Pointing to “global norms of free expression and privacy,” a coalition of major internet companies this week launched a campaign to pressure the U.S. Congress to reform practices and laws regulating government surveillance of individuals and access to their personal information.
The Global Government Surveillance Reform coalition, which consists of AOL, Apple, Google, Microsoft, Yahoo, Twitter, Facebook and other companies, trade associations and civil society groups, issued the following letter to the House and Senate leadership on March 25:
We the undersigned represent a wide range of privacy and human rights advocates, technology companies, and trade associations that hold an equally wide range of positions on the issue of surveillance reform. Many of us have differing views on exactly what reforms must be included in any bill reauthorizing USA PATRIOT Act Section 215, which currently serves as the legal basis for the National Security Agency’s bulk collection of telephone metadata and is set to expire on June 1, 2015. That said, our broad, diverse, and bipartisan coalition believes that the status quo is untenable and that it is urgent that Congress move forward with reform.
Together, we agree that the following elements are essential to any legislative or Administration effort to reform our nation’s surveillance laws:
There must be a clear, strong, and effective end to bulk collection practices under the USA PATRIOT Act, including under the Section 215 records authority and the Section 214 authority regarding pen registers and trap & trace devices. Any collection that does occur under those authorities should have appropriate safeguards in place to protect privacy and users’ rights.
The bill must contain transparency and accountability mechanisms for both government and company reporting, as well as an appropriate declassification regime for Foreign Intelligence Surveillance Court decisions.
We believe addressing the above must be a part of any reform package, though there are other reforms that our groups and companies would welcome, and in some cases, believe are essential to any legislation. We also urge Congress to avoid adding new mandates that are controversial and could derail reform efforts.
It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative reforms to the nation’s surveillance programs that maintain national security while preserving privacy, transparency, and accountability. We strongly encourage both the White House and Members of Congress to support the above reforms and oppose any efforts to enact any legislation that does not address them.
The original signatories to the letter consisted of 47 internet firms and civil society groups, but the list of signers is growing by the day. (You can add your name here.)
The Global Government Surveillance Reform coalition also issued five principles to guide reform of government surveillance, “consistent with established global norms of free expression and privacy and with the goals of ensuring that government law enforcement and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject to oversight.”
These principles are the following:
1. Limiting Governments’ Authority to Collect Users’ Information
Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.
2. Oversight and Accountability
Intelligence agencies seeking to collect or compel the production of information should do so under a clear legal framework in which executive powers are subject to strong checks and balances. Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry.
3. Transparency About Government Demands
Transparency is essential to a debate over governments’ surveillance powers and the scope of programs that are administered under those powers. Governments should allow companies to publish the number and nature of government demands for user information. In addition, governments should also promptly disclose this data publicly.
4. Respecting the Free Flow of Information
The ability of data to flow or be accessed across borders is essential to a robust 21st century global economy. Governments should permit the transfer of data and should not inhibit access by companies or individuals to lawfully available information that is stored outside of the country. Governments should not require service providers to locate infrastructure within a country’s borders or operate locally.
5. Avoiding Conflicts Among Governments
In order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty — or “MLAT” — processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve the conflict.
Implementing these principles would not only bring U.S. surveillance practices in line with the U.S. Constitution, but would also go a long way in ensuring that U.S. policy is complying with international norms.
A year ago, following the U.S.’s periodic review for its compliance with the International Covenant on Civil and Political Rights, the United Nations issued a scathing report detailing a host of U.S. violations, including on privacy rights. The UN Human Rights 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.
To address these violations, the UN issued the following recommendations to the U.S. government:
(a) Take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance;
(b) Ensure that any interference with the right to privacy, family, home or correspondence is authorized by laws that: (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise and specify in detail the precise circumstances in which any such interference may be permitted, the procedures for authorization, the categories of persons who may be placed under surveillance, the limit on the duration of surveillance; procedures for the use and storage of data collected; and (iv) provide for effective safeguards against abuse;
(c) Reform the current oversight system of surveillance activities to ensure its effectiveness, including by providing for judicial involvement in the authorization or monitoring of surveillance measures, and considering the establishment of strong and independent oversight mandates with a view to preventing abuses;
(d) Refrain from imposing mandatory retention of data by third parties;
(e) Ensure that affected persons have access to effective remedies in cases of abuse.
The Electronic Frontier Foundation’s Katitza Rodriguez urged the United States to conform to the UN’s recommendations. “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.
In an effort to ensure better compliance from the United States and other serial violators of individual privacy rights, the United Nations Human Rights Council decided this week to establish a new position of Special Rapporteur on the right to privacy, whose tasks will include gathering relevant information, including on international and national frameworks, national practices and experiences.
As Privacy International explains,
The Special Rapporteur will be the authoritative voice and intellectual leader at the global level on the right to privacy around the world. The resolution gives the individual a broad mandate to promote the respect and protection of the right to privacy in all circumstances, wherever or however it is exercised. Amongst other things, the mandate holder will monitor states’ and companies’ compliance with the right to privacy, investigating alleged violations, and making recommendations to ensure that this fundamental right is respected and protected.
Tomaso Falchetta, Legal Officer for Privacy International, said,
The Council today has confirmed what we have said for some time: The right to privacy is an invaluable human right, essential to human autonomy and dignity, and deserves explicit attention to ensure that it is respected and protected around the world. Now, perhaps more than ever, we need a dedicated individual to hold those accountable who wish to violate privacy, whether it is through surveillance, indiscriminate data collection, or other techniques that infringe on this important right. As Privacy International celebrates 25 years of advocating for the right to privacy, we can confidently say that today’s resolution is one of the most important events to protect privacy.
The individual chosen to take up the role of Special Rapporteur is expected to be appointed in June 2015.
Although the past year brought some degree of justice for Iraqi victims of U.S. aggression – with four Blackwater contractors convicted in October for their roles in the 2007 Nisour Square massacre – in all, it was another year of misery for Iraq and a total lack of accountability at home for the architects of the 2003 illegal U.S. invasion. Considering the downward spiral that Iraq has been on ever since the Bush administration made its fateful decision to attack it 12 years ago – now more than ever with ISIS taking hold of large swaths of the country – the absence of prosecutions is all the more glaring.
On these Iraq War anniversaries, it is always worth reflecting on the words of American prosecutor Robert Jackson, who led the prosecutions of Nazi war criminals at Nuremberg in 1945-1946. In his opening statement before the international military tribunal on Nazi war crimes, Jackson denounced aggressive war as “the greatest menace of our time.”
He noted that “to start an aggressive war has the moral qualities of the worst of crimes.” The tribunal, he said, had decided that “to initiate a war of aggression … is not only an international crime: it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of whole.”
When it comes to Iraq, the accumulated evil of the whole is difficult to fully comprehend. In 2003, Iraq was a country that had already been devastated by a U.S.-led war a decade earlier and crippling economic sanctions that caused the deaths of 1.5 million Iraqis (leading to the resignation of two UN humanitarian coordinators who called the sanctions genocidal). Despite destroying its stockpiles of weapons of mass destruction and submitting to years of UN weapons inspections, no amount of proof of Iraqi compliance would be enough for George W. Bush and his cronies.
The U.S. attack didn’t officially begin until March 19, 2003 (already the 20th in Iraq), but the United States had been threatening to attack the country as early as January 2003, with the Pentagon publicizing plans for a so-called “shock and awe” bombing campaign in what appeared to be a form of psychological warfare against Iraq in violation of the UN Charter.
“If the Pentagon sticks to its current war plan,” CBS News reported on January 24, “one day in March the Air Force and Navy will launch between 300 and 400 cruise missiles at targets in Iraq. … [T]his is more than number that were launched during the entire 40 days of the first Gulf War. On the second day, the plan calls for launching another 300 to 400 cruise missiles.”
A Pentagon official warned: “There will not be a safe place in Baghdad.”
The effect of these threats particularly on Iraqi youth was profound. A group of psychologists published a report in January 2003 describing the looming war’s effect on children’s mental health.
”With war looming, Iraqi children are fearful, anxious and depressed,” they found. ”Many have nightmares. And 40 percent do not think that life is worth living.”
The Pentagon’s vaunted “shock and awe” attack began with limited bombing on March 19-20, as U.S. forces unsuccessfully attempted to kill Saddam Hussein. Attacks continued against a small number of targets until March 21, 2003, when the main bombing campaign began. U.S.-led forces launched approximately 1,700 air sorties, with 504 using cruise missiles.
The attack was a clear violation of the UN Charter, which stipulates that “Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The only exception to this is in the case of Security Council authorization, which the U.S. did not have.
Desperate to kill Hussein, Bush ordered the bombing of an Iraqi residential restaurant on April 7. A single B-1B bomber dropped four precision-guided 2,000-pound bombs. The four bunker-penetrating bombs destroyed the target building, the al Saa restaurant block and several surrounding structures, leaving a 60-foot crater and unknown casualties.
Diners, including children, were ripped apart by the bombs. One mother found her daughter’s torso and then her severed head. U.S. intelligence later confirmed that Hussein wasn’t there.
After the fall of Saddam Hussein’s regime on April 9, the U.S. action in Iraq took on the character of an occupation, and as the occupying power, the U.S. was bound by international law to provide security. But in the post-war chaos, in which looting of Iraq’s national antiquities was rampant, U.S. forces stood by as Iraq’s national museum was looted and countless historical treasures were lost.
Despite the fact that U.S. officials were warned even before the invasion that Iraq’s national museum would be a “prime target for looters” by the Office of Reconstruction and Humanitarian Assistance, set up to supervise the reconstruction of postwar Iraq, U.S. forces took no action to secure the building. In protest of the U.S. failure to prevent the resulting looting of historical artefacts dating back 10,000 years, three White House cultural advisers resigned.
“It didn’t have to happen”, Martin Sullivan – who chaired the President’s Advisory Committee on Cultural Property for eight years – told Reuters news agency. The UN’s cultural agency UNESCO called the loss and destruction “a disaster.”
During the course of the war, according to a four-month investigation by USA Today, the U.S. dropped 10,800 cluster bombs on Iraq. “The bomblets packed inside these weapons wiped out Iraqi troop formations and silenced Iraqi artillery,” reported USA Today. “They also killed civilians. These unintentional deaths added to the hostility that has complicated the U.S. occupation.”
U.S. forces fired hundreds of cluster munitions into urban areas from late March to early April, killing dozens and possibly hundreds of Iraqi civilians. The attacks left behind thousands of unexploded bomblets that continued to kill and injure civilians weeks after the fighting stopped.
Because of the indiscriminate effect of these duds that keep killing long after the cessation of hostilities, the use of cluster munitions is banned by the international Convention on Cluster Munitions, which the United States has refused to sign.
Possibly anticipating a long, drawn-out occupation and counter-insurgency campaign in Iraq, in a March 2003 memorandum Bush administration lawyers devised legal doctrines justifying certain torture techniques, offering legal rationales “that could render specific conduct, otherwise criminal, not unlawful.”
They argued that the president or anyone acting on the president’s orders are not bound by U.S. laws or international treaties prohibiting torture, asserting that the need for “obtaining intelligence vital to the protection of untold thousands of American citizens” supersedes any obligations the administration has under domestic or international law.
“In order to respect the President’s inherent constitutional authority to manage a military campaign,” the memo states, U.S. prohibitions against torture “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”
Over the course of the next year, disclosures emerged that torture had been used extensively in Iraq for “intelligence gathering.” Investigative journalist Seymour Hersh disclosed in The New Yorker in May 2004 that a 53-page classified Army report written by Gen. Antonio Taguba concluded that Abu Ghraib prison’s military police were urged on by intelligence officers seeking to break down the Iraqis before interrogation.
“Numerous incidents of sadistic, blatant and wanton criminal abuses were inflicted on several detainees,” wrote Taguba.
These actions, authorized at the highest levels, constituted serious breaches of international and domestic law, including the Convention Against Torture, the Geneva Convention relative to the treatment of Prisoners of War, as well as the U.S. War Crimes Act and the Torture Statute.
While these are some of the more obvious examples U.S. violations of international law from the earliest days of the invasion of Iraq, for which no one has been held to account, the crimes against the Iraqi people only continued and intensified over the years.
There was the 2004 assault on Fallujah in which white phosphorus – banned under international law – was used against civilians. There was the 2005 Haditha massacre, in which 24 unarmed civilians were systematically murdered by U.S. marines. There was the 2007 “Collateral Murder” massacre revealed by WikiLeaks in 2010.
With all of these unprosecuted war crimes, it was with some degree of surprise and satisfaction that four Blackwater mercenaries were convicted in October 2014 for a massacre of unarmed civilians in 2007. The Nisour Square massacre left 17 people dead and 20 seriously injured after the guards working for the U.S. State Department fired heavy machine guns and grenade launchers from their armored convoy into a crowd of civilians.
Three of the responsible war criminals were found guilty of manslaughter, while the fourth, Nicholas Slatten, was found guilty of one charge of first-degree murder.
While this verdict was most certainly a welcome development in an otherwise seemingly impervious climate of impunity that has prevailed over the past 12 years, some pointed out the regrettable lack of accountability for those higher up the chain of command. Journalist Jeremey Scahill, for example, noted that Blackwater’s founder, “Christian supremacist Erik Prince” not only has faced no prosecution, but “continue[s] to reap profits from the mercenary and private intelligence industries.”
According to Scahill,
While Barack Obama pledged to rein in mercenary forces when he was a senator, once he became president he continued to employ a massive shadow army of private contractors. Blackwater — despite numerous scandals, congressional investigations, FBI probes and documented killings of civilians in both Iraq and Afghanistan — remained a central part of the Obama administration’s global war machine throughout his first term in office.
Just as with the systematic torture at Abu Ghraib, it is only the low level foot-soldiers of Blackwater that are being held accountable. …
None of the U.S. officials from the Bush and Obama administrations who unleashed Blackwater and other mercenary forces across the globe are being forced to answer for their role in creating the conditions for the Nisour Square shootings and other deadly incidents involving private contractors.
Nevertheless, it is never too late to bring prosecutions against the Iraq War’s chief architects, including Donald Rumsfeld, Condoleezza Rice, Dick Cheney, Karl Rove, Richard Perle, Douglas Feith, and the chief war criminal George W. Bush.
