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

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

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

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

In a recent article for Foreign Policy, Roth writes:

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

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

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

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

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

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

“Dear President Obama,” she writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These principles are the following:

1. Limiting Governments’ Authority to Collect Users’ Information

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

2. Oversight and Accountability

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

3. Transparency About Government Demands

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

4. Respecting the Free Flow of Information

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

5. Avoiding Conflicts Among Governments

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

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

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

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

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

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

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

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

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

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

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

As Privacy International explains,

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

Tomaso Falchetta, Legal Officer for Privacy International, said,

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

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

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

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

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

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

As explained by the ACLU:

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

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

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

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

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

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

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

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

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

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

As the news agency explained in a March 11 article,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amnesty calls on

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

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

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

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

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

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

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

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

nsa graph

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

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

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

As Reporters Without Borders explains on its website,

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

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

While obsessively persecuting conscientious leakers of state secrets, the U.S. government has simultaneously waged a war against individual privacy that violates a host of international norms, including as Privacy International has pointed out: Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy; Article 17 of the International Covenant on Civil and Political Rights 1966; Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child.

Other international conventions that recognize the right to privacy include Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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

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

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

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

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

We must fight back.

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

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

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

For more information, please see:

American Civil Liberties Union

Bill of Rights Defense Committee

Electronic Frontier Foundation

Demand Progress

Privacy International

Angered by NSA abuses, will Europe commit to meaningful counter-measures?

nsa cellphone surveillance

Despite earlier threats from European officials to delay trade negotiations with the United States over the latest revelations of spying on French and German leaders (which have followed earlier revelations that that the NSA has tapped the telephone lines and computer networks of EU offices in Brussels, New York and Washington), German Chancellor Angela Merkel today offered assurances that U.S.-EU trade talks would go forward without interruption.

Although she said she was skeptical of efforts to delay those negotiations, she expressed tepid support for temporarily halting a program that gives U.S. intelligence agencies access to information about the financial transactions of suspected terrorists routed through the SWIFT clearing house in Brussels. SWIFT, or the Society for Worldwide Interbank Financial Telecommunication, is an industry-owned co-operative that facilitates international financial transfers within the global banking community, consisting of banks, securities broker-dealers, and regulated investment management institutions.

Merkel’s cautious support for restraining U.S. access to SWIFT follows allegations that the NSA has been gaining unauthorized access to the international financial messaging system, which could have major ramifications for the operation of the global financial system.

“Claims that the NSA has tapped the computing infrastructure of the SWIFT system and consequently has access to information about more than 90% of the world’s international banking transactions has huge implications for financial institutions and the individuals who bank with them,” writes Caroline Wilson of Privacy International.

The European Parliament has asked the U.S. to explain its actions and to reveal whether the NSA’s actions are breaching a U.S.-EU agreement that sets forth various rules the U.S. must follow when obtaining and processing financial data stored in the EU. The pact came about in 2010 because of allegations at the time that the U.S. was seeking direct and virtually unrestrained access to Europeans’ SWIFT data.

“If the NSA is obtaining SWIFT messages outside of the rules set forth in the 2010 US-EU Agreement, such action imperils further the relationship between the two parties, and violates the privacy rights of millions of Europeans,” notes Wilson.

In response to the latest allegations, the leaders of Germany and France today proposed creating a new agreement on cooperation among their intelligence services and those of the United States, in the wake of a new report alleging that the National Security Agency had monitored the phone conversations of 35 world leaders.

Noting diminished trust in the United States, Merkel pledged that she and French President Francois Hollande would rapidly forge a new pact to ensure more transparency for U.S. intelligence operations in Europe.

What is unclear though is why these leaders would expect the U.S. government to adhere to the rules of a “new pact,” when it is obvious that it has been brazenly flouting numerous existing pacts for years. Besides violating the 2010 agreement on SWIFT, the United States appears to be violating a host of international laws, including the 1961 Vienna Convention which states that “the official correspondence” as well as “the premises” of diplomatic missions “shall be inviolable.”

