a mental element.

That left the second category, covering threatened action which

(c) endangers a person’s life, other than that of the person committing the action,

or

(d) creates a serious risk to the health or safety of the public or a section of the public, or

About this Lord Dyson said (para. 54):

I accept that, on a literal interpretation, the second category could include acts which endanger a person’s life even if the actor is not aware that they do. But such an interpretation would dispense with the need for a mental element in the second category, whereas it is required in the first and third categories. It is unlikely that Parliament would have intended to make such a distinction between the three categories. If Parliament had intended to provide that a person commits an act of terrorism where he unwittingly or accidentally does something which in fact endangers another person’s life, I would have expected that, in view of the serious consequences of classifying a person as a terrorist, it would have spelt this out clearly.

Lord Dyson sees all of the types of threatened action in section 1(2) as requiring some mental element, then. In order to be concerned in terrorism, a person must be at least reckless as to causing serious violence or damage, danger to life, or risk to health and safety; or else design to interfere with or disrupt a system. The legal definition of terrorism has been significantly narrowed.

It’s important to note that Lord Dyson made clear (para.55) that

It does not follow that publication of material cannot amount to an act of terrorism. If (i) the material that is published endangers a person’s life (other than that of the person committing the action) or creates a serious risk to the health or safety of the public or a section of the public; and (ii) the person publishing the material intends it to have that effect (or is reckless as to whether or not it has that effect), then the publication is an act of terrorism, provided, of course, that the conditions stated in section 1(1)(b) and (c) are satisfied.

And this ruling on the meaning of terrorism, not having been decisive in the appeal, does not in itself create legally biding precedent for the courts of the future. Nonetheless, if it is followed—particularly if it is approved on this point by the Supreme Court, which seems to me likely—this may represent the most important aspect of the case, and a significant victory for critics of Britain’s tough terrorism legislation.

Which no doubt explains why the independent reviewer of terrorism legislation, David Anderson QC, thinks this is an important ruling:

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I’ve been following for some time David Miranda’s challenge to the lawfulness of his questioning at Heathrow airport in 2013. I wrote shortly after his detention; I covered his application for an injunction; I published his grounds for judicial review; I live-tweeted the judicial review hearing and analysed Lord Justice Laws’s judgment against Miranda; and last year, I published his grounds of appeal.

Having sat through some (not all) of the appeal hearing, I’m not surprised David Miranda has again seen his questioning ruled lawful, and compliant with his human rights. But I am very surprised by the Court of Appeal’s judgment today, in which it also declares incompatible with free expression the legislative power to stop and question Miranda, in Schedule 7 para. 2 of the Terrorism Act 2000. These two rulings, in the same judgment, seem to me mutually contradictory.

The surprise “incompatibility” ruling begins at paragraph 94, at the end of the judgment, and the Master of the Rolls Lord Dyson gets to the meat of his reasoning from paragraph 108 on. He says (para. 113)—

I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection … An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making … the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

And goes on at paras. 114 and 5 to conclude that—

prior judicial or other independent and impartial oversight (or immediate post factum oversight in urgent cases) is the natural and obvious adequate safeguard against the unlawful exercise of the Schedule 7 powers in cases involving journalistic freedom. For the reasons that I have given, the other safeguards relied on by Laws LJ provide inadequate protection.

[The Terrorism Act 2000], therefore, contains no adequate legal safeguards relating to journalistic material …

Lord Dyson’s ruling on this is perhaps a bit surprising given what he says earlier in his judgment about the realities of judicial scrutiny of police and security agency decisions in a case like this. At paragraph 79 he says

When determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests. This is because the police have both the institutional competence and the constitutional responsibility to make such assessments and decisions.

He goes on a para. 82 to say

There is no reason to disagree with their assessment of the risk. Indeed, the court is ill equipped to do so. The police and the Security Service have the expertise and access to secret intelligence material which rightly make it very difficult to challenge such an assessment in a court of law.

If this is right, one wonders how much protection prior judicial authorisation would really offer a journalist. But there are bigger problems with the judgment than this, as we’ll see.

Lord Dyson’s reasoning is based on the requirement that any inference with free expression must be “prescribed by law”: in other words (to paraphrase the way Lord Hughes put it in the Supreme Court last year in Beghal, at para. 29 and 30) any law such as Schedule 7 must be accessible and its operation sufficiently foreseeable so that people subject to it can regulate their conduct; and it must contain sufficient safeguards to avoid its arbitrary exercise.

If there are not sufficient safeguards, then the power in question will breach freedom of expression even if it is used for a legitimate purpose and even if its use could be proportionate to that purpose. Again, as Lord Hughes put it in Beghal (para. 33) calling the requirement “legality”—

legality is a prior test which is designed to ensure that interference with Convention rights can be proportionate.

Legality is a logically prior requirement: only if a power is “prescribed by law” can its use be proportionate and so rights-compliant.

So far, so legally coherent. The problem is that, earlier on in his judgment, Lord Dyson held that stopping and questioning David Miranda was proportionate and rights-compliant, and for that reason lawful. At paragraph 84, agreeing with Laws LJ’s original judgment, he said—

the Schedule 7 stop was an interference with press freedom. But the compelling national security interests clearly outweighed Mr Miranda’s article 10 rights on the facts of this case. In reaching this conclusion, I also bear in mind the considerable deference that the court should accord to a decision to invoke the Schedule 7 power in a case of this kind. It follows that, subject to the point raised by the fourth ground of appeal, the decision to exercise the power was proportionate on the facts of this case.

