The inside story of U.S.’s illegal grounding of Evo Morales’ plane
In a recent interview with Democracy Now!, WikiLeaks founder Julian Assange provided an inside account of the controversial grounding of Bolivian President Evo Morales’ plane by the United States in July 2013.
WikiLeaks had been providing logistical support and legal advice to NSA whistleblower Edward Snowden in his quest to reach Latin America for political asylum in the wake of his massive disclosures of the NSA’s bulk surveillance programs, and to keep the U.S. manhunt for Snowden off-track, was using various decoys and distractions, recounted Assange.
There was an international oil conference in Moscow at the time, Assange recalled, and because several presidential jets were departing the Russian capital at around the same time, there were discussions within the WikiLeaks organization whether to utilize one of those planes in order to ferry Snowden out. In their coded language WikiLeaks referred to Bolivia in order to confuse U.S. investigators who were hunting down Snowden (and presumably tapping WikiLeaks’ phones and reading their emails to do so).
This coded language was picked up by the U.S. intelligence community and was combined with a statement that President Morales had made publicly that was generally supportive of Snowden, and as Assange describes it, they “put two and two together and made 22.” As he told Democracy Now!’s Amy Goodman in an interview aired Thursday:
A number of presidential jets are flying back, and we are considering one of these. And so, we then—our code language that we used deliberately swapped the presidential jet that we were considering for the Bolivian jet. And so we just spoke about Bolivia in order to distract from the actual candidate jet. And in some of our communications, we deliberately spoke about that on open lines to lawyers in the United States. And we didn’t think much more of it. We had engaged in a number of these distraction operations in the asylum maneuver from Hong Kong, for example, booking him on flights to India through Beijing and other forms of distraction, like Iceland, for example. We didn’t think this was anything more than just distracting.
But the U.S. picked up a statement, a supportive statement made in Moscow by President Evo Morales, and appears to have picked up our codeword for the actual operation, and put two and two together and made 22, and then pressured France—successfully pressured France, Portugal and Spain to close their airspace to President Evo Morales’s jet in its flight from Moscow to the Canary Islands for refueling and then back to Bolivia. And as a result, it was forced to land in Vienna. And then, once in Vienna, there was pressure to search the plane.
Although Morales refused to let the authorities board the plane, which under international law functions as a “flying embassy” with all of the rights, privileges and immunities guaranteed by the 1961 Vienna Convention, the fact that the United States forced the plane to land at all was a serious breach of diplomatic protocol and international law, for which Washington has still refused to apologize.
It also demonstrated the intense arrogance and contempt that the United States shows to Latin America in general and the subservient nature of European countries to the superpower across the pond.
At the time, a livid Evo Morales stated that “We have had enough humiliation at the hands of the Americans,” arguing that the incident revealed a “neo-colonial” attitude to his entire continent.
“It is a crime not against Evo Morales, but against the people of South America and the Caribbean. It is utter discrimination,” he said, insisting that no head of state should be treated as a “second-rate president.”
The incident also demonstrated that despite occasional grumblings from Europe about U.S. misconduct on the world stage, Europeans will always kowtow to Washington when pressured.
Although European leaders were humiliated by the United States when it was revealed by Edward Snowden’s leaks that the NSA had been tapping the telephone lines and computer networks of EU offices in Brussels, New York and Washington — as well as the governments of Germany, France, Greece, Italy and others — Europe fell into line in submitting to U.S. dictates regarding Snowden’s asylum requests, and then agreed to cooperate in the illegal grounding of Morales’ plane.
Just like forcing down the Bolivian president’s plane, the U.S. spying on diplomatic missions of the EU and European nations was a violation of the Vienna Convention which states that “the official correspondence” as well as “the premises” of diplomatic missions “shall be inviolable.”
When Snowden’s leaks revealed the NSA snooping into the emails and phone conversations of European nations, European leaders feigned outrage. Angela Merkel, the German chancellor, described the disclosures of massive U.S. spying in Europe as unacceptable.
Her spokesman, Steffen Seibert, said, “If it is confirmed that diplomatic representations of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”
The French president, François Hollande, also called the spying intolerable.
