Verdict in: U.S. falling short on human rights

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Far from being the global champion of human rights that it fancies itself as, the United States is in fact a flagrant violator of international human rights standards as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other landmark human rights treaties – some of which the U.S. refuses to ratify. This was the unmistakable conclusion of the U.S.’s Universal Periodic Review for compliance on human rights norms at the United Nations Human Rights Council earlier this week.

Delegates from many of the 117 countries taking part in the UPR lambasted the United States’ record of civil rights violations in the context of the nationwide epidemic of police brutality. The representative from Nambia, for example, said U.S. officials must “collaborate closely with marginalized communities to fix the broken justice system that continues to discriminate against them, despite recent waves of protest over racial profiling and police killings of unarmed black men.”

“Chad considers the United States of America to be a country of freedom, but recent events targeting black sectors of society have tarnished its image,” said Awada Angui, the delegate from that country.

The barrage of criticism led James Cadogan, senior counselor in the Department of Justice’s Civil Rights Division, to concede that the United States has a problem with police violence. “We must rededicate ourselves to ensuring that our civil rights laws live up to their promise,” he said at the review on Monday. “The tragic deaths of Freddie Gray in Baltimore, Michael Brown in Missouri, Eric Garner in New York, Tamir Rice in Ohio, and Walter Scott in South Carolina have… challenged us to do better and to work harder for progress.”

But even while admitting its own shortcomings, the U.S. couldn’t resist the instinctual temptation to tout its record. As Mary McLeod, acting legal adviser to the U.S. Dept of State, put it, “We’re proud of the work we’ve done since our last UPR.”

Most UN Human Rights Council delegations and civil society observers strongly disagreed. One of the recurring themes in the interventions that took place on Monday was the U.S.’s failure to ratify a number of key human rights treaties and protocols, including the Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities, since its last periodic review in 2010.

As Human Rights Watch noted,

In its 2010 review, the United States agreed to “consider” ratifying ICESCR, CEDAW, CRC, and CRPD (92.10,
92.11, 92.20, 92.21); ratifying ILO Convention Nos. 100 and 111 (92.22 and 92.26); ratifying the Rome Statute of
the International Criminal Court (92.28); signing the Migrant Worker Treaty (92.30); lifting reservations to the
ICCPR and other ratified human rights treaties (92.47, 92.48, 92.49); and establishing a national human rights
institution (NHRI) at the federal level (92.74).

To date, however, no new human rights treaty has been signed or ratified, no reservations, understandings or
declarations have been lifted, and no NHRI established. The UPR is ineffective if limited to a conceptual exercise,
and no country should claim success by accepting recommendations that require no identifiable outcomes or even proof of a deliberative process.

The United States has failed to implement a number of other recommendations from its prior review. These
include recommendations involving national security, criminal justice and policing, treatment of immigrants, and
privacy, as detailed below, as well as overarching recommendations, such as agreeing to incorporate human rights training and education strategies in public policies (92.87). This submission also touches on issues that the United States did not address in its prior UPR but should consider in its upcoming review.

“The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review,” U.S. advocacy director at Human Rights Watch Antonio Ginatta told VOA News.

Brazil raised objections to the United States’ mass surveillance program, urging that all surveillance polices and measures comply with human rights law regardless of nationality, noting the importance of the principal of proportionality. The Brazilian delegation also criticized the U.S. record on migrant rights, and called for the elimination of police brutality.

The U.S. also heard criticism over the continued use of the death penalty. The Belgian delegation said the U.S. should take specific measures to eliminate racial bias and wrongful convictions leading to executions. Swedish UN representative Anna Jakenberg Brinck called for a “national moratorium on the death penalty aiming at complete abolition.”

Other countries, including France, pushed for “full transparency” in the types of drugs being administered to kill prisoners, following news that some death row inmates experienced inordinate pain and suffering during their executions.

The U.S.-led war on terror and the ongoing impunity related to the crimes of torture committed by the CIA were other areas of concern. One of the key demands of the UN delegations was for Washington to take measures to prevent acts of torture, to prosecute perpetrators, and to ensure that victims of torture were afforded redress and assistance.

