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

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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:

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.

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.

Welcoming UN observations, civil society urges greater U.S. commitment to human rights

A demonstrator protests against Guantanamo Bay prison during a Stop the War rally in Trafalgar Square, central LondonFollowing last week’s release of the UN Human Rights Committee’s “concluding observations” on the compliance of the United States with the International Covenant on Civil and Political Rights (ICCPR), U.S. civil society groups have urged greater commitment by the U.S. government in meeting its international obligations.

The American Civil Liberties Union (ACLU) said that the “scathing report” called 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.

“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.

“The Human Rights Committee rightly called out the United States for setting dangerous examples from counterterrorism operations to an unfair criminal justice system to inhumane treatment of migrants. President Obama now has an opportunity to reverse course and reshape his human rights legacy by taking concrete actions like declassifying the Senate report on CIA torture and ending dragnet surveillance and unlawful targeted killings,” Dakwar said.

Writing at the ACLU’s Blog of Rights, Astrid Reyes noted the extremely serious nature of the U.S.’s ICCPR violations:

The committee condemned the United States’ lack of accountability 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 that have led to the incarceration of a disproportionate number of minorities (particularly Blacks and Latinos), effectively denying them basic human rights throughout the criminal justice process. This includes severe sentencing such as the death penalty and life without parole for juveniles; improper use of solitary confinement; and denial of civil rights following incarceration (most notably, the right to vote).

While the committee noted several areas where the U.S. record has improved since its last review in 2006, the Concluding Observations include important structural recommendations, such as creating an independent human rights monitoring body and expanding existing mechanisms to monitor the implementation of human rights at federal, state, local and tribal levels – providing them with adequate human and financial resources.

The U.S. Human Rights Network (USHRN), which has long been advocating for full implementation of the ICCPR at the federal, state and local levels, called the UN’s concluding observations “a strong reflection of the important work being done by human rights defenders across the country.”

“We welcome the UN Human Rights Committee’s recommendation that the U.S. ensure effective remedies for violations under the ICCPR and to take steps to bring U.S. domestic law in line with its human rights obligations,” said Ejim Dike, Executive Director of USHRN.

“We urge the Administration to follow up on the recommendations by the Committee which make clear that the US has significant work to do to fully comply with its human rights obligations in a broad range of issues including racial discrimination in the criminal justice system, gun violence, excessive use of force by law enforcement in communities of color and on the border, access to healthcare for immigrants, criminalization of the homeless, and forced psychiatric treatment,” she said.

The Center for Constitutional Rights (CCR) “applaud[ed] the UN and the international community for holding the US accountable to its international obligations and shedding a necessary light on areas where it is falling short,” describing the UN report as “highly critical.”

The UN’s main areas of concern, CCR noted, included:

  • the U.S. “targeted killing” program;
  • the lack of progress in the closure of Guantánamo, urging the U.S. to expedite the process of transferring detainees out of the prison, including to Yemen, and reiterating its position that the U.S. must end its practice of indefinite detention without charge or trial;
  • the secrecy and lack of accountability around Bush-era abuses, including the limited number of investigations, prosecutions and convictions of contractors and high ranking U.S. officials for killings and torture of detainees;
  • the imposition of the death penalty in a racially discriminatory manner and the conditions on death row;
  • reports of criminalization of people living on the street for everyday activities such as eating, sleeping, and sitting in particular areas, raising concerns of discrimination and cruel, inhuman, or degrading treatment;
  • the use of prolonged solitary confinement, particularly for at-risk people and those in pretrial detention, urging the abolition of solitary for people under 18 and for people with serious mental illness, and strict limitations on its use, overall; and
  • the targeting of Muslims by the NYPD, and racial profiling overall (while underlining its support for recent plans to reform the use of stop and frisk).

Human Rights Watch (HRW) said “the United States should heed calls issued on March 27, 2014, by an important UN human rights body to ensure that its surveillance activities are consistent with the right to privacy, both within and outside its borders.”

HRW noted that the UN Human Rights Committee’s “conclusions address a wide range of serious human rights problems in the US, but the findings on surveillance are notable, as they are the committee’s first statement on the extent to which privacy rights are affected by widespread communications surveillance.”

The committee called on the United States to comply 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. It also criticized the lack of transparency in U.S. laws, urging the United States to reform its system of oversight of surveillance to protect the rights of those affected.

“The US insists it has no international legal obligations to respect the privacy rights of foreigners outside its borders, but one of the UN’s most important human rights bodies has now made clear it disagrees,” said Andrea Prasow, HRW’s senior U.S. national security counsel. “It’s time for the U.S. to recognize that people outside the country have just as much right to have their privacy respected as those inside the US, and that any surveillance must be strictly necessary and proportionate to achieve a legitimate aim.”

The Electronic Frontier Foundation (EFF) concurred, with EFF’s International Rights Director, Katitza Rodriguez, welcoming the Committee’s observations on U.S. violations of privacy rights.  “It’s imperative the United States comply with its human rights treaty obligations, specifically Article 17 of the ICCPR, which protect the right of privacy for everyone in the same manner, within or outside US borders, regardless of nationality or place of residence,” Rodriguez said.

