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

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Pointing to “global norms of free expression and privacy,” a coalition of major internet companies this week launched a campaign to pressure the U.S. Congress to reform practices and laws regulating government surveillance of individuals and access to their personal information.

The Global Government Surveillance Reform coalition, which consists of AOL, Apple, Google, Microsoft, Yahoo, Twitter, Facebook and other companies, trade associations and civil society groups, issued the following letter to the House and Senate leadership on March 25:

We the undersigned represent a wide range of privacy and human rights advocates, technology companies, and trade associations that hold an equally wide range of positions on the issue of surveillance reform. Many of us have differing views on exactly what reforms must be included in any bill reauthorizing USA PATRIOT Act Section 215, which currently serves as the legal basis for the National Security Agency’s bulk collection of telephone metadata and is set to expire on June 1, 2015. That said, our broad, diverse, and bipartisan coalition believes that the status quo is untenable and that it is urgent that Congress move forward with reform.

Together, we agree that the following elements are essential to any legislative or Administration effort to reform our nation’s surveillance laws:

There must be a clear, strong, and effective end to bulk collection practices under the USA PATRIOT Act, including under the Section 215 records authority and the Section 214 authority regarding pen registers and trap & trace devices. Any collection that does occur under those authorities should have appropriate safeguards in place to protect privacy and users’ rights.

The bill must contain transparency and accountability mechanisms for both government and company reporting, as well as an appropriate declassification regime for Foreign Intelligence Surveillance Court decisions.

We believe addressing the above must be a part of any reform package, though there are other reforms that our groups and companies would welcome, and in some cases, believe are essential to any legislation. We also urge Congress to avoid adding new mandates that are controversial and could derail reform efforts.

It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative reforms to the nation’s surveillance programs that maintain national security while preserving privacy, transparency, and accountability. We strongly encourage both the White House and Members of Congress to support the above reforms and oppose any efforts to enact any legislation that does not address them.

capitol_nsa_surveillanceThe original signatories to the letter consisted of 47 internet firms and civil society groups, but the list of signers is growing by the day. (You can add your name here.)

The Global Government Surveillance Reform coalition also issued five principles to guide reform of government surveillance, “consistent with established global norms of free expression and privacy and with the goals of ensuring that government law enforcement and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject to oversight.”

These principles are the following:

1. Limiting Governments’ Authority to Collect Users’ Information

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

2. Oversight and Accountability

Intelligence agencies seeking to collect or compel the production of information should do so under a clear legal framework in which executive powers are subject to strong checks and balances. Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry.

3. Transparency About Government Demands

Transparency is essential to a debate over governments’ surveillance powers and the scope of programs that are administered under those powers. Governments should allow companies to publish the number and nature of government demands for user information. In addition, governments should also promptly disclose this data publicly.

4. Respecting the Free Flow of Information

The ability of data to flow or be accessed across borders is essential to a robust 21st century global economy. Governments should permit the transfer of data and should not inhibit access by companies or individuals to lawfully available information that is stored outside of the country. Governments should not require service providers to locate infrastructure within a country’s borders or operate locally.

5. Avoiding Conflicts Among Governments

In order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty — or “MLAT” — processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve the conflict.

Implementing these principles would not only bring U.S. surveillance practices in line with the U.S. Constitution, but would also go a long way in ensuring that U.S. policy is complying with international norms.

A year ago, following the U.S.’s periodic review for its compliance with the International Covenant on Civil and Political Rights, the United Nations issued a scathing report detailing a host of U.S. violations, including on privacy rights. The UN Human Rights Committee highlighted the ongoing U.S. lack of compliance with privacy requirements set forth in Article 17 of the ICCPR, particularly to respect the right to privacy regardless of the nationality or location of individuals being monitored.

To address these violations, the UN issued the following recommendations to the U.S. government:

(a)          Take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance;

(b)          Ensure that any interference with the right to privacy, family, home or correspondence is authorized by laws that: (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise and specify in detail the precise circumstances in which any such interference may be permitted, the procedures for authorization, the categories of persons who may be placed under surveillance, the limit on the duration of surveillance; procedures for the use and storage of data collected; and (iv) provide for effective safeguards against abuse;

(c)           Reform the current oversight system of surveillance activities to ensure its effectiveness, including by providing for judicial involvement in the authorization or monitoring of surveillance measures, and considering the establishment of strong and independent oversight mandates with a view to preventing abuses;

(d)          Refrain from imposing mandatory retention of data by third parties;

(e)          Ensure that affected persons have access to effective remedies in cases of abuse.

The Electronic Frontier Foundation’s Katitza Rodriguez urged the United States to conform to the UN’s recommendations. “It’s imperative the United States comply with its human rights treaty obligations, specifically Article 17 of the ICCPR, which protect the right of privacy for everyone in the same manner, within or outside US borders, regardless of nationality or place of residence,” Rodriguez said.

In an effort to ensure better compliance from the United States and other serial violators of individual privacy rights, the United Nations Human Rights Council decided this week to establish a new position of Special Rapporteur on the right to privacy, whose tasks will include gathering relevant information, including on international and national frameworks, national practices and experiences.

As Privacy International explains,

The Special Rapporteur will be the authoritative voice and intellectual leader at the global level on the right to privacy around the world. The resolution gives the individual a broad mandate to promote the respect and protection of the right to privacy in all circumstances, wherever or however it is exercised. Amongst other things, the mandate holder will monitor states’ and companies’ compliance with the right to privacy, investigating alleged violations, and making recommendations to ensure that this fundamental right is respected and protected.

Tomaso Falchetta, Legal Officer for Privacy International, said,

The Council today has confirmed what we have said for some time: The right to privacy is an invaluable human right, essential to human autonomy and dignity, and deserves explicit attention to ensure that it is respected and protected around the world. Now, perhaps more than ever, we need a dedicated individual to hold those accountable who wish to violate privacy, whether it is through surveillance, indiscriminate data collection, or other techniques that infringe on this important right. As Privacy International celebrates 25 years of advocating for the right to privacy, we can confidently say that today’s resolution is one of the most important events to protect privacy.