Guantanamo was also raised, with some delegations including the United Kingdom recalling the pledge to close the prison by President Barack Obama back in January 2009 and regretting that it hasn’t happened yet. The UK called for an expedited effort to shut down the detention facility once and for all.

More than 100 NGOs submitted reports on various aspects of U.S. human rights shortcomings, which are collected at the website UPR Info.

“Today was a demonstration of the no confidence vote that world opinion has made of the United States as a country that considers itself a human rights champion,” said Jamil Dakwar, director of the Human Rights Program of the American Civil Liberties Union. “I think that there was a clear message from today’s review that the United States needs to do much more to protect human rights and to bring its laws and policies in line with human rights standards.”

The UPR takes place every four years to scrutinize the human and civil rights practices of each of the UN’s 193 member nations.

Amid declining human rights, U.S. faces tough review at UN

obamas legacy in 50 years

The United States is scheduled to undergo its second Universal Periodic Review (UPR) before the UN Human Rights Council in Geneva on May 11, with UN member countries raising past U.S. human rights pledges and new concerns. The review comes five years after the last U.S. UPR, and in the context of a generally deteriorating human rights situation in the United States.

Human Rights Watch noted on May 7 that in its first review in 2010, the United States accepted 171 recommendations out of 240 from other member countries. “However,” HRW stated, “the U.S. has largely failed to follow through on these recommendations.”

The rights group stressed several primary areas in which the U.S. has failed to deliver:

  • Take measures to “improve living conditions through its prison system,” “increase its efforts to eliminate alleged brutality and use of excessive force by law enforcement officials” against Latinos, African Americans, and undocumented migrants, and study racial disparities in the application of the death penalty. Five years later, the US has done little on these recommendations;
  • “[I]nvestigate carefully each case” involving the detention of migrants and ensure immigration detention conditions meet international standards. While UN bodies oppose all detention of immigrant children, the US has in the past year embraced the detention of immigrant children and their mothers; and
  • Seek the ratification of core international human rights treaties, including the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. The Obama administration submitted only the Disability Rights Convention to the Senate for its consent, and was unable to muster the two-thirds majority necessary for ratification.

Regarding the last point, as an outlier on these key human rights treaties, the United States now faces an even more embarrassing situation, being one of just two countries that has not ratified the Convention on the Rights of the Child. Earlier this week, South Sudan ratified the Convention, leaving just the United States and Somalia as the only two countries in the world not having ratified the treaty. However, the UN notes that “Somalia is in the process of finalizing the process to ratify the Convention,” which would leave the U.S. in the awkward position of being the only country in the world standing against children’s rights to health, education and freedom from discrimination.

“At the UN rights review, the US has been strong on process and short on substance,” said Antonio Ginatta, U.S. advocacy director at Human Rights Watch. “The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review.”

During the current UN review process, HRW has flagged concerns over mass surveillance programs, longstanding concerns over indefinite detention without trial at Guantanamo Bay, and the lack of accountability for torture under the previous administration.

In March, UN High Commissioner for Human Rights Zeid Ra’ad Hussein said that the rights abuses permitted by the U.S. government as part of counter-terrorism activities have encouraged radical extremism, citing the rise of the Islamic State (ISIS) terrorist group.

The review also comes at a time of heightened scrutiny of police brutality, with six police officers just charged in Baltimore for the murder of 25-year-old Freddie Gray. Regarding privacy rights, in the context of an appeals court decision just handed down declaring the NSA phone surveillance program illegal, the U.S. could be forced to take a public stand on the legitimacy of intercepting private communications around the world.

As Sarah St. Vincent of the Center for Democracy and Technology explained,

The US has committed to upholding human rights under several treaties, including the International Covenant on Civil and Political Rights (“ICCPR”), the Convention against Torture, and the International Convention on the Elimination of All Forms of Racial Discrimination. The ICCPR, in particular, contains rights to privacy and free expression. During the session, every other UN Member State will have the right to ask the US questions about its respect for the human rights enshrined in these treaties and make recommendations as to what the country should do differently in order to comply with its obligations.

The US (represented by its Geneva diplomatic mission and other members of the executive branch) will have the opportunity to respond to these points during the session, and will also need to declare shortly afterward whether it accepts each of the recommendations. In other words, if (for example) a country recommends that the US discontinue any indiscriminate interception of private communications, the Obama administration will be required to take a public position as to whether it accepts this recommendation.

