The counter-terrorist bill

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By ANA PENIDO, PEDRO P. BOCCA & RODRIGO LENTZ*

PL 1595/2019 makes, at the very least, mistaken use of the concept of terrorism

On 15 June, seven special rapporteurs[1] of the United Nations (UN) sent a letter to the Brazilian government expressing concern about the probable violations of human rights that the approval of PL1595/2019, authored by Major Vitor Hugo (PSL-GO), could entail. Experts express fears about: 1) possibilities of arbitrary arrests; 2) limitation of fundamental rights under the justification of terrorism; 3) damage to a clean, healthy, safe and sustainable environment; 4) violations of freedom of opinion and expression; 5) restrictions on freedom of association and peaceful assembly; 6) persecution of human rights defenders; 7) violations of the right to privacy. The regional office for South America of the High Commissioner for Human Rights had already manifested itself, on May 25, in a note with similar content.

The response of the Brazilian Permanent Commission at the UN in Geneva, issued just three days later, basically raises two arguments. The first is that the slow process (the project was presented in 2019) is an indication of a broad discussion. In this regard, we point out that the slowness in the processing of projects is not a sign of broad discussion. The only public hearing in this regard, which took place at the Foreign Affairs and National Defense Commission, was not attended by parliamentarians, and even the bill's proponent did not remain in the space, as is available in the house's videos. The second argument mobilized by the Brazilian government is that society is facing a new phase of terrorism, which takes on a communicational nature. In this regard, we object that we have not identified a qualitative change in terrorist actions in the world since 2016 [2], when the current legislation was created. Terrorist actions were already notably communicational, aiming to spread terror, and not necessarily to kill hundreds of people. The intended victims are those who remain alive and in fear, not those who have died.

The demonstrations are provoked by the Human Rights and Minorities Commission in the Chamber (deputy Carlos Veras, PT-PE), which, still in April, identified the threat of accelerated processing in view of the prioritization of the agenda by the government bench. On the last 30th of June, the President of the Chamber of Deputies, Arthur Lira (PP-AL), installed a Special Commission to deal with the issue, which seeks to speed up the approval. The Commission had its work started with the election of deputy Evair Melo (PP-ES) to the presidency, who appointed deputy Sanderson (PSL-RS) as rapporteur, both aligned with the Bolsonaro government. The rapporteur proposed an agenda with three public hearings during the month of August, and foresees the vote on the preliminary opinion for mid-September.

As presented, UN specialists raise different dimensions regarding the violations of human rights that a PL of this nature can originate. In this text, we wish to engage the discussion on the project within the framework of the debate on defense policy and international security. A first effort in this direction has already been made in the text “Who is the terrorist?”, by Ana Penido and Héctor Saint-Pierre [3]. In this article, we will highlight five reasons for parliamentarians to vehemently refuse the approval of PL 1595/2019 [4].

Misuse of the concept of terrorism

PL 1595/2019 defines in its first article the terrorist act as one “that is dangerous to human life or potentially destructive in relation to some critical infrastructure, essential public service or key resource; and which appears to be intended to intimidate or coerce the civilian population or to affect the making of public policy through intimidation, coercion, mass destruction, assassination, kidnapping or any other form of violence”.

International treaties describe certain acts of armed violence or terrorist threats, without risking a univocal definition of the term. There is also no multilateral agreement on terrorism, but the UN recommends its Convention on the Financing of Terrorist Acts (1999), Security Council Resolutions 1373 (2001) and 1566 (2004) and the Declaration on Measures to Eliminate Terrorism International, approved by the General Assembly6. The UN still works with more specific reports that publicize good practices adopted by countries on the subject, in which Brazil was never mentioned [5].

These conceptions basically suggest three CUMULATIVE questions [6] to characterize terrorist actions. 1) acts, including against civilians, committed with intent to cause death or serious bodily harm, or the taking of hostages; 2) acts committed regardless of political, philosophical, ideological, racial, ethnic, religious or other similar nature, with the purpose of provoking a state of terror in the general public or in a particular group or persons, to intimidate a population, or compel a government or an international organization to do or refrain from doing any act; 3) acts constituting offenses within the scope and as defined in international conventions and protocols relating to terrorism.

