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.
The 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.
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.
The United States came under sharp criticism this week from the United Nations Special Rapporteur on torture, Juan E. Mendez, who raised a number of objections regarding U.S. prison policies including solitary confinement, the treatment of juveniles in the justice system and the indefinite detention of terrorism suspects at Guantanamo.
Mendez said on Wednesday that the terms under which the United States has invited him to visit the Guantanamo Bay detention center are unacceptable, urging the U.S. to reconsider restrictions on his visit including by allowing him unmonitored conversations with detainees.
“The invitation is to get a briefing from the authorities and to visit some parts of the prison, but not all, and specifically I am not allowed to have unmonitored or even monitored conversations with any inmate in Guantanamo Bay,” said Mendez.
He also noted that he has been kept waiting for two years to visit prisons in the United States to probe the use of solitary confinement but that he has been refused access. He has requested visits to federal prisons — ADX in Florence, Colorado, and the Manhattan Correctional Center — and state facilities in California, New York, Louisiana and Pennsylvania, but so far the government has blocked his visits to the federal facilities, and he is not willing to only accept visits to state penitentiaries. More than 80,000 people languish in solitary confinement in U.S. prisons, according to the American Civil Liberties Union.
On Tuesday, Mendez also condemned the U.S. for being the “only State in the world that still sentences children to life imprisonment without the opportunity for parole,” noting that by imposing cruel, inhuman, and degrading punishment against the most vulnerable members of society, the U.S. is in serious violation of international norms. There are 2,500 American citizens serving life in prison for crimes they committed as children, according to the Sentencing Project.
“The detention of children is inextricably linked – in fact if not in law – with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk,” Mendez said in a report to the UN Human Rights Council in Geneva.
Mendez noted that the U.S. practice of imposing life sentences on children in cases of homicide violates international law on numerous fronts, including the Convention on the Rights of the Child.
The UN expert noted that the deprivation of liberty of children is intended to be a measure of last resort, to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases.
“Failure to recognize or apply these safeguards increases the risk of children being subjected to torture or other ill-treatment, and implicates State responsibility,” Mendez warned. He called for the adoption of “higher standards to classify treatment and punishment as cruel, inhuman or degrading in the case of children.”
In addition, the Special Rapporteur pointed out that inappropriate conditions of detention – including pretrial and post-trial incarceration as well as institutionalization and administrative immigration detention – exacerbate the harmful effects on children deprived of their liberty.
“Within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child,” he added. “It exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”
“The U.S. government’s policy of detaining large numbers of children harms kids and flouts international standards,” said Clara Long, U.S. researcher at Human Rights Watch last summer. “Congress should be exploring alternatives to detention that other countries facing spikes in border crossings have used successfully.”
U.S. law allows Customs and Border Protection to detain children for a maximum of 72 hours but recent reports indicate that CBP is holding children for periods closer to ten days or two weeks. The children are then transferred to the Office for Refugee Resettlement in the Department of Health and Human Services, where they may be further detained.
“States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status,” Mendez said this week.
The U.S. Department of Justice’s report released this week on the racist, unconstitutional and abusive law enforcement practices of the Ferguson, Missouri, police department offers a timely reminder of the importance of the United States taking steps to comply with international obligations as laid out in the Convention on the Elimination of All Forms of Racial Discrimination, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers and other international agreements to which the U.S. has subscribed.
Among the DoJ’s key findings on the practices of the Ferguson police include an over-reliance on fines and fees for revenue, which can be financially punishing for the city’s many poor residents and often leads to unconstitutional harassment, as well as a disproportionate targeting of African Americans. Accounting for 67 percent of the population in Ferguson, the Justice Department found that black people comprise 85 percent of vehicle stops, 90 percent of citations, and 93 percent of arrests.
Other DoJ findings include a pattern of arresting people for exercising their First Amendment rights, deploying violent force against the mentally impaired and using canines to bite nonviolent civilians. Ferguson police were also found to engage in a pattern of racism as routinely expressed in emails and other internal communications. An email written shortly after Barack Obama’s 2008 election, for example, said that he would not last long in the Oval Office because “what black man holds a steady job for four years,” while another email depicted the president as a chimpanzee.
