Report on the chilling effect of counter-terrorism powers on journalism

This is my expert statement submitted to Home Secretary Yvette Cooper as part of Hamas' legal appeal against its proscription as a terror group under UK law

[NOTE: Riverway Law requested I submit an expert report on the damage done to journalism by the British government’s proscription of Hamas in its entirety, including its political and administrative wings, as a terrorist organisation. That application was made to Cooper on April 9. She has 90 days to respond. If she rejects the application, the case will head to a tribunal for judicial review.

I recently wrote an article explaining more generally why proscription has been so harmful to public debate in the midst of what international legal bodies suspect is a genocide being carried out by Israel in Gaza. You can read that article here. You can access Riverway Law’s full submission here.

Below is the text of my submission to the Home Secretary. For those who wish to cut to the chase: Section C highlights my own personal concerns as a journalist, Section D details examples of police persecution of journalists and others under UK terrorism legislation, and Section E is my assessment of how journalism about Israel’s destruction of Gaza has been gravely undermined by that persecution.]

A. INSTRUCTIONS

1. I have been instructed by Riverway Law to provide a report on matters within my expertise in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (‘Hamas’).

2. This expert report examines the ways that counter-terrorism legislation has been instrumentalised by British police and the Crown Prosecution Service to stifle journalism that seeks to cover the continuing genocide in Palestine. These powers inhibit a truthful accounting of events taking place in the Middle East and create a chilling effect on the freedom of the press.

B. QUALIFICATIONS

3. I give this report in my personal capacity.

4. My name is Jonathan Cook. I am 59 years old and have been a journalist since 1989 when I gained a postgraduate diploma in journalism from the School of Journalism at Cardiff University.

5. After working in local newspapers for several years, I served as a staff journalist at the Guardian and then the Observer newspapers for seven years, starting in 1994. Among the countries I travelled to, and wrote about, were Yemen, Turkey, Jordan, Egypt and Uzbekistan. In 2001, I resigned from the Observer to move to Israel to report on the Israel-Palestine conflict as an independent journalist. I stayed there for 20 years.

6. During that time, I wrote for a number of major publications, including The Guardian, The Observer, The Times, The International Herald Tribune (now the international edition of The New York Times), The New Statesman, Le Monde diplomatique, The Irish Times, Al Jazeera and Middle East Eye, as well as for a number of academic journals.

7. I was the lead researcher on two reports on Israel-Palestine for the International Crisis Group, a leading think-tank based in Washington and Brussels dealing with conflict resolution.

8. I have published three books on the Israel-Palestine conflict, and was awarded the Martha Gellhorn Special Prize for Journalism in 2011. The judges described me as “one of the reliable truth-tellers in the Middle East”.

9. Since my return to the UK in 2021, I have written regular analyses and commentaries, mainly on issues relating to the Middle East, for two major websites, Middle East Eye and Declassified UK, as well as publishing similar material on my own page on a newsletter platform called Substack.

C. CHILLING EFFECT ON JOURNALISM

10. Over the past several months, I have been watching with growing professional alarm – and personal trepidation – what I can only describe as a campaign of political intimidation and persecution of a number of journalists in the UK. The journalists who have been targeted share one thing in common: they report and comment on Israel’s actions in Gaza from a critical perspective that judges those actions to be genocidal – in line with the suspicions of the International Court of Justice. They also criticise the British government as being complicit in that genocide.

11. The investigation by the police of these journalists has been justified under an expansive interpretation of both Section 12 of the 2000 Terrorism Act and Sections 1 and 2 of the 2006 Terrorism Act. These laws tightly restrict commentary about Hamas and other Palestinian organisations the UK government has proscribed. That proscription applies not only to Hamas’ military wing, which is committed to armed resistance against Israeli colonisation, but against Hamas’ political wing, which is the elected government of Gaza.

12. I now find myself in a situation where, for the first time in my 36-year professional career, I am no longer sure what by law I can write or say in my capacity as a journalist on an issue of major international importance. I now live with the fear that, by writing critically about events in Gaza, I risk a dawn raid by counter-terrorism police on my home in front of my children, the confiscation of the electronic devices I rely on for my work, and my possible arrest, leading potentially to terrorism charges being laid against me.