According to an EFF statement:

It’s very disappointing that the United States maintain its views that its human rights obligations under the ICCPR do not extend to its actions abroad, a view that defeats the object and purpose of the treaty. The Committee agreed and reiterates that the United States has an extraterritorial duty to protect human rights—including the right to privacy— to its action abroad regardless of the nationality or location of the individuals.

The Committee rightly criticized the current system of oversight for NSA surveillance activities, highlighting concern with the judicial interpretations of the Foreign Intelligence Surveillance Act (FISA) and secret rulings of the Foreign Intelligence Surveillance Court (FISC). These secret rulings prevent individuals from knowing the law with sufficient precision. Knowledge of and clarity in the law is a crucial principle that is clearly defined in our 13 Necessary and Proportionate Principles.

The NAACP, the nation’s oldest and largest civil rights organization, applauded the concluding observations, noting that the UN report identifies issues of felony disenfranchisement, stand your ground laws, the death penalty and more.

“This report reiterated what those in the civil rights community have known for too long – the United States has more work to do to meet its human rights obligations,” stated Lorraine C. Miller, NAACP Interim President and CEO.

“From felony disenfranchisement and stand your ground laws to voter suppression and the school to prison pipeline, we are pleased the Human Rights Committee has elevated these issues on the international stage. This gives us leverage in the United States to more aggressively address these issues at home,” she said.

While the reaction to the UN report was overwhelmingly positive, the U.S. human rights community was not entirely satisfied with the concluding observations. The Center for Constitutional Rights, for example, regretted that the Human Rights Committee failed to question the U.S. government on the devastation the invasion and occupation of Iraq has brought to both Iraqi civilians and U.S. veterans.

A “shadow report” submitted by CCR to the Human Rights Committee, entitled “US Veterans and Iraqi Organizations Seek Accountability for Human Rights Crisis Resulting from a Decade of US-Led War,” noted “the lack of any recognition whatsoever by the US government of the disastrous and tragic consequences” caused by the war against Iraq.

“Despite having waged an illegal war based on false justifications, no civilian or military official has been investigated or held accountable for their role in fabricating the justification to go to war in Iraq. In fact, the current administration recently argued in a legal case brought by victims of the Iraq war that officials responsible for planning and waging the war in violation of international law should be afforded immunity and shielded from suit,” CCR noted in its shadow report.

The full concluding observations of the UN Human Rights Committee are available here. For more information about U.S. obligations under the International Covenant on Civil and Political Rights, see the ACLU’s FAQ page.

Scathing criticism of U.S. human rights record at UN review

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The United States came under sustained criticism last week during a two-day review by the United Nations Human Rights Committee for its compliance with the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty ratified by the United States in 1992.

Much of the attention that the review has received in the media has focused on the U.S.’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders, using the “extra-territoriality” claim to justify its actions in Guantánamo and in conflict zones.

Walter Kälin, a Swiss international human rights lawyer who sits on the committee, criticized the U.S. position. “This world is an unsafe place,” Kälin said. “Will it not become even more dangerous if any state would be willing to claim that international law does not prevent them from committing human rights violations abroad?”

Besides its controversial counter-terrorism tactics, including indefinite detention and the use of drones to kill terrorist suspects far from any battlefield, the U.S. also came under criticism for a litany of human rights abuses that included NSA surveillance, police brutality, the death penalty, rampant gun violence and endemic racial inequality.

The U.S. government was also reprimanded for the treatment of youth in the criminal justice system, with committee members pointing out that the sentence of life without parole for child offenders may raise issues under article 7 of the ICCPR, which prohibits “cruel, inhuman or degrading treatment or punishment.” While this matter is left to the states under the U.S. system of federalism, the national government should require that juveniles be separated from adult prisoners, the U.S. was told.

Corporal punishment of children in schools, detention centers and homes was also raised, with the U.S. delegation asked what policy has been adopted to eliminate corporal punishment and treat children as minors rather than adults in the criminal justice system. To this criticism, the U.S. responded that it is still “exceptional” in the U.S. for children to be tried in adult courts.

Concern was also expressed over mandatory deportation of immigrants convicted of nonviolent misdemeanors without regard to individual cases. Further, the U.S. has failed to meet international obligations for freedom of religious belief in relation to indigenous communities, the committee said.

The U.S. was asked for a timeline for closing the Guantanamo detention center, and concern was raised over the fairness of the military commissions set up to try terrorism suspects. The majority of Guantanamo detainees approved for transfer remain in administrative limbo, the U.S. was reminded.

When it comes to mass surveillance being conducted by the National Security Agency, the U.S. delegation was asked if the NSA surveillance is “necessary and proportionate,” and whether the oversight under the FISA court could be considered sufficient.

NSA surveillance raises concerns under articles 17 and 19 of the ICCPR, the U.S. was told. According to article 17,

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 19 guarantees that,

1. Everyone shall have the right to hold opinions without interference.

2. 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.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Committee members also highlighted the Obama administration’s failure to prosecute any of the officials responsible for permitting waterboarding and other “enhanced interrogation” techniques under the previous administration.