The individual’s right to privacy is also enshrined in numerous human rights conventions including in Article 12 of the 1948 Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights 1966, Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child. It is also guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

At a hearing in the European Parliament on Oct. 14, NSA surveillance initiatives were the subject of legal scrutiny which included the participation of a judge who has served in the European Court of Human Rights for 15 years, a former United Nations special rapporteur on human rights and counterterrorism, and a London-based international law professor. All of them agreed that the scope of the surveillance constituted violations of both European and international laws and treaties.

Martin Scheinin, former UN special rapporteur on human rights and counterterrorism, said that the NSA spying represents a “massive interference with the privacy rights of EU citizens and others.” The surveillance amounted to “an unlawful or arbitrary interference with privacy or correspondence, and this conclusion follows independently from multiple grounds,” he said.

In response to the allegations of massive U.S. law-breaking, German prosecutors have launched a legal investigation, and officials in Berlin said the scandal could disrupt counterterrorism collaboration between the United States and the European Union.

This is also a point that independent U.S. Senator Bernie Sanders made in a letter to Barack Obama on Thursday. Sanders, who is cosponsoring legislation that would significantly rein in the surveillance activities of the NSA and other intelligence agencies, wrote to Obama that the U.S. actions could undermine cooperation in the fight against terrorism.

“The strained relations with our allies as a result of wholesale NSA eavesdropping have impacted our ability to work with these countries in combating terrorism and advancing common economic goals,” Sanders said. “Clearly, in the complex and difficult world we now find ourselves, it is imperative that we try to improve our relations with friendly countries, not exacerbate them.”

European leaders from across the continent have also been vocal in their opposition to the U.S. surveillance activities. If it’s true that Merkel’s cellphone has been tapped, “it is exceptionally serious,” said Dutch Prime Minister Mark Rutte at an EU summit this week.

Swedish Prime Minister Fredrik Reinfeldt called it “completely unacceptable” for a country to eavesdrop on an allied leader. “We want the truth,” Italian Premier Enrico Letta told reporters. “It is not in the least bit conceivable that activity of this type could be acceptable.”

Austrian Foreign Minister Michael Spindelegger said, “We need to re-establish with the U.S. a relationship of trust, which has certainly suffered from this.”

But despite the current grandstanding  of European leaders, it should be remembered that the whistleblower who shared all the revelations of U.S. spying – former NSA contractor Edward Snowden – has been largely abandoned by the governments that are now expressing shock over the NSA’s abuses.

When Snowden was seeking refuge from the U.S. government fearing persecution and torture, ten EU countries immediately indicated that they would deny the whistleblower’s political asylum requests, with German Foreign Minister Guido Westerwelle saying that Snowden’s request would be reviewed by German authorities “according to the law,” but he “could not imagine” that it would be approved.

After the United States received a tip that Snowden may have been on a plane carrying Bolivian president Evo Morales, who was flying home from a Moscow summit via Western Europe, European governments fell over themselves to do the bidding of the United States, with France, Spain and Portugal all refusing to let Morales’ plane through their airspace.

The plane was forced to land in Austria, where it remained grounded for 14 hours as the authorities determined that Snowden was not on board.

Morales called the rerouting of his plane a violation of national sovereignty and a provocation to all of Latin America, urging European countries to “free themselves” from the undue influence of the United States. The president of the European Parliament, Martin Schulz, later described the measure by certain EU countries to ground Morales’s plane as “ridiculous and unacceptable.”

It is against this backdrop of acquiescing to U.S. power that the current admonitions of European leaders should be considered.

Snowden himself has been one of the most articulate advocates for greater action by the international community to protect privacy and hold the U.S. rogue superpower accountable.

In a prepared statement to the European Parliament on Sept. 30, Snowden argued that surveillance is one of the greatest challenges facing human rights today, and appealed for help in protecting the whistleblowers who bring these abuses to light.

“If we are to enjoy such debates in the future, we cannot rely on individual sacrifice, we must create better channels for people of conscience to better inform not only trusted agents of government but independent representatives of the public outside of government,” he said.

Snowden, who is currently living in Moscow after being granted temporary asylum by the Russian government, said that public debate on mass surveillance should not have to rely on the persecution and exile of people willing to leak information to the public.

A mass rally is being held in Washington on Saturday in support of Snowden and calling on the NSA to halt its mass surveillance activities. Under the banner, “Stop Watching Us,” thousands of Americans of all political stripes will demand investigations of the NSA’s illegal spying and to “hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.”

