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Recap: A Guide to Recent Posts on Just Security (Apr. 12-Apr.18)

I. Surveillance, Privacy, & Technology

  1. Beth Van Schaack, Results of High Commissioner’s Data Call Available Online (Friday, Apr. 18)
  2. Thomas Earnest, New Editors’ Picks Reading List: IHRL on Privacy and Surveillance (Thursday, Apr. 17)
  3. Jennifer Granick, Fourth Circuit Upholds Contempt Against Lavabit, Doesn’t Decide Gov’t Access to Encryption Keys (Wednesday, Apr. 16)

II. Detention, Trial, & Treatment

III.  Congress and National Security Legislation

  1. Marty Lederman, The reorganization of Title 50 (and a note about Congress having exempted “intelligence activities” from statutes implementing treaties) (Tuesday, Apr. 15)
  2. Letters to the Editor, Letter to the Editor from former U.S. Army JAG replying to Ryan Goodman on recent amends legislation (Wednesday, Apr. 16)
  3. Ryan Goodman, New Statute Provides Amends to Foreign Civilians Killed by the United States – but only if they’re “friendly” (Monday, Apr. 14)

IV. Targeted Killing & Drones

V. Foreign Law (and denaturalization)

VI. Syria

VII. Ukraine

  1. Ryan Goodman, Ukraine accepts ICC Jurisdiction but stops short, way short (Thursday, Apr. 17)
  2. Ryan Goodman,  José Alvarez: Ukraine’s Request for UN Peacekeepers Does Not Require Security Council (Russian) Approval (Wednesday, Apr. 16)

VIII. International Criminal Court

  1. Alex Whiting, Guest Post: Trial Chamber Finds Power to Compel Witnesses is an “Implied Power” of the ICC (Thursday, Apr.
  2.   continue »

Results of High Commissioner’s Data Call Available Online

We blogged earlier about the “data call” initiated by the U.N. High Commissioner on Human Rights in response to paragraph 5 of General Assembly Resolution 68/167 on the right to privacy in the digital age.  Contributions received to date by governmental and non-governmental stakeholders have now been posted on the High Commissioner’s website. I leave to others to analyze the more technical aspects of some of the contributions, but here are some overarching observations of relevance to the conversation we’ve been having and posts we’ve featured on right to privacy:

1. Although these rights are framed in the various multilateral treaties as rights to privacy, assembly/association, free expression, conscience, and the sanctity of communications and of the home, many states (e.g., Guatemala, Germany, Hungary) conceptualize the bucket of rights implicated by mass and targeted surveillance more broadly as rights to dignity, autonomy, self-determination, and/or personality.  The Council of Europe and other submissions noted that the treaty formulations of rights to privacy and correlative rights make no online/offline distinction.

2. Many European states noted that the fundamental right to privacy has constitutional expression but is also a part of their domestic legal framework by virtue of their membership in the European Convention on Human Rights (Article 8 (right to respect for private and family life)) or the Charter of Fundamental Rights of the European Union (Articles 7 (Respect for Private and Family Life) and 8 (Protection of Personal Data)).  Data integrity in particular is subject to the Data Protection and other directives of the European Union, Parliament and Council, although the issue remains under review in Europe.  The 1981 Council of Europe Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention 108) is open to accession to non-European States; it currently has 46 parties (more background here).…   continue »

Statelessness knocked on the head: House of Lords’ defeat for the UK Government’s citizenship-stripping proposal

As Steve Vladeck observed in one of his first posts at Just Security, citizenship-stripping proposals are a recurring feature in American politics and public discourse, especially in the aftermath of a recent terrorist incident. Last week, April 7, saw the defeat in the House of Lords of the UK Government’s most recent citizenship-stripping proposal (“the Proposal”). The Proposal took the form of a clause in the Immigration Bill which is presently winding its way through Parliament. By the Proposal, the Government sought to change section 40 of the British Nationality Act 1981. Section 40 provides that citizenship can be removed on two grounds:

(a) from those who have acquired it fraudulently – where the citizenship results from registration or naturalization – and

(b) where the Secretary of State is satisfied that the person has done something seriously prejudicial to the vital interests of the UK, provided, as is made clear by section 40(4), that revocation of citizenship would not render him stateless.

The Proposal was, in relation to (b) and in those cases where a person’s citizenship status results from her naturalization, to strip away the protection against statelessness which is provided by section 40(4) – to create, in Hannah Arendt’s words, a pool of people who lack the right to have rights.

Strikingly,

  • the Proposal was introduced very late by the Government: there was no pre-legislative scrutiny and no consultation.
  • the Proposal was not (cf. Steve’s observations about the US experience) a reaction to a terrorist incident. It was, in fact, triggered by an observation in the Supreme Court judgment in Al-Jedda v Secretary of State for the Home Department in October 2013.  That (i.e. the limited time between October 2013 and January 2014) apparently explains why the Proposal was not subject to pre-legislative scrutiny and consultation: see the Home Office correspondence with the Joint Committee on Human Rights.
  •   continue »

News Roundup and Notes: April 18, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

Military Commissions

The Chief Prosecutor in the 9/11 case has appointed Justice Department lawyer Fernando Campoamore-Sanchez as Special Trial Counsel to investigate the alleged attempt by the FBI to recruit a defense team security officer as a secret informant [Miami Herald’s Carol Rosenberg].  Independent defense counsel has also been appointed to advise two detainees on whether the alleged actions by the FBI have compromised their defense.

Although meeting for four days this week in the 9/11 case, the military commission held barely four hours of court time in total.  Pre-trial motions hearings have been ongoing for nearly two years, and while the prosecution seeks jury selection in early 2015, that date now seems unlikely given the recent delays [Associated Press].

Meanwