Archive | June 2013

U.S. obligations on elections undermined by Supreme Court’s decision on the Voting Rights Act

Today’s Supreme Court decision striking down key sections of the 1965 Voting Rights Act will likely result in restrictive voter registration laws, racial gerrymandering and stringent identification requirements that could push the U.S. further out of step with international standards for democratic elections.

Judging by recent trends, especially those seen in the last election cycle, it’s almost a guarantee that these voter suppression tactics will become more common throughout the country, and without the VRA’s important protections for minority voters, courts will not have jurisdiction to strike down these unfair laws.’s Lyle Denniston explained the Supreme Court’s decision in a blog post today:

** Section 4, which lays out the formula that will automatically bring a state or local government within the coverage of the law’s special obligations for states with a history of racial bias, was found unconstitutional as a violation of the Constitution’s guarantee of equality among the states.  The Court said the formula, based on data more than forty years old, was seriously out of date and did not reflect “current conditions” anywhere in the country.    “Congress may draft another formula based on current conditions,” the Court said.

** Section 5, which requires state and local governments selected under Section 4 to get official clearance in Washington before they may implement any change in their voting laws or procedures, however minor, was left on the books, but with a somewhat ominous statement that the Court simply was issuing “no holding” on that provision.  That provision is now scheduled to expire in 2031, but it can only apply to states or local governments that are specifically drawn in under it.

** Section 2, which the Court said was affected “in no way” by the decision, applies permanently to every state and local government across the nation, forbidding discrimination in voting, but the government or a private challenger must prove that in each case, one at a time.

While the opinion did not judge Section 5 itself unconstitutional, Roberts’ opinion in condemning the obligations on covered jurisdictions called into question the provision’s validity. As Denniston explained, it appeared that after extensively reciting constitutional grievances about the law’s main provisions, Chief Justice John Roberts — in order to hold together all of the five-Justice majority — narrowed the final focus to the validity of the Section 4 coverage formula.

“This is a devastating blow to those of us that need that protection, especially given the voter suppression schemes that we saw in 2012,” said civil rights activist Rev. Al Sharpton following the ruling.

Although a narrow majority of Supreme Court Justices are now proclaiming that the 1965 law is outdated and that it unfairly singles out certain states, the fact is that more lawsuits were brought under the Voting Rights Act from 2010-2012 than in the previous 45 years combined. The Obama administration used the Voting Rights Act in the last election cycle to counter a wave of Republican measures that included strict voter ID requirements, redistricting maps and new ballot formats.

One of the most substantial victories for fair elections was the striking down of Texas’s heavily gerrymandered congressional district maps, which had been adopted by the Republican-dominated Texas legislature following the 2010 census. A U.S. federal court ruled in August 2012 that the maps redrew districts in a way that reduced the influence of minority voters, and specifically discriminated against black and Hispanic voters.

In another major victory, a federal court in Florida blocked key provisions of a state law that sought to discourage voter registration drives in the state. In a June 2012 ruling, the judge wrote that Florida’s restrictive law “make[s] voter registration drives a risky business. If the goal is to discourage voter registration drives and thus make it harder for new voters to register, the 48-hour deadline may succeed.”

But perhaps the most widespread issue in the last election was the rash of voter ID laws that were adopted around the country, but were largely struck down by the courts. In a brief filed last August, Republican attorneys general from six states covered by Section 5 complained that the Voting Rights Act prevented them from implementing stringent identification requirements to suppress minority voters. Two of those states, South Carolina and Texas, conceded that the Voting Rights Act stopped them from implementing a voter suppression law their governors had already signed.

Considering how important the law has proven in recent years, Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos, wrote today that the Supreme Court’s decision was “a setback for democracy.”

Unfortunately, today’s decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk.  There is overwhelming evidence that unfair voting rules remain a very real threat—too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

Due to today’s decision, protecting voting rights now will be more expensive and slower.  We will miss a lot of under-the-radar manipulation.  It also will be tougher to stop unfair rules before they are actually used in elections and harm voters.   The biggest problem will be the under-the-radar manipulation of election rules for local offices that are often non-partisan and escape national attention—over 85% of all election rule changes rejected as unfair under Section 5 were at the local level.

In its final report on the 2012 U.S. election, released on Feb. 13, the OSCE Office for Democratic Institutions and Human Rights explained the history and purpose of the Voting Rights Act.