“It’s really a devastating report, because they’ve got interviews and quotes to back it up” said Samuel Walker, an expert on police accountability and professor emeritus at the University of Nebraska in Omaha. Speaking of the racist emails uncovered by the Justice Department, Walker said, “They’re truly offensive. Again, this is use of city computers, and nobody says, ‘Hey, stop this.’”
The DoJ’s report not only described the failures of the Ferguson police department, but also offered a reminder of the general failures of the United States to live up to its international obligations on policing and racial discrimination. Ultimately, it is up to the federal government to ensure that its policies are in compliance with international norms, as the U.S. was reminded last summer following the review of the United States by the UN’s Committee on the Elimination of Racial Discrimination (CERD), a body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties.
The U.S. was told in particular that it must take a number of concrete steps to bring its policies in line with the treaty. The CERD’s “concluding observations” issued in August 2014 included the following remarks:
The Committee underlines the responsibility of the federal state for the implementation of the Convention, and calls upon the State party to take concrete steps to: (a) Prohibit racial discrimination in all its forms in federal and state legislation, including indirect discrimination, covering all fields of law and public life, in accordance with article 1, paragraph 1 of the Convention; and (b) Consider withdrawing or narrowing its reservation to article 2 of the Convention, and broaden the protection afforded by law against all discriminatory acts perpetrated by private individuals, groups or organizations; and (c) Improve the system of monitoring and response by federal bodies to prevent and challenge situations of racial discrimination.
The CERD also noted the lack of a national human rights institution in the United States:
While taking note of the creation of the Equality Working Group, the Committee reiterates its concern at the lack of an institutionalized coordinating mechanism with capacities to ensure the effective implementation of the Convention at the federal, state and local levels (CERD/C/USA/CO/6, para.13). Noting the role that an independent national human rights institution can play in this regard, the Committee expresses regret at the lack of progress in establishing a national human rights institution as recommended in its previous concluding observations (CERD/C/USA/CO/6, para.12) (art. 2). The Committee recommends that the State party create a permanent and effective coordinating mechanism, such as a national human rights institution established in accordance with the principles relating to the status of national institutions (the “Paris Principles”, General Assembly resolution 48/134, Annex), to ensure the effective implementation of the Convention throughout the State party and territories under its effective control; monitor compliance of domestic laws and policies with the provisions of the Convention; and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels.
And took the U.S. to task for its failure to effectively address the problem of racial profiling in law enforcement:
While welcoming the acknowledgement made by the State party that racial or ethnic profiling is not effective law enforcement practice and is inconsistent with its commitment to fairness in the justice system, the Committee remains concerned at the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), Transportation Security Administration, border enforcement officials, and local police (arts.2, 4(c) and 5(b)).
Recalling its general recommendation No. 31 (2001) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to intensify efforts to effectively combat and end the practice of racial profiling by federal, state and local law enforcement officials
Earlier in 2014, the United Nations Human Rights Committee issued a scathing report documenting serious human rights abuses in the United States, with a particular focus on police violence.
In a section on “Excessive use of force by law enforcement officials,” the Human Rights Committee found that across the United States, there is an unacceptably “high number of fatal shootings by certain police forces, including, for instance, in Chicago, and reports of excessive use of force by certain law enforcement officers including the deadly use of tasers, which have a disparate impact on African Americans.”
In order to bring its practices in line with international norms on law enforcement, the UN recommended that the U.S. government should:
(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.
The Basic Principles on the Use of Force and Firearms by Law Enforcement Officers that the Human Rights Committee referenced contains a number of guidelines that the U.S. would do well to implement in the interest of avoiding the unnecessary killings of civilians by police. For example,
Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
- Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”
These are all areas in which the United States is falling woefully short of international standards, as described this week in detail in the DoJ’s report on Ferguson. But while the Ferguson police have been singled out for their particularly egregious behavior, it is important to keep in mind that many of these nationwide problems, as explained in an LA Times report on Thursday:
The Justice Department report released this week found many of the same problems already identified in more than two dozen police departments since 1997. The report, however, appears to find Ferguson police responsible for a much broader range of violations than many of the others.
