FCC’s proposed rule changes on net neutrality violate a host of international obligations


Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

– Article 19 of the International Covenant on Civil and Political Rights

With one month to go before the public comment period ends on the Federal Communications Commission’s recent vote to advance a proposal that would end net neutrality and create a system of paid-prioritization online, a new report has come out criticizing the FCC’s actions as potentially undermining the U.S. government’s international obligations regarding freedom of expression.

The legal analysis issued Monday by the Organization for Security and Cooperation in Europe – an inter-governmental organization that counts the United States as one of its 57 members – found that the rules on net neutrality (the principle that internet service providers treat all data equally and not discriminate based on content or price paid) proposed by the FCC may violate one or more of the following international accords to which the United States has subscribed: the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the 1990 OSCE Copenhagen Document.

Prepared for the Office of the OSCE Representative on Freedom of the Media by George Washington University Law School Professor Dawn Carla Nunziato, the report points out that Article 19 of both the Universal Declaration of Human Rights and the ICCPR protects the right to freedom of expression and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Despite this international obligation of the U.S. government, the FCC has proposed rules that would replace the so-called Nondiscrimination Rule with a No Commercially Unreasonable Practices Rule. As Prof. Nunziato explains it, “Permitting ‘commercially reasonable’ practices by broadband providers will allow – and indeed encourage – broadband providers to experiment with business models that include paid prioritization – and even exclusive paid prioritization – upon individualized negotiations with edge providers (providers of content, applications, and services).”

In practice, what this would mean is that broadband providers would be able to negotiate exclusive pay-for-priority arrangements with individual content providers, permitting broadband providers to anoint exclusive premium content providers “and effectively become censors of other disfavored, poorly funded, or unpopular content, by choosing not to favor such content for transmission to subscribers.”

For example, an internet service provider like Comcast “could enter into a deal with Foxnews.com to anoint it as the exclusive premium news provider for all Comcast subscribers, while comparatively disadvantaging all other news providers.”

Similarly, the FCC’s Proposed Rules would allow a broadband provider like Verizon to enter into an arrangement with the Republican National Committee to anoint it as the exclusive premium political site for all Verizon subscribers, while disadvantaging the Democratic National Committee’s and other political sites.

She goes on to describe other possible effects of this rule change:

Otherwise protected speech – a blog critical of Verizon’s latest broadband policies, a disfavored political party’s website – could be disfavored by broadband providers and not provided to Internet users in a manner equal to other, favored Internet content – subject only to the Proposed Rules’ vague prohibition against commercially unreasonable conduct. Such a regime would endanger the free flow of information on the Internet, would threaten freedom of expression and freedom of the media, and would herald the beginning of the end of the Internet as we know it.

The possibility of being sidelined by the ISPs could lead to “further entrenched market power by dominant content and applications providers, self-censorship by content providers who might alter their content to make it more palatable to broadband providers, and a reduction in the overall amount of speech that is meaningfully communicated as a result of content not being delivered effectively to its intended audience.”

These very real prospects led the OSCE Representative on Freedom of the Media, Dunja Mijatovic, to weigh in on the controversy yesterday.

“The proposed rules will allow telecommunications providers to discriminate against content which may conflict with their political, economic or other interests,” Mijatovic said in a letter to FCC Chair Tom Wheeler. “This would contradict international standards, OSCE commitments on free expression and freedom of the media and longstanding U.S. First Amendment principles.”

Besides U.S. international commitments on freedom of information, the net neutrality controversy spurred by the FCC and its chairman Tom Wheeler raises questions of U.S. compliance with its anti-corruption obligations under the UN Convention against Corruption. As a state party to this Convention, the United States has agreed to taking measures to prevent conflicts of interest and corruption in both the public and private sphere. In particular,

Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.

Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …

Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.

Yet, the powerful chairmanship of Wheeler at the FCC demonstrates once again how the United States routinely flouts this obligation to prevent conflicts of interests. Prior to joining the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). He also raised over $500,000 for Barack Obama’s two campaigns.

As a reward for this financial backing, President Obama then appointed him to his current position where is empowered with rewriting the rules for the industry that once employed him. This sort of patronage is not only prohibited under the Convention against Corruption, but now, as we see, is leading to multiple violations of international principles, as documented by the OSCE in its report issued Monday.

“The Internet was conceived as an open medium with the free flow of information as one of its fundamental characteristics,” Mijatovic said upon the report’s release. “This should be guaranteed without discrimination and regardless of the content, destination, author, device used or origin.”

Mijatovic expressed her hope that her recommendations will be taken into consideration by the FCC.

The legal analysis of the proposed net neutrality rule changes is available here. To comment to the FCC regarding its proposed rules regarding net neutrality, click here.

A very accessible, succinct explanation of the FCC’s proposed rule changes was offered recently by John Oliver on his cable show Last Week Tonight:

With U.S. in uncorrected violation of CWC, Supreme Court rules on ‘unimaginable’ case


The Supreme Court ruled today that a 1998 federal law intended to enforce the 1997 Chemical Weapons Convention cannot be used to prosecute individuals where state laws would be sufficient. The justices unanimously threw out the conviction of Carol Anne Bond of Lansdale, Pa., who had been prosecuted under the CWC law for using toxic chemicals that caused a thumb burn on a friend with whom her husband had an affair.

The case raises several disturbing questions about how the United States views its obligations under international law. For one, as legal analyst Lyle Denniston pointed out, although the justices did not strike down the law as beyond Congress’s constitutional powers, the decision in Bond v. United States “left in lingering doubt just how far Congress may go to pass a law to implement a world treaty.”

Perhaps more troubling though is the fact that this case even exists and was heard by the Supreme Court in the first place. It could be said that its very existence makes a mockery of international law.

When the case was argued before the court last November, Justice Anthony Kennedy told the government’s lawyers that it is “unimaginable that you would bring this prosecution.” The Justices seemed to agree that the case was a “curious” one: a federal criminal prosecution, with a potential life sentence, of a woman who sought revenge by spreading poisonous chemicals on a door knob, a car door handle, and a mailbox in the hopes that her husband’s mistress would touch the chemicals and suffer unspecified health consequences.

Bond had likely violated a number of laws in her state of Pennsylvania, but was only charged under state law for making harassing telephone calls and letters, and state officials declined to prosecute her with assault.  She had pleaded guilty to the federal crime of using a “chemical weapon,” on condition that she could later challenge the prosecution.

Although she was convicted under the 1998 law, Monday’s decision struck down that conviction because the law did not even apply to what she did, according to the Court’s majority.

In this case, it seems fairly clear that the justices were correct that prosecutors had overreached when they charged Bond under a federal statute which was expressly intended to ensure U.S. compliance with its international obligations as a state party to the CWC, not to prosecute individuals for using makeshift chemical agents in a clumsy attempt to exact revenge for adultery.

As one scholar described the treaty, it is “the most complex disarmament and nonproliferation treaty in history,” designed specifically to ensure that state parties relinquish weapons that the CWC expressly prohibits. Katharine York elaborated on the purpose of the CWC in article in the Denver Journal of International Law and Policy last month:

As a starting point, Article I identifies the general obligations of State Parties under the CWC:

1. Each State Party to this Convention undertakes never under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

3. Each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of this Convention.

4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

5. Each State Party undertakes not to use riot control agents as a method of warfare.

The United States government, as a state party to the convention, is in clear violation of a number of these provisions. For starters, it has used chemical weapons expressly prohibited under the treaty, as well as others with an ambiguous status. As WikiLeaks revealed in 2007, the U.S. deployed at least 2,386 “non-lethal” chemical weapons during the invasion and occupation of Iraq.