The 1965 Voting Rights Act (VRA) is the earliest piece of federal electoral legislation. It aims to protect the rights of racial and linguistic minorities by prohibiting voting practices and procedures that have either discriminatory intent or impact. Section 5 of the VRA requires certain jurisdictions with a history of discrimination to obtain administrative or judicial pre-clearance of changes to their electoral laws and regulations from the Department of Justice or the federal district court in the District of Columbia. In such cases, the burden of proof lies with the jurisdiction that introduces legislation. The VRA foresees a mechanism for jurisdictions to obtain termination of the preclearance requirement.

The OSCE further noted that the VRA was instrumental last year in striking down a number of state laws that would have drastically curtailed the right to vote:

The majority of electoral disputes in this election cycle pertained to new legislation regarding voter identification, early voting, redistricting, and provisional ballots. Texas and South Carolina voter identification laws were denied both administrative and judicial pre-clearance under the VRA. While Texas law was found by a federal court to impose strict burdens on racial minorities, the South Carolina law was upheld but its enforcement was delayed until 2013 due to the short timeframe before the general elections. Outside of the VRA coverage, lawsuits were filed against a voter identification law in Pennsylvania, where it was decided that the law could not be implemented in the short time before the elections, and Wisconsin, where a decision is expected in 2013. Courts reinstated early voting that was curtailed by state laws in Ohio and Florida.

Now, with the key provisions of the VRA struck down, it will be far more difficult to ensure that various schemes to suppress the vote are defeated. As the Leadership Conference on Civil Rights put it,

The Constitution is clear that Congress has complete authority to ensure that no voter is denied the right to vote on account of race. That authority is vital to protecting our democracy. While we have made many strides as a country in extending the franchise to all, the weight of the evidence is clear: discrimination in voting remains a troubling and persistent practice in too many places.

The Voting Rights Act is the most successful and important piece of civil rights legislation of the 20th Century – and its work is still far from over.  Jurisdictions across the country, large and small, continue to purge voter rolls, move polling places, and otherwise dilute, pack, suppress or gerrymander away the rights of voters.  Section 5 of the Voting Rights Act has been the single most potent deterrent our nation had to protect them, and it must continue to perform that important function.

It could also be argued that by enabling voter suppression practices that have become so common in recent years, the Supreme Court is pushing the U.S. further out of compliance with its international obligations on fair elections. As a party to the 1990 OSCE Copenhagen Document, the United States has agreed to certain provisions in carrying out democratic elections, including the following:

To ensure that the will of the people serves as the basis of the authority of government, the participating States will

(7.1) — hold free elections at reasonable intervals, as established by law;

(7.2) — permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;

(7.3) — guarantee universal and equal suffrage to adult citizens;

In its assessments of U.S. elections based on its extensive election observation activities, the OSCE has consistently called into question the U.S. commitment to paragraph 7.3 of the Copenhagen Document, particularly in regards to the disenfranchisement of convicted felons and the residents of the District of Columbia.

As the OSCE noted in its final report on the 2012 election,

Consideration should be given to providing full representation rights in Congress for citizens resident in the District of Columbia and US territories, in line with paragraphs 7.3 and 24 of the 1990 OSCE Copenhagen Document.


Restrictions of voting rights for prisoners and ex-prisoners should be reviewed to ensure that any limitation is proportionate to the crime committed and clearly outlined in the law. Federal legislation could be considered to provide consistency in restrictions to federal voting rights. Authorities should take effective and timely measures to facilitate the restoration of voting rights after a prison term has been served.

Criticizing the cumbersome voting registration system in the United States, the OSCE recommended that,

Authorities should review existing measures to register voters so as to ensure that all persons entitled to vote are able to exercise that right. States should consider further efforts to facilitate the registration of voters, including through civic education programmes. States could consider possibilities for automatic registration based on existing state and federal databases, thereby removing the need for citizens to proactively register.

With the new restrictions on voting rights that will surely emerge now that the Supreme Court has struck down key provisions of the Voting Rights Act, the U.S. lack of compliance with its international obligations will likely only get worse.

To join the campaign to restore the Voting Rights Act, click here.

New laws bring U.S. closer to respecting international norms on sentencing children

Laws being adopted across the United States, including in Delaware, Wyoming and Indiana, are bringing the United States closer to respecting international norms in the treatment of children in the criminal justice system.

