Archive | October 2013

Angered by NSA abuses, will Europe commit to meaningful counter-measures?

nsa cellphone surveillance

Despite earlier threats from European officials to delay trade negotiations with the United States over the latest revelations of spying on French and German leaders (which have followed earlier revelations that that the NSA has tapped the telephone lines and computer networks of EU offices in Brussels, New York and Washington), German Chancellor Angela Merkel today offered assurances that U.S.-EU trade talks would go forward without interruption.

Although she said she was skeptical of efforts to delay those negotiations, she expressed tepid support for temporarily halting a program that gives U.S. intelligence agencies access to information about the financial transactions of suspected terrorists routed through the SWIFT clearing house in Brussels. SWIFT, or the Society for Worldwide Interbank Financial Telecommunication, is an industry-owned co-operative that facilitates international financial transfers within the global banking community, consisting of banks, securities broker-dealers, and regulated investment management institutions.

Merkel’s cautious support for restraining U.S. access to SWIFT follows allegations that the NSA has been gaining unauthorized access to the international financial messaging system, which could have major ramifications for the operation of the global financial system.

“Claims that the NSA has tapped the computing infrastructure of the SWIFT system and consequently has access to information about more than 90% of the world’s international banking transactions has huge implications for financial institutions and the individuals who bank with them,” writes Caroline Wilson of Privacy International.

The European Parliament has asked the U.S. to explain its actions and to reveal whether the NSA’s actions are breaching a U.S.-EU agreement that sets forth various rules the U.S. must follow when obtaining and processing financial data stored in the EU. The pact came about in 2010 because of allegations at the time that the U.S. was seeking direct and virtually unrestrained access to Europeans’ SWIFT data.

“If the NSA is obtaining SWIFT messages outside of the rules set forth in the 2010 US-EU Agreement, such action imperils further the relationship between the two parties, and violates the privacy rights of millions of Europeans,” notes Wilson.

In response to the latest allegations, the leaders of Germany and France today proposed creating a new agreement on cooperation among their intelligence services and those of the United States, in the wake of a new report alleging that the National Security Agency had monitored the phone conversations of 35 world leaders.

Noting diminished trust in the United States, Merkel pledged that she and French President Francois Hollande would rapidly forge a new pact to ensure more transparency for U.S. intelligence operations in Europe.

What is unclear though is why these leaders would expect the U.S. government to adhere to the rules of a “new pact,” when it is obvious that it has been brazenly flouting numerous existing pacts for years. Besides violating the 2010 agreement on SWIFT, the United States appears to be violating a host of international laws, including the 1961 Vienna Convention which states that “the official correspondence” as well as “the premises” of diplomatic missions “shall be inviolable.”

The individual’s right to privacy is also enshrined in numerous human rights conventions including in Article 12 of the 1948 Universal Declaration of Human Rights, 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. It is also guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

At a hearing in the European Parliament on Oct. 14, NSA surveillance initiatives were the subject of legal scrutiny which included the participation of a judge who has served in the European Court of Human Rights for 15 years, a former United Nations special rapporteur on human rights and counterterrorism, and a London-based international law professor. All of them agreed that the scope of the surveillance constituted violations of both European and international laws and treaties.

Martin Scheinin, former UN special rapporteur on human rights and counterterrorism, said that the NSA spying represents a “massive interference with the privacy rights of EU citizens and others.” The surveillance amounted to “an unlawful or arbitrary interference with privacy or correspondence, and this conclusion follows independently from multiple grounds,” he said.

In response to the allegations of massive U.S. law-breaking, German prosecutors have launched a legal investigation, and officials in Berlin said the scandal could disrupt counterterrorism collaboration between the United States and the European Union.

This is also a point that independent U.S. Senator Bernie Sanders made in a letter to Barack Obama on Thursday. Sanders, who is cosponsoring legislation that would significantly rein in the surveillance activities of the NSA and other intelligence agencies, wrote to Obama that the U.S. actions could undermine cooperation in the fight against terrorism.

“The strained relations with our allies as a result of wholesale NSA eavesdropping have impacted our ability to work with these countries in combating terrorism and advancing common economic goals,” Sanders said. “Clearly, in the complex and difficult world we now find ourselves, it is imperative that we try to improve our relations with friendly countries, not exacerbate them.”

European leaders from across the continent have also been vocal in their opposition to the U.S. surveillance activities. If it’s true that Merkel’s cellphone has been tapped, “it is exceptionally serious,” said Dutch Prime Minister Mark Rutte at an EU summit this week.

