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War criminals, whistleblowers and America’s ‘core values’

In reaction to the latest atrocity of the U.S. war in Afghanistan – the methodical murder of 16 Afghan civilians over the weekend –  Secretary of State Hillary Clinton asserted that “This is not who we are, and the United States is committed to seeing those responsible held accountable.”

“This incident is tragic and shocking, and does not represent the exceptional character of our military and the respect that the United States has for the people of Afghanistan,” said President Barack Obama in a statement.

Speaking at the White House Tuesday, Obama called the incident “heartbreaking” and said it does not reflect American values or represent the U.S. military.

It is a now familiar refrain, a slight variation on previous U.S. apologies, such as those issued over the January incident in which U.S. Marines were captured on video urinating on the corpses of suspected Taliban fighters.

In response to that episode, Clinton said that the “deplorable behavior” of the Marines “is absolutely inconsistent with American values.” A Pentagon spokesman further emphasized that “the actions portrayed are not consistent with our core values and are not indicative of the character of the Marines in our Corps.”

So what are the core values that these officials keep alluding to?

President Obama explained these values, fittingly, during his 2009 speech in which he announced the surge of 30,000 additional troops he was sending to Afghanistan. To prevail in the war against the Taliban and al-Qaeda, he said,

[W]e must draw on the strength of our values – for the challenges that we face may have changed, but the things that we believe in must not. That is why we must promote our values by living them at home – which is why I have prohibited torture and will close the prison at Guantanamo Bay. And we must make it clear to every man, woman and child around the world who lives under the dark cloud of tyranny that America will speak out on behalf of their human rights, and tend to the light of freedom, and justice, and opportunity, and respect for the dignity of all peoples. That is who we are. That is the moral source of America’s authority.

Since that time, of course, the prison at Guantanamo Bay has remained open, the U.S. has failed to speak out on behalf of the human rights of those living under tyranny in countries such as Bahrain and Uzbekistan – and indeed continues supplying weapons to those unsavory regimes – and has come under intense international criticism for its treatment of alleged whistleblower Bradley Manning, treatment which some say has amounted to torture.

The U.S. has also expanded its wars in the Middle East and Central Asia through the use of unmanned aerial drones, which have been strongly criticized by the international community as undermining the prohibition on the use of force in the UN Charter. Over the past few days, as the U.S. has scrambled to explain and apologize for the weekend massacre of 16 Afghans, U.S. drone strikes have killed at least 64 people in Yemen.

Ironically, as Clinton and Obama were proclaiming America’s “core values” of human rights in an effort at damage control following the massacre in Afghanistan, the UN Special Rapporteur on Torture Juan Mendez was slamming the United States for its mistreatment of Manning, which he noted violated international law, including the International Covenant on Civil and Political Rights and the Convention against Torture.

As Mendez told the Guardian newspaper:

I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.

Following a 14-month investigation of Manning’s treatment, Mendez noted in a formal report issued on Feb. 29:

According to the information received, Mr. Manning was held in solitary confinement for twenty-three hours a day following his arrest in May 2010 in Iraq, and continuing through his transfer to the brig at Marine Corps Base Quantico.  His solitary confinement  – lasting about eleven months  – was terminated upon his transfer from Quantico to the Joint Regional Correctional Facility at Fort Leavenworth on 20 April 2011.

In his report, the Special Rapporteur stressed that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions.”

Moreover, “[d]epending on the specific reason for its application, conditions, length, effects and other circumstances, solitary confinement can amount to a breach of article 7 of the International Covenant on Civil and Political Rights, and to an act defined in article 1 or article 16 of the Convention against Torture.”

Manning, a 24-year-old Iraq veteran, was arrested on May 29, 2010 outside Baghdad, where he was working as an intelligence analyst. He has been charged with 22 counts, including aiding the enemy, relating to the leaking a massive trove of state secrets to the whistleblowing website WikiLeaks.

The secrets that Manning is alleged to have shared with WikiLeaks include incontrovertible evidence of U.S. war crimes, including the “Collateral Murder” video documenting the callous killing of over a dozen people in the Iraqi suburb of New Baghdad in 2007 – including two Reuters news staff.

To date, Manning is the only individual who has been arrested in relation to that tragic incident.

Other secrets allegedly leaked by Manning include “the Afghan War Logs,” a huge cache of secret U.S. military files providing a devastating portrayal of the deteriorating war in Afghanistan. The war logs, made public in July 2010, revealed how coalition forces have killed hundreds of civilians in unreported incidents and how a secret “black” unit of special forces has hunted down suspected Taliban leaders for “kill or capture” without trial.