Other federal reviews have focused on racial discrimination, as in East Haven, or excessive use of force, as in Seattle, both in 2011. The report on Ferguson includes those allegations and more, notably the accusation that police seemed as focused on generating revenue as fighting crime, and that they did this by citing African Americans for often questionable violations.
Marc Morial, head of the Urban League, said: “What’s shocking is that this report is taking place in 2015. This sounds like 1955.”
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.
Following 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.
On the heels of a scathing report issued by the United Nations detailing the U.S. government’s lack of compliance with its international obligations on torture, several grassroots campaigns are increasing pressure on the United States to bring its human rights practices more closely in line with international norms.
In issuing its “concluding observations” on the U.S. torture record following the periodic review of U.S. compliance last month, the United Nations Committee against Torture noted that the U.S.’s lack of a specific law at the federal level prohibiting torture is out of step with article 1 of the Convention against Torture (CAT).
The Committee also regretted that the U.S. maintains a restrictive interpretation of the provisions of the CAT, particularly regarding the concept of “prolonged mental harm” related to torture that is prohibited under the treaty. In its concluding observations, issued on November 28, “the Committee recalls that under international law, reservations that are contrary to the object and purpose of a treaty are impermissible.”
The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes. While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006.
The Committee further regretted “the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding.” In this regard, it noted particular interest in the long-stalled declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation program.
The panel called on the Obama administration to release the Senate report on CIA torture “in the most complete and comprehensible form possible.” This comes as Senate Democrats have accused the White House of trying to censor key portions.
Other issues addressed by the UN included the treatment of migrants, including children held in “prison-like detention facilities,” as well as the “widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates.” The Committee also expressed concern over “the notable gaps in the protection of juveniles in the State party’s criminal justice system.”
Concern was also raised over the high number of preventable deaths of inmates that take place in local jails and prisons in the United States. As the Committee noted,
958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths. The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).
To talk more about the UN’s findings, Dr. Jens Modvig, a co-author of the report, appeared on Democracy Now this week. Among other issues, Modvig discussed the topic of police brutality in the USA and the significance of the parents of Michael Brown – the unarmed black youth gunned down by a white police officer in August – testifying to the Committee against Torture.
The Committee “takes an interest in the measures that United States has in place to control excessive use of force and police brutality,” Modvig said. “When we look at the statistics,” he pointed out, “we heard from the United States delegation that during the last five years, a little over 300 hundred cases have been criminally prosecuted of police officers.”
We asked for the resource of these prosecutions but we have not received this information. So, where there’s still doubt as to whether the mechanisms to hold police officers accountable for excessive use of force, police brutality and even police shootings are probably in place. Another issue of importance is whether there is independent oversight bodies that can check up on the way that the power’s administered in the law enforcement. And also here we have some doubts whether police review boards are sufficiently independent. So, these are some of the concerns that committee has expressed vis-a-vis the United States Delegation.
In an effort to increase the level of accountability in the U.S. when it comes to widespread police violence, demonstrations have been taking place across the country, with protests picking up in recent days in response to the failure to indict a white cop in New York who choked to death an innocent black man by the name of Eric Garner last summer.
Civil rights leaders are also calling for a national march on Washington to demand that the federal government intervene in prosecutions of police officers facing criminal charges. The march will take place Saturday, Dec. 13, and the families of both Eric Garner and Michael Brown will attend, according to the Huffington Post.
“We’ll be in Washington, demanding redress,” Al Sharpton said, speaking at the headquarters of the National Action Network in Harlem. He was joined by representatives of the NAACP, the National Urban League and 14 other groups, all of whom are mobilizing for the march on Washington.
