UN Human Rights Committee Finds US in Violation on 25 Counts

While President Obama told the country to “look forward, not backward” when it came to Bush’s torture program, the United Nations has taken a different route. Recently, the UN Human Rights Committee issued a report excoriating the United States for its human rights violations. It focuses on violations of the International Covenant on Civil and Political Rights, to which the country is party. The report mentions 25 human rights issues where the United States is failing. This piece will focus on a few of those issues – Guantanamo, NSA surveillance, accountability for Bush-era human rights violations, drone strikes, racism in the prison system, racial profiling, police violence, and criminalization of the homeless.

Accountability for Bush-Era Crimes; Torture

The UN committee expressed concerned with “the limited number of investigations, prosecutions and convictions of members of the Armed Forces and other agents of the US government, including private contractors” for “unlawful killingsin its international operations” and “torture” in CIA black sites during the Bush years. It welcomed the closing of the CIA black sites, but criticized the “meagre number of criminal charges brought against low-level operatives” for abuses carried out under the CIA’s rendition, interrogation and detention program. The committee also found fault with the fact that many details of the CIA’s torture program “remain secret, thereby creating barriers to accountability and redress for victims.”

In response to the 9/11 terrorist attacks, the Bush administration jettisoned the Constitution and international law and openly embraced the use of torture against suspected terrorists captured overseas. The CIA tortured people in secret prisons around the world known as “black sites.” Torture was sanctioned from the top down. Then-President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, National Security Advisor Condoleezza Rice, lawyers and many others in the executive branch played roles in crafting nifty ways to justify, approve and implement the use of torture.

Rather than be held accountable, the top-level government officials responsible for authorizing torture and other crimes have been given comfort in the public sphere. Condoleezza Rice returned to Stanford University as a political science professor. John Yoo, who authored the torture memos, is a law professor at UC Berkeley. Jose Rodriguez, a former CIA officer in the Bush administration, vigorously defends torture in his autobiography and interviews. George W. Bush, Dick Cheney and Donald Rumsfeld are able to rest comfortably in retirement and continue to defend their records.

In the Guantanamo military commissions, evidence of torture is concealed. A “protective order” restricts what defense lawyers and the accused can say about how the defendants were treated in CIA black sites, including details of torture, because that information is classified. Defense lawyers have been fighting for declassification of those details, as they are mitigating evidence.

The potential release of portions of the Senate Intelligence Committee’s report on the CIA torture program could tip the scale the defense attorneys’ favor. “There is every reason to believe the SSCI [Senate Select Committee on Intelligence] Report contains information about the CIA’s torture of Mr. al Baluchi,” said defense attorney James Connell, who represents Ammar al-Baluchi, one of the five 9/11 defendants, in a press statement. “The SSCI knows the truth of what happened, and the military commission considering whether to execute Mr. al Baluchi should know too.”

Racism in the Prison System; Racial Profiling; Police Brutality

Of the report’s 25 issues, four looked at racial disparities within the United States’ criminal justice system and law enforcement practices. It denounced the “racial disparities at different stages in the criminal justice system, sentencing disparities and the overrepresentation of individuals belonging to racial and ethnic minorities in prisons and jails.” The committee condemned racial profiling by police and FBI/NYPD surveillance of Muslims – but it did welcome plans to reform New York City’s “stop and frisk” program. It also denounced the continuing use of the death penalty and “racial disparities in its imposition that affects disproportionately African Americans.” Finally, it expressed concern at “the still 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, and the use of lethal force by Customs and Border Protection (CBP) officers at the US-Mexico border.”

The United States contains the largest prison population in the world, holding over 2.4 million people in domestic jails and prisons, immigration detention centers, military prisons, civil commitment centers and juvenile correctional facilities. Its prison population is even larger than those of authoritarian governments like China and Russia, which, respectively, hold 1,640,000 and 681,600 prisoners, according to the International Centre for Prison Studies. More than 60 percent of the US prison population are people of color. African Americans, while 13 percent of the national population, constitute nearly 40 percent of the prison population. Moreover, one in every three black males can expect to go to prison in their lifetime, compared to one in every six Latino males, and one in every 17 white males. Thus, black men are six times more likely to be incarcerated than white men. Even though whites and blacks use drugs at roughly the same rates, African Americans are more likely to be imprisoned for drug-related offenses than whites.