The United States government is finding itself on the defensive this month, being taken to court over a host of policies that violate constitutional and international law.
First, on March 10, the American Civil Liberties Union, the Wikimedia Foundation, Human Rights Watch, Amnesty International USA and other groups filed a lawsuit against the U.S. National Security Agency challenging one of its mass surveillance programs that the plaintiffs say violates Americans’ privacy and makes individuals worldwide less likely to share sensitive information.
In particular, the lawsuit focuses on the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the physical infrastructure of the internet, compromising Americans’ online communications with each other and with the rest of the world.
As explained by the ACLU:
In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for keywords called “selectors” that are associated with its targets. The surveillance involves the NSA’s warrantless review of the emails and Internet activities of millions of ordinary Americans.
“This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well,” said ACLU Staff Attorney Patrick Toomey. “Ordinary Americans shouldn’t have to worry that the government is looking over their shoulders when they use the Internet.”
The lawsuit argues that the NSA is infringing on the plaintiffs’ First Amendment rights and violating their privacy rights under the Fourth Amendment. The complaint also argues that the surveillance oversteps the authority granted by Congress under the FISA Amendments Act.
In explaining why her group joined the lawsuit, Human Rights Watch General Counsel Dinah Pokempner described the significant damage done by the NSA’s surveillance to the work of defending human rights around the world:
When Human Rights Watch can’t assure the privacy of the people with whom we work to expose and halt human rights abuses, we can’t protect their security either. Lives are in the balance, not to mention freedom of information, association, and speech.
Activists in Ethiopia, defense attorneys in France, and officials working in Indonesia won’t call or email us sensitive information about ongoing rights violations because they rightly fear surveillance. We have to get the facts face-to-face or not at all, and either way, that’s costly. People know the domestic government may well have an intelligence partnership with the US, and any leak of US-monitored communications may result in arbitrary arrest, prosecution, assault, or worse.
Last year, we documented the pall that surveillance has thrown over journalists and lawyers in the US, who now must go to extreme lengths to protect their confidential communications, or just forgo the reporting and defense strategies that keep our society informed, fair, and accountable.
HRW and the other groups in the lawsuit said that upstream surveillance “reduces the likelihood” that clients, journalists, foreign government officials, victims of human rights abuses and other individuals will share sensitive information with them.
Lila Tretikov, executive director of the Wikimedia Foundation, and Wikipedia founder Jimmy Wales wrote in the New York Times that they were concerned about where data on their users ends up after it is collected by the NSA. Noting close intelligence ties between the United States and Egypt, they said a user in Egypt would have reason to fear reprisal if she edited a page about the country’s political opposition.
The day after the lawsuit was filed challenging the NSA’s mass surveillance, the Associated Press sued the State Department to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The legal action was a response to Clinton’s attempts to circumvent transparency laws by using a private email account while she headed the State Department and followed repeated requests filed under the U.S. Freedom of Information Act that have gone unfulfilled, according to the AP.
As the news agency explained in a March 11 article,
The FOIA requests and the suit seek materials related to her public and private calendars; correspondence involving aides likely to play important roles in her expected campaign for president; and Clinton-related emails about the Osama bin Laden raid and National Security Agency surveillance practices.
“After careful deliberation and exhausting our other options, The Associated Press is taking the necessary legal steps to gain access to these important documents, which will shed light on actions by the State Department and former Secretary Clinton, a presumptive 2016 presidential candidate, during some of the most significant issues of our time,” said Karen Kaiser, AP’s general counsel.
The suit filed by the AP came a day after Clinton broke her silence about her use of a private email account while she was America’s top diplomat. In defending her actions – which were widely seen as a crude attempt to avoid government transparency requirements – the likely 2016 Democratic presidential candidate claimed that her decision to forgo the official State Department email system was simply a matter of personal convenience.
“At the time, this didn’t seem like an issue,” Clinton said in a March 11 press conference. Clinton insisted she was not violating any rules or seeking to hide her communications.
“I fully complied by every rule I was governed by,” she claimed.
The senior-most executive branch official in charge of freedom-of-information matters for over a quarter-century flatly disagreed. Daniel Metcalfe, whose job it was to help four administrations interpret the Freedom of Information Act, offer advice, and testify before Congress on their behalf, called Clinton’s explanation laughable.
“What she did was contrary to both the letter and the spirit of the law,” said Metcalfe. “There is no doubt that the scheme she established was a blatant circumvention of the Freedom of Information Act, atop the Federal Records Act.”
Said AP Executive Editor Kathleen Carroll: “The Freedom of Information Act exists to give citizens a clear view of what government officials are doing on their behalf. When that view is denied, the next resort is the courts.”
Another challenge to the U.S. government playing out in the courts is a lawsuit filed this week against the lawless and secretive CIA drone assassination program being carried out by the Obama administration. The ACLU sued the White House in federal court on March 16 in an attempt to compel the release of classified information regarding the program of extrajudicial assassinations.
The lawsuit seeks in particular disclosure of the criteria for placing individuals on the administration’s “kill list.”
“The public should know who the government is killing and why it’s killing them,” said ACLU Deputy Legal Director Jameel Jaffer quite reasonably. “There’s no good reason why legal memos relating to the targeted-killing program should be secret in their entirety. Nor is there any legitimate justification for the government’s refusal to acknowledge individual strikes or to disclose civilian casualties or to disclose the procedures under which individuals are added to government ‘kill list.’”
An article by Matthew Spurlock, Legal Fellow at the ACLU National Security Project, explained why the ACLU decided to take the administration to court:
Our government’s deliberative and premeditated killings – and the many more civilian deaths from the strikes – raise profound legal and ethical questions that ought to be the subject of public debate. The Obama administration has made numerous promises of greater transparency and oversight on drones. In his 2013 State of the Union address, President Obama pledged to make lethal targeting “more transparent to the American people and the world” because “in our democracy, no one should just take my word for it that we’re doing things the right way.”
But the administration has failed to follow through on these commitments to openness, and it is continuing to withhold basic information. When it has released anything – or been compelled to by lawsuits – discussion of crucial aspects of the program have been omitted or redacted. This lack of transparency makes the public reliant on the government’s self-serving and sometimes false representations about the targeted-killing program.
The Bureau of Investigative Journalism estimates that 2,442 to 3,942 people in Pakistan have been killed by CIA drone strikes since 2004. Hundreds more people are thought to have been killed by U.S. drones in Yemen, Somalia and Afghanistan.
The White House has formally acknowledged that four of those killed by U.S. drone strikes were United States citizens, one of whom was just 16 years old.
The U.S. has come under intense international criticism over its drone assassination program for years, with a February 2014 report issued by Ben Emmerson, the UN’s Special Rapporteur on human rights and counter-terrorism, urging the United States 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.”
Another UN report, issued by the UN Human Rights Committee in March 2014, 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.”
Despite these concerns, the United States has decided to not only continue its drone assassination program but to begin exporting drones to countries around the world so that they may also begin remotely assassinating people without charge or trial.
