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.

UN experts express shock over water shutoffs in Detroit, highlight U.S. international obligations

Demonstrators protest against the Detroit Water and Sewer Department July 18, 2014 in Detroit, Michigan. The Detroit Water and Sewer Department have disconnected water to thousands of Detroit residents who are delinquent with their bills. (AFP Photo / Getty Images / Joshua Lott)

A delegation from the United Nations has completed a fact-finding mission to the U.S. city of Detroit, which is currently experiencing large-scale water disconnections, with at least 27,000 households having their water services cut off this year.

The UN delegation, consisting of the Special Rapporteur on housing, Leilani Farha, and the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, visited Detroit from Oct. 18-20 on the invitation of U.S. civil society groups. Noting that 40.7 percent of Detroit’s population live below the poverty level and about 80 percent of the population are African American, the experts said that the water shutoffs disproportionately affect vulnerable people and low-income African Americans.

“Twenty percent of the population is living on 800 USD or less per month, while the average monthly water bill is currently 70.67 USD,” the delegation pointed out. “This is simply unaffordable for thousands of residents, mostly African Americans.”

As the experts further explained in a press release concluding the visit,

Without water, people cannot live a life with dignity – they have no water for drinking, cooking, bathing, flushing toilets and keeping their clothes and houses clean. Despite the fact that water is essential for survival, the city has no data on how many people have been and are living without tap water, let alone information on age, disabilities, chronic illness, race or income level of the affected population.

Denial of access to sufficient quantity of water threatens the rights to adequate housing, life, health, adequate food, integrity of the family. It exacerbates inequalities, stigmatizes people and renders the most vulnerable even more helpless. Lack of access to water and hygiene is also a real threat to public health as certain diseases could widely spread.

In addition, thousands of households are living in fear that their water may be shut off at any time without due notice, that they may have to leave their homes and that children may be taken by child protection services as houses without water are deemed uninhabitable for children. In many cases, unpaid water bills are being attached to property taxes increasing the risk of foreclosure.

We were deeply disturbed to observe the indignity people have faced and continue to live with in one of the wealthiest countries in the world and in a city that was a symbol of America’s prosperity.

The experts also reminded the United States that it is bound by international human rights law and principles, “including the right to life as well as the right to non-discrimination with respect to housing, water and sanitation and the highest attainable standard of health.” These obligations not only apply to the federal government, but to state and municipal governments as well, including the judiciary.

In September, U.S. bankruptcy judge Steven Rhodes threw out a motion to stop Detroit’s mass water shutoffs, declaring that despite “findings of irreparable harm,” there is no “fundamental enforceable right to free or affordable water.”

“We were shocked, impressed by the proportions of the disconnections and by the way that it is affecting the weakest, the poorest and the most vulnerable,” said de Albuquerque at a press conference on Monday.

“I’ve been to rich countries like Japan and Slovenia where basically 99 percent of population have access to water, and I’ve been to poor countries where half the population doesn’t have access to water … but this large-scale retrogression or backwards steps is new for me.” She added, “From a human rights perspective, any retrogression should be seen as a human right violation.”

As the delegation’s joint statement elaborates:

The human rights to safe drinking water and sanitation and to adequate housing both derive from the right to an adequate standard of living which is protected under, inter alia, article 25 of the Universal Declaration of Human Rights which is fully applicable to the United States. In addition, adequate housing and access to safe water are clearly essential to maintain life and health, and the right to life is found in treaties the United States has ratified, including the International Covenant on Civil and Political Rights.

Ensuring freedom from discrimination does not mean that everyone should be treated equally when their circumstances are different. Water and sanitation does not have to be free. It must rather be affordable for all. The price cannot put a household in debt or limit access to essential services such as food or medicine. A human rights framework provides that people should not be deprived of these rights if they cannot pay the bill for reasons beyond their control. Disconnections of water due to non-payment are permissible if it can be shown that the resident is able to pay but is not paying. When people are genuinely unable to pay the bill, it is the State’s obligation to provide urgent measures, including financial assistance, a specially low tariff or subsidies, to ensure access to essential water and sanitation for all. Not doing so amounts to a human rights violation.