The individual chosen to take up the role of Special Rapporteur is expected to be appointed in June 2015.

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

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The United States government is finding itself on the defensive this month, being taken to court over a host of policies that violate constitutional and international law.

First, on March 10, the American Civil Liberties Union, the Wikimedia Foundation, Human Rights Watch, Amnesty International USA and other groups filed a lawsuit against the U.S. National Security Agency challenging one of its mass surveillance programs that the plaintiffs say violates Americans’ privacy and makes individuals worldwide less likely to share sensitive information.

In particular, the lawsuit focuses on the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the physical infrastructure of the internet, compromising Americans’ online communications with each other and with the rest of the world.

As explained by the ACLU:

In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for keywords called “selectors” that are associated with its targets. The surveillance involves the NSA’s warrantless review of the emails and Internet activities of millions of ordinary Americans.

“This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well,” said ACLU Staff Attorney Patrick Toomey. “Ordinary Americans shouldn’t have to worry that the government is looking over their shoulders when they use the Internet.”

The lawsuit argues that the NSA is infringing on the plaintiffs’ First Amendment rights and violating their privacy rights under the Fourth Amendment. The complaint also argues that the surveillance oversteps the authority granted by Congress under the FISA Amendments Act.

In explaining why her group joined the lawsuit, Human Rights Watch General Counsel Dinah Pokempner described the significant damage done by the NSA’s surveillance to the work of defending human rights around the world:

When Human Rights Watch can’t assure the privacy of the people with whom we work to expose and halt human rights abuses, we can’t protect their security either. Lives are in the balance, not to mention freedom of information, association, and speech.

Activists in Ethiopia, defense attorneys in France, and officials working in Indonesia won’t call or email us sensitive information about ongoing rights violations because they rightly fear surveillance. We have to get the facts face-to-face or not at all, and either way, that’s costly. People know the domestic government may well have an intelligence partnership with the US, and any leak of US-monitored communications may result in arbitrary arrest, prosecution, assault, or worse.

Last year, we documented the pall that surveillance has thrown over journalists and lawyers in the US, who now must go to extreme lengths to protect their confidential communications, or just forgo the reporting and defense strategies that keep our society informed, fair, and accountable.

HRW and the other groups in the lawsuit said that upstream surveillance “reduces the likelihood” that clients, journalists, foreign government officials, victims of human rights abuses and other individuals will share sensitive information with them.

Lila Tretikov, executive director of the Wikimedia Foundation, and Wikipedia founder Jimmy Wales wrote in the New York Times that they were concerned about where data on their users ends up after it is collected by the NSA. Noting close intelligence ties between the United States and Egypt, they said a user in Egypt would have reason to fear reprisal if she edited a page about the country’s political opposition.

The day after the lawsuit was filed challenging the NSA’s mass surveillance, the Associated Press sued the State Department to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The legal action was a response to Clinton’s attempts to circumvent transparency laws by using a private email account while she headed the State Department and followed repeated requests filed under the U.S. Freedom of Information Act that have gone unfulfilled, according to the AP.

As the news agency explained in a March 11 article,

The FOIA requests and the suit seek materials related to her public and private calendars; correspondence involving aides likely to play important roles in her expected campaign for president; and Clinton-related emails about the Osama bin Laden raid and National Security Agency surveillance practices.

“After careful deliberation and exhausting our other options, The Associated Press is taking the necessary legal steps to gain access to these important documents, which will shed light on actions by the State Department and former Secretary Clinton, a presumptive 2016 presidential candidate, during some of the most significant issues of our time,” said Karen Kaiser, AP’s general counsel.

The suit filed by the AP came a day after Clinton broke her silence about her use of a private email account while she was America’s top diplomat. In defending her actions – which were widely seen as a crude attempt to avoid government transparency requirements – the likely 2016 Democratic presidential candidate claimed that her decision to forgo the official State Department email system was simply a matter of personal convenience.

“At the time, this didn’t seem like an issue,” Clinton said in a March 11 press conference. Clinton insisted she was not violating any rules or seeking to hide her communications.

“I fully complied by every rule I was governed by,” she claimed.

The senior-most executive branch official in charge of freedom-of-information matters for over a quarter-century flatly disagreed. Daniel Metcalfe, whose job it was to help four administrations interpret the Freedom of Information Act, offer advice, and testify before Congress on their behalf, called Clinton’s explanation laughable.

“What she did was contrary to both the letter and the spirit of the law,” said Metcalfe. “There is no doubt that the scheme she established was a blatant circumvention of the Freedom of Information Act, atop the Federal Records Act.”

Said AP Executive Editor Kathleen Carroll: “The Freedom of Information Act exists to give citizens a clear view of what government officials are doing on their behalf. When that view is denied, the next resort is the courts.”

Another challenge to the U.S. government playing out in the courts is a lawsuit filed this week against the lawless and secretive CIA drone assassination program being carried out by the Obama administration. The ACLU sued the White House in federal court on March 16 in an attempt to compel the release of classified information regarding the program of extrajudicial assassinations.

The lawsuit seeks in particular disclosure of the criteria for placing individuals on the administration’s “kill list.”

“The public should know who the government is killing and why it’s killing them,” said ACLU Deputy Legal Director Jameel Jaffer quite reasonably. “There’s no good reason why legal memos relating to the targeted-killing program should be secret in their entirety. Nor is there any legitimate justification for the government’s refusal to acknowledge individual strikes or to disclose civilian casualties or to disclose the procedures under which individuals are added to government ‘kill list.’”

An article by Matthew Spurlock, Legal Fellow at the ACLU National Security Project, explained why the ACLU decided to take the administration to court:

Our government’s deliberative and premeditated killings – and the many more civilian deaths from the strikes – raise profound legal and ethical questions that ought to be the subject of public debate. The Obama administration has made numerous promises of greater transparency and oversight on drones. In his 2013 State of the Union address, President Obama pledged to make lethal targeting “more transparent to the American people and the world” because “in our democracy, no one should just take my word for it that we’re doing things the right way.”