Rather hypocritically, the Obama Administration has said that prospective purchasers of “unmanned aerial systems” must meet certain restrictions set out in the State Department’s “Fact Sheet”. For one, purchasers must use armed drones “in accordance with international law, including international humanitarian law and international human rights law, as applicable.”
Unfortunately, it will be the United States – perhaps the world’s most frequent and flagrant violator of international law – determining whether these standards are met.
The United States came under sharp criticism this week from the United Nations Special Rapporteur on torture, Juan E. Mendez, who raised a number of objections regarding U.S. prison policies including solitary confinement, the treatment of juveniles in the justice system and the indefinite detention of terrorism suspects at Guantanamo.
Mendez said on Wednesday that the terms under which the United States has invited him to visit the Guantanamo Bay detention center are unacceptable, urging the U.S. to reconsider restrictions on his visit including by allowing him unmonitored conversations with detainees.
“The invitation is to get a briefing from the authorities and to visit some parts of the prison, but not all, and specifically I am not allowed to have unmonitored or even monitored conversations with any inmate in Guantanamo Bay,” said Mendez.
He also noted that he has been kept waiting for two years to visit prisons in the United States to probe the use of solitary confinement but that he has been refused access. He has requested visits to federal prisons — ADX in Florence, Colorado, and the Manhattan Correctional Center — and state facilities in California, New York, Louisiana and Pennsylvania, but so far the government has blocked his visits to the federal facilities, and he is not willing to only accept visits to state penitentiaries. More than 80,000 people languish in solitary confinement in U.S. prisons, according to the American Civil Liberties Union.
On Tuesday, Mendez also condemned the U.S. for being the “only State in the world that still sentences children to life imprisonment without the opportunity for parole,” noting that by imposing cruel, inhuman, and degrading punishment against the most vulnerable members of society, the U.S. is in serious violation of international norms. There are 2,500 American citizens serving life in prison for crimes they committed as children, according to the Sentencing Project.
“The detention of children is inextricably linked – in fact if not in law – with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk,” Mendez said in a report to the UN Human Rights Council in Geneva.
Mendez noted that the U.S. practice of imposing life sentences on children in cases of homicide violates international law on numerous fronts, including the Convention on the Rights of the Child.
The UN expert noted that the deprivation of liberty of children is intended to be a measure of last resort, to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases.
“Failure to recognize or apply these safeguards increases the risk of children being subjected to torture or other ill-treatment, and implicates State responsibility,” Mendez warned. He called for the adoption of “higher standards to classify treatment and punishment as cruel, inhuman or degrading in the case of children.”
In addition, the Special Rapporteur pointed out that inappropriate conditions of detention – including pretrial and post-trial incarceration as well as institutionalization and administrative immigration detention – exacerbate the harmful effects on children deprived of their liberty.
“Within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child,” he added. “It exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”
“The U.S. government’s policy of detaining large numbers of children harms kids and flouts international standards,” said Clara Long, U.S. researcher at Human Rights Watch last summer. “Congress should be exploring alternatives to detention that other countries facing spikes in border crossings have used successfully.”
U.S. law allows Customs and Border Protection to detain children for a maximum of 72 hours but recent reports indicate that CBP is holding children for periods closer to ten days or two weeks. The children are then transferred to the Office for Refugee Resettlement in the Department of Health and Human Services, where they may be further detained.
“States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status,” Mendez said this week.
The U.S. Department of Justice’s report released this week on the racist, unconstitutional and abusive law enforcement practices of the Ferguson, Missouri, police department offers a timely reminder of the importance of the United States taking steps to comply with international obligations as laid out in the Convention on the Elimination of All Forms of Racial Discrimination, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers and other international agreements to which the U.S. has subscribed.
Among the DoJ’s key findings on the practices of the Ferguson police include an over-reliance on fines and fees for revenue, which can be financially punishing for the city’s many poor residents and often leads to unconstitutional harassment, as well as a disproportionate targeting of African Americans. Accounting for 67 percent of the population in Ferguson, the Justice Department found that black people comprise 85 percent of vehicle stops, 90 percent of citations, and 93 percent of arrests.
Other DoJ findings include a pattern of arresting people for exercising their First Amendment rights, deploying violent force against the mentally impaired and using canines to bite nonviolent civilians. Ferguson police were also found to engage in a pattern of racism as routinely expressed in emails and other internal communications. An email written shortly after Barack Obama’s 2008 election, for example, said that he would not last long in the Oval Office because “what black man holds a steady job for four years,” while another email depicted the president as a chimpanzee.
“It’s really a devastating report, because they’ve got interviews and quotes to back it up” said Samuel Walker, an expert on police accountability and professor emeritus at the University of Nebraska in Omaha. Speaking of the racist emails uncovered by the Justice Department, Walker said, “They’re truly offensive. Again, this is use of city computers, and nobody says, ‘Hey, stop this.’”
The DoJ’s report not only described the failures of the Ferguson police department, but also offered a reminder of the general failures of the United States to live up to its international obligations on policing and racial discrimination. Ultimately, it is up to the federal government to ensure that its policies are in compliance with international norms, as the U.S. was reminded last summer following the review of the United States by the UN’s Committee on the Elimination of Racial Discrimination (CERD), a body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties.
The U.S. was told in particular that it must take a number of concrete steps to bring its policies in line with the treaty. The CERD’s “concluding observations” issued in August 2014 included the following remarks:
The Committee underlines the responsibility of the federal state for the implementation of the Convention, and calls upon the State party to take concrete steps to: (a) Prohibit racial discrimination in all its forms in federal and state legislation, including indirect discrimination, covering all fields of law and public life, in accordance with article 1, paragraph 1 of the Convention; and (b) Consider withdrawing or narrowing its reservation to article 2 of the Convention, and broaden the protection afforded by law against all discriminatory acts perpetrated by private individuals, groups or organizations; and (c) Improve the system of monitoring and response by federal bodies to prevent and challenge situations of racial discrimination.
The CERD also noted the lack of a national human rights institution in the United States:
While taking note of the creation of the Equality Working Group, the Committee reiterates its concern at the lack of an institutionalized coordinating mechanism with capacities to ensure the effective implementation of the Convention at the federal, state and local levels (CERD/C/USA/CO/6, para.13). Noting the role that an independent national human rights institution can play in this regard, the Committee expresses regret at the lack of progress in establishing a national human rights institution as recommended in its previous concluding observations (CERD/C/USA/CO/6, para.12) (art. 2). The Committee recommends that the State party create a permanent and effective coordinating mechanism, such as a national human rights institution established in accordance with the principles relating to the status of national institutions (the “Paris Principles”, General Assembly resolution 48/134, Annex), to ensure the effective implementation of the Convention throughout the State party and territories under its effective control; monitor compliance of domestic laws and policies with the provisions of the Convention; and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels.
And took the U.S. to task for its failure to effectively address the problem of racial profiling in law enforcement:
While welcoming the acknowledgement made by the State party that racial or ethnic profiling is not effective law enforcement practice and is inconsistent with its commitment to fairness in the justice system, the Committee remains concerned at the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), Transportation Security Administration, border enforcement officials, and local police (arts.2, 4(c) and 5(b)).
