Archive for the ‘Surveillance State’ Category

Ars Technica asks DHS for PNR data, but gets none of it

Tuesday, May 27th, 2014

Cyrus Farivar, Senior Business Editor at Ars Technica, reports today on the initial response to his Freedom Of Information Act (FOIA) request to US Customs and Border Protection (CBP) for CBP’s records about his travel history, including CBP’s copies of airline Passenger Name Records (PNRs).

Nine months after making his request (seven months longer than the maximum allowed by law), Mr. Farivar received 72 pages from the CBP TECS database including a log of his exits and entries from the US for the last 20 years, beginning in 1994 when he was 12 years old.  He also received one report of a “secondary inspection”. He didn’t even remember the incident, but one of the CBP agents who questioned him recorded in his permanent CBP file that he was a journalist, in apparent violation of the prohibition in the Privacy Act on keeping records of how US citizens like Mr. Farivar exercise rights protected by the First Amendment.

Most significantly, despite explicitly requesting “any and all Passenger Name Records,” Mr. Farivar received none of them, even though CBP requires all airlines operating flights to, from, or through the airspace of the US to provide them to CBP, in their entirety including any information collected by airlines or their agents for their own business purposes, or entered into PNRs by other travel companies for their business purposes.

CBP’s response to Mr. Farivar was typical. As we’ve noted previously, two New York Times reporters are suing the DHS (the parent department of CBP) for failing to provide records about their travel which they requested, including PNR data.  CBP Every response we have seen to a request to CBP for its travel history records about an individual has been obviously incomplete, in one or another way.  We’ve seen other CBP secondary inspection records recording a traveler’s profession, what book a traveler was reading, and other information about activities protected by the First Amendment.  See the examples in our reports here and here and this presentation.

Mr. Farivar has filed an administrative appeal, as should anyone who receives such a response. CBP claimed to have lost all record of one of our appeals, and of the person who signed the certified mail receipt for it. We had to sue before we received much of our PNR data. While our request was pending CBP retroactively exempted most of the data in its “Automated Targeting System” from the access requirements of the Privacy Act, but some PNR data should still be available, albeit partially redacted, in response to a FOIA request.

If you’d like to find out some of what records CBP has about you, we’ve provided forms here.  Please let us know if you’d like help interpreting responses.

TSA includes all air travelers in pre-crime profiling

Friday, May 23rd, 2014

TSA-Pre-Crime

Since late last year, we’ve gotten several inquires from readers wondering why they got a boarding pass marked “TSA Pre-Check” or were sent through the “Pre-Check” lane at a TSA checkpoint even though they hadn’t participated in the “TSA Pre-Check Application Program”.

The confusion stems from the TSA’s own misleading publicity about the program, which tries to persuade travelers “voluntarily” to provide additional information to be used by the TSA, in exchange for the hope of being subjected to slightly less intrusive searches at TSA checkpoints.

The logical (but wrong) inferences are that TSA Pre-Check is a members-only program, and that the Pre-Check lane at a TSA checkpoint is only for those travelers who have “applied” and been “accepted” into the program.

There are actually three distinct components to “TSA Pre-Check” as a pre-crime scheme:

  1. “Voluntary” submission and collection of additional personal information about those travelers who chose to participate in the TSA Pre-Check Application Program.
  2. Pre-crime profiling of all travelers and determination of a “risk assessment” score for each traveler, based on all information available to the TSA including the information, if any, submitted through the TSA Pre-Check Application Program.
  3. Graduated treatment of travelers at TSA checkpoints, including searches of varied intrusiveness and potential total denial of passage, on the basis of these risk assessments and other secret algorithms.

Only the application component of the program — the submission of additional personal information by travelers to the TSA — is voluntary.  The TSA obtains information from various sources about all travelers. All travelers are profiled. All travelers are assigned risk assessment (pre-crime) scores based on whatever information is available to the TSA.  All travelers are subjected to a more or less intrusive search, and may or may not be allowed to pass through the checkpoint, on the basis of these scores and other secret factors.