Swedish Prime Minister Fredrik Reinfeldt called it “completely unacceptable” for a country to eavesdrop on an allied leader. “We want the truth,” Italian Premier Enrico Letta told reporters. “It is not in the least bit conceivable that activity of this type could be acceptable.”

Austrian Foreign Minister Michael Spindelegger said, “We need to re-establish with the U.S. a relationship of trust, which has certainly suffered from this.”

But despite the current grandstanding  of European leaders, it should be remembered that the whistleblower who shared all the revelations of U.S. spying – former NSA contractor Edward Snowden – has been largely abandoned by the governments that are now expressing shock over the NSA’s abuses.

When Snowden was seeking refuge from the U.S. government fearing persecution and torture, ten EU countries immediately indicated that they would deny the whistleblower’s political asylum requests, with German Foreign Minister Guido Westerwelle saying that Snowden’s request would be reviewed by German authorities “according to the law,” but he “could not imagine” that it would be approved.

After the United States received a tip that Snowden may have been on a plane carrying Bolivian president Evo Morales, who was flying home from a Moscow summit via Western Europe, European governments fell over themselves to do the bidding of the United States, with France, Spain and Portugal all refusing to let Morales’ plane through their airspace.

The plane was forced to land in Austria, where it remained grounded for 14 hours as the authorities determined that Snowden was not on board.

Morales called the rerouting of his plane a violation of national sovereignty and a provocation to all of Latin America, urging European countries to “free themselves” from the undue influence of the United States. The president of the European Parliament, Martin Schulz, later described the measure by certain EU countries to ground Morales’s plane as “ridiculous and unacceptable.”

It is against this backdrop of acquiescing to U.S. power that the current admonitions of European leaders should be considered.

Snowden himself has been one of the most articulate advocates for greater action by the international community to protect privacy and hold the U.S. rogue superpower accountable.

In a prepared statement to the European Parliament on Sept. 30, Snowden argued that surveillance is one of the greatest challenges facing human rights today, and appealed for help in protecting the whistleblowers who bring these abuses to light.

“If we are to enjoy such debates in the future, we cannot rely on individual sacrifice, we must create better channels for people of conscience to better inform not only trusted agents of government but independent representatives of the public outside of government,” he said.

Snowden, who is currently living in Moscow after being granted temporary asylum by the Russian government, said that public debate on mass surveillance should not have to rely on the persecution and exile of people willing to leak information to the public.

A mass rally is being held in Washington on Saturday in support of Snowden and calling on the NSA to halt its mass surveillance activities. Under the banner, “Stop Watching Us,” thousands of Americans of all political stripes will demand investigations of the NSA’s illegal spying and to “hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.”

Police brutality, drone wars and international norms


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

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

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

As a 2007 report prepared for the United Nations Human Rights Committee stated, the war on terror has “created a generalized climate of impunity for law enforcement officers, and contributed to the erosion of what few accountability mechanisms exist for civilian control over law enforcement agencies. As a result, police brutality and abuse persist unabated and undeterred across the country.”

“Systemic abuse of people of color by law enforcement officers has not only continued since 2001,” the report noted, “but has worsened in both practice and severity. According to a representative of the NAACP, ‘the degree to which police brutality occurs…is the worst I’ve seen in 50 years.’”

Even establishment publications such as the Wall Street Journal have noticed the troubling trend of rising police violence and its relationship to the war on terror, dubbing the new breed of U.S. police officers “the warrior cop.” As a feature article in WSJ put it in August 2013,

Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.

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

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

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

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

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

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

The commentary on Article 3 further explains:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

drones police brutality

Kerry praises Syria’s compliance with CWC, but what about U.S. non-compliance?

Secretary of State John Kerry said Monday that the United States is “very pleased” with the progress made so far in destroying Syria’s chemical weapons stocks, but offered no comment on the long-standing non-compliance of the United States’ obligations to destroy its stockpiles.

The Chemical Weapons Convention, which the United States ratified in 1997 with 84% public support according to public opinion surveys, required that the U.S. completely destroy its chemical weapons stockpile by 2007, but an extension moved the deadline to April 2012. Missing that deadline more than a year ago, the U.S. has failed to get another extension and remains in blatant violation of the treaty’s provisions.

The CWC prohibits “the Development, Production, Stockpiling and Use of Chemical Weapons,” requiring states parties to “convert in an essentially irreversible way to a form unsuitable for production of chemical weapons, and which in an irreversible manner renders munitions and other devices unusable as such.”

When the treaty went into effect 16 years ago, the U.S. declared a huge domestic chemical arsenal of 27,771 metric tons to the OPCW. Missing two deadlines for these weapons’ destruction, the United States maintains stockpiles of several thousand tons of these banned weapons.