When it comes to the issue of CIA torture and the Obama administration’s official policy of impunity that shields human rights abusers from accountability, civil society groups from across the U.S. are organizing a week of grassroots action to highlight CIA crimes, as well as violations of privacy rights being carried out by the National Security Agency.
According to the call to action, “Vigils, protests, workshops, and other events will start nationwide on International Human Rights Day (December 10th) and conclude on Bill of Rights Day (December 15th).”
Events are currently planned in following cities:
— San Francisco, CA (12/15): http://on.fb.me/1yVv0mq
— Oakland, CA
— San Jose, CA (12/10): http://on.fb.me/1rW0mJs
— Berkeley, CA (12/6): http://on.fb.me/1BhbG5y
— Richmond, CA (12/8): http://on.fb.me/1yjiVDS
— Cleveland, OH
— Washington, DC (12/10): http://on.fb.me/1ysOOOg
— Chapel Hill, NC: (12/15) http://on.fb.me/1FQdujW
— Raleigh-Durham, NC:
. — 12/9: http://on.fb.me/1yjiWry
. — 12/10: http://on.fb.me/1FQcGeM
— Miami, FL
Other grassroots initiatives underway include a petition urging Sen. Mark Udall (D-CO) to submit the Senate Intelligence Committee’s torture report to the Congressional Record. Add your name to the petition here.
Also, the Witness Against Torture campaign will gather in Washington, DC on January 11, 2015, to mark the anniversary of the opening of the Guantanamo indefinite detention facility, also known as “Obama’s Forever Prison,” and the13 years of torture that have taken place there. More information here.
A delegation from the United Nations has completed a fact-finding mission to the U.S. city of Detroit, which is currently experiencing large-scale water disconnections, with at least 27,000 households having their water services cut off this year.
The UN delegation, consisting of the Special Rapporteur on housing, Leilani Farha, and the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, visited Detroit from Oct. 18-20 on the invitation of U.S. civil society groups. Noting that 40.7 percent of Detroit’s population live below the poverty level and about 80 percent of the population are African American, the experts said that the water shutoffs disproportionately affect vulnerable people and low-income African Americans.
“Twenty percent of the population is living on 800 USD or less per month, while the average monthly water bill is currently 70.67 USD,” the delegation pointed out. “This is simply unaffordable for thousands of residents, mostly African Americans.”
As the experts further explained in a press release concluding the visit,
Without water, people cannot live a life with dignity – they have no water for drinking, cooking, bathing, flushing toilets and keeping their clothes and houses clean. Despite the fact that water is essential for survival, the city has no data on how many people have been and are living without tap water, let alone information on age, disabilities, chronic illness, race or income level of the affected population.
Denial of access to sufficient quantity of water threatens the rights to adequate housing, life, health, adequate food, integrity of the family. It exacerbates inequalities, stigmatizes people and renders the most vulnerable even more helpless. Lack of access to water and hygiene is also a real threat to public health as certain diseases could widely spread.
In addition, thousands of households are living in fear that their water may be shut off at any time without due notice, that they may have to leave their homes and that children may be taken by child protection services as houses without water are deemed uninhabitable for children. In many cases, unpaid water bills are being attached to property taxes increasing the risk of foreclosure.
We were deeply disturbed to observe the indignity people have faced and continue to live with in one of the wealthiest countries in the world and in a city that was a symbol of America’s prosperity.
The experts also reminded the United States that it is bound by international human rights law and principles, “including the right to life as well as the right to non-discrimination with respect to housing, water and sanitation and the highest attainable standard of health.” These obligations not only apply to the federal government, but to state and municipal governments as well, including the judiciary.
In September, U.S. bankruptcy judge Steven Rhodes threw out a motion to stop Detroit’s mass water shutoffs, declaring that despite “findings of irreparable harm,” there is no “fundamental enforceable right to free or affordable water.”
“We were shocked, impressed by the proportions of the disconnections and by the way that it is affecting the weakest, the poorest and the most vulnerable,” said de Albuquerque at a press conference on Monday.