Similarly, the human right to adequate housing means that housing must be affordable, including the costs of water, sanitation and other housing-related services. Houses without water and sanitation are unsafe and uninhabitable. They expose residents to disease, exacerbate existing health conditions, and threaten the security of tenure of residents. If costs associated with housing are not in line with income levels, housing is rendered unaffordable for many low-income residents, leading to accumulated arrears which in turn create real risks for foreclosure, eviction and homelessness. This contravenes the State’s obligation to ensure tenants and owners enjoy secure tenure.

The UN officials offered a number of recommendations to the City of Detroit and other relevant authorities, calling for Detroit to “restore water connections to residents unable to pay and vulnerable groups of people, stop further disconnections of water when residents are unable to pay, and provide them the opportunity to seek assistance that must be made available through social assistance schemes.”

Further, the U.S. should adopt, at all levels of government, a mandatory affordability threshold and specific policies should be adopted to ensure specific support to people who live in poverty.

In addition, the federal government should immediately undertake an investigation into the water shutoffs to determine if they are having a disproportionate impact on African Americans and other groups protected against discrimination.

For the full statement and list of recommendations, visit the UN’s Office of the High Commissioner on Human Rights web page.

Testimonies from residents of Detroit coping with the effects of the water shutoffs are available here.

Video of the delegation’s post-visit press conference is on YouTube:

U.S. police display total disregard for international norms on law enforcement

Police attack protesters in the Missouri suburb of Ferguson on Aug. 17
Picture: Scott Olson/Getty Images

 

 Everyone has the right to freedom of peaceful assembly and association.

• Article 20 of the Universal Declaration of Human Rights

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

• Article 21 of the International Covenant on Civil and Political Rights

In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

• Articles 2 and 3 of the International Code of Conduct for Law Enforcement Officials

In response to protests in Ferguson, Mo., over the police murder of Michael Brown, an unarmed 18-year-old shot by Officer Darren Wilson on Aug. 9, police have employed highly threatening and repressive measures, including pointing military assault rifles at peaceful protesters, deploying armored vehicles in the streets, and targeting journalists and African Americans for arrest.

These measures, human rights observers on the ground point out, infringe on basic fundamental rights to peaceful assembly and expression. Amnesty International, which has a team of observers in Ferguson, “remains deeply concerned about government infringement on the community’s right to peacefully protest the killing by police of Michael Brown,” according to an Aug. 19 blog post, which contains details on how Ferguson police have engaged in arbitrary arrests and acts of violent repression in recent days.

Amnesty reiterated its calls for a prompt, thorough, independent and impartial investigation into the fatal shooting of Michael Brown, as well as independent investigations into any human rights abuses in connection with the policing of protests. Further, the group has urged a thorough review of all trainings, policies and procedures with regards to the use of force and the policing of protests.

Police point to a demonstrator who has his arms raised before moving in to arrest him on August 19. (Photo by Joe Raedle/Getty Images)

A statement issued by Human Rights Watch on Aug. 20 noted that although some scattered looting has been reported in the two weeks of demonstrations in Ferguson, most observers have described the protests as overwhelmingly peaceful. Nevertheless, the police have used “unnecessary or excessive force – including firing teargas and rubber bullets into crowds, and arbitrarily detained journalists covering the events,” according to HRW.

In the statement, HRW urged U.S. Attorney General Eric Holder to press state and local officials in Missouri to reform police practices to improve respect for basic rights. “Holder should also support federal reforms that could help address concerns about policing and racial discrimination raised during the Ferguson protests over the last 10 days,” HRW noted.

A member of the St. Louis County Police Department points his weapon in the direction of a group of protesters in Ferguson, Missouri, on Aug. 13.
AP Photo/Jeff Roberson

“A lot of the poor policing we’re seeing in Ferguson may be going on elsewhere in the United States,” said Alba Morales of Human Rights Watch, who has been monitoring the situation in Ferguson. “Holder should press state and local officials to review their regulations and policies on policing, but he should also look at ways the federal government may be contributing to the problems there.”

Indeed, the issue of the federal government’s responsibility for ensuring a minimum national standard in policing is also one that the United Nations has raised directly with the U.S. government, concerns that have so far apparently fallen on deaf ears.

