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

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

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

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

In a recent article for Foreign Policy, Roth writes:

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

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

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

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

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

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

“Dear President Obama,” she writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Verdict in: U.S. falling short on human rights

Far from being the global champion of human rights that it fancies itself as, the United States is in fact a flagrant violator of international human rights standards as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other landmark human rights treaties – some of which the U.S. refuses to ratify. This was the unmistakable conclusion of the U.S.’s Universal Periodic Review for compliance on human rights norms at the United Nations Human Rights Council earlier this week.

Delegates from many of the 117 countries taking part in the UPR lambasted the United States’ record of civil rights violations in the context of the nationwide epidemic of police brutality. The representative from Nambia, for example, said U.S. officials must “collaborate closely with marginalized communities to fix the broken justice system that continues to discriminate against them, despite recent waves of protest over racial profiling and police killings of unarmed black men.”

“Chad considers the United States of America to be a country of freedom, but recent events targeting black sectors of society have tarnished its image,” said Awada Angui, the delegate from that country.

The barrage of criticism led James Cadogan, senior counselor in the Department of Justice’s Civil Rights Division, to concede that the United States has a problem with police violence.

“We must rededicate ourselves to ensuring that our civil rights laws live up to their promise,” he said at the review on Monday. “The tragic deaths of Freddie Gray in Baltimore, Michael Brown in Missouri, Eric Garner in New York, Tamir Rice in Ohio, and Walter Scott in South Carolina have… challenged us to do better and to work harder for progress.”

But even while admitting its own shortcomings, the U.S. couldn’t resist the instinctual temptation to tout its record. As Mary McLeod, acting legal adviser to the U.S. Dept of State, put it, “We’re proud of the work we’ve done since our last UPR.”

Most UN Human Rights Council delegations and civil society observers strongly disagreed. One of the recurring themes in the interventions that took place on Monday was the U.S.’s failure to ratify a number of key human rights treaties and protocols, including the Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities, since its last periodic review in 2010. As Human Rights Watch noted,

In its 2010 review, the United States agreed to “consider” ratifying ICESCR, CEDAW, CRC, and CRPD (92.10, 92.11, 92.20, 92.21); ratifying ILO Convention Nos. 100 and 111 (92.22 and 92.26); ratifying the Rome Statute of the International Criminal Court (92.28); signing the Migrant Worker Treaty (92.30); lifting reservations to the ICCPR and other ratified human rights treaties (92.47, 92.48, 92.49); and establishing a national human rights institution (NHRI) at the federal level (92.74). To date, however, no new human rights treaty has been signed or ratified, no reservations, understandings or declarations have been lifted, and no NHRI established. The UPR is ineffective if limited to a conceptual exercise, and no country should claim success by accepting recommendations that require no identifiable outcomes or even proof of a deliberative process. The United States has failed to implement a number of other recommendations from its prior review. These include recommendations involving national security, criminal justice and policing, treatment of immigrants, and privacy, as detailed below, as well as overarching recommendations, such as agreeing to incorporate human rights training and education strategies in public policies (92.87). This submission also touches on issues that the United States did not address in its prior UPR but should consider in its upcoming review.

“The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review,” U.S. advocacy director at Human Rights Watch Antonio Ginatta told VOA News.

Brazil raised objections to the United States’ mass surveillance program, urging that all surveillance polices and measures comply with human rights law regardless of nationality, noting the importance of the principle of proportionality. The Brazilian delegation also criticized the U.S. record on migrant rights, and called for the elimination of police brutality.

The U.S. also heard criticism over the continued use of the death penalty.

The Belgian delegation said the U.S. should take specific measures to eliminate racial bias and wrongful convictions leading to executions. Swedish UN representative Anna Jakenberg Brinck called for a “national moratorium on the death penalty aiming at complete abolition.” Other countries, including France, pushed for “full transparency” in the types of drugs being administered to kill prisoners, following news that some death row inmates experienced inordinate pain and suffering during their executions.

The U.S.-led war on terror and the ongoing impunity related to the crimes of torture committed by the CIA were other areas of concern. One of the key demands of the UN delegations was for Washington to take measures to prevent acts of torture, to prosecute perpetrators, and to ensure that victims of torture were afforded redress and assistance.

Guantanamo was also raised, with some delegations including the United Kingdom recalling the pledge to close the prison by President Barack Obama back in January 2009 and regretting that it hasn’t happened yet. The UK called for an expedited effort to shut down the detention facility once and for all. More than 100 NGOs submitted reports on various aspects of U.S. human rights shortcomings, which are collected at the website UPR Info.

“Today was a demonstration of the no confidence vote that world opinion has made of the United States as a country that considers itself a human rights champion,” said Jamil Dakwar, director of the Human Rights Program of the American Civil Liberties Union. “I think that there was a clear message from today’s review that the United States needs to do much more to protect human rights and to bring its laws and policies in line with human rights standards.”