As the Guardian reported,

The logs detail, in sometimes harrowing vignettes, the toll on civilians exacted by coalition forces: events termed “blue on white” in military jargon. The logs reveal 144 such incidents.

Some of these casualties come from the controversial air strikes that have led to Afghan government protests, but a large number of previously unknown incidents also appear to be the result of troops shooting unarmed drivers or motorcyclists out of a determination to protect themselves from suicide bombers.

At least 195 civilians are admitted to have been killed and 174 wounded in total, but this is likely to be an underestimate as many disputed incidents are omitted from the daily snapshots reported by troops on the ground and then collated, sometimes erratically, by military intelligence analysts.

Since the release of the Afghan War Logs, evidence has continued to surface regarding atrocities being committed with chilling regularity in Afghanistan, including the activities of the 5th Stryker Brigade’s “kill team,” which made headlines last year with the publication of grisly war photos by Rolling Stone.

The kill team had staged three separate murders of Afghan civilians in Kandahar province and had attacked a whistleblowing private who had alerted military police of the kill team’s activities.

The investigation into those responsible for the kill team’s crimes led to “a letter of admonition” of Col. Harry D. Tunnell IV, the commander in charge of the 5th Stryker Brigade.

A secret U.S. Army report revealed by Der Spiegel last year confirmed that at least part of the blame for the culture of permissibility that enabled the kill team’s activities fell on Tunnell. As Der Spiegel reported,

The report suggests that Tunnell helped to create, at least in part, conditions that made the cruel actions of the kill team soldiers possible. “Tunnell’s inattentiveness to administrative matters … may have helped create an environment in which misconduct could occur,” the report reads.

The US Army spent one month investigating the circumstances surrounding the kill team incidents. The report was compiled by General Stephen Twitty, who interviewed 80 Army personnel of various ranks. The 532-page report paints a damning picture of the military culture in the Stryker Brigade Combat Team (SBCT), which was under Tunnell’s command and which the “kill team” soldiers belonged to.

According to one witness quoted in the Army’s report, Tunnell himself had spoken about “small kill teams,” which he wanted to ruthlessly hunt down the Taliban. He outlined his preferred “counterguerrilla” strategy in speeches to soldiers under his command, which amounted to “search and destroy” missions to ferret out Taliban fighters.

One soldier quoted in the report summed it up by saying: “If I were to paraphrase the speech and my impressions about the speech in a single sentence, the phrase would be: ‘Let’s kill those motherfuckers.'”

While Tunnell got off with a reprimand, the soldier who led the kill team was convicted of premeditated murder and sentenced to life in prison, eligible for parole in nine years.

The 38-year-old Army staff sergeant who allegedly murdered 16 Afghan civilians over the weekend – including nine children and three women – may face the death penalty, according to Defense Secretary Leon Panetta.

If executing the soldier is intended to demonstrate America’s core values, however, the U.S. may want to reconsider this approach. The United States’ infatuation with the death penalty has long a source of alienation with U.S. allies, particularly in Europe. Following last year’s controversial execution of Troy Davis, for example, European allies expressed shock and dismay.

EU foreign policy chief Catherine Ashton said, “The EU opposes the use of capital punishment in all circumstances and calls for a universal moratorium. The abolition of that penalty is essential to protect human dignity.”

Rather than responding to the weekend’s war crimes in Afghanistan with even more bloodlust, the United States might do well to consider a new strategy, perhaps starting by ending its wars and prosecuting all war crimes in Iraq and Afghanistan all the way up the chain of command.

Releasing alleged whistleblower Bradley Manning from prison and compensating him for his months of “cruel, inhuman and degrading treatment” would also be a welcome step toward demonstrating America’s commitment to its “core values.”

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.

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

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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.”

Without prosecutions, Senate’s ‘reaffirmation’ of torture prohibition largely meaningless

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Human rights groups are welcoming the Senate’s adoption yesterday of an anti-torture amendment as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2016, despite the fact that it doesn’t provide for any accountability to those who have authorized or committed torture in the past.

Officially called “the reaffirmation of the prohibition on torture,” the amendment, introduced last week by Senator John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.), effectively prohibits U.S. officials from using torture techniques including mock executions, sexual humiliation, hooding prisoners and waterboarding by requiring they follow the U.S. Army Field Manual. It was adopted by a vote of 78-21.

“Without this amendment, abuses committed in the name of national security, such as forced rectal feeding and mock burials, would be all too easy for the CIA to repeat in a climate of fear-mongering about terrorism,” said Amnesty International USA’s executive director, Steven W. Hawkins.