The UN established the UPR process in 2006. Countries under review submit written reports on their human rights situation and respond to the questions and recommendations put forward by UN member countries at the Human Rights Council. All 193 UN member states undergo these reviews.

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Charging Baltimore cops a promising step for rule of law and international norms

The remarkable announcement last Friday by Baltimore State’s Attorney Marilyn Mosby that she had filed charges against the six officers connected to Freddie Gray’s arrest and transport on April 12, saying they illegally arrested the 25-year-old without probable cause, then ignored his pleas for medical help, came to some as a surprise.

After similar cases had resulted in no charges nor prosecutions of police officers – such as those responsible for the deaths of Eric Garner in New York and Mike Brown in Ferguson, MO – many seemed resigned to the reality that police in America essentially have free reign to kill with impunity, particularly when the victims are African American. Last week, Mosby proved these doubters wrong, leading to cries of jubilation from some quarters.

People celebrate in the streets of the Sandtown neighborhood in Baltimore after Marilyn Mosby announced that six police officers are being charged in the death of Freddie Gray, in Baltimore. Photograph: Jim Lo Scalzo/EPA

People celebrate in the streets of the Sandtown neighborhood in Baltimore after Marilyn Mosby announced that six police officers are being charged in the death of Freddie Gray, in Baltimore. Photograph: Jim Lo Scalzo/EPA

In announcing her decision to level 28 counts against the six police officers responsible for Gray’s death, Mosby said, “As the city’s chief prosecutor, I’ve been sworn to uphold justice and to treat every individual within the jurisdiction of Baltimore City equally and fairly under the law.”

While this statement should be considered uncontroversial to any sixth-grader learning the principle of America being “a nation of laws, not men” in civics class, the irrefutable reality of late has been the opposite – that some people are indeed above the law, in practice if not principle.

However, not everyone was equally impressed with the developments last week. Interviewing several demonstrators in Baltimore following the decision, journalist Amy Goodman found some people still expressing skepticism that the police will really face justice.

“I mean, it’s a good start,” said protester Hooley Shelone. “It’s a good start. But it’s just the beginning, you know? That’s why it’s important for us, everybody, to get out here and vote, when it’s time to vote, you know? So we can get people like the Marilyn Mosbys in office, you know what I’m saying?”

“I’m going to say like this,” added Ashton True Nichols:

It’s been times where as though people get 20 and 30 charges and might end up with one. So, what she said sounds good, but we want to see the work, because you go to court, you can have 20 charges and end up with one or end up free. So, if people on the streets do it, imagine what’s going to happen when the police is involved. Now that the police is involved and the police got to do it, you don’t think they got top-notch lawyers? A lot of them charges going to be dropped. Because I ain’t hear the right charge: first degree. They knew what they was doing. Yeah, they knew.

These anecdotal accounts are in line with general opinion, as determined by a poll released yesterday by Pew Research Center. Nearly eight-in-ten blacks (78%), Pew found, and 60% of whites said that the decision to bring charges was right, but far fewer expressed confidence that the investigations into the police will result in justice being served:

While the public generally supports the decision to charge the police officers, most Americans do not have a great deal of confidence into the ongoing investigations into Gray’s death. Just 13% say they have a great deal of confidence into the investigations while 35% say they have a fair amount of confidence. About four-in-ten (44%) have little or no confidence in the investigations. However, the share expressing confidence in the investigations rose during the latter part of the survey period: 40% expressed a great deal or fair amount of confidence on April 30, while 50% expressed at least a fair amount of confidence from May 1-3, after the charges were announced.

Pew baltimore opinion survey

Despite the lingering – and understandable – skepticism, it is still significant that these charges were leveled against the six Baltimore cops. According to international norms on law enforcement, when police abuse their power and arbitrarily use excessive force, their actions must be treated as criminal offenses in the justice system, which is what Mosby has done in filing these charges.

