An official probe into the CIA’s use of a secret prison in Poland offers a grim reminder of one of the global war on terror’s darkest chapters – the use of Eastern European allies to assist in illegal extraordinary renditions and torture of suspected terrorists.
But the fact that the probe is being carried out by Polish authorities, with no comparable investigation by the U.S. government, offers perhaps an even starker reminder that democratic accountability is in some ways stronger in the former Soviet Bloc than it is in the United States of America.
Despite some feeble attempts from Congress to ensure greater oversight of the CIA’s program of clandestine prisons, there have been no investigations of possible violations of the law. An amendment to require reports on clandestine detention facilities was attached to the 2006 supplemental military spending bill, but as this amendment only required that classified reports be submitted to relevant congressional committees, did little to raise general public awareness of the issue.
A 2009 Senate review of the program promised to “assess lessons learned” but assured the CIA that employees who participated in the program would not be held to account. CIA Director Leon Panetta vowed to block “an inquiry designed to punish those who acted in accord with guidance from the Department of Justice.”
First revealed in November 2005 by the Washington Post, the clandestine network of CIA prisons was acknowledged by President George W. Bush in September 2006. At the time, Bush claimed that torture was not part of the program.
Investigations by the Council of Europe and the European Parliament, however, revealed that torture had been used extensively in the prisons.
While deploring “the concepts of state secrecy or national security” invoked by the United States to obstruct the investigation into “grave allegations of human rights violations,” the Council of Europe nevertheless ascertained that detainees in the prisons “were subjected to inhuman and degrading treatment, sometimes protracted.”
“Certain ‘enhanced’ interrogation methods used fulfil the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights and the United Nations Convention against Torture,” said the report.
A subsequent investigation by the European Parliament further confirmed the use of torture in the secret prisons. Following its investigation, the EP adopted a strongly worded resolution condemning the U.S. policies and the European governments that participated in the program.
“[E]xtraordinary rendition and secret detention involve numerous violations of human rights in particular violations of the right to liberty and security, the freedom from torture and cruel, inhuman or degrading treatment, the right to an effective remedy, and, in extreme cases, the right to life; whereas, in some cases, where rendition leads to secret detention, it constitutes enforced disappearance,” the resolution stated.
The EP reminded its member states that “the prohibition of torture is a peremptory norm of international law (jus cogens) from which no derogation is possible,” and criticized “European countries [that] may have received, knowingly or unknowingly, information obtained under torture.”
In Poland, the notion that the former Communist country would tolerate a secret CIA prison in which torture was being used was for years derided by the country’s politicians, journalists and the public as a crackpot conspiracy theory. Polish officials consistently denied the existence of any such prison.
But a string of recent revelations and political statements by Polish leaders appear to acknowledge for the first time that the United States did indeed run a secret interrogation facility for terror suspects in 2002 and 2003 in a remote region of the country.
As the AP reports, the debate within Poland is marked by a streak of disappointment that Washington had led the young democracy led astray both ethically and legally, and then abandoned the Polish government to deal with the fallout.
Polish Prime Minister Donald Tusk said March 29 that Poland has been the “political victim” of leaks from U.S. officials that brought to light aspects of the secret rendition program. He said that an ongoing investigation into the case demonstrates Poland’s democratic credentials and that Poland will not be used in the future for such clandestine enterprises.
“Poland will no longer be a country where politicians — even if they are working arm-in-arm with the world’s greatest superpower — could make some deal somewhere under the table and then it would never see daylight,” said Tusk, who took office four years after the prison was shuttered.
The Polish frustration with the United States follows a long-established feeling of disillusionment that first emerged in 2004 during the U.S.-led occupation of Iraq and the height of the Iraqi insurgency. As David Ost reported in The Nation magazine on Sept. 16, 2004,
George W. Bush has managed to do what forty-five years of Communist rule could not: puncture the image of essential American goodness that has always been the United States’ key selling point. Polish journalists now ask questions like, “How can we explain America’s transformation from a country that introduced international law to one that intervenes militarily wherever it likes?” Or, more plaintively: “Does it really pay to be America’s friend?” It is an astonishing turnabout: In more than twenty-five years of traveling to Poland I have never heard these kinds of criticisms.