But the administration has failed to follow through on these commitments to openness, and it is continuing to withhold basic information­. When it has released anything – or been compelled to by lawsuits – discussion of crucial aspects of the program have been omitted or redacted. This lack of transparency makes the public reliant on the government’s self-serving and sometimes false representations about the targeted-killing program.

The Bureau of Investigative Journalism estimates that 2,442 to 3,942 people in Pakistan have been killed by CIA drone strikes since 2004. Hundreds more people are thought to have been killed by U.S. drones in Yemen, Somalia and Afghanistan.

The White House has formally acknowledged that four of those killed by U.S. drone strikes were United States citizens, one of whom was just 16 years old.

The U.S. has come under intense international criticism over its drone assassination program for years, with a February 2014 report issued by Ben Emmerson, the UN’s Special Rapporteur on human rights and counter-terrorism, urging the United States to ensure that “any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian law and international human rights law, in particular the principles of precaution, distinction and proportionality.”

Another UN report, issued by the UN Human Rights Committee in March 2014, expressed grave concern about the U.S.’s practice of targeted killings by drones, particularly “the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.”

Despite these concerns, the United States has decided to not only continue its drone assassination program but to begin exporting drones to countries around the world so that they may also begin remotely assassinating people without charge or trial.

Rather hypocritically, the Obama Administration has said that prospective purchasers of “unmanned aerial systems” must meet certain restrictions set out in the State Department’s “Fact Sheet”. For one, purchasers must use armed drones “in accordance with international law, including international humanitarian law and international human rights law, as applicable.”

Unfortunately, it will be the United States – perhaps the world’s most frequent and flagrant violator of international law – determining whether these standards are met.

Europe grows a pair, criticizes U.S. on Guantanamo and mass surveillance

gtmo-by-zina-saunderFollowing an official visit to the Guantanamo detention facility this week, a delegation of parliamentarians from the Organization for Security and Cooperation in Europe called the prison “a dark spot on the United States’ reputation in the spheres of human rights and rule of law.”

In a joint statement, the chair and vice-chair of the OSCE Parliamentary Assembly’s human rights committee, Isabel Santos and Mehmet Sevki Kulkuloglu, said,

The detention of people under the traditional laws of war is not compatible with the modern fight against terrorism. The unfortunate application of this legal theory by the United States means that inmates could be held indefinitely, awaiting the end of a fight that does not have a clear-cut end point.

Even those who have faced charges in front of military commissions were subject to a changing legal context and serious restrictions related to classified material, all of which raises additional concerns regarding the transparency of the process and detainees’ ability to mount a defense in a fair trial.

Only a limited number of the remaining 122 detainees at Guantanamo have been charged or are expected to face charges in front of a military commission, the delegation noted. Citing the laws of war, the U.S. government has asserted that detainees can be held until the end of hostilities, a potential life sentence given the unclear and amorphous goals of the war on terror.

Although the delegation traveled to Guantanamo partly to ascertain the status and treatment of remaining detainees, it was not authorized to speak to inmates. Instead, they were given a tour of the facilities by military personnel on January 27 and met with officials from the Joint Task Force. They also viewed part of the military commission trial of Abd al Hadi al-Iraqi by closed circuit and met with senior officials from the Department of State and the Department of Defense in Washington ahead of their visit to Guantanamo Bay.

While recognizing progress has been made in relocating detainees from Guantanamo, the delegation noted that much remains to be done. “We applaud the commitment of the U.S. government to close the facility, but the United States cannot achieve this alone. It requires the support of all OSCE countries,” said Santos and Kulkuloglu.

Earlier in the week, another European body, the Parliamentary Assembly of the Council of Europe, issued a report blasting the NSA’s mass surveillance practices disclosed by whistleblower Edward Snowden as threats against “fundamental human rights” that do not substantially contribute to the prevention of terrorist attacks.

It further said it is “deeply concerned” by the “far-reaching, technologically advanced systems” used by the United States to collect, store and analyze the data of private citizens. It describes the scale of spying by the NSA as “stunning.”

The report and resolution approved by the assembly’s Legal Affairs Committee calls for:

  • the collection of personal data without consent only following “a court order granted on the basis of reasonable suspicion”
  • “credible, effective protection” for whistle-blowers exposing unlawful surveillance
    better judicial and parliamentary control of intelligence services
  • an “intelligence codex” defining mutual obligations that secret services could opt into
  • an inquiry into member states’ use of mass surveillance using powers under the European Convention on Human Rights

It also criticizes “the reluctance of the competent US authorities and their European counterparts to contribute to the clarification of the facts, including their refusal to attend hearings organised by the Assembly and the European Parliament, as well as the harsh treatment of whistle-blower Edward Snowden, [that] does not contribute to restoring mutual trust and public confidence.”

Despite these welcome moves by Europeans to compel greater U.S. compliance with international norms, the continent as a whole continues to fall short of what is needed to rein the world’s rogue superpower, particularly as it relates to torture and extraordinary rendition. As Amnesty International points out in a briefing paper issued Jan. 20,

European states implicated in the US Central Intelligence Agency’s (CIA) rendition and secret detention programmes have equivocated about their roles in these operations, relied on secrecy laws to decline comment, or simply flatly denied any involvement in them. Not one has conducted a genuinely effective, broad-based investigation into the role their government played in these operations, let alone held state actors fully accountable and provided victims with an effective remedy. Europe’s assistance in facilitating the human rights violations attendant to the US operations – illegal abduction and transfer, secret detention, enforced disappearance, and torture and other ill-treatment — has long been an “open secret,” with various governments seeking to shield themselves from accountability based on unsubstantiated “national security” grounds, the dubious invocation of “state secrets,” or outright lies.