On June 4, 2013, Delaware Governor Jack Markell signed Senate Bill 9, which eliminates juvenile life imprisonment without possibility of release by providing for new reviews of sentences of all children who are sentenced to more than 20 years in prison.

In February, the Governor of Wyoming signed a law that abolishes life-without-parole sentences for children. The law, taking effect on July 1, 2013, provides that a minor sentenced to life imprisonment is eligible for parole after serving 25 years. The new law further empowers the governor to commute a life sentence imposed on a juvenile to a term of years.

Another bill adopted by the Connecticut House of Representatives in May effectively abolishes juvenile life without parole. For people serving prison sentences for crimes committed when they were 14 to 17 years old, the bill allows for a parole hearing after 12 years in prison or 60% of their sentence.

An Indiana law, spurred by a 2010 case which resulted in 12-year-old Paul Henry Gingerich being sent to an adult prison for 30 years, gives judges new sentencing options for children under 18 in the state’s criminal courts. It goes into effect July 1.

Gingerich’s case garnered international attention and sparked questions about whether children belong behind bars with grown-up offenders. Some noted that the United States stands nearly alone in the world in sending children to adult prisons.

The UN Convention on the Rights of the Child, a treaty that’s been ratified by every country in the world except the United States and Somalia, spells out the basic human rights of children everywhere, noting in particular certain standards that should be applied to children in the criminal justice system:

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

While the U.S. has not subscribed to the treaty and it is therefore not binding on the U.S. government, the Convention falls under the rubric of “customary international law,” defined by Article 38 (1) of the Statute of the International Court of Justice as “General Principles of Law recognized by civilized nations.”

While Gingerich remains in prison awaiting a critical court hearing, his case has already had a profound impact on how juveniles tried as adults may be punished.

The law signed by Indiana Gov. Mike Pence in April gives judges more discretion in keeping young offenders out of the adult prison system and to put them instead into juvenile detention facilities where they can be rehabilitated while serving their sentence.

In Indiana, children as young as 10 can tried as adults. Gingerich was 12 when he was arrested in the shooting death of 49-year-old Phillip Danner of Cromwell, along with Danner’s 15-year-old stepson. The defense argued Gingerich had been bullied into the crime by the older teen.

While Gingerich’s case received substantial attention, it is not unique, with children tried and sentenced as adults in U.S. courts with troubling frequency.

A 2009 report, “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” found that more than half of U.S. states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.

The report noted that the United States stands nearly alone in the world in its harsh treatment of young children:

Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.

Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.

The recent spate of laws, largely adopted in response to the U.S. Supreme Court decision in Miller v. Alabama which struck down mandatory life-without-parole sentences for children, are a welcome if overdue development. While the U.S. still has a long way to go in developing its human rights legal framework, the ongoing legal reforms are a step in the right direction, and of course, good news for the children serving time in adult prisons.

children adult prisons

International outcry over NSA mass surveillance calls U.S. credibility into question

1000415_10152890132590346_1147369254_nThe world is reacting with alarm to revelations that the United States has been committing wholesale violations of privacy rights on a global scale, particularly through its PRISM initiative which was revealed to be targeting personal data of web users by accessing the servers of major internet companies.

The intense international reaction threatens to complicate U.S. bilateral and multilateral relations, and could pose legal problems for the U.S. government. It also calls into question the United States’ claimed leadership on internet freedom.

The PRISM program, as revealed by a set of leaked top-secret PowerPoint slides, enables the NSA to obtain private emails and other user data directly from the servers of companies such as Google, Microsoft, Facebook, and Yahoo. While much of the controversy in the United States revolves around Americans’ privacy rights and possible violations of the Constitution’s Fourth Amendment, the scope of the PRISM story is actually global.

As Ryan Gallagher at explains,

The existence of PRISM provides vindication for privacy advocates worldwide who have been voicing alarm about the U.S. government’s ability to conduct mass surveillance of foreigners’ communications sent and received using services like Google’s Gmail and Microsoft’s Hotmail and Skype. Earlier this year, a prescient report produced for the European Parliament warned that the U.S. Foreign Intelligence Surveillance Act had authorized “purely political surveillance on foreigners’ data” and could be used to secretly force U.S. cloud providers like Google to provide a live “wiretap” of European users’ communications.