Poland committed 2,400 troops to the U.S.-led occupation of Iraq, but Polish supporters of the war, such as Marek Beylin, chief of the editorial section of Gazeta Wyborcza, began wondering whether they were duped into cooperating with the United States.
“It seems we were naïve,” Beylin said in 2004. “It turns out they had no idea what to do with the Shiites, the Kurds, the resistance, the infrastructure. A superpower should be able to do this! That it can’t do it – this changes all our calculations.”
It appears now that Poland is following through on the recalculations it began making eight years ago, and choosing the rule of law over its alliance with the world’s lawless superpower.
“Poland is a democracy where national and international law must be observed,” Tusk said on March 29. “This issue must be explained. Let there be no doubt about it either in Poland or on the other side of the ocean.”
Tusk also pledged that Polish official involvement in activities by the CIA would be thoroughly scrutinized and prosecuted. He indirectly confirmed that his country’s former spy chief, Zbigniew Siemiątkowski, is facing criminal charges in connection with a probe by state prosecutors into the Polish role in CIA’s secret prison.
Poland’s prime minister at the time of the prison’s operation, Leszek Miller, has denied any knowledge of the CIA program in Poland.
Although many sordid details of the program have been public for years, the U.S. continues to not only fail to investigate those responsible, but also stonewall investigations by others, including Poland. The future of the investigation of Siemiątkowski is in some doubt, with the U.S. authorities refusing to cooperate with the investigation, reports the Polish newspaper Gazeta Wyborcza.
The refusal to cooperate with the investigation follows a well-established pattern by the administration of Barack Obama, who upon taking office in 2009 promised that he would “look forward as opposed to looking backwards” regarding crimes committed by the previous administration.
President-elect Obama said in Jan. 2009 that there should be prosecutions if “somebody has blatantly broken the law” but that CIA employees who participated in questionable policies of “extraordinary rendition” and “enhanced interrogation” should not be overly concerned.
“Part of my job,” he said, “is to make sure that, for example, at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”
In the three-plus years since then, it has become abundantly clear that those who may have engaged in unlawful interrogation or extrajudicial detention during the Bush years have nothing to worry about. In fact, the only CIA employees who have been prosecuted under the Obama administration are those who have attempted to blow the whistle on abuses at the agency.
The most recent example is that of John C. Kiriakou, a CIA agent made famous by his public opposition to waterboarding, who was indicted last week by a grand jury for leaking government secrets to reporters. Kiriakou is accused of giving journalists the name of another CIA operative and his role in the capture of al-Qaeda suspect Abu Zubaydah shortly after 9/11.
Abu Zubaydah is said to have been tortured in the CIA’s secret prison in Poland and is one of two individuals granted “victim status” by prosecutors in Warsaw. This will allow their lawyers to review evidence and question witnesses as part of the prosecutors’ investigation.
The indictment of Kiriakou is part of an aggressive Justice Department crackdown on leakers and is one of a half-dozen such cases opened during the Obama administration. Coupled with the administration’s refusal to cooperate with the Polish authorities in its investigation of secret CIA prisons, it appears to be part of a concerted effort to prevent any more details about this program from seeing the light of day.
Still, human rights activists and lawyers are coming to view Poland and its courts as one of the best chances to uncover the truth about U.S. rendition and torture in Eastern Europe.
“In Poland, the democratic system has turned out to be much more mature than in other countries,” said Adam Bodnar of the Polish Helsinki Foundation for Human Rights. “There’s a group of people — judges, prosecutors, journalists, some politicians — who take the constitution seriously.”
Considering the lack of any such seriousness on the other side of the Atlantic, the Polish investigation may also be Americans’ best hope for learning the truth about the CIA’s secret prisons, as well as its broader rendition and torture program.