Amnesty calls on

all European governments implicated in the CIA’s illegal rendition, secret detention and interrogation operations – including, among others, Germany, Lithuanian, Macedonia, Poland, Romania, and UK – to:

Conduct an effective, broad-based investigation as a matter of urgency into their involvement in these operations, with a view toward reforming the laws, policies, and practices that permitted such cooperation;

Ensure that those state actors and any foreign agents responsible for crimes under domestic and international law such as torture and enforced disappearance on the territories of European states are criminally charged and held accountable after fair trials;

Afford victims of the human rights violations attendant to these operations a full and effective remedy.

“Without European help, the USA would not have been able to secretly detain and torture people for so many years. The Senate report makes it abundantly clear that foreign governments were essential to the ‘success’ of the CIA operations – and evidence that has been mounting for nearly a decade points to key European allies,” said Julia Hall, Amnesty International’s expert on counter-terrorism and human rights.

NSA surveillance routinely violating U.S. and international law

nsa-listening-408The Washington Post is reporting that the National Security Agency has broken its own privacy rules or overstepped its legal authority thousands of times each year since 2008, citing top-secret documents provided by whistleblower Edward Snowden.

Most of the infractions involved illegal surveillance of U.S. citizens or foreign intelligence targets in the United States, ranging from significant violations of law to typographical errors that resulted in unintended interception of U.S. emails and telephone calls, according to the Post.

In one instance, the NSA decided it would not report the unintended surveillance of Americans to the FISA court. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a “programming error” confused U.S. area code 202 for 20, the international dialing code for Egypt.

The NSA audit that Snowden provided to the Post, dated May 2012, counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.

In other words, the NSA – which was granted greatly expanded legal authority in 2008 by Congress in the FISA Amendments Act – has been routinely flouting Americans’ legal protections with impunity for years.

“The number of ‘compliance incidents’ is jaw-dropping,” said Jameel Jaffer, ACLU deputy legal director. “The rules around government surveillance are so permissive that it is difficult to comprehend how the intelligence community could possibly have managed to violate them so often.”

He pointed out that “at least some of these incidents seem to have implicated the privacy of thousands or millions of innocent people.”

The incidents are not only infractions of of U.S. law, but also international law.

As Privacy International has pointed 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.

An April 2013 report issued by the United Nations about the threat that government surveillance poses to the enjoyment of basic human rights found 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.

UN Special Rapporteur Frank La Rue 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 touched on 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.”

Toward this end, civil society groups, industry and international experts in communications surveillance law, policy and technology have developed the International Principles on the Application of Human Rights to Communications Surveillance, formally launched last month.

According to the Preamble of the International Principles,

Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognised under international human rights law. Activities that restrict the right to privacy, including communications surveillance, can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim, and are proportionate to the aim pursued.

Before public adoption of the Internet, well-established legal principles and logistical burdens inherent in monitoring communications created limits to State communications surveillance. In recent decades, those logistical barriers to surveillance have decreased and the application of legal principles in new technological contexts has become unclear. The explosion of digital communications content and information about communications, or “communications metadata” — information about an individual’s communications or use of electronic devices — the falling cost of storing and mining large sets of data, and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Meanwhile, conceptualisations of existing human rights law have not kept up with the modern and changing communications surveillance capabilities of the State, the ability of the State to combine and organize information gained from different surveillance techniques, or the increased sensitivity of the information available to be accessed.

The frequency with which States are seeking access to both communications content and communications metadata is rising dramatically, without adequate scrutiny. When accessed and analysed, communications metadata may create a profile of an individual’s life, including medical conditions, political and religious viewpoints, associations, interactions and interests, disclosing as much detail as, or even greater detail than would be discernible from the content of communications. Despite the vast potential for intrusion into an individual’s life and the chilling effect on political and other associations, legislative and policy instruments often afford communications metadata a lower level of protection and do not place sufficient restrictions on how they can be subsequently used by agencies, including how they are data-mined, shared, and retained.

In order for States to actually meet their international human rights obligations in relation to communications surveillance, they must comply with the principles set out below. These principles apply to surveillance conducted within a State or extraterritorially. The principles also apply regardless of the purpose for the surveillance — law enforcement, national security or any other regulatory purpose. They also apply both to the State’s obligation to respect and fulfil individuals’ rights, and also to the obligation to protect individuals’ rights from abuse by non-State actors, including corporate entities. The private sector bears equal responsibility for respecting human rights, particularly given the key role it plays in designing, developing and disseminating technologies; enabling and providing communications; and – where required – cooperating with State surveillance activities. Nevertheless, the scope of the present Principles is limited to the obligations of the State.

The Principles include 13 key points, summarized here:

Legality: Any limitation on the right to privacy must be prescribed by law.

Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.

Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.

Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.

Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users’ rights and to other competing interests.

Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.

Due process: States must respect and guarantee individuals’ human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.

User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.

Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.

Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.

Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.

Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.

Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public and private actors.

With the new revelations exposed by the Post along with all the other Snowden leaks from recent months, it is clear that many – if not all – of these 13 principles are being violated routinely by the NSA’s surveillance activities.

To sign on to the International Principles, click here.

Click here to tell Congress to end the U.S. surveillance state.

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 Slate.com 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.

Trump presidency shaping up to be a disaster for international norms

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A little more than two weeks into the presidency of Donald J. Trump, it is clear that his administration is shaping up to be one of the most hostile to international norms in recent memory. While George W. Bush once dismissed a reporter’s question about whether his Iraq policies conformed with international law by joking, “International law? I better call my lawyer,” Trump’s attitude toward rule of law principles was summed up by a tweet today disparaging a “so-called judge” who put a nationwide hold on the implementation of his travel ban on nationals of seven majority-Muslim countries.

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump tweeted.

The travel ban has sparked a national and international outcry, with demonstrations taking place at airports across the country and numerous world leaders weighing in on Trump’s controversial executive order to halt entries into the United States by citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

“Discrimination on nationality alone is forbidden under human rights law,” said UN High Commissioner for Human Rights Zeid Raad Al Hussein. “The U.S. ban is also mean-spirited, and wastes resources needed for proper counter-terrorism.”