In general terms, the act of terrorism has the strategic objective of causing panic, uncontrollable fear. The terror agent can be an individual, a group, another state or the government itself, with the aim of repressing certain social behaviors. The main characteristic of terrorism is to spread fear among the population in order to modulate their behavior. And, to achieve this objective, the terror agent chooses the tactical victim: an individual or a part of the population that must die or suffer serious damage. It should be noted that the targeted strategic victim is not the one who dies, but the one who remains alive and terrified (Saint-Pierre, 2019).

Returning to the formulation of PL 1595/2019 in light of the documents ratified by the UN and academic formulations, it is important to realize that the concept of terrorism must be directly related to acts of serious violence against citizens. There is, therefore, no terrorism against things, objects, essential public services or even critical infrastructure, whether public or private property. Neither do virtual activities, commonly referred to as cyberterrorism, do not apply to the wording recognized by international law. Finally, terrorism is about actions, not intentions.

The definition of terrorism does not include the ideological motivations that lead individuals or groups to action, whether political, social, ideological or religious; while the PL builds an association between the crime of terrorism and “radical wings of social movements”. The association between political tendencies and terrorism is not a new phenomenon or exclusive to Brazil. On the contrary, it has become common around the world to resort to the concept to, in the words of the UN, "discredit political, ethical, regional or other movements that groups in power simply do not like".

There is also no “typical profile” of who might be considered a potential terrorist. The perception of threats is something relational. In this sense, people do not consider themselves threatened by the same things. Therefore, it is impossible to propose systematic strategic communication campaigns aimed at target audiences of interest for anti-terrorist actions, as proposed by the PL, under the risk of reinforcing narratives that stigmatize specific audiences, as is currently the case with Muslims throughout the world. world. For the Public Prosecutor's Office, the possibility of predicting terrorist acts in advance is limited to persons or groups whose purposes or activities are to carry out terrorist acts in the proper sense or to facilitate their commission, in addition to carrying the following guarantees: (i) need to determine reasonable indications that the entity has carried out or knowingly facilitated the commission of acts of terrorism or has participated in them; (ii) procedures allowing entities to request their delisting, together with the right to appeal to a judicial body and the possibility of urging delisting in the event of a substantial change in circumstances or the emergence of new elements related to inclusion on the list; (iii) periodic review of the list to determine whether reasonable grounds continue to exist to retain the entities included; and (iv) mechanisms to quickly address claims of mistaken identity and offer compensation to unfairly affected persons.

Bribery

Different authors who study relations between civilians and the military indicate that military institutions usually impose conditions on the civil power in view of the possibility of internal use of force in situations that inevitably damage the image of the institution, as is the case of use in the face of social protests. massive and peaceful. One of the most frequently requested counterparts is the expansion of the exclusion of illegality or culpability, provided for in the PL in its thirteenth article. In this scenario, sanctions for State agents who injure or kill in self-defense are reduced, which increases the discretion of the agent at the end of the line and, consequently, the lethality of the actions.

In the same logic, the PL proposes the creation of a “Counter-Terrorist Merit Medal”. In Brazil, Joffily and Chirio (2014) [7] found that medals were awarded to state agents involved in torture during the military dictatorship, even with the end of the generals' regime, exposing a system of rewards for agents who engaged in state terrorism practices under the justification of merit in combat.

Anachronistic geopolitical view of borders

One of the issues indicated by the segments favorable to the approval of the PL is the expansion of the entry of foreigners into Brazil since the approval of the Foreigner Statute. Brazil is a country that, historically, has received and integrated (not without violence, as the massive enslavement of people from the African continent reminds us) foreigners of the most diverse nationalities. Identifying immigrants as threats to national security therefore goes against the history of the country and the discussion about the social formation of the Brazilian people.

Pointing out the permeability of national borders to the circulation of civilians as a danger is an outdated view, adopted as a copy of the notion of national defense of the United States of North America (USA), which keeps airports open to receive other Anglo-Saxons, but erects walls and concentration camps against the Latino migrant mass at its doors. In that country, as we know, having borders less permeable to the movement of civilians did not lead to less vulnerability to international attacks.

Dealing with national defense means reducing the country's vulnerabilities (such as the concentration of military resources in Rio de Janeiro) and expanding the capacity for decision-making autonomy of the democratically elected civil power in the face of international constraints. Neighboring countries are partners in regional development, not potential suppliers or intermediaries for terrorists.