So that there’s no mistake about his conclusion, Lord Dyson says at para. 118—

For the reasons that I have given, I would hold that the exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful … I would, therefore, dismiss the appeal in so far as it relates to the exercise of the stop power in this case.

Lord Dyson has of course made this ruling in the Court of Appeal, in judicial review proceedings brought by David Miranda after he was stopped. But, remember, as part of his reasoning on the “incompatibility” issue Lord Dyson also ruled (para. 113) that—

the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

If Lord Dyson is right that judicial review is inadequate, and cannot sufficiently protect journalistic material, then it cannot protect it in this case; Lord Dyson’s own ruling that questioning Miranda was lawful must be inadequate to satisfy human rights law. Without prior independent authorisation Miranda’s questioning can’t have been “prescribed by law”, and so must have breached the article 10 right to free expression. Lord Dyson could not possibly have “cured” that breach today.

The concept under the Human Rights Act 1998 that legislation may in itself be incompatible with a Convention right is a radical one: it means that the legislation necessarily and systematically causes breaches of human rights. Conversely, if not every use of a piece of legislation breaches human rights, then it is compatible with those rights. As Lady Hale put it in a very different context in 2005 in MH v. Health Secretary (para. 32)

the means exist of operating [the legislation] in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.

The Human Rights Act forces judges to make a choice. Either a piece of legislation is in principle compatible with human rights, in which case its use in particular cases may still breach rights (and so be unlawful); or it’s incompatible with those rights in principle, in which case its use in every case will breach rights (and, in an apparent paradox, will therefore be lawful). You can’t have it both ways. You can’t hold the questioning of David Miranda compatible with human rights if you also think the legislation it was done under is not.

Lord Dyson might have ruled that Miranda’s questioning was lawful because the legislation is incompatible: an idea that seems counterintuitive but which follows necessarily from section 3(2)(b) and section 4(6) of the Human Rights Act. This (at first blush odd) rule is what preserves Parliament’s ability to make laws regardless of human rights. Had he done that, today’s appeal judgment would have made sense.

But that was not Lord Dyson’s approach. He held Miranda’s questioning lawful because proportionate and compatible with free expression. It’s a conclusion that’s unfortunately contradicted by the declaration of incompatibility in respect of the Terrorism Act itself.

How can this have been got so wrong? It’s worth noting that there’s little mention in the judgment of the Human Rights Act. I suspect the Court of Appeal has lost sight of the framework it lays down and has not gone through the necessary steps, before moving to a declaration, of considering whether it must strain the interpretation of Schedule 7 so as to render it rights-compatible. It may also be that focusing narowly on the grounds of appeal (the grounds relating to the detention emphasised proportionality while the ground relating to the legislation emphasised “legality”) has produced a “trees not wood” effect, the court failing to consider the legality (in the human rights “prescribed by law” sense) of the questioning in spite of its importance as regards the legislation.

However it’s happened, in my view this is a legally unsustainable ruling: it must surely be addressed and corrected by the Supreme Court. If David Miranda’s questioning complied with human rights, then so does the legislation it was done under; if on the other hand that legislation is incompatible with his rights, then so was his questioning.

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The strange, slow death of the criminal courts charge

December 7, 2015

The criminal courts charge is, or was, one of the less well thought-through criminal justice reforms of recent years. Since April this year, courts have had a duty under section 21A of the Prosecution of Offences Act 1985 to impose a fixed charge “in respect of relevant court costs” on those convicted of offences. When […]

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Summary judgment: what the Supreme Court held in Sharland

October 14, 2015

In Sharland v Sharland, the Supreme Court today granted the appeal of a woman who wanted to reopen her divorce settlement on the grounds of her husband’s fraud. Here’s my technical legal analysis, in a few words, of the precedent this case lays down to bind the courts in future. RATIO—Where one of the parties […]

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Fraud unravels all: the Supreme Court divorce judgments in Sharland and Gohil

October 14, 2015

The Supreme Court has today given two judgments (Sharland v Sharland, and Gohil v Gohil) about re-opening divorce settlements on the grounds of fraud. Sharland lays down a new test in cases involving fraud, which should mean more settlements are reopened in future. Alison Sharland agreed a divorce settlement with her husband, who’d told the […]

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Pannick on the Reyaad Khan drone strike

September 17, 2015

In the Times today Lord Pannick QC discusses the recently announced RAF drone strike that killed Reyaad Khan and another British “Islamic State” fighter. He agrees with me that article 51 of the UN Charter permits defence against an imminent attack from a non-state organisation. A state, he writes does not have to wait for […]

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Stop the redestruction of Inner Temple Library!

September 16, 2015

The last time Inner Temple’s library was wrecked, it was Hitler’s bombs that did it. On the night of the 10th—11th of May 1941, London faced the most devastating attack of the Blitz. That night, the House of Commons chamber was left a smoking shell. St Clement’s Dane’s, on the Strand, was gutted. Much of […]

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If you think it was murder, say so

September 11, 2015

How many articles and blogposts have referred to Orwell’s classic essay Politics and the English Language? Well, here’s another. I’m put in mind of it by recent use of the sinister phrase “extrajudicial killing” to describe the lethal RAF strike on British “Islamic State” fighters. Bad writers, according to Orwell and especially scientific, political, and […]

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