German Chancellor Angela Merkel expressed regret over the U.S. government’s entry ban and explained the U.S.’s international obligations under the 1951 Refugee Convention in a phone call with Trump, Merkel’s spokesman Steffen Seibert said in a statement.

“The Refugee Convention requires the international community to take in war refugees on humanitarian grounds. All signatory states are obligated to do. The German government explained this policy in their call yesterday,” Seibert said.

The OSCE Parliamentary Assembly’s human rights and humanitarian committee chair Ignacio Sanchez Amor expressed concerns that the ban on refugees represents a major step backward in the international community’s efforts to develop a cohesive response to the refugee and migrant crisis, and noted that on humanitarian grounds the United States cannot send refugees back to countries where they face serious threats to their life or freedom.

“This is the core principle of non-refoulement that is at the heart of the 1951 Refugee Convention, and is now a widely accepted norm,” he said.

Sanchez Amor also pointed out that the travel ban is contrary to the spirit of the OSCE’s founding document, which the United States signed along with 34 other countries of North America, Europe and Eurasia in 1975.

“To the extent that this travel ban may affect those with dual nationalities or residents of OSCE countries, I note that it may contravene the 1975 Helsinki Final Act’s stipulation that signatories should ease regulations concerning movement of citizens within the OSCE area,” he said.

In this document, the United States agreed:

to facilitate wider travel by their citizens for personal or professional reasons and to this end they intend in particular:

– gradually to simplify and to administer flexibly the procedures for exit and entry;

– to ease regulations concerning movement of citizens from the other participating States in their territory, with due regard to security requirements.

In addition to whipping up a frenzy of international condemnation over the travel ban, the Trump administration is also drawing fire for his nominations to lead the nation’s intelligence services. Yet, despite serious concerns about Trump’s pick to lead the CIA, Mike Pompeo, for his pro-torture statements and lax attitude about the use of mass surveillance, the U.S. Senate confirmed him on Jan. 23 by a vote of 66-32.

“Pompeo’s responses to questions about torture and mass surveillance are dangerously ambiguous about whether he would endorse abusive practices and seek to subvert existing legal protections,” said Human Rights Watch’s Maria McFarland Sanchez-Moreno. “Pompeo’s failure to unequivocally disavow torture and mass surveillance, coupled with his record of advocacy for surveillance of Americans and past endorsement of the shuttered CIA torture program, make clear that he should not be running the CIA.”

Democratic Oregon Sen. Ron Wyden said Pompeo was the “wrong man for the job.”

“He has endorsed extreme policies that would fundamentally erode liberties and freedoms of our people without making us safer,” Wyden said. He said Pompeo’s answers to questions from some senators have been “vague” and “contradictory,” making it impossible to know what Pompeo believes.

Nevertheless, his nomination sailed through the Senate, likely paving the way for a return to torture as U.S. policy, as President Trump has promised to do on numerous occasions. The president recently even defended torture on national television, stating unequivocally that it “works.”

Shortly following Pompeo’s confirmation, his deputy director at the CIA was named as Gina Haspel, who, according to the New York Times “played a direct role in the CIA’s ‘extraordinary rendition program,’ under which captured militants were handed to foreign governments and held at secret facilities, where they were tortured by agency personnel.”

She also ran the CIA’s first black site prison in Thailand and oversaw the brutal interrogations of two detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri.

In addition, she played a vital role in the destruction of interrogation videotapes that showed the torture of detainees both at the black site she ran and other secret agency locations. As The Intercept’s Glenn Greenwald explains:

The concealment of those interrogation tapes, which violated both multiple court orders as well the demands of the 9/11 Commission and the advice of White House lawyers, was condemned as “obstruction” by Commission Chairs Lee Hamilton and Thomas Keane. A special prosecutor and Grand Jury investigated those actions but ultimately chose not to prosecute.

As if these developments were not bad enough, it also looks as if Trump is going to continue the reckless drone assassination program that was developed by his predecessor, Barack Obama. In one of his first military actions as president, Trump ordered an attack on a village in Yemen on Jan. 29 that killed as many as 23 civilians, including a newborn baby and an eight-year-old girl, Nawar al-Awlaki.

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Nawar al-Awlaki, eight-year-old girl killed by U.S. drone on Jan. 29, 2017

Nawar was the daughter of the al-Qaida propagandist and American citizen Anwar al-Awlaki, who was killed in a September 2011 US drone strike in Yemen. Awlaki’s 16-year-old son Abdulrahman was killed in a second drone strike soon afterwards.

Following the tragic killing of this young girl, The Guardian pointed out that Trump has previously endorsed killing relatives of terrorist suspects, which is a war crime. “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families,” he told Fox News in December 2015.

The human rights organization Reprieve pointed out:

Secret US strikes, in countries where the US is not at war, are widely considered to violate international law. Previous research by Reprieve has found that, in attempts to kill 41 named individuals in Yemen and Pakistan, US strikes killed some 1,147 unknown men, women and children.

It looks as though this is one policy area that we should expect some continuity between Obama and Trump. It also looks as if Trump will be moving rapidly to reinstate the torture regime that was halted by Obama in 2009. It should be noted, however, that the use of torture – although illegal – was never prosecuted by the Obama administration, and this lack of law enforcement ensured that it would remain a “policy option” for a fascist president like Donald Trump to pull off the shelf.

Obama’s dismal human rights legacy in focus as Trump takes helm

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President Barack Obama’s human rights record is under criticism once again as he prepares to step down after eight years leading the United States government. His record has been a major disappointment to many in the human rights community, who now genuinely worry how much worse U.S. policies will become under President Donald J. Trump.