NSA surveillance routinely violating U.S. and international law

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

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

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

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

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

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

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

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

As Privacy International has pointed out:

Human rights conventions and national constitutions almost universally call for the protection of the right to privacy – the challenge is ensuring that governments comply with this requirement, particularly with respect to new technologies and in countries that lack the rule of law.

The modern privacy benchmark at an international level can be found in Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy. Numerous other international human rights treaties recognize privacy as a right: Article 17 of the International Covenant on Civil and Political Rights 1966, Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child. Regional conventions that recognize the right to privacy includes Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

An April 2013 report issued by the United Nations about the threat that government surveillance poses to the enjoyment of basic human rights found that state surveillance of communications is ubiquitous and such surveillance severely undermines citizens’ ability to enjoy a private life, to express themselves freely and enjoy other fundamental freedoms.

UN Special Rapporteur Frank La Rue noted that in the current era, “the State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.”

The report touched on various problems in the use of surveillance, including the lack of judicial oversight, unregulated access to communications data and extra-legal surveillance. In addressing these concerns the UN “underlines the urgent need to further study new modalities of surveillance and to revise national laws regulating these practices in line with human rights standards.”

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

According to the Preamble of the International Principles,

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

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

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

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

The Principles include 13 key points, summarized here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To sign on to the International Principles, click here.

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

Bluster on Russia reveals U.S. double standards on extradition, human rights

obama babushkaAnnouncing President Barack Obama’s decision to cancel a planned bilateral summit with Russian President Vladimir Putin, White House press secretary Jay Carney yesterday offered several justifications for the diplomatic snub.

“Given our lack of progress on issues such as missile defense and arms control, trade and commercial relations, global security issues, and human rights and civil society in the last twelve months, we have informed the Russian Government that we believe it would be more constructive to postpone the summit until we have more results from our shared agenda,” the press secretary said.

Almost as an afterthought, Carney added: “Russia’s disappointing decision to grant Edward Snowden temporary asylum was also a factor that we considered in assessing the current state of our bilateral relationship.”

While the bilateral U.S.-Russian relationship has been strained for some time and there are real concerns regarding Moscow’s recent crackdown on civil society, the timing of the announcement – just a week after Russia granted the NSA whistleblower one year of asylum – appeared to be a thinly veiled rebuke intended to punish Moscow for failing to bend to Washington’s dictates. After all, the other areas constituting a “lack of progress” were apparent long before the summit was even scheduled, and the only new factor in the strained relationship is the Snowden affair.

The Kremlin said it was “disappointed” by the U.S. decision, with Putin’s foreign affairs adviser saying the move showed the U.S. could not develop ties with Russia on an “equal basis.”

Russian foreign affairs adviser Yuri Ushakov added that Russia was not to blame over the Snowden affair.

“This decision is clearly linked to the situation with former agent of U.S. special services Snowden, which hasn’t been created by us,” he said.

He pointed out that there is not even an extradition agreement in place between Russia and the United States, largely due to the intransigence of Washington, and therefore there is no legal basis for the U.S. to demand extradition from Moscow in the first place.

“For many years, the Americans have avoided signing an extradition agreement,” Ushakov said, “And they have invariably responded negatively to our requests for extradition of people who committed crimes on the territory of Russia, pointing at the absence of such agreement.”

Journalist Glenn Greenwald, who has broken many of the recent stories regarding the NSA’s dragnet surveillance, noted that the U.S. in fact has a long record of refusing to extradite individuals accused of very serious crimes to a whole range of countries, many of which actually have formal extradition treaties in place with Washington.

In a February 28, 2007 article, for example, the New York Times reported:

A senior U.S. official said Wednesday that the United States would refuse any Italian extradition request for CIA agents indicted in the alleged abduction of an Egyptian cleric in Milan, a case investigated by the European Parliament.

“We’ve not got an extradition request from Italy,” John Bellinger, a legal adviser to Secretary of State Condoleezza Rice, told reporters after meeting in Brussels with legal advisers to EU governments.

“If we got an extradition request from Italy, we would not extradite U.S. officials to Italy.”