The UPR takes place every four years to scrutinize the human and civil rights practices of each of the UN’s 193 member nations.

Amid declining human rights, U.S. faces tough review at UN

The United States is scheduled to undergo its second Universal Periodic Review (UPR) before the UN Human Rights Council in Geneva on May 11, with UN member countries raising past U.S. human rights pledges and new concerns. The review comes five years after the last U.S. UPR, and in the context of a generally deteriorating human rights situation in the United States.

Human Rights Watch noted on May 7 that in its first review in 2010, the United States accepted 171 recommendations out of 240 from other member countries. “However,” HRW stated, “the U.S. has largely failed to follow through on these recommendations.”

The rights group stressed several primary areas in which the U.S. has failed to deliver:

• Take measures to “improve living conditions through its prison system,” “increase its efforts to eliminate alleged brutality and use of excessive force by law enforcement officials” against Latinos, African Americans, and undocumented migrants, and study racial disparities in the application of the death penalty. Five years later, the US has done little on these recommendations;
• “[I]nvestigate carefully each case” involving the detention of migrants and ensure immigration detention conditions meet international standards. While UN bodies oppose all detention of immigrant children, the US has in the past year embraced the detention of immigrant children and their mothers; and
• Seek the ratification of core international human rights treaties, including the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. The Obama administration submitted only the Disability Rights Convention to the Senate for its consent, and was unable to muster the two-thirds majority necessary for ratification.

Regarding the last point, as an outlier on these key human rights treaties, the United States now faces an even more embarrassing situation, being one of just two countries that has not ratified the Convention on the Rights of the Child. Earlier this week, South Sudan ratified the Convention, leaving just the United States and Somalia as the only two countries in the world not having ratified the treaty. However, the UN notes that “Somalia is in the process of finalizing the process to ratify the Convention,” which would leave the U.S. in the awkward position of being the only country in the world standing against children’s rights to health, education and freedom from discrimination.

“At the UN rights review, the US has been strong on process and short on substance,” said Antonio Ginatta, U.S. advocacy director at Human Rights Watch. “The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review.”

During the current UN review process, HRW has flagged concerns over mass surveillance programs, longstanding concerns over indefinite detention without trial at Guantanamo Bay, and the lack of accountability for torture under the previous administration.

In March, UN High Commissioner for Human Rights Zeid Ra’ad Hussein said that the rights abuses permitted by the U.S. government as part of counter-terrorism activities have encouraged radical extremism, citing the rise of the Islamic State (ISIS) terrorist group.

The review also comes at a time of heightened scrutiny of police brutality, with six police officers just charged in Baltimore for the murder of 25-year-old Freddie Gray. Regarding privacy rights, in the context of an appeals court decision just handed down declaring the NSA phone surveillance program illegal, the U.S. could be forced to take a public stand on the legitimacy of intercepting private communications around the world.

As Sarah St. Vincent of the Center for Democracy and Technology explained,

The US has committed to upholding human rights under several treaties, including the International Covenant on Civil and Political Rights (“ICCPR”), the Convention against Torture, and the International Convention on the Elimination of All Forms of Racial Discrimination. The ICCPR, in particular, contains rights to privacy and free expression. During the session, every other UN Member State will have the right to ask the US questions about its respect for the human rights enshrined in these treaties and make recommendations as to what the country should do differently in order to comply with its obligations.

The US (represented by its Geneva diplomatic mission and other members of the executive branch) will have the opportunity to respond to these points during the session, and will also need to declare shortly afterward whether it accepts each of the recommendations. In other words, if (for example) a country recommends that the US discontinue any indiscriminate interception of private communications, the Obama administration will be required to take a public position as to whether it accepts this recommendation.

The UN established the UPR process in 2006. Countries under review submit written reports on their human rights situation and respond to the questions and recommendations put forward by UN member countries at the Human Rights Council. All 193 UN member states undergo these reviews.

Reaction to Baltimore uprising reveals deep double standards on violence in the U.S.

A demonstrator raises his fist as police stand in formation as a store burns during unrest following the funeral of Freddie Gray in Baltimore on Monday, April 27, 2015. Patrick Semansky—AP

The general reactions to the uprising earlier this week in Baltimore, MD, reveal an almost schizophrenic attitude in the United States towards violence in general and police brutality in particular. Following the brutal arrest of unarmed black man Freddie Gray which resulted in his voice box being crushed, his spine being severed, his spleen being ruptured and ultimately his death, no officer has been fired, arrested, or prosecuted.

Yet, the focus of outrage seems to be more on the protesters rising up to demand change than on the unaccountable police whose brutality sparked the crisis.

It was especially revealing to witness CNN personality Wolf Blitzer wringing his hands over violence on the streets of Baltimore and criticizing the inability of law enforcement to stop looters:

“I don’t remember seeing anything like this in America in a long time,” he said, apparently forgetting all about the very similar riots that rocked Ferguson, MO, just a few months earlier over the non-indictment of killer cop Darren Wilson (riots covered extensively at the time by CNN).