Human Rights First praised what it called the “historic bipartisan amendment that prevents the future use of torture by any U.S. government agency.” The legislation, according to the group, will “ensure that the use of torture or cruel treatment is never again the official policy of the United States.”

But will it?

The fact remains that the torture techniques authorized by the White House and committed by the CIA in the years following 9/11 were already illegal – serious violations of both international law and domestic law – so it’s not entirely clear what is new about this “reaffirmation” of the prohibition on torture.

In fact, torture has long been banned by Common Article 3 of the four Geneva Conventions, which was further codified by the 1987 UN Convention Against Torture (CAT). The CAT provides a clear-cut definition of what constitutes the practice — which the U.S. is clearly guilty of as documented in the Senate report on torture released last year.

As stated in Article 1 of the CAT:

[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The CAT further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

As a state party to both the Geneva Conventions and the CAT, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.

The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)

The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

In other words, it is not enough for the Senate to simply “reaffirm” a so-called “torture ban.” There is a legally binding obligation under the Convention Against Torture, in fact, to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

For its part, Amnesty International did acknowledge yesterday – despite generally welcoming the Senate vote – that more must be done to bring the United States into compliance with its international obligations:

This legislation is one step of many that the U.S. government must take to guard against a return to torture and other ill-treatment and abide by its international human rights obligations. The U.S. government has not brought any criminal charges against those responsible for torture and enforced disappearances in the CIA secret detention program. Nor has the U.S. government withdrawn U.S. reservations to UN human rights treaties—reservations that the George W. Bush-era Justice Department Office of Legal Counsel exploited to write permission slips for torture and other ill-treatment.

The torturers in the CIA have for too long been protected by the Obama administration and U.S. Department of Justice, even while human rights defenders and whistleblowers such as John Kiriakou, Jeffrey Sterling and Chelsea Manning have been sent away for long prison terms for much less serious offenses. It is long past time for this double standard to be lifted and the committers (and authorizers) of torture to be prosecuted to the fullest extent of the law.

Leak cases’ double standards bolster political prisoner claims

Although many government officials and contractors have gone to prison in recent years as a result of the Obama administration’s unprecedented “war on whistleblowers,” David H. Petraeus, the retired general and former director of the CIA, won’t spend a day behind bars if the government has its way.

This is despite the fact that Petraeus has agreed to plead guilty to giving highly sensitive classified information to Paula Broadwell, his biographer and mistress, in 2011 – a crime comparable to those of Stephen Jin-Woo Kim, a former State Department intelligence advisor, who was sentenced to 13 months in prison after pleading guilty to disclosing a report about North Korea to a reporter, or John Kiriakou, a 14-year CIA veteran, who got 30 months for disclosing to a reporter the identity of an undercover operative who subjected suspected terrorists to torture.

There is also the ongoing case of former CIA officer Jeffrey Sterling who was charged under the Espionage Act for disclosing classified information about an ill-conceived and reckless CIA mission meant to slow Iran’s nuclear program to New York Times reporter James Risen, who then wrote about the CIA’s Iranian plot in his 2006 book, State of War. A Washington, DC, area jury convicted Sterling last month and he now faces a prison sentence of up to 80 years.

Then of course there is the case of Pfc. Chelsea (formerly Bradley) Manning, a former Army intelligence officer who is serving a 35-year prison sentence for divulging three important bodies of documents to WikiLeaks: the Iraq war logs, which consist of 391,000 field reports, 90,000 Afghan war logs, providing a devastating portrayal of the deteriorating war in Afghanistan, and 260,000 diplomatic cables, possibly the most controversial of his leaks.

The government had sought a 60-year prison sentence for the Army private, with military lawyers saying that a stiff sentence was necessary to send a message to other conscientious soldiers or government employees who might be considering exposing government wrongdoing.

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

As Nathan Fuller of the Bradley Manning Support Network explained at the time,

The prosecution insisted there has to be deterrence and we need to set an example out of Bradley Manning. They made it clear that anyone else thinking of releasing classified info should look at Manning. They want to go above and beyond what would be considered a reasonable sentence.

In contrast, the plea deal reached with Petraeus for leaking Top Secret/Secure Compartmented Information materials to his mistress – with a punishment of a $40,000 fine and two years of probation – amounts to a slap on the wrist.

This discrepancy of punishment is all the more glaring considering the sensitivity of the materials that he disclosed. According to the criminal complaint, among the materials in the eight “Black Books” Petraeus shared with Broadwell were:

…classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.