Recalling its general recommendation No. 31 (2001) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to intensify efforts to effectively combat and end the practice of racial profiling by federal, state and local law enforcement officials
Earlier in 2014, the United Nations Human Rights Committee issued a scathing report documenting serious human rights abuses in the United States, with a particular focus on police violence.
In a section on “Excessive use of force by law enforcement officials,” the Human Rights Committee found that across the United States, 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.
- 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.”
These are all areas in which the United States is falling woefully short of international standards, as described this week in detail in the DoJ’s report on Ferguson. But while the Ferguson police have been singled out for their particularly egregious behavior, it is important to keep in mind that many of these nationwide problems, as explained in an LA Times report on Thursday:
The Justice Department report released this week found many of the same problems already identified in more than two dozen police departments since 1997. The report, however, appears to find Ferguson police responsible for a much broader range of violations than many of the others.
Other federal reviews have focused on racial discrimination, as in East Haven, or excessive use of force, as in Seattle, both in 2011. The report on Ferguson includes those allegations and more, notably the accusation that police seemed as focused on generating revenue as fighting crime, and that they did this by citing African Americans for often questionable violations.
Marc Morial, head of the Urban League, said: “What’s shocking is that this report is taking place in 2015. This sounds like 1955.”
Although many government officials and contractors have gone to prison in recent years as a result of the Obama administration’s unprecedented “war on whistleblowers,” David H. Petraeus, the retired general and former director of the CIA, won’t spend a day behind bars if the government has its way.
This is despite the fact that Petraeus has agreed to plead guilty to giving highly sensitive classified information to Paula Broadwell, his biographer and mistress, in 2011 – a crime comparable to those of Stephen Jin-Woo Kim, a former State Department intelligence advisor, who was sentenced to 13 months in prison after pleading guilty to disclosing a report about North Korea to a reporter, or John Kiriakou, a 14-year CIA veteran, who got 30 months for disclosing to a reporter the identity of an undercover operative who subjected suspected terrorists to torture.
There is also the ongoing case of former CIA officer Jeffrey Sterling who was charged under the Espionage Act for disclosing classified information about an ill-conceived and reckless CIA mission meant to slow Iran’s nuclear program to New York Times reporter James Risen, who then wrote about the CIA’s Iranian plot in his 2006 book, State of War. A Washington, DC, area jury convicted Sterling last month and he now faces a prison sentence of up to 80 years.
Then of course there is the case of Pfc. Chelsea (formerly Bradley) Manning, a former Army intelligence officer who is serving a 35-year prison sentence for divulging three important bodies of documents to WikiLeaks: the Iraq war logs, which consist of 391,000 field reports, 90,000 Afghan war logs, providing a devastating portrayal of the deteriorating war in Afghanistan, and 260,000 diplomatic cables, possibly the most controversial of his leaks.
The government had sought a 60-year prison sentence for the Army private, with military lawyers saying that 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 Denise 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 at the time,
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.
In contrast, the plea deal reached with Petraeus for leaking Top Secret/Secure Compartmented Information materials to his mistress – with a punishment of a $40,000 fine and two years of probation – amounts to a slap on the wrist.
This discrepancy of punishment is all the more glaring considering the sensitivity of the materials that he disclosed. According to the criminal complaint, among the materials in the eight “Black Books” Petraeus shared with Broadwell were:
…classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.
The Black Books contained national defense information, including Top Secret/SCI and code word information. Petraeus reportedly kept those Black Books full of code word information including covert identities and conversations with the President “in a rucksack up there somewhere.”
The blatant inconsistency in the treatment of Petraeus and other, less favored government leakers such as Kiriakou, Sterling and Manning has been obvious enough to lead to a flurry of commentary lamenting the apparent double standards of the government. “The whiff of a double standard is overwhelming,” wrote the Los Angeles Times in an editorial today. “If anything, a leader at Petraeus’ level should be held to a higher standard than lower-level officials or contractors.”
But in a deeper sense, these wildly divergent sentences are not just evidence of double standards, but of the fact the U.S. government engages in a systematic policy of repression of political “enemies,” solidifying the status of victims such as Manning as political prisoners.
While there is no single internationally agreed upon designation of what constitutes a political prisoner, the intergovernmental organization Council of Europe in 2012 agreed upon one of the most useful and balanced definitions ever put forward.
The resolution adopted by the Parliamentary Assembly of the Council of Europe includes the following criteria: “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,” or “if, for political motives, he or she is detained in a discriminatory manner as compared to other persons.”
With the slap on the wrist that Petraeus is receiving for divulging classified documents, it stretches credulity to argue that Manning and Sterling are not being treated in a discriminatory manner, or that the length of detention is consistent with the crime. After all, how can one person get a 35-year sentence and another never spend a day in jail for committing essentially the same offense? It’s clear that the government has singled out Manning for a discriminatory, unnecessarily harsh sentence, and if they have their way will do the same to Sterling.
This makes them political prisoners.
While debate continues in Washington over whether the United States should arm the Ukrainian government in its war against the people of the eastern regions of its territory, there remains a bit of a disconnect over the reality that Ukraine is already using cluster munitions that are banned by an international treaty that has been in effect since 2010. In important ways, the U.S. provides the diplomatic cover for Ukraine to use these munitions, if not the weapons themselves.
Last week, the Organization for Security and Cooperation in Europe’s Special Monitoring Mission to Ukraine (SMM) reported that it has uncovered evidence that cluster bombs have been used in the shelling of civilian neighborhoods in Luhansk:
The SMM saw considerable damage caused by the impacts of rocket shelling, such as broken windows, fences, gates and walls. The SMM assessed that some of the damage to the buildings, e.g. a series of parallel rows of strike marks on a gate and wall, were consistent with damage typically caused by shrapnel elements from cluster munition. According to the SMM’s assessment, a hole in a roof of a house was caused by the impact of what appears to be a bomblet, with small calibre.
The SMM discovered parts of rockets, including engines, fins and cargo compartments, in the front and backyards of several houses; the cargo compartment in particular is typical of a rocket carrying cluster munitions. Some parts sighted by the SMM at the impact site (1.5 cm white metal fragments, 6 by 3 cm black metal fragments of bomblets cases) are typical for cluster munition. The SMM identified them as parts consistent with 9M55K model “Smerch” rockets (calibre 300mm). The SMM observed a crater (diameter approximately 4m, depth approximately 3m) at the backyard of the house located at Dekabristiv Street 106 which had been caused by the explosion of a “Smerch” rocket, according to the SMM’s assessment.
Following a report last year by Human Rights Watch alleging “widespread use of cluster munitions” by “Ukrainian government forces,” the OSCE had raised doubts about the veracity of these claims. As Deutsche Welle reported on October 23, 2014,
Michael Bociurkiw, spokesman for the OSCE mission in Ukraine, also denied that the Ukrainian military had used cluster bombs. “We have around 90 observers in eastern Ukraine,” he told DW. “If we had encountered anything like that, we would have reported it, but that hasn’t happened. Everything we can say about ammunition and shelling is in our daily reports.”
It now appears however that the OSCE is conceding that the Ukrainian government, which came to power following a violent U.S.-backed coup d’etat that toppled the democratically elected Viktor Yanukovych last February, is in fact using these heinous weapons against civilian populations.