Every 28 hours, a black person is killed by a police officer, security guard, or self-appointed vigilante, according to a report by the Malcolm X Grassroots Movement. Recently in New York City, NYPD brutalized two teenage African-American girls at a Chinese restaurant in Brooklyn. A 16-year-old girl’s face was slammed against the floor, while police threw the 15-year-old through the restaurant’s window, shattering it as a result. The incident started when police ordered everyone to leave the restaurant, but one of the girls refused.

While police violence against people of color has long existed, the militarization of American police exacerbates this trend. This trend began when Richard Nixon inaugurated the War on Drugs in the 1970s. Then in 1981, President Ronald Reagan signed the Military Cooperation with Civilian Law Enforcement Agencies Act, which provided civilian police agencies with military equipment, training, advice and access to military research and facilities. When 9/11 hit, police militarization kicked into overdrive with the creation of the Department of Homeland Security, which has given police still greater access military equipment like armored personnel carriers and high-powered weapons for anti-terrorism purposes. Now police look, act and think like the military, with dangerous consequences for the communities they serve.

Among the report’s suggestions to curb excessive police violence were better reporting of incidents, accountability for perpetrators, and “ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers”. The Basic Principles include a number of provisions, including “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” and “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

Drone Strikes, Assassination

To execute its perpetual global war on terrorism, the Bush administration favored large-scale, conventional land invasions and occupations, as in Iraq and Afghanistan. Obama has moved away from such operations and embraced seemingly lighter tactics of irregular warfare to continue the perpetual war, while making it less visible to Americans. Extrajudicial killing and drone strikes are the most notable methods, but others include air strikes, cruise missile attacks, cyberwarfare, special operations, and proxy wars.

These tactics have meant more use of the military’s Joint Special Operations Command (JSOC) and the paramilitary branch of the CIA. Both the CIA and JSOC carry out drone strikes and sometimes collaborate in joint operations. The CIA, not the military, is legally mandated to launch covert operations, which are classified and unacknowledged by the US government. However, JSOC performs essentially the same operations, particularly extrajudicial killings. Thus, transferring control of the drone program from the CIA to the military would make little difference.

The UN report criticized the United States’ assassination program and drone strikes. It expressed concerned with the “lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.” The United States’ position for justifying its extrajudicial killing operations is that it is engaged in an armed conflict with al-Qaeda, the Taliban and “associated forces” – a term the Obama administration created to refer to co-belligerents with al-Qaeda – and that the war is in accordance with the nation’s inherent right to self-defense against a terrorist enemy.

However, the committee took issue with the United States’ position, particularly its “very broad approach to the definition and the geographical scope of an armed conflict, including the end of hostilities.” A May 2010 report by Philip Alston, former UN special rapporteur on extrajudicial, summary or arbitrary executions, notes that, under international law, states cannot wage war against non-state actors, such as international terrorist groups like al-Qaeda, because of their nebulous character and loose affiliations.

The committee’s report also took issue with “the unclear interpretation of what constitutes an ‘imminent threat’ and who is a combatant or civilian taking a direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice.”

Under international law, self-defense against an “imminent” threat is “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” However, the Obama administration completely obliterated this meaning. In a 16-page white paper leaked to NBC News, the Obama administration believes that whether “an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interest will take place in the immediate future.” Thus, a “high-level official could conclude, for example, that an individual poses an ‘imminent threat’ of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States” without any proof of an actual plot against the U.S. Thus, in Obama-lingo, the word “imminent” means the complete opposite of what it is in the English language.

There is no due process in the assassination program, either. President Obama and his advisors decide who will be killed by a drone strike in a secret internal executive branch process that occurs every Tuesday. Even American citizens are fair game for the assassination program. In fact, four US citizens have been killed by drone strikes, including a 16-year-old boy. A database called the “disposition matrix” adds names to kill or capture lists, ensuring the assassination program will continue no matter who is in office. Targeting for drone strikes is not based on human intelligence but, rather, signals intelligence, particularly metadata analysis and cellphone tracking. According to a report by The Intercept, the NSA geolocates a SIM card or mobile phone of a suspected terrorist, which helps the CIA and JSOC to track an individual to kill or capture in a night raid or drone strike. However, it is very common for people in places like Yemen or Pakistan, to hold multiple SIM cards, give their phones, with the SIM cards in them, to children, friends, and family, and for groups like the Taliban to randomly distribute SIM cards among their units to confuse trackers. As a result, since this methodology targets SIM cards rather than real people, civilians are regularly killed by mistake.