The committee weighed in on the ongoing conflict between the CIA and the Senate Intelligence Committee, calling in particular for the U.S. to release a report on a Bush-era interrogation program at the heart of the dispute.

“It would appear that a Senator Dianne Feinstein claims that the computers of the Senate have been hacked into in the context of this investigation,” Victor Manuel Rodriguez-Rescia, a committee member from Costa Rica, told the U.S. delegation.

“In the light of this, we would like hear a commitment that this report will be disclosed, will be made public and therefore be de-classified so that we the committee can really analyze what follow-up you have given to these hearings.”

Committee chair Nigel Rodley, a British law professor and former UN investigator on torture, suggested lawyers in the Bush administration who drew up memorandums justifying the use of harsh interrogation techniques could also be liable to prosecution.

“When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” Rodley said.

“Of course we know that so far there has been impunity.”

This impunity stems in part from the U.S. position that the treaty imposes no human rights obligations on American military and intelligence forces when they operate abroad, rejecting an interpretation by the United Nations and the top State Department lawyer during President Obama’s first term.

“The United States continues to believe that its interpretation — that the covenant applies only to individuals both within its territory and within its jurisdiction — is the most consistent with the covenant’s language and negotiating history,” Mary McLeod, the State Department’s acting legal adviser, said during the session.

This narrow legal reasoning drew criticism from the UN panel, with committee member Yuji Iwasawa, Professor of International Law at the University of Tokyo, pointing out that “No state has made more reservations to the ICCPR than the United States.”

The review last week, held on March 13-14, is a voluntary exercise, repeated every five years, and the U.S. will face no penalties if it ignores the committee’s recommendations, which will appear in a final report in a few weeks’ time.

The Guardian noted however that “the U.S. is clearly sensitive to suggestions that it fails to live up to the human rights obligations enshrined in the convention – as signalled by the large size of its delegation to Geneva this week. And as an act of public shaming, Thursday’s encounter was frequently uncomfortable for the U.S.”

U.S. human rights record under international review this week in Geneva

InternationalCovenantCivilPoliticalRightsAs a country that feels comfortable proudly proclaiming its “exceptional” status to the world and relishing in its perceived global leadership on human rights, the United States might find it somewhat uncomfortable being scrutinized this week on its own human rights record, when it is reviewed March 13-14 by the UN’s Human Rights Committee (HRC) for its compliance with the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty ratified by the United States in 1992.

The review, which takes place every several years, is a rare spotlight on domestic human rights issues within the United States, as well as its prosecution of the “war on terror” abroad. It is one of the few occasions where the U.S. government is compelled to defend its record on a range of human rights concerns, speaking the language of international law rather than the usual language of constitutional rights.

One of the primary issues the United States will be asked to clarify this week is the applicability of the ICCPR to its military engagements overseas, including indefinite detention and the extrajudicial killings carried out by unmanned aerial vehicles, or drones.

Ben Emmerson, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has just completed an investigation into 37 recent drone strikes, in which he noted a sharp rise in strikes and a “significant number” of civilian casualties since the end of 2013. Emmerson has demanded greater accountability and transparency on drone strikes, including public investigations into allegations of civilian casualties.

In its questionnaire to the U.S. government ahead of this year’s review, the top question of the HRC was for clarification of the government’s position on the applicability of the ICCPR in the war on terror.

Specifically, the HRC requested that the U.S. clarify “the State party’s understanding of the scope of applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory; in times of peace, as well as in times of armed conflict.”

Following the last review of the United States, in July 2006, the  U.S. government articulated “its firmly held legal view on the territorial scope of application of the Covenant,” namely that the ICCPR does not apply to U.S. actions with respect to individuals under its jurisdiction but outside its territory, nor in time of war.

The HRC objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

Specifically, in its response to the U.S. report, the HRC urged the United States to:

(a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war;

(b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and

(c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

It does not appear, however, that the U.S. will be changing its legal position regarding the treaty’s extraterritorial applicability. As the New York Times reported on March 6,

The United Nations panel in Geneva that monitors compliance with the rights treaty disagrees with the American interpretation, and human rights advocates have urged the United States to reverse its position when it sends a delegation to answer the panel’s questions next week. But the Obama administration is unlikely to do that, according to interviews, rejecting a strong push by two high-ranking State Department officials from President Obama’s first term.

Caitlin Hayden, a National Security Council spokeswoman, declined to discuss deliberations but defended the existing interpretation of the accord as applying only within American borders. Called the International Covenant on Civil and Political Rights, it bars such things as unfair trials, arbitrary killings and the imprisonment of people without judicial review.

However, in a 56-page internal memo, the State Department’s former top lawyer, Harold Koh, concluded in October 2010 that the “best reading” of the accord is that it does “impose certain obligations on a State Party’s extraterritorial conduct.”

Despite Koh’s opinions, the Obama administration has reportedly decided not to reverse the previous U.S. position due to fears that accepting that everything from extraterritorial drone strikes to NSA surveillance could fall within the purview of the ICCPR.