The Black Books contained national defense information, including Top Secret/SCI and code word information. Petraeus reportedly kept those Black Books full of code word information including covert identities and conversations with the President “in a rucksack up there somewhere.”

The blatant inconsistency in the treatment of Petraeus and other, less favored government leakers such as Kiriakou, Sterling and Manning has been obvious enough to lead to a flurry of commentary lamenting the apparent double standards of the government. “The whiff of a double standard is overwhelming,” wrote the Los Angeles Times in an editorial today. “If anything, a leader at Petraeus’ level should be held to a higher standard than lower-level officials or contractors.”

But in a deeper sense, these wildly divergent sentences are not just evidence of double standards, but of the fact the U.S. government engages in a systematic policy of repression of political “enemies,” solidifying the status of victims such as Manning as political prisoners.

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

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

With the slap on the wrist that Petraeus is receiving for divulging classified documents, it stretches credulity to argue that Manning and Sterling are not being treated in a discriminatory manner, or that the length of detention is consistent with the crime. After all, how can one person get a 35-year sentence and another never spend a day in jail for committing essentially the same offense? It’s clear that the government has singled out Manning for a discriminatory, unnecessarily harsh sentence, and if they have their way will do the same to Sterling.

This makes them political prisoners.

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When the World Wide Web fought back against the National Security Agency

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The Internet fought back yesterday against the ever-encroaching mass-surveillance state being imposed by the NSA and associated government agencies in the U.S. and its international partners. Members of Congress were bombarded with emails and phone calls as part of a coordinated day of action, billed as “The Day We Fight Back,” involving more than 6,000 websites and countless more individuals.

According to Inagist.com, the day of action resulted in at least 80,741 phone calls, 163,859 emails, 220,182 petition signatures, and more than 700,000 visitors to the website.

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The online protest began at midnight on Feb. 11 and continued throughout the day. Participating websites included major online platforms such as Reddit and Tumblr and a number of advocacy groups, including Upworthy, Electronic Frontier Foundation, the ACLU, and Demand Progress.

In addition to protesting the widespread government surveillance made public by NSA whistleblower Edward Snowden, the event was timed to commemorate the tragic death of Aaron Swartz, an Internet pioneer and freedom of information activist who was found dead of an apparent suicide in January 2013 amid an overzealous government prosecution that threatened to send him away for 35 years to a U.S. federal prison.

Swartz was a victim of the U.S. “war on whistleblowers,” an ongoing government campaign to clamp down on the free flow of information which has caused the United States to lose its once-touted status as a global champion for freedom of the press. In Reporters Without Borders’ World Press Freedom Index released today, the U.S. fell 13 places from its position last year, being ranked now just 46th out of 180 surveyed countries worldwide.

As Reporters Without Borders explains on its website,

Countries that pride themselves on being democracies and respecting the rule of law have not set an example [for press freedom], far from it. Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result.

This has been the case in the United States (46th), which fell 13 places, one of the most significant declines, amid increased efforts to track down whistleblowers and the sources of leaks. The trial and conviction of Private Bradley Manning and the pursuit of NSA analyst Edward Snowden were warnings to all those thinking of assisting in the disclosure of sensitive information that would clearly be in the public interest.

While obsessively persecuting conscientious leakers of state secrets, the U.S. government has simultaneously waged a war against individual privacy that violates a host of international norms, including as Privacy International has pointed out: Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy; 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.

Other international conventions that recognize the right to privacy include 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.

In an attempt to counter this assault on international norms and U.S. constitutional rights, websites participating in The Day We Fight Back embedded a large black banner that allowed visitors to input their email address and location and send a letter to their representatives in Congress asking them to oppose the FISA Improvements Act, an Orwellian piece of legislation that would retroactively legalize the government’s unlawful mass spying program.

The ACLU called the proposed act “a dream come true for the NSA” that would “codify the NSA’s unconstitutional call-records program and allow bulk collection of location data from mobile phone users.”

Following up on the U.S.-oriented Day We Fight Back, today several groups launched a European-based campaign to protest, in particular, the activities of the NSA’s junior partner in mass surveillance, Britain’s GCHQ. Privacy International, Article 19, Big Brother Watch, English PEN, Liberty, and Open Rights Group initiated the Don’t Spy On Us campaign. In an announcement at the Privacy International blog, Gus Hosein notes,

In almost every week since last summer, a new Snowden document has been released which details the growing surveillance powers and practices of intelligence agencies, each one astonishing in its own right. The documents have exposed the illegal activities and intrusive capabilities of the UK’s intelligence agency, GCHQ, which has secretly sought to exploit and control every aspect of our global communications systems.