Some travelers who are assigned sufficiently low risk assessment scores and meet other secret criteria are directed to the “Pre-Check” lane and subjected to slightly less intrusive searches, regardless of whether they participated in the TSA Pre-Check Application Program.  The TSA calls this process “managed inclusion” in TSA Pre-Check.

A traveler whose risk assessment score is low enough, and who meets the other secret criteria (again, regardless of whether they participated in the TSA Pre-Check Application Program) can be selected for less intrusive search when she applies for a boarding pass.  The TSA’s assignment of such a traveler to the Pre-Check lane is sent to the airline with, or as part of, the permission message or Boarding Pass Printing Result (BPPR) for that traveler sent to the airline by the TSA.

The TSA’s Pre-Check designation is printed on the boarding pass and included in a 2D bar code in IATA-standard format. “For flights originating in the USA, the digital signing of barcodes and the management of security certificates and key pairs is required by the TSA.”

The TSA also assigns some travelers to Pre-Check lanes on the spot at its checkpoints, using secret criteria and techniques including a randomizer app (like the magical Sorting Hat at Hogwarts) to determine how intrusively to search each person.

Through this process, the TSA chooses one of four basic levels of search and seizure for each traveler:

  1. “TSA Pre-Check” (slightly less intrusive search)
  2. “Standard screening” (including virtual strip-search or manual groping)
  3. “Secondary screening” (more intrusive search including more thorough groping)
  4. “No-fly” (denial of the right to travel by common carrier, possibly accompanied by other adverse actions)

There are refinements within these basic categories. In a document filed with the court following the trial of Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the no-fly list, the government disclosed that that each entry in the Terrorist Screening Database (which includes the no-fly list and the list of “selectees” for secondary screening) includes a “handling code” indicating what airline and checkpoint personnel should do if that person attempts to check in for a flight or pass though a TSA checkpoint.

We don’t know how many handling codes there are. But according to the government’s court filing:

[FBI Agent] Kelley designated Dr. Ibrahim as “handling code 3.” … [T]he majority of individuals in the TSDB were assigned handling codes 3 or 4…. Defendants state that the advantages of Handling Code 3 include allowing law enforcement officers to ask the individual probing but non-alerting questions, and searching the individual’s passport [REDACTED].”

Presumably, other handling codes include those that tell airline or checkpoint personnel to attempt to detain the traveler and contact local law enforcement agencies, the FBI, or the Terrorist Screening Center.

You can’t “opt out” of pre-crime profiling by choosing not to participate in the TSA Pre-Check Application Program.  You will be profiled, on a per-flight basis, every time you try to fly.

“Anything you say may be used against you,” although the TSA doesn’t say this on the TSA Pre-Check application forms.  If you participate in the Pre-Check Application Program, the additional information you provide will be added to the other inputs to the TSA’s black box. It might result in the TSA assigning you a lower risk score, and subjecting you to a less intrusive search.  Or it might result in the TSA assigning you a higher score, and searching you more intrusively or preventing you from traveling by air.

Albuquerque Journal investigates DHS “Mission Creep”

Thursday, May 22nd, 2014

For many years after 9/11,  the Department of Homeland Security got a “free pass” from most mainstream media. This has been especially true of the largely unreported negative impact of the DHS and the homeland security industrial complex at the state and local level.

We’re pleased to call the attention of our readers to one of the most notable exceptions to date: a recent series of articles by Michael Coleman, Washington correspondent for the Albuquerque Journal, on what the DHS and its contractors and state and local accomplices are actually doing “on the ground” in New Mexico:

  1. Homeland Security a ‘runaway train’ (April 27, 2014)
  2. NM footprint grows: ‘We’ve up-armored’ (April 28, 2014)
  3. Feds help militarize police agencies (April 29, 2014)
  4. Editorial: Homeland’s ‘mission creep’ works on 3 levels (May 4, 2014)
  5. Follow-up: New DHS head says agency needs change (May 4, 2014)

We’ve been paying particular attention to events in Albuquerque, of course, as part of our work with Phil Mocek, whose lawsuit against DHS and Albuquerque police personnel is currently on appeal from the US District Court for the District of New Mexico to the Court of Appeals for the 10th Circuit.