Later, Blitzer attempted to browbeat a community organizer into confirming the narrative that the mainstream media is attempting to establish, namely that the primary concern in this situation is the unrest on the streets and not the systemic police violence that sparked the unrest.

On live television, he directly challenged activist DeRay McKesson to state unequivocally his condemnation of violence – again, not the violence of police but the violence of protesters. “I just want to hear you say that there should be peaceful protests, not violent protests, in the tradition of Dr. Martin Luther King,” Blitzer insisted.

“Yeah, there should be peaceful protests,” the community organizer replied. “And I don’t have to condone it to understand it, right? The pain that people feel is real.”

McKesson added: “And you are making a comparison. You are suggesting this idea that broken windows are worse than broken spines, right?” Trying to keep the discussion focused on the issue at hand, McKesson pointed out that “police are killing people everywhere.”

“They’re killing people here,” he said. “Six police officers were involved in the killing of Freddie Gray, and we’re looking for justice there. And that’s real. The violence the police have been inflicting on communities of color has been sustained and deep.”

Before this week’s riots broke out in Baltimore, there had been over a week of peaceful protests against the police murder of Freddie Gray, which naturally received nowhere near the media attention of the violent protests that ensued following the young man’s funeral on Monday.

Despite this media bias, there is a growing acknowledgement in the United States that its local police forces are generally out of control, killing and brutalizing unarmed civilians with impunity across the country, with a number of proposals for stemming the tide of wanton police brutality gaining traction.

Anti-police brutality activists marched 250 miles from New York to Washington DC, starting on April 13 and ending on April 20. Upon arrival at the nation’s capital, they delivered a “Justice Package” to Congress highlighting three pieces of legislation: the Stop Militarization of Law Enforcement Act, the Juvenile Justice Delinquency Prevention Act and the End Racial Profiling Act.

As March2Justice Co-Chair Tamika D. Mallory put it, “With every step we knew that we were moving closer to presenting our demands to the legislators who could respond to a national crisis with a national solution by making these bills law.”

While these measures are designed to prevent future tragedies, other campaigns are focusing on ensuring accountability for police killings that have already taken place. An email from ColorOfChange to supporters on April 29 noted that in Baltimore, “local officials haven’t provided answers to the most basic questions about why police violently arrested Gray in the first place or why ended up dead after just 45 minutes with Baltimore law enforcement.”

The email continues:

The lack of accountability for Gray’s killing is unacceptable and the solution to Baltimore’s policing crisis is not martial law or more militarized policing. Right now, we need widespread public pressure to ensure the necessary leadership and independent oversight to bring Gray’s killers to justice and overhaul the Baltimore Police Department. Without independent oversight it’s unlikely that Gray’s killers will be held accountable. Local prosecutors work too closely with police on a day to day basis to hold them accountable — and they almost never do. …

The best way to restore peace to Baltimore is for Governor Hogan and local leadership to undo the structural racism targeting its people. But right now, police are preparing to announce even harsher measures to crack down on the protests — like a curfew for youth — that will likely continue to escalate an already unacceptable level of confrontation and violence between police and citizens.

The group calls on people to send a letter to Maryland Governor Larry Hogan urging him to appoint Maryland Attorney General Brian Frosh to join the local investigation of Baltimore law enforcement responsible for Gray’s brutal death, noting that local district attorneys work too closely with police on a day to day basis to hold them accountable.

These measures – both the investigation into Baltimore law enforcement being urged by ColorOfChange and the more long-term preventive solutions being advocated by March2Justice – would go a long way into bringing the United States more closely in line with international norms on policing.

These norms include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, which state,

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.”

Further, Articles 2 and 3 of the International Code of Conduct for Law Enforcement Officials state unambiguously:

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.

It’s recently been coming more into focus just how out of step the United States is when it comes to respecting these norms. As the United Kingdom’s Independent newspaper pointed out on April 17,

Police in the US have have fatally shot people 298 more times than forces in the UK, which has consistently had two or fewer shootings a year since 2009 and fewer than seven shootings a year since 1990. According to some estimates, police in the US killed more people in March than police in the UK killed in the last century.

Iceland only experienced one fatal police shooting in 2013 – believed to be the first in the country’s history.

Our graphic, supplied by Statista, also shows a gaping hole in official FBI data, illustrated by the smaller of the two US circles. The FBI only reports shootings that are considered “justified”, defined by them as “the killing of a felon by a law enforcement officer in the line of duty”.

It’s also noteworthy that the vast majority of these shootings were considered unjustified as demonstrated in this graphic:

If opinion-shapers like Wolf Blitzer were really concerned about violence, these are the statistics he would harping on, and perhaps browbeating cops into condemning violence on his live TV show rather than activists.

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

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.

Ferguson report recalls U.S. obligations on policing and combating racial discrimination

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.