As with the word “imminent,” the Obama administration utilizes its own warped definitions of “civilian” and “combatant.” As The New York Times reported in May 2012, the Obama administration “counts all military-age males in a strike zone as combatants . . . unless there is explicit intelligence posthumously proving them innocent.”

Despite claims to the contrary, drone strikes kill a significant number of civilians and inflict serious human suffering. So far, US drone strikes and other covert operations have killed between 2,700 and nearly 5,000 people, including 500 to more than 1,100 civilians in Pakistan, Yemen and Somalia, according to the Bureau of Investigative Journalism’s figures. Many of those deaths occurred under Obama’s watch, with drone strikes killing at least 2,400 people during his five years in office. Only 2 percent of those killed by drone strikes in Pakistan are high-level militants, while most are low-level fighters and civilians. In addition to causing physical harm, drone strikes terrorize and traumatize communities that constantly live under them.

Drone strikes have lulled in Pakistan due to peace talks between the Pakistani government and Pakistan Taliban, which collapsed on February 17. The last US drone strike in Pakistan happened on Christmas Day 2013. In Yemen, drone strikes have continued. Several US drone strikes in Yemen occurred during the first 12 days of March. Last November, six months after President Obama laid out new rules for US drone strikes, a TBIJ analysis showed that “covert drone strikes in Yemen and Pakistan have killed more people than in the six months before the speech.” It also was recently reported that the Obama administration is debating whether to kill a US citizen in Pakistan who is suspected of “actively plotting terrorist attacks,” according to The New York Times.

It is very likely these operations will continue. The Pentagon’s 2015 budget proposal, taking sequestration into account, spends $0.4 billion less than 2014 at $495.6 billion, shrinks the Army down to between 440,000 to 450,000 troops from the post-9/11 peak of 570,000, and protects money for cyberwarfare and special operations forces. Cyber operations are allocated $5.1 billion in the proposal, while US Special Operations Command gets $7.7 billion, which is 10 percent more than in 2014, and a force of 69,700 personnel. While President Obama promised to take the United States off a “permanent war footing,” his administration’s policies tell a different story. The Obama administration is reconfiguring, rather than halting, America’s “permanent war footing.”

Guantanamo, Indefinite Detention

President Obama recommitted himself to closing the prison in Guantanamo last year, but has made little progress, which the UN report noted. The committee said it “regrets that no timeline for closure of the facility has been provided.” It also expressed concern that “detainees held in Guantanamo Bay and in military facilities in Afghanistan are not dealt with within the ordinary criminal justice system after a protracted period of over a decade in some cases.”

The report called on the United States to expedite the transfer of prisoners out of Guantanamo, close the prison, “end the system of administrative detention without charge or trial” and “ensure that any criminal cases against detainees held in Guantanamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded fair trial guarantees.”

Currently, 154 men remain held in the prison at Guantanamo Bay. Of those, 76 are cleared for release; around four dozen will remain in indefinite detention; 20 can be “realistically prosecuted,” according to chief prosecutor Brig. Gen. Mark Martins’ estimate; six are being tried in military commissions and two are serving sentences after being convicted in the commissions.

President Obama promised to close Guantanamo right when he stepped into office. However, he has yet to fulfill that promise. Congressional obstructionism, especially from the Republican Party, has stalled his plans. For a long time, Congress blocked funding for transferring Guantanamo prisoners. Recently, though, Congress eased those restrictions, making it easier to transfer prisoners to other countries, but not to the United States.

While the Obama administration is working to close the prison at Guantanamo, it maintains the policy of indefinite detention without trial, designating nearly four dozen Guantanamo prisoners for forever imprisonment. Obama’s original plan to close Guantanamo was to open a prison in Illinois to hold Guantanamo detainees, many indefinitely. While soon killed, this plan would have effectively moved the system of indefinite detention from Guantanamo to US soil. Now the Obama administration is considering opening a prison in Yemen to hold the remaining Guantanamo prisoners, many of whom are Yemeni. Indefinite detention violates international human rights law, but has been embraced by Obama ever since he stepped into the White House. The 2012 National Defense Authorization Act (NDAA) that Obama signed into law contains sections that allow for the indefinite detention of US citizens on American soil.