“I’ve been to rich countries like Japan and Slovenia where basically 99 percent of population have access to water, and I’ve been to poor countries where half the population doesn’t have access to water … but this large-scale retrogression or backwards steps is new for me.” She added, “From a human rights perspective, any retrogression should be seen as a human right violation.”
As the delegation’s joint statement elaborates:
The human rights to safe drinking water and sanitation and to adequate housing both derive from the right to an adequate standard of living which is protected under, inter alia, article 25 of the Universal Declaration of Human Rights which is fully applicable to the United States. In addition, adequate housing and access to safe water are clearly essential to maintain life and health, and the right to life is found in treaties the United States has ratified, including the International Covenant on Civil and Political Rights.
Ensuring freedom from discrimination does not mean that everyone should be treated equally when their circumstances are different. Water and sanitation does not have to be free. It must rather be affordable for all. The price cannot put a household in debt or limit access to essential services such as food or medicine. A human rights framework provides that people should not be deprived of these rights if they cannot pay the bill for reasons beyond their control. Disconnections of water due to non-payment are permissible if it can be shown that the resident is able to pay but is not paying. When people are genuinely unable to pay the bill, it is the State’s obligation to provide urgent measures, including financial assistance, a specially low tariff or subsidies, to ensure access to essential water and sanitation for all. Not doing so amounts to a human rights violation.
Similarly, the human right to adequate housing means that housing must be affordable, including the costs of water, sanitation and other housing-related services. Houses without water and sanitation are unsafe and uninhabitable. They expose residents to disease, exacerbate existing health conditions, and threaten the security of tenure of residents. If costs associated with housing are not in line with income levels, housing is rendered unaffordable for many low-income residents, leading to accumulated arrears which in turn create real risks for foreclosure, eviction and homelessness. This contravenes the State’s obligation to ensure tenants and owners enjoy secure tenure.
The UN officials offered a number of recommendations to the City of Detroit and other relevant authorities, calling for Detroit to “restore water connections to residents unable to pay and vulnerable groups of people, stop further disconnections of water when residents are unable to pay, and provide them the opportunity to seek assistance that must be made available through social assistance schemes.”
Further, the U.S. should adopt, at all levels of government, a mandatory affordability threshold and specific policies should be adopted to ensure specific support to people who live in poverty.
In addition, the federal government should immediately undertake an investigation into the water shutoffs to determine if they are having a disproportionate impact on African Americans and other groups protected against discrimination.
For the full statement and list of recommendations, visit the UN’s Office of the High Commissioner on Human Rights web page.
Testimonies from residents of Detroit coping with the effects of the water shutoffs are available here.
Video of the delegation’s post-visit press conference is on YouTube:
Everyone has the right to freedom of peaceful assembly and association.
- Article 20 of the Universal Declaration of Human Rights
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
- Article 21 of the International Covenant on Civil and Political Rights
In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
- Articles 2 and 3 of the International Code of Conduct for Law Enforcement Officials
In response to protests in Ferguson, Mo., over the police murder of Michael Brown, an unarmed 18-year-old shot by Officer Darren Wilson on Aug. 9, police have employed highly threatening and repressive measures, including pointing military assault rifles at peaceful protesters, deploying armored vehicles in the streets, and targeting journalists and African Americans for arrest.
These measures, human rights observers on the ground point out, infringe on basic fundamental rights to peaceful assembly and expression. Amnesty International, which has a team of observers in Ferguson, “remains deeply concerned about government infringement on the community’s right to peacefully protest the killing by police of Michael Brown,” according to an Aug. 19 blog post, which contains details on how Ferguson police have engaged in arbitrary arrests and acts of violent repression in recent days.
Amnesty reiterated its calls for a prompt, thorough, independent and impartial investigation into the fatal shooting of Michael Brown, as well as independent investigations into any human rights abuses in connection with the policing of protests. Further, the group has urged a thorough review of all trainings, policies and procedures with regards to the use of force and the policing of protests.
