Litigation

'Litigiousness in Australia: Lessons From Comparative Law' by Leon Wolff in (2013) 18(2) Deakin Law Review 271 [PDF] asks

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention - the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

Wolff comments

This article seeks to re-open the debate about Australian litigiousness. The rationale for doing so is that the current literature provides only partial and incomplete answers to the question ‘Are Australians too litigious?’ For example, the literature makes it clear that claims of an Australian embracing of American-style excessive legalism are based on unreliable data and selective anecdotes. Quantitative studies amply demonstrate that Australia’s system of civil justice is not in crisis; indeed, litigation rates have been consistently falling since the turn of the 21st century. But litigiousness — or the ‘fondness’ for law — is a cultural question: it concerns a society’s appetite for law; its preparedness to invoke formal law to articulate claims, defend rights and resolve disputes. As such, it is a qualitative, not a quantitative, issue.

The article turns to the comparative law literature for lessons on the possibilities and pitfalls involved in the making of such qualitative claims about litigation and litigiousness. In particular, it highlights the contrasting cases of the United States and Japan. The article argues that, since litigiousness is difficult to measure directly, cultural stereotypes persist in much popular and academic literature — the stereotypes of a rights-obsessed, litigation-loving America and a socially harmonious, litigation-averse Japan. Comparative law scholars, however, strongly contest — and, often, outright reject — these populist impressions.

These comparative law findings have implications for understanding litigiousness in Australia. Two contrasting images currently compete to define Australian identity. The first is that Australians are laid-back, friendly and easy-going, an image projected in such Australian vernacular expressions as a ‘fair go’, ‘she’ll be right, mate’ and ‘no worries’. The second, popularised in the mass media, is that Australians are becoming too ‘American’ in their approach to rights and litigation. On this second view, the Australian legal system is heading for crisis. More than that, Americanisation may spell the decline of society, as citizens prioritise their individual rights over their collective responsibilities. This article explores how commentators seek to correlate these conflicting impressions about Australian identity with Australian litigiousness. It concludes by suggesting that the better view might lie somewhere between these extremes.

The A Card

An editorial in the NY Times notes a bill to create a municipal photo-ID card for all New Yorkers, "even those without legal immigration status", and thereby achieve the migrant-rights goal of "documenting the undocumented".

The Times comments that

The benefits for cardholders are obvious. An ID would make it vastly easier to navigate through life, to open bank accounts, to enter public buildings, to feel safe in encounters with the police, as victims of or witnesses to accidents or crimes. The rest of the city would also benefit through the fuller participation of often-marginalized residents — not just immigrants without papers, but also the old, the disabled and others who find it difficult to get an ID the usual way, through the Department of Motor Vehicles.

But if the card is going to work, if it’s going to be more than a glorified library or supermarket-discount card, it will need the full cooperation and support of the Police Department, whose officials are said to be concerned about the possibility of document fraud and other misuse. It would also need to be accepted by immigrants, who have their own worries about privacy and the vulnerability that comes with leaving the shadows.

The police are right to be wary — New York’s ID, if it passes, could quickly become the largest in the country, and if the city is not prepared to be rigorous in demanding the right kinds of checks and safeguards, it could be a dangerously porous program. The bill as written calls for strong documentation like passports, foreign consular IDs and birth certificates, and for various ways of proving New York City residency. The details need to be carefully worked out, but it’s vital that the final bill create a card that the Police Department accepts as proof of identity. The key test will be this: When a cardholder is stopped for a minor violation, he or she should be issued a summons, not detained for lacking ID.

Immigrants, meanwhile, have justifiable worries about turning over information to the government, or carrying a card that marks them, as surely as a scarlet “A,” of being in the country illegally. The identity documents used to obtain a card should not be held permanently; originals should be returned to cardholders and copies destroyed.

Open APH

The AFR claims that

Chinese intelligence agencies that penetrated Australia’s parliamentary computer network in 2011 may have been inside the system for up to a year and had access to documents and emails that reveal the political, professional and social links across the political world, according to seven sources with knowledge of the breach. Security and parliamentary sources said Chinese agencies obtained remote, system administrator access to the Parliament’s computer network, which “effectively gave them control of it”. 

