Babchenko's photo on a memorial board of slain journalists before his "resurrection" is known. Photo by CNN.
By Catherine A. Fitzpatrick
Before I critique this statement from the Community to Protect journalists “asking the hard questions” about the SBU sting and “resurrection” of journalist Arkady Babchenko, let me make two genuflections, without which one gets endlessly trolled.
Number one, Nina Ognianova, head of the CPJ Europe desk, is a long-time colleague in this field. She came after me (I worked at CPJ from 1996-1997) and I have interacted with her for years. She is a dedicated, smart, innovative professional in this NGO. Interestingly, she's also going to be leaving CPJ soon to go over the National Endowment for Democracy -- to which I can only say good! Because you can only stay in the grim business of documenting endless violations of press freedom -- especially the murder of journalists -- for so long. I worked on 200 cases when I was at CPJ, and I estimate that only 20% had a successful outcome, in which my intervention had some part. It's a futile and frustrating business. Critiquing this statement isn't a slam on Nina at all. What she's authored here is part of a corporate mindset in general in the human rights NGO business, and likely other hands worked this text or at least approved it. She may ardently believe it -- most people who stay working in these groups do. But it's more than fine to challenge it without undermining the good work Nina has done and will do. In the NGO world, there is what is known as “the 11th commandment” – “Thou shalt never criticize another NGO.” I worked in these NGOs for most of my adult life and still work in some of them, and I fail to endorse “the 11th commandment.” These groups need to get way more criticism than they do because they do not have internal processes for debate in often what are rigidly board-controlled or executive-director controlled mandates and policies.
Number two, when you criticize what an NGO like CPJ says, you challenge the "halo effect" and a common response especially on the left is to accuse you of "telling them to shut up" or "advocating that they not do their jobs" or "denying their right to free speech". This is, of course, a totally bogus line, but you'd be surprised how often people who should know better use it as "defense". Yes, CPJ gets to have First Amendment protections; yes, they get to "do their job"; and yes, they get to "hold feet to the fire" and all the rest. But who will watch the watchers? I get to have my free speech and challenge them, too. Such people confuse the *criticism* of an individual or organization as somehow a *demand to shut them up*. This is intellectually dishonest and I call it out in advance.
CPJ's stance on the case of Pavel Sheremet and other issues in Ukraine has tended toward what the pack of NGOs and journalists around the war in Ukraine and domestic issues in Ukraine espouse: that the Poroshenko Administration is corrupt and soft on corruption; that they don't do enough or even cover up attacks on journalists and don't solve murders; that they are even in collusion on this issue with the murders. I reject this take on Ukraine, which I also have followed very closely. I’m not uncritical of Ukraine, as the Ukrainians in the diaspora in particular know as they often harass me, just as much as Kremlin trolls. No matter. I know which side I’m on here, a luxury NGOs don’t feel they have, but one in which they indulge in and inevitably end up taking the wrong side as a result of the fiction of impartiality – also still so common to the press.
Illegitimate Demand for Radical Transparency
When CPJ says there were "no names" given, and makes other points about how the Ukrainian law-enforcers are not forthcoming, there is a very important counterpoint: why should law-enforcers who have JUST opened up a very high-profile and sensitive case tell YOU everything they have? This is the main point to make about so many human rights "interventions". There is no sense of limit or proportion EVER. There is always (especially with figures like Julian Assange, about whom too many journalists are uncritical) this demand for MAXIMUM transparency. PS -- names were given at the outside -- and now people are picking apart the "list of 30" or the "list of 47". No matter. Police and intelligence in a liberal democracy (that would not be Russia but it is what Ukraine aspires to be) get to have secrecy, lack of publicity, and even slowness in their work. The age of Snowden and social media forget this.