Appearing in a 2,000-page battle planning leak, the items are labeled under the military’s own NATO supply classification as “chemical weapons and equipment.”

As WikiLeaks explained,

In the weeks prior to the March 19, 2003 commencement of the Iraq war, the United States received a widely reported rebuke from its primary coalition partner, the United Kingdom, over statements by the then Secretary of Defense Donald Rumsfeld suggesting that the US would use CS gas for “flush out” operations in Iraq and Afghanistan. Subsequently Washington has been quiet about whether it has deployed CS gas and other chemical weapons or not.

The use of chemical weapons such as CS gas for military operations is illegal. The Chemical Weapons Convention of 1997, drafted by the United Kingdom and ratified by the United States, declares “Each State Party undertakes not to use riot control agents as a method of warfare”. Permissible uses are restricted to “law enforcement including domestic riot control.”

The U.S. use of depleted uranium in Iraq is another cause for concern. In Fallujah – which was targeted mercilessly by U.S. forces in 2004 – the use of depleted uranium has led to birth defects in infants 14 times higher than in the Japanese cities targeted by U.S. atomic bombs at close of World War II, Hiroshima and Nagasaki.

A 2002 UN working paper on depleted uranium argued that its use may breach the Chemical Weapons Convention, as well as several other treaties. Yeung Sik Yuen writes in Paragraph 133 under the title “Legal compliance of weapons containing DU as a new weapon”:

Annex II to the Convention on the Physical Protection of Nuclear Material 1980 (which became operative on 8 February 1997) classifies DU as a category II nuclear material. Storage and transport rules are set down for that category which indicates that DU is considered sufficiently “hot” and dangerous to warrant these protections. But since weapons containing DU are relatively new weapons no treaty exists yet to regulate, limit or prohibit its use. The legality or illegality of DU weapons must therefore be tested by recourse to the general rules governing the use of weapons under humanitarian and human rights law which have already been analysed in Part I of this paper, and more particularly at paragraph 35 which states that parties to Protocol I to the Geneva Conventions of 1949 have an obligation to ascertain that new weapons do not violate the laws and customs of war or any other international law.

Further, the United States is in flagrant violation of its obligations to destroy its chemical weapons stockpiles. When the CWC went into effect 17 years ago, the U.S. declared a huge domestic chemical arsenal of 27,771 metric tons to the OPCW. Although it has destroyed about 90% of its chemical weapons, the U.S. still maintains a stockpile of 2,700 tons according to the Centers for Disease Control, missing two deadlines to destroy the weapons.

But curiously, it is not this issue that is commanding headlines, but rather the misuse of the 1998 federal statute in a way that it was never intended. The case of Bond’s prosecution and today’s Supreme Court ruling holds a number of lessons, one of which being the government’s implied view of the applicability of law – namely that laws are to be used only in prosecuting rogue individuals, but not in reining in the rogue U.S. government.

As the Supreme Court ruled in Bond v. the United States, “The Government would have us brush aside the ordi­nary meaning [of chemical weapon] and adopt a reading … that would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room. Yet no one would ordinarily describe those substances as ‘chemical weapons.’”

Yet, even while stretching this law beyond its logical applicability, actual violations of the CWC are swept under the rug as if they don’t even occur. This is a clear indication of the government’s view that it is indeed above the law, that the force of law is only to be used against the powerless, and certainly not against those in power.

In speech dripping with hypocrisy, Obama touts U.S. leadership on international norms

As this blog has demonstrated for more than three years, the United States is probably the world’s leading serial violator of international norms. While other nations may have more troubling records in respecting certain aspects of these principles — such as human rights in North Korea or electoral practices in Belarus — one would be hard-pressed to find another country in the world that flouts international obligations as routinely and comprehensively as the United States.

With its indefinite detention and torture policies, its endless war on terror and drone warfare, its policies of mass suspicionless surveillance, its support for dictators around the world and its bullying of other nations, as well as domestic problems such as mass incarceration and unfair elections, the USA violates global rules in a way that only a hegemonic, technocratic superpower possibly could. It is certainly in no position to tout its adherence to international standards, nor to lecture others on the importance of such standards.

Just this past March, the United Nations Human Rights Committee issued a scathing report on the U.S. lack of compliance with the hallmark International Covenant on Civil and Political Rights, calling into question the legitimacy of a wide range of current U.S. policies, including counterterrorism operations, immigrants’ rights, voting rights, and the criminal justice system.

Among other things, the committee criticized the United States’ climate of impunity for disappearance, torture, and unlawful killings of terrorism suspects, and its failure to apply the ICCPR to international operations. In addition, the committee denounced racial disparities in law enforcement and the treatment of children as adults in the criminal justice system.

Another area of concern was U.S. violations of privacy rights. The committee highlighted the ongoing U.S. lack of compliance with privacy requirements set forth in article 17 of the ICCPR, particularly to respect the right to privacy regardless of the nationality or location of individuals being monitored.

“The committee’s recommendations highlight the gaps between U.S. human rights obligations and current laws and practices,” said ACLU Human Rights Program Director Jamil Dakwar.

Despite these realities, the U.S. continues to boast of its purported leadership in the area of international norms. In a speech yesterday at West Point that was dripping with nationalist jingoism and hypocrisy, President Barack Obama criticized those who would dismiss the effectiveness of multilateral action. “For them, working through international institutions, or respecting international law, is a sign of weakness,” Obama said. “I think they’re wrong.”

He went on to explain the importance adhering to global rules and leading by example:

You see, American influence is always stronger when we lead by example. We cannot exempt ourselves from the rules that apply to everyone else. We can’t call on others to make commitments to combat climate change if so many of our political leaders deny that it is taking place. It’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it – despite the repeated insistence of our top military leaders that the treaty advances our national security. That’s not leadership; that’s retreat. That’s not strength; that’s weakness. And it would be utterly foreign to leaders like Roosevelt and Truman; Eisenhower and Kennedy.

I believe in American exceptionalism with every fiber of my being. But what makes us exceptional is not our ability to flout international norms and the rule of law; it’s our willingness to affirm them through our actions. That’s why I will continue to push to close GTMO – because American values and legal traditions don’t permit the indefinite detention of people beyond our borders. That’s why we are putting in place new restrictions on how America collects and uses intelligence – because we will have fewer partners and be less effective if a perception takes hold that we are conducting surveillance against ordinary citizens. America does not simply stand for stability, or the absence of conflict, no matter what the price; we stand for the more lasting peace that can only come through opportunity and freedom for people everywhere.

The lies and half-truths Obama spouted off are maddeningly blatant. Speaking of efforts to shutter Guantanamo, for example, is particularly disingenuous considering the fact that he is four years overdue in his stated promise to have closed the prison by January 2010. With 154 prisoners languishing in Guantanamo’s cages – more than half of them cleared for release years ago – the failure to end indefinite detention policies belongs squarely with President Obama.

It was under Obama’s presidency that dozens of desperate men at Guantanamo launched a principled hunger strike more than a year ago demanding their rights. Rather than address those grievances, Obama’s policies have been to provide the men artificial sustenance through a tortuous force-feeding process that was rebuked earlier this month by federal judge Gladys Kessler who urged authorities to find a compromise that would spare a prisoner “the agony of having the feeding tubes inserted and removed for each feeding” and “the pain and discomfort of the restraint chair.”

Obama’s boasting of new policies on data collection was also disingenuous, since the new restrictions put in place earlier this year were widely considered inadequate in addressing the global privacy concerns, relying on extremely narrow definitions of what constitutes spying.

As the Washington Post reported on January 18,

President Obama said Friday, in his first major speech on electronic surveillance, that “the United States is not spying on ordinary people who don’t threaten our national security.”

Obama placed restrictions on access to domestic phone records collected by the National Security Agency, but the changes he announced will allow it to continue — or expand — the collection of personal data from billions of people around the world, Americans and foreign citizens alike.

Obama squares that circle with an unusually narrow definition of “spying.” It does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat.

In his speech, and an accompanying policy directive, Obama described principles for “restricting the use of this information” — but not for gathering less of it.

The Post also pointed out that along with the invocation of privacy and restraint, Obama gave his plainest endorsement yet of “bulk collection,” a term he used more than once and authorized explicitly in Presidential Policy Directive 28. The directive defined the term to mean high-volume collection “without the use of discriminants.”

So, as usual when the president gives a major policy address such as yesterday’s at West Point, it is worth checking the rhetoric against the facts. The touting of international norms and U.S. leadership should be seen for what they are: empty platitudes and hypocritical bombast.

The president is right however when he says that “we cannot exempt ourselves from the rules that apply to everyone else.” It’s long past time that Obama starts recognizing those rules and applying to all U.S. policies, including ending the drone wars and the climate of impunity for torturers.

Major developments on Guantanamo as human rights groups mobilize across the world

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A full year after President Barack Obama’s last major public promise to close the travesty of justice known as the Guantanamo Bay detention center, halting steps towards progress were made this week with a number of developments offering a glimmer of hope for 154 men who remain at the prison camp in an endless state of legal limbo.

The developments come as dozens of human rights groups mobilize for a global day of action today calling for Guantanamo’s permanent closure, an end to indefinite detention policies and the release of the men still languishing in the prison.

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On Wednesday, a U.S. federal judge ordered the release of secret video recordings of a hunger-striking Guantanamo detainee being force-fed by his captors. The force-feeding process is a highly controversial practice condemned last year by UN Special Rapporteur on Torture Juan Mendez as a “form of ill-treatment that in some cases can amount to torture.”

The Defense Department had long kept these videos secret. As the Guardian reports:

Before last week, the Defense Department did not even acknowledge that videotapes of its enteral feedings of hunger striking detainees – conducted by inserting a tube into the stomach through the nose – even existed.

But now the US government has conceded that there are 34 videos showing the forcible feeding of one detainee. The analogue video cassettes are part of a broader set of 136 videos showing Dhiab being forcibly removed from his cell by Guantánamo Bay guards bringing the hunger striker to be fed enterally.

District court judge Gladys Kessler, of the Washington DC circuit, rejected an argument from the government that the tapes were irrelevant to Dhiab’s unusual lawsuit, which seeks to get a federal judge to set the conditions of his military confinement, which Dhiab considers amount to torture.

While certainly a positive development, according to a press release on the judge’s ruling by the British human rights group Reprieve, “Judge Gladys Kessler did not require the government to hand over all 136 videos of Mr. Dhiab being subjected to the ‘Forcible Cell Extraction’ process – which has been done to him on average three times a week for a full year.” It is also not clear whether the Defense Department will comply with the ruling.

force feeding'On Thursday, Judge Kessler urged the authorities to find a compromise that would spare him “the agony of having the feeding tubes inserted and removed for each feeding” and “the pain and discomfort of the restraint chair.” The judge declined to extend the temporary restraining order in Dhiab’s case because of the risk that he would die, saying:

The Court is now faced with an anguishing Hobson’s choice: reissue another Temporary Restraining Order (“TRO”) despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr Dhiab alive, but at the possible cost of great pain and suffering.

Also on Thursday, the United States House of Representatives voted on an amendment that could help pave the way to ultimately closing the detention facility. It was something of a mixed blessing though, as it failed to close the prison but removed some restrictions on the transfer of detainees. As the U.S.-based rights group Human Rights First explained:

Though the House voted against an amendment proposed by Representative Adam Smith (D-WA) that would have helped shutter the detention facility, the final bill included fewer restrictions on transferring detainees than it has in past years.

“We came out of today’s floor debate with progress toward the ultimate goal of closing Guantanamo,” noted Wala. “There seems to be a bipartisan acknowledgement that Guantanamo has to be dealt with and that the detention facility should and will close one way or another.”

The developments this week provide some added momentum to the “global day of action” today dedicated to closing Guantanamo, marking one year since President Obama restated his promise to close the detention center. As Amnesty International describes the event planned for Washington, DC (at Lafayette Park in front of the White House):

On Friday, May 23, one year after President Obama once again made the case for closing the detention facility at Guantánamo Bay in a speech at National Defense University, Amnesty International, the National Religious Campaign Against Torture, September 11th Families for Peaceful Tomorrows, Witness Against Torture and other groups are banding together in Washington as part of a Global Day of Action to Close Guantánamo and End Indefinite Detention.


In total, demonstrations will take place today in 35 cities around the world calling for Guantanamo’s closure and the end of indefinite detention. A full list of events is available here.

The human rights groups’ sense of urgency has been intensified by new revelations that some Guantanamo detainees who had been thought to have committed suicide were in fact murdered by CIA torturers at a secret interrogation facility site at Guantanamo called “Camp No” or “Penny Lane.”

The revelations were published in Harper’s Magazine last week, including an incriminating document indicating that the men had been tortured to death, rather than having committed suicide. In response, the Center for Constitutional Rights, which represents the families of two of the men who died, issued the following statement:

 The new eyewitness account of what happened on the day three men died at Guantanamo adds to the growing body of information strongly undercutting the military’s narrative that the men committed suicide in their cells, and suggesting that the men were instead killed at a CIA-run black site at Guantánamo known as “Camp No” or “Penny Lane.” There has never been an impartial and effective investigation into the deaths, and the heavily-redacted version of the military investigation the government was compelled to release is riddled with inexplicable gaps and inconsistencies. One of those gaps was the document published today by Harper’s, which was apparently deliberately removed from the military’s public report.

The families’ attempt to seek the truth about these deaths was met with dismissal by the district and circuit courts in D.C., on the grounds that even if federal officials had been involved in the homicides, the courts were powerless to grant a remedy. The families have now turned to the Inter-American Commission on Human Rights, which should accept their petition, investigate the violations of international law they have alleged, and uphold their right – and the public’s right – to know the truth about what happened.

To find a demonstration near you to demand Guantanamo’s closure today, click here.

U.S. whitewashes Odessa massacre, shifting blame to Russia

In a classic case of blaming the victim, the United States has been making a concerted effort this week to gloss over – if not rewrite – the facts surrounding last week’s tragic deaths in Odessa, Ukraine, trying to portray the “pro-Russian separatists” as responsible for their own deaths.