During 2011 The Australian indicated that Beijing was suspected of unauthorised access to the email system used by federal MPs, their advisers, electorate staff and others. The access occurred over several weeks.

The AFR goes on to comment that

Australian intelligence reached the “absolutely clear conclusion” that Chinese intelligence was responsible and informed their political masters the identities of the intruders. The intelligence services briefed the parliamentary committee that oversees security matters while it was in progress, sources said, and the network was shut down several times while analysts from the Australian Signals Directorate patched it. “It was like an open-cut mine,” said one participant. “They had access to everything.” China got access to all emails, contact databases and other documents stored on Parliament’s computers....

One participant said they were “surprised at the extent of the compromise and did not immediately comprehend why information on personal relationships and domestic politics would have been so useful to the Chinese”. ...

The parliamentary network is unclassified, which means it isn’t used for secret communication, so the information is likely to include a huge amount of mundane messages about the day to day life of politics, long lists of email addresses and phone numbers, and planning documents. But it could also include sensitive discussions between MPs about party matters and reveal lobbying by companies, pressure groups and ex-politicians. It is likely include embarrassing gossip about senior figures and their media strategies. 

Unsurprisingly the report refers to "shock and anger".

The Australian Signals Directorate, which has of course been criticised by what one contact characterises as the Snowdenistas, reportedly

carried out “vulnerability testing”, or authorised hacking, of the parliamentary network in 2010, prior to the detection of the Chinese breach. The probes found the network had very weak security and could be overcome by a low-level hacker.

After the compromise became public, a defence official met a senior Chinese diplomat and said the Chinese regime could not have done more to ostracise both sides of politics. 

That diplomat, as you'd expect, "denied knowledge of the breach".

The article in the AFR (with similar items in other Fairfax outlets) follows reporting on  surveillance within and outside Australia by Chinese officials of Chinese students and other nationals.

Hatespeech and Historicism

'Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States' by Ioanna Tourkochoriti in (2014) 45 Columbia Human Rights Law Review 552-622 comments that

The 2011 legislative proposal by the French Government to criminalize denial of the Armenian Genocide — and the legislation’s invalidation by the French Constitutional Council on rule of law grounds without seriously addressing the free speech concerns underlying the case — raised once more the question of the limits of hate speech protection and of political tolerance in a democratic society. Is it legitimate for the state to intervene in order to protect its citizens from offensive speech or from the danger of arriving at erroneous opinions? Hate speech manifests itself today in various forms, but in general, European law is more restrictive of hate speech than U.S. law. This Article presents the different legal responses in Europe and the United States and evaluates them. Whereas most analysts take an "all or nothing" approach to these issues — believing that, if limits are placed on hate speech, then those limits should apply broadly to hate speech in all of its manifestations — the analysis in this Article shows why we should distinguish between different types of hate speech for philosophical reasons grounded within liberalism. The Article proposes a philosophical approach that justifies the punishment of group defamation while opposing bans of certain political parties and the criminalization of the contestation of historical facts.

Tourkochoriti argues that

Some of Mill’s arguments in favor of free speech are very insightful concerning the criminalization of contestation of crimes against humanity. In the academic context, freedom of expression must be defended rigorously. Independently of whether one accepts Mill’s ultimate empirist presuppositions, Mill offers an interesting procedural model of scientific development whose implications escape the intentions of its enunciator. History and experience do show that scientific progress is based upon the succession of one paradigm to another. Although it may not be plausible to assert that the state or private academic institutions must actually fund or otherwise promote research contesting the Holocaust, for example, the criminalization of discourse that actually does can hardly be justified. Dworkin’s argument that offense is not a valid justification to criminalize the contestation of crimes against humanity is also plausible in this case. The danger that a part of the population might feel offended by the contestation or relativization of the importance of crimes against humanity is not sufficient to justify restrictions, as history shows. A high level of offense from doubts expressed about the worst genocide in history is a legitimate sacrifice for liberty.