The ACLU’s Jamil Dakwar pointed out in a blog post on Sunday that “the review will cast light on a dark underbelly of American exceptionalism — our refusal to acknowledge that human rights treaties have effect overseas.” The only other country in the world that claims that human rights treaties don’t apply to extraterritorial action is Israel, Dakwar noted.

Perhaps anticipating a difficult review, the United States is sending a huge delegation of government lawyers and military officials to defend the U.S. position. The HRC apparently had to reserve a bigger hall to accommodate the sizable U.S. government delegation and more than 70 human rights advocates and observers who will be in attendance at the six-hour session.

In addition to issues related to the global war on terror, the HRC will review U.S. compliance with its ICCPR obligations on matters such as the rights of indigenous peoples, the death penalty, solitary confinement, voting rights, migrant and women’s rights, and NSA surveillance.

The ACLU submitted a shadow report to the committee highlighting examples of accountability gaps between U.S. human rights obligations and current law, policy, and practice. “U.S. laws and policies remain out of step with international human rights law in many areas,” notes the ACLU.

In addition, the ACLU provided an update to the issues covered in its September submission to the committee, which addresses serious rights violations that have emerged in recent months. The report covers:

The U.S. Human Rights Network has also submitted 30 shadow reports and currently has a delegation in Geneva, conducting activities over the course of the week to ensure that UN and U.S. officials understand the human rights realities of communities across the country.

USHRN’s shadow reports cover a wide range of issues including indigenous rights, equal protection of men and women, prisoners’ rights, freedom of association, political participation, and access to justice. The Center for Constitutional Rights has submitted shadow reports on issues including police departments’ stop-and-frisk policies, deportations of immigrants, and arbitrary detention at Guantanamo Bay.

As the ACLU’s Jamil Dakwar wrote on Sunday,

More than ever, the U.S. is facing an uphill battle to prove its bona fides on human rights issues. The United States is not only seen as a hypocrite, resisting demands to practice at home what it preaches abroad, it is now increasingly seen as a violator of human rights that is setting a dangerous precedent for other governments to justify and legitimize their own rights’ violations.

Despite this fact, the U.S. continues to ruffle feathers around the world with its increasingly hypocritical criticisms of other countries. On February 27, the State Department released its annual human rights report on the global human rights situation. As Secretary of State John Kerry said in releasing the report:

Even as we come together today to issue a report on other nations, we hold ourselves to a high standard, and we expect accountability here at home too. And we know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.

Our own journey has not been without great difficulty, and at times, contradiction. But even as we remain humble about the challenges of our own history, we are proud that no country has more opportunity to advance the cause of democracy and no country is as committed to the cause of human rights as we are.

Kerry’s comments not only likely infuriated the frequent targets of U.S. criticism, but also were offensive to every other country on earth that takes the cause of human rights seriously. By saying that “no country is as committed to the cause of human rights as” the U.S., what he’s really saying is that even countries such as Iceland or Denmark which have made human rights core pillars of their foreign policy don’t come close to the U.S. standard.

Not unexpectedly, China and Russia immediately denounced the U.S. human rights report, saying the United States is hardly a bastion of human rights standards and is on poor footing to judge other nations.

“The United States always wants to gossip and remark about other countries’ situations, but ignores its own issues. This is a classic double standard,” said Chinese Foreign Ministry spokesman Qin Gang.

The combination of the U.S. drone assassination programs, a National Security Agency under increasing global scrutiny for its dragnet surveillance practices, rampant gun violence, poor labor standards, and use of solitary confinement in jails shows that the U.S. is hardly without its own human rights abuses, noted China in its own report, “The Human Rights Record of the United States in 2013.”

Moscow concurred, with Russian Foreign Ministry’s commissioner for human rights, democracy and supremacy of law Konstantin Dolgov saying on March 4 that the U.S. human rights report “has the same flaws that were typical for previous similar reports.”

“The document is cramped with selective and stereotype assessments with the use of double standards, for instance, regarding tragic events in Ukraine,” Dolgov noted.

He pointed out that the U.S. has “acute problems with equal suffrage rights in the US and their equal access to justice.” Further, the U.S. leads the world with the number of incarcerated citizens, with with 2.2 million prisoners, Dolgov said.

As the U.S. is forced to answer for its own human rights record this week, it will be interesting to see how forthcoming it is on these problems, or if it will continue to tout its claimed status as the human rights champion of the world.

The entire U.S. ICCPR review, taking place March 13 and 14, will be broadcast live on UN TV. To follow on Twitter, use the hashtag #ICCPRforAll.

For Compliance Campaign’s archive of ICCPR related articles, see here.

When the World Wide Web fought back against the National Security Agency

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The Internet fought back yesterday against the ever-encroaching mass-surveillance state being imposed by the NSA and associated government agencies in the U.S. and its international partners. Members of Congress were bombarded with emails and phone calls as part of a coordinated day of action, billed as “The Day We Fight Back,” involving more than 6,000 websites and countless more individuals.

According to Inagist.com, the day of action resulted in at least 80,741 phone calls, 163,859 emails, 220,182 petition signatures, and more than 700,000 visitors to the website.