But we suspect that what the Albuquerque Journal uncovered in New Mexico is a typical case study that could usefully be repeated in any other state or metropolitan area.  We hope that national and other local journalists are inspired by this example to look into DHS activities throughout the country.

Court to “review” TSA’s use of virtual strip-search machines

Thursday, May 8th, 2014

As we’ve noted previously, the US Court of Appeals for the 11th Circuit has scheduled oral arguments June 4th in Miami as part of its “review” of the TSA’s use of virtual strip-search machines. The Court may decide on the day to close portions of the argument to the public, but has overruled the latest objections of the TSA, which claimed that any oral argument would necessarily reveal “secrets” that would jeopardize aviation security.

Jonathan Corbett will be speaking for himself, pro se, before the Court of Appeals, as he has done throughout the tortured history of his lawsuit.  Mr. Corbett has posted the latest round of appellate briefs in Corbett v. TSA, which provide a case study of how the TSA has sought to evade judicial review of its actions even when they involve extra-judicial restrictions on the fundamental rights of US citizens, residents, and visitors.

Corbett v. TSA charges that the TSA is engaging in unreasonable, suspicionless, warrantless, and unconstitutional searches of travelers. The case was originally filed in 2010 in U.S. District Court. But the TSA successfully argued that challenges to the Constitutionality of TSA orders, such as those requiring travelers to submit to either naked scanners (”advanced imaging technology”) or manual groping of their genitals (”enhanced pat-downs”), can only be heard by the Courts of Appeals. After the Supreme Court declined to review that jurisdictional finding, Mr. Corbett refiled his case in the Court of Appeals as a “petition for review” of the TSA’s (secret) orders.

The TSA’s claim is that the Court of Appeals can only review the “administrative record” submitted by the TSA itself. There is no trial, discovery, cross-examination, or adversary fact-finding process in the appellate court. The TSA can pick and choose what evidence to submit for review.  Portions of that evidence have been shown to Mr. Corbett (on condition that he not discuss them publicly), but other portions have been submitted to the Court of Appeals ex parte and under seal. Mr. Corbett doesn’t know what they allege, and has no way to know what secret arguments or allegations he should be trying to rebut.

In a separate case, the Court of Appeals for the D.C. Circuit ruled that the TSA had violated the Administrative Procedure Act by failing to conduct a formal “rulemaking” concerning its use of virtual strip-search machines. Such a rulemaking must include notice of the proposed rules, an opportunity for the public to comment on them, and consideration of those public comments by the TSA before the rules are finalized.

Twenty months after being ordered to do so by D.C. Circuit Court, the TSA published proposed vitrtual strip-search “rules” and provided an opportunity for public comments.  More than 5,000 people and organizations submitted comments, including the Identity Project. Almost all of the commenters objected to the TSA’s virtual strip-searches and groping of travelers.

More than a year after the close of the comment period, the TSA has yet to publish any analysis or response to these public comments, or any final “rules”. And although the TSA is required by the Administrative Procedure Act to consider these public comments as part of its rulemaking, the agency doesn’t appear to have submitted any of them to the 11th Circuit as part of the “administrative record” to be reviewed in Corbett v. TSA.  This appears to be either an admission that the public comments have been ignored in the TSA’s decision-making, in flagrant violation of the APA, or an equally blatant attempt to deceive the 11th Circuit about the actual content of the record before the TSA.

How do FBI agents decide who to put on the “no-fly” list?