Furthermore, the contribution of the philosophical current of hermeneutics consisted in underlining the subjectivity of any human attempt to understand the world. From the Kantian perspective, even the distinction between the positive and the natural sciences has been relativized. Kant’s contribution to the foundation of hermeneutics consisted of stressing that all objects are experienced through the lens of human subjectivity. The external objects exist “only for and in consciousness.” Dilthey’s distinction,  which claims that natural science consists in “explaining” and human sciences make us understand, can be criticized through the lens of Heideggerian phenomenology. According to the latter and its application by Gadamer, in the domain of art and history the role of the subjectivity of the interpretive subject is dominant in any attempt to apprehend the world, either “physical”—the object of positive sciences—or “mental”—the object of history and other theoretical sciences.

Truth is a quality that is inextricably bound with the method we use for its verification—the methodology one uses to define the object being verified cannot be separated from our judgment of something as true. Experimental truth, however, is circular in that it presupposes its own scientific frame: the scientific object framed by the scientist is within the assumed boundaries of the perceived world of the scientist. What is perceived is the reference point of scientific objectivity. “[T]he advent of experimental science is an event in our cultural history, just like literature, theology or politics.” But science is circular in another sense as well: man is the object of science and also the subject of culture. Science is founded in a circle that presupposes scientific activity and man as subject, while at the same time reducing man to the same measure of objectivity of its perceived object. Science as a “theoretical praxis” is constituted by the decision “to suspend all affective, utilitarian, political, aesthetic, and religious considerations and to hold as true only that which answers to the criteria of the scientific method . . . .” Truth is associated with science as being from it and like it.

Concerning the positive sciences, truth is also dependent on the method of interpretation. Thomas Kuhn describes the succession of one scientific paradigm by another. Kuhn calls “paradigms” the accepted examples of actual scientific practice, which include “law, theory, application, and instrumentation together,” and which provide models from which spring coherent traditions of scientific research. Today, for example, some Aristotelian beliefs about nature are called myths; however, “myths can [also] be produced by the same sorts of methods and held for the same sorts of reasons that now lead to scientific knowledge.” In all schemes of interpretation which have been used by humans to make sense of the world, there has been an “arbitrary element, compounded of personal and historical accident,” that, in combination with “some set of received beliefs,” forms the understanding of the world “espoused by a given scientific community at a given time.” Scientific practices are defined by traditions, which are rejected and substituted by others that are incommensurable with them. The professional community evaluates and reevaluates “traditional experimental procedures,” altering the “conception of entities with which it has long been familiar” and shifting “the network of theory through which it deals with the world.” Each school of thought is based in reality upon some particular metaphysic. Professionalization in science leads to “an immense restriction of the scientist’s vision and to a . . . resistance to paradigm change.” Every scientific revolution is, for Kuhn, a reconstruction of commitments of the scientific community. Kuhn ends his book noting that “scientific knowledge, like language, is intrinsically the common property of a group” and thus “to understand it we shall need to know the special characteristics of the groups that create and use it. Durkheim had also noted that modern science works for us because we believe in it. The belief in science in our disenchanted world comes from the need of our societies to be enchanted.

Radical critics like Michel Foucault underline the creative power of the interpreter inevitable in any domain of human science or other activity. The discourse of all historical approach to reality is to remove discontinuity among historical facts, rearranging it in a way as to reveal a continuity of events. All scientific discourse presupposes an authority recognized as competent to form that discourse, which thus exercises power upon its object. Scientific discourse develops its own rules, which form the objects of which they speak.

Beyond the two radical positions of subjectivism and objectivity, intermediate approaches stress the subjectivity of the historian in reconstructing or re-enacting historical fact. History is the result of both historical evidence and of the imagination of the historical agent. According to this view, we expect history to have a certain objectivity in an epistemological sense, and to present what thought can make understood and put in order. At the same time, it is expected from the historian to have some subjectivity that is suited to the objectivity proper to history: the subjectivity of reflection. By establishing their working hypotheses, historians reconstruct events or a series of events or situations; their task is to compose and construct a retrospective sequence of phenomena. Their analysis tries to find the relationship between the phenomena they have distinguished, proposing an understanding of situations. The study of history is a will to understand rationally, to build a “rational enterprise of analysis.” The historian’s subjectivity inevitably intervenes in the choice of the interpretative schemata, as the rationality seen in history depends upon the evaluation of the interpretative subject. The scientific object is always relative to an ordered mind. History as research always presupposes a point of view of departure, a point of reference in order to make sense; this point of reference is identified by the investigative ego. Truth, however, is not monadic—the adequacy of a person’s answer to his problematic—but instead is intersubjective. The work of a historian is tracing an analogy containing a reenactment of the past in a historical distance, which is a part of the dialectic between future, past, and present: an incomplete abstraction.