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The online protest began at midnight on Feb. 11 and continued throughout the day. Participating websites included major online platforms such as Reddit and Tumblr and a number of advocacy groups, including Upworthy, Electronic Frontier Foundation, the ACLU, and Demand Progress.

In addition to protesting the widespread government surveillance made public by NSA whistleblower Edward Snowden, the event was timed to commemorate the tragic death of Aaron Swartz, an Internet pioneer and freedom of information activist who was found dead of an apparent suicide in January 2013 amid an overzealous government prosecution that threatened to send him away for 35 years to a U.S. federal prison.

Swartz was a victim of the U.S. “war on whistleblowers,” an ongoing government campaign to clamp down on the free flow of information which has caused the United States to lose its once-touted status as a global champion for freedom of the press. In Reporters Without Borders’ World Press Freedom Index released today, the U.S. fell 13 places from its position last year, being ranked now just 46th out of 180 surveyed countries worldwide.

As Reporters Without Borders explains on its website,

Countries that pride themselves on being democracies and respecting the rule of law have not set an example [for press freedom], far from it. Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result.

This has been the case in the United States (46th), which fell 13 places, one of the most significant declines, amid increased efforts to track down whistleblowers and the sources of leaks. The trial and conviction of Private Bradley Manning and the pursuit of NSA analyst Edward Snowden were warnings to all those thinking of assisting in the disclosure of sensitive information that would clearly be in the public interest.

While obsessively persecuting conscientious leakers of state secrets, the U.S. government has simultaneously waged a war against individual privacy that violates a host of international norms, including as Privacy International has pointed out: Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy; Article 17 of the International Covenant on Civil and Political Rights 1966; Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child.

Other international conventions that recognize the right to privacy include Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In an attempt to counter this assault on international norms and U.S. constitutional rights, websites participating in The Day We Fight Back embedded a large black banner that allowed visitors to input their email address and location and send a letter to their representatives in Congress asking them to oppose the FISA Improvements Act, an Orwellian piece of legislation that would retroactively legalize the government’s unlawful mass spying program.

The ACLU called the proposed act “a dream come true for the NSA” that would “codify the NSA’s unconstitutional call-records program and allow bulk collection of location data from mobile phone users.”

Following up on the U.S.-oriented Day We Fight Back, today several groups launched a European-based campaign to protest, in particular, the activities of the NSA’s junior partner in mass surveillance, Britain’s GCHQ. Privacy International, Article 19, Big Brother Watch, English PEN, Liberty, and Open Rights Group initiated the Don’t Spy On Us campaign. In an announcement at the Privacy International blog, Gus Hosein notes,

In almost every week since last summer, a new Snowden document has been released which details the growing surveillance powers and practices of intelligence agencies, each one astonishing in its own right. The documents have exposed the illegal activities and intrusive capabilities of the UK’s intelligence agency, GCHQ, which has secretly sought to exploit and control every aspect of our global communications systems.

For far too long, mass and intrusive government surveillance programs have operated in the shadows, outside of the rule of law, and without democratic accountability. Now our governments are even defending this state of affairs. This should not be, and certainly cannot continue.

We must fight back.

The New York-based Human Rights Watch recently warned that the NSA is “setting trends” and that there will soon there will be “no safe haven” from the worldwide surveillance practices being pioneered by the United States government.

“As the world’s information moves into cyberspace, surveillance capabilities have grown commensurately,” says HRW in its 2014 World Report. “The U.S. now leads in ability for global data capture, but other nations and actors are likely to catch up, and some already insist that more data be kept within their reach.”

Hopefully the international grassroots movement to counter this trend is able to keep up.

For more information, please see:

American Civil Liberties Union

Bill of Rights Defense Committee

Electronic Frontier Foundation

Demand Progress

Privacy International

Police brutality, drone wars and international norms

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The United States is coming under intense criticism for its policies on a range of issues, including drone strikes and the nationwide epidemic of police violence.

While at first glance, these issues might appear unrelated, in fact they are part and parcel of the U.S. government’s foreign and domestic policy, a generally lawless approach that has been greatly exacerbated by a decade-plus of the war on terror.

The violence perpetrated by the U.S. military on a global scale since 2001 is now increasingly being employed by security forces domestically, and the impunity that high-ranking U.S. officials have long enjoyed is now trickling down to the street level at home.

As a 2007 report prepared for the United Nations 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 and its relationship to the war on terror, 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.

As the problem of police brutality and the lack of accountability continues to intensify, so too does popular resistance. A recent film produced by the U.S.-based Liberation News documents the budding grassroots movement against police violence in California and across the country, with heart-wrenching stories of innocent people routinely shot down by rogue cops who rarely if ever face justice for their crimes.

Tuesday, Oct. 22, marked the 18th annual national day of action against police violence, with demonstrators in dozens of cities across the U.S. protesting what they call an “epidemic of police brutality.” While most protests were peaceful, others saw violent clashes with police.

“Police view all blacks and Latinos as criminals that are allowed to be either stopped and frisked here in New York,” a protester in New York City said. “In LA, … three or more black or brown youth standing together are considered a gang with no rights and are allowed to be rounded up.”