The international community is voicing growing concern that the United States is violating a host of international obligations on the rights of minorities, including immigrants, indigenous people and African Americans. At the core of these concerns is a police culture that routinely disregards the rights of people of color, as seen in immigration enforcement practices in the American Southwest as well as recent high-profile cases such as the death of Trayvon Martin.
In the case of Trayvon Martin, self-appointed neighborhood watch captain George Zimmerman, a white Hispanic, fatally shot the 17-year-old African American inside a gated community in Sanford, Florida, on February 26. Despite audio recordings of a 911 call indicating that Zimmerman was aggressively pursuing the frightened youth in defiance of police instructions to back down, law enforcement accepted Zimmerman’s claim that he shot Martin in self-defense.
Zimmerman has not been arrested or charged in the incident, leading to a national uproar over the shooting and the botched police response. Rallies have been held across the country, drawing primarily African-American crowds but with significant multiracial support.
The incident has drawn comparisons to earlier killings of blacks that were treated with impunity, particularly that of Emmett Till, an African-American boy who was brutally murdered in Mississippi in 1955 at the age of 14 after being accused of flirting with a white woman. As the African-American lifestyle magazine Uptown pointed out,
Trayvon is Emmett Till.
Trayvon and Emmett were teenagers. Both were visiting relatives. Both were murdered by civilians. Both were missing for three days. But here is where Trayvon’s case takes a departure from Emmett’s: Emmett was accused, wrongfully, of course, of whistling at a white woman, and, thus, violating a white supremacist social more of that era. What did Trayvon do? Nothing. He was just there. Trayvon was killed simply for Being While Black.
In the peak of lynching in the United States, from 1882 to 1920, thousands of African Americans were murdered by vicious lynch mobs, crimes that were rarely if ever prosecuted. The memory of this history is at the heart of the movement for justice in the Trayvon Martin killing.
“No police have the power to be the judge, the jury and the legislature,” said Rev. Al Sharpton at a rally in Sanford last weekend. “We are not going back to the days when we were killed and nobody did nothing about it. There will be justice for Trayvon Martin.”
UN High Commissioner for Human Rights Navi Pillay weighed in on the case Thursday, calling for an “immediate investigation” into the circumstances surrounding the shooting.
“As High Commissioner for Human Rights, I call for an immediate investigation,” Pillay told reporters. “Justice must be done for the victim. It’s not just this individual case. It calls into question the delivery of justice in all situations like this.”
Highlighting the apparently two-tiered justice system in the United States, Pillay said that “the law should operate equally in respect of all violations. I will be awaiting an investigation and prosecution and trial and of course reparations for the victims concerned.”
The High Commissioner’s comments came just days after the release of an Amnesty International report that extensively documents the routine human rights violations of people of color in the American Southwest, in this case, immigrants and indigenous people.
The report describes the rise in anti-immigrant sentiment in the United States, which has been reflected in the explosion of new draconian laws across several states, including Alabama, Arizona and Georgia. As Amnesty documents, immigrants in the USA are increasingly facing discriminatory treatment from federal immigration officials, who are collaborating to a greater extent than ever with state and local law enforcement agencies.
Amnesty notes that the anti-immigrant sentiment is not only affecting undocumented migrants, but also legal residents in the United States. Citizens of indigenous nations and members of Latino communities who are U.S. citizens or lawfully reside in the USA are more likely to be harassed about their immigration status and to be detained for minor offenses as a pretext for checking their identity through the immigration system.
“While it is generally accepted that countries have the right to regulate the entry and stay of non-nationals in their territory, they can only do so within the limits of their human rights obligations,” reads the Amnesty report. “The US government has an obligation under international human rights law to ensure that its laws, policies and practices do not place immigrants at an increased risk of human rights abuses.”
The basis of human rights is the recognition of the inherent dignity and worth of every human being, Amnesty explains. “Under international law, all migrants without exception of any kind are entitled to: the right to life; the right not to be tortured or ill-treated; the right not to be subject to impermissible discrimination; the right to recognition before the law; and the right not to be subject to slavery.”