Disproportionate choice of security references, notably Israel

One of the justifications for the approval of the PL is the partnership in defense and security with the US and Israel that deepened with the Bolsonaro government. The high number of terrorist attacks carried out in the US is a consequence of an aggressive and expansionist international posture that the country has historically adopted, and not the result of an absence of surveillance or security weapons. In this sense, they are not a parameter for Brazil in legal terms, as the 1988 Constitution encourages integration and prohibits any expansionist attitude by the country; of successful results in the fight against terrorism; political stance on the international board; or possibilities of spending on armaments or instruments of surveillance.

Fruit of US hegemony in defense formulations in Latin America [8], several countries approved anti-terrorism laws in the wake of the War on Terror declared by Washington, resuming typical concepts of the Cold War, similar to that of “internal enemy”, camouflaged by the expression “adverse forces”.

Israel, in turn, is a US enclave in the huge barrel of strategic resources, particularly oil, that the Middle East has become. Thus, its surveillance tools aim to control the sovereignty of other countries in the region over their resources, also with expansionist intentions. In addition, Israeli security agencies are an international reference for human rights violations (having already been condemned several times in the UN), notably against the Palestinian people, maintained under an apartheid regime. The very illegal occupation of Palestinian territories (and Syrians, as in the case of the Golan Heights), the illegitimate use of violence, the creation of millions of refugees and the subhuman conditions imposed on Gaza show that Israel not only cannot be understood as a reference in anti-terrorist policies, but which should be framed as a global reference of state terrorism, incorporated into that country's policies for decades.

In the special commission in which the project is being processed, deputy rapporteur Sanderson proposed a public hearing on practices of friendly nations, listing representatives of the USA, Israel, Colombia and the European Union as deserving of invitation to the table. The Israeli Federation of Brazil was also remembered to compose the table in a second public hearing, representing civil society. Here it is also important to shed light on the recent attempt by one of the sons of the Brazilian president, Carlos Bolsonaro (Republicanos-RJ), to articulate the purchase of the Israeli spy software Pegasus, through parallel negotiation via the Ministry of Justice [9]. Its purchase, via the Brazilian government, falls within the context created for the processing of PL 1595. In June 2017, The New York Times revealed that the software was used to spy on journalists and activists around the world.

temporal opportunism

In national history, the category “terrorism” is directly related to the military dictatorship of 1964. Although the term was used for the first time by the newspaper “The Globe”, in 1965 [10], it was with the new national security law of 1967 that the category “terrorism” entered the grammar of political repression. Directly associated with the armed resistance against the organized dictatorship after the enactment of AI-5 in 1968 [11], Decree-Law No. 34, of March 13, 1967, described acts that prevented or hindered “the functioning of essential services administered by the State or through concession or authorization” as terrorism, including acts “against the establishment of credit or financing". Depending on the interpretation of the state agent on duty, including the police authority, any act against these assets could be classified as terrorism. In addition, the category “terrorism” served as a symbolic code for psychological actions with public opinion against opposition to “the powers that be”. There were several cases of arrest of anti-government activists who, under duress, began to advertise in favor of the government, with wide dissemination of “regrets” in newspapers and television channels associated with the dictatorship [12].

In South America, the political category “terrorism” was widely used to legitimize the practice of State terrorism. Defined in this way by a British delegate to the United Nations office in Geneva [13], the notion of state terrorism represents a systematic practice of state violence that seeks to legitimize itself by the generalization of fear in society against a common enemy of the nation, justifying the gradual expansion of the state's repressive apparatus aimed at dismantling civil society and absolute control of opposition to the government. In the case of national security dictatorships, state terrorism adopted serious violations of human rights as a criminal methodology, such as summary executions, forced disappearances, torture, arbitrary arrests and the concealment of corpses. [14]. In this regard, it is enough to remember that one of the great operators of State terrorism in Brazil, the colonel of the Brilhante Ustra Army – considered a “national hero” by the current vice president and president – ​​defined his narrative about the state violence against the opposition.

At the international level, it is also worth remembering that terrorism was the political category used by the US, through the Organization of American States, to legitimize state terrorism practiced by dictatorships on the continent. In 1970, as stated by the Minister of Foreign Affairs of Brazil, Mário Gibson Barbosa, in a statement at the General Assembly of the OAS, opponents who “robbed banks” and “kidnapped diplomats” committed crimes against humanity. In practice, it is about justifying a joint action in the southern hemisphere of state terrorism against armed groups associated with “Marxism-Leninism” in the context of the cold war. And even after 1988, Marxism continued to be associated with “political terrorism” in this vocabulary. [15].