“Hundreds every year are killed by the police, and the majority of them are unarmed, not involved in any criminal activity when they were killed. And also the majority of them were young, and either black or Latino,” said Carl Dix, representative for the October 22 Coalition.

At the heart of the issue are the lax standards that U.S. police forces employ in determining whether to use force. Much like the loose “rules of engagement” that govern U.S. military forces abroad, domestic police appear to operate under the belief that they are allowed to harass and even shoot innocent people with impunity, all in violation of international norms.

As Article 3 of the UN Code of Conduct for Law Enforcement Officials puts it, police “may use force only when strictly necessary and to the extent required for the performance of their duty.”

The commentary on Article 3 further explains:

( a ) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

( b ) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

( c ) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.

Much as these international obligations on domestic police are ignored in the U.S., so too are international obligations on use of force abroad. On the same day that Americans were marching across the country to protest police violence, two leading human rights groups were issuing major new reports on the use of drone strikes abroad.

In its report on Yemen, Human Rights Watch found that U.S. drone strikes against alleged terrorists have killed civilians in violation of international law and are creating a public backlash that undermines U.S. efforts against Al-Qaeda in the Arabian Peninsula.

The 102-page report examines six U.S. targeted killings in Yemen, one from 2009 and the rest from 2012-2013. “Two of the attacks killed civilians indiscriminately in clear violation of the laws of war; the others may have targeted people who were not legitimate military objectives or caused disproportionate civilian deaths,” said HRW.

Amnesty International’s report finds that many questionable killings in the U.S. drone wars in Pakistan may constitute extrajudicial executions or war crimes. Based on interviews with 60 survivors and eyewitnesses to these strikes, “Will I be next?” documents potentially unlawful killings, and offers recommendations to the U.S. government for upholding its obligations to protect the right to life and ensure accountability for any war crimes.

In an interview on Democracy Now, the report’s author Mustafa Qadri explained Amnesty International’s determination that at least some of the drone strikes constitute war crimes.

“We’re not saying that the entire program constitutes war crimes,” Qadri said.

What we’re saying is that particularly rescuer attacks may constitute war crimes. We’re talking here, for example, some laborers in a very impoverished village near the Afghanistan border, they get targeted, eight die instantly in a tent; those who come to rescue or to look for survivors are themselves targeted. In great detail, eyewitnesses, victims who survive tell us about, you know, the terror, the panic, as drones hovered overhead. There are other cases, as well, in the report where we talk about people who have been targeted for coming to be—to rescue people also killed. Those cases may constitute war crimes.

He went on to explain that under international law, only those who are actively taking part in hostilities may be legally targeted for killing:

The law is quite technical. But basically, it could be because of a spillover of the conflict in Afghanistan, so that, for example, if you have a military commander of the Afghan Taliban, he’s in hot pursuit from Afghanistan, he slips into the border into North Waziristan, in the right conditions—there’s a whole range of requirements—that might be lawful. Alternatively, Pakistan is itself fighting a non-international armed conflict in its own borders against the local insurgency; the U.S. has killed members of that insurgency, very senior members of that. Now, that might be lawful. But again, there are very strict requirements that have to be satisfied. One of the requirements is not that a person who is a militant is lawfully—can be lawfully killed. It’s not enough that a person is militant to say that it’s OK to kill them. They have to be taking active part in hostilities to be lawfully targeted.

Following the report’s release, Pakistan’s Foreign Office spokesman Aizaz Ahmad Chaudhry called it very timely and noted that its conclusions were essentially the same as what Pakistan has been saying for years.

Speaking to Geo News, Chaudhry said that it was being internationally recognized that the results of drone attacks have been counterproductive, a point that Malala Yousafzai, the Pakastani girl who was shot in the head on her school bus by Taliban gunmen for criticizing their rule, also made with President Obama during a meeting in the Oval Office on October 11.

“I thanked President Obama for the United States’ work in supporting education in Pakistan and Afghanistan and for Syrian refugees,” she said after the meeting. “I also expressed my concerns that drone attacks are fueling terrorism. Innocent victims are killed in these acts, and they lead to resentment among the Pakistani people. If we refocus efforts on education it will make a big impact.”

Days after Malala’s remarks, a report was issued by United Nations Special Rapporteur Christof Heyns, which warned that the secretive drone program threatens international security due to a “lack of appropriate transparency and accountability.”

The report on ‘Extrajudicial, summary or arbitrary executions,’ also warns that so-called ‘signature strikes,’ based upon limited information regarding targets’ vague behavior patterns, are “clearly unlawful,” and condemns the practice of follow-up attacks on rescuers (so-called “double taps”) as a “war crime.”

Pakistani Prime Minister Nawaz Sharif added his voice to the growing international pressure  on October 23 by calling on Barack Obama to end all strikes in his country. At the end of a visit to the White House, Sharif told reporters that he had “emphasized the need to end such strikes,” which are estimated to have killed between 2,525 and 3,613 people in Pakistan since 2004.

But even as international pressure grows on the United States to rein in its unlawful drone killings abroad, the U.S. is expanding the use of drone technology at home. In June, FBI Director Robert Mueller acknowledged to the Senate Judiciary Committee that the bureau uses unmanned drones for surveillance on U.S. soil. He added that such drone use is done in a “very, very minimal way, and very seldom.”