A statement issued by Human Rights Watch on Aug. 20 noted that although some scattered looting has been reported in the two weeks of demonstrations in Ferguson, most observers have described the protests as overwhelmingly peaceful. Nevertheless, the police have used “unnecessary or excessive force – including firing teargas and rubber bullets into crowds, and arbitrarily detained journalists covering the events,” according to HRW.
In the statement, HRW urged U.S. Attorney General Eric Holder to press state and local officials in Missouri to reform police practices to improve respect for basic rights. “Holder should also support federal reforms that could help address concerns about policing and racial discrimination raised during the Ferguson protests over the last 10 days,” HRW noted.
“A lot of the poor policing we’re seeing in Ferguson may be going on elsewhere in the United States,” said Alba Morales of Human Rights Watch, who has been monitoring the situation in Ferguson. “Holder should press state and local officials to review their regulations and policies on policing, but he should also look at ways the federal government may be contributing to the problems there.”
Indeed, the issue of the federal government’s responsibility for ensuring a minimum national standard in policing is also one that the United Nations has raised directly with the U.S. government, concerns that have so far apparently fallen on deaf ears.
Earlier this year, the United Nations Human Rights Committee issued a scathing report addressing serious human rights abuses in the United States, including the nationwide problem of police brutality. In a section of the report on “Excessive use of force by law enforcement officials,” the UN found that across the country, there is an unacceptably “high number of fatal shootings by certain police forces … and reports of excessive use of force by certain law enforcement officers including the deadly use of tasers, which have a disparate impact on African Americans.”
In order to bring its practices in line with international norms on law enforcement, the UN recommended that the U.S. government should “step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers” and “improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”
The Basic Principles on the Use of Force and Firearms by Law Enforcement Officers that the Human Rights Committee referenced contains a number of guidelines that the U.S. must implement in order to meet its international obligations. For example,
Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”
Demonstrating the general ignorance (or indifference) of these principles within United States law enforcement agencies, Sunil Dutta of the Los Angeles Police Department recently provided some stunningly frank “practical” advice to civilians on how to avoid being brutalized or killed by cops.
In the context of the ongoing protests in Ferguson, Dutta wrote in a Washington Post op-ed on Tuesday, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge.”
Acknowledging that police “field stops” can sometimes amount to unlawful and unconstitutional harassment, Dutta nevertheless advised civilians to never question the police about why they are being hassled, and above all, never contest cops’ authority in any way. “I know it is scary for people to be stopped by cops,” he wrote. “I also understand the anger and frustration if people believe they have been stopped unjustly or without a reason,” adding that he is well aware that “corrupt and bully cops exist.”
However, “if you believe (or know) that the cop stopping you is violating your rights or is acting like a bully, I guarantee that the situation will not become easier if you show your anger and resentment,” he said. Instead of challenging the cop on the scene Dutta advises that order to avoid being killed you should “Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you.”
By placing the onus of avoiding being shot on the civilian rather than the police officer, Dutta is demonstrating the very problem with law enforcement in the United States. The mentality that he reveals among American police officers is this: when civilians get shot, it is their fault for mouthing off or being insufficiently deferential to the police’s authority. However, as made clear by the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, it is up to cops to always “apply non-violent means before resorting to the use of force and firearms.”
Police officers “may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result,” not because they get annoyed with civilians who question their authority.
This basic ignorance on the part of police officers is why it may be necessary for the federal government to step in to make sure that there is some sort of national standard for policing across the country. But instead, of course, the federal government is arming police departments to the teeth with military combat gear.
In other words, federal government so far has demonstrated itself to be part of the problem, rather than part of the solution, so it may be naïve to think that it has any interest in dealing with this issue.
Since the August 9 police murder of Michael Brown, an unarmed black youth in Ferguson, Mo., the world has responded with a mixture of dismay and disgust as the U.S. has mobilized thoroughly militarized state security forces to crush demonstrations calling for police accountability.