History is a reconstitution of the past for human beings engaged in the network of the human realities of today that conditions their perspective towards the past. Belonging to a national group, or other social classification, motivates an interest in history, as well as general curiosity and “a demand for intelligibility.”

“Historiography is [thus] the reflection of [one’s] situation, the backward projection of . . . idea[s], [and] the vision of the past is the reflection of [one’s current] values.” Historians look at the past with an interest in issues that deal with the anxieties of their time; they are trying to respond to questions formed by the spirit of their time. At the same time, reality is the result and the postulate of historical analysis. Scientific knowledge is inseparable from living human beings and their history. Thus, there is not one monolithic historical reality, which is to be reproduced with fidelity on behalf of the historian; historical reality as a human reality is equivocal and inexhaustible. The meaning of acts of men is inexhaustible, as it is, in reality, the meaning of the past for the various successive interpreters of the present. The plurality of the universes in which human existence manifests itself makes equivocal the perspectives of each interpreter. Restating ideas, constructing facts, and organizing consciences are subjective by definition: history cannot be objective because it cannot be detached by the interpreter, the historian, or the human being who attributes meaning to facts. The evolution of our perspectives transcends the antithesis between subjectivism and objectivism, as well as the opposition between the present and the past. Historical facts are thus individual reconstructions, which are historical to the extent that they can be attached to the whole of common representations or collective ways of action. The historian, marked by the context that leads him or her to become conscious of history, thus expresses simultaneously the community of her time and the community she examines. The historical vision is relative to the present: the static and historical renewals in the interpretation of facts or institutions, the relativity of the explanations of origin, the tendency to a retrospective rationalization, which suggests the necessity of becoming. In the case of general history, the orientation of the perspective tends to be confounded with theory, just as it is difficult to separate factual judgments from evaluating ones. Objectivity is thus impossible for the historian interpreter, since human events, equivocal and inexhaustible, can be comprehended in multiple ways. Individual perception is by definition relative: history aims at an object that has passed, but which also finds existence only in human minds and changes with it.

“History is the realm of juxtaposition” where the historians themselves define the elements of a plot, which is a human mixture of material causes, aims, and chances that they consider important. The totality of phenomena cannot be the object of study, but only certain aspects of that study. Historians relate plots which are like itineraries that they mark out at will through the field of events, those events themselves having no natural unity, being instead a decoupage of what one freely makes in reality, an aggregate of the processes in which substances, humans and things interact. The terrestrial world is complicated and our truths are bound to be partial. Subjectivity does not mean arbitrariness; rather, it means a choice of features that are deemed pertinent or not. The judgment of which events are deemed worthy of history is dependent on the value the historian attributes to them, on the basis of the plot that she has chosen in her effort to respond to the problems of her time. Rather than explaining, history proposes understandings of human behavior and events: it is the meaning that the historian gives to specific events. The historian unfolds a narrative by making explicit links among events which he or she calls “causes” while being aware that history is made of “things that might be different.” The historian’s opinion of facts is indissociable from the facts themselves. History is a work of art: “Originality, cohesion, flexibility, richness, subtlety, and psychology are the qualities necessary to say with objectivity ‘what really happened.’” History reveals an understanding of the concrete. In this respect, what differentiates history from other “sciences” is that they are feasible in the sectors “where universal determinism (which it is everywhere impossible to follow in its inexhaustible detail) is presented with more global, comprehensive effects and can then be deciphered and handled by an abridged method that applies to macroscopic effects: that of models and that of predominant effects.”

Historians, like all other scientists bound by the limits of human understanding, merely propose interpretations of the world and of phenomena, which they call and characterize as historical facts. Any regulation concerning the debate among historians about historical fact is thus inappropriate and ineffective.