Earlier this year, the United Nations Human Rights Committee issued a scathing report addressing serious human rights abuses in the United States, including the nationwide problem of police brutality. In a section of the report on “Excessive use of force by law enforcement officials,” the UN found that across the country, there is an unacceptably “high number of fatal shootings by certain police forces … and reports of excessive use of force by certain law enforcement officers including the deadly use of tasers, which have a disparate impact on African Americans.”

In order to bring its practices in line with international norms on law enforcement, the UN recommended that the U.S. government should “step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers” and “improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

The Basic Principles on the Use of Force and Firearms by Law Enforcement Officers that the Human Rights Committee referenced contains a number of guidelines that the U.S. must implement in order to meet its international obligations. For example,

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life;

When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

Demonstrating the general ignorance (or indifference) of these principles within United States law enforcement agencies, Sunil Dutta of the Los Angeles Police Department recently provided some stunningly frank “practical” advice to civilians on how to avoid being brutalized or killed by cops.

In the context of the ongoing protests in Ferguson, Dutta wrote in a Washington Post op-ed on Tuesday, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge.”

Acknowledging that police “field stops” can sometimes amount to unlawful and unconstitutional harassment, Dutta nevertheless advised civilians to never question the police about why they are being hassled, and above all, never contest  cops’ authority in any way. “I know it is scary for people to be stopped by cops,” he wrote. “I also understand the anger and frustration if people believe they have been stopped unjustly or without a reason,” adding that he is well aware that “corrupt and bully cops exist.”

However, “if you believe (or know) that the cop stopping you is violating your rights or is acting like a bully, I guarantee that the situation will not become easier if you show your anger and resentment,” he said. Instead of challenging the cop on the scene Dutta advises that order to avoid being killed you should “Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you.”

By placing the onus of avoiding being shot on the civilian rather than the police officer, Dutta is demonstrating the very problem with law enforcement in the United States. The mentality that he reveals among American police officers is this: when civilians get shot, it is their fault for mouthing off or being insufficiently deferential to the police’s authority. However, as made clear by the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, it is up to cops to always “apply non-violent means before resorting to the use of force and firearms.”

Police officers “may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result,” not because they get annoyed with civilians who question their authority.

This basic ignorance on the part of police officers is why it may be necessary for the federal government to step in to make sure that there is some sort of national standard for policing across the country. But instead, of course, the federal government is arming police departments to the teeth with military combat gear.

In other words, federal government so far has demonstrated itself to be part of the problem, rather than part of the solution, so it may be naïve to think that it has any interest in dealing with this issue.

FCC’s proposed rule changes on net neutrality violate a host of international obligations

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

— Article 19 of the International Covenant on Civil and Political Rights

With one month to go before the public comment period ends on the Federal Communications Commission’s recent vote to advance a proposal that would end net neutrality and create a system of paid-prioritization online, a new report has come out criticizing the FCC’s actions as potentially undermining the U.S. government’s international obligations regarding freedom of expression.

The legal analysis issued Monday by the Organization for Security and Cooperation in Europe – an inter-governmental organization that counts the United States as one of its 57 members – found that the rules on net neutrality (the principle that internet service providers treat all data equally and not discriminate based on content or price paid) proposed by the FCC may violate one or more of the following international accords to which the United States has subscribed: the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the 1990 OSCE Copenhagen Document.

Prepared for the Office of the OSCE Representative on Freedom of the Media by George Washington University Law School Professor Dawn Carla Nunziato, the report points out that Article 19 of both the Universal Declaration of Human Rights and the ICCPR protects the right to freedom of expression and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Despite this international obligation of the U.S. government, the FCC has proposed rules that would replace the so-called Nondiscrimination Rule with a No Commercially Unreasonable Practices Rule. As Prof. Nunziato explains it, “Permitting ‘commercially reasonable’ practices by broadband providers will allow – and indeed encourage – broadband providers to experiment with business models that include paid prioritization – and even exclusive paid prioritization – upon individualized negotiations with edge providers (providers of content, applications, and services).”