Brazil has a recent legislation on terrorism, from 2016, which was the subject of controversies that were also the object of manifestation by international bodies and which resulted in the Federal Executive (then President Dilma Rousseff) vetoing generic items regarding the concept of terrorism, and in the inclusion of an article for the protection of the right to protest.

According to the Federal Public Prosecutor's Office, 20 bills dealing with the crime of terrorism are pending before the National Congress, changing the 2016 formulation. The initiatives, in short, propose: the expansion of acts considered terrorist; the possibility of “apology for terrorism”; and the exclusion of the reservation regarding the right to protest included by the Executive at the time of its approval. So why does one out of these 20 PLs advance so quickly?

In its own justification, PL 1595/2019 admits that Brazil is not a typical target for terrorist actions, thus dealing with hypothetical scenarios. Even with provocative statements by Bolsonaro to Iran, on the occasion of the US attack that killed General Qasem Soleimani [16], the country is not seen on the international scene as a potential threat to the stability of other peoples. On the contrary, it has a solid tradition in the peaceful mediation of conflicts.

In this way, what urgency for the procedure would justify the creation of a Special Commission in the Chamber in the middle of the pandemic?

The answer seems to be the opportunity to criminalize political action in the streets of different segments of society that oppose the government in the face of the polarized 2022 presidential elections and the federal government’s disastrous management of the Covid-19 pandemic.

Alternatives

The PL talks about creating a system to combat terrorism, but, in reality, the possibility of interagency action, integration of intelligence areas (including police), among other joint actions, is possible today, with or without the approval of this PL . Given the current level of militarization of the government, which is reflected in the swelling of the Institutional Security Office that subordinates the Brazilian Intelligence Agency, we consider it important to emphasize that it is fundamental that this intelligence be civilian, and not military.

The National Counter-Terrorist System, instituted by presidential initiative, would later be submitted to the external control of the Legislative, according to chapters II and III of the PL. The Strategic Counterterrorist Units and their components would have “an episodic nature for the solution of a specific and specific crisis”, and their use would require a decree declaring federal intervention, a state of defense or a state of siege. Although one of the justifications for the decree is the need for interoperability, the System does not point in this direction.

It should be noted that Brazil has participated in the Inter-American Committee against Terrorism since 2005, within the scope of the OAS [17]. We believe it pertinent that, before creating a new system, it is necessary to make a public assessment of the results of Brazilian engagement in the existing system, reviewing and weighing its attributions.

Thus, the proposal to create anti-terrorism agencies seems to respond more to corporate interests to increase staff and structure (which inevitably implies budget increases at a time of economic strangulation) than to integration and interoperability, which are fundamental to the confrontation not only of hypothetical terrorist acts, but of crimes that already occur today.

The PL still identifies a set of preventive actions in its third article, ranging from border control to the infiltration of public agents [18] in organizations suspected of carrying out terrorist actions. At this point, the document is quite detailed, even proposing the creation of a “linked security identity”, or, in other words, a false identity for public agents who become infiltrators; and in its eleventh article it opens up the possibility of surveillance and interception of communications and private data. It invests, therefore, in the possibility of terrorist acts being committed by Brazilian civilians, who should be monitored within the national territory. For this, it proposes the creation of a parallel intelligence apparatus, weakening the Federal Police and the official intelligence structure itself.

Another fundamental point is to identify the criteria of the national intelligence services for the classification of “suspicious organizations”. Without objective and universal criteria, this identification would depend on the political and social alignment of individuals in positions of power, and not on a clear definition of the Brazilian State.

It should be noted that, even in the case of violent protests, it would be appropriate to isolate individuals who committed violent acts and subject them to the penalties already provided for, as has been the case with crimes of damages. In these cases, there is no general limit to protests, but it may, for example, be pertinent to investigate possible sources of international funding for actions of a violent nature in national territory.