The international reaction to the repression has called into question the United States’ frequent claims of “American exceptionalism,” the absurd notion that due to its “exceptional” history and unique culture, the U.S. is in some privileged position to provide moral leadership to the entire world.
In fact, the violence playing out on the streets of Ferguson is an all-too familiar sight to much of the world, which has for too long been on the receiving end of U.S.-sponsored violence and brutality. This includes, of course, the Palestinian people who have been suffering from U.S.-backed war crimes and atrocities carried out by the Israeli Defense Forces with a particular ferocity this summer.
Recognizing the repression that demonstrators in Ferguson are experiencing as similar to their own oppression at the hands of the Israelis, Palestinians in the West Bank and Gaza Strip have been inspired to express their solidarity through social media, posting photos on Twitter such as these:
Others have begun offering advice on how to effectively deal with tear gas:
While activists take to social media, international diplomats are expressing concern through more traditional channels.
UN Secretary-General Ban Ki-moon called on U.S. authorities on Monday to ensure the protection of the rights of protesters in Ferguson. “The Secretary-General calls on the authorities to ensure that the rights to peaceful assembly and freedom of expression are protected,” UN spokesman Stephane Dujarric said.
“He calls on all to exercise restraint, for law enforcement officials to abide by U.S. and international standards in dealing with demonstrators,” he added.
At last week’s periodic review of the United States by the UN’s Committee on the Elimination of Racial Discrimination (CERD), a body of “independent experts that monitors [the] implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties,” the U.S. was questioned on a wide array of topics, with the situation in Ferguson casting a long shadow over the proceedings.
Noureddine Amir headed the CERD’s review, which cited racial profiling by U.S. law enforcement officers, as well as high levels of gun violence that have a disparate impact on minorities. African Americans make up 13 percent of the U.S. population, but 50 percent of homicide victims, Amir pointed out.
“African American males are reportedly seven times more likely to die by firearm homicide than their white counterparts,” he said, pointing to factors such as “subconscious racial bias in shootings, the proliferation of Stand Your Ground laws and the existence of predominantly African American and economically depressed neighborhoods with escalated levels of violence.”
According to the UN’s readout of the hearing, other topics of discussion were excessive use of force by law enforcement and racial disparities in the criminal justice system:
Issues raised during the discussion included the high levels of gun violence in the United States, and its disparate impact on minorities. Millions of United States citizens who held a gun licence also believed they had a licence to kill because of Stand Your Ground laws, Experts said. The excessive use of force by law enforcement agents against racial minorities, racial disparities in the criminal justice system and in education, particularly that racial segregation in public schools was reportedly worse today than in the 1970s, were also discussed. Discrimination against indigenous peoples, and violence against women, particularly indigenous women, as well as discrimination against non-citizens, particularly migrants from the southern border, were highlighted, as was the Guantanamo Bay detention facility. The delegation was also asked about racial hate speech, racial profiling, obstacles to voting, child labour, racial biases within the child welfare system, environmental pollution and racial disparities in access to healthcare and housing.
Delegations of American civil rights officials who participated in the UN conference on racial equality in Geneva said that the murder of Michael Brown and the police repression of demonstrations in Ferguson were obviously reverberating internationally.
“Clearly this issue is resonating here … and they knew about it before we got here,” said Hilary O. Shelton, director of the NAACP Washington Bureau. The story “continues to run in circulation over and over again (on Geneva television). The world is watching what is happening in Ferguson, Missouri.”
“At times,” UN Watch reported, “it felt as if the Committee members were placing the U.S. delegates, and the United States in turn, on trial.” CERD expert Yong‘an Huang, a former Ambassador of the People’s Republic of China, commented on how “the U.S. likes to play the role of world’s police but never to talk about the human rights situation in the country.”
China has also taken to its state-run media to express its views on the ongoing racial turmoil and police violence in America. As Think Progress reported yesterday:
After years of being critiqued for its own crackdowns against dissidents, China has begun to use the ongoing clashes between police and protesters and police in Ferguson, MO as a way to lambaste the United States for hypocrisy, joining other repressive regimes in expressing no small amount of schadenfreude at the current situation.