In practice, what this would mean is that broadband providers would be able to negotiate exclusive pay-for-priority arrangements with individual content providers, permitting broadband providers to anoint exclusive premium content providers “and effectively become censors of other disfavored, poorly funded, or unpopular content, by choosing not to favor such content for transmission to subscribers.”

For example, an internet service provider like Comcast “could enter into a deal with Foxnews.com to anoint it as the exclusive premium news provider for all Comcast subscribers, while comparatively disadvantaging all other news providers.”

Similarly, the FCC’s Proposed Rules would allow a broadband provider like Verizon to enter into an arrangement with the Republican National Committee to anoint it as the exclusive premium political site for all Verizon subscribers, while disadvantaging the Democratic National Committee’s and other political sites.

She goes on to describe other possible effects of this rule change:

Otherwise protected speech – a blog critical of Verizon’s latest broadband policies, a disfavored political party’s website – could be disfavored by broadband providers and not provided to Internet users in a manner equal to other, favored Internet content – subject only to the Proposed Rules’ vague prohibition against commercially unreasonable conduct. Such a regime would endanger the free flow of information on the Internet, would threaten freedom of expression and freedom of the media, and would herald the beginning of the end of the Internet as we know it.

The possibility of being sidelined by the ISPs could lead to “further entrenched market power by dominant content and applications providers, self-censorship by content providers who might alter their content to make it more palatable to broadband providers, and a reduction in the overall amount of speech that is meaningfully communicated as a result of content not being delivered effectively to its intended audience.”

These very real prospects led the OSCE Representative on Freedom of the Media, Dunja Mijatovic, to weigh in on the controversy yesterday.

“The proposed rules will allow telecommunications providers to discriminate against content which may conflict with their political, economic or other interests,” Mijatovic said in a letter to FCC Chair Tom Wheeler. “This would contradict international standards, OSCE commitments on free expression and freedom of the media and longstanding U.S. First Amendment principles.”

Besides U.S. international commitments on freedom of information, the net neutrality controversy spurred by the FCC and its chairman Tom Wheeler raises questions of U.S. compliance with its anti-corruption obligations under the UN Convention against Corruption. As a state party to this Convention, the United States has agreed to taking measures to prevent conflicts of interest and corruption in both the public and private sphere. In particular,

Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.

Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …

Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.

Yet, the powerful chairmanship of Wheeler at the FCC demonstrates once again how the United States routinely flouts this obligation to prevent conflicts of interests. Prior to joining the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). He also raised over $500,000 for Barack Obama’s two campaigns.

As a reward for this financial backing, President Obama then appointed him to his current position where is empowered with rewriting the rules for the industry that once employed him. This sort of patronage is not only prohibited under the Convention against Corruption, but now, as we see, is leading to multiple violations of international principles, as documented by the OSCE in its report issued Monday.

“The Internet was conceived as an open medium with the free flow of information as one of its fundamental characteristics,” Mijatovic said upon the report’s release. “This should be guaranteed without discrimination and regardless of the content, destination, author, device used or origin.”

Mijatovic expressed her hope that her recommendations will be taken into consideration by the FCC.

The legal analysis of the proposed net neutrality rule changes is available here. To comment to the FCC regarding its proposed rules regarding net neutrality, click here.

A very accessible, succinct explanation of the FCC’s proposed rule changes was offered recently by John Oliver on his cable show Last Week Tonight:

Abandoned by international community, Bradley Manning begins fight for his life

Just over three years since being arrested on suspicion of being the source of a massive leak of classified documents – many providing evidence of U.S. war crimes and other serious crimes of state – to the whistleblowing website WikiLeaks, Bradley Manning began his trial yesterday, facing the extremely serious charge of “aiding the enemy” which could potentially result in a death sentence.

Despite the international implications of the trial and the grave human rights abuses he has endured since his arrest in May 2010, leading human rights groups and international organizations are maintaining relative silence regarding the case.

Manning has spent his entire pre-trial period of three years in jail despite military law setting a maximum of 120 days of detention before a trial. His pre-trial punishment is also likely a breach of his rights under the International Covenant on Civil and Political Rights, which the United States ratified in 1992. The Human Rights Committee of the United Nations has held that confinement of more than six months is incompatible with article 9 (3) of the ICCPR, which states:

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.