As this blog has documented since 2011, the U.S. government’s human rights record has been dismal under Obama, with troubling policies including his lack of prosecutions of torturers – effectively institutionalizing a system of legal impunity for war crimes – his utter failure to follow through on closing the travesty of justice known as Guantanamo Bay, waging a “war on whistleblowers” and suppressing freedom of information, codifying illegal policies of extrajudicial assassinations, expanding mass surveillance programs in violation of individual privacy, and failing to take effective action to ensure accountability for a nationwide epidemic of police brutality.

In terms of promoting fundamental freedoms abroad, his administration has “treated human rights as a secondary interest – nice to support when the cost was not too high, but nothing like a top priority,” according to Human Rights Watch’s Kenneth Roth.

In a recent article for Foreign Policy, Roth writes:

Obama took office with great promise, announcing on his second day that he would stop CIA torture immediately and close the military prison at Guantánamo Bay, Cuba, within a year. By all accounts, the torture did stop. But Obama has steadfastly refused to prosecute those responsible or even to allow the release of much more than the summary of a comprehensive Senate Intelligence Committee report that documented it. As a result, rather than reaffirming the criminality of torture, Obama leaves office sending the lingering message that, should future policymakers resort to it, prosecution is unlikely. Given Trump’s campaign rhetoric about reinstating waterboarding (“or worse”), this is hardly an academic point, even considering the opposition of his nominee for defense secretary.

With respect to surveillance, Roth notes that “Obama seems to have continued and expanded programs begun by George W. Bush that lead to massive invasions of privacy.” When whistleblower Edward Snowden alerted the public to these programs, Obama supported legislation to limit the National Security Agency’s ability to collect phone records in bulk under one program, but “most of the mass privacy violations that Snowden disclosed remain unaddressed,” Roth notes.

When it comes to closing Guantanamo, Roth says the president’s efforts have been halfhearted:

Early in his tenure, he moved slowly, enabling Congress to adopt legislation — which he refused to veto — imposing various obstacles to transferring detainees overseas and barring their transfer to the United States even for trial. Facing political resistance, he reversed early plans to try the accused 9/11 plotters in a federal district court in New York, where their trials would long ago have been completed. Instead, the suspects were placed before Guantánamo’s military commissions — made-from-scratch tribunals replete with procedural problems. Seemingly designed to avoid public revelation of the details of the suspects’ torture, the commissions have made virtually no progress toward actual trials, which will not begin until long after Obama leaves office, if ever.

close-gitmoRoth notes that Obama has slowly reduced the number of prisoners held at Guantanamo by transferring many abroad, but “his insistence on holding some two dozen detainees indefinitely without charge makes it easier for Trump to repopulate Guantánamo, as he has threatened.”

When it comes to Guantanamo, Amnesty International is imploring Obama to do whatever he can in his last days in office to close the legal abomination before Trump – who has threatened to repopulate the prison and reinstate a torture regime – takes over as president on January 20. In an open letter to Obama, Amnesty International USA Executive Director Margaret Huang begs the president, “Don’t Leave Guantánamo to Trump.”

“Dear President Obama,” she writes:

On behalf of Amnesty International’s 1.2 million supporters in the United States, I write to make a final plea that you use all the powers of your office to close the detention camp at Guantánamo Bay. We are gravely concerned that if you fail to do so, President-elect Trump may attempt to bring dozens or even hundreds of people there, to be held in unlawful detention for decades and possibly subjected to torture and other forms of cruel treatment.

Despite your positive actions to date, your legacy will include failing to cure this corruption of our country’s ideals of justice and fairness. You will leave behind Guantánamo as a system of injustice that—having survived for 15 years, two political parties and four presidential terms of office—may remain open for the foreseeable future.

Our concern is heightened by the sharp rise in anti-Muslim and anti-immigrant rhetoric during the election. Proposals for large-scale detention without charge, which once seemed inconceivable, are now on the table as options your successor may pursue. Guantánamo, with its shameful tradition of secrecy and insularity from legal process, would be all too convenient a location for mass imprisonment without charge, returning the United States to one of its grimmest chapters.

“It is past time to shut down the detention facility at Guantánamo,” you said recently at MacDill Air Base, and not for the first time. You emphasized that Congress would be “judged harshly by history” due to restrictions it placed on your ability to transfer detainees. However, despite your concerted efforts, it is your presidency that will be judged harshly — by history, the international community and human rights supporters across the United States and the rest of the world — if you fail to take all possible measures to transfer those remaining out of Guantánamo.

Your actions now will impact this country’s decisions on detention without charge, torture and human rights for decades to come by informing the way young people understand the injustice of Guantánamo. People under the age of 25 have spent all or much of their lives with Guantánamo open. Most are too young to remember the photos of torture at Abu Ghraib, or of men at Camp X-Ray kneeling next to their cages. They do not know the collective shock and moral outrage that millions of Americans felt then, which led political figures from Colin Powell to John McCain to call for the closure of Guantánamo. Through your actions now, you can ensure new generations learn this history—and do not repeat it.

We also urge your administration, in closing Guantánamo, to abandon the military commissions. These ill-conceived tribunals simultaneously fail to respect human rights principles or achieve justice. To be sure, anyone responsible for the crimes against humanity committed on September 11, 2001 should be brought to justice in fair trials. Guantánamo and the military commissions have not—and cannot—provide that justice. The 15th anniversary of the 9/11 attacks recently passed, and those who lost loved ones in the attacks have a right to see justice in their lifetime. However, not only do the military commission trials seem unlikely to begin—much less conclude—for years to come, when they do take place they will fail to meet international fair trial standards.

You began your presidency with an executive order to end the Guantánamo detentions and to close the detention camp there. We urge you to end it with bold action to realize your promise.

gitmo-solThe human rights group urges supporters to send messages to Obama urging him to close this travesty of justice once and for all, and to prioritize other human rights matters in the waning days of his presidency.

It is not clear, however, how much stock Obama places in the concerns of the human rights community. He spoke rather dismissively of “activist organizations” in a recent interview with The Atlantic, in which he defended his drone assassination program, which has killed hundreds of innocent people including U.S. citizens.