Wednesday, May 7th, 2014

Dr. Rahinah Ibrahim still doesn’t know why she was placed on the “no-fly” list, even after the trial of her lawsuit against the US government and US District Judge William Alsup’s finding that Dr. Ibrahim was denied the due process of law which was her right.

At trial, the government admitted that back in 2004, FBI agent Kevin Kelly — fresh off a stint on the FBI’s mosque-watching detail — mistakenly left blank a negative check-off box on an internal form and thereby “nominated” Dr. Ibrahim for the no-fly list. By admitting that this was a “mistake”, the government successfully evaded having the court reach or review either (a) the criteria (if any) for “no-fly” decisions or (b) the factual basis (if any) for any of the government’s other decisions or actions with respect to Dr. Ibrahim.

Judicial review of the factual basis and legal criteria for a “no-fly” order remains for future no-fly cases, with that of Gulet Mohamed likely to be the next to go to trial.

Contrary to some reports, Judge Alsup didn’t order the government to take Dr. Ibrahim’s name off the no-fly list or tell her why it put her on multiple other “watchlists” including the “selectee” list to which Agent Kelly intended to nominate her.  Despite previous claims that government agencies and agents only put people on the “no-fly” list if they are able to articulate some reasonable basis for a suspicion of terrorism, we now know that there is a secret exception to this (non-binding) watchlisting criterion, pursuant to which Dr. Ibrahim and other non-suspects are also watchlisted.

Nor does Judge Alsup’s decision mean that Dr. Ibrahim is now free to travel. The US still won’t give her a visa to return to the US, on the basis of secret allegations that she “has engaged in terrorist activity” (contrary to the government’s admission and Judge Alsup’s finding to the contrary) and on the basis of a “guilt by family association” law and some other  secret allegations that apparently relate to her husband.

Judge Alsup ordered the government to tell Dr. Ibrahim her status on the “no-fly” list, which it did. As of April 15, 2014, Dr. Ibrahim wasn’t on the “no-fly” list. And the government was ordered to correct the consequences of the one specific mistake it had admitted, FBI Agent Kelly’s failure to check the “not nominated for the no-fly list” box on the form.

But Judge Alsup’s decision leaves the government free to leave Dr. Ibrahim on any other “watchlists” (including those which function as de facto secondary no-fly lists), and/or put Dr. Ibrahim back on the “no-fly” list itself, at any time, for any reason or no reason, as long as those actions aren’t a direct result of Agent Kelly’s mistaken failure to check the right box on the nomination form nine years ago.

Visa denials aren’t normally subject to review by US courts. Neither Dr. Ibrahim’s placement on watchlists other than the no-fly list, nor the de facto banishment from the US of her US-citizen daughter, were raised in the complaint in this case, or addressed in Judge Alsup’s decision.  Nor could they have been, since they only occurred or became known later.

Judge Alsup’s finding that the “no-fly” system lacks due process is a step forward, but far from a happy ending or one that redresses the grievances of Dr. Ibrahim or her family.

What we did learn from this case is that the real decision to prevent Dr. Ibrahim from traveling was made by a single FBI agent. No matter how obvious Agent Kelly’s “mistake” was, nobody reviewed or corrected it.

So in practice, “no-fly” decisions are made by individual FBI field agents. How do FBI agents use their power to decide who is and who isn’t given government permission to fly?

Since 9/11, one of the FBI’s highest priorities has been to recruit Islamic-American informers. Not surprisingly, FBI agents have repeatedly used or threatened to use their “no-fly” nomination authority to coerce American Muslims into becoming FBI informers.

In 2010, FBI agents tried to persuade US citizen Yonas Fikre to become an FBI informer. After Mr. Fikre refused to “cooperate” with the FBI agents, they put him on the “no-fly” list while he was visiting relatives overseas, consigning him to detention and torture in the UAE when his visa expired. In 2012, after being allowed to leave the UAE (but not to return home to the US, since he was still on the US “no-fly” list)  Mr. Fikre applied for political asylum in Sweden.  Shortly thereafter, in further retaliation (and/or to make sure he never tries to come home to the US, even if his asylum request is eventually denied), the US indicted Mr. Fikre for failing to report routine money transfers from the US to family members in the UAE and Sudan. Mr. Fikre is also pursuing a civil lawsuit in the US against those US government officials complicit in his no-fly listing, arrest, and torture.

Was this an isolated case? No. Last year, Muhammad Tanvir filed a lawsuit against the FBI and other government agencies and agents for putting him on the “no-fly” list in retaliation for declining to become an FBI informer. Mr. Tanvir is a Muslim, a permanent US resident (green-card holder), and a shopkeeper in New York City.  On April 22nd, 2014, an amended compliant was filed in the case (Tanvir et al. v. Holder et al.). Three other Muslims from the tri-state area of New York, New Jersey, and Connecticut, one a US citizen and two others lawful permanent residents,  have joined Mr. Tanvir in making similar claims.

These abuses are an inevitable result of having decisions about whether we are allowed to exercise our rights be made in secret at the discretion of law enforcement officers or administrative officials. Decisions on whether to restrict the exercise of rights, including the right to travel, should be made by judges, not cops, through existing legal procedures for the issuance of injunctions or temporary restraining orders.

TSA fines “Naked American Hero” $500

Saturday, April 5th, 2014

The TSA has assessed a $500 civil penalty against “Naked American Hero” John Brennan, who removed all his clothes at a TSA checkpoint at the Portland, Oregon, airport in 2012 to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices.

Mr. Brennan was arrested at PDX airport by Portland police on April 17, 2012, but he was found not guilty of criminal charges in June 2012 by a county judge on the grounds that, under local Portland ordinances and Oregon state law, nakedness for purposes of political protest is not a crime.

After Mr. Brennan’s acquittal, a TSA investigator proposed that he be penalized $1000 for “interfering” with TSA screening.  In accordance with a memorandum of understanding between the TSA and the Coast Guard, the TSA has delegated its administrative authority to determine whether to assess such a penalty, and if so, the amount of the penalty, to an “Administrative Law Judge” (ALJ) from the U.S. Coast Guard.

(Why the Coast Guard? The TSA doesn’t have any ALJs on its own payroll, so it contracts out their functions with respect to TSA decisions to the Coast Guard as a parallel component of the DHS.)

Coast Guard ALJ George J. Jordan presided over a formal administrative hearing which we attended and reported on in Portland on May 14, 2013.

Almost a year after that hearing and almost two years after the underlying events at the airport, ALJ Jordan has finally issued an initial decision to assess a $500 penalty (reduced from the $1000 proposed by the TSA investigator) along with a set of findings of fact and conclusions of law.

Contrary to some headlines, no court has yet considered, much less upheld, the TSA’s decision, and no independent third party has yet reviewed, much less ruled on, the TSA’s complaint against Mr. Brennan.

Both the terminology and the TSA’s outsourcing of its own internal decision-making to Coast Guard employees make it easy to misunderstand what has happened.

Just as the checkpoint staff the TSA calls “Transportation Security Officers” are not law enforcement officers, so-called “Administrative Law Judges” are not judges or officers of any court. The “formal administrative hearing” was held in a courtroom (rented for the day by the TSA from the U.S. Bankruptcy Court), but it was not a trial and was not a proceeding of any actual court.

ALJ Jordan was acting not as an independent party, but as a DHS employee subcontracted by the TSA (only because the TSA doesn’t have its own ALJs, not because this was required) to make the TSA’s own initial, internal decision.  ALJ Jordan’s decision was issued on behalf of, and under the authority of, the TSA itself, as the TSA’s own initial decision on the complaint of its own investigator.