Or, as the Washington Post reported on July 19, 2013:

A former CIA operative detained in Panama this week at the request of Italian authorities over his conviction in the 2003 kidnapping of a Muslim cleric in Milan was released Friday and had boarded a flight to the United States, U.S. officials said.

Robert Seldon Lady’s release from Panama appeared to avert the possibility that he would be extradited to Italy, where he faces a sentence of up to nine years in prison for his role in the CIA capture of a terrorism suspect who was secretly snatched off a street in Milan and transported to Egypt.

Lady, who left Panama on Friday morning, was “either en route or back in the United States,” Marie Harf, State Department deputy spokeswoman, told reporters at a midday briefing.

Bolivia has also faced difficulty in extraditing fugitives from the United States, as The Guardian reported on September 9, 2012:

The view that Sánchez de Lozada must be extradited from the US to stand trial is a political consensus in Bolivia, shared by the government and the main opposition party alike. But on Friday night, the Bolivian government revealed that it had just been notified by the Obama administration that the US government has refused Bolivia’s extradition request:

“‘Yesterday (Thursday), a document arrived from the United States, rejecting the extradition of people who have done a lot of damage to Bolivia,’ leftist [President Evo] Morales, an outspoken critic of US foreign policy in Latin America, said in a speech.

“Calling the United States a ‘paradise of impunity’ and a ‘refuge for criminals,’ Morales said Washington turned down the extradition request on the grounds that a civilian leader cannot be tried for crimes committed by the military …

Then of course, there is the long-running case of former CIA employee and terrorist mastermind Luis Posada Carriles, a criminal who is being harbored by the United States despite requests from Venezuela for his extradition to face trial on 73 counts of murder.

The United States has refused to extradite him to Venezuela because he allegedly faces possible torture by the authorities there, according to his lawyers.

Ironically, the torture issue is also one of the concerns that Russia has expressed regarding the case of whistleblower Edward Snowden, prompting U.S. Attorney General Eric Holder to awkwardly assure Moscow that the U.S. government will not torture or kill Snowden upon his return to the United States.

“We…understand from press reports that Mr. Snowden has filed papers seeking temporary asylum in Russia on the grounds that if he were returned to the United States, he would be tortured and would face the death penalty,” Holder wrote in a letter to his Russian counterpart. “These claims are entirely without merit,” he wrote, adding that “torture is unlawful in the United States.”

Of course, what Holder left unsaid is that although torture is unlawful in the United States, it has still been a widespread policy and those who torture others or high-level officials who authorize torture in violation of the law are granted official impunity by the U.S. Justice Department.

As Human Rights Watch pointed out in a 2011 report, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees,” although substantial information exists warranting criminal investigations of Bush and senior administration officials, the U.S. Justice Department has failed to initiate a single investigation of these crimes.

“There are solid grounds to investigate Bush, Cheney, Rumsfeld, and Tenet for authorizing torture and war crimes,” said Kenneth Roth, executive director of Human Rights Watch.  “President Obama has treated torture as an unfortunate policy choice rather than a crime. His decision to end abusive interrogation practices will remain easily reversible unless the legal prohibition against torture is clearly reestablished.”

More recently, the United States was accused of torture in its treatment of political prisoner Bradley Manning, who is awaiting his sentence upon his conviction for exposing embarrassing state secrets of the United States government.

Manning’s solitary confinement regime during his first year of incarceration “constitute[d] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” said Juan Mendez, the UN Special Rapporteur on Torture. “If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture,” he told the Guardian in 2012.

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

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

Disregarding these apparent double standards, human rights groups have praised the U.S. decision to cancel the Obama-Putin summit, focusing nearly entirely on the premise that the decision was prompted by American concerns over the human rights situation in Russia. U.S.-based NGO Freedom House welcomed yesterday’s announcement, stating in an email,

According to the White House statement announcing the cancelation, the “lack of progress” in U.S.-Russia bilateral relations includes the human rights and civil society situation in Russia in the past 12 months. Indeed, it was during this period that the most serious crackdown against civil society and Russia’s opposition since the break-up of the Soviet Union has occurred.