“I think right now we probably have the balance about right,” he told The Atlantic, referring to the ratio of killed terrorists and innocent civilians. “Now, you wouldn’t know that if you talked to Human Rights Watch or Amnesty International or some of the international activist organizations.”

He further asserted that “the internal reforms we put in place had less to do with what the left or Human Rights Watch or Amnesty International or other organizations were saying and had more to do with me looking at sort of the way in which the number of drone strikes was going up and the routineness with which, early in my presidency, you were seeing both DOD and CIA and our intelligence teams think about this.”

obamadroneIt troubled him, he said, because the drone strikes could enable “a president who can carry on perpetual wars all over the world, and a lot of them covert, without any accountability or democratic debate.” Of course, this is exactly what Obama has done, as has been repeatedly pointed out.

As Naureen Shah of Amnesty International told The Intercept last year, “What’s so interesting is that President Obama acknowledges this problem – that future presidents will be empowered to kill globally, and in secret. What he doesn’t acknowledge is how much of a role his administration had in making that a bizarre normal.”

Another legacy that Obama is leaving behind is torture impunity, which he has instituted by failing to launch prosecutions of gross human rights violations during the Bush administration. By shielding torturers from criminal justice, Obama has done more than any other president in history in establishing torture as little more than a “policy option” for presidents to utilize or not depending on the political whims of the day.

To prevent torture from being reinstituted by the incoming Trump administration, the National Religious Campaign Against Torture is calling on Obama to release in full the Senate’s torture report and force “appropriate officials” to read it in order to ensure that they “learn from the past.” Although White House Counsel Neil Eggleston recently announced that Obama will archive one copy of the torture report, it will remain classified for at least 12 years. “At this time, we are not pursuing declassification of the full Study,” he wrote recently in a letter to Sen. Feinstein.

In an action alert, the online advocacy group Roots Action is urging supporters to sign a petition to President Obama urging him to release the full report.

Obama is also being urged by a range of organizations to free the U.S. government’s political prisoners, including Chelsea Manning, Jeffrey Sterling and Leonard Peltier. For more on those cases, click here.

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Obama urged to release U.S. political prisoners in waning days of his presidency

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Human rights advocates are urging Barack Obama to release the U.S. government’s political prisoners before he steps down as president on January 20, 2017.

Among the cases highlighted by human rights defenders include imprisoned U.S. whistleblowers and activists such as Chelsea Manning, Jeremy Hammond, Jeffrey Sterling, and Leonard Peltier. Campaigners are also pressing Obama to pardon NSA whistleblower Edward Snowden, who has been living in exile in Russia since exposing serious abuses and crimes by the intelligence community in 2013.

As one of its priority actions, Amnesty International is highlighting Peltier’s case as a clear-cut case of government overreach and misconduct, in which the government itself has acknowledged that it lacks any evidence. The Native American activist is currently serving two life sentences for the deaths of FBI agents Jack Coler and Ronald Williams.

“Amnesty International has studied [Peltier’s] case extensively over many years and remains seriously concerned about the fairness of proceedings leading to his trial and conviction,” the human rights organization says in an action alert. “Amnesty believes that political factors may have influenced the way in which the case was prosecuted.”

Amnesty points out that the U.S. Parole Commission has acknowledged that, “the prosecution has conceded the lack of any direct evidence that [Peltier] personally participated in the executions of two FBI agents.”

The group recently produced a video on his case to draw attention to the injustice endured by this 71-year-old diabetic who is in dire need of medical care that is unavailable in prison:

Regarding political prisoner Chelsea Manning, who is serving a draconian 35-year sentence for exposing U.S. war crimes and other embarrassing state secrets, a coalition of human rights organizations has written to Obama urging the outgoing president to do the right thing and release this courageous whistleblower by commuting her sentence to time served.

In a Dec. 5 letter to the president, groups including the ACLU, Lambda Legal, League of United Latin American Citizens, the National Organization for Women, and the Transgender Law Center wrote:

We support commuting her court-martial sentence to time served. Ms. Manning is currently in the seventh year of a thirty-five year sentence for disclosing classified information to the media with the intention of raising public awareness about issues she found concerning, including the impact of war on innocent civilians. Our organizations may be of differing opinions concerning Ms. Manning’s actions; however, we stand united in our support for her clemency petition.

As Evan Greer, campaign director at Fight for the Future, pointed out,

Transparency activist Chelsea Manning has already spent more time behind bars than any other whistleblower in U.S. history. She’s been systematically mistreated, subjected to torture, and denied access to desperately needed health care while serving a 35 year sentence in an all-male military prison. … If President Obama does not grant Chelsea’s clemency request before he leaves office, he is condemning her to a nightmarish fate.

Earlier this month, a petition asking President Obama to commute Manning’s prison sentence reached the 100,000-signature threshold to receive a response from the White House.

The international advocacy group Index on Censorship provides details on other U.S. political prisoners that Obama is being urged to pardon:

Jeffrey Sterling

Considered to be a whistleblower by some, Jeffrey Sterling, who worked for the CIA from 1993 to 2002, was charged under the Espionage Act with mishandling national defense information in 2010. Sterling was sentenced to three and a half years in prison for his contributions to New York Times journalist James Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, which detailed the failed CIA Operation Merlin that may have inadvertently aided the Iranian nuclear weapons program. Risen was subpoenaed twice to testify in the case United States v Sterling but refused, resulting in a seven-year legal battle.

On 11 May 2015, at Sterling’s sentencing, judge Leonie Brinkema stated that although she was moved by his professional history, she wanted to send a message to other whistleblowers of the “price to be paid” when revealing government secrets. …

Edward Snowden

Although the most famous whistleblower on this list has not been tried and sentenced, Edward Snowden could face up to 30 years in prison for his multiple felony charges under the World War I-era Espionage Act. Snowden was charged on 14 June 2013 for his role in leaking classified information from the National Security Agency, notably a global surveillance initiative.