13. I reported for two decades from Israel, where highly restrictive military censorship laws apply to journalists, especially during times of military conflict. But I never felt as worried about being targeted for my journalism in Israel – even when I was reporting critically on its 2006 war with Lebanon – as I do now in the UK.

14. This is an unprecedented and shocking situation – and one that can only have a dangerous, chilling effect on journalism relating to the Israel-Palestine conflict, my area of expertise. Until recently I would have considered these developments simply impossible in Britain, given a long and cherished tradition of press freedom. We appear to be entering a very dark time for journalists, especially those who do not have the institutional backing of a major news organisation.

D. POLICE REPRESSION

15. There have been a number of journalists targeted by the police, as part of a counter-terrorism operation we have subsequently learnt is called “Operation Incessantness”. This police operation is not restricted to journalists, and has also targeted academics, lawyers, peace activists, and others.

16. But here I will focus chiefly on the effect of the legislation, and the police’s interpretation of it, on journalists as they seek to document and comment on Israel’s actions in Gaza since the Hamas attack of October 7, 2023.

17. It is impossible to critique the police’s arrests and investigations of journalists except in broad outline because they have offered all but the barest details of how they believe these journalists have violated terrorism laws. That in itself is a major cause for concern. How can the police’s restrictions on press freedoms be scrutinised when the police are operating against journalists from the shadows? And what message is being communicated about media freedoms when the police frame their actions against journalists as a “counter-terrorism” operation?

18. The following journalists have been targeted so far by the police, in reverse chronological order:

19. Asa Winstanley: Winstanley’s London home was raided in the early hours of 17 October 2024 by a team of about 10 Metropolitan Police officers from “Counter-Terror Command”. They had search warrants for his home and car, and confiscated all of the electronic devices he uses for his work as an investigative journalist. The operation cited potential offences under Section 1 (Encouragement of Terrorism) and Section 2 (Dissemination of Terrorist Publications) of the 2006 Terrorism Act, which carry a maximum sentence of 15 years’ imprisonment. He was told this referred to his social media posts and that he had been under investigation for a year.

20. He was not arrested or charged. But he was told he is under a continuing investigation. Aside from the intimidatory goal in seizing his electronic devices, it seems the police are on a fishing expedition, hoping they can find material with which to charge him.

21. Winstanley is an associate editor of the Electronic Intifada website, which has specialised for more than two decades in coverage of news from Israel and Palestine. It challenges the orthodoxies of institutional media, taking as its premise that the Palestinian people have suffered a long colonial occupation by Israel, actively aided by western powers.

22. I have written in a freelance capacity for the site myself in the past. In my view, it employs the very highest professional standards, both in its reporting and commentary. It subjected my own submissions to some of the most rigorous fact-checking and questioning I have ever experienced. From what I understand, it takes these extra precautions because pro-Israel lobby groups constantly seek to delegitmise its journalism.

23. Winstanley, a member of the National Union of Journalists, is an impressive investigative journalist whose specialist subject – the role of the pro-Israel lobby in shaping British politics – has made him enemies, including in both the main political parties.

24. Sarah Wilkinson: More than a dozen plainclothes and uniformed officers raided Wilkinson’s home in Shropshire in the early hours of August 29 under Section 12. They claimed to have a search warrant but reportedly refused to show it. They handcuffed her, refusing to let her get dressed or take a medicine she needs to treat her Crohn’s disease. She was then taken out of the house and driven to a police station in Shrewsbury. She says she was denied a lawyer until she reminded officers that she had a right to legal representation under Section 12.

25. Wilkinson, an accredited journalist, runs a news feed about Gaza, posting videos and eye-witness accounts. Under interrogation, she was questioned about hundreds of tweets. She says she was also asked for details of Palestinians there she is in contact with and for their locations.

26. Her son reports that, after she was taken away, a group of masked officers entered the house and ransacked it, presumably as part of their search for electronic devices. All were confiscated. It appears they will not be returned to her. When Wilkinson was released, she found the contents of some rooms had been turned upside down. She reports that her mother’s ashes had been emptied from an urn and been trampled over.

27. As part of her initial draconian bail conditions, she was told she was banned from using any electronic device, including a phone or TV, or use any form of transport. After her lawyers appealed these conditions as inhumane and likely to put her life in danger, six of the seven were lifted.

28. Richard Medhurst: Medhurst was arrested on August 15 at London’s Heathrow airport, on his return from a trip abroad, under Section 12 of the Terrorism Act of 2000. Medhurst was escorted off the plane by five waiting plainclothes officers and one dressed in what Medhurst describes as “tactical gear”. He was told he had been arrested for “expressing an opinion or belief that is supportive of a proscribed organisation”. He was given no further details.

29. Medhurst was held for a total of 24 hours. During that time he was taken to a room at the airport, where he was handcuffed and searched. He was denied the right to call a family member or friends. His electronic devices were taken from him and have not been returned. He was transferred to a police station, where he was kept in a cell for 13 hours under constant surveillance. He was finally questioned by two counter-terrorism officers for some 60 minutes.

30. He is under continuing investigation, and faces a jail sentence of up to 14 years if charged and convicted.

31. Medhurst’s father, as he points out, served in the Metropolitan police before writing a counter-terrorism training course for the United Nations. Both his parents were awarded a Nobel peace prize for their peacekeeping work for the UN. Medhurst observes that his parents had an abiding influence on his worldview and that he regards his anti-war journalism as a continuation of their own work.

32. He is a member of the National Union of Journalists.

33. Craig Murray: Murray, a former British ambassador, whistleblower and writer, who has in recent years built up a large following for his journalism and commentary on his own website, was detained at Glasgow airport on October 16, 2023, after a meeting in Iceland. He was detailed under Schedule 7 of the 2000 Terrorism Act by Police Scotland’s Border Policing Command unit.

34. He was interrogated at the airport by three counter-terrorism officers who did not identify themselves. His phone and laptop were confiscated. He was told he would be charged with a criminal offence if he refused to answer questions, answered untruthfully, deliberately withheld information, or refused to provide passcodes for his electronic devices. He was denied the right to consult a lawyer. His interrogation included questions about his political views, his decision to attend a Palestinian solidarity protest in Reykjavik, and his involvement with the then-campaign to free journalist and publisher Julian Assange.

35. Other journalists: All these efforts to persecute journalists have taken place in the context of Israel’s destructive assault on Gaza since the Hamas attack of October 7, 2023. However, it is worth mentioning that they appear to fit with what were already signs of a repressive climate against oppositional journalism being cultivated by the police and British state.

36. Journalists who have recently endured abusive police treatment include Kit Klarenberg, Vanessa Beeley, David Miranda and Julian Assange, as well as the French publisher Ernest Moret. In addition to the 2000 Terrorism Act and the 2006 Terrorism Act, the police have been using the 2019 Counter-Terrorism and Border Act to detain and investigate journalists.

37. Non-journalists: It should be noted too that many non-journalists have been targeted by the police under counter-terrorism laws. I wish to highlight in particular the police arrests of Haim Bresheeth, an academic and child of Holocaust survivors, and Tony Greenstein, a Holocaust researcher, author and Palestinian solidarity activist.

38. Notably, both are Jews – Prof Bresheeth is also an Israeli – who take strongly critical positions towards Israel and reject Israel’s claim to represent the Jewish people. Mr Greenstein was charged with one offence under Section 12 on November 25, 2024. Prof Bresheeth is still under investigation. These arrests reflect an emerging pattern of wider police repression that has been compounding the pressures on journalists to self-censor about Israel’s actions in Gaza.

39. For many months, the pro-Israel lobby has been characterising as antisemitic any strongly critical position of Israel’s policies in Gaza. Accusations of antisemitism have been thrown about wantonly, and often for political and rhetorical advantage. One piece of evidence for this has been the significant number of British Jews who have found themselves being smeared as antisemites, “self-hating Jews” and the “wrong sort of Jews”.

40. Disturbingly, the police now appear to be aiding this campaign of vilification by using Section 12 to suggest that anti-Zionist Jews such as Prof Bresheeth and Mr Greenstein are also “supporters of terror”.