“We cannot accept this kind of behaviour between partners and allies,” Hollande said. “We ask that this stop immediately.” French Foreign Minister Laurent Fabius said that if confirmed, the activities would be “totally unacceptable.”
Yet, when push came to shove, European leaders fell over each other to do the bidding of the United States, even when they were asked to violate international law in forcing down the plane of a sitting head of state, an act that was described at the time as “an act of air piracy and state terrorism.”
As Assange explained it on Democracy Now!:
So, it’s really a quite extraordinary situation that reveals the true nature of the relationship between Western Europe and the United States and what it claims are its values of human rights and asylum and the rights to asylum and so, and respecting the rule of law, the Vienna Convention. Just a phone call from U.S. intelligence was enough to close the airspace to a booked presidential flight, which has immunity. And they got it wrong. They spent all that political capital in demanding this urgent favor to close the airspace, which was humiliating to those Western European countries, and they got it wrong.
Assange recommends that the appropriate thing to do at this point is issue apologies all around. “The U.S. should apologize to Evo Morales, to Portugal, to Spain, to France” Assange said. “Portugal, Spain and France should apologize to Evo Morales for not following the law.”
He pointed out though that while the grounding was unfortunate for President Morales, it was a good thing to see because “it revealed the arrogance and hypocrisy of the United States in pressuring Western Europe in that way. It revealed the nature of the relationship between Western Europe and the United States.”
In a practical sense, it also led directly to Russia’s decision to grant Snowden’s asylum request. After this incident, “at a legal level, in terms of asylum law, it was very clear that there could not be a fair process,” explained Assange. Further, not only was it very clear he could not receive asylum in Western Europe, but at a political level, the Russian government had to respond.
As Assange points out, Russia couldn’t react by handing him over, because it would look “weak and unprincipled.” The only other card that Russia had was to grant him asylum.
And two years later, despite one of the largest manhunts in world history, Snowden is still living in the Russian Federation under political asylum. So, not only were the U.S. actions in summer 2013 illegal and arrogant, they were ultimately counterproductive.
Europe grows a pair, criticizes U.S. on Guantanamo and mass surveillance
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.
When the World Wide Web fought back against the National Security Agency
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.
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
Angered by NSA abuses, will Europe commit to meaningful counter-measures?
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.”
NSA surveillance routinely violating U.S. and international law
The Washington Post is reporting that the National Security Agency has broken its own privacy rules or overstepped its legal authority thousands of times each year since 2008, citing top-secret documents provided by whistleblower Edward Snowden.
Most of the infractions involved illegal surveillance of U.S. citizens or foreign intelligence targets in the United States, ranging from significant violations of law to typographical errors that resulted in unintended interception of U.S. emails and telephone calls, according to the Post.
In one instance, the NSA decided it would not report the unintended surveillance of Americans to the FISA court. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a “programming error” confused U.S. area code 202 for 20, the international dialing code for Egypt.
The NSA audit that Snowden provided to the Post, dated May 2012, counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.
In other words, the NSA – which was granted greatly expanded legal authority in 2008 by Congress in the FISA Amendments Act – has been routinely flouting Americans’ legal protections with impunity for years.
“The number of ‘compliance incidents’ is jaw-dropping,” said Jameel Jaffer, ACLU deputy legal director. “The rules around government surveillance are so permissive that it is difficult to comprehend how the intelligence community could possibly have managed to violate them so often.”
He pointed out that “at least some of these incidents seem to have implicated the privacy of thousands or millions of innocent people.”
The incidents are not only infractions of of U.S. law, but also international law.
As Privacy International has pointed out:
Human rights conventions and national constitutions almost universally call for the protection of the right to privacy – the challenge is ensuring that governments comply with this requirement, particularly with respect to new technologies and in countries that lack the rule of law.
The modern privacy benchmark at an international level can be found in Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy. Numerous other international human rights treaties recognize privacy as a right: Article 17 of the International Covenant on Civil and Political Rights 1966, Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child. Regional conventions that recognize the right to privacy includes Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
An April 2013 report issued by the United Nations about the threat that government surveillance poses to the enjoyment of basic human rights found that state surveillance of communications is ubiquitous and such surveillance severely undermines citizens’ ability to enjoy a private life, to express themselves freely and enjoy other fundamental freedoms.