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;

(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.”

Ferguson police violence the latest indication of United States’ deteriorating human rights situation

A protester throws back a smoke bomb while clashing with police in Ferguson, Missouri August 13, 2014. REUTERS/Mario Anzuoni

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. – UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers

For the fourth straight night, demonstrations rocked the St. Louis, MO, suburb of Ferguson on Wednesday in protest of the police murder of an 18-year-old unarmed black man named Mike Brown. The youth was gunned down last Saturday as he raised his hands to demonstrate compliance with police orders, according to witnesses, raising serious questions of adherence to international norms as they pertain to the use of force by law enforcement.  

The killing of Brown was the latest in an epidemic of police murders across the United States, including at least 18 people killed so far in the month of August, and an estimated 130 throughout 2014.

As the demonstrations continued in Ferguson this week, the police repression has intensified. The over-the-top police response has included the use of armored vehicles, tear gas, rubber and wooden bullets, and the deployment of officers wearing combat fatigues, making them virtually indistinguishable from armed forces in countries under U.S. military occupation such as Afghanistan.

In an article at Business Insider on Tuesday, Paul Szoldra, an Afghanistan veteran, wrote:

While serving as a U.S. Marine on patrol in Afghanistan, we wore desert camouflage to blend in with our surroundings, carried rifles to shoot back when under enemy attack, and drove around in armored vehicles to ward off roadside bombs.

We looked intimidating, but all of our vehicles and equipment had a clear purpose for combat against enemy forces. So why is this same gear being used on our city streets?

The police confronting demonstrators in Ferguson are armed with short-barreled 5.56-mm rifles based on the military M4 carbine, “with scopes that can accurately hit a target out to 500 meters,” Szoldra points out. “On their side they carry pistols. On their front, over their body armor, they carry at least four to six extra magazines, loaded with 30 rounds each.”

On Wednesday, these heavily armed police officers fired tear gas and rubber bullets to force hundreds of protesters out of the city center.

“Dozens of officers,” The Guardian reported, “some carrying assault rifles, advanced with a pair of armoured trucks on the young and predominantly African American crowd, after two glass bottles were thrown at their lines from a largely peaceful protest against the shooting of Michael Brown by a city policeman.”

The police viciously attacked both demonstrators and journalists covering the demonstrations, including by firing tear gas directly at TV camera crews, such as these unfortunate reporters from the Al Jazeera network who were attacked Wednesday night:

After the reporters fled, their equipment was dismantled by police.

The systematic police repression of the freedom of the media on Wednesday also included arresting individual reporters, including one from the Washington Post and one from the Huffington Post.

The Washington Post condemned the detention of its journalist, Wesley Lowery, as “illegal” and an “assault on the freedom of the press to cover the news.” The Huffington Post criticized the arrest of its reporter, Ryan Reilly, as “militant aggression.” Reilly said that the “police resembled soldiers more than officers.”

The assaults on press freedom by the police in Ferguson – not to mention the murder of the unarmed black youth that set the protests off in the first place – are just the latest of a long list of escalating violations of rights committed by rogue police forces across the country, including the systematic militarization of police and what is being called a nationwide epidemic of police brutality.

Even establishment publications such as the Wall Street Journal have noticed the troubling trend of rising police violence, which is widely understood as inextricably linked to the war on terror. The Wall Street Journal dubbed the new breed of U.S. police officers “the warrior cop.” As a feature article put it in August 2013,

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

This rapidly deteriorating human rights situation is depicted well in this short film released last October called “Release Us”:

Earlier this year, 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.

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;

(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.”

This is one area that is sorely lacking in the United States, with a general climate of impunity across the country for killer cops. This climate has led the hacktivist collective Anonymous to call on congressional representatives of Missouri to introduce legislation called “Mike Brown’s Law.”

“Anonymous demands that the Congressional Representatives and Senators from Missouri introduce legislation entitled ‘Mike Brown’s Law’ that will set strict national standards for police conduct in the USA,” the collective announced in a press release on Sunday. “We further demand that this new law include specific language to grant the victims of police violence the same rights and prerogatives that are already enjoyed nationwide by the victims of other violent criminals.”

As the police repression has intensified since Sunday, the Anonymous collective is now calling for an escalation of tactics in response to the ongoing human rights violations, including by holding nationwide demonstrations in solidarity with Ferguson.

As outraged citizens in the United States stand up bravely against out-of-control police forces, it is also imperative for the international community to step up in demanding that the U.S. begin implementing minimal standards for police conduct as called for in the UN Basic Principles and other human rights documents such as the International Covenant on Civil and Political Rights.

Deteriorating human rights in U.S. client states belie claims of progress

Victims of the crackdown in Bahrain

Several months after the United States resumed military aid to the Bahraini dictatorship amid promises of reform, the human rights situation in the country continues to deteriorate, according to a new report by Amnesty International. Repressive practices are growing increasingly entrenched, says Amnesty, and the government is displaying flagrant disregard for the recommendations of the Bahrain Independent Commission of Inquiry (BICI), set up to investigate widespread human rights violations during the 2011 uprising.