And that's just crazy. Police cannot do their jobs with a bunch of reporters and NGOs on their backs questioning their every move, not because they are devious and corrupt, but because they have to check leads, find facts, vet facts, try hypotheses, and this very important work cannot be done in a fishbowl. I shouldn't have to explain this. But every time I do. Your lack of confidence in the SBU; your hatred, even, of the Ukrainian government isn't entirely merited and wouldn't justify second-guessing Babchenko in any event.
From Defense to Prosecution
There is a deeper problem here, and that is the way in which in the last 20 years, the human rights movement, which began in the 1970s as documenters and defenders, have switched to investigators and prosecutors. This is not their job, they don't have training for it often, and more to the point, they often have no real-life experience that would enable them to perform their prosecutorial roles with skill and sensitivity.
(No, Ken Roth, executive director of Human Rights Watch, clerking for Rudy Giuliani in his youth doesn’t bestow those skills on him. How do we know this is true that Ken Roth worked for Giuliani, respected after 9/11 but now much maligned? Wikipedia will tell you that in 1987, Ken worked for the U.S. Attorney's Office for the Southern District of New York. But who was that US Attorney in 1987? It was Rudi Giuliani, something that Ken used to tell us when I worked at Human Rights Watch (for 10 years), and it's not a secret).
The NGO involvement in the formation of the International Criminal Court – Ken was among the most ardent campaigners – has caused this shift and enormous amount of hubris: NGOs now feel they are helpers and accessories to the ICC and other international justice courts; they feel no sense of endangerment of their mission or more importantly, their clients in doing this (although they should, given such awful developments as the expulsion of all the relief NGOs from Sudan for a time over this allegation – which in fact was true, as several humanitarian NGOs *did* supply information to the ICC.)
NGOs today feel no need to have any separation of powers, if you will. This is a longer and more intricate discussion which I won't bore you with now, but it's crucial to understanding the emotional stance of constant exasperation, and the constant mission-creep and overreach of NGOs in our time -- they think they are the world's litigators and even prosecutors, and they are not particularly good at this job.
I have only to think of the recent AWFUL debacle of the coalition of NGOs who attempted to take Ukrainian oligarch Dmitry Firtash to court. It doesn't take any persuasion to understand why that job might be necessary, but you do have to make the case and find the facts. Coalitions can be unwieldy and quality control can be poor. One of the members of the coalition did research that was faulty; it was presented in the court, and easily refuted by Firtash's lawyers, and the judge dismissed the case. The moral of the story isn't that NGOs should become better prosecutors; the moral is that they should not get out of their league and attempt cases like this that verge away from human right into crime and corruption (not unrelated, but different fields both in content and methodology). They should stop undermining the criminal justice system in the US and in fledgling democracies like Ukraine – which they do not only with legitimate human rights criticism without context but their support of felonious hackers like Manning, Assange, and Snowden. Criminal justice systems work best in liberal democracies where they are elected or appointed by the people, and kept honest not only by the courts and Congress but the judicial system itself. Those conditions don't pertain in NGOs. It's ok to be undemocratic, unelected, unappointed, self-appointed and even secretive in a defense mission; in a prosecutorial mission where you deprive others of rights it is not.
By osmosis in this climate among NGOs, free press groups have become prosecutors as well. And even the nominal defense mission and "corporate solidarity" mission that CPJ rightfully has segues easily into the role of public scold. CPJ feels with great self-importance and sense of righteousness that they have "a right to know" answers to questions about prosecutions -- and they do as any civic group that has a right to form and press governments anywhere does. But we have the right also to challenge them because they begin to needlessly undermine liberal democracy itself, at home and abroad. CPJ's own defense of Snowden and their blundering off into the world of hacker ideology is part of what undermines their case now.
So to the specifics:
- Why ask what evidence the SBU has when they told you in a press conference? They had a sting operation because they got news of a plot to assassinate Babchenko for money -- as was explained above in CPJ's own explainer! Furthermore, they named suspects!