Russia has alleged that the U.S. has inhibited inspections and investigations of U.S. chemical facilities, and has further accused the U.S. of not fully reporting chemical agents removed from Iraq between 2003 and 2008.

Iran has also complained about the U.S. non-compliance, stating that the U.S. decision to retain its stockpiles of chemical weapons is a major threat to peace and security in the world. Iran’s ambassador to the Organization for the Prohibition of Chemical Weapons said in late 2011 that the U.S. failure to meet its international commitments with regard to the total elimination of chemical weapons is in flagrant violation of the CWC.

The U.S. State Department has glossed over its non-compliance with the treaty which it is now praising Syria for complying with.

In its most recent Report on Adherence to and Compliance With Arms Control, Nonproliferation, and Disarmament Agreements and Commitments, the State Department stressed that “The United States continues to work towards meeting its CWC obligations with respect to the destruction of chemical weapons,” and noted that the U.S. “continues to update the Organization for the Prohibition of Chemical Weapons (OPCW) on its destruction efforts.”

A bit more information is available at the Centers for Disease Control website, which reports that with the final mustard munition destroyed at the Tooele Chemical Agent Disposal Facility in January 2012, nearly 90% of the declared U.S. stockpile had been eliminated by the extended deadline. With over 30,000 tons originally declared, however, this means that there remains 2,700 tons at two sites in Kentucky and Colorado.

chemical weapons locations_and_status_2_2012

Source: CDC

The most recent forecast from the U.S. is that the process of “neutralizing” the chemicals in its Colorado weapons dump will be finished by 2018; the date for Kentucky is 2023, i.e., 11 years after the extended deadline for destroying its chemical weapons stockpiles.

About 2,611 tons of mustard gas remains stockpiled in Pueblo, Colorado. The second stockpile, in the Bluegrass region of Kentucky, is smaller – 524 tons – but more complicated to decommission, because it consists of a broader range of lethal gases and nerve agents, many of which are contained within weaponry.

Although the process of constructing neutralization facilities in Colorado and Kentucky is under way, neither plants have begun testing procedures. The nature of the Kentucky stockpile makes it particularly difficult to destroy, the Guardian reported last month.

“They have every agent there and every weapon – rockets, artillery shells, landmines, spray tanks and aerial bombs,” said Paul Walker, a program director at Green Cross International, which has facilitated the destruction of chemical weapons in the U.S. and Russia since the mid-1990s.

While the U.S. skirts its own obligations, it continues to demand high standards from designated “rogue states” like Syria.

Regarding the steps Damascus is taking to eliminate its stockpile of chemical weapons, Kerry said, “I think it is extremely significant that yesterday, Sunday, within a week of the resolution being passed, some chemical weapons were already being destroyed. I think it’s also credit to the Assad regime for complying as rapidly as they are supposed to.”

Let’s just hope that Syria’s commitment to fulfilling its international obligations is stronger than the commitment shown by the United States. Otherwise, we could be still dealing with this issue in the year 2029.

As the U.S. points fingers, international guidelines expose American elections’ shortcomings

election trash canIn a statement delivered to the Organization for Security and Cooperation in Europe’s Human Dimension Implementation Meeting in Warsaw on Tuesday, Gavin Weise of the U.S. delegation expressed support for the OSCE’s election observation activities and criticized countries that seek to undermine those efforts.

Weise reminded participants that in 1990, OSCE countries pledged to hold free elections in a manner that would be considered fair. “To assist participating States in fulfilling their commitments, ODIHR and the OSCE Parliamentary Assembly have provided their invaluable expertise, including through their elections observation efforts,” he said.

However, OSCE election observation has been undermined by certain countries, according to the U.S. representative:

The United States regrets that some [OSCE] participating States continue to call into question and seek to weaken the OSCE’s independent election observation efforts, implying that they impose double standards and other biases.  Such positions disregard the strong monitoring capability that the OSCE has developed to assist participating States in implementing our commitments to hold free and fair elections.

Although he didn’t identify them by name, it was clear that he was likely referring to former Soviet countries such as Russia and Belarus, which have often cited double standards in the way that the OSCE assesses elections “east and west of Vienna.”

The irony of Weise’s statement is that the U.S. itself has been one of the most brazen violators of OSCE election-related commitments, repeatedly ignoring longstanding OSCE recommendations for improving the U.S. electoral system, and consistently undermining the ability of the organization to freely carry out its observation functions, to the point of threatening election observers with criminal prosecution.

Last year, in a jaw-dropping display of chauvinism and hostility, the Attorney General of Texas implicitly warned OSCE observers that they might find themselves in a Texas jail if they came within 100 feet of polling places during the Nov. 6 election, a move that not even authoritarian regimes such as Belarus have pulled in the past.