Despite being banned under international law for their indiscriminate and disproportionate effects on civilians, they are a particular favorite of the United States, which has used them in Afghanistan, Albania, Bosnia and Herzegovina, Cambodia, Grenada, Iran, Iraq, Kuwait, Lao PDR, Lebanon, Libya, Saudi Arabia, Sudan, Vietnam, Yemen, former Yugoslavia (Kosovo, Montenegro, Serbia). No other country on earth comes close to using these weapons so extensively.
As International Campaign to Ban Landmines – Cluster Munition Coalition (ICBL-CMC) describes them,
A cluster bomb is a weapon that can contain up to several hundred small explosive bomblets. Dropped from the air or fired from the ground, cluster bombs break open in mid-air and scatter these bomblets over a wide area. Anyone within the strike zone is likely to be injured or killed, no matter if they are military or civilian. Many bomblets fail to explode as intended, leaving behind huge quantities of de facto landmines which continue to kill for years or even decades after their use.
Used in more than 35 countries, cluster bombs have killed and injured tens of thousands of civilians and devastated the livelihoods of countless more.
Senator John McCain, who serves as a Chairman of the Senate Committee on Armed Services, claimed last week that the United States is partly to blame for Ukraine’s use of cluster bombs since it hasn’t provided the country with other weapons.
“I think that if we had provided them with the weapons they need, they wouldn’t have felt they had to use cluster bombs. So, it’s partially our fault,” McCain said.
Perhaps more importantly than this, the United States provides Ukraine with unwavering diplomatic and political support, shielding the Kiev regime from criticism. Further, since last spring, the CIA has been directly working with the Ukrainian government on counter-insurgency tactics and on establishing a security apparatus. As AFP reported in May 2014,
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.
The revelations of CIA involvement came following a visit to Kiev by CIA director John Brennan in April 2014, which the White House described as “routine,” but was condemned by Moscow as more U.S. meddling in the country.
Considering that the United States has long defended cluster bombs publicly and vehemently as useful tools in maintaining American hegemony in the world, is it any wonder that the Ukrainian government — being advised by the United States — would feel justified in using these bombs against civilians?
Indeed, according to the Pentagon’s 2008 policy, cluster munitions can actually be considered humane weapons. “Because future adversaries will likely use civilian shields for military targets – for example by locating a military target on the roof of an occupied building – use of unitary weapons could result in more civilian casualties and damage than cluster munitions,” the policy claims. “Blanket elimination of cluster munitions is therefore unacceptable due not only to negative military consequences but also due to potential negative consequences for civilians.”
The U.S government has effectively rejected the international ban on cluster munitions as inapplicable to the United States. In justifying the U.S.’s use of cluster bombs and its refusal to accede to the Convention on Cluster Munitions, Secretary of Defense Robert Gates said in 2008,
The U.S. did not participate in the Cluster Munitions Convention negotiations because we believe that cluster munitions are an integral part of our and many of our coalition partners’ military operations. The elimination of cluster munitions from our stockpiles would put the lives of our soldiers and those of our coalition partners at risk. There are no substitute munitions, and some of the possible alternatives could actually increase the damage that results from an attack.
In November 2009, an Obama administration State Department official said that “many States, including the United States, have determined that their national security interests cannot be fully ensured consistent with the terms of the [Convention].”
U.S. firms have also invested heavily in these banned weapons, spending at least half of the estimated $27 billion on producing cluster bombs from 2011 to 2014. While it is unclear what exactly is driving that increase, rights groups have reported on the recent use of cluster munitions in both Syria and eastern Ukraine.
“We’re seeing an increase in the total value of investment from just a year ago, so that’s a big disappointment,” Amy Little, a campaign manager at the Cluster Munition Coalition, a global advocacy network that includes PAX, told MintPress News in late 2014.
With the U.S. government the most vocal defender of these weapons and U.S. firms the most heavily invested in their production, it seems that it may be also the most instrumental in undermining the international norm against their use, thereby enabling the Ukrainian regime to drop them on its own people with impunity.
Following an official visit to the Guantanamo detention facility this week, a delegation of parliamentarians from the Organization for Security and Cooperation in Europe called the prison “a dark spot on the United States’ reputation in the spheres of human rights and rule of law.”
In a joint statement, the chair and vice-chair of the OSCE Parliamentary Assembly’s human rights committee, Isabel Santos and Mehmet Sevki Kulkuloglu, said,
The detention of people under the traditional laws of war is not compatible with the modern fight against terrorism. The unfortunate application of this legal theory by the United States means that inmates could be held indefinitely, awaiting the end of a fight that does not have a clear-cut end point.
Even those who have faced charges in front of military commissions were subject to a changing legal context and serious restrictions related to classified material, all of which raises additional concerns regarding the transparency of the process and detainees’ ability to mount a defense in a fair trial.
Only a limited number of the remaining 122 detainees at Guantanamo have been charged or are expected to face charges in front of a military commission, the delegation noted. Citing the laws of war, the U.S. government has asserted that detainees can be held until the end of hostilities, a potential life sentence given the unclear and amorphous goals of the war on terror.
Although the delegation traveled to Guantanamo partly to ascertain the status and treatment of remaining detainees, it was not authorized to speak to inmates. Instead, they were given a tour of the facilities by military personnel on January 27 and met with officials from the Joint Task Force. They also viewed part of the military commission trial of Abd al Hadi al-Iraqi by closed circuit and met with senior officials from the Department of State and the Department of Defense in Washington ahead of their visit to Guantanamo Bay.
While recognizing progress has been made in relocating detainees from Guantanamo, the delegation noted that much remains to be done. “We applaud the commitment of the U.S. government to close the facility, but the United States cannot achieve this alone. It requires the support of all OSCE countries,” said Santos and Kulkuloglu.
Earlier in the week, another European body, the Parliamentary Assembly of the Council of Europe, issued a report blasting the NSA’s mass surveillance practices disclosed by whistleblower Edward Snowden as threats against “fundamental human rights” that do not substantially contribute to the prevention of terrorist attacks.
It further said it is “deeply concerned” by the “far-reaching, technologically advanced systems” used by the United States to collect, store and analyze the data of private citizens. It describes the scale of spying by the NSA as “stunning.”
The report and resolution approved by the assembly’s Legal Affairs Committee calls for:
- the collection of personal data without consent only following “a court order granted on the basis of reasonable suspicion”
- “credible, effective protection” for whistle-blowers exposing unlawful surveillance
better judicial and parliamentary control of intelligence services
- an “intelligence codex” defining mutual obligations that secret services could opt into
- an inquiry into member states’ use of mass surveillance using powers under the European Convention on Human Rights
It also criticizes “the reluctance of the competent US authorities and their European counterparts to contribute to the clarification of the facts, including their refusal to attend hearings organised by the Assembly and the European Parliament, as well as the harsh treatment of whistle-blower Edward Snowden, [that] does not contribute to restoring mutual trust and public confidence.”