As Mosby said in her announcement:

The findings of our comprehensive, thorough and independent investigation, coupled with the medical examiner’s determination that Mr. Gray’s death was a homicide, which we received today, has led us to believe that we have probable cause to file criminal charges. […]

While each of these officers are presumed innocent until proven guilty, we have brought the following charges:

Officer Caesar Goodson is being charged with second-degree depraved-heart murder, involuntary manslaughter, second-degree negligent assault, manslaughter by vehicle by means of gross negligence, manslaughter by vehicle by means of criminal negligence, misconduct in office for failure to secure a prisoner, failure to render aid.

Officer William Porter is being charged with involuntary manslaughter, assault in the second degree, misconduct in office.

Lieutenant Brian Rice is being charged with involuntary manslaughter, assault in the second degree, assault in the second degree, misconduct in office, false imprisonment.

Officer Edward Nero is being charged with assault in the second degree, intentional; assault in the second degree, negligent; misconduct in office; false imprisonment.

Officer Garrett Miller is being charged with intentional assault in the second degree; assault in the second degree, negligent; misconduct in office; and false imprisonment.

Sergeant Alicia White is being charged with manslaughter, involuntary manslaughter, second-degree assault, misconduct in office.

This development could go a long way into bringing the United States more closely in line with global standards on policing. These standards include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, which state,

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;

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.”

There is still a long way to go before a punishment is leveled against the officers responsible for Gray’s death, but the filing of criminal charges is a promising first step.

Reaction to Baltimore uprising reveals deep double standards on violence in the U.S.

A demonstrator raises his fist as police stand in formation as a store burns during unrest following the funeral of Freddie Gray in Baltimore on Monday, April 27, 2015. Patrick Semansky—AP

A demonstrator raises his fist as police stand in formation as a store burns during unrest following the funeral of Freddie Gray in Baltimore on Monday, April 27, 2015. Patrick Semansky—AP

The general reactions to the uprising earlier this week in Baltimore, MD, reveal an almost schizophrenic attitude in the United States towards violence in general and police brutality in particular. Following the brutal arrest of unarmed black man Freddie Gray which resulted in his voice box being crushed, his spine being severed, his spleen being ruptured and ultimately his death, no officer has been fired, arrested, or prosecuted.

Yet, the focus of outrage seems to be more on the protesters rising up to demand change than on the unaccountable police whose brutality sparked the crisis.

It was especially revealing to witness CNN personality Wolf Blitzer wringing his hands over violence on the streets of Baltimore and criticizing the inability of law enforcement to stop looters:

“I don’t remember seeing anything like this in America in a long time,” he said, apparently forgetting all about the very similar riots that rocked Ferguson, MO, just a few months earlier over the non-indictment of killer cop Darren Wilson (riots covered extensively at the time by CNN).

Later, Blitzer attempted to browbeat a community organizer into confirming the narrative that the mainstream media is attempting to establish, namely that the primary concern in this situation is the unrest on the streets and not the systemic police violence that sparked the unrest.

On live television, he directly challenged activist DeRay McKesson to state unequivocally his condemnation of violence – again, not the violence of police but the violence of protesters. “I just want to hear you say that there should be peaceful protests, not violent protests, in the tradition of Dr. Martin Luther King,” Blitzer insisted.

“Yeah, there should be peaceful protests,” the community organizer replied. “And I don’t have to condone it to understand it, right? The pain that people feel is real.”

McKesson added: “And you are making a comparison. You are suggesting this idea that broken windows are worse than broken spines, right?” Trying to keep the discussion focused on the issue at hand, McKesson pointed out that “police are killing people everywhere.”

“They’re killing people here,” he said. “Six police officers were involved in the killing of Freddie Gray, and we’re looking for justice there. And that’s real. The violence the police have been inflicting on communities of color has been sustained and deep.”

Before this week’s riots broke out in Baltimore, there had been over a week of peaceful protests against the police murder of Freddie Gray, which naturally received nowhere near the media attention of the violent protests that ensued following the young man’s funeral on Monday.

Despite this media bias, there is a growing acknowledgement in the United States that its local police forces are generally out of control, killing and brutalizing unarmed civilians with impunity across the country, with a number of proposals for stemming the tide of wanton police brutality gaining traction.

Anti-police brutality activists marched 250 miles from New York to Washington DC, starting on April 13 and ending on April 20. Upon arrival at the nation’s capital, they delivered a “Justice Package” to Congress highlighting three pieces of legislation: the Stop Militarization of Law Enforcement Act, the Juvenile Justice Delinquency Prevention Act and the End Racial Profiling Act.