We understand that a more effective measure would be a greater investment in arms control, something that, we know, goes against the current policy of flexibility for the purchase of weapons and ammunition adopted by the federal government. And it is not just the weapons originally built for this purpose, but inputs that, guided by terrorist intentions, could be used for this purpose. In Brazil, for example, regular or clandestine access to explosives or pesticides is quite simple. Even weapons controlled by the armed forces [19] are found in lawsuits by prospectors against indigenous peoples. As noted, terrorism is not something restricted to groups or types of weapons. However, strict control over instruments with a high offensive potential for mass damage helps to prevent crimes that use these devices, as is the case of terrorism.

* Ana Penido is a postdoctoral researcher at the San Tiago Dantas Program (UNESP – Unicamp – PUC-SP).

*Pedro P. Bocca Master in International Relations from PUC-SP.

*Rodrigo Lentz is a doctoral candidate in Political Science at UNB.

Originally published on Defense and Sovereignty Observatory [https://thetricontinental.org/pt-pt/brasil/5-motivos-para-recusar-o-projeto-de-lei-contraterrorist/]

Notes


[1] According to a report by Jamil Chade, published on UOL (available at: https://noticias.uol.com.br/colunas/jamil-chade/2021/06/23/nova-lei-antiterror-de-bolsonaristas-ameaca-silenciar-oposicao-alerta-onu.htm), the letter is signed by Fionnuala Ní Aoláin (Rapporteur on the Protection of Human Rights and Combating Terrorism), Miriam Estrada-Castillo (Chair of the UN Working Group on Arbitrary Detention), David R. Boyd (Rapporteur on the Right to clean environment), Irene Khan (rapporteur on freedom of expression), Clement Nyaletsossi Voule (rapporteur on the right to freedom of association), Mary Lawlor (rapporteur on the situation of activists) and Joseph Cannataci (rapporteur on the right to privacy).

[2] It should be remembered that a group of UN special rapporteurs had already expressed concern about the political process for approving Law 13260/2016, currently in force.

[3] Available at: https://piaui.folha.uol.com.br/quem-e-o-terrorista/

[4] No comments will be made regarding the proportionality of the proposed penalties, something that we leave to the analysis of jurists.

[5] April 2014 report: http://acnudh.org/wp-content/uploads/2014/05/A-HRC-25-59-add.2-s.pdf

[6] https://undocs.org/en/E/CN.4/2006/98

[7] Mariana Joffily; Maud Chirio, The decorated repression: the attribution of the Medal of the Peacemaker to agents of the security apparatus (1964-1985), Revista História Unisinos, v. 18, no. 3 (2014): September/December.

[8] https://wagingnonviolence.org/2016/03/across-latin-american-governments-criminalize-social-movements-to-silence-dissent/

[9] https://noticias.uol.com.br/politica/ultimas-noticias/2021/05/19/briga-entre-militares-e-carlos-bolsonaro-racha-orgaos-de-inteligencia.htm

[10] Kushnir, 2008.

[11] It is worth noting that the first armed uprising against the dictatorship was in 1965, in the city of Três Passos/RS, led by Army Lieutenant Colonel Jeferson Cardin. To see: https://download.uol.com.br/noticias/infograficos/guerrilha/html/home.html

[12] Alessandra Gasparotto, The Renegade Terror: uA reflection on the episodes of public retraction carried out by members of organizations fighting the civil-military dictatorship in Brazil (1970-1975) (Master's Dissertation in the Postgraduate Program in History at the Federal University of Rio Grande do Sul, 2008) .

[13] Blauquién, 1998, p.300.

[14] Duhalde, 1999; Valdes, 1980.

[15] Brazil, 1996a, p.162.

[16] https://www.brasildefatomg.com.br/2020/01/09/o-governo-brasileiro-nos-torna-alvo-de-ataques-internacionais-avalia-especialista

[17] http://www.gsi.gov.br/noticias/2015/estrategia-de-seguranca-da-informacao-e-comunicacoes-sic

[18] Such actions occurred, for example, in the 2016 protests, such as the widely reported case of Army Major Willian Pina Botelho, infiltrated under the codename Balta Nunes in the anti-Temer protests. At the time, the Army justified the action as part of the scope of Ensuring Law and Order activities. https://brasil.elpais.com/brasil/2018/06/29/politica/1530293956_036191.html

[19] https://www.brasildefato.com.br/2021/07/11/exercito-eo-unico-vendedor-de-bombas-utilizadas-por-garimpeiros-para-atacar-indigenas.

 

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