That appears to be precisely what PRISM enables. NSA agents can reportedly use the system to enter search terms into a “Web interface” that allows them to request and receive data—some of it in real time—from one or all of the participating companies. Director of National Intelligence James Clapper has confirmed that it operates under a controversial section of FISA that authorizes broad surveillance of non-U.S. persons—from foreign government agents, to suspected terrorists, and “foreign-based political organizations,” a vaguely defined category that could feasibly be used to target journalists and human rights groups.

The European Commission on Monday expressed concern about the U.S. internet snooping, saying in a statement it would be demanding more information from U.S. officials regarding the program. “This case shows that a clear legal framework for the protection of personal data is not a luxury or constraint but a fundamental right. This is the spirit of the EU’s data protection reform,” said EU justice commissioner Viviane Reding, who urged ministers to push through new privacy reforms.

On Tuesday, the  Commission outlined plans to raise the PRISM matter with U.S. authorities “at the earliest possible opportunity” and will “request clarifications as to whether access to personal data within the framework of the PRISM program is limited to individual cases and based on concrete suspicions, or if it allows bulk transfer of data.”

Finnish communications minister Pia Viitanen more bluntly claimed that the National Security Agency is likely breaking the laws of Finland. Viitanen said she plans to take up the issue with the European Commission, and several European countries are apparently considering unleashing Neelie Kroes, the feared European Commissioner for the Digital Agenda, in an effort to fight back against the PRISM program.

The German government is also demanding explanations from the U.S. after it emerged that PRISM has been collecting more information from Germany than any other EU country. German Chancellor Angela Merkel is expected to raise the issue when she meets with President Obama in Berlin next week.

German justice minister Sabine Leutheusser-Schnarrenberger wrote that the reports about PRISM are “deeply worrying” and “dangerous.” She took issue with Obama, who recently said that it’s not possible to have 100 percent security and 100 percent privacy at the same time.

“I do not share this view,” she wrote at Spiegel Online. “A society is less free, the more its citizens are being surveilled, controlled and scrutinized. In a democratic system, security is not an end itself, but a means to ensure freedom.”

The Swiss are also raising alarms about the NSA’s hacking activities on their territory, concern that has been compounded by other revelations shared by whistleblower Edward Snowden about CIA agents engineering a drunk driving incident in Switzerland as part of an alleged blackmail ploy.

“What is really very serious is that [US] agents are active on foreign territory, and violate the laws of the country where they are,” former Swiss parliamentarian and prosecutor Dick Marty told public radio on Monday. “This is not the first time they have done this, and I must say that they have been spoiled by the Swiss. For too long Switzerland has tolerated CIA agents doing more or less whatever they wanted on our territory.”

Further, U.S.-based internet companies that are cooperating with the NSA under the PRISM program could face legal action in the European Union. Companies that operate in the EU and serve citizens of the bloc are subject to its relatively strict privacy laws, which limit the actions of companies that collect data, and require them to be clear about how it will be used and to whom it could possibly be disclosed.

On Tuesday, the European Commission warned U.S. tech companies that they must adhere to EU law or face the consequences. “Non EU companies when offering goods and services to EU consumers will have to apply the EU data protection law in full,” said the Commission.

“U.S. companies that have gathered personal data from Europeans, such as Facebook, and then given access to U.S. government agencies are in something of a bind,” says Ian Brown, senior research fellow at Oxford University’s Internet Institute. “They had no choice but to obey U.S. surveillance law, but may well now face legal challenges in European courts.”

A statement was delivered by the Association for Progressive Communications on Monday to the Human Rights Council on behalf of civil society regarding the impact of state surveillance on human rights. The statement read, in part,

We express strong concern over recent revelations of surveillance of internet and telephone communications of US and non-US nationals by the government of the United States of America and the fact that US authorities makes the results of that surveillance available to other governments such as the United Kingdom. Of equal concern is the indication of apparent complicity of some US-based Internet companies with global reach.1 These revelations suggest a blatant and systematic disregard for human rights as articulated in Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR), as well as Articles 12 and 19 of the Universal Declaration of Human Rights.

The civil society statement reminded the Human Rights Council that it unanimously adopted Resolution 20/8 last year, which “Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression.”

But during the current session of the Human Rights Council, the Special Rapporteur on Freedom of Expression, Frank La Rue, reported worrying new trends in state surveillance of communications with serious implications for the exercise of the human rights to privacy and to freedom of opinion and expression.