In providing practical guidelines for the use of pre-trial confinement, the UN’s Handbook of International Standards relating to Pre-Trial Detention recommends that governments establish a maximum period of time during which a person may be detained without trial, which must abide by international standards, and if a prisoner’s detention exceeds that amount of time, he or she shall be released.

Needless to say, the U.S. military has not seen fit to adhere to these standards, unnecessarily delaying Manning’s trial for many months. As his lawyer David Coombs demonstrated at a pre-trial hearing earlier this year, although prosecutors were supposed to arraign Manning within 120 days, they took well over 600. Coombs also showed substantial periods of their inactivity and needless delay, despite a legal requirement to remain actively diligent throughout the proceedings.

For nine months of his pre-trial imprisonment, Manning was subjected to solitary confinement and other forms of punishment such as forced nudity, which were clear violations of his rights under international humanitarian law, including the ICCPR, the Universal Declaration of Human Rights and the UN’s Standard Minimum Rules for the Treatment of Prisoners.

Manning’s denial of work and exercise opportunities, for example, was arguably a violation of the Standard Minimum Rules‘ stipulation that “An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.” Further, despite the international requirement that “Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits,” Manning was denied meaningful exercise opportunity.

Being forced to wear shackles while out of his cell was also likely out of step with the Standard Minimum Rules, which state: “Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment.”

Manning’s forced nudity clearly breached the letter and spirit of the Standard Minimum Rules’ stipulation that “An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.”

At the time of some of Manning’s most egregious treatment at the hands of his captors, the international community rallied to his defense, issuing strongly worded condemnations of U.S. actions which seemed to have a real effect in improving his living conditions.

In January 2011, for example, while Manning was being held in prolonged solitary confinement, Amnesty International sent a letter to Defense Secretary Robert Gates, calling Manning’s detention “unnecessarily harsh and punitive” and in “breach of the USA’s obligations under international standards and treaties.”

According to Amnesty:

The conditions under which PFC Manning is held appear to breach the USA’s obligations under international standards and treaties, including Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which the USA ratified in 1992 and which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. The UN Human Rights Committee, the ICCPR monitoring body, has noted in its General Comment on Article 10 that persons deprived of their liberty may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons …”.

In an open letter to President Obama, members of Congress and Pentagon officials in November 2011, members of the European Parliament expressed concern that “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.”

Manning’s solitary confinement regime “constitute[d] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” according to 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.

Largely in response to this international pressure, Manning was removed from solitary confinement and placed in medium security at Fort Leavenworth prison in April 2011.

Even the military judge, Col. Denise Lind, eventually agreed that the treatment he received was “more rigorous than necessary.”  At a pre-trial hearing in January 2013, she ruled that Manning had been subjected to illegal pre-trial punishment while held in a military prison in Quantico, Virginia.

Despite his supporters’ pleas that the remedy for this unlawful treatment should be immediate release from prison, Lind instead simply credited a total of 112 days toward any potential prison sentence Manning receives if convicted. (What this means if he receives a death sentence or life without parole is unclear.)

Unfortunately, since the partial victory in 2011 that resulted in slightly improved living conditions for the accused whistleblower, the international community and leading human rights organizations have largely remained silent over Manning’s case.

As David Cronin recently pointed out at CounterPunch,

Catherine Ashton, the EU’s foreign policy chief, is a fearless defender of human rights – when it suits her. Happy to champion political prisoners in Iran and Ukraine, she is prepared to overlook persecution when it is carried out with the approval of her bosom buddies in Washington.

A search on Ashton’s website indicates that she has not issued a single statement on Manning’s incarceration. I asked her spokesman to explain this silence; he did not respond. Members of the European Parliament who have tried to solicit her views on this matter haven’t fared much better. Last year, Ashton answered a parliamentary question about an investigation by Juan Méndez, the UN special rapporteur on torture, which concluded that the treatment of Manning was “cruel and inhuman”. Ashton noted that the Méndez report highlighted “potential violations of rights” before making a vague commitment that the EU would “seek clarification” from the US authorities on “what measures they intend to take”.