Despite the emergence of numerous YouTube videos, as well as photographic evidence that has been posted on blogs and circulated in chain emails, clearly showing that the fire in the Trade Union Building which killed dozens of anti-Kiev demonstrators was intentionally started by Western-backed pro-Kiev militants, the U.S. has been asserting that Russia was somehow responsible.

In rather ghoulish testimony to the Senate Foreign Relations Committee on Tuesday, Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland stated that

Friday [May2] also saw the deadliest tragedy of this conflict: the death of more than 40 in Odesa following an afternoon of violent clashes reportedly instigated by pro-Russian separatists attacking an initially peaceful rally in favor of national unity – similar to many that have happened in Odessa since the start of the Maidan movement.

With no mention of the actual culprits who set the building on fire, she went on to reprimand the Russian Federation for failing to use its influence to promote stability in Ukraine. In other words, Russia, Russia, Russia.

“Today, Russia claims it has ‘no influence’ over the separatists and provocateurs rampaging in eastern and southern Ukraine,” she said. However,

as Secretary Kerry told this committee in April, we continue to have high confidence that Russia’s hand is behind this instability. They are providing material support. They are providing funding. They are providing weapons. They are providing coordination, and there are Russian agents on the ground in Ukraine involved in this.

This, amazingly, is all that Nuland had to say about the tragedy last week that claimed the lives of at least 42 people. (Unofficial estimates from eyewitnesses place the casualties far higher, with some claiming that as many as 300 people may have been killed.)

Although Nuland went out of her way to point out that last week’s violent clashes were “instigated by pro-Russian separatists,” she neglected to assign any blame for the actual atrocity that took place later in the day, in which pro-Kiev militants were clearly responsible for throwing Molotov cocktails into the Trade Union Building in Odessa where anti-Kiev individuals were seeking refuge from the violence on the streets.

While initial reports indicated that it was “unclear” how the fire started, the evidence that was captured on camera phones and disseminated via social media was enough to force even the Western media to grudgingly acknowledge that the atrocity at the Trade Union Building was in fact committed by the pro-Kiev side, the side Western governments have aligned with.

Typical was this report from the BBC, “How did Odessa’s fire happen?,” which took pains to explain that the anti-Kiev side may have instigated the street clashes earlier in the day, but that when it came to the fire at the Trade Union Building, it was pretty apparent who was responsible.

“Pictures clearly showed pro-Ukrainians throwing Molotov cocktails,” the BBC reported, although noting that some on the “pro-Russian” side may have also thrown firebombs from the building to the ground below – exactly how those might have started fires inside the building is not explained.

Nevertheless, it was clear that many people died at the hands of the pro-Kiev militants that day. As BBC noted,

One survivor told Russia Today: “We couldn’t go down, we were seeing people from other floors being brought down and then those rioters down there attacked them like a pack of wolves.”

But other eyewitness reports, for example in the Kyiv Post, said pro-Ukrainian activists rescued dozens of people from the burning building.

Some people got to ledges and were helped by ambulance ladders. Some fell.

Some people were reported to have shouted “die” as people fell.

Independent investigators and bloggers have spelled out the evidence more straightforwardly, placing the blame for the tragedy squarely with the pro-Kiev thugs of Right Sector. One viral blog post lays out gruesome photographic evidence that not only implicates the Western-backed neo-Nazis with starting the fire, but also purports to demonstrate that some of the pro-Ukrainian militants must have gotten inside the building to individually kill those who had sought refuge there.

This photograph, for example, seems to indicate a gunshot wound to the head. “Judging from clearly visible blood puddle, the murderer fired at point-blank so the bullet passed through the skull,” the blog alleges.

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This photo graphically depicts an apparent victim of rape:

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“Dead woman near the elevator with clothes absent below her waist,” the blog explains. “Most likely, she was raped, then doused with a flammable mixture and set aflame.”

This horrifying picture shows a pregnant woman who was strangled by an electric wire:

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The following video supposedly captures the cries of this woman, starting at 0:20, who called for help while being murdered.

Despite the grave nature of the atrocity that was committed by the pro-Kiev militants in Odessa last week, the U.S. response has been muted, to say the least.

Besides Nuland’s victim-blaming testimony at the Senate this week, the White House has also gone on record tacitly absolving the actual culprits of their responsibility and shifting the culpability to Moscow.

“We remain extremely concerned by the deteriorating situation in both eastern and southern Ukraine, where pro-Russian militants who are armed have escalated their already violent behavior and taken over additional government buildings in yet more towns,” White House press secretary Jay Carney told reporters on Monday.

Carney added that the “violence and mayhem” in Odessa was “unacceptable.”

“We’re going to continue to call on Russia to live up to its commitments in Geneva and to use its influence over these groups, these pro-Russian militant groups, to urge them to disarm and to instead engage in Ukraine’s political process,” Carney said.

For its part, Russia is emphatically making clear where the blame truly lies for this tragedy, refusing to allow the West to whitewash the facts.

“What happened in the city of Odessa on May 2 is a sheer act of fascism and we will not permit to sweep the facts under carpet as the ruling coalition tries to do so, concealing the investigation from the public,” Russian Foreign Minister Sergei Lavrov said on Wednesday.

“We will seek for the truth, will seek for all evidence which was produced by eyewitnesses and which show that current Kiev authorities are hushing up consciously the scale of tragedy and will seek for all the truth to be investigated and made public,” Lavrov pledged.

The Russians were joined in this call for an investigation by Human Rights Watch and Amnesty International, which issued a joint statement Thursday calling for the Ukrainian government to conduct an investigation into the violence in Odessa that “should be thorough, impartial, and capable of ensuring that those responsible are held accountable.”

The HRW-AI statement also criticized the police in Odessa for failing to take action to prevent the violence, with video footage showing police officers standing by while preparations are made by members of both groups for acts of violence.

This inaction may indicate that the authorities are failing to comply with Ukraine’s international human rights obligations to protect the right to life, the joint statement noted.

“International human rights and law enforcement standards underline that police have a responsibility to maintain public safety and protect all persons against illegal acts, and must maintain and uphold the human rights of all persons,” said HRW and AI. “In particular, police play a vital role in the protection of the right to life, liberty, and security of the person.”

“In the context of the events which took place in Odessa on May 2, it is not clear why the police failed to take adequate action, in compliance with these obligations, to prevent the serious injuries and loss of life,” the statement went on.

For these reasons, “it is essential that whatever precise form the investigations take, they are truly effective and independent and carried out by individuals of recognized competence, integrity, and independence,” said the human rights groups.

The U.S., on the other hand, appears intent on shielding the authorities from criticism. At a press briefing Monday, U.S. State Department press spokeswoman Marie Harf defended the role of government in Kiev and its fascist allies.

Harf praised the Kiev government in particular for its “great restraint” in dealing with the anti-fascist groups in the south and east of the country and attempted to blame the Odessa massacre on the victims and Russia. She implicitly justified the mass killing of civilians by declaring that the Kiev government has “a responsibility to maintain law and order for their own people.”