“The Bahraini authorities can no longer shield themselves from criticism by using the pretence of reform, and Bahrain’s close allies, including the USA and the UK can no longer brandish the BICI report to go back to business as usual,” reads the Amnesty report.

The findings come six months after the U.S. State Department informed Congress that the U.S. would be releasing “items and services for the Bahrain Defense Force, the Coast Guard, and the National Guard for the purpose of helping Bahrain maintain its external defense capabilities.”

In a statement at the time, State Department spokesperson Victoria Nuland said that the decision was made “mindful of the fact that there are a number of serious unresolved human rights issues that the Government of Bahrain needs to address.” Saying that the U.S. will continue to maintain holds on certain material such as TOW missiles and Humvees, the State Dept. noted that “the Government of Bahrain has begun to take some important steps to implement the recommendations of the Bahrain Independent Commission of Inquiry report.”

“Going forward,” Nuland said, “we will continue to engage with Bahrain to encourage meaningful progress on human rights and reform.”

Amnesty’s criticism of Bahrain’s human rights record since U.S. aid was resumed demonstrates that contrary to occasional claims by the U.S. government, supplying weapons to dictators does not necessarily have the effect of producing leverage over those regimes’ human rights practices.

This is a specious argument that is made from time to time by U.S. officials, particularly when aid to an unsavory regime is criticized as geopolitical opportunism, for example in September 2011 when the U.S. lifted restrictions on aid to Uzbekistan – one of the world’s worst human rights abusers.

In response to criticism over that move, Secretary of State Hillary Clinton claimed that “our continuing dialogue with officials of the [Uzbek] government is essential.” That dialogue “always raises, as I have and as others from our government continue to do so, our concerns about human rights and political freedoms. But at the same time we are working with the Uzbeks to make progress, and we are seeing some signs of that, and we would clearly like to deepen our relationship on all issues.”

Some at the time wondered what progress the U.S. was seeing from the regime in Uzbekistan, which is known to boil people alive and commit other horrific human rights abuses. One blogger facetiously pointed out that “They haven’t boiled anyone alive in at least 5 years!”

As Human Rights Watch noted however in January 2012,

Uzbekistan’s human rights record remains appalling, with no meaningful improvements in 2011. Torture remains endemic in the criminal justice system. Authorities continue to target civil society activists, opposition members, and journalists, and to persecute religious believers who worship outside strict state controls.

Freedom of expression remains severely limited. Government-sponsored forced child labor during the cotton harvest continues. Authorities continued to deny justice for the 2005 Andijan massacre in which government forces shot and killed hundreds of protestors, most of them unarmed.

Reacting to the pro-democracy Arab Spring movements, the Uzbek government increased the presence of security forces across the country and widened its already-tight control over the internet. Despite the government’s persistent refusal to address concerns about its abysmal record, the United States and European Union continued to advance closer relations with the Uzbek government in 2011, seeking cooperation in the war in Afghanistan.

In defending the resumption of military aid to this regime that Freedom House identifies as among “the worst of the worst,” Victoria Nuland offered assurances that Clinton has spoken “very frankly” with Uzbek President Islam Karimov about U.S. support for human rights and the desire to see reforms. Clinton also raised “individual cases” that Washington is especially concerned about, Nuland said.

“Nobody is shying away from having the tough conversation,” she added. “That said, we also have other interests and things that we need to protect in our relationship with Uzbekistan.”

Those “other interests and things” are primarily related to securing support from the dictatorship for the decade-old U.S. war in neighboring Afghanistan. As Freedom House described the situation in May 2012,

Uzbekistan has largely repaired relations with the EU and United States in recent years, in part by agreeing to the overland transportation of nonmilitary supplies to support NATO operations in Afghanistan. The rapprochement gained new momentum in 2011, as NATO increased transit traffic, the United States approved waivers for Uzbekistan on some human-rights related sanctions, and high-level visits between U.S., European, and Uzbek officials resumed.

The U.S. reconciliation with Uzbekistan however has not resulted in any advances in human rights, with freedoms of speech and the press severely restricted, torture used pervasively in overcrowded prisons, and freedom of association tightly constrained. The country received Freedom House’s lowest possible score in its latest report, along with totalitarian states such as North Korea and Saudi Arabia.

Similarly, the situation in the island monarchy of Bahrain continues to deteriorate despite U.S. assurances of progress and pleas from the human rights community for the United States to stop supplying the regime with military aid. In a letter to Hillary Clinton in September, several human rights organizations pointed out that “the security forces of the Government of Bahrain continue to engage in human rights violations against non-violent, pro-democracy protesters.” The groups urged the State Department “to immediately suspend further U.S. military assistance and arms transfers to the responsible units, as required by law.”