- CPJ wants to know how imminent and credible was the alleged threat to Babchenko's life -- as if they aren't persuaded of the merits of his case -- which no doubt they took up long before this incident. After all, this is a man who fled to Ukraine from Russia -- not easy, not guaranteed to be protective. That tremendous disruption of life and loss of roots and income and networks and all the rest has to be taken into account. A person who flees to Ukraine for asylum who cannot stay in Russia due to threats is by definition a case that you should view as legitimate, and not be second-guessing what this particular set of circumstances are about.
To be sure, figures like the dramatic Anton Gerashchenko (who is still important and worth listening to) have somewhat devalued the concept of assassination attempts by repeatedly referring to them, and referring to their resolution, with scant facts. But see point one. Law-enforcers (he is an MP and adviser to the police) aren't required to tell you everything they know to do their work; indeed, they must have protection of privacy, if you will, and classified information to succeed against overwhelmingly more powerful enemies -- the same enemies of journalists.
- CPJ asks how the SBU knows that Russia is involved. While skepticism and even cynical disbelief might have its reasons, what reason would CPJ have to think the Ukrainian government is lying about Russian involvement? After all, Russia Invaded Ukraine, and still does, every week. There have been numerous assassinations in Russia -- some even of separatist leaders that some think Russian intelligence is responsible for, as a way of "population control" among people who don't always want to stay puppets. Why does CPJ have SUCH a hard time admitting the long arm of Moscow? They should not be suffering from this problem – as indeed, such NGOs didn’t suffer not only in the Cold War era but even in the Yeltsin era.
- As for the "alleged mastermind," obviously the Ukrainian investigators will tell us who the mastermind is in due course -- if they get that information, and they may not. Does CPJ realize how hard that is? Can they remember the last time more "talkative" Russian investigators did that for figures like Boris Nemtsov? Let's have a little sense of context here.
- The SBU indicated that they have the identity of the suspected contract killer, but why are we getting ahead of our skis here? It is day two after the announcement of a sting that took some time to set up and execute -- and journalists by nature are generally skeptical of stings by nature (i.e. the FBI's frequent stings of terrorist suspects). That doesn't mean there aren't really bad guys. And they have to make their case, it takes time in their system as it does (nobody on Twitter knew Mueller's indictments before they were announced, you know?) Why the curled lip of disbelief and cynicism on the first week of this case? If Day 60, the SBU isn't making progress or the list of 47 has been exposed as fake, it doesn't matter. Babchenko made a personal decision given the facts known at the time, as a person in the sites of an assassin, and he shouldn't be second-guessed for moral reasons but the reasons of damage to press freedom don't pass muster.
Case of Pavel Sheremet
Why the hate of the SBU? If the answer is "because they did nothing on Sheremet" I would beg to disagree strenuously (and that should also be a separate post). The fact is, the journalistic corps made allegations about Ukrainian government or para-military involvement in Sheremet's murder that didn't hold up to scrutiny even by desk researchers like me, and which was refuted with facts by the SBU and National Police.
They claimed an SBU agent who showed up in the story was somehow tethered to the right-wing or pro-Kiev forces in the country, when in fact he was more likely tethered to the pro-Moscow forces, and in any event was no longer working for the SBU. The case of a rogue Ukrainian agent allied with Poroshenko just didn't wash. It's like the allegation that this bodyguard found in the area, who was supposedly related to right-wing groups was somehow indication of government involvement in Sheremet's death -- when he had an alibi (he was there to guard somebody else in that area) that really couldn't be refuted. It's always been strange to me that the journalists so agitated to find "the hand of Kiev" in Sheremet's murder think this is about free-thinking and open-mindedness and going against the tide, when the real free-thinking would be if these moral equivocators could for a second entertain that the Kremlin is most likely to have the means and motive for Sheremet's killing, not Poroshenko -- who Sheremet covered generally positively and was about to cover again -- or the Right Sector and related groups -- which Sheremet also covered, even with some implied criticism, for which these groups were actually grateful as their concerns were aired. The troubling thing here is that now OCCPR has been given an award for doing a film with these allegations, it will be impossible for them to climb down from them or for anyone else to criticize them without being accused of either collusion with Moscow or infidelity to press freedom.