(The relevant legal framework cited include: ICCPR Art. 6; and Migrant Workers Convention Art. 9; ICCPR Art. 7; CAT Art. 2; and Migrant Workers Convention Art. 10.; ICCPR Art. 2(1), Art. 26; ICESCR Art. 2(2); CRC Art. 2(1); ICERD Art. 1(1); and CEDAW Art. 1.; ICCPR Art. 16; and Migrant Workers’ Convention Art. 24.; ICCPR Art. 8(1) & (2); and Migrant Workers Convention Art. 11(1)); ICCPR Art. 11; Migrant Workers Convention Art. 20(1)).)
The United States has ratified, and is therefore obliged to adhere to, many of these key human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Amnesty’s report, however, shows that the USA is failing in a number of its obligations under international law to ensure these rights as they pertain to the immigrant and indigenous communities in the Southwest. Among its findings:
- Recent immigration policy in certain border areas has pushed undocumented immigrants into using dangerous routes through the U.S. desert; hundreds of people die each year as a result.
- Immigration enforcement in the USA is a federal responsibility. Federal immigration officials are increasingly working in collaboration with state and local law enforcement agencies but improper oversight of state and local law enforcement has led to increased racial profiling.
- Increasingly, state laws and local policies are creating barriers to immigrants accessing their basic human rights, including rights to education and essential health care services. While these laws are targeting non-citizens, these policies are also impacting U.S. citizen children.
- Recent legislation enacted or proposed in several states targets immigrant communities and places them, Indigenous communities and other minority communities at risk of discrimination.
Perhaps the most notorious offender when it comes to respecting the rights of Latinos is Maricopa Country Sheriff Joe Arpaio, who long before his state of Arizona passed its draconian anti-immigrant law known as SB 1070, was already taking it upon himself to enforce federal immigration laws with whatever means he deems appropriate.
In 2009, he stated publicly that “he would continue to exercise authority to enforce federal immigration laws in the field,” citing a non-existent federal statute to justify immigration stops and inquiries.
The sheriff added that he “would drive those caught on the streets to the border if federal officers refused to take them into custody.”
His aggressive practices as sheriff include heavily armed raids of Latino communities in neighborhoods, fast food restaurants, elementary schools and low-income areas. Some have dubbed the tactics “brown hunting.”
To its credit, the federal government has taken on some of Arpaio’s more appalling abuses, with the Department of Justice launching an investigation of the sheriff in 2008 for racial profiling and various civil rights violations.
In December 2011, the Justice Department announced the findings of its three year investigation, concluding that Arpaio has committed an extensive array of civil rights abuses against Latinos, including a pattern of racial profiling and discrimination and carrying out heavy-handed immigration patrols based on racially charged citizen complaints.
The Justice Department said that Arpaio agreed to outside supervision, but a day before settlement negotiations were to begin, Arpaio refused to agree to a court-appointed monitor to oversee changes in his department, one of the Justice Department’s requirements.
“We believe that you are wasting time and not negotiating in good faith,” wrote Deputy Assistant Attorney General Roy L. Austin Jr. in a letter to Arpaio’s attorney. “Your tactics have required DOJ to squander valuable time and resources.”
The DOJ said that Arpaio’s refusal of a court-appointed monitor was a deal-breaker that would end settlement negotiations and result in a federal lawsuit.
The investigation of Arpaio and his department is one of 17 probes the Justice Department’s Civil Rights Division is conducting of police and sheriff departments — the most in its 54-year history. Other departments being investigated include those in New Orleans; Newark; Seattle; Puerto Rico; Portland, Ore.; and East Haven, Conn.
The DOJ has also promised to investigate the shooting of Trayvon Martin for possible civil rights violations.
While these DOJ investigations are welcome developments, a more comprehensive effort may be needed for the United States to bring itself into compliance with international humanitarian law as it pertains to minority rights, race relations and policing.
Among the recommendations that Amnesty International offers in its report include suspending all immigration enforcement programs pending a review by the Department of Homeland Security’s Office of Inspector General to determine whether the programs can be implemented in a nondiscriminatory manner.
The human rights group also calls on all state governments to ensure that their legislation respects immigrants’ rights including freedom from discrimination and the right to due process.
President Obama yesterday signed legislation to curb some of the more blatant corruption on Capitol Hill, in a move that government reform advocates are welcoming as a significant, yet limited, victory.
The Stop Trading on Congressional Knowledge (STOCK) Act for the first time affirms that members of Congress and staff are not exempt from insider trading laws and mandates that lawmakers and certain government employees report some investments within 45 days of making the trade.
It also prohibits them from enjoying special access to initial public offerings and requires that they notify their ethics offices when negotiating for a private-sector job.
The version of the legislation passed by the Senate included an amendment that would have required insiders who collect political intelligence and sell it to corporate America to register under lobbying disclosure laws. It also contained the bipartisan Leahy-Cornyn amendment that would have given law enforcement certain tools to detect and prosecute public corruption and would have prevented public officials from accepting gifts given because of their government positions. It would have also provided for prosecution of public officials who accept private compensation.
But House Republicans stripped these provisions from their version of the bill. The Senate then passed the House’s bill, which is the version Obama then signed into law.
“The version of the STOCK Act signed today is only a shadow of the strong bill initially passed by the Senate,” said Citizens for Responsibility and Ethics in Washington (CREW) in a statement yesterday. “Unfortunately, the House dropped the strongest provisions from the Senate-passed bill, which would have strengthened the ability of prosecutors to target public corruption.”
The legislation Obama signed yesterday goes a long way towards bringing the United States into compliance with the UN Convention against Corruption, ratified by the U.S. Senate in 2006, but could have gone a lot further. As the Convention states:
Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest …
Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials …
However, the STOCK Act still doesn’t address one of the most important provisions against corruption, preventing the “revolving door” practices in Washington, in which corporate insiders go to work in the public sector regulating the companies they once ran, and then after their “public service,” end up back at those very same companies. This practice is prohibited under the Corruption Convention which calls on states parties to adopt legislation that
Prevent[s] conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.
The STOCK Act was first introduced in 2006, but Congress only moved on it following a “60 Minutes” report on congressional insider trading. The report documented that members of Congress bought stock in companies during debates on legislation that might affect the businesses. Studies have shown that congress members’ stock trades perform 6-12 percent better than the market average.
The adoption of the legislation also comes amid a mounting public outcry over government corruption, particularly in relation to corporate influence over government agencies such as the Food and Drug Administration and the Environmental Protection Agency, as well as the corporations that wield disproportionate power over those agencies.
In particular, opposition is growing in the U.S. and worldwide to the biotechnology giant Monsanto and its influence over public policy, including in Congress and the White House, as well as the FDA which is charged with regulating the company.
In a report on the growing worldwide resistance to Monsanto released yesterday, Via Campesina documents how handsomely Monsanto’s lobbying efforts and campaign contributions have paid off in the United States:
The US – which produces 45% of GM crops worldwide – has rewarded Monsanto’s White House lobbying efforts by promoting its seed technology both nationally and internationally.
Between January 1999 and June 2010, Monsanto spent over US$50 million on lobbying Congress and various government agencies,including on the regulation of GM crops, patent protection reforms and subsidies. …
According to the non-profit alliance of Public Employees for Environmental Responsibility (PEER), the US government has been collaborating with Monsanto to secure agricultural export markets, removing barriers to the spread of GM crops, including into national wildlife refuges.
The report goes on to describe the intensifying efforts to roll back the company’s sway over public officials:
In one of the most recent battles to disrupt the US government’s relationship with Monsanto, environmentalists and lawyers launched an initiative to prevent Monsanto’s GM crops contaminating national wildlife refuges. ..
[L]egal battles led by PEER and the Centre for Food Safety (CFS) forced the US Fish & Wildlife Service (FWS) to end the planting of GM crops in 12 states.
In addition to legal battles, Americans have also taken to the streets against the biotech giant with direct action and street theater. Last month, members of the “Genetic Crimes Unit” of Occupy Monsanto took the case against Monsanto to the Expo West Natural Products trade show in Anaheim, Calif.:
Also last month, protesters shut down Monsanto’s Davis, Calif., offices for a day. According to the organizers, the objective of the protest was to bring local awareness to Monsanto’s control and involvement with toxins in food and water supplies and expose its ties to the government.