UN Special Rapporteur Frank La Rue noted that in the current era, “the State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.”
The report touched on various problems in the use of surveillance, including the lack of judicial oversight, unregulated access to communications data and extra-legal surveillance. In addressing these concerns the UN “underlines the urgent need to further study new modalities of surveillance and to revise national laws regulating these practices in line with human rights standards.”
Toward this end, civil society groups, industry and international experts in communications surveillance law, policy and technology have developed the International Principles on the Application of Human Rights to Communications Surveillance, formally launched last month.
According to the Preamble of the International Principles,
Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognised under international human rights law. Activities that restrict the right to privacy, including communications surveillance, can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim, and are proportionate to the aim pursued.
Before public adoption of the Internet, well-established legal principles and logistical burdens inherent in monitoring communications created limits to State communications surveillance. In recent decades, those logistical barriers to surveillance have decreased and the application of legal principles in new technological contexts has become unclear. The explosion of digital communications content and information about communications, or “communications metadata” — information about an individual’s communications or use of electronic devices — the falling cost of storing and mining large sets of data, and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Meanwhile, conceptualisations of existing human rights law have not kept up with the modern and changing communications surveillance capabilities of the State, the ability of the State to combine and organize information gained from different surveillance techniques, or the increased sensitivity of the information available to be accessed.
The frequency with which States are seeking access to both communications content and communications metadata is rising dramatically, without adequate scrutiny. When accessed and analysed, communications metadata may create a profile of an individual’s life, including medical conditions, political and religious viewpoints, associations, interactions and interests, disclosing as much detail as, or even greater detail than would be discernible from the content of communications. Despite the vast potential for intrusion into an individual’s life and the chilling effect on political and other associations, legislative and policy instruments often afford communications metadata a lower level of protection and do not place sufficient restrictions on how they can be subsequently used by agencies, including how they are data-mined, shared, and retained.
In order for States to actually meet their international human rights obligations in relation to communications surveillance, they must comply with the principles set out below. These principles apply to surveillance conducted within a State or extraterritorially. The principles also apply regardless of the purpose for the surveillance — law enforcement, national security or any other regulatory purpose. They also apply both to the State’s obligation to respect and fulfil individuals’ rights, and also to the obligation to protect individuals’ rights from abuse by non-State actors, including corporate entities. The private sector bears equal responsibility for respecting human rights, particularly given the key role it plays in designing, developing and disseminating technologies; enabling and providing communications; and – where required – cooperating with State surveillance activities. Nevertheless, the scope of the present Principles is limited to the obligations of the State.
The Principles include 13 key points, summarized here:
Legality: Any limitation on the right to privacy must be prescribed by law.
Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.
Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users’ rights and to other competing interests.
Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
Due process: States must respect and guarantee individuals’ human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.
Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.
Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.
Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public and private actors.
With the new revelations exposed by the Post along with all the other Snowden leaks from recent months, it is clear that many – if not all – of these 13 principles are being violated routinely by the NSA’s surveillance activities.
To sign on to the International Principles, click here.
Click here to tell Congress to end the U.S. surveillance state.
Bluster on Russia reveals U.S. double standards on extradition, human rights
Announcing President Barack Obama’s decision to cancel a planned bilateral summit with Russian President Vladimir Putin, White House press secretary Jay Carney yesterday offered several justifications for the diplomatic snub.
“Given our lack of progress on issues such as missile defense and arms control, trade and commercial relations, global security issues, and human rights and civil society in the last twelve months, we have informed the Russian Government that we believe it would be more constructive to postpone the summit until we have more results from our shared agenda,” the press secretary said.
Almost as an afterthought, Carney added: “Russia’s disappointing decision to grant Edward Snowden temporary asylum was also a factor that we considered in assessing the current state of our bilateral relationship.”
While the bilateral U.S.-Russian relationship has been strained for some time and there are real concerns regarding Moscow’s recent crackdown on civil society, the timing of the announcement – just a week after Russia granted the NSA whistleblower one year of asylum – appeared to be a thinly veiled rebuke intended to punish Moscow for failing to bend to Washington’s dictates. After all, the other areas constituting a “lack of progress” were apparent long before the summit was even scheduled, and the only new factor in the strained relationship is the Snowden affair.