A series of restrictive laws passed by the Russian Duma are meant to silence dissent against the regime and cripple civil society. In addition, we have seen the prosecution of opposition leaders, including Aleksei Navalny; the disgraceful posthumous conviction of lawyer and whistleblower Sergey Magnitsky; the aggressive campaign against non-governmental organizations; the banning of adoptions of Russian orphans by American citizens; the expulsion of the US Agency for International Development; and the outrageous campaign targeting the LGBT community. Together these actions and policies represent a full-bore and utterly deplorable campaign against human rights and democratic standards engineered by the Putin regime.  Enormous differences over Syria and the Snowden case are further reason for canceling the visit.

“I applaud the President’s decision to cancel his bilateral meeting with Putin and hope that when he goes to St. Petersburg for the G20 summit that he’ll meet with Russian civil society activists,” said Freedom House President David J. Kramer.  “Obama’s decision to cancel his Moscow visit should signal to Putin that there are costs to his bullying, unrestrained drive to silence critics and eliminate serious opposition.”

Of course, what Freedom House has overlooked is the distinct possibility that the cancellation in fact has very little to do with human rights concerns, and nearly everything to do with Moscow’s refusal to hand over Snowden to the U.S. justice system where he will almost certainly find himself suffering the same fate as imprisoned whistleblower Bradley Manning.

Similarly, Amnesty International cited human rights concerns in Russia in its statement regarding the cancelation of the summit. Rather than discussing the merits of Snowden’s asylum in Russia or the U.S. obligation to respect Moscow’s decision regarding his extradition, Amnesty focused its criticism on the White House for not condemning Russia’s human rights record more forcefully. Frank Jannuzi, Amnesty International USA deputy executive director, issued the following statement:

President Obama said he canceled his summit with President Putin because there has been a lack of progress on human rights and civil society in Russia. That is an understatement. Russia continues to backslide on human rights. The United States should press Russia to respect freedom of expression and not allow backroom discussions on other priorities to override the urgent task of protecting the Russian peoples’ basic rights and dignity.

Curiously, just a month earlier, Amnesty was among Snowden’s most vocal supporters in his efforts to seek political asylum, harshly condemning the U.S. government for its ruthless persecution of the whistleblower.

“The U.S. authorities’ relentless campaign to hunt down and block whistleblower Edward Snowden’s attempts to seek asylum is deplorable and amounts to a gross violation of his human rights,” Amnesty International said in a press release on July 2.

“The U.S. attempts to pressure governments to block Snowden’s attempts to seek asylum are deplorable,” said Michael Bochenek, Director of Law and Policy at Amnesty International. “It is his unassailable right, enshrined in international law, to claim asylum and this should not be impeded.”

As Europe grovels, Latin America stands up to U.S. lawlessness

A demonstrator holds a sign that reads in Spanish: "France; Racist, hypocrite and fascist," outside the French embassy during a protest over France's alleged refusal to let the Bolivian president's plane cross over French airspace, in La Paz, Bolivia, Wednesday, July 3, 2013.  (AP Photo/Juan Karita)

A demonstrator holds a sign that reads in Spanish: “France; Racist, hypocrite and fascist,” outside the French embassy during a protest over France’s alleged refusal to let the Bolivian president’s plane cross over French airspace, in La Paz, Bolivia, Wednesday, July 3, 2013. (AP Photo/Juan Karita)

Events of the past week have demonstrated that despite occasional grumblings from Europe about U.S. misconduct on the world stage, at the end of the day, it is only Latin America that is willing to take concrete action to challenge the systemic lawlessness of the U.S. government.

Although European leaders were humiliated by the United States when it was revealed by Edward Snowden’s leaks that the NSA has been tapping the telephone lines and computer networks of EU offices in Brussels, New York and Washington — as well as the governments of Germany, France, Greece, Italy and others — Europe largely fell into line in submitting to U.S. dictates regarding Snowden’s asylum requests.

The U.S. spying on diplomatic missions of the EU and individual European nations is a violation of the 1961 Vienna Convention which states that “the official correspondence” as well as “the premises” of diplomatic missions “shall be inviolable.”