In New York, the Occupy Wall Street movement has continued to protest the nexus of finance and politics with a major Stock Exchange demonstration on March 30. Demonstrators marched through Manhattan and converged on the New York Stock Exchange at the end of the business day.
As Mark Bray of OWS stated, “The closing bell of the stock exchange symbolizes the prioritization of economics over politics in our society, the fact that our politicians are more beholden to these institutions than to the people they are supposed to represent.”
Last week in Washington, demonstrators turned their attention to corruption at the Environmental Protection Agency, marching to its headquarters in what was called the largest protest ever against the agency. Calling for EPA Administrator Lisa Jackson to resign due to failure to treat employees fairly or adequately protect the environment, the Occupy EPA protesters also demanded increased nuclear regulation and an end to hydraulic fracturing, or fracking, for oil and gas.
The EPA has carved out an exemption from the Clean Water Act for corporations like Halliburton to engage in fracking, having concluded that “the injection of hydraulic fracturing fluids into CBM wells poses little or no threat” to drinking water, despite mountains of evidence to the contrary. Whistleblowers who have pointed to corporate influence over these policies have been aggressively pursued by the EPA, with some, such as Jon Grand, landing in prison.
Despite a 2002 law designed to protect government whistleblowers, demonstrators on Friday said that the EPA continues to discriminate against those who expose corruption within the agency.
The Friday demonstration was the first of a series of planned actions this spring dubbed the National Occupation of Washington D.C., or NOWDC. Other activities include a demonstration at the Department of Education and a protest of the Justice Department in support of U.S. prisoner of conscience Bradley Manning, the Army private accused of treason for providing embarrassing state secrets to WikiLeaks.
Click here for a full listing of actions this spring.
In a resolution introduced in the U.S. House of Representatives last week, co-sponsors Michael McCaul (R-TX) and Jim Langevin (D-RI) raised alarms over a potentially freedom-crushing threat to the Internet posed by the United Nations, being led by global cabal of “Internet enemies.”
“Expressing the sense of Congress that the United States should preserve, enhance, and increase access to an open, global Internet,” the resolution warns of a proposed “international code of conduct” on Internet governance being pushed by four authoritarian states: China, Uzbekistan, Tajikistan and Russia.
The proposed code of conduct “seeks to establish international legal justification for exclusive government control over Internet resources and rejects the current multi-stakeholder model that has enabled the Internet to flourish,” states McCaul’s and Langevin’s congressional resolution.
They therefore call on the U.S. Permanent Representative to the United Nations to oppose any such attempt to impose Internet restrictions.
“Any action taken by the United Nations to attempt to limit Americans’ right to free and open Internet content is unacceptable,” said McCaul in a press release.
So what is this dire threat to online freedom posed by the UN that McCaul and Langevin are so very concerned about?
At issue is an “International Code of Conduct for Information Security” proposed to the UN General Assembly by China, Uzbekistan, Tajikistan and Russia in September.
The draft resolution proposes a voluntary 12 point code of conduct based on “the need to prevent the potential use of information and communication technologies for purposes that are inconsistent with the objectives of maintaining international stability and security and may adversely affect the integrity of the infrastructure within States.”
But despite McCaul’s and Langevin’s characterization of the proposed code as an attempted power grab by the UN to limit Americans’ right to “free and open Internet content,” language in the draft resolution makes clear that “adherence to this Code is voluntary,” and appears primarily concerned with nation-states’ ability to defend themselves from cyber attacks by other countries.
“Each State voluntarily subscribing to this Code pledges to comply with the UN Charter and universally recognized norms governing international relations,” it reads.
While the non-binding nature of the proposed code belies the hysteria of McCaul’s and Langevin’s warning of a UN takeover of the Internet, there are indeed legitimate concerns, which were articulated in September by the Civil Society Internet Governance Caucus, a global coalition that serves as a forum for discussion, advocacy, action, and for representation of civil society contributions in Internet governance processes.