For far too long, mass and intrusive government surveillance programs have operated in the shadows, outside of the rule of law, and without democratic accountability. Now our governments are even defending this state of affairs. This should not be, and certainly cannot continue.

We must fight back.

The New York-based Human Rights Watch recently warned that the NSA is “setting trends” and that there will soon there will be “no safe haven” from the worldwide surveillance practices being pioneered by the United States government.

“As the world’s information moves into cyberspace, surveillance capabilities have grown commensurately,” says HRW in its 2014 World Report. “The U.S. now leads in ability for global data capture, but other nations and actors are likely to catch up, and some already insist that more data be kept within their reach.”

Hopefully the international grassroots movement to counter this trend is able to keep up.

For more information, please see:

American Civil Liberties Union

Bill of Rights Defense Committee

Electronic Frontier Foundation

Demand Progress

Privacy International

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.”

U.S. doublethink on chemical weapons and the use of force in Syria

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The power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them… To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just as long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies – all this is indispensably necessary. Even in using the word doublethink it is necessary to exercise doublethink. For by using the word one admits that one is tampering with reality; by a fresh act of doublethink one erases this knowledge; and so on indefinitely, with the lie always one leap ahead of the truth. — George Orwell’s 1984

With increasing bellicosity, U.S. officials are accusing the Syrian regime of using chemical weapons in an incident in the suburbs of Damascus last week that killed hundreds of civilians. While few dispute that the attack took place, there are conflicting allegations over who carried it out, with the Syrian regime blaming armed rebels, and Syrian allies such as Russia leaving open the possibility that a third party may have been responsible.

The United States however unequivocally places the blame at the feet of the Bashar al-Assad regime. A senior Obama administration official said Sunday that there was “very little doubt” that Assad’s military forces had used the chemical weapons and that a Syrian promise to allow United Nations inspectors access to the site was “too late to be credible.”

The official, in a written statement, said that “based on the reported number of victims, reported symptoms of those who were killed or injured, witness accounts and other facts gathered by open sources, the U.S. intelligence community, and international partners, there is very little doubt at this point that a chemical weapon was used by the Syrian regime against civilians in this incident.”

Independent experts, however, point out that there is no way to be able to decisively assign blame simply based on the visual evidence provided by YouTube videos without forensic data. “It’s very difficult from a visual context to ascertain what’s going on,” said Federation of American Scientists fellow Charles Blair.

He continued:

In fact, it’s impossible to draw any sort of definitive conclusion. Some governments have relied entirely on visual confirmation to assert that the Syrian regime has used chemical weapons but essentially what you need to do is you need to get people from the UN, for the prohibition of chemical weapons to go to these sites and conduct highly rigorous scientific investigations, and they determine only if an agent has been used or not used. But what they don’t tell us, which is the most important story, I think, that’s not being captured, is even if the UN team were to go into the area that got struck today, they could not verify nor are they charged with determining who was responsible for the act. So they can tell if you an act has occurred but we will never have this conclusive evidence of who was responsible for it.

What the UN team might be able to determine however is precisely what sort of chemical weapon was used, which could indicate who was responsible. The level of sophistication of the weapon could provide a clue as to whether it was manufactured by state or non-state actors, for example.

But the U.S. has already declared that any UN inspection now would be ineffective. As the Wall Street Journal reports, “the White House and Pentagon signaled the U.S. wasn’t backing away from a possible showdown despite apparent efforts by the Syrian government to ease tensions by letting U.N. inspectors visit areas near the capital where hundreds were killed, allegedly by chemical weapons.”

The Obama administration dismissed as too late the regime’s offer to let UN inspectors visit areas where chemical weapons were used. The U.S. concluded that evidence at the scene has likely been compromised due to continued Syrian shelling and the resulting dissipation of any poison gases.

With Obama having previously stated that the use of chemical weapons by Syria in the two-year old civil war would be a “red line” for the United States which could necessitate military action, the White House has said in recent days that the U.S. could launch an attack with or without UN Security Council backing.

“We’ll consult with the UN. They’re an important avenue. But they’re not the only avenue,” a senior administration official said.

The nonchalant attitude of the White House towards the UN is reminiscent of the Bush administration’s approach to the international body when the U.S. was gearing up for war against Iraq a decade ago. “If we need to act, we will act, and we really don’t need United Nations approval to do so,” George W. Bush said in March 2003. “We really don’t need anybody’s permission.”