The letter notes that

Bahrain Watch has visually documented the use of some U.S. origin weapons during the initial phase of protests (February-March 2011). [5] Members of the BDF can be seen in videos and photos attacking non-violent and unarmed pro-democracy protesters with U.S.-supplied arms, including M4 rifles sold to Bahrain as part of a 2008 arms sales package and .50 caliber machine guns mounted on M113 armored personnel carriers, of which the United States is the sole supplier to Bahrain. Again, we assume that the State Department has knowledge of which units operate U.S.-supplied arms, and that it has notified the Government of Bahrain that these units are ineligible to receive further U.S. taxpayer funded assistance until it takes the steps required by FAA 620M.

It further points out that Section 620M of the Foreign Assistance Act (the “Leahy Law”) stipulates that “No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.”

In offering such “credible information” to Secretary of State Clinton, the groups argue that attacks by the police and other security forces on unarmed, non-violent, pro-democracy activists rise to the level of “gross human rights violations,” particularly so when the attacks resulted in death.

Yet, the United States has continued supplying aid despite ongoing crackdowns in Bahrain, even amid the State Department expressing concern that the recommendations made by the BICI have not been fully implemented.

“I think we’re concerned that a year has gone – almost a year has gone by and we’ve only seen about half of the recommendations go forward and that dialogue is not going forward between the government and the opposition,” Nuland said earlier this month.

Amnesty International however offers a harsher assessment, stating in its new report that “a year on, the promise of meaningful reform has been betrayed by the government’s unwillingness to implement key recommendations around accountability, including its failure to carry out independent, effective and transparent investigations into allegations of torture and other ill-treatment and excessive use of force and to prosecute all those who gave the orders to commit human rights abuses.”

It calls on the U.S. to “immediately condemn human rights violations and match their condemnation with action, instead of satisfying themselves with the narrative of reform while ignoring the reality of repression.”

U.S. minority rights and policing under international scrutiny

A South Bend, Ind., demonstration supporting justice for Trayvon Martin (James Brosher/AP)

The international community is voicing growing concern that the United States is violating a host of international obligations on the rights of minorities, including immigrants, indigenous people and African Americans. At the core of these concerns is a police culture that routinely disregards the rights of people of color, as seen in immigration enforcement practices in the American Southwest as well as recent high-profile cases such as the death of Trayvon Martin.

In the case of Trayvon Martin, self-appointed neighborhood watch captain George Zimmerman, a white Hispanic, fatally shot the 17-year-old African American inside a gated community in Sanford, Florida, on February 26. Despite audio recordings of a 911 call indicating that Zimmerman was aggressively pursuing the frightened youth in defiance of police instructions to back down, law enforcement accepted Zimmerman’s claim that he shot Martin in self-defense.

Zimmerman has not been arrested or charged in the incident, leading to a national uproar over the shooting and the botched police response. Rallies have been held across the country, drawing primarily African-American crowds but with significant multiracial support.

The incident has drawn comparisons to earlier killings of blacks that were treated with impunity, particularly that of Emmett Till, an African-American boy who was brutally murdered in Mississippi in 1955 at the age of 14 after being accused of flirting with a white woman. As the African-American lifestyle magazine Uptown pointed out,

Trayvon is Emmett Till.

Trayvon and Emmett were teenagers. Both were visiting relatives. Both were murdered by civilians. Both were missing for three days. But here is where Trayvon’s case takes a departure from Emmett’s: Emmett was accused, wrongfully, of course, of whistling at a white woman, and, thus, violating a white supremacist social more of that era. What did Trayvon do? Nothing. He was just there. Trayvon was killed simply for Being While Black.

In the peak of lynching in the United States, from 1882 to 1920, thousands of African Americans were murdered by vicious lynch mobs, crimes that were rarely if ever prosecuted. The memory of this history is at the heart of the movement for justice in the Trayvon Martin killing.

“No police have the power to be the judge, the jury and the legislature,” said Rev. Al Sharpton at a rally in Sanford last weekend. “We are not going back to the days when we were killed and nobody did nothing about it. There will be justice for Trayvon Martin.”

UN High Commissioner for Human Rights Navi Pillay weighed in on the case Thursday, calling for an “immediate investigation” into the circumstances surrounding the shooting.

“As High Commissioner for Human Rights, I call for an immediate investigation,” Pillay told reporters. “Justice must be done for the victim. It’s not just this individual case. It calls into question the delivery of justice in all situations like this.”

Highlighting the apparently two-tiered justice system in the United States, Pillay said that “the law should operate equally in respect of all violations. I will be awaiting an investigation and prosecution and trial and of course reparations for the victims concerned.”

The High Commissioner’s comments came just days after the release of an Amnesty International report that extensively documents the routine human rights violations of people of color in the American Southwest, in this case, immigrants and indigenous people.