Despite these welcome moves by Europeans to compel greater U.S. compliance with international norms, the continent as a whole continues to fall short of what is needed to rein the world’s rogue superpower, particularly as it relates to torture and extraordinary rendition. As Amnesty International points out in a briefing paper issued Jan. 20,
European states implicated in the US Central Intelligence Agency’s (CIA) rendition and secret detention programmes have equivocated about their roles in these operations, relied on secrecy laws to decline comment, or simply flatly denied any involvement in them. Not one has conducted a genuinely effective, broad-based investigation into the role their government played in these operations, let alone held state actors fully accountable and provided victims with an effective remedy. Europe’s assistance in facilitating the human rights violations attendant to the US operations – illegal abduction and transfer, secret detention, enforced disappearance, and torture and other ill-treatment — has long been an “open secret,” with various governments seeking to shield themselves from accountability based on unsubstantiated “national security” grounds, the dubious invocation of “state secrets,” or outright lies.
Amnesty calls on
all European governments implicated in the CIA’s illegal rendition, secret detention and interrogation operations – including, among others, Germany, Lithuanian, Macedonia, Poland, Romania, and UK – to:
Conduct an effective, broad-based investigation as a matter of urgency into their involvement in these operations, with a view toward reforming the laws, policies, and practices that permitted such cooperation;
Ensure that those state actors and any foreign agents responsible for crimes under domestic and international law such as torture and enforced disappearance on the territories of European states are criminally charged and held accountable after fair trials;
Afford victims of the human rights violations attendant to these operations a full and effective remedy.
“Without European help, the USA would not have been able to secretly detain and torture people for so many years. The Senate report makes it abundantly clear that foreign governments were essential to the ‘success’ of the CIA operations – and evidence that has been mounting for nearly a decade points to key European allies,” said Julia Hall, Amnesty International’s expert on counter-terrorism and human rights.
Despite having made nuclear non-proliferation and disarmament a centerpiece of his early foreign policy after coming to office six years ago, President Obama is now earning the wrath of anti-nuclear campaigners for simply paying lip service to his Prague 2009 pledge to “secure a world free of nuclear weapons” – what he once called “the world’s worst weapons” – while instead moving to modernize the U.S. nuclear arsenal.
Rather than pushing for disarmament as once promised, the Obama administration is engaging in extensive atomic rebuilding and refurbishing of the U.S. nuclear force to the tune of an estimated trillion dollars in the coming decades, and Obama recently nominated as his new secretary of defense a man long committed to such a course of action.
As Boston Globe columnist James Carroll put it recently,
Mark these days. A long-dreaded transformation from hope to doom is taking place as the United States of America ushers the world onto the no-turning-back road of nuclear perdition. Once, we could believe there was another way to go. Indeed, we were invited to take that path by the man who is, even today, overseeing the blocking of it, probably forever.
Carroll went on to quote Obama’s historic 2009 address in Prague on nuclear abolition.
“As the only nuclear power to have used a nuclear weapon,” Obama said,
the United States has a moral responsibility to act… So today, I state clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons. I’m not naive. This goal will not be reached quickly – perhaps not in my lifetime. It will take patience and persistence. But now, we, too, must ignore the voices who tell us that the world cannot change. We have to insist, ‘Yes, we can…’
“I know,” he continued,
that there are some who will question whether we can act on such a broad agenda. There are those who doubt whether true international cooperation is possible… and there are those who hear talk of a world without nuclear weapons and doubt whether it’s worth setting a goal that seems impossible to achieve. But make no mistake. We know where that road leads.
Indeed, it is all too clear where that road leads.
At the third Humanitarian Impact of Nuclear Weapons Conference held in Vienna, Austria last month, journalist Eric Schlosser emphasized that it’s a miracle there hasn’t yet been a catastrophic accident involving nuclear weapons, pointing out however that “The problem with luck is that eventually it runs out.”
He offered one mishap out of hundreds that have occurred over the years: the 1961 North Carolina incident in which a hydrogen bomb fell out of a disintegrating B-52 bomber, which nearly fully detonated a four-megaton hydrogen bomb.
The chances of a similar mishap taking place today are compounded by the fact that the U.S. nuclear arsenal is aging and the staff tasked with securing these weapons are poorly trained and reportedly suffering from major morale problems.
Warheads in the nation’s stockpile are an average of 27 years old, and military strategists are raising serious concerns about their reliability. As John Hamre, Deputy Secretary of Defense in the Clinton administration and now president of the Center for Strategic and International Studies, recently said, “We have the worst of all worlds: older weapons and large inventories that we are retaining because we are worried about their reliability.”
Further, the military has not prioritized the maintenance of these weapons, leading to even greater nuclear insecurity.
“The Air Force has not kept its ICBMs manned or maintained properly,” says Bruce Blair, a former missileer and cofounder of the anti-nuclear group Global Zero. Nuclear bases that were once the military’s crown jewels are now “little orphanages that get scraps for dinner,” he says. And morale is “abysmal.”
As a recent article in Mother Jones explained,
Blair’s organization wants to eliminate nukes, but he argues that while we still have them, it’s imperative that we invest in maintenance, training, and personnel to avoid catastrophe: An accident resulting from human error, he says, may be actually more likely today because the weapons are so unlikely to be used. Without the urgent sense of purpose the Cold War provided, the young men (and a handful of women) who work with the world’s most dangerous weapons are left logging their 24-hour shifts under subpar conditions—with all the dangers that follow.
In August 2013, Air Force commanders investigated two officers in the ICBM program suspected of using ecstasy and amphetamines. A search of the officers’ phones revealed more trouble: They and other missileers were sharing answers for the required monthly exams that test their knowledge of things like security procedures and the proper handling of classified launch codes. Ultimately, 98 missileers were implicated for cheating or failure to report it. Nine officers were stripped of their commands, and Colonel Robert Stanley, the commander of Malmstrom’s missile wing, resigned.
While these realities of poor training, test cheating and drug abuse scandals, lackluster maintenance and aging weapons make clear the need to do something to better prevent a nuclear catastrophe from taking place, campaigners take issue with the Obama administration’s proposal to inject billions of dollars into modernizing these facilities and retraining staff.
As Theresa Shaffer, the Security Outreach Associate for Physicians for Social Responsibility, points out in a recent column,
The 2015 “CRomnibus” appropriations bill which passed in the House of Representatives and which President Obama has backed ahead of the Senate vote, does not accomplish these things. President Obama has repeatedly stated the need to secure radiological material worldwide in order to prevent a terrorist or criminal from fabricating a dirty bomb. Yet in this 2015 omnibus bill, funding to combat the proliferation of nuclear materials to terrorists and criminals was cut by 17% from 2014, while at the same time spending on nuclear weapons increased by 5% from last year.
“A better idea,” she continues,
to resolve the safety issues affecting our nuclear arsenal could be to use those funds to actually secure and eliminate radiological materials worldwide and simply work on getting rid of nuclear weapons rather than injecting more money into making new ones. The Congressional Budget Office estimates that $355 billion will be spent on modernizing the nation’s nuclear forces from 2014-2023. Pressure should be placed on the new Congress come January to reduce spending on nuclear weapons in the 2016 budget, since these weapons pose more of a risk than an asset.
Meanwhile, as Obama betrays his earlier pledges to work towards a nuclear arms-free world, many within the international community are doing just that, by building a global consensus and strengthening the international norm against these weapons.