He further notes the confounding silence on the case by Amnesty International.

There is little doubt that Manning has been imprisoned because of his sincerely-held political beliefs. So it is baffling that Amnesty International has so far declined to consider him a prisoner of conscience and to undertake a major campaign for his release.

Amnesty has told the Canadian blogger Joe Emersberger that it cannot deem Manning to be a prisoner of conscience until it has verified if he released the information in a “responsible manner”. I contacted Amnesty to check if Emersberger had accurately reflected its position but received no reply. Assuming that Emersberger is correct – and I’ve no reason to suspect he is not – Amnesty should specify what it means by “responsible”.

This silence has led to a grassroots effort to shame Human Rights Watch and Amnesty International, in particular, to take a clear stand in support of Bradley Manning as his trial begins. As the campaign Amnesty4Manning points out, “When it comes to Manning support, Amnesty International has beat around the bush for three years. Human Rights Watch has been silent since the ONE article the organization published in 2011.”

The campaign is urging people to contact AI and HRW to ask questions such as “How does Amnesty International assess actual and potential human rights violations?”, “What is Amnesty International’s definition of a prisoner of conscience?”, and “Would Pfc. Bradley Manning fit Amnesty International’s definition of a prisoner of conscience?”

Avoiding the question of whether Manning qualifies as a prisoner of conscience (a label that Amnesty freely offers to various prisoners, such as the Pussy Riot punk rockers who are serving sentences of two years in Russia for hooliganism), Amnesty issued a rather mild-mannered press release yesterday calling for the U.S. to allow Manning’s defense to argue that he “acted in the public interest when he distributed information to Wikileaks.”

“The court must allow Manning to explain in full his motives for releasing the information to Wikileaks,” said Anne Fitzgerald, director of research and crisis response at Amnesty International. “It disturbing that he was not permitted to offer the ‘public interest’ defense as he has said he reasonably believed he was exposing human rights and humanitarian law violations.”

While it could be seen as welcome that Amnesty is finally breaking its silence on this case, the statement yesterday was seen as a bit too mild by some. As one Amnesty member posted on the group’s Facebook page, “I want to know where the hell Amnesty’s been on this, possibly the most significant, courageous political prisoner in a generation?” Another wrote, “Why hasn’t Amnesty recognized Bradley as the political prisoner he is?!?!”

Instead, Amnesty chose to focus on the more limited question of whether Manning should be allowed to explain his motives for releasing the documents to WikiLeaks.

“Allowing Manning to explain his motives only at the sentencing stage could have a chilling effect on others who believe that they are whistle-blowing, or acting in the public interest in disclosing information,” noted AI’s Fitzgerald. “Manning should have been allowed to explain how, in his opinion, the public interest in being made aware of the information he disclosed outweighed the government’s interest in keeping it confidential.”

Although Manning has not had the opportunity to formally explain how his actions were intended to benefit the public interest in a trial setting, he has made it clear that by releasing the information to WikiLeaks he hoped to inform the public of what its government does in its name.

Reading from a 35-page prepared statement at a pre-trial hearing earlier this year, Manning said: “I believed that if the general public, especially the American public, had access to the information … this could spark a domestic debate on the role of the military and our foreign policy in general.”

Further, it’s clear that the decision to leak the documents provided a real public service, considering the extent to which the government has overclassified historical documents, even those dealing with topics from three decades earlier. As investigative journalist Robert Parry recently explained in an article defending Manning’s actions,

I thought of Pvt. Bradley Manning when I recently received a response to one of my Freedom of Information Act requests to Ronald Reagan’s presidential library. I was seeking documents about President Reagan’s secret strategy of aiding Saddam Hussein’s Iraq in its war with Iran.

Reagan’s tilt to Iraq in the early 1980s – while his administration also was winking at Israeli weapons sales to Iran – was part of a clandestine U.S. approach to the region which generated huge profits for arms dealers while feeding sectarian violence and political animosities that echo to the present day. It seemed to me that it was way past time to know the full truth.

However, though many of the events in question are now more than 30 years old – and thus are commonly thought to be readily accessible under FOIA – the reality is that the U.S. government still makes seeing such documents extremely difficult.