The Kremlin said it was “disappointed” by the U.S. decision, with Putin’s foreign affairs adviser saying the move showed the U.S. could not develop ties with Russia on an “equal basis.”
Russian foreign affairs adviser Yuri Ushakov added that Russia was not to blame over the Snowden affair.
“This decision is clearly linked to the situation with former agent of U.S. special services Snowden, which hasn’t been created by us,” he said.
He pointed out that there is not even an extradition agreement in place between Russia and the United States, largely due to the intransigence of Washington, and therefore there is no legal basis for the U.S. to demand extradition from Moscow in the first place.
“For many years, the Americans have avoided signing an extradition agreement,” Ushakov said, “And they have invariably responded negatively to our requests for extradition of people who committed crimes on the territory of Russia, pointing at the absence of such agreement.”
Journalist Glenn Greenwald, who has broken many of the recent stories regarding the NSA’s dragnet surveillance, noted that the U.S. in fact has a long record of refusing to extradite individuals accused of very serious crimes to a whole range of countries, many of which actually have formal extradition treaties in place with Washington.
In a February 28, 2007 article, for example, the New York Times reported:
A senior U.S. official said Wednesday that the United States would refuse any Italian extradition request for CIA agents indicted in the alleged abduction of an Egyptian cleric in Milan, a case investigated by the European Parliament.
“We’ve not got an extradition request from Italy,” John Bellinger, a legal adviser to Secretary of State Condoleezza Rice, told reporters after meeting in Brussels with legal advisers to EU governments.
“If we got an extradition request from Italy, we would not extradite U.S. officials to Italy.”
Or, as the Washington Post reported on July 19, 2013:
A former CIA operative detained in Panama this week at the request of Italian authorities over his conviction in the 2003 kidnapping of a Muslim cleric in Milan was released Friday and had boarded a flight to the United States, U.S. officials said.
Robert Seldon Lady’s release from Panama appeared to avert the possibility that he would be extradited to Italy, where he faces a sentence of up to nine years in prison for his role in the CIA capture of a terrorism suspect who was secretly snatched off a street in Milan and transported to Egypt.
Lady, who left Panama on Friday morning, was “either en route or back in the United States,” Marie Harf, State Department deputy spokeswoman, told reporters at a midday briefing.
Bolivia has also faced difficulty in extraditing fugitives from the United States, as The Guardian reported on September 9, 2012:
The view that Sánchez de Lozada must be extradited from the US to stand trial is a political consensus in Bolivia, shared by the government and the main opposition party alike. But on Friday night, the Bolivian government revealed that it had just been notified by the Obama administration that the US government has refused Bolivia’s extradition request:
“‘Yesterday (Thursday), a document arrived from the United States, rejecting the extradition of people who have done a lot of damage to Bolivia,’ leftist [President Evo] Morales, an outspoken critic of US foreign policy in Latin America, said in a speech.
“Calling the United States a ‘paradise of impunity’ and a ‘refuge for criminals,’ Morales said Washington turned down the extradition request on the grounds that a civilian leader cannot be tried for crimes committed by the military …
Then of course, there is the long-running case of former CIA employee and terrorist mastermind Luis Posada Carriles, a criminal who is being harbored by the United States despite requests from Venezuela for his extradition to face trial on 73 counts of murder.
The United States has refused to extradite him to Venezuela because he allegedly faces possible torture by the authorities there, according to his lawyers.
Ironically, the torture issue is also one of the concerns that Russia has expressed regarding the case of whistleblower Edward Snowden, prompting U.S. Attorney General Eric Holder to awkwardly assure Moscow that the U.S. government will not torture or kill Snowden upon his return to the United States.
“We…understand from press reports that Mr. Snowden has filed papers seeking temporary asylum in Russia on the grounds that if he were returned to the United States, he would be tortured and would face the death penalty,” Holder wrote in a letter to his Russian counterpart. “These claims are entirely without merit,” he wrote, adding that “torture is unlawful in the United States.”
Of course, what Holder left unsaid is that although torture is unlawful in the United States, it has still been a widespread policy and those who torture others or high-level officials who authorize torture in violation of the law are granted official impunity by the U.S. Justice Department.