Tourkochoriti concludes -

This Article argues that there is a strong philosophical justification for limiting hate speech when it manifests as group defamation. Beyond the technical difficulties of applying relevant legislative prohibitions, the impossibility of distinguishing between speech and action strengthens the need to punish manifestations of hate speech addressed to specific individuals. Defamation of private persons does not promote the public use of reason. Freedom of expression is a fundamental human liberty tied to the very possibility of developing human consciousness, abstract thought, and civilization. Human consciousness is social and develops only through language and interaction. If it is language and interaction that elevates human beings to the dignity of being human,  discourse that negates respect for humanity should be limited when it concretely manifests as an insult.

Hateful defamatory speech negates the very possibility for social interaction and prevents the perpetuation of the endless debate of thoughts and ideas. The criminalization of concrete insults addressed to specific persons with intention to harm is justified. This argument does not apply to the Internet, where direct face-to-face interaction does not exist. Filtering hateful messages that Internet users might unexpectedly encounter is justified. However, limitations on the discourse of political parties and bans of political parties are founded on a performative contradiction in reference to the principle of democracy. Future generations should not be denied their possible choice to negate the social contract. Allowing them freedom to participate in such parties might lead to a different constitutional democratic equilibrium that, instead of negating democracy, leads to its evolution. Allowing freedom for extremists allows democracy to come into contact with the reality of its functioning or dysfunctioning. Similarly, the criminalization of the contestation of historical facts that seem offensive is an inappropriate measure. Debate leads to a better understanding of the relevant historic events in the collective effort by humanity to make sense of the world.

Bullying

The Fair Work Commission has released its anti-bullying report for the January-March 2014 quarter [PDF].

Last year the Commission forecast that it would receive around 3,500 bullying-related applications per year. Receipt of 151 applications in the quarter (all dealt with inside the required 14-day period, eight finalised with a decision) suggests that the figure for the current FY will be lower.

Most applications were from employees of large organisations alleging unreasonable behaviour by managers. Employees made 133 of the 151 applications; employees of a labour hire companies made three; contractor or subcontractors four; and apprentices/trainees and volunteers one each.

Of the eight finalised applications, the Tribunal issued orders once (on the basis that the employee faced a risk of continued bullying from a peer), in Applicant v Respondent, PR548852 (21 March 2014).

Those consent orders require the peer to have no contact with the co-worker alone, make no comment about the co-worker's clothes or appearance, refrain from sending any emails or texts to the co-worker except in emergency circumstances, "complete any exercise" at the employer's premises before 8:00 am (reinforced by an order that the co-worker not to arrive at work before 8:15 am); and raise no work-related issues without first notifying the employer's chief operating officer or his subordinate.

Six applications were dismissed under s 587 of the Fair Work Act 2009 (Cth). One was dismissed on jurisdictional grounds.

Of the claims finalised without a decision, applicants withdrew 23 early during case management; with five withdrawing ahead of a conference or hearing. A further 16 were resolved during proceedings (four withdrawn after a conference or hearing and before a decision).

Some 109 workers alleged bullying by managers, with 27 alleging bullying by an individual worker, 20 by a group of workers and three by a subordinate.

67 of applications were by workers from organisations of 100-plus employees; 29 from those in organisations with 15 to 50 employees, eight from those with 51 to 100 employees, and 19 from organisations with less than 15.

Workplace surveillance

The Administrative Appeals Tribunal decision in Azary and National Australia Bank Limited [2014] AATA 222 offers an insight into the use of covert surveillance in relation to alleged fraudulent compensation claims.

Hashem Azary was employed as a banking adviser with the NAB. He claims that despite meeting performance targets his manager Mr Adhami subjected him to increasing pressure to meet unrealistic targets, bullied and intimidated him, and then directed him to accept a lower level position or be subjected to "extended micro-management" with the threat of termination if his results did not improve. Azary has not worked since the April 2012 meeting at which he received the direction and has been under the care of a psychiatrist for much of the time. In May 2012 he claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) for "Acute Anxiety Attacks/Depression".

The NAB disputed Azary's claim to suffer from a psychiatric condition and argued that even if he suffers from such condition his employment did not contribute to it to a significant degree. Going further, the NAB argued that even if Azary's employment contributed significantly to his condition, he did not suffer a compensable injury because it was the result, in whole or in part, of reasonable administrative action taken in a reasonable manner in respect of his employment.