The letter from the Reagan library said the archivists would not even begin to process my request for “128 months,” that is more than 10 years, and then the process would involve time-consuming declassification reviews in which various agencies with “equity” interests would each have to sign off, along with whoever the sitting president is.

So, essentially, without courageous whistleblowers and leakers such as Bradley Manning willing to take the risks of providing classified documents to news outlets such as WikiLeaks, Americans may be denied access to information in perpetuity, even regarding events that took place over a generation ago.

There’s also the matter of whether Manning was within his rights and duties as a soldier to release information of wrongdoing. A recent column by legal expert Marjorie Cohn makes the case that not only was Manning right to release these documents, but according to the law, actually had a legal mandate to do so.

“Manning fulfilled his legal duty to report war crimes,” Cohn says. “He complied with his legal duty to obey lawful orders but also his legal duty to disobey unlawful orders.”

She further explains,

Section 499 of the Army Field Manual states, “Every violation of the law of war is a war crime.” The law of war is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions describes making the civilian population or individual civilians the object of attack as a grave breach. The firing on and killing of civilians shown in the “Collateral Murder” video violated this provision of Geneva. …

Enshrined in the US Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” At his guilty plea hearing, Manning explained that he had gone to his chain of command and asked them to investigate the “Collateral Murder” video and other “war porn,” but his superiors refused. “I was disturbed by the response to injured children,” Manning stated. He was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’ “

Whether Manning’s actions were worth it in terms of the positive effects they have had is certainly a matter of debate, especially considering the enormous personal costs he is paying for those actions, and the unfortunate reality that Americans are generally ambivalent when it comes to war crimes and other violations of international norms committed by their government. But what’s beyond debate is that his heart was in the right place.

As his lawyer David Coombs pointed out in his opening arguments yesterday,

He was 22 years old. He was young. He was a little naive in believing that the information that he selected could actually make a difference. But he was good intentioned in that he was selecting information that he hoped would make a difference.

He wasn’t selecting information because it was wanted by WikiLeaks. He wasn’t selecting information because of some 2009 most wanted list. He was selecting information because he believed that this information needed to be public. At the time that he released the information he was concentrating on what the American public would think about that information, not whether or not the enemy would get access to it, and he had absolutely no actual knowledge of whether the enemy would gain access to it.

Young, naive, but good intentioned.

Fortunately, although being largely abandoned by mainstream human rights groups and forgotten by the international community, Manning does have significant support, as demonstrated by a rally over the weekend including the antiwar groups Veterans for Peace and Code Pink.

Mounting alarm over media crackdown in the United States

As the U.S. government’s crackdown on the press intensifies, international organizations and media freedom advocates are expressing growing alarm over what is seen as a systematic attempt to muzzle journalists and deny the public the right to unimpeded access to information.

Following last week’s news that the U.S. Justice Department had seized records for 20 telephone lines of journalists at the Associated Press, the largest and oldest news organization in the world, the reaction was intense. The AP had not been informed in advance of the prosecutors’ actions, nor did the Justice Department initiate a notice and negotiation process, leading the AP to send an angry letter to Attorney General Holder about the spying, stating in part,

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The U.S.-based NGO Freedom House issued a strongly worded statement expressing “deep concern” over the revelation of spying and called on Congress to revive a federal “shield law” that would provide journalists with a measure of protection from prosecutors’ demands for information.

“For some time we have been concerned about the administration’s over-zealous pursuit of alleged leakers and the efforts to force the testimony of journalists,” said David J. Kramer, Freedom House president. “Preserving secrecy in national security deliberations is important, but this scatter-shot intrusion into the news-gathering affairs of the Associated Press is truly disturbing. What we’re now seeing is an entirely new level of government involvement in the affairs of a free media.”

The OSCE Representative on Freedom of the Media, Dunja Mijatović, said she was distressed over the revelations of government surveillance of the press, and called for an investigation.

“There is simply no justification for such a broad violation of these reporters’ constitutional rights,” Mijatović said. As an official with the intergovernmental Organization for Security and Cooperation in Europe, which counts the United States as one of its 57 member states, Mijatovic also issued a letter directly to U.S. Secretary of State John Kerry.