- Why does it matter who was aware of this operation? Poroshenko himself was aware. Nu, i shto? The question presupposes sneering cynicism about the sting itself, as if a conspiracy of this nature should never be done and stings are totally illegitimate. That's ridiculous on the face of it. We could note Russia sets up stings like this as a journalist at Fontanka reminds us; the FBI makes them; Ukraine has used them in the past. As a number of people in the "glad" list around the Babchenko story have pointed out, what would you have Babchenko do? Sit back and let hit men for hire have their way? Not cooperate with a police effort to thwart it? This is a serious business.
Why Doesn’t the NGO Adversarial Role Include Questioning of Moscow’s Role?
- As for why the authorities "publicly blame the Russian security services," they had evident proof of payments and persons from Russia and from these networks. Again, they are not required to tell you to requite your NGO heart on the "need for transparency" or "ending the climate of impunity" (another NGO buzz phrase) if they want to be effective. The question isn't why Ukraine looks to Moscow to finger when it comes to acts of violence -- because Russia Invaded Ukraine -- the question is why journalists and NGOs are so reluctant EVER to concede that Moscow is the most likely culprit -- because it has means and motive and already runs a war in the Donbass. Hello! The real adversarial role of an NGO would start with acceptance of Moscow’s nefarious and obvious role, not pretending it doesn’t exist. Always adversarial – but seldom to Moscow, guys?
- Babchenko has told what he knows about what he was privy -- and maybe not everything -- nor did he know everything. And again, that's more than fine. You don't have hostile NGOs or even perfectly impartial NGOs come along with you on the police rides and raids. Law-enforcement is a legitimate activity in a democratic state. Can NGOs concede that? Can they concede that they are NOT trained prosecutors and also PS not elected to said democratic states to perform their function. That's important to note -- as far as mission creep.
- The news reports already indicate that Babchenko's wife didn't know about the plot. That has caused some like Tatyana Felgenhauer or Anna Veduta to jokingly indicate that Babchenko should be thrashed by said wife. But if you told your wife and friends, you couldn't maintain the conspiracy. And conspiracies are sometimes required to fight hybrid wars. It's the failure to grasp that concept and to understand life outside the rigid and shrill world of absolutism and ideological rigidity that reigns in the NGO camp that is more troublesome. See Babchenko and others on this point. What, strict principles are good enough for the Spanish Civil or against the Iraq War but they have to prevent staying alive? No police should be allowed to operate without public control and scrutiny. But at what point does this hostile force demanding scrutiny and applauding leaking and even hacking (the CPJ attitude toward Manning and Snowden is deplorable) undermine the legitimate role of law-enforcement in a democratic society? I would submit we're in that place already.
Nina/CPJ then tell you their bottom line on this:
At the same time, this extreme action by the Ukrainian authorities has the potential to undermine public trust in journalists and to mute outrage when they are killed. CPJ takes a dim view of law enforcement impersonating the media, but the parallels in this case are not yet fully known.
What is known is that the Ukrainian government has damaged its own credibility. And given the SBU is an intelligence agency, which engages in deception, obfuscation, and propaganda, determining the truth will be very difficult.
Every bit of this needs a pushback. It's hard to accept that law-enforcement making a deceptive statement to the media is "impersonating the media." This may in fact be a garble in this statement. No "impersonation" has taken place, i.e. planted SBU operatives posing as reporters. Instead, a story has been planted that seemed credible and was later revealed -- within 24 hours! -- by the SBU and prosecutors themselves -- to have been deceptive. Extreme dangers -- an invaded country, numerous acts of violence and terrorism, and murder of journalists -- requires such an extreme action. They aren't stupid and no doubt weighed the pros and cons and argued among themselves. Can CPJ accept that this is war? In UN human rights treaties, states cannot derogate from their obligations to protect human rights -- but when you cannot protect human rights as basic as life, why is this "hybrid" method more despicable than the murder itself? Journalists should have chuckled at the wily SBU, and reminded themselves to check statements and photos when claims of assassinations are made (which is routine in any event in every singe one of these cases); their indignant and shrill second-guessing and impugning of the victim are disgraceful.