Similarly, White House officials now say that Obama might prefer to work instead with international partners such as the North Atlantic Treaty Organization or the Arab League, rather than the UN.

The legal basis for an attack on Syria, presumably, would be the crimes against humanity – including the alleged chemical weapons attack last week – for which the Assad regime is purportedly responsible. The use of chemical weapons in Syria would constitute a “crime against humanity” that would reap “serious consequences,” UN Secretary General Ban Ki-moon said Friday.

“Any use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator,” Ban said.

But the U.S. has its own checkered past when it comes to compliance with international law in this regard, as evidenced by numerous war crimes carried out by U.S. forces in the occupations of Iraq and Afghanistan. The U.S. political system has also shown an inability to bring the committers of war crimes to justice, instead sending whistleblowers like Chelsea Manning to prison for decades simply for providing documentary evidence of these crimes.

Even when it comes to the Chemical Weapons Convention, which the U.S. ratified in 1997, the U.S. record of compliance is spotty at best. The U.S. declared a huge domestic chemical arsenal of 27,771 metric tons to the OPCW after the CWC came into force in 1997 and despite efforts made toward destroying this arsenal still stockpiles several thousand metric tons of these weapons.

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

Further, WikiLeaks revealed in 2007 that the U.S. had at least 2,386 “non-lethal” chemical weapons deployed in Iraq. Appearing in a 2,000 page battle planning leak, the items are labeled under the military’s own NATO supply classification as “chemical weapons and equipment.”

As WikiLeaks explains,

In the weeks prior to the March 19, 2003 commencement of the Iraq war, the United States received a widely reported rebuke from its primary coalition partner, the United Kingdom, over statements by the then Secretary of Defense Donald Rumsfeld suggesting that the US would use CS gas for “flush out” operations in Iraq and Afghanistan. Subsequently Washington has been quiet about whether it has deployed CS gas and other chemical weapons or not.

The use of chemical weapons such as CS gas for military operations is illegal. The Chemical Weapons Convention of 1997, drafted by the United Kingdom and ratified by the United States, declares “Each State Party undertakes not to use riot control agents as a method of warfare”. Permissible uses are restricted to “law enforcement including domestic riot control.”

The U.S. use of depleted uranium in Iraq is another cause for concern. In Fallujah – which was targeted by U.S. forces in 2004 – the use of depleted uranium has led to birth defects in infants 14 times higher than in the Japanese cities targeted by U.S. atomic bombs at close of World War II, Hiroshima and Nagasaki.

As the Huffington Post reported in March, “ten years after the start of the U.S. invasion in Iraq, doctors in some of the Middle Eastern nation’s cities are witnessing an abnormally high number of cases of cancer and birth defects.”

A 2002 UN working paper on depleted uranium argued that its use may breach one or more of the following treaties: the Universal Declaration of Human Rights, the Charter of the United Nations, the Genocide Convention, the United Nations Convention Against Torture, the Geneva Conventions including Protocol I, the Convention on Conventional Weapons of 1980, and the Chemical Weapons Convention.

Yeung Sik Yuen writes in Paragraph 133 under the title “Legal compliance of weapons containing DU as a new weapon”:

Annex II to the Convention on the Physical Protection of Nuclear Material 1980 (which became operative on 8 February 1997) classifies DU as a category II nuclear material. Storage and transport rules are set down for that category which indicates that DU is considered sufficiently “hot” and dangerous to warrant these protections. But since weapons containing DU are relatively new weapons no treaty exists yet to regulate, limit or prohibit its use. The legality or illegality of DU weapons must therefore be tested by recourse to the general rules governing the use of weapons under humanitarian and human rights law which have already been analysed in Part I of this paper, and more particularly at paragraph 35 which states that parties to Protocol I to the Geneva Conventions of 1949 have an obligation to ascertain that new weapons do not violate the laws and customs of war or any other international law.

Despite the U.S.’s own record in using these legally questionable weapons, it is taking a hard line against Syria and appears to be moving towards armed conflict. Officials say that a list of possible targets for a military strike has been circulating in the White House since late last week. The list includes both chemical-weapons sites and broader military and government targets, depending on the type of action the president orders.

The Wall Street Journal reports:

In recent days, the Pentagon has moved more warships into place in the eastern Mediterranean and U.S. war planners have updated military options that include cruise-missile strikes on regime targets, officials said. The White House held high-level meetings over the weekend, but officials said late Sunday that Mr. Obama had yet to decide how to proceed. …

Administration lawyers have been crafting legal justifications for an intervention without U.N. approval that could be based on findings that Mr. Assad used chemical weapons and created a major humanitarian crisis.