The NAB called in contractors for covert surveillance.

The AAT states -

Mr Azary attended the four and a half days of the [AAT] hearing with his wife. Throughout the hearing, he displayed what some doctors noted in their consultations with him and describe as “regressive behaviour”: walking stooped with his hands clasped in front of him, rocking continually in his seat, avoiding eye contact and speaking in a somewhat child-like voice. Mr Azary gave evidence that his symptoms started within one or two days of his meeting with Mr Adhami on 20 April 2012. He said he was unable to control the rocking and it “never stops”.

However -

Although he clearly found the hearing stressful at times, Mr Azary had no apparent difficulty answering questions, recalling details of events, or responding to matters asked of, or put to him, in evidence. The discrepancy between his physical presentation and his ability to respond to questions was considered significant by a number of medical witnesses whose evidence is considered below. Further, as we discuss below, Mr Azary’s appearance when under surveillance on four occasions was markedly different from his presentation at the hearing.

The AAT refers to "surveillance evidence" -

Surveillance of Mr Azary was carried out by Adroit Business Advisers Pty Ltd on behalf of the respondent over seven days in September and October 2013, four days in February 2014 and two days in March 2014. He was filmed for a total of 16 minutes on four days when he was observed at home, or coming and going from his home. The investigator’s report and films are in evidence.

On 15 October 2013, Mr Azary was filmed for a total of four minutes outside a relative’s address in company with another man, whom he identified as his brother, and driving his car away from the address with his brother a passenger. The following day, he was filmed briefly walking to his letterbox and wheeling a rubbish bin inside the fence of his property while carrying his son.

On 18 February 2014, Mr Azary was filmed for a total of four minutes driving his son to day care in the morning. He was filmed picking his son up in the afternoon and shopping at a local shopping centre.

On 11 March 2014, he was filmed for a total of nearly seven minutes driving his wife and children to day care, taking his son into the centre, and from there driving his wife and daughter to McDonalds and then to the railway station. They caught the train to the city, returning some hours later when he drove his family to the day care centre and collected their son.

At all times while filmed, Mr Azary’s presentation bore no resemblance to how he presented at the Tribunal hearing: he was clean-shaven and appeared quite neatly dressed; he appeared to move about and walk normally, without any sign of stooping or clasping his hands; and while seated talking with his brother, he showed no sign of rocking behaviour.

Save for Dr Mustapha Alameddine, the DVD was made available to each of the doctors who gave evidence at the hearing. Their evidence is considered below.

Giving evidence, Mr Azary maintained he was unable to control the rocking but “sometimes it stops”. He claimed he was seen seated with his brother without rocking because he had just been driving with his seat belt on which helps stop the rocking. He said he stoops and clasps his hands when he is stressed or anxious.

Contrary to Mr Azary’s claim that he only drives the car in an emergency, he is seen driving his wife and his brother and could not satisfactorily explain what emergency prevented them from driving him on those occasions other than that he had to take his son to child care.

The AAT considered evidence from  Ms Al-Haddad, Azary's wife, who

Al-Haddad [Azary's wife] claims Mr Azary is “totally dependent” on her: she has to help him shower, shave and dress, and has to put his food out for him and encourage him to eat. He has little social interaction and is afraid of open spaces. He only drives under “extreme” circumstances. She says she first noticed him rocking a day or two after the meeting with Mr Adhami. It became worse until, about two weeks later, she urged him to see a doctor after he mentioned suicide.

Ms Al-Haddad was not shown the surveillance DVD but was asked about her husband’s physical presentation and driving. She said he rocks when under pressure but “occasionally” stops when he “takes his medication”. Asked if she could explain why he might be observed sitting without rocking, she said he could have just been driving and the seat belt would have helped. She was asked repeatedly about how often he walks stooped with his hands clasped but she would not say. Asked whether Mr Azary goes out alone, Ms Al-Haddad said sometimes he will take out the bins; if they go out together, he asks to go home after about 15 minutes. She said she can sometimes urge him to stay out for about 45 minutes. She could not recall an occasion when he managed to go out twice on the same day (as he was observed in her company on 18 February 2014).