“It may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance,” wrote Texas Attorney General Greg Abbott to Ambassador Daan Everts of the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) in an open letter. “Failure to comply with these requirements could subject the OSCE’s representatives to criminal prosecution for violating state law.”

ODIHR Director Janez Lenarcic responded by reminding Texas of the United States’ international obligation to welcome election observers of the OSCE and grant them access to polling places.

“The threat of criminal sanctions against OSCE/ODIHR observers is unacceptable,” he said. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

Rather than apologize for those transgressions, Weise on Tuesday rather generically assured the OSCE of the U.S.’s willingness to cooperate with observers. “We welcome and encourage OSCE observation of elections in the United States,” he said.

The U.S. delegate then claimed that the United States is working in good faith to implement recommendations of the OSCE:

The United States continues to work to address issues raised by the OSCE, including discussing with state election authorities how to provide better access to OSCE observers.  The United States will continue to discuss such issues within the OSCE.  Various aspects of elections and in particular voting rights continue to the subject of headlines, editorials, court cases and robust public discourse within the United States; this as legitimate activity that strengthens our democracy.  We urge all other OSCE States to do the same.

Interestingly, these assurances were offered on the heels of a new publication issued by the OSCE Office for Democratic Institutions and Human Rights which elaborated on the election-related obligations of OSCE participating States, including the U.S.

Entitled “ODIHR Guidelines for Reviewing a Legal Framework for Elections,” the document covers issues such as universal and equal suffrage, election administration, voter registration, equal treatment of political parties and their access to the media, and campaign finance. On many of these issues, the United States clearly falls far short of its commitments for holding elections that are genuinely free and fair, and it’s not clear what, if any, measures are being taken to improve the U.S. electoral system.

A close reading of the document makes clear that the United States is far from compliant with some of the most basic components of democratic elections. For example, the very fact that the U.S. has such a highly decentralized and unwieldy system of election administration in which electoral laws diverge wildly from state to state and even from county to county within individual states, is generally out of step with good electoral practice as identified by ODIHR.

As stated in the guidelines, “one electoral law regulating all elections is recommended, as this approach safeguards consistency in electoral administration and practices, and the unified implementation of the law in connection with all elections.”

In the U.S., rather than “one electoral law,” there are 51 (one for each state, plus the District of Columbia, which is denied representation in Congress in violation of international norms). Further, there is no central election commission in the U.S. to interpret laws, which are instead left to the local level, including partisan secretaries of state and county clerks.

This system of localized interpretation of national and state laws is out of step with another key recommendation of ODIHR:

Relationships between national and local authorities, as well as between election-administration bodies and other governmental bodies, should be clearly stated and defined. The areas of authority of election-administration bodies must be clearly stated and defined to prevent conflicts or overlap with the powers of other government bodies.

ODIHR also notes that “the structure of the election administration as established by the legal framework should usually include a central election-administration body,” which the U.S. lacks.

Further, national laws governing the registration of political parties, party and campaign finance, voter registration and criminal provisions related to electoral violations are of particular importance. Yet, the U.S. system is noteworthy for the absence of such laws.

This deficiency has led to significant problems in the U.S. voter registration system, among other issues. A report released last year by the Pew Center on the States found that the nation’s voter registration rolls are in disarray, with the potential to affect the outcomes of local, state and federal elections. One in eight active registrations is invalid or inaccurate, the report found, while one in four people who are eligible to vote are not registered.

These problems with basic election administration are not just embarrassing, they are also in violation of U.S. international obligations. As explained in the ODIHR guidelines,

The right to vote is only of full value if the legal framework makes it easy for a person to register to vote, ensures accuracy in voter registers, includes sufficient safeguards against fraudulent voting, and guarantees honest counting of votes and tabulation of results. One of the standards for voter registration and maintenance of registers is complete transparency.

In a section of the guidelines regarding the drawing of electoral constituencies, or districts, ODIHR offers tacit criticism of the U.S. system of redistricting and the election-rigging practice commonly known as “gerrymandering.”

“Electoral constituencies should be drawn in a manner that preserves equality among voters,” notes ODIHR, adding that “the manner in which constituencies are drawn should not circumvent the principle of equal suffrage.”

Yet, many U.S. states use an arcane and highly politicized system of drawing district boundaries based on past voting histories and racial composition in order to dilute the voting power of certain groups and virtually ensure preferred electoral outcomes. Following the 2010 census and redistricting process, the GOP gerrymandered congressional districts in such a way to guarantee Republican victories. In southern states, this largely meant re-segregating politics by isolating Democrats to urban districts represented by African-American legislators while leaving Republicans to divvy up the rest of the state.