NSA Surveillance

Notably, the UN report denounced the NSA’s mass surveillance “both within and outside the United States through the bulk phone metadata program (Section 215 of the PATRIOT Act) and, in particular, the surveillance under Section 702 of Amendments to the Foreign Intelligence Surveillance Act (FISA) conducted through PRISM (collection of the contents of communications from US-based companies) and UPSTREAM (tapping of fiber-optic cables in the country that carry internet traffic) programs and their adverse impact on the right to privacy. “The report also criticized the secrecy of “judicial interpretations of FISA and rulings of the Foreign Intelligence Surveillance Court (FISC),” which prevent the public from knowing the laws and legal interpretations that impact them. Promises of “oversight” obviously did not persuade the committee, either, as it said “the current system of oversight of the activities of the NSA fails to effectively protect the rights of those affected,” and “those affected have no access to effective remedies in case of abuse.”

Continuing NSA leaks, provided by former intelligence contractor Edward Snowden last year, have revealed the depth of the United States’ massive surveillance system. The bulk collection of phone metadata is probably the most well-known program. Recently, President Obama proposed ending the bulk phone metadata collection program. But the NSA’s surveillance system extends far beyond phone metadata.

In a program called PRISM, the NSA collects user data, such as search history and message content, sent through internet communication services like Google, Yahoo!, Facebook and Skype. Major tech companies have denied knowledge of the program, but the NSA claims those companies knew and provided full assistance. The NSA uses a back door in surveillance law to monitor the communications of American citizens without a warrant. As mentioned earlier, the NSA is also involved in the drone program through the collection of signals intelligence. Additionally, much of NSA surveillance is used for economic espionage. With the help of Australian intelligence, the NSA spied on communications between the Indonesian government and an American law firm representing it during trade talks. Indonesia and the United States have long been in trade disputes, such as over Indonesia’s shrimp exports and a US ban on the sale of Indonesian clove cigarettes. It is highly unlikely Obama’s reforms will curb these abuses.

Criminalizing the Homeless

The plight of homeless people is rarely held up as a pressing human rights issue. But, in the UN report, it is. The committee expressed concern “about reports of criminalization of people living on the street for everyday activities such as eating, sleeping, sitting in particular areas etc.” It also “notes that such criminalization raises concerns of discrimination and cruel, inhuman, or degrading treatment.”

For evidence of such criminalization and of “cruel, inhuman, or degrading treatment,” look no further than to the liberal, historically countercultural city of San Francisco. The city that smugly prides itself on progressivism has a sit-lie ordinance that forbids people from sitting or lying on public sidewalks between 7 AM and 11 PM. It particularly hurts and targets homeless people.

In the same city, homeless people are washed away. Street cleaners from the San Francisco Department of Public Works regularly spray their high-powered hoses at homeless people sleeping on the streets.

Recently, in Albuquerque, New Mexico, police shot and killed a homeless man. His crime? Illegal camping . . . in the Albuquerque foothills. Albuquerque police went to arrest 38-year-old James Boyd, who was sleeping in a campsite he set up. After arguing with police for three hours, Boyd was apparently about to leave and picked up his belongings. As he started walking down the hill, police shot a flash-bang device at Boyd. Disoriented, he dropped his bags, appeared to take out a knife, and then police fired multiple bean-bag rounds at Boyd. The man fell to the ground, hitting his head on a rock, his blood spattered on it. Officers yelled at him, telling Boyd to drop his knife. When Boyd didn’t answer, police fired more bean-bag rounds and sicced their dog on him. Boyd was later taken to a hospital and pronounced dead a day later. In addition to stun guns and bean bags, officers shot six live rounds at Boyd. The shooting prompted an FBI investigation, which is ongoing, and a protest in Albuquerque that was met with intense police violence as officers fired tear gas into the crowd.

Clean Your Own Backyard

The UN report elevates the suffering inflicted by US domestic and foreign policies to the realm of international human rights. To be tortured, spied on, unjustly imprisoned, put in solitary confinement, indefinitely detained, extrajudicially killed by the state, racially profiled, deprived of a home and criminalized for being homeless is to have one’s basic human rights violated and dignity as a human demolished. That’s why there are international laws to protect those rights – laws with which the United States and every nation-state are bound to comply. Even as the United States commonly condemns other countries for their human rights abuses, it has yet to clean its own house.