Whether a U.S. attack would quell or exacerbate this humanitarian crisis is an open question. There are indications that a military assault could spiral out of control, with Syrian allies reluctant to allow Western forces free reign to intervene in order to topple the regime. According to an analysis by BBC:

Any military action would immediately bracket the West with Israel, whose air and missile strikes on Syria this year have been held up by the regime as evidence that its internal troubles are part of a Western-Zionist-Salafist plot to destroy a citadel of resistance to Israel. …

The signs have always been that the regime would pull the whole house down around it before capitulating, and also that its strategic allies, especially Russia, Iran and Hezbollah, would not allow that to happen.

Further, as happened in Iraq, Western intervention risks fragmenting the country further, creating an uncontrollable situation and handing large parts of it to forces it regards as its enemies.

“The West faces the reality that the moderate opposition elements it has been trying to boost have proven neither cohesive, credible nor effective on the ground,” the BBC points out.

The opposition has largely consisted of Islamist factions, many linked to al-Qaeda. Intervening on their behalf could lead to a host of unintended consequences, including the possibility of Syria’s chemical weapons arsenal falling into the hands of terrorist groups.

With nothing but bad options, the best hope would likely involve an immediate ceasefire by all sides to the conflict. This, however, is a remote possibility that would be further set back by an armed intervention by the United States.

Any U.S. intervention would also likely lead to more civilian casualties and refugees, exacerbating what is already a grave humanitarian crisis.

Renewed international support for Manning in wake of ‘short-sighted’ verdict

Supporters of U.S. Army Pfc. Bradley E. Manning hold signs to show support during a demonstration outside the main gate of Ft. Meade July 30, 2013 in Maryland. (AFP Photo / Alex Wong)

Supporters of U.S. Army Pfc. Bradley E. Manning hold signs to show support during a demonstration outside the main gate of Ft. Meade July 30, 2013 in Maryland. (AFP Photo / Alex Wong)

Acquitted of the most serious charge of “aiding the enemy,” U.S. political prisoner Bradley Manning has been found guilty of 20 charges in total, including theft, computer fraud and a newly conceived crime of “wanton publication.”

Manning, who provided classified information to the whistleblowing website WikiLeaks, including video evidence of a U.S. war crime in Baghdad, now faces the possibility of up to 136 years behind bars. The sentencing phase, which is underway, could take a month before a final penalty is decided.

As soon as Manning’s verdict was handed down last week, support for his cause and calls for leniency from Judge Col. Denise Lind in his sentencing poured in from around the world. An open letter from 17 Members of the European Parliament called for President Obama to pardon the young Army private, who spent three years in pre-trial incarceration – much of it in conditions amounting to torture in violation of international law.

“As Members of the European Parliament, who were elected to represent our constituents throughout Europe, we are writing to express our concerns about the ongoing persecution of Bradley Manning, the young U.S. soldier who released classified information revealing evidence of human rights abuses and apparent war crimes in Iraq and Afghanistan,” reads the letter.

Rather than causing harm, Bradley Manning’s release to WikiLeaks of the Iraq War Logs and the Afghan War Diaries shone much needed light on those occupations, revealing, amongst other abuses, the routine killing of civilians. The bleak picture painted by these war diaries contrasts greatly with the rosy progress reports being provided to the public by military and political leaders. PFC Manning has said he felt that if the American public had access to this information, this could ‘spark a domestic debate’ on American foreign policy ‘as it related to Iraq and Afghanistan’. Far from being a traitor, Bradley Manning had the best interests of his country in mind.

The Iraqi people continue to suffer the consequences of this war, even after the withdrawal of foreign troops, with millions of homeless refugees and the resumption of sectarian violence. Meanwhile, eleven and a half years after the U.S invaded Afghanistan, that nation has yet to form a functioning democracy or to free itself from the Taliban and fundamentalist warlords.

Russian Commissioner for Human Rights Konstantin Dolgov said that the United States is applying double standards in Manning’s case “without paying attention to the observance of human rights.”

“This double standard that we see in the U.S. authorities’ assessment of approaches to this situation [around Manning] raises questions,” said Dolgov. “If you demand full observance of freedom of speech from others, in principle, you should apply this position to yourself. If the applied standard is different, this cannot help but cause complaints on the part of both other governments and human rights institutions.”

He also expressed doubts that the U.S. will take into account international human rights in determining Manning’s punishment. “I think that [Manning’s] sentence will not likely take into account the view the international human rights organizations,” Dolgov said.