41. The fact that the police are targeting prominent anti-Zionist Jews for their critical views of Israel’s actions in Gaza sends a loud, chilling message to journalists, among others. It tells them that police are ready to arrest and charge even experts on the Israel-Palestine conflict, should they dissent too strongly to British foreign policy. If even Prof Bresheeth and Mr Greenstein are vulnerable to arrest, if even they fall foul of terrorism laws, then most journalists who are less knowledgeable on the issues will conclude that it is better either to avoid the topic entirely, or adhere only to the government’s official line.

E. CONCLUSIONS

42. I note the following:

43. The British state’s decision to conflate the political, diplomatic and welfare arms of Hamas, the elected government in Gaza, and its armed military wing, proscribing both, has left journalists and press freedoms vulnerable to an expansive interpretation of what is meant by “expressing an opinion or belief that is supportive” under terrorism legislation. As a result, journalists face a double obstacle to doing their work: they have to navigate the most expansive proscription possible of Hamas by the UK state as well as the most expansive interpretation possible of what constitutes “expressing an opinion or belief that is supportive” by the UK police.

44. There has so far been a lack of specifics or clarity from the police about why they are arresting journalists or raiding their homes, and confiscating the tools needed for them to do their journalism. That, in itself, is deeply concerning. But from what we do know – mainly from the targeting of activists and academics under Section 12 – the police are indeed taking the loosest definition possible of “encouraging support” under the Act. The police’s interpretation of the law, if not the law itself, fails to take account of the duty of journalists, in a healthy democracy, to keep the public informed, and present them with countervailing, contentious and heterodox views.

45. The lack of transparency from the police about their investigations of journalists aggravates this attack on democratic freedoms. Because I and other journalists have little information to understand how the police have arrived at their decisions, or on what basis they will seek to justify them before the courts, we have no way of assessing how we can avoid a similar fate ourselves. Whether by design or not, the police’s approach leaves journalists uncertain of what is considered lawful commentary. That is intimidatory and bound to maximise the chilling effect on free speech and press freedoms.

46. Reporting by journalists typically draws on the expertise of authoritative sources, including academics, researchers, lawyers, human rights groups, among others. But the British state’s proscription of Hamas, and other armed Palestinian groups, and the expansive definition of Section 12 being imposed by the police, greatly undermines the ability of journalists to tap into this kind of expertise when it comes to covering events in Gaza, for example.

47. This is for a number of reasons. Experts are likely to be put off engaging in research in this field for fear of potential legal jeopardy, and they are likely to avoid drawing attention to their research, if they do carry it out, for fear of police action. This reticence means journalists lose access to sources of expertise they would otherwise be able to draw on.

48. And further, these same experts are likely to be far more reluctant to share, even as background, any of their research or informed opinion with journalists for fear that, if the journalist’s electronic devices are seized, as has repeatedly happened, their own role as a source will be exposed.

49. The climate of fear being cultivated by the legislation doesn’t just make journalists fearful of giving voice to heterodox points of view. It also drives discussions and informed opinions from experts underground, where journalists are less likely to become aware of them and factor them into their own coverage.

50. Israel has active lobbying groups in both major British political parties – Labour Friends of Israel and Conservative Friends of Israel being two well-known examples – that wish to see the curtailment of criticism of Israel’s actions towards the Palestinians, especially what is taking place in Gaza. These groups have a great deal of bipartisan influence with senior British politicians. Indeed, they are likely to have played a significant part in getting Hamas proscribed in its entirety.

51. Although we all desire a society where the police are immune to political pressure campaigns, it would be naive in the extreme to imagine that such campaigns have no impact on policing decisions. The police need to show that they have met the very highest standards of evidence before targeting journalists or limiting press freedoms. I see nothing to suggest that this has been the case. These look like a political attack on press freedoms because that is exactly what they are.

52. Under international law, Palestinians have the right to armed resistance to their occupation, so long as such resistance is directed at military objectives, not civilian targets. That means some resistance operations by Hamas are legal under international law. However, any analysis or commentary that could “encourage support” among readers, viewers or followers for an action by Hamas, even a lawful one, is liable to a prison sentence of up to 14 years under the legislation.