La Rue noted that inadequate and non-existent legal frameworks “create a fertile ground for arbitrary and unlawful infringements of the right to privacy in communications and, consequently, also threaten the protection of the right to freedom of opinion and expression.”

Human Rights Watch noted this week that the recent revelations of NSA surveillance are impinging on privacy in ways that were unimaginable just a few years ago. “There is an urgent need for the U.S. Congress to reevaluate and rewrite surveillance laws in light of those technological developments and put in place better safeguards against security agency overreach,” HRW said.

The human rights group expressed particular concern over the total lack of concern for the rights of non-U.S. citizens:

Human Rights Watch is deeply troubled by the apparent lack of any consideration by the US government for the privacy rights of non-US citizens. The US Constitution may have been interpreted to grant privacy rights only to US citizens or people in the United States, but international human rights law recognizes that everyone is entitled to respect for their privacy. With so many electronic communications traveling through the United States, the lack of any regard for the privacy rights of non-US citizens raises very troubling concerns. …

Human Rights Watch also expressed concern about the precedent these programs might set globally because they could give other governments a rationale for adopting widespread and arbitrary surveillance of phone and Internet activity.

“The U.S. government’s credibility as an advocate for Internet freedom is at serious risk unless it ensures that privacy is protected along with security and acts with much greater transparency,” said HRW executive director Kenneth Roth. “There is a real danger that other governments will see U.S. practice as a green light for their own secret surveillance programs. That should be chilling to anyone who goes online or uses a phone.”

When the initial story broke last week of the U.S. government collecting metadata on the communications habits of millions of Americans, Obama attempted to downplay the domestic controversy and quell concerns over possible constitutional violations by reassuring Americans that it was aimed not at U.S. citizens but at the other 95 percent of the world’s population.

“With respect to the Internet and emails, this does not apply to U.S. citizens and it does not apply to people living in the United States,” the president said, strongly implying that the other seven billion people on the planet are fair game.

Judging by the international outcry, however, it appears this may have been a miscalculation on the president’s part. The demands for the U.S. and American companies to adhere to the laws of countries in which they are operating might bring a degree of accountability that appears to be missing in the U.S. political system.

NSA dragnet surveillance a violation of international norms

Obama-is-watching-youAs revealed in the Guardian, the National Security Agency is collecting the telephone records of millions of U.S. customers of Verizon under a top secret court order issued in April. Requiring Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, the FISA court order means that the communication records of millions of U.S. citizens are being collected indiscriminately and en masse regardless of whether they are suspected of any wrongdoing.

The program was initiated under the Patriot Act’s Section 215, a provision that prohibits recipients of the orders, such as telecommunications companies, from disclosing that they gave the government their customers’ records. In other words, millions of Americans would be prevented from knowing that every phone call they make is being tracked by the government.

“From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents,” said Jameel Jaffer, American Civil Liberties Union deputy legal director. “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”

The Bill of Rights Defense Committee’s Shahid Buttar called it “surveillance run amok.” In a blog post today, he wrote:

The document is disturbing because, in a single swoop, it authorizes not just the wiretapping of a single individual, or a single organization, but all of the customers of a single telecommunications company. The order reinforces its own secrecy, immune from public or congressional oversight, violating core tenants of both Due Process and the Fourth Amendment at once.

The revelations were called “absolutely frightening” by Privacy International, noting that “government and law enforcement agencies operate within a murky legal framework hidden from public scrutiny.”

The group stressed that the U.S. must abide by international standards “that operate within a human rights legal framework — standards that set out the scope of and restrictions on permissible surveillance of communications that require approval by independent judicial authorities, that uphold due process, and that ensure that all surveillance is necessary and proportionate.”

As Privacy International further points out:

Human rights conventions and national constitutions almost universally call for the protection of the right to privacy – the challenge is ensuring that governments comply with this requirement, particularly with respect to new technologies and in countries that lack the rule of law.

The modern privacy benchmark at an international level can be found in Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy. Numerous other international human rights treaties recognize privacy as a right: Article 17 of the International Covenant on Civil and Political Rights 1966, Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child. Regional conventions that recognize the right to privacy includes Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Earlier this week, the United Nations issued a landmark report about the threat that State surveillance poses to the enjoyment of basic human rights.