As March2Justice Co-Chair Tamika D. Mallory put it, “With every step we knew that we were moving closer to presenting our demands to the legislators who could respond to a national crisis with a national solution by making these bills law.”

While these measures are designed to prevent future tragedies, other campaigns are focusing on ensuring accountability for police killings that have already taken place. An email from ColorOfChange to supporters on April 29 noted that in Baltimore, “local officials haven’t provided answers to the most basic questions about why police violently arrested Gray in the first place or why ended up dead after just 45 minutes with Baltimore law enforcement.”

The email continues:

The lack of accountability for Gray’s killing is unacceptable and the solution to Baltimore’s policing crisis is not martial law or more militarized policing. Right now, we need widespread public pressure to ensure the necessary leadership and independent oversight to bring Gray’s killers to justice and overhaul the Baltimore Police Department. Without independent oversight it’s unlikely that Gray’s killers will be held accountable. Local prosecutors work too closely with police on a day to day basis to hold them accountable — and they almost never do. …

The best way to restore peace to Baltimore is for Governor Hogan and local leadership to undo the structural racism targeting its people. But right now, police are preparing to announce even harsher measures to crack down on the protests — like a curfew for youth — that will likely continue to escalate an already unacceptable level of confrontation and violence between police and citizens.

The group calls on people to send a letter to Maryland Governor Larry Hogan urging him to appoint Maryland Attorney General Brian Frosh to join the local investigation of Baltimore law enforcement responsible for Gray’s brutal death, noting that local district attorneys work too closely with police on a day to day basis to hold them accountable.

These measures – both the investigation into Baltimore law enforcement being urged by ColorOfChange and the more long-term preventive solutions being advocated by March2Justice – would go a long way into bringing the United States more closely in line with international norms on policing.

These norms include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, which state,

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.

  1. 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;

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.”

Further, Articles 2 and 3 of the International Code of Conduct for Law Enforcement Officials state unambiguously:

In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

It’s recently been coming more into focus just how out of step the United States is when it comes to respecting these norms. As the United Kingdom’s Independent newspaper pointed out on April 17,

Police in the US have have fatally shot people 298 more times than forces in the UK, which has consistently had two or fewer shootings a year since 2009 and fewer than seven shootings a year since 1990. According to some estimates, police in the US killed more people in March than police in the UK killed in the last century.

Iceland only experienced one fatal police shooting in 2013 – believed to be the first in the country’s history.

Our graphic, supplied by Statista, also shows a gaping hole in official FBI data, illustrated by the smaller of the two US circles. The FBI only reports shootings that are considered “justified”, defined by them as “the killing of a felon by a law enforcement officer in the line of duty”.

police shootings

It’s also noteworthy that the vast majority of these shootings were considered unjustified as demonstrated in this graphic:

unjustified police shootings

If opinion-shapers like Wolf Blitzer were really concerned about violence, these are the statistics he would harping on, and perhaps browbeating cops into condemning violence on his live TV show rather than activists.

Coalition pressures Congress on surveillance reform as UN establishes Special Rapporteur on privacy

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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.

capitol_nsa_surveillanceThe 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.

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Another year goes by with no prosecutions of Iraq War aggressors

On this 12th anniversary of the criminal U.S. invasion of Iraq, we can only dream that one day we'll see the aggressors on a perp walk to justice.

One day will we see the Iraq War aggressors on a perp walk to justice?

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.

bush torturePossibly 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.

Some groups are continuing this fight, for example War Criminals Watch, which has demonstrations planned this weekend in Washington and around the country.

U.S. government sued over mass surveillance, freedom of information and drone assassinations

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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.

UN slams U.S. on torture, indefinite detention, youth imprisonment and solitary

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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.”

Human rights groups including Amnesty International, the American Civil Liberties Union and Human Rights Watch, have issued harsh criticism of the U.S.’s practices of detaining immigrant 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.

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Ferguson report recalls U.S. obligations on policing and combating racial discrimination

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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.

  1. 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.”

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Leak cases’ double standards bolster political prisoner claims

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.

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