Does CPJ get it that public trust in journalists is ALREADY tremendously eroded? This is why we have Trump. Look at this thread as I pointed out -- readers are outraged at the take that this professional Channel 4 journalist has on Babchenko's case and the sting. Perhaps readers have more common sense than elites are willing to concede. As for outrage, as with school killings, each new murder is what lessens outrage as it becomes numbing and routine. Blame the murderers for that, not the police trying to catch them.
The SBU hasn't damaged its credibility -- a credibility that the journalist corps didn't share even before all this, or even four years ago. The press corps is cynical and indignant as they always are; the Ukrainian government has been flat-footed and wrong on some issues (like Myrotvorets’ exposure of contact information). There are topics like the expulsion of Russian state journalists -- which in my view is warranted given their disinformation and incitement of imminent violence! -- which the press corps is never going to concede, as it is outside the "club rules". They're wrong. They and institutions like OSCE keep applying rigid ideological rules and solutions to situations that they have no other solutions for. They haven't cured disinformation as they have pointedly shied away from ostracizing any of their number who engages in it and refuse to make rules to live by for themselves or their profession in a public and binding self-government system (like "let's not show pictures of the war in Syria to make claims about Ukraine's military in the Donbass, shall we?) Free speech absolutism is demanded for Russian propagandists, but it is denied to their enemies, and allowed to trump freedom of association (as in the US) for the parliament which wishes to control Russian disinformation. Liberals hate the anti-communist laws and the anti-Russian journalist activities but they themselves have no solution for this enduring and deep problem -- when they don't even cover the war in Ukraine anymore, and if they do, it is from a biased anti-Kiev position.
Intelligence agencies in democratic societies, and even under liberal democratic governments constantly challenged by anti-government groups and the press -- which is natural and needed in such societies -- get to have programs to obfuscate and even deceive when they have to deal with far worse disinformers and liars. There is always the cliché about "not becoming like them". Except to not act and never to use these methods assure that there is no escape from being crushed by them, either. It's a balance. It is a balance Ukraine is still finding as a society. The nasty and even malicious approach to the Kiev government that so many NGOs and journalists bring to this topic is not in keeping with their supposed mission to uphold the values of democracy and human rights. Their hostility to Ukraine -- because it is accessible, because it responds, because they *can* -- is all out of proportion to their critique and challenge to Russia and its oligarchs -- which they avoid, and fail at doing dramatically in the rare cases they attempt it. That should tell us something.
The sad thing is that as the weeks go by, answers to these CPJ questions are going to be forthcoming regardless of whether CPJ asked them in any event, as the police and public in Ukraine have a vested interest in this. CPJ will unlikely come back and say, "Oh, you answered that, thanks." Instead, we will see another round of indignation and raising of the bar of hostility. It's never enough. If the SBU nailed their man and provided ample proof of his guilt and his ties to the FSB (as the Ukrainian government has done in cases such as the captured GRU agents), there will be endless second-guessing by many on the "mad" list as I've indicated.
"We are relieved that Arkady Babchenko is alive," said Nina Ognianova, CPJ's Europe and Central Asia program coordinator. "Ukrainian authorities must now disclose what necessitated the extreme measure of staging news of the Russian journalist's murder." Why? To do so could undermine this delicate mission. If you're not persuaded now that the extraordinary discovery of plans to murder a journalist was urgent enough reason for this "staging news" -- what will convince you? Likely NOTHING.
Ultimately, it doesn't matter. A hugely well-funded American group with aspirations of playing the role of unelected world prosecutor can't trump the democratically-elected government of a real country. And that's a good thing, at home as well as abroad.
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