“Any loss of life is horrible,” she said, “and we understand that there will be an investigation. The prime minister has actually taken punitive action against some of the police folks who led the police forces in Odessa after this horrific incident. So – but again, that started because pro-Russian forces and separatists started basically mob action attacking protesters. So going forward we think that restraint is important, but so is keeping law and order.”

When a reporter followed up by asking, “it doesn’t matter how many people die; those people brought it upon themselves, it’s their fault. Is it what you are saying?” Harf backtracked a bit and said, “No, I’m not saying that at all. In no way am I saying that. I’m saying that the fact pattern of what happens here matters.”

But looking at the pattern of U.S. statements – admonishing the Russian Federation for any and all actions in Ukraine that could in any conceivable way be traced back to some alleged conspiracy directed by the Kremlin while simultaneously absolving neo-Nazi thugs and their allies in the Kiev regime – it appears that the United States is systematically engaging in a whitewash of atrocities.

It should be noted that even as details emerge about these  crimes, the authorities in Kiev are apparently raising “volunteer armies,” or what may be more accurately referred to as paramilitaries, consisting of the Euromaidan militants who helped topple the democratically elected president Viktor Yanukovych in February.

As the Washington Post reported on Tuesday, Kiev’s interim government began shoring up security forces as some leaders made urgent calls for volunteers to take up arms against “pro-Russian separatists.”

“Andriy Tiron, battalion commander of the National Guard, told reporters in Kiev that demonstrators who helped oust the previous pro-Russian government were being urged to volunteer for military duty. But there was confusion about who would command them and what their duties would be,” the Post reported.

The Russian news agency ITAR-TASS, however, reported that some 4,000 combatants supporting the Kiev authorities have already arrived in Odessa.

“Very alarming reports are coming in from our friends in Odessa,” Georgy Fyodorov, deputy head of the Russian Civic Chamber’s Committee for Coordination of Aid to Residents of Ukraine said Wednesday. “We have reports that armed militants of the Right Sector, fighters of the Dnipr and Kyiv-1 special task force battalions, and ultras of the FC Dnipro have been brought into the city and the overall number of the combatants propping up the Kiev regime exceeds 4,000 there now.”

If true, it’s worth noting that considering reports of the CIA advising the authorities in Kiev, there is a good chance that these policies are coming directly from Washington. This is worth keeping in mind in the event of any further atrocities committed in Ukraine.

Thankfully there are at least a few voices in Congress being raised questioning the wisdom of aligning the United States government with violent neo-Nazi extremists, as this clip of Victoria Nuland’s testimony to the House Foreign Affairs Committee on Thursday makes clear:

Hopefully those sorts of hardball questions become the norm rather than the exception, as U.S. policy in Ukraine comes under greater scrutiny.

With CIA advising Ukraine’s government, should U.S. be held responsible for violence?

A pro-Kiev protester throws a Molotov cocktail at the trade union building in Odessa, Ukraine May 2, 2014. Yevgeny Volokin—Reuters

A pro-Kiev protester throws a Molotov cocktail at the trade union building in Odessa, Ukraine May 2, 2014. Yevgeny Volokin—Reuters

For the past two months, virtually every troubling development in Ukraine has been blamed on the Russian Federation, which the United States and its Western allies have consistently accused of meddling in the eastern part of the country.

With no real evidence to back the accusations up – other than a few grainy photographs purportedly proving a Russian hand in the violence, which were later debunked as hoaxes – the U.S. has repeatedly alleged that Russian President Vladimir Putin has stoked the crisis by backing the pro-Russian separatists who have occupied government buildings in eastern cities such as Luhansk, Slavyansk, Donetsk and Kharkiv.

President Obama said that it was “absolutely clear” that Russia violated Ukraine’s sovereignty and territorial integrity by annexing Crimea in March and that it was continuing to do so by supporting “non-state militias” in eastern Ukraine.

“Each time Russia takes these kinds of steps that are designed to destabilize Ukraine and violate their sovereignty, there are going to be consequences,” Obama said last month in an interview with CBS News. “Mr. Putin’s decisions aren’t just bad for Ukraine. Over the long term, they’re going to be bad for Russia.”

More recently, Obama has attempted to lay the blame for the apparent collapse of the April 17 Geneva agreement, which called on “all sides [to] refrain from any violence, intimidation or provocative actions,” at the feet of Putin, while absolving the Kiev government for any role it may have played in the deterioration of the situation.

“The Ukrainian government in Kiev has followed through on the commitments that it made in Geneva,” said President Obama at a press conference on Friday. “We need Russians to do the same.”

This is despite the fact that the pro-Russian­ militants have openly boasted that they do not take orders from diplomats in Washington or Moscow. After the Geneva agreement was reached, Denis Pushilin, a leader of a group calling itself the Donetsk People’s Republic, said that he and his men had no intention of abandoning their positions as long as the new government in Kiev still stood.

Pushilin said that nobody from the pro-Russia groups in Ukraine were at the negotiating table in Geneva and that, because they were not consulted, they had no obligation to adhere to the agreement.

“It is an illegal junta,” Anatoliy Onischenko, another separatist leader, said of the Kiev government. “They should leave their buildings first.”

Putin, for his part, sees the authorities in Kiev as at least partially responsible for the breakdown of the Geneva agreement, with a spokesman saying it was no longer viable after Kiev launched a military operation against the rebel-held city of Slavyansk last week.

As the Guardian reported on Friday,

The Ukrainian military launched its first serious offensive to retake the city, which is being held by pro-Russia militia, early on Friday morning. The rebel militia said Ukrainian troops had launched attacks on several checkpoints. Ukraine’s defence minister, Arsen Avakov, said his forces had taken control of nine checkpoints to form a “tight ring” around the city. …

“Basically, at the same time that Russia is taking pains to de-escalate and regulate the conflict, the Kiev regime has begun shooting up peaceful towns with military helicopters and has started a punitive operation, essentially destroying the last hope for the viability of the Geneva agreement,” Putin’s spokesman, Dmitry Peskov, said.

“Earlier, when he was still in Minsk, Putin called the possible operation a criminal action. Unfortunately, the development of events completely confirms this appraisal.”

Also on Friday, in Odessa, pro-Kiev and pro-Moscow demonstrators fought in the streets, hurling rocks, loose flagstones and Molotov cocktails as overwhelmed riot police made a hasty retreat.

The violence culminated in 42 people killed when a union hall was set ablaze by Ukrainian loyalists throwing firebombs at the building.

According to the Washington Post, the violence kicked off after marchers calling for Ukrainian national unity encountered a rival pro-Russian group. “Barricades were set up and buildings set aflame,” reported the Post. Dozens of people died “after pro-Kiev demonstrators hurled Molotov cocktails into a building where a pro-Russia contingent was holding out.”

Corroborating the claim that the union hall was set on fire by the Western-backed forces rather than pro-Russian activists, USA Today reported that the pro-Kiev demonstrators cheered as pro-Moscow activists were burned alive inside the building:

The Trade Unions House was set on fire after being occupied by pro-Moscow demonstrators, the Kyiv Post reported.

Witnesses and journalists reported that as the building burned with people inside, a crowd shouted, “Glory to Ukraine!” and “Death to enemies!”