Ms Al-Haddad maintained she drives if they are together and Mr Azary only drives in an emergency. Despite being pressed, she could not say how often emergencies happened. Asked about the occasions when he was observed driving on the DVD, she could not recall what the emergency was that meant he had to drive. When pressed, she said her daughter had a fever that lasted two days so he drove their son to child care; another time she had a headache and could not drive. Asked about him driving to the train station on 11 March 2014, she said they went to the embassy to complete the children’s citizenship applications. She could not explain why this was an emergency or why she could not drive.

Ms Al-Haddad’s evidence was not convincing. Even allowing for some misunderstanding due to interpretation (which was not evident), her responses were frequently evasive. Her explanations strongly suggested she had discussed the DVD overnight with Mr Azary and tailored her evidence accordingly. We find her evidence unreliable and we reject it.

Consultant Dr O'Neill examined Azary in August 2013

Dr O’Neill took a detailed history from Mr Azary and administered a range of psychometric tests. Mr Azary’s scores were low enough to indicate a mild intellectual impairment. Dr O’Neill commented on the “significant discrepancy” between his reported pathology and his presentation and noted “he showed clarity of thought despite his rocking behaviours and complaints of impairments”. On the Structured Interview of Reported Symptoms test, considered the “gold-standard assessment of feigning”, Mr Azary’s overall response indicated “a likelihood of 81.8% of feigning mental disorder”.

Dr O’Neill reported: On multiple scales measuring feigning of mental disorder, he endorsed a high degree of exaggerated, unusual and extreme symptoms atypical of bona fides clients, but more typical of individuals asked to feign mental disorders in simulation research.

The Tribunal comments that

We have considered carefully the evidence about the diagnosis of any psychiatric condition suffered by Mr Azary, bearing in mind especially that he has undergone ECT. That fact alone is not easily reconciled with the absence of any psychiatric disorder but nor is it evidence in itself of a psychiatric illness. ...

Drs Bell, Champion and Newlyn each saw Mr Azary only once. However, their unanimous conclusion, having seen the DVD, was that he has, and has had, no psychiatric disorder. Dr Newlyn changed his opinion completely, though not on the basis of the DVD alone.

Dr O’Neill suggested it was possible that Mr Azary’s cognitive functioning had been deteriorating in the year or so before meeting with Mr Adhami and Dr Bell also thought it possible (before seeing the DVD) that his deteriorating performance at work signalled the gradual development of a mental illness. If that is so, it could be open to us to find that Mr Azary suffered an aggravation of a pre-existing condition as a result of the meeting on 20 April 2012. However, we prefer the evidence of Drs Bell, Champion and Newlyn that Mr Azary does not, and has not, suffered from a psychiatric condition.

It seems extraordinary that any person would submit to ECT and anti-psychotic medication if not suffering from a psychiatric condition. On the evidence before us, however, we find Mr Azary has not suffered, and does not suffer, from a psychiatric disorder."

Snowden

'Panvasive Surveillance, Political Process Theory and the Nondelegation Doctrine' by Christopher Slobogin in (2014) 102 Georgetown Law Journal comments

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine.

Part I introduces the notion of panvasive law enforcement — large-scale police actions that are not based on individualized suspicion — and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine — if not the (supposedly moribund) doctrine itself — can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch.

'The Snowden Disconnect: When the Ends Justify the Means' by John Robinson Jr. comments that

People react to Edward Snowden and his national security disclosures in radically different ways. Security hawks want his head and call him a traitor; privacy advocates think him a whistleblower and a national hero. This essay examines those positions and finds that there is a fundamental disconnect between them, which influences and prohibits an important national conversation concerning the scope of the NSA’s work, the laws under which it operates, and privacy rights of United States citizens. This essay concludes that the privacy advocates have the stronger interests, and that it is wildly inconsistent for the government to simultaneously seek Snowden’s prosecution at the same time it engages in substantive national-security legal reforms.

Robinson goes on to state

Wide disparity exists across the United States in the response that American citizens have to Mr. Snowden and his disclosures. On one end of the spectrum, the security hawks present leaking the files as a traitorous act with grave national security implications. At the extreme, some claim that the leaks will lead to American deaths.  On the other side, privacy advocates view the disclosures as essential information concerning governmental overreach and constitutional violation. In their view, such knowledge empowers society to make cogent choices concerning privacy and security and Snowden should be hailed, not condemned.