The report describes the rise in anti-immigrant sentiment in the United States, which has been reflected in the explosion of new draconian laws across several states, including Alabama, Arizona and Georgia.  As Amnesty documents, immigrants in the USA are increasingly facing discriminatory treatment from federal immigration officials, who are collaborating to a greater extent than ever with state and local law enforcement agencies.

Amnesty notes that the anti-immigrant sentiment is not only affecting undocumented migrants, but also legal residents in the United States. Citizens of indigenous nations and members of Latino communities who are U.S. citizens or lawfully reside in the USA are more likely to be harassed about their immigration status and to be detained for minor offenses as a pretext for checking their identity through the immigration system.

“While it is generally accepted that countries have the right to regulate the entry and stay of non-nationals in their territory, they can only do so within the limits of their human rights obligations,” reads the Amnesty report. “The US government has an obligation under international human rights law to ensure that its laws, policies and practices do not place immigrants at an increased risk of human rights abuses.”

The basis of human rights is the recognition of the inherent dignity and worth of every human being, Amnesty explains. “Under international law, all migrants without exception of any kind are entitled to: the right to life; the right not to be tortured or ill-treated; the right not to be subject to impermissible discrimination; the right to recognition before the law; and the right not to be subject to slavery.”

(The relevant legal framework cited include: ICCPR Art. 6; and Migrant Workers Convention Art. 9; ICCPR Art. 7; CAT Art. 2; and Migrant Workers Convention Art. 10.; ICCPR Art. 2(1), Art. 26; ICESCR Art. 2(2); CRC Art. 2(1); ICERD Art. 1(1); and CEDAW Art. 1.; ICCPR Art. 16; and Migrant Workers’ Convention Art. 24.; ICCPR Art. 8(1) & (2); and Migrant Workers Convention Art. 11(1)); ICCPR Art. 11; Migrant Workers Convention Art. 20(1)).)

The United States has ratified, and is therefore obliged to adhere to, many of these key human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Amnesty’s report, however, shows that the USA is failing in a number of its obligations under international law to ensure these rights as they pertain to the immigrant and indigenous communities in the Southwest. Among its findings:

• Recent immigration policy in certain border areas has pushed undocumented immigrants into using dangerous routes through the U.S. desert; hundreds of people die each year as a result.
• Immigration enforcement in the USA is a federal responsibility. Federal immigration officials are increasingly working in collaboration with state and local law enforcement agencies but improper oversight of state and local law enforcement has led to increased racial profiling.
• Increasingly, state laws and local policies are creating barriers to immigrants accessing their basic human rights, including rights to education and essential health care services. While these laws are targeting non-citizens, these policies are also impacting U.S. citizen children.
• Recent legislation enacted or proposed in several states targets immigrant communities and places them, Indigenous communities and other minority communities at risk of discrimination.

Perhaps the most notorious offender when it comes to respecting the rights of Latinos is Maricopa Country Sheriff Joe Arpaio, who long before his state of Arizona passed its draconian anti-immigrant law known as SB 1070, was already taking it upon himself to enforce federal immigration laws with whatever means he deems appropriate.

In 2009, he stated publicly that “he would continue to exercise authority to enforce federal immigration laws in the field,” citing a non-existent federal statute to justify immigration stops and inquiries.

The sheriff added that he “would drive those caught on the streets to the border if federal officers refused to take them into custody.”

His aggressive practices as sheriff include heavily armed raids of Latino communities in neighborhoods, fast food restaurants, elementary schools and low-income areas. Some have dubbed the tactics “brown hunting.”

To its credit, the federal government has taken on some of Arpaio’s more appalling abuses, with the Department of Justice launching an investigation of the sheriff in 2008 for racial profiling and various civil rights violations.

In December 2011, the Justice Department announced the findings of its three year investigation, concluding that Arpaio has committed an extensive array of civil rights abuses against Latinos, including a pattern of racial profiling and discrimination and carrying out heavy-handed immigration patrols based on racially charged citizen complaints.

The Justice Department said that Arpaio agreed to outside supervision, but a day before settlement negotiations were to begin, Arpaio refused to agree to a court-appointed monitor to oversee changes in his department, one of the Justice Department’s requirements.

“We believe that you are wasting time and not negotiating in good faith,” wrote Deputy Assistant Attorney General Roy L. Austin Jr. in a letter to Arpaio’s attorney. “Your tactics have required DOJ to squander valuable time and resources.”

The DOJ said that Arpaio’s refusal of a court-appointed monitor was a deal-breaker that would end settlement negotiations and result in a federal lawsuit.

The investigation of Arpaio and his department is one of 17 probes the Justice Department’s Civil Rights Division is conducting of police and sheriff departments — the most in its 54-year history. Other departments being investigated include those in New Orleans; Newark; Seattle; Puerto Rico; Portland, Ore.; and East Haven, Conn.

The DOJ has also promised to investigate the shooting of Trayvon Martin for possible civil rights violations.