In an op-ed published Monday by the official Chinese Xinhua news agency, commentator Li Li takes the United States to task, noting that “despite the progress, racial divide still remains a deeply-rooted chronic disease that keeps tearing U.S. society apart, just as manifested by the latest racial riot in Missouri.”
“It is undeniable,” Li writes, “that racial discrimination against African Americans or other ethnic minorities, though not as obvious as in the past, still persists in every aspect of U.S. social lives, including employment, housing, education, and particularly, justice.”
Li draws a connection in his piece between rampant violence within the United States and the violence perpetrated abroad by the U.S. military, urging America to focus on its own issues rather than citing “American exceptionalism” in criticizing other countries:
Uncle Sam has witnessed numerous shooting sprees on its own land and launched incessant drone attacks on foreign soil, resulting in heavy civilian casualties. Each country has its own national conditions that might lead to different social problems. Obviously, what the United States needs to do is to concentrate on solving its own problems rather than always pointing fingers at others.
Russian and Iranian media have also printed scathing judgments about the police response to protests in Missouri. As Al Jazeera reports:
One Russian site, Svobodnaya Pressa, coined the term “Afromaidan,” implying that the U.S. is getting a dose of its own medicine for backing anti-Russian Euromaidan rallies in Kiev, Ukraine. The article poked fun at the notion of a land of opportunity, signaling that America’s “race war” proves Washington’s hypocrisy.
PressTV in Iran led with the Ferguson story on its website Monday. A news feature quoted an African-American historian referring to “institutionalized racism” in the U.S. and calling the country a “human rights failed state.” And Supreme Leader Ayatollah Ali Khamenei’s Facebook page read Sunday: “Look at what they do to the black community in their own country … . The police may beat them to death over the crime of having dark skins!”
Other concerns raised by the international community in recent days include the police crackdown on freedom of the press, as evidenced by the assaults and arrests of journalists covering the social unrest in Ferguson.
The OSCE Representative on Freedom of the Media Dunja Mijatović said on August 14 that the arrest of two reporters in Ferguson was unacceptable and a clear violation of the right of media to cover news.
Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan J. Reilly were taken into custody by local police on August 13 while filing reports on demonstrations, the OSCE noted. They were released without charges filed.
“Summarily rounding up journalists while they are doing their jobs sends a dangerous precedent and must never be condoned,” Mijatović said. “Journalists have the right to report on public demonstrations without being intimated by the police.”
In response to the deteriorating human rights crisis in Ferguson, Amnesty International USA has taken the unprecedented step of sending a 13-person delegation to monitor the situation. It is the first time Amnesty International has deployed observers inside the United States.
Speaking on Democracy Now, Steven Hawkins, executive director of Amnesty International USA, explained the decision:
Amnesty saw a human rights crisis in Ferguson, and it’s a human rights crisis that is escalating. We sent observers down because there was a need for human rights observers. Clearly there are violations of international human rights law and standards, in terms of how the policing is being done on protests. So, for example, we’ve issued reports on, for example, Israel and the Occupied Territories, how tear gas is supposed to be administered—never in an indiscriminate way where children and the elderly could be subject to very harmful effects, even death, from tear gas. So, we sent down observers to be on the ground. We have been thwarted in our efforts to be able to go out on curfew with the police, which would be a clear standard in these circumstances, as well as the opportunity for the press to be able to be in the space. So, we also went down to make sure that the citizens in Ferguson understood that the eyes of the world were watching, that Amnesty is deeply supportive, and we will be continuing to monitor the situation.
Watch the interview here:
As the international community continues to speak out on U.S. racism and state-sponsored violence, the United States’ claims of “exceptionalism” – the claimed basis for much of its military interventionism around the world – will continue to be undermined. And until the U.S. deals with its own deteriorating human rights crisis, its claims to be a “moral leader” in the world will likely be rejected with a combination of ridicule and revulsion.