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The ACLU, however, notes that “U.S. law enforcement is greatly expanding its use of domestic drones for surveillance” and says that “rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a ‘surveillance society’ in which our every move is monitored, tracked, recorded, and scrutinized by the government.”

Drone manufacturers are also offering police the option of arming these flying robots with weapons like rubber bullets, Tasers, and tear gas, notes the ACLU. The group warns that drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.

Further, “domestic drones should not be equipped with lethal or non-lethal weapons,” says the ACLU.

Considering the growing proclivity of U.S. police forces to engage in lethal force against civilians at home, and the U.S. military’s troubling track record abroad, it could be said that the ACLU’s mild admonitions could be considered understated at best.

The violence and impunity with which security forces operate are a clear danger to society both within the United States and overseas. Adding domestic drones to the arsenal of local police weapons is only inviting further tragedy.

Indeed, unless the American people and the world community begin to demand that the U.S. abides by the international norms that it demands of “rogue states” such as Syria or Iran, the United States will likely continue its slide into an authoritarian country in which human rights are cast aside as an irrelevant nuisance.

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Bradley Manning, political prisoner

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Whistleblower Bradley Manning was sentenced to 35 years in prison today, despite the government’s failure to provide a single example of any real harm to have come from his leaking of thousands of classified documents to the anti-secrecy website WikiLeaks.

In handing down the sentence, Judge Col. Denise Lind said that “Manning had reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation,” but no evidence was ever produced demonstrating how the information had actually done so.

Although Brig. Gen. Robert Carr, who had headed a special task force assessing the damage caused by the leaks, testified last month that an Afghan national was killed as a result of the disclosure of battlefield reports from Afghanistan, Judge Lind ruled that the testimony was inadmissible because Carr could not identify the individual by name.

That was the one and only case in which the government concretely alleged that Manning’s leaks had brought harm to someone, and the military judge ruled it inadmissible. In contrast, hundreds of thousands of innocent people have been killed in the U.S. wars in Iraq and Afghanistan, senseless deaths for which no policymakers or generals have ever apologized or been held accountable.

Even outright war crimes such as the Haditha massacre or the “Collateral Murder” incident that Manning exposed have by and large gone unpunished. Indeed, with Manning’s sentence today, it seems clear that the only people who can expect to go to prison are those who expose crimes, not those who commit them.

The government itself has essentially acknowledged that its persecution of Manning has less to do with the actual harm to have come from his actions than it does with fact that they want to make an example of him. In arguing for a 60-year prison sentence for the Army private on Monday, military lawyers said a stiff sentence was necessary to send a message to other conscientious soldiers or government employees who might be considering exposing government wrongdoing.

“This court must send a message to those who release confidential information,” prosecutor Army Capt. Joe Morrow said to Judge Lind. “There is value in deterrence, Your Honor. This court must send a message to any soldier contemplating stealing classified information.”

As Nathan Fuller of the Bradley Manning Support Network explained,

The prosecution insisted there has to be deterrence and we need to set an example out of Bradley Manning. They made it clear that anyone else thinking of releasing classified info should look at Manning. They want to go above and beyond what would be considered a reasonable sentence.

The harsh sentence handed down today solidifies Manning’s status as a political prisoner of the United States government. While there is no single internationally agreed upon designation of what constitutes a political prisoner, the intergovernmental organization Council of Europe last year agreed upon one of the most useful and balanced definitions ever put forward. The resolution adopted last year by the Parliamentary Assembly of the Council of Europe includes the following criteria:

a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;

b. if the detention has been imposed for purely political reasons without connection to any offence;

c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;

d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,

e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.” (SG/Inf(2001)34, paragraph 10).

It’s clear that Manning meets most if not all of these criteria, especially points “C” and “E”. Considering the fact that even the government acknowledges that the damage done to “national security” by his leaks was more theoretical than concrete and that not a single individual was harmed by the information he released, it is difficult to comprehend how a 35-year sentence is truly justified.

In other words, the length is clearly out of proportion to the offenses he was convicted of.

Further, the proceedings were unfair from the beginning, as Manning’s rights were violated every step of the way and the Commander-in-Chief of the Armed Forces, President Barack Obama, declared his guilt long before the trial even began.

In short, Bradley Manning is a political prisoner and he should be recognized as such by leading human rights organizations like Amnesty International, Human Rights First and Human Rights Watch, as well as international organizations such as the EU and the Organization of American States.

Emergency demonstrations in support of Manning and calling on President Obama to issue a presidential pardon are taking place today, including one this evening at the White House.

Did Manning’s court-martial meet international fair trial standards?

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“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

– Universal Declaration of Human Rights

With a sentence expected to be handed down in Bradley Manning’s court-martial this week, the presiding judge, Col. Denise Lind, is coming under criticism for possible lack of judicial independence, calling into question the fairness of the trial and any sentence that he receives.

Trevor Timm, executive director of the Freedom of the Press Foundation, said that throughout the trial, it has been “disappointing to see that almost every ruling, whether they’re major or minor, seems to go against the defense.” Others have noted that despite spending three years in pretrial confinement, Lind ruled that the delays had been “reasonable.”