“What we miss in the proposed code of conduct,” the coalition stated in an open letter to the president of the UN General Assembly, “is any reference to the multistakeholder approach … and the role of civil society in strengthening the security and stability of the Internet as proposed by the Code of Conduct.”
In particular, three paragraphs of the proposed code of conduct raise serious concerns over Internet governance and human rights, according to the coalition. Paragraph (g) underlines the need to establish “a multilateral, transparent and democratic Internet management system to ensure an equitable distribution of resources, facilitate access for all and ensure a stable and secure functioning of the Internet.” This should be done only by involving all stakeholders, including civil society, says the Internet Governance Caucus.
The group also raised concern about Paragraph (d), which also “excludes civil society which plays an important role in the creation of a culture of information security.”
“We welcome the commitment, in Paragraph (a) of the letter, to the Charter of the United Nations,” says the Caucus, “including ‘respect for human rights and fundamental freedoms’, but would like to caution that the reference to ‘respect for the diversity of history, culture and social systems of all countries’ might be interpreted as diminishing the commitment of the UNGA to the universality of human rights.”
The group also warns that the language of Paragraph (c) “exceeds the permissible limitations on the freedom of expression outlined in Article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR),” and could be easily interpreted by governments as allowing them to severely limit within their countries the right to freedom of expression.
Due to the concerns over human rights and freedom of expression, the Internet Governance Caucus urged the UN committee that might take up this proposed code of conduct to give second thought to advancing the document any further. It is unclear at this point whether the non-binding proposed code of conduct will even come up for a vote in the General Assembly.
Nevertheless, McCaul’s and Langevin’s characterization of it would lead most people to believe that it poses a clear and present danger to online freedom.
Their March 27 press release, entitled, “McCaul, Langevin Lead Bipartisan Effort to Prevent International Internet Regulations,” implores the United States to “oppose any resolution that would allow regulation of the Internet.”
“The proposals by some nations to gain international approval of policies that could result in Internet censorship would be a significant setback for anyone who believes free expression is a universal right,” said Langevin.
But as McCaul and Langevin warn against a largely imaginary threat to freedom posed by a non-binding, voluntary draft code of conduct for information security, the United States is continuing to push for a legally binding treaty that could severely cripple Internet freedom in a very concrete way.
Last month, President Barack Obama reiterated his administration’s commitment to enacting the Anti-Counterfeiting Trade Agreement (ACTA), aimed at curbing global piracy, despite a vote by the European Parliament calling for greater transparency in the deal’s negotiations.
During remarks at the Export-Import Bank’s annual conference, the president discussed the need to “aggressively protect” U.S. intellectual property.
“There’s nothing wrong with other people using our technologies, we welcome it — we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately,” Obama said. “That’s why [the Office of the U.S. Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement.”
ACTA seeks to establish new standards for enforcing a wide range of intellectual property rights, including trademarks, copyrights and patents. It has come under fire, however, from inter-governmental organizations, human rights groups and Internet freedom advocates for placing undue restrictions on the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.
In a letter to the President of the European Parliament, Martin Schulz, OSCE Representative on Freedom of the Media Dunja Mijatović urged the Parliament in February to safeguard free expression when discussing ACTA.
Mijatović warned about the dangers of placing the interests of rights holders above the fundamental right to freedom of expression and the right to privacy.
“In my role as the OSCE Representative on Freedom of the Media, I am mandated to observe media freedom developments in the OSCE participating States and am concerned that the present agreement on ACTA might have a detrimental effect on freedom of expression and a free flow of information in the digital age,” Mijatović wrote in her letter.
She highlighted a number of concerns, including that ACTA would authorize online service providers to disclose personal information of alleged copyright infringers to rights holders without a court order or the right to appeal, which would place the decision on the legal status of content outside the established judicial framework. Furthermore, these provisions would not provide for any guarantees of the right to privacy or the free flow of information, she said.