The report, presented June 4 by the UN Special Rapporteur on the freedom of opinion and expression at the UN Human Rights Council in Geneva, notes that state surveillance of communications is ubiquitous and such surveillance severely undermines citizens’ ability to enjoy a private life, to express themselves freely and enjoy other fundamental freedoms.

The Special Rapporteur noted that in the current era, “the State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.”

The report discusses various problems in the use of surveillance, including the lack of judicial oversight, unregulated access to communications data and extra-legal surveillance. In addressing these concerns the UN “underlines the urgent need to further study new modalities of surveillance and to revise national laws regulating these practices in line with human rights standards.”

A good place to start in this regard would be the repeal of the USA Patriot Act as well as the Foreign Intelligence Surveillance Act.

As the BORDC’s Shahid Buttar wrote today,

It’s not enough to be outraged. Times like this require concerted, committed, and focused grassroots action. Raise your voice online to support the transpartisan “Ben Franklin” caucus discussed by Senators Wyden and Paul in DC this Monday night. And don’t stop there: reach out to the Bill of Rights Defense Committee for help building a diverse grassroots coalition to champion civil liberties where you live.

To sign the ACLU’s petition demanding that the U.S. government immediately halt its massive spying program, click here.

Abandoned by international community, Bradley Manning begins fight for his life

bradley manning

Just over three years since being arrested on suspicion of being the source of a massive leak of classified documents – many providing evidence of U.S. war crimes and other serious crimes of state – to the whistleblowing website WikiLeaks, Bradley Manning began his trial yesterday, facing the extremely serious charge of “aiding the enemy” which could potentially result in a death sentence.

Despite the international implications of the trial and the grave human rights abuses he has endured since his arrest in May 2010, leading human rights groups and international organizations are maintaining relative silence regarding the case.

Manning has spent his entire pre-trial period of three years in jail despite military law setting a maximum of 120 days of detention before a trial. His pre-trial punishment is also likely a breach of his rights under the International Covenant on Civil and Political Rights, which the United States ratified in 1992. The Human Rights Committee of the United Nations has held that confinement of more than six months is incompatible with article 9 (3) of the ICCPR, which states:

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

In providing practical guidelines for the use of pre-trial confinement, the UN’s Handbook of International Standards relating to Pre-Trial Detention recommends that governments establish a maximum period of time during which a person may be detained without trial, which must abide by international standards, and if a prisoner’s detention exceeds that amount of time, he or she shall be released.

Needless to say, the U.S. military has not seen fit to adhere to these standards, unnecessarily delaying Manning’s trial for many months. As his lawyer David Coombs demonstrated at a pre-trial hearing earlier this year, although prosecutors were supposed to arraign Manning within 120 days, they took well over 600. Coombs also showed substantial periods of their inactivity and needless delay, despite a legal requirement to remain actively diligent throughout the proceedings.

For nine months of his pre-trial imprisonment, Manning was subjected to solitary confinement and other forms of punishment such as forced nudity, which were clear violations of his rights under international humanitarian law, including the ICCPR, the Universal Declaration of Human Rights and the UN’s Standard Minimum Rules for the Treatment of Prisoners.

Manning’s denial of work and exercise opportunities, for example, was arguably a violation of the Standard Minimum Rules‘ stipulation that “An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.” Further, despite the international requirement that “Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits,” Manning was denied meaningful exercise opportunity.

Being forced to wear shackles while out of his cell was also likely out of step with the Standard Minimum Rules, which state: “Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment.”

Manning’s forced nudity clearly breached the letter and spirit of the Standard Minimum Rules’ stipulation that “An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.”

At the time of some of Manning’s most egregious treatment at the hands of his captors, the international community rallied to his defense, issuing strongly worded condemnations of U.S. actions which seemed to have a real effect in improving his living conditions.

In January 2011, for example, while Manning was being held in prolonged solitary confinement, Amnesty International sent a letter to Defense Secretary Robert Gates, calling Manning’s detention “unnecessarily harsh and punitive” and in “breach of the USA’s obligations under international standards and treaties.”

According to Amnesty:

The conditions under which PFC Manning is held appear to breach the USA’s obligations under international standards and treaties, including Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which the USA ratified in 1992 and which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. The UN Human Rights Committee, the ICCPR monitoring body, has noted in its General Comment on Article 10 that persons deprived of their liberty may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons …”.