Snowden has expressed a willingness to go to prison for his actions but refuses to be used as a “deterrent to people trying to do the right thing in difficult situations” as so many whistleblowers often are.

Barrett Brown

The political climate in the US has become so hostile towards leaks that even journalists can face repercussions for their involvement with whistleblowers. American journalist and essayist Barrett Brown’s case became well-known after he was arrested for copying and pasting a hyperlink to millions of leaked emails from Stratfor, an American private intelligence company, from one chat room to another. The leak itself had been orchestrated by Jeremy Hammond, who is serving 10 years in prison for his participation, and did not involve Brown. Brown faced a sentence of up to 102 years in prison, once again for sharing a hyperlink, before the 12 counts of aggravated identity theft and trafficking in stolen data charges were dropped in 2013.

Although the dismissal of these charges was heralded as a victory for press freedom, Brown was still convicted of two counts of being an accessory after the fact and obstructing the execution of a search warrant. On 22 January 2015, Brown was sentenced to 63 months in prison and ordered to pay $890,250 in fines and restitution to Stratfor.

Barrett Brown was released from prison last month, after serving four years under harsh and punitive conditions.

While incarcerated, Brown wrote award-winning columns about an endless stream of abuses he endured in prison, including misconduct by prison officials seeking to silence him and violate his rights and the rights of other inmates. This included multiple stints in solitary and restrictions on his access to the press and use of email.

While there is no single internationally agreed upon designation of what constitutes a political prisoner, the intergovernmental organization Council of Europe in 2012 agreed upon one of the most useful and balanced definitions ever put forward.

The resolution adopted  by the Parliamentary Assembly of the Council of Europe includes the following criteria: a person is considered a political prisoner “if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of,” or “if, for political motives, he or she is detained in a discriminatory manner as compared to other persons.”

Amnesty International’s definition is a bit broader, and it is clear that under its criteria all of these cases would qualify as political prisoners. As Amnesty has previously explained its use of the term “political prisoner,”

In AI’s usage, the term includes any prisoner whose case has a significant political element: whether the motivation of the prisoner’s acts, the acts in themselves, or the motivation of the authorities. “Political” is used by AI to refer to aspects of human relations related to “politics”: the mechanisms of society and civil order, the principles, organization, or conduct of government or public affairs, and the relation of all these to questions of language, ethnic origin, sex or religion, status or influence (among other factors). The category of political prisoners embraces the category of prisoners of conscience, the only prisoners who AI demands should be immediately and unconditionally released, as well as people who resort to criminal violence for a political motive. In AI’s use of the term, here are some examples of political prisoners:

a person accused or convicted of an ordinary crime carried out for political motives, such as murder or robbery carried out to support the objectives of an opposition group;

a person accused or convicted of an ordinary crime committed in a political context, such as at a demonstration by a trade union or a peasants’ organization;

a member or suspected member of an armed opposition group who has been charged with treason or “subversion”.

Although the United States would never acknowledge that it holds political prisoners, it is clear that under commonly used definitions of the term, many cases in the U.S. certainly apply. Chelsea Manning is a political prisoner, as her harsh sentence was applied for purely political motives, as was made clear during her sentencing.

“This court must send a message to those who release confidential information,” prosecutor Army Capt. Joe Morrow said to Judge Denise Lind during the sentencing phase of the trial. “There is value in deterrence, Your Honor. This court must send a message to any soldier contemplating stealing classified information.”

So, Manning, just like Sterling and others, is rotting in prison simply to send a “message” to other would-be whistleblowers. It is long past time for Obama to show some integrity and let these prisoners go.

free-all-political-prisoners

As U.S. pushes for cybersecurity norms, civil society pushes for privacy norms

nsa privacy rights

While the U.S. government pushes for the adoption of international norms on cybersecurity, including on questions of critical infrastructure protection, a grassroots effort is underway to establish binding international law to protect the rights of citizens from electronic surveillance, including the bulk collection of data exposed by NSA whistleblower Edward Snowden more than two years ago.

A campaign for a new global treaty against government mass surveillance – entitled the “The International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers,” or the “Snowden Treaty” for short – was launched yesterday in New York. While the full text of the treaty is yet to be released, an executive summary calls on signatories “to enact concrete changes to outlaw mass surveillance,” increase efforts to provide “oversight of state surveillance,” and “develop international protections for whistleblowers.”

As reported yesterday at The Intercept, “Since the Snowden revelations there has been increasing public recognition of the threat to global privacy, with the United Nations announcing the appointment of its first Special Rapporteur on this issue in March, followed by calls for the creation of a new Geneva Convention on internet privacy.”

The treaty effort is being spearheaded by the global activist organization Avaaz, working closely with David Miranda, who was detained and interrogated by British authorities at Heathrow airport in 2013 in relation to his work exposing NSA and GCHQ abuses with his partner Glenn Greenwald.

“We sat down with legal, privacy and technology experts from around the world and are working to create a document that will demand the right to privacy for people around the world,” Miranda said. Pointing out that governments and private corporations are moving to protect themselves from spying and espionage, Miranda added that “we see changes happening, corporations are taking steps to protect themselves, and we need to take steps to protect ourselves too.”

Snowden spoke via a video link at the event launching the campaign to say that the treaty effort is part of a larger movement to build popular pressure to convince governments to recognize privacy as a fundamental human right – a right already codified in the International Convention on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights.

Although Article 17 of the ICCPR stipulates that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation,” some advocates believe that further elaboration is needed to ensure the full protection of privacy rights. The UN Human Rights Committee has raised concerns with the United States that its surveillance activities may violate both Articles 17 and 19, but no real changes to policy have been made.

The treaty is also necessary, Snowden said, to ensure internationally guaranteed protections to whistleblowers such as himself. Snowden cited the threat of pervasive surveillance in the United States, stating that “the same tactics that the NSA and the CIA collaborated on in places like Yemen are migrating home to be used in the United States against common criminals and people who pose no threat to national security.”

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