The latest violence comes as new reports emerge that the U.S. Central Intelligence Agency, along with the FBI, is directly advising the government in Kiev on counter-insurgency tactics and on establishing a security apparatus. As AFP reported yesterday,

Dozens of specialists from the US Central Intelligence Agency and Federal Bureau of Investigation are advising the Ukrainian government, a German newspaper reported Sunday.

Citing unnamed German security sources, Bild am Sonntag said the CIA and FBI agents were helping Kiev end the rebellion in the east of Ukraine and set up a functioning security structure.

AFP notes that while the CIA has been advising the Kiev government, “Fierce battles between Ukrainian soldiers and pro-Russian separatists in the country’s east have left more than 50 people dead in recent days.”

The revelations of CIA involvement come following a visit to Kiev by CIA director John Brennan last month, which the White House described as “routine,” but was condemned by Moscow as more U.S. meddling in the country.

If the same standards were applied to the U.S. as are being applied to Russia, the responsibility for all the violence now being perpetrated by the authorities in Kiev, as well as the illegal armed groups such as Right Sector, would fall squarely on Washington.

Further, it’s worth bearing in mind that the CIA is a notoriously lawless agency that has been implicated in serious violations of international law in recent years, including torture, secret “black site” prisons, extrajudicial assassinations, and forced disappearances euphemistically known as “extraordinary rendition.”

If the government in Kiev is now being advised by this agency, it does not bode well for human rights, international law or the prospect of resolving the Ukraine crisis peacefully.

Obama rejects growing international concern over drones, unleashes carnage in Yemen

Anti-drone graffiti in Yemen

Anti-drone graffiti in Yemen

Despite a recent flurry of international criticism of the U.S. drone assassination program and some tentative domestic attempts to force more transparency regarding the program, no significant policy changes are being made to bring drone strikes in line with U.S. and international law. In fact, the Obama administration seems intent on demonstrating its continued obstinacy by intensifying the use of killer drones in counter-terrorist operations in Yemen, killing scores of people recently in the bloodiest spate of strikes since March 2012.

As the Bureau of Investigative Journalism reported on April 22,

The Yemeni Ministry of Interior said air strikes had killed dozens of suspected al Qaeda in the Arabian Peninsula (AQAP) militants, including several allegedly high-ranking militants.

‘The security authorities stated that the air strikes, which lasted for several hours, killed around 55 terrorists from [AQAP], including three movement leaders,’ the interior ministry said. Unnamed US officials told the New York Times CIA drones were used in the airstrikes.

But as Rooj Alwazir of the Support Yemen media collective pointed out, there is no way of really knowing how many of the victims obliterated by U.S. drones were actually militants and how many were innocent civilians.

The Yemeni government “is saying pretty much what the US government wants to hear, which is that 55 militants were killed over the weekend in southern province of Yemen,” said Alwazir on the Unauthorized Disclosure podcast.

What you’re not hearing is that included in these 55 are civilians. What you’re not hearing are the names of people who were killed. The Ministry of Interior in particular has come out and claimed that the strike in al Bayda, south of the Yemeni capital, killed ten militants and he actually for the first time acknowledged three civilians were killed. In al Marib and al Shabwah they claimed that over 23-30 militants were killed. When asked who they were, when asked who their names were and if any investigations have happened, they don’t comment. They’re still saying that they are doing DNA tests and etc.

What’s interesting about these particular air strikes that happened over the weekend is that this is the first time that we actually saw special operations on the ground, meaning when air strikes had happened in the past in Yemen air strikes are usually just laying there. No investigations are happening ever. This is the first time where the military came after the air strikes and picked up the dead bodies. So this is what’s really getting us activists and journalists, etc, people we question what happened this time around.

Yemeni human rights researcher Baraa Shiban noted that “the Yemeni government has not provided any names, or at least any names even to the public, to show that those people who are targeted in those drone strikes are an imminent threat to the security of the country.”

He said that neither the United States nor the Yemeni government knows who they are killing in these attacks. “These drone strikes and the drone programs inside Yemen violate both the Yemeni constitution and the international law,” he pointed out.

An April 21 BIJ report provided some detail on confirmed civilian casualties in the recent Yemeni attacks:

Multiple sources including military officials and eyewitnesses described how a US drone attacked a truck that was carrying alleged members of al Qaeda in the Arabian Peninsula (AQAP) and also hit a vehicle carrying civilians. At least 10 – and possibly as many as 21 – were reportedly killed in the attack, including at least three civilians. They were described as ‘construction workers‘ or ‘labourers’ by some reports.

This is the highest death toll of any confirmed drone strike in Yemen so far this year.

Cautious attempts at forcing more transparency and disclosure from the White House on these matters have recently been abandoned by the U.S. Congress, which apparently has caved to pressure from the military and intelligence establishment.

“At the behest of the director of national intelligence,” the Guardian reported on Monday, “U.S. senators have removed a provision from a major intelligence bill that would require the president to publicly disclose information about drone strikes and their victims.”

When it passed out of the Senate intelligence committee in November, the bill originally required the president to issue an annual public report clarifying the total number of “combatants” and “noncombatant civilians” killed or injured by drone strikes in the previous year.

But after receiving a letter from Director of National Intelligence James Clapper, who assured them that the Obama administration was seeking its own ways to increase transparency about its highly controversial drone strikes, Senate leaders meekly removed the language as they prepare to bring the bill to the floor for a vote. The senators evidently took Clapper’s word, despite the fact that he is a known perjurer who has been caught lying to Congress in relation to NSA surveillance activities.

The fresh carnage in Yemen was unleashed in spite of a number of recent attempts by the international community to rein in the lawless U.S. drone assassination program, obviously to no avail.

For example, in a report issued February 28 by Ben Emmerson, the UN’s Special Rapporteur on human rights and counter-terrorism, the U.S. was urged to ensure that “any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian law and international human rights law, in particular the principles of precaution, distinction and proportionality.”

The Special Rapporteur also urged the U.S. to ensure that, “in any case in which there is a plausible indication from any apparently reliable source that civilians have been killed or injured in a counter-terrorism operation, including through the use of remotely piloted aircraft, the relevant authorities conduct a prompt, independent and impartial fact-finding inquiry, and provide a detailed public explanation.”

Needless to say, this recommended inquiry is not taking place in relation to the civilians recently incinerated by U.S. drones in Yemen.

Another UN report, issued by the UN Human Rights Committee in late March, expressed grave concern about the U.S.’s practice of targeted killings by drones, particularly “the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.”

According to the Human Rights Committee’s concluding observations on the United States’ periodic review on its compliance with the International Covenant on Civil and Political Rights,

The Committee remains concerned about the State party’s very broad approach to the definition and geographical scope of “armed conflict”, including the end of hostilities, the unclear interpretation of what constitutes an “imminent threat”, who is a combatant or a civilian taking direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6 and 14).

Due to these concerns, the UN Committee urged the U.S. to “revisit its position regarding legal justifications for the use of deadly force through drone attacks.”

In particular, it should:

(a)          Ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including, in particular, with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict;

(b)          Subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used;

(c)           Provide for independent supervision and oversight of the specific implementation of regulations governing the use of drone strikes;

(d)          In armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties;

(e)          Conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible;

(f)           Provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.

On the domestic front, a U.S. court has ordered the release of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki. U.S. intelligence officials contend al-Awlaki had joined Al Qaeda and Obama ordered his assassination without trial in a September 2011 drone strike in Yemen. Two weeks later, his 16-year-old son Abdulrahman al-Awlaki, another U.S. citizen was assassinated in a separate strike.