In an open letter to President Obama, members of Congress and Pentagon officials in November 2011, members of the European Parliament expressed concern that “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.”

Manning’s solitary confinement regime “constitute[d] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” according to Juan Mendez, the UN Special Rapporteur on Torture. “If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture,” he told the Guardian in 2012.

Largely in response to this international pressure, Manning was removed from solitary confinement and placed in medium security at Fort Leavenworth prison in April 2011.

Even the military judge, Col. Denise Lind, eventually agreed that the treatment he received was “more rigorous than necessary.”  At a pre-trial hearing in January 2013, she ruled that Manning had been subjected to illegal pre-trial punishment while held in a military prison in Quantico, Virginia.

Despite his supporters’ pleas that the remedy for this unlawful treatment should be immediate release from prison, Lind instead simply credited a total of 112 days toward any potential prison sentence Manning receives if convicted. (What this means if he receives a death sentence or life without parole is unclear.)

Unfortunately, since the partial victory in 2011 that resulted in slightly improved living conditions for the accused whistleblower, the international community and leading human rights organizations have largely remained silent over Manning’s case.

As David Cronin recently pointed out at CounterPunch,

Catherine Ashton, the EU’s foreign policy chief, is a fearless defender of human rights – when it suits her. Happy to champion political prisoners in Iran and Ukraine, she is prepared to overlook persecution when it is carried out with the approval of her bosom buddies in Washington.

A search on Ashton’s website indicates that she has not issued a single statement on Manning’s incarceration. I asked her spokesman to explain this silence; he did not respond. Members of the European Parliament who have tried to solicit her views on this matter haven’t fared much better. Last year, Ashton answered a parliamentary question about an investigation by Juan Méndez, the UN special rapporteur on torture, which concluded that the treatment of Manning was “cruel and inhuman”. Ashton noted that the Méndez report highlighted “potential violations of rights” before making a vague commitment that the EU would “seek clarification” from the US authorities on “what measures they intend to take”.

He further notes the confounding silence on the case by Amnesty International.

There is little doubt that Manning has been imprisoned because of his sincerely-held political beliefs. So it is baffling that Amnesty International has so far declined to consider him a prisoner of conscience and to undertake a major campaign for his release.

Amnesty has told the Canadian blogger Joe Emersberger that it cannot deem Manning to be a prisoner of conscience until it has verified if he released the information in a “responsible manner”. I contacted Amnesty to check if Emersberger had accurately reflected its position but received no reply. Assuming that Emersberger is correct – and I’ve no reason to suspect he is not – Amnesty should specify what it means by “responsible”.

This silence has led to a grassroots effort to shame Human Rights Watch and Amnesty International, in particular, to take a clear stand in support of Bradley Manning as his trial begins. As the campaign Amnesty4Manning points out, “When it comes to Manning support, Amnesty International has beat around the bush for three years. Human Rights Watch has been silent since the ONE article the organization published in 2011.”

The campaign is urging people to contact AI and HRW to ask questions such as “How does Amnesty International assess actual and potential human rights violations?”, “What is Amnesty International’s definition of a prisoner of conscience?”, and “Would Pfc. Bradley Manning fit Amnesty International’s definition of a prisoner of conscience?”

Avoiding the question of whether Manning qualifies as a prisoner of conscience (a label that Amnesty freely offers to various prisoners, such as the Pussy Riot punk rockers who are serving sentences of two years in Russia for hooliganism), Amnesty issued a rather mild-mannered press release yesterday calling for the U.S. to allow Manning’s defense to argue that he “acted in the public interest when he distributed information to Wikileaks.”

“The court must allow Manning to explain in full his motives for releasing the information to Wikileaks,” said Anne Fitzgerald, director of research and crisis response at Amnesty International. “It disturbing that he was not permitted to offer the ‘public interest’ defense as he has said he reasonably believed he was exposing human rights and humanitarian law violations.”

While it could be seen as welcome that Amnesty is finally breaking its silence on this case, the statement yesterday was seen as a bit too mild by some. As one Amnesty member posted on the group’s Facebook page, “I want to know where the hell Amnesty’s been on this, possibly the most significant, courageous political prisoner in a generation?” Another wrote, “Why hasn’t Amnesty recognized Bradley as the political prisoner he is?!?!”