However, the current Snowden-based dialogue generally sees little “conversation” taking place—both positions are talking past each other, not to each other. This gives ride to an interesting, if not altogether unique, situation. And until there is some remedy to it, there can be little progress toward reconciling the interests of the two groups. Without a meaningful dialogue, both sides will continue to dig in their heels and take positional, rather than interest-based, postures.

Positional thinking is black and white — Snowden is a bad guy or a good guy — but fails to understand the connection between the position and the interests that underlie it. That is, security hawks forget that their interest is in national security, not in trampling on the Fourth Amendment. Such a positional approach ignores the interests of the other side (e.g., privacy rights) and does not allow a meaningful conversation to take place.

Ultimately, this lack of conversation stems from the two diametrically opposed ways of interpreting the Snowden disclosures. That is, the two positions are not in conversation because they are not using the same lens; each position views the Snowden revelations in completely different light. To explain, this essay groups Snowden’s revelations in two distinct ways—the red lens and the blue lens.

Through the red lens, Snowden’s revelations have done damage to the U.S. security apparatus. Take disclosure of NSA’s MYSTIC program, discussed supra Part I.B.3, for example. Assuming that MYSTIC is in fact targeting Iraq, and Iraq did not know about the program, one can easily imagine the damage done. Terrorists and security threats within that country are now on notice that their communications are completely compromised; before the Snowden files, they probably were not taking appropriate precautions because they did not even know they were under surveillance. In this view, it is not particularly important that some American conversations might get swept up among the mass of Iraqi calls, and the efficacy of NSA’s MYSTIC program is severely compromised.

Through the blue lens, Snowden’s revelations simply exposed a vast and unknown security apparatus. For instance, the PRISM program and Verizon metadata-collection disclosures, discussed supra Parts I.B.1–2, tell the story of a government agency gone astray. The NSA, an agency that supposedly only operated outside of the U.S., had instead turned its eyes and ears on the homeland — surreptitiously collecting data about U.S. citizens that were on American soil. Adding to that baseline, the fact that many large companies seemed to be complicit, whether knowing or not, in the NSA’s data collection meant to many people that Snowden revealed a military-industrial complex that disregards large sections of the Constitution.

This major and fundamental difference trickles down into other aspects of the Snowden affair and the media’s portrayal thereof. The position that a person takes on the Snowden revelations depends on which version of the Snowden account, illustrated above, that she accepts. For example, people infer Snowden’s intentions based on the color of their own personal lens. Those seeing red portray Snowden as an egotistic, self-interested attention seeker who cares little for the safety of the United States. The blue-lens people, though, portray him as a moral and principled patriot who risked it all because of his convictions.

Two reasonable people can take radically different positions on the whole affair based simply on their own bias—elevating one view automatically subjugates the other. In this way, privacy advocates and security hawks are really not even part of the same conversation. ...

Understanding the viewpoint disconnect illustrated above informs the associated disconnect between Snowden the hero versus Snowden the traitor. Because the security hawks only see the harm that Snowden did, they call for his prosecution. Privacy advocates take the opposite line, concluding that his disclosures fueled democratic debate and cast light into a dark area of government action—and that Snowden should therefore be indemnified. However, arriving at a real answer — whether Snowden is a hero or a traitor — requires rejecting the notion that this is a positional black or white debate, an either/or question. Indeed, the only way to find the “right” answer is to balance the benefits produced by the Snowden files against the harms. And then, to apply that analysis to United States democracy.

So far, the government has been unwilling to engage in such a balanced inquiry. Indeed, President Obama’s proposed reforms to the NSA’s bulk data collection policy do not even acknowledge the Snowden files as the precursor (or even a precursor) to the proposal. It is disingenuous for the government to disclaim or ignore such an obvious connection; one must infer that President Obama had some purpose for avoiding it. One obvious purpose for avoiding a direct discussion of the Snowden-to-reform connection is to maintain the ideological disconnect between the two. Of course, maintenance of the disconnect is an illegitimate policy rationale.