Almost two years after he was arrested, Mr. Brennan’s only day in any court has been when he was acquitted of all criminal charges in county court. ALJ Jordan’s initial decision on behalf of the TSA will be subjected to further internal review by the head of the TSA or his designee. Only after that review will the TSA’s final internal decision, as made by the head of the agency or his designee, be subject to review by any court or outside body.

ALJ Jordan explicitly recognized that he had no authority to consider whether Mr. Brennan’s conduct was protected by the First Amendment or whether the TSA’s regulations or actions were otherwise invalid. Only after the ALJ’s initial decision is reviewed internally within the TSA, and the TSA issues its final order, will Mr. Brennan be entitled to petition a Circuit Court of Appeals to review and make initial rulings on those issues.

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Interpol renews push for worldwide ID-based travel controls

Wednesday, April 2nd, 2014

Despite admitting that it was “too soon to speculate about any connection between these stolen passports and the missing plane,” Interpol officials did not hesitate to use the fact that two passengers on the missing Malaysian Airlines flight used stolen passports as the opportunity to step up its longstanding campaign for a global travel control system in which all travelers worldwide will be required to: (a) show standardized government-issued travel credentials, and (b) have those credentials “vetted” against a global blacklist maintained by Interpol, before being given permission to buy an airline ticket or “open a bank account, rent a car or check into a hotel”.

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UN Human Rights Committee calls on US to effectuate the ICCPR

Friday, March 28th, 2014

Following two days of face-to-face public questioning (Day 1, Day 2) of a US government delegation earlier this month, the UN Human Rights Committee (UNHRC) has published its concluding observations on US implementation of the International Covenant on Civil and Political Rights (ICCPR).

The UNHRC’s concluding observations include a strong endorsement of our call for Congress to enact legislation to “effectuate” the ICCPR by making the treaty enforceable by US courts, particularly where violations of the ICCPR do not constitute violations of any other US law.  As one of its key recommendations, the UNHRC says that:

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

At the end of a press conference announcing the UNHRC’s concluding observations concerning the US, UNHRC Chairperson Nigel Rodley had this to say about committee’s review of US implementation  of the ICCPR the need for judicial enforcement and accountability for human rights violations:

Of course they [the US government's representatives] stressed the improvements they’ve made, so that people wouldn’t be doing the same things in the future. But absolutely not — there was no suggestion that any of those responsible for any of the past criminal violations of our Covenant [i.e. the ICCPR] would be brought to justice or that its victims would have access to their day in court.

The UNHRC’s concluding observations recommend that, “The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.”

We won’t hold our breath for Congress to act, but we hope that this recommendation from the only independent body officially empowered to review the state of human rights treaty compliance by the US will prompt members of Congress to consider sponsoring legislation to create a cause of action for violations of the ICCPR and give US courts jurisdiction to hear such complaints.

The UNHRC also criticized US mass surveillance, but mentioned only communication surveillance and metadata and not the closely related issue of NSA and DHS mass surveillance of travel metadata.

UN Human Rights Committee review of US implementation of the ICCPR: Day 2

Friday, March 14th, 2014

US government delegation listens to questions from the UN Human Rights Committee. (Click image for larger version.) At the head table, left to right: Scott Shuchart (Senior Adviser, Office of Civil Rights & Civil Liberties, DHS), Megan Mack (Officer for Civil Rights & Civil Liberties, DHS), Bruce Swartz (Deputy Assistant Attorney General, DOJ), Roy Austin, Jr. (Deputy Assistant Attorney General, Civil Rights Division, DOJ), Mary McLeod (head of the US delegation and Principal Deputy Legal Adviser, Department of State). US Army Brigadier General Richard Gross (Legal Counsel to the Chairman of the Joint Chiefs of Staff, Department of Defense) in profile at left in front of Ms. Mack.

Questioning of a US government delegation by the UN Human Rights Committee (UNHRC) concerning US implementation of the International Covenant on Civil and Political Rights (ICCPR) continued today in Geneva.