Instead, Amnesty chose to focus on the more limited question of whether Manning should be allowed to explain his motives for releasing the documents to WikiLeaks.

“Allowing Manning to explain his motives only at the sentencing stage could have a chilling effect on others who believe that they are whistle-blowing, or acting in the public interest in disclosing information,” noted AI’s Fitzgerald. “Manning should have been allowed to explain how, in his opinion, the public interest in being made aware of the information he disclosed outweighed the government’s interest in keeping it confidential.”

Although Manning has not had the opportunity to formally explain how his actions were intended to benefit the public interest in a trial setting, he has made it clear that by releasing the information to WikiLeaks he hoped to inform the public of what its government does in its name.

Reading from a 35-page prepared statement at a pre-trial hearing earlier this year, Manning said: “I believed that if the general public, especially the American public, had access to the information … this could spark a domestic debate on the role of the military and our foreign policy in general.”

Further, it’s clear that the decision to leak the documents provided a real public service, considering the extent to which the government has overclassified historical documents, even those dealing with topics from three decades earlier. As investigative journalist Robert Parry recently explained in an article defending Manning’s actions,

I thought of Pvt. Bradley Manning when I recently received a response to one of my Freedom of Information Act requests to Ronald Reagan’s presidential library. I was seeking documents about President Reagan’s secret strategy of aiding Saddam Hussein’s Iraq in its war with Iran.

Reagan’s tilt to Iraq in the early 1980s – while his administration also was winking at Israeli weapons sales to Iran – was part of a clandestine U.S. approach to the region which generated huge profits for arms dealers while feeding sectarian violence and political animosities that echo to the present day. It seemed to me that it was way past time to know the full truth.

However, though many of the events in question are now more than 30 years old – and thus are commonly thought to be readily accessible under FOIA – the reality is that the U.S. government still makes seeing such documents extremely difficult.

The letter from the Reagan library said the archivists would not even begin to process my request for “128 months,” that is more than 10 years, and then the process would involve time-consuming declassification reviews in which various agencies with “equity” interests would each have to sign off, along with whoever the sitting president is.

So, essentially, without courageous whistleblowers and leakers such as Bradley Manning willing to take the risks of providing classified documents to news outlets such as WikiLeaks, Americans may be denied access to information in perpetuity, even regarding events that took place over a generation ago.

There’s also the matter of whether Manning was within his rights and duties as a soldier to release information of wrongdoing. A recent column by legal expert Marjorie Cohn makes the case that not only was Manning right to release these documents, but according to the law, actually had a legal mandate to do so.

“Manning fulfilled his legal duty to report war crimes,” Cohn says. “He complied with his legal duty to obey lawful orders but also his legal duty to disobey unlawful orders.”

She further explains,

Section 499 of the Army Field Manual states, “Every violation of the law of war is a war crime.” The law of war is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions describes making the civilian population or individual civilians the object of attack as a grave breach. The firing on and killing of civilians shown in the “Collateral Murder” video violated this provision of Geneva. …

Enshrined in the US Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” At his guilty plea hearing, Manning explained that he had gone to his chain of command and asked them to investigate the “Collateral Murder” video and other “war porn,” but his superiors refused. “I was disturbed by the response to injured children,” Manning stated. He was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’ “

Whether Manning’s actions were worth it in terms of the positive effects they have had is certainly a matter of debate, especially considering the enormous personal costs he is paying for those actions, and the unfortunate reality that Americans are generally ambivalent when it comes to war crimes and other violations of international norms committed by their government. But what’s beyond debate is that his heart was in the right place.

As his lawyer David Coombs pointed out in his opening arguments yesterday,

He was 22 years old. He was young. He was a little naive in believing that the information that he selected could actually make a difference. But he was good intentioned in that he was selecting information that he hoped would make a difference.

He wasn’t selecting information because it was wanted by WikiLeaks. He wasn’t selecting information because of some 2009 most wanted list. He was selecting information because he believed that this information needed to be public. At the time that he released the information he was concentrating on what the American public would think about that information, not whether or not the enemy would get access to it, and he had absolutely no actual knowledge of whether the enemy would gain access to it.

Young, naive, but good intentioned.

Fortunately, although being largely abandoned by mainstream human rights groups and forgotten by the international community, Manning does have significant support, as demonstrated by a rally over the weekend including the antiwar groups Veterans for Peace and Code Pink.

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