Before the trial even began, President Barack Obama declared Manning’s guilt by flatly stating, “He broke the law.” The president’s declaration was widely picked up by the media, likely having significant influence over the public perception of Manning’s case, as well as potentially sending a message to the judge, a direct subordinate of Obama as Commander-in-Chief of the U.S. Armed Forces.

As Glenn Greenwald noted at the time, “The impropriety of Obama’s public pre-trial declaration of Manning’s guilt (‘He broke the law’) is both gross and manifest. How can Manning possibly expect to receive a fair hearing from military officers when their Commander-in-Chief has already decreed his guilt?”

He called it “reckless in the extreme for him to go around decreeing people guilty who have not been tried: especially members of the military who are under his command and who will be adjudged by other members of the military under his command.”

Steven Aftergood, a classified information expert at the Federation of American Scientists, told Politico.com, “The comment was not appropriate because it assumes that Manning is guilty. The president got carried away and misspoke. No one should mistake a charge for a conviction — especially the nation’s highest official.”

Beyond simply inappropriate, the president’s comment may have breached the United States’ commitments to international fair trial standards. According to Article 14(2) of the International Covenant on Civil and Political Rights, “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.”

As the Lawyers Committee on Human Rights explains this provision of the ICCPR, “The presumption of innocence must … be maintained not only during a criminal trial vis á vis the defendant, but also in relation to a suspect or accused throughout the pre-trial phase. It is the duty of both the officials involved in a case as well as all public authorities to maintain the presumption of innocence by ‘refrain[ing] from prejudging the outcome of a trial.’”

Obama’s declaration may have had an undue command influence over the proceedings, a possibility that has been compounded by the fact that Judge Lind was given a promotion while the trial was underway. As the Washington Post reported last month, “Lind has already been informed that she will take up a new position, as a judge on the U.S. Army Court of Criminal Appeals, when the Manning trial ends.”

Attorney Michael Ratner said that he found the promotion “pretty extraordinary” considering the context of the case and the possible conflicts of interest involved.

“I don’t know whether it’s—I don’t think it’s necessarily illegal,” he said, “but it does—it’s interesting to me that she’s going upstairs during the very trial that’s going on, and given that promotion.”

Lind’s promotion raises the possibility of whether there may have been a quid pro quo. Is it possible that she was promised the appellate court job contingent upon her decisions in the Manning case? This, of course, speaks to the question of judicial impartiality and independence, key components of international fair trial standards. As the Lawyers Committee explains,

Independence presupposes a separation of powers in which the judiciary is institutionally protected from undue influence by, or interference from, the executive branch and, to a lesser degree, from the legislative branch. …

While independence primarily rests on mechanisms aimed at ensuring a court’s position externally, impartiality refers to its conduct of, and bearing on, the final outcome of a specific case. Bias (or a lack thereof) is the overriding criterion for ascertaining a court’s impartiality. It can, thus, be prima facie called into question when a judge has taken part in the proceedings in some prior capacity, or when s/he is related to the parties, or when s/he has a personal stake in the proceedings. It is also open to suspicion when the judge has an evidently preformed opinion that could weigh in on the decision-making or when there are other reasons giving rise to concern about his/her impartiality.

Another key component of international fair trial standards is the right to a speedy trial as outlined in Article 9 (3) of the ICCPR, which states:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Despite this requirement, Manning spent his entire pre-trial period of three years in jail. This, despite the fact that the Human Rights Committee of the United Nations has held that confinement of more than six months is incompatible with the ICCPR.

Manning’s mistreatment during that unlawful pre-trial detention was also a cause for concern, with his prolonged solitary confinement regime “constitut[ing] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” according to Juan Mendez, the UN Special Rapporteur on Torture.

The treatment, which included prolonged solitary confinement, forced nudity and denial of meaningful exercise or work opportunities, also constituted a breach of the ICCPR, which states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

Another issue that arose during Manning’s court-martial, raising questions of whether it abided by international standards, was the lack of transparency that surrounded many aspects of the case.

Article 14 of the ICCPR provides for the right to a fair and public hearing, but Manning’s court martial was surrounded by secrecy and security, with Judge Lind and the military declining to even release official transcripts of the proceedings.

Many other documents were withheld or heavily redacted and significant portions of the sentencing testimony against Manning were closed to the public. Because of this, it remains unknown what damage the government claims that he caused by sending classified material to WikiLeaks.

His supporters maintain that Manning was acting in the public interest, but the court secrecy means that there is little public evidence about whether his leaks on balance helped or hurt the world.

“The public’s ability to understand the sentence is going to be permanently impaired by that fact that, unfortunately, there are large pieces of this that are going to be off the public record,” said Eugene Fidell, a visiting professor in military law at Yale Law School. “There are going to be missing pieces of the jigsaw puzzle.”

With a potential 90-year prison sentence being handed down by Judge Lind this week and the possibility of a long-term campaign for his freedom, it’s worth remembering that Manning’s rights have been violated every step of the way and that the U.S. has systematically abrogated fundamental components of international fair trial standards.

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