While these DOJ investigations are welcome developments, a more comprehensive effort may be needed for the United States to bring itself into compliance with international humanitarian law as it pertains to minority rights, race relations and policing.

Among the recommendations that Amnesty International offers in its report include suspending all immigration enforcement programs pending a review by the Department of Homeland Security’s Office of Inspector General to determine whether the programs can be implemented in a nondiscriminatory manner.

The human rights group also calls on all state governments to ensure that their legislation respects immigrants’ rights including freedom from discrimination and the right to due process.

The NDAA and the ICCPR: Indefinite detention a violation of international law

As The Hill is reporting, President Obama is getting personally involved pushing for changes to the controversial 2012 National Defense Authorization Act (NDAA), which contains provisions authorizing the U.S. military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Specifically, the legislation “affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.”

The bill applies to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

It specifically authorizes “Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force,” referring to the bill passed by Congress more than ten years ago that authorized an endless “war on terror.”

Although the NDAA may appear on its face that it is inapplicable to U.S. citizens, with confusing language which states that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States,” some observers have pointed out that this simply means that while military is not required to hold U.S. citizens, it is still authorized to do so.

As Sen. Lindsey Graham (R-SC) said when arguing for the legislation on the Senate floor, the purpose of the bill is to make it clear to terrorist suspects – including U.S. citizens – that they should “shut up” if they dare to ask for legal representation:

“To those American citizens,” he said, “thinking about helping al Qaeda please know what will come your way: death, detention and prosecution.”

He added: “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined al Qaeda.’”

President Obama has threatened to veto the defense bill, which is now being negotiated in conference committee, over provisions mandating military custody of al Qaeda terror suspects. The White House complains mandatory military custody would tie the hands of law enforcement’s counterterrorism efforts.

Its Nov. 17 “Statement of Adminstration Policy” states:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.  This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.  Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

So, what the White House appears to be objecting to is not necessarily that Congress is authorizing indefinite military detention, but that the legislation would require such detention. “Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto,” said the White House.

Nevertheless, the human rights community is welcoming the threat of a presidential veto, with Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, saying that “The bill tosses out the most effective tool for countering terrorism — civilian law enforcement — and makes the U.S. military the world’s jailor.”

But as blogger, constitutional lawyer and author Glenn Greenwald points out,

Indefinite, charge-free military detention of people accused — accused – of Terrorism has been fully embraced by both the Bush and Obama administrations (it’s one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts — and this bill may make that more difficult — but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That’s not a mitigation of this bill’s radicalism; it’s proof of how radical the Executive Branch under these two Presidents has already become.

Greenwald notes that the NDAA would violate the Constitutional requirement in Art. III, Sec. 3 that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

“To deny a citizen the right to a lawyer and go to court on the ground that they’ve ‘betrayed their country’ and thus deserve to be imprisoned without a trial (or, worse, to be assassinated without one) is as violent a betrayal of the U.S. Constitution as one can imagine, literally,” Greenwald writes.

It is also worth pointing out that giving the military the authority to hold anyone – U.S. citizen or not – indefinitely without a trial is a violation of the International Covenant on Civil and Political Rights, which states in Art. 9,

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ratified by the U.S. Senate in 1992, the ICCPR is legally binding on the United States. As a party to the Covenant, the U.S. is required to submit a report to the UN Human Rights Committee every five years on its compliance with the Covenant’s provisions.

The last report submitted by the United States – in 2005 – was seven years overdue. Regarding the matter of indefinite detention, the 2005 report pointed out that the U.S. Supreme Court has stated “that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms.”

The U.S. asserted that “the detention of such individuals is such a fundamental and accepted incident of war that it is part of the ‘necessary and appropriate’ force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks.”

The U.S. further articulated “its firmly held legal view on the territorial scope of application of the Covenant,” namely that the ICCPR does not apply to U.S. actions with respect to individuals under its jurisdiction but outside its territory, nor in time of war. The Human Rights Committee objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

Specifically, in its response to the U.S. report, the HRC urged the United States to:

(a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war;

(b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and

(c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

The Committee also had particularly harsh words for the U.S. regarding its prosecution of the war on terror, including its indefinite detention policies: “The State party [the U.S.] should ensure that its counter-terrorism measures are in full conformity with the Covenant and in particular that the legislation adopted in this context is limited to crimes that would justify being assimilated to terrorism, and the grave consequences associated with it,” said the Committee.

Further,

The State party should immediately cease its practice of secret detention and close all secret detention facilities.  It should also grant the International Committee of the Red Cross prompt access to any person detained in connection with an armed conflict.  The State party should also ensure that detainees, regardless of their place of detention, always benefit from the full protection of the law.

…

The State party should ensure, in accordance with article 9 (4) of the Covenant, that persons detained in Guantanamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release.  Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard.

As the U.S. now moves to not only legitimize indefinite detention, but mandate it under law, consideration should be given to international obligations under the ICCPR, and the previous recommendations from the UN Human Rights Committee.