Many of the same issues as were raised in yesterday’s first round of questions from members of the Human Rights Committee continued to be pursued in today’s follow-up questioning, along with other concerns including NSA surveillance and collection of communications metadata.

But as the day went on, there was an increasing focus on the “meta-issues” of applicability, enforceability, and remedies and redress for violations of the rights guaranteed by the ICCPR:

  • Does the US accept that everyone subject to US jurisdiction is entitled to human rights, as the Human Rights Committee and almost every other party to the ICCPR (except Israel) interprets the treaty to mean?  Or does the treaty only apply to US actions within its borders, allowing the US to violate human rights abroad with impunity?
  • In light of the US interpretation of the ICCPR as not being “self-executing”, and the failure of Congress to enact effectuating legislation to enable the treaty to be invoked in US courts, what “effective” means of judicial redress (as required by the ICCPR itself) are available to those whose human rights are violated, especially if those violations of the ICCPR don’t also constitute violations of domestic US law?

This latter point, raised today by at least four members of the UNHRC, was one that we had taken the lead in asking the UNHRC to address, through both an initial and a supplemental submission to the UNHRC in advance of this week’s session.

The head of the US government delegation, Mary McLeod of the State Department, responded to these questions today by telling the UNHRC that the US “sees no need” to allow the ICCPR to be invoked in US courts.

Her implicit message, and that of the other members of the US delegation in their responses to questions about specific issues, was that internal administrative measures provide an adequate substitute for judicial oversight or enforcement of human rights obligations.

But many of those claims about administrative “remedies” rang hollow:

  • DHS Officer for Civil Rights & Civil Liberties Megan Mack, who has been officially designated as responsible for implementation of the ICCPR by the DHS, said that her office “enforces” DHS administrative standards for use of deadly force by US Customs and Border Protection officers.  But she didn’t mention that her office is purely advisory, and has no authority to order any sanctions against CBP officers or any other DHS employees or contractors.
  • Ms. Mack told the UNHRC that her office “receives complaints” of violations of the ICCPR by DHS components, which is true. But she didn’t tell the UNHRC that  some of those  complaints, including some of ours, have been pending with her office for years without any response.  Nor did she mention that her office has claimed that violations of the ICCPR were “authorized” by US law, suggesting a profoundly mistaken belief that the US can derogate from its treaty obligations by enacting domestic statutes.
  • Roy Austin, Jr., Deputy Assistant Attorney General and head of the Civil Rights Division of the Department of Justice, told the UNHRC how important it is to ensure that people who believe their human rights have been violated have a place to complain, and receive a response to their complaint.  But he didn’t disclose to the UNHRC that — as we learned in response to one of our FOIA requests — his Department has no record of ever having designated a point of contact for such complaints, or of ever having responded to any of them.
  • Deputy Assistant Attorney General Bruce Swartz talked about Attorney General Holder’s policy that his “Department will not defend an invocation of the [state secrets] privilege to conceal … administrative error”, but didn’t mention that A.G. Holder personally signed a sworn declaration to the court in the first “no-fly” trial, explicitly quoting that policy while invoking the state secrets privilege to try to prevent the plaintiff, who the government admitted posed no danger, from learning or obtaining redress for her having been placed on the “no-fly” list as a result of what the government admits was a mistake by an FBI agent who checked the boxes on a form he was supposed to un-check and un-chekked the boxes he was supposed to check.

Throughout the day, there was much talk of “guidelines” and “policies”, but little talk of laws or of whether practices conform to aspirational administrative “guidance”.

The UNHRC is expected to issue its report on US implementation of the ICCPR , in the form of “concluding observations” from its review, on March 27th.

UN Human Rights Committee review of US implementation of the ICCPR: Day 1

Thursday, March 13th, 2014

Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.

The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.

With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the  the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.

Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”.  Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.

The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.

The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination  about its human rights record.

For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.

But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end. (more…)