Amnesty International welcomed Manning’s acquittal on the “aiding the enemy” charge, but regretted that the U.S. government continues its persecution of the whistleblower, which it said demonstrates misplaced priorities on national security.

Noting that the hundreds of thousands of documents Manning leaked included videos and dossiers that revealed human rights violations and breaches of international humanitarian law by U.S. troops and the CIA, Amnesty said that it undermines accountability when the U.S. government is so selective about who it chooses to investigate and prosecute.

“The government’s pursuit of the ‘aiding the enemy’ charge was a serious overreach of the law, not least because there was no credible evidence of Manning’s intent to harm the USA by releasing classified information to Wikileaks,” said Widney Brown, Senior Director of International Law and Policy at Amnesty International.

She added:

The government’s priorities are upside down. The US government has refused to investigate credible allegations of torture and other crimes under international law despite overwhelming evidence.

Yet they decided to prosecute Manning who it seems was trying to do the right thing – reveal credible evidence of unlawful behaviour by the government. You investigate and prosecute those who destroy the credibility of the government by engaging in acts such as torture which are prohibited under the US Constitution and in international law.

Any sentence imposed for the other charges must take into account information relating to Manning’s reasonable belief that he was exposing serious violations of human rights and international humanitarian law, Amnesty said.

Brown also noted that Manning’s overzealous prosecution – not to mention his gross mistreatment during three years of illegal pre-trial confinement – was most likely intended to provide a warning to other potential whistleblowers who might be considering exposing the rampant criminality and corruption of the U.S. government.

“It’s hard not to draw the conclusion that Manning’s trial was about sending a message: the US government will come after you, no holds barred, if you’re thinking of revealing evidence of its unlawful behavior,” Brown said.

This of course would qualify Manning as a political prisoner and/or prisoner of conscience under Amnesty International’s own definition of the term, but to this date, for some confounding reason, the human rights group has declined to designate the imprisoned whistleblower as such.

As Amnesty International 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”.

A definition of “political prisoner” adopted last year by the Parliamentary Assembly of the Council of Europe includes the following criteria:

a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;

b. if the detention has been imposed for purely political reasons without connection to any offence;

c. 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;

d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,

e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.” (SG/Inf(2001)34, paragraph 10).

It’s obvious that under any number of these criteria, Manning would qualify as a political prisoner, if not a prisoner of conscience. He was motivated by his conscience and out of concern over the evidence of war crimes, corruption and general wrongdoing committed by his government that he was privy to as an Army intelligence analyst in Iraq. Further, the potential sentence he faces of 136 years in prison would clearly be out of proportion to the offenses for which he has been convicted.

Icelandic MP Birgitta Jonsdottir, who has been one of WikiLeaks’ most vocal defenders and has nominated Manning for a Nobel Peace Prize, noted the perverted sense of justice being displayed by the United States by prosecuting the whistleblower but not the crimes that he exposed.

“Let’s not forget,” she said, “that nobody has been held accountable for the war crimes that the whole world was able to see depicted in the video, collateral murder. No one has been held accountable for that except the whistleblower and that’s absolutely outrageous.”

“I find it very strange that even if you can actually see soldiers shooting and killing a wounded person nobody has been questioned so may be its time to figure how the U.S. legal system works so somebody could be held accountable for that,” she added.

WikiLeaks’ founder Julian Assange called last week’s judgment “a dangerous precedent and an example of national security extremism.”

Noting that the verdict was the first ever espionage conviction against a whistleblower, Assange said it was “a short sighted judgment that can not be tolerated and must be reversed.”

“It can never be that conveying true information to the public is ‘espionage,’” he added, further noting that the Obama administration has systematically been “chipping away democratic freedoms in the United States.”

Bradley Manning’s mother, Susan Manning – who has health problems – has said she believes she may never see him again, but urged her son to “never give up hope.”

She said: “I know I may never see you again but I know you will be free one day. I pray it is soon. I love you Bradley and I always will.”

Her sister, Sharon Staples, said that the family is now “praying for leniency” as the judge considers Manning’s punishment.

In an online campaign, nearly 3,000 Americans have volunteered to serve any sentence that Manning receives. “Bradley Manning provided information to the American people which our own government would not provide,” the pledge reads. “He did us all a favor and in turn I am willing to serve part of his sentence.”

Other campaigns in support of the political prisoner include a #ThankManning letter-writing initiative spearheaded by Amnesty4Manning, as well as rallies and vigils being held across the United States and around the world.

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