As Human Rights Watch pointed out in a 2011 report, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees,” although substantial information exists warranting criminal investigations of Bush and senior administration officials, the U.S. Justice Department has failed to initiate a single investigation of these crimes.
“There are solid grounds to investigate Bush, Cheney, Rumsfeld, and Tenet for authorizing torture and war crimes,” said Kenneth Roth, executive director of Human Rights Watch. “President Obama has treated torture as an unfortunate policy choice rather than a crime. His decision to end abusive interrogation practices will remain easily reversible unless the legal prohibition against torture is clearly reestablished.”
More recently, the United States was accused of torture in its treatment of political prisoner Bradley Manning, who is awaiting his sentence upon his conviction for exposing embarrassing state secrets of the United States government.
Manning’s solitary confinement regime during his first year of incarceration “constitute[d] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” said Juan Mendez, the UN Special Rapporteur on Torture. “If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture,” he told the Guardian in 2012.
Regarding Manning’s conviction last week, 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.”
Disregarding these apparent double standards, human rights groups have praised the U.S. decision to cancel the Obama-Putin summit, focusing nearly entirely on the premise that the decision was prompted by American concerns over the human rights situation in Russia. U.S.-based NGO Freedom House welcomed yesterday’s announcement, stating in an email,
According to the White House statement announcing the cancelation, the “lack of progress” in U.S.-Russia bilateral relations includes the human rights and civil society situation in Russia in the past 12 months. Indeed, it was during this period that the most serious crackdown against civil society and Russia’s opposition since the break-up of the Soviet Union has occurred.
A series of restrictive laws passed by the Russian Duma are meant to silence dissent against the regime and cripple civil society. In addition, we have seen the prosecution of opposition leaders, including Aleksei Navalny; the disgraceful posthumous conviction of lawyer and whistleblower Sergey Magnitsky; the aggressive campaign against non-governmental organizations; the banning of adoptions of Russian orphans by American citizens; the expulsion of the US Agency for International Development; and the outrageous campaign targeting the LGBT community. Together these actions and policies represent a full-bore and utterly deplorable campaign against human rights and democratic standards engineered by the Putin regime. Enormous differences over Syria and the Snowden case are further reason for canceling the visit.
“I applaud the President’s decision to cancel his bilateral meeting with Putin and hope that when he goes to St. Petersburg for the G20 summit that he’ll meet with Russian civil society activists,” said Freedom House President David J. Kramer. “Obama’s decision to cancel his Moscow visit should signal to Putin that there are costs to his bullying, unrestrained drive to silence critics and eliminate serious opposition.”
Of course, what Freedom House has overlooked is the distinct possibility that the cancellation in fact has very little to do with human rights concerns, and nearly everything to do with Moscow’s refusal to hand over Snowden to the U.S. justice system where he will almost certainly find himself suffering the same fate as imprisoned whistleblower Bradley Manning.
Similarly, Amnesty International cited human rights concerns in Russia in its statement regarding the cancelation of the summit. Rather than discussing the merits of Snowden’s asylum in Russia or the U.S. obligation to respect Moscow’s decision regarding his extradition, Amnesty focused its criticism on the White House for not condemning Russia’s human rights record more forcefully. Frank Jannuzi, Amnesty International USA deputy executive director, issued the following statement:
President Obama said he canceled his summit with President Putin because there has been a lack of progress on human rights and civil society in Russia. That is an understatement. Russia continues to backslide on human rights. The United States should press Russia to respect freedom of expression and not allow backroom discussions on other priorities to override the urgent task of protecting the Russian peoples’ basic rights and dignity.
Curiously, just a month earlier, Amnesty was among Snowden’s most vocal supporters in his efforts to seek political asylum, harshly condemning the U.S. government for its ruthless persecution of the whistleblower.
“The U.S. authorities’ relentless campaign to hunt down and block whistleblower Edward Snowden’s attempts to seek asylum is deplorable and amounts to a gross violation of his human rights,” Amnesty International said in a press release on July 2.
“The U.S. attempts to pressure governments to block Snowden’s attempts to seek asylum are deplorable,” said Michael Bochenek, Director of Law and Policy at Amnesty International. “It is his unassailable right, enshrined in international law, to claim asylum and this should not be impeded.”
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