The government of Austria hosted the third international conference on the humanitarian consequences of nuclear weapons on December 8-9, 2014 in Vienna. The conference aimed to bolster the global nuclear disarmament and non-proliferation regime by contributing to the growing momentum to prioritize the humanitarian imperative in all international efforts on nuclear non-proliferation and nuclear disarmament.
The conference explored the impacts of nuclear weapon explosions, including nuclear testing; the risks of nuclear weapons use; challenges and capabilities regarding the use of nuclear weapons; and existing international norms and laws.
Nadja Schmidt, representing the International Campaign to Abolish Nuclear Weapons (ICAN), pointed out that within the existing legal framework on nuclear weapons, there is currently a lack of an instrument that explicitly characterizes nuclear weapons as unacceptable under international law.
“Our next step as supporters of the humanitarian initiative should be to explore the best way to address this legal deficit,” she said, noting that “the time has come to start a diplomatic process to negotiate a legally-binding instrument prohibiting nuclear weapons.”
The ICAN statement continued:
This is not a radical proposal. Indiscriminate weapons get banned. We have done it before with other weapon systems, including biological and chemical weapons.
This should not be a controversial proposal. An international prohibition is the logical outcome of an examination of the risks and consequences of nuclear weapons detonation. A new legal instrument prohibiting nuclear weapons would constitute a long overdue implementation of the Non-Proliferation Treaty.
Also participating in the conference was the global network of lawmakers known as the Parliamentarians for Nuclear Non-Proliferation and Disarmament (PNND), an international cross-party network of over 800 parliamentarians from more than 80 countries.
The parliamentary roundtable during the Vienna conference was chaired by PNND Co-President Christine Muttonen, who noted in her opening remarks that parliamentarians are in a unique position to “interact and co-operate with civil society,” as well as to “influence and strengthen government positions” on nuclear disarmament.
“Parliaments worldwide are doing this already,” she said. “Now it is time to better connect ourselves, to exchange experiences and best practices and to discuss the possibilities of joint action.”
The weekend before this conference, the ICAN hosted a Civil Society Forum, which was open to NGO and governmental representatives. Campaigners, activists, experts, public figures, and survivors gathered to learn and to teach and to build momentum to end the era of nuclear weapons.
An issue discussed at length at the ICAN forum was the Marshall Islands’ ongoing lawsuit against the United States and eight other nuclear powers. The lawsuit, filed at the International Court of Justice (ICJ) in April 2014, denounces the 60-plus nuclear tests that were conducted on the small island state’s territory between 1946 and 1958, and seeks to hold the U.S. accountable for violating the 1968 Nuclear Non-Proliferation Treaty by failing to disarm as agreed to in the treaty.
The Marshall Islands case has received support from many different organizations around the world. One supporter is the Nuclear Age Peace Foundation (NAPF), whose president, David Krieger, said: “The Marshall Islands is a small, gutsy country. It is not a country that will be bullied, nor is it one that will give up.”
“It knows what is at stake with nuclear weapons,” he continued, “and is fighting in the courtroom for humanity’s survival. The people of the Marshall Islands deserve our support and appreciation for taking this fight into the U.S. Federal Court and to the International Court of Justice, the highest court in the world.”
Russia, which along with the United States retains the bulk of the world’s nuclear arsenal, recently offered a reminder of which country invented these heinous weapons and which is the only country to have used them. Sergey Naryshkin, the Russian Lower House speaker, told the Russian History Society last month that he wants to initiate an international investigation into the U.S.’s 1945 nuclear bombing of Hiroshima and Nagasaki as a possible crime against humanity.
“Next year we will have the 70th anniversary of the Nuremberg Trial and also the same anniversary of the first and only nuclear bombings of two civilian cities – Hiroshima and Nagasaki,” he said. “It is not incidental that I mention these events together. I think we should discuss this topic together with lawyers and specialists in international law – for crimes against humanity have no statute of limitation.”
Naryshkin recalled that the nuclear attacks on Hiroshima and Nagasaki were not militarily justifiable, as the defeat of Japan was effectively decided after the Soviet Army’s victories in Manchuria.
“The nuclear bombing of two peaceful cities was a pure act of intimidation resulting in the deaths of several thousand Japanese civilians,” he said.
The restoring of diplomatic relations between the United States and Cuba is an historic and positive development, but with its economic blockade still in place against the island nation, the U.S. remains in violation of international law, as expressed 23 years in a row by nearly unanimous United Nations General Assembly votes against the embargo.
Most recently, on Oct. 28, the General Assembly adopted a resolution – as it has done every year since 1991 – calling for an end to the United States economic, commercial and financial embargo on Cuba. With only the United States and Israel voting against, and three small island states abstaining, a whopping 188 UN Member States voted in favor of ending the embargo. Few other issues on earth receive such universal support.
According to the text, the UN reiterated its call upon countries to refrain from applying laws and regulations, such as the 1996 Helms-Burton Act, which impact the sovereignty of other nations, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation.
Recalling its 22 previous resolutions on the subject, the UN expressed concern that since the adoption of those resolutions, “further measures of that nature aimed at strengthening and extending the economic, commercial and financial embargo against Cuba continue to be promulgated and applied, and concerned also about the adverse effects of such measures on the Cuban people and on Cuban nationals living in other countries.”
It once again urged nations that have applied such laws to repeal or invalidate them as soon as possible, in line with their obligations under the United Nations Charter and international law.
In a press release following the adoption of this resolution, the UN noted:
In recent times, the blockade imposed by the United States against Cuba had been tightened, and its extraterritorial implementation had also been strengthened through the imposition of unprecedented fines, the Minister for Foreign Affairs of Cuba told the Assembly as he introduced the draft resolution. The accumulated economic damages of the blockade totalled $1.1 trillion, based on the price of gold.
Wednesday’s announcement about the change in U.S. policy was lauded around the world, with UN Secretary General Ban Ki-moon welcoming the “very important step” taken by the leaders of the United States and Cuba towards normalizing relations.
“This news is very positive,” Ban said. “I’d like to thank President Barack Obama of the United States and President Raúl Castro for taking this very important step towards normalizing relations.”
The Secretary General of the Organization of American States, José Miguel Insulza, also welcomed the announcement, congratulating Obama “for having taken these historic steps, as necessary as they are courageous, to restore diplomatic relations broken off in 1961.”
He added that “the measures announced today open a path to normalization from which there is no return,” and urged the United States Congress to “take the necessary legislative measures to lift the embargo against Cuba, which remains in force.”
“President Obama has been clear about the need to change a policy that produced neither benefits nor results for 50 years, and only complicated the lives of millions of citizens. We hope that Congress understands this as well,” Insulza said.
Although the U.S. Constitution gives considerable latitude to the president in making foreign policy, which Obama exercised in a big way in moving to restore diplomatic relations with Cuba, lifting the embargo would require legislative action by Congress.
As Obama indicated in his remarks announcing the policy on Wednesday, he has taken virtually all steps that he can take as president to change U.S. policy towards Cuba, short of lifting the economic blockade.
“The embargo,” he said, “that’s been imposed for decades is now codified in legislation. As these changes unfold, I look forward to engaging Congress in an honest and serious debate about lifting the embargo.”
To add your name to an Avaaz petition calling on Congress to lift the embargo, click here.