This system of redistricting is how Republicans were able to keep control of the House of Representatives despite losing the popular vote nationwide by 1.4 million votes in 2012. Democratic House candidates earned 49.15 percent of the popular vote, while Republicans earned only 48.03 percent, meaning that the American people preferred a unified Democratic Congress over the divided Congress it actually got by more than a full percentage point.

But thanks to partisan gerrymandering, Republicans retained a solid House majority for the 113th Congress.

All of this is very much out of line with good electoral practices. As ODIHR states in its guidelines, “the legal framework should ensure that people or institutions establishing the boundaries are neutral, independent and impartial.” This is not the case in the United States.

There is also the matter of permanent felon disenfranchisement in many U.S. states, which contravenes the international obligation of the United States to ensure universal and equal suffrage to each citizen who has reached the age of majority.

Yet, in the U.S., an estimated 5.85 million Americans are denied the right to vote (or seek office) because of laws that disenfranchise people with felony convictions. Because of institutionalized racial disparities in the criminal justice system, these policies have resulted in one of every 13 African Americans unable to vote.

ODIHR has repeatedly expressed serious concerns over the disproportionate impact of felon disenfranchisement in the U.S.

As explained in its final report on Election 2012,

Minorities are disproportionately affected and it is estimated that 2.2 million African-Americans are disenfranchised. Prisoner and exprisoner voting rights are determined by state law and vary widely. Citizens from different states, who have committed the same crime, have their voting rights affected differently. Restrictions are often disproportionate to the crime committed and some states do not differentiate between types of crimes. Four states deprive all people with a criminal conviction of the right to vote, irrespective of the gravity of the crime or if the sentence has been served, unless pardoned by the state governor.

Another major problem in the United States is the discriminatory laws against independent, or “third,” parties. While the U.S. has long been considered a “two-party system,” the fact is, it is required to provide legal protections to all political parties to ensure that they are able to compete on a level playing field.

“The legal framework should ensure that all political parties and candidates are able to compete in elections on the basis of equal treatment before the law,” notes ODIHR.

This does not happen in the United States, where third parties are required to meet extraordinary challenges to even appear on the ballot, and even after they pass those hurdles, are excluded from televised debates and generally shut out of the media. This further violates U.S. election-related commitments, particularly the requirement for equal treatment and access to media.

This obligation is enshrined in the International Covenant on Civil and Political Rights, which guarantees the right of voters “to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

ODIHR points out that the OSCE Copenhagen Document goes even further, by mandating that OSCE member states take proactive steps to provide political parties and organizations “with the necessary legal guarantees to enable to compete with each other on a basis of equal treatment before the law and by the authorities.”

For example, this would mean that the U.S. provides legal guarantees for independent parties and candidates to be included in televised debates and otherwise enjoy access to the media. This, of course, does not happen in the United States, so voters often go into the voting booth surprised to see other candidates listed on the ballot besides those nominated by the two dominant, quasi-official parties.

Campaign financing is another related matter of concern, with the potential for skewing the playing field and limiting real competition. As ODIHR states, “there is the risk of undue influence that can result from excessive or disproportionate contributions by a single contributor or group of contributors.”

This is particularly a concern in the United States following the 2010 Citizens United Supreme Court decision which effectively nullified U.S. campaign finance laws, opening the floodgate for unregulated private money in federal elections.

Ignoring all these issues, the U.S. delegate to the Human Dimension Implementation Meeting this week chose instead to point the finger at other OSCE countries that have allegedly failed to live up to their election-related commitments.

“Last year,” Weise said, “the OSCE concluded that shortcomings in presidential elections in Armenia and Bulgaria were caused not by inexperience but by a lack of political will on the part of state institutions, leading to low levels of public trust in the electoral process.”

In Ukraine’s parliamentary elections, he added, “international observers cited the lack of a level playing field due in part to abuse of government resources to favor ruling party candidates, a lack of campaign and political party financing regulation, and lack of balanced media coverage.”

Of course, the same exact thing could be said about the United States, using the guidelines just published by the ODIHR, but relatively speaking, the U.S. tends to get a pass. While some mild criticisms make it into ODIHR’s reports on American elections, for the most part, it seems that different standards are applied, which is where the eastern bloc’s complaints of double standards arise.

Nevertheless, there are many areas in which the U.S. could obviously improve, some of which have been explicitly identified by OSCE observers.

Essentially, before pointing fingers at others, the U.S. would do well to get busy in seriously tackling electoral reform at home.


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