Amnesty International has also called on the EU to reject ACTA, warning that “implementing the agreement could open a Pandora’s box of potential human rights violations by doing away with due process and front-loading the requirement to enforce its provisions.”
The Electronic Frontier Foundation (EFF) noted that “While it was only negotiated between a few countries, it has global consequences. First because it will create new rules for the Internet, and second, because its standards will be applied to other countries through the U.S.’s annual Special 301 process.”
Negotiated secretly, ACTA bypassed the checks and balances of existing bodies, without any meaningful input from national parliaments, policymakers, or their citizens. This was largely part of the strategy pursued by the United States, as exposed by WikiLeaks.
In a diplomatic cable allegedly provided to WikiLeaks by U.S. prisoner of conscience Bradley Manning, the U.S. trade representative chief negotiator Stanford McCoy stressed to Japanese counterparts in 2006 that ACTA “should be a freestanding agreement, not related to any international grouping such as the G-8 or OECD, which might make it more difficult to construct a high-standards agreement.”
Essentially, the U.S. has tried to keep ACTA’s secret negotiations as far from the public spotlight as possible and outside of any existing international legal framework.
“Both in substance and in process,” EFF says, “ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.”
Even Forbes magazine, the influential publication of the jet-setting class, offered a warning in January against the potential effects of ACTA:
Few people have heard of ACTA, or the Anti-Counterfeiting Trade Agreement, but the provisions in the agreement appear quite similar to – and more expansive than – anything we saw in SOPA. Worse, the agreement spans virtually all of the countries in the developed world, including all of the EU, the United States, Switzerland and Japan.
Many of these countries have already signed or ratified it, and the cogs are still turning, with the final real fight playing out in the EU parliament.
The treaty has been secretly negotiated behind the scenes between governments with little or no public input. The Bush administration started the process, but the Obama administration has aggressively pursued it.
Indeed, we signed ACTA in 2011.
Because the treaty supersedes the laws of participating nations, including the United States, it is generally agreed by constitutional experts that it must be submitted to the U.S. Senate for ratification before it becomes legally binding.
In quietly signing ACTA on October 1, 2011, however, Obama claimed that it was an “executive agreement” which does not require Congressional approval. Constitutional scholars Jack Goldsmith and Larry Lessig, however, disputed this claim:
The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which it charges with making laws that regulate foreign commerce and intellectual property.
Sen. Ron Wyden (D-OR) has also questioned the power of the executive to enter into the agreement.
“It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law,” he wrote. “But regardless of whether the agreement requires changes in U.S. law … the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.”
Considering all of these legitimate concerns over ACTA, it is interesting that Michael McCaul and Jim Langevin would focus their attention on a non-binding resolution proposed to the UN General Assembly seven months ago that if adopted, would have no legal effect on United States or any other country.
Could it be that the congressmen are attempting to whip up hysteria over a non-issue such as a voluntary code of conduct proposed by China, Uzbekistan, Tajikistan and Russia, while diverting attention from a very real and pressing concern on a matter that would directly affect U.S. policy governing the Internet?
It’s not easy to say, but it is rather curious that McCaul’s and Langevin’s dire warning about the UN resolution came out on the very same day as the European Parliament’s trade committee decided not to refer ACTA to the European Court of Justice. Campaigners against ACTA hailed this decision as a success, saying that the plan to send the deal to the ECJ had been nothing more than a stalling tactic.
The March 27 decision of the committee means that the proposed deal could be put before the whole Parliament as soon as June, avoiding a possible delay of about 18 months for a court decision.
The Progressive Alliance of Socialists and Democrats (S&D) in the European Parliament said that Parliament should reject ACTA immediately rather than postponing its decision by referring it to the court.
“Today’s decision not to ask for legal advice from the Court of Justice is the first sign that this Parliament is ready to reject ACTA,” said S&D spokesman Bernd Lange. “It was a mistake from the beginning to put counterfeit goods and Internet content in the same agreement. The European Parliament was not involved in the negotiations and now we are asked to say either yes or no, without the possibility of amending the shortcomings. We cannot support the text as it is.”
“ACTA will probably be buried before the summer,” he added.