53. Given the expansive interpretation of these laws by the police, journalists find themselves in a particularly invidious, and dangerous, position should they try to draw attention to lawful actions by Hamas or discuss the legality of the group’s actions. This poses a major limitation on the ability of journalists to freely report on and discuss some of the most urgent and consequential developments in international affairs, or to reflect on Britain’s involvement in those developments.

54. The police have announced lengthy investigations with no clear completion date against journalists, academics, and Palestinian solidarity activists. The protracted nature of these investigations – and the lack of clarity about how the targeted individuals have violated Section 12 or other legislation – are not only having a chilling effect on press freedoms right now. They will continue to have such a chilling effect for the foreseeable future, so long as these investigations drag on.

55. That is an even graver assault against press freedom, because a fundamental duty of journalists is to address major matters of public interest in a timely manner.

56. Israel’s prime minister is currently facing an arrest warrant from the International Criminal Court for perpetrating crimes against humanity in Gaza, while its sister court, the International Court of Justice, is investigating Israel for the crime of genocide. Britain is aiding Israel’s actions in Gaza. At a time like this, the British media needs to be hosting a full and vigorous discussion about these developments, which are of the most pressing significance imaginable, both internationally and domestically. The current chilling effect of Section 12, and the police’s expansive interpretation of it, therefore become a form of complicity in any crimes Israel may be found guilty of.

57. The police have so far targeted only independent journalists, presumably because such journalists do not have institutional backing from a large media organisation and are seen as being in a weaker position to defend themselves from police abuses of the Terrorism Act. They are “easy pickings”.

58. Nonetheless, journalists working in large media organisations will be taking note. That means the chilling effect is being felt across the media, not just among independent journalists. That has doubtless been reflected in the almost complete failure by British media outlets to engage with Hamas spokespeople and clarify the group’s political and diplomatic positions through interrogating them – an important role for journalism.

59. Institutional media organisations have given the police investigations of independent journalists almost no coverage or scrutiny. This contrasts strongly with the National Union of Journalists, which has called the police actions “abuse and mis-use of counter-terror legislation” and warned that they risk “threatening the safety of journalists”, as well as their sources.

60. The International Federation of Journalists, representing journalists in 146 countries, has stated: “The recent practices of the police clash with the UK government’s defence of freedom of expression and its commitment to journalism, which is one of the pillars of democracy. All use of terrorism legislation must be proportionate or risk grave harm to media freedom.” Similarly, the Committee to Protect Journalists, an international NGO headed by 40 expert journalists, has called what is happening a “disturbing pattern of weaponizing counter-terrorism laws against reporters”.

61. The failure of the institutional media in the UK to report on these repressive measures by the police against independent journalists – let alone condemn them – reflects a number of factors.

62. Institutional media organisations are often reluctant to acknowledge independent journalists. In part, for commercial reasons: because independent journalists have in recent years had a great deal of success competing with and weakening the stranglehold of traditional media outlets on public discourse. And also because many independent journalists are highly critical of the coverage provided by institutional media. They often highlight failings resulting from the institutional media’s ownership, its dependency on corporate advertisers, and its deference to other forms of institutional power.

63. Whether these critiques are correct or not, the fact is institutional media often sees itself as in an antagonistic relationship with independent journalists, even those who have gone through the same training as their own journalists, have similar or greater experience, and hold professional accreditation and NUJ membership.

64. The institutional media’s turning a blind eye to these abuses of terrorism legislation by the police only serves to make those abuses more dangerous. The police curbs on press freedoms are not being publicly scrutinised, brought to wider public attention, or challenged by the institutional media. We are quickly arriving at an Orwellian moment in which the British police investigate “thought crimes” or “wrongthink”.

65. “Democracy dies in darkness”, as the Washington Post’s slogan memorably warns. We are currently in precisely such a moment of darkness.

F. EXPERT OBLIGATIONS

66. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

67. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

68. I confirm that I have not received any remuneration for preparing this report.

Jonathan Cook

Bristol

5 December 2024

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