As the ACLU explained the April 21 opinion,

The U.S. Court of Appeals for the Second Circuit roundly rejected the government’s extreme claims of official secrecy over information about the program. In ordering the release of a 2010 legal memorandum by the Office of Legal Counsel analyzing the potential targeted killing of an American citizen, as well as other information about records the government has previously refused to describe at all, the Second Circuit became the first court to order the release of a document related to the government’s targeted killing program. It also became the second federal appeals court in the last 13 months to hold that the government has pushed its secrecy claims surrounding the targeted killing program past their breaking point.

In today’s opinion, the Second Circuit panel held that the government’s repeated public assurances that the targeted killing program is lawful, and its disclosure of a “white paper” that summarized its legal conclusions, had waived its right under the Freedom of Information Act to keep secret its legal analysis authorizing the killing of U.S. citizens. This is a victory for common sense, and a reminder that the courts have an important role to play in scrutinizing government claims about national security.

Also somewhat promising in terms of increasing transparency over these strikes is the fact that more and more individuals – including a number of drone operators themselves – are stepping forward to reveal their inside knowledge about this controversial program. As Heather Linebaugh, a former drone operator, recently wrote in the Guardian,

What the public needs to understand is that the video provided by a drone is not usually clear enough to detect someone carrying a weapon, even on a crystal-clear day with limited cloud and perfect light. This makes it incredibly difficult for the best analysts to identify if someone has weapons for sure. One example comes to mind: “The feed is so pixelated, what if it’s a shovel, and not a weapon?” I felt this confusion constantly, as did my fellow UAV analysts. We always wonder if we killed the right people, if we endangered the wrong people, if we destroyed an innocent civilian’s life all because of a bad image or angle.

She also discussed the heavy emotional toll of launching missiles and ending human lives on a daily basis, even when operating the drones from thousands of miles away:

I know the feeling you experience when you see someone die. Horrifying barely covers it. And when you are exposed to it over and over again it becomes like a small video, embedded in your head, forever on repeat, causing psychological pain and suffering that many people will hopefully never experience. UAV troops are victim to not only the haunting memories of this work that they carry with them, but also the guilt of always being a little unsure of how accurate their confirmations of weapons or identification of hostile individuals were.

As the Obama administration continues to ignore the pleas from the international community to rethink the lawless approach to drone strikes, these haunting memories will only continue to grow for the drone operators like Heather Linebaugh tasked with deciding whether to end someone’s life based on grainy, pixelated images.

DOJ report on Albuquerque police brutality a halting step towards accountability

Protest in Albuquerque against the March 16 police shooting of homeless man James Boyd

Protest in Albuquerque against the March 16 police shooting of homeless man James Boyd

Following a wide-ranging investigation of the Albuquerque Police Department (APD), the U.S. Justice Department said last Thursday that the APD has for years engaged in a pattern of excessive force that violates the Constitution and federal law.

The investigation, launched in November 2012, examined whether APD engages in an unconstitutional pattern or practice of excessive force, including deadly force, specifically identifying three general patterns of police abuse:

  • APD officers too frequently use deadly force against people who pose a minimal threat and in situations where the conduct of the officers heightens the danger and contributes to the need to use force;
  • APD officers use less lethal force, including tasers, on people who are passively resisting, non-threatening, observably unable to comply with orders or pose only a minimal threat to the officers; and
  • Encounters between APD officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.

The DOJ’s findings come on the heels of the recent police murder of a homeless man that has sparked a wave of demonstrations in Albuquerque, New Mexico’s largest city.

APD officers gunned down 38-year-old James Boyd on March 16 in the Sandia foothills following a standoff and after he allegedly threatened officers with a small knife, authorities said. But a helmet-camera video showed Boyd agreeing to walk down the mountain with them, gathering his things and taking a step toward officers just before they fired.

“It’s a tremendous injustice,” said community leader Ralph Arellanes of the shooting. “This was something that caught the attention of the world.”

Indeed, the world has been taking notice, not just of this particular incident, but in general the ongoing epidemic of police violence and the criminalization of homeless people in the United States.

Just last month, the United Nations Human Rights Committee issued a scathing report documenting serious human rights abuses in the United States, including the nationwide problem of police brutality, in particular against people of color and the homeless.

In a section called “Criminalization of homelessness,” the Human Rights Committee expressed concern about reports of “criminalization of people living on the street for everyday activities such as eating, sleeping, sitting in particular areas etc.”

The Committee noted that such criminalization raises concerns of discrimination and cruel, inhuman, or degrading treatment under articles 2, 7, 9, 17,and 26 of the International Covenant on Civil and Political Rights, and urged the U.S. to “abolish criminalization of homelessness laws and policies at state and local levels.”

In another section on “Excessive use of force by law enforcement officials,” the Human Rights Committee found that across the country, there is an unacceptably “high number of fatal shootings by certain police forces, including, for instance, in Chicago, and reports of excessive use of force by certain law enforcement officers including the deadly use of tasers, which have a disparate impact on African Americans.”

In order to bring its practices in line with international norms on law enforcement, the UN recommended that the U.S. government should:

(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.

The Basic Principles on the Use of Force and Firearms by Law Enforcement Officers that the Human Rights Committee referenced contains a number of guidelines that the U.S. would do well to implement in the interest of avoiding the unnecessary killings of civilians by police. For example,

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life;

(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

This is one area that is sorely lacking in the United States, with a general climate of impunity across the country for killer cops.

As a 2007 report prepared for the UN Human Rights Committee stated, the war on terror has “created a generalized climate of impunity for law enforcement officers, and contributed to the erosion of what few accountability mechanisms exist for civilian control over law enforcement agencies. As a result, police brutality and abuse persist unabated and undeterred across the country.”

“Systemic abuse of people of color by law enforcement officers has not only continued since 2001,” the report noted, “but has worsened in both practice and severity. According to a representative of the NAACP, ‘the degree to which police brutality occurs…is the worst I’ve seen in 50 years.’”

Even establishment publications such as the Wall Street Journal have noticed the troubling trend of rising police violence, dubbing the new breed of U.S. police officers “the warrior cop.” As a feature article in WSJ put it in August 2013,

Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.

In this context, while the new Justice Department report issued last week is certainly a welcome step towards some accountability, the fact is, much more is needed to bring U.S. police departments in line with international norms on law enforcement. A more comprehensive effort – including federal prosecutions of rogue cops – may be necessary if the United States is to bring itself into compliance with international policing norms.

Time for an international tribunal on CIA torture


Thanks to a number of intrepid journalists working to learn the details of the still-classified 6,300-page report on the CIA’s torture and rendition program, we now know that the human rights abuses committed in the war on terror have included clear-cut cases of law-breaking, even going beyond the overly permissive interrogation guidelines of the Bush White House and Justice Department.