The individual’s right to privacy is also enshrined in numerous human rights conventions including in Article 12 of the 1948 Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights 1966, Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child. It is also guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Despite Snowden revealing these U.S. violations of international law on European territory, ten EU countries indicated that they would deny the whistleblower’s political asylum requests, with German Foreign Minister Guido Westerwelle saying that Snowden’s request would be reviewed by German authorities “according to the law,” but he “could not imagine” that it would be approved.

This is despite the bluster displayed by German leaders when the story broke about the NSA snooping into the emails and phone conversations of European nations, including Germany. Angela Merkel, the German chancellor, described the disclosures of massive U.S. spying in Europe as unacceptable.

“We are no longer in the Cold War,” said Merkel’s spokesman, Steffen Seibert. “If it is confirmed that diplomatic representations of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

The French president, François Hollande, also called the spying intolerable.

“We cannot accept this kind of behaviour between partners and allies,” Hollande said. “We ask that this stop immediately.” French Foreign Minister Laurent Fabius said that if confirmed, the activities would be “totally unacceptable”.

Martin Schulz, the president of the European Parliament, said that if the report was correct, it would have a “severe impact” on relations between the EU and the United States.

“On behalf of the European Parliament, I demand full clarification and require further information speedily from the US authorities with regard to these allegations,” he said in a statement.

Luxembourg Foreign Minister Jean Asselborn told Der Spiegel: “If these reports are true, it’s disgusting. The United States would be better off monitoring its secret services rather than its allies. We must get a guarantee from the very highest level now that this stops immediately.”

But when it comes to the tangible actions – rather than just strong words – that are needed to effectively stand up to the United States, European leaders are missing in action. Indeed, when push comes to shove, and these leaders are leaned upon to take unprecedented and legally questionable measures to assist the U.S. in its overzealous manhunt of Edward Snowden, they have largely fallen into line.

For example, when the United States received a tip that Snowden may have been on a plane carrying Bolivian president Evo Morales, who was flying home from a Moscow summit via Western Europe, European governments fell over themselves to do the bidding of the United States, with France, Spain and Portugal all refusing to let Morales’ plane through their airspace.

The plane was forced to land in Austria, where it remained grounded for 14 hours as the authorities determined that Snowden was not on board.

Morales called the rerouting of his plane a violation of national sovereignty and a provocation to all of Latin America, urging European countries to “free themselves” from the undue influence of the United States.

“It is an open provocation to the continent, not only to the president; they use the agent of North American imperialism to scare us and intimidate us,” Morales told supporters gathered at the airport in La Paz to greet him.

“I regret [saying] this, but I want to say that some European countries should free themselves from North American imperialism,” he said.

Venezuela’s president, Nicolas Maduro, criticized European countries’ role in the rerouting of Morales’s plane, describing it as an act of cowardice.

“The European people have seen the cowardice and the weakness of their governments, which now look like colonies of the U.S.,” he said on Friday.

The actions were also likely a violation of international law. Michael Bochenek, director of law and policy at Amnesty International, said that the grounding of Morales’ plane, as well as reports that Vice President Joe Biden had phoned the Ecuadorean leader, Rafael Correa, to block asylum for Snowden, carried serious legal implications.

“Interfering with the right to seek asylum is a serious problem in international law,” Bochenek said. “It is further evidence that he [Snowden] has a well-founded fear of persecution. This will be relevant to any state when considering an application. International law says that somebody who fears persecution should not be returned to that country.”

Unlike the European countries cowering in the face of U.S. power even when they are humiliated and provoked, Latin America responded forcefully to the lawless behavior of the United States.

Following a meeting of Latin American leaders on Thursday, three countries – Bolivia, Venezuela and Nicaragua – stepped forward to indicate that they would accept Snowden as a political refugee fleeing persecution by the United States.

Venezuela’s president Nicolas Maduro cited humanitarian grounds for his decision to help the whistleblower.

“We have decided to offer humanitarian asylum to the American Edward Snowden to protect him from the persecution being unleashed by the world’s most powerful empire,” Maduro said.

For their part, EU politicians have questioned the future of trade talks set to begin this week.  The European Commission has officially asked Washington to investigate the allegations while France’s government said that it wanted to delay the start of U.S.-EU trade talks.

A German official has suggested that Europeans stop patronizing American Internet companies such as Google and Facebook if they are concerned about their privacy.

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