“There may be occasions when, in the interest of security, a limited intrusion on reporters’ activities, judicially authorized, may be justified, but the sheer scope and breadth of this action is simply a deprivation of basic constitutional rights,” Mijatović wrote in the letter. “The action also calls into question the ability of sources to talk to reporters without fear of government eavesdropping.”

There is no indication that the State Department has responded in any way to the direct criticism from the OSCE.

Following this controversy, a new revelation emerged over the weekend that a federal agent was granted a warrant in 2010 to search the email account of Fox News correspondent James Rosen on suspicion that the reporter had violated the 1917 Espionage Act by soliciting classified information from a State Department official.

This previously undisclosed development, which the FAS Project on Government Secrecy called “a startling expansion of the Obama Administration’s war on leaks,” was first reported in the Washington Post on May 19.

The search warrant was issued in the course of an investigation into the suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

As Steven Aftergood of the FAS Project on Government Secrecy explained, “the Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.”

The affidavit also highlights the government’s ability to monitor activity within classified networks with a fine mesh, and to correlate document downloads with external communications.

“So far, the FBI’s investigation has revealed in excess of 95 individuals, in addition to Mr. Kim, who accessed the Intelligence Report [containing the information reported by Mr. Rosen] on the date of the June 2009 article and prior to its publication. To date, however, the FBI’s investigation has not revealed any other individual, other than Mr. Kim, who both accessed the Intelligence Report and who also had contact with the Reporter on the date of publication of the June 2009 article,” the affidavit noted.

The Freedom of the Press Foundation, which has advocated on behalf of new media organizations such as WikiLeaks, drew a parallel between the ongoing campaign against Julian Assange’s right to gather and publish classified information in the public interest, and the new revelations of assaults against the Associated Press and Fox News for doing the same. “Under the law, the AP, Fox News, and WikiLeaks are no different (a fact that even the government argues),” Trevor Timm of the Freedom of the Press Foundation pointed out today. “If one falls, the others will not be far behind.”

The press freedom advocate lamented that many journalists and mainstream media organizations remained silent when WikiLeaks first came under attack by the Justice Department in early 2011.

“That disappointing silence left open the possibility that the Justice Department could use those same tactics against others in the future,” wrote Timm. “And unfortunately now it’s clear: virtually every move made by the Justice Department against WikiLeaks has now also been deployed on mainstream US journalists.”

Just as the intimidation of WikiLeaks has done, the case raises concerns about stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

By chilling the flow of information as the Obama administration appears to be systematically doing in its attacks on media organizations and government leakers, the U.S. government may be violating not only the First Amendment to the Constitution, but also its international obligations.

As Article 19 of the Universal Declaration of Human Rights states,

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

This obligation is reiterated in the International Covenant on Civil and Political Rights, which the U.S.  ratified in 1992. In its general comment on the importance of this provision of the ICCPR, the Human Rights Committee of the UN noted in 2011,

A free, uncensored and unhindered press or other media is essential in any society for the ensuring of freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right to receive information on the part of the media as a basis on which they can carry out their function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. Pursuant to article 19, the public also has the right to receive information as a corollary to the specific function of any journalist to impart information.

Just last week, the U.S. government reaffirmed its commitment to these principles at the OSCE media freedom seminar in Warsaw.

“Underlying our OSCE commitments on media freedom are Article 19 of the UN Universal Declaration on Human Rights and our obligations under Article 19 of the International Covenant on Civil and Political Rights as enshrined in the Helsinki Final Act to respect the fundamental freedom of expression,” said the State Department’s Sabeena Rajpal, representing the U.S. delegation at the seminar. “This fundamental freedom is the birthright of every human being; it is inherent in the individual and not for governments to dole out or deny as they see fit.”

“Our OSCE commitments require participating States to ensure that their laws will conform to their international legal obligations,” she added.

If the United States is serious about these commitments, it would do well to halt its attacks on press freedom. If the attacks continue, the U.S. finds itself in increasing danger of becoming a full-blown “totalitarian security surveillance state,” in the words of former New York Times reporter Chris Hedges.