As Jason Leopold reported yesterday at Al Jazeera America,

According to the Senate report, Al Jazeera’s sources said, a majority of the more than 100 detainees held in CIA custody were detained in secret prisons in Afghanistan and Morocco, where they were subject to torture methods not sanctioned by the Justice Department. Those methods are recalled by the report in vivid narratives lifted from daily logs of the detention and interrogation of about 34 high-value prisoners. The report allegedly notes that about 85 detainees deemed low-value passed through the black sites and were later dumped at Guantánamo or handed off to foreign intelligence services. More than 10 of those handed over to foreign intelligence agencies “to face terrorism charges” are now “unaccounted for” and presumed dead, the U.S. officials said.

To be clear, what we are talking about here are not policy disputes, but unambiguous incidents of abduction, torture, forced disappearances and homicide. It has long been apparent that these actions have been conducted in violation of international law, but what is new about the revelations coming to light from the Senate torture report is that the harsh interrogation techniques used by the CIA have gone well beyond what was sanctioned by the Justice Department.

This is significant because for years, the justification that the Obama administration has used in avoiding criminal prosecutions of CIA officers implicated in torture is that they were operating under legal guidelines provided by the Department of Justice and White House Office of Legal Counsel.

As president-elect Obama indicated just before taking office in 2009, there should be prosecutions if “somebody has blatantly broken the law” but that in general, the CIA should have no fear of “looking over their shoulders and lawyering up.”

Speaking on ABC’s This Week on Jan. 11, 2009, he said:

We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to look at past practices. And I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up. …

[W]e have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.

The Bush administration had authorized interrogation tactics like waterboarding that likely went beyond what is permitted under federal laws and international treaties, but the defenders of the torture program had always said their actions were legal under a president’s wartime powers.

Now, however, that we know that the torture and abductions went beyond the legal guidelines offered to provide CIA officers with “the color of law” in carrying out their brutal interrogations, this argument no longer holds water. But rather than following up on his earlier pledges to hold those accountable who had “blatantly broken the law,” Obama is now obliquely implying that there will likely be no prosecutions for blatant law-breaking.

In a statement regarding the controversy, Obama said on March 12:

The first day I came into office, I ended the practices that are subject to the investigation by the Senate committee, and have been very clear that I believed they were contrary to our values as a country. Since that time, we have worked with the Senate committee so that the report that they are putting forward is well informed and what I have said is that I am absolutely committed to declassifying that report as soon as the report is completed. In fact, I would urge them to go ahead and complete the report and send it to us and we will declassify those findings so that the American people can understand what happened in the past and that can help guide us as we move forward.

With respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the White House to wade into at this point. But the one thing that I want to emphasize is that the substantive issue, which is how do we operate even when we are threatened, even when even gone through extraordinary trauma has to be consistent with the rule of law and our values. And I acted on that on the first day and that hasn’t changed.

What is conspicuously absent from that statement is any indication that prosecutions may ensue for the violations of the law that we now know have occurred.

For this reason, it is becoming painfully obvious that the only possibility for accountability may be an international tribunal to take the lead in prosecuting these crimes.

It should be pointed out that there is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

This provision recognizes that it is only in a climate of impunity – such as the climate that currently exists in the United States – that the crime of torture is able to take place.

In order to prevent this climate of impunity from being institutionalized, under the terms of the Convention (which the U.S. has ratified), a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.

It’s time for this adjudication to take place. If it doesn’t, CIA criminality and impunity will become even further entrenched, with ominous implications for the whole world.

Senate vote on torture report spurs renewed calls for accountability


Last week’s vote by the Senate Select Committee on Intelligence to declassify part of a 6,300-page report on the CIA’s rendition and torture program is being hailed by some as an important step towards greater transparency, yet criticized by others as a rather meaningless gesture that will ultimately continue to provide CIA torturers with the impunity that they have long enjoyed.

Meg Satterthwaite, writing at Just Security, called the vote “a crucial milestone in the quest for transparency concerning U.S. extraordinary rendition and torture.” Blogger Marcy Wheeler, however, noted that the SSCI did not vote to declassify the whole report, but just certain sections including the executive summary and conclusions:

What we’re going to get will be the Executive Summary, Findings, and Additional and Dissenting Views. Because we’ll get just the Executive Summary, we won’t get much hard detail — aside from that which has been public for years — about the allegations that will appear in the Executive Summary, which will make it harder to rebut any claims CIA’s defenders make.

And this is assuming that even these sections are released in their entirety. After all, the SSCI did not actually declassify anything; it simply voted to send the report to the CIA for redactions and then to the president for declassification review and possible eventual public release. Until the declassification process is complete and that portion of the report is released (which could take months or even years), it will remain under wraps.

With these concerns in mind, a coalition of human rights groups sent a letter to the White House calling for President Obama’s staff to expeditiously lead the declassification of the report, rather than leaving it to the CIA. The groups welcomed CIA Director John Brennan’s pledge “not … to stand in the way” of the report’s release, but noted that the agency has an inherent conflict of interest that cannot be ignored.

“The recent allegations that the CIA searched computers made available to the SSCI, removed documents from them, triggered potential criminal proceedings against congressional staff and took other troubling steps make this inherent conflict of interest very vivid,” the letter says.

This conflict of interest is even more vivid considering that what is at stake is not simply a policy dispute, but legal issues as well. As media reports based on leaked sections of the report have indicated, CIA agents had illegally detained 26 of the 119 individuals in CIA custody, and the interrogation techniques used on detainees went beyond the methods that had been approved by the Bush Justice Department or CIA’s headquarters (guidelines that were likely overly permissive in the first place).

Also at issue are potential crimes committed including murder and obstruction of justice. As McClatchy reported on April 1, “In the case of the death of Gul Rahman, an Afghan who was shackled, doused with cold water and left in a cold cell partially clothed until he died of hypothermia, the CIA’s internal documents reviewed by the Senate confirm the agency’s culpability.”

A Department of Justice inquiry concluded in August 2012 that there was insufficient evidence to push for the prosecution of individuals in Rahman’s death. As Attorney General Eric Holder said at the time, “Based on the fully developed factual record … the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Amnesty International criticized this decision in its annual report on the USA, saying that in 2012:

The absence of accountability for crimes under international law committed under the administration of President George W. Bush in relation to the CIA’s programme of secret detention was further entrenched.

On 30 August, the US Attorney General announced the closure of criminal investigations into the death of two individuals in US custody outside the USA. He stated that no one would face criminal charges in relation to the deaths, believed to have occurred in Afghanistan in 2002 and Iraq in 2003. This followed the announcement in June 2011 that a “preliminary review” conducted into interrogations in the CIA programme was at an end and that, apart from in relation to the two deaths, further investigation was not warranted.

But according to evidence uncovered by the SSCI regarding the death of Rahman, the agency may have tried to “minimize or sanitize that case” – in other words, to obstruct justice. “The documents initially make it seem like it was an accident,” a former official told McClatchy. “However, evidence pointed to what it actually was: willful negligence or even negligent homicide.”

So, despite the fact that possible criminal charges including homicide are at stake, potentially implicating individual interrogators as well as their superiors, the CIA is being offered the opportunity to redact any sections of the executive summary that it considers too damaging. The term “conflict of interest” is probably an understatement.

As the United Nations Human Rights Committee put it in its recent report on U.S. compliance with the International Covenant on Civil and Political Rights,

The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.

Or, as the Center for Constitutional Rights tweeted following the Senate vote last week, “White House must ensure that US officials responsible for torture described in #SSCI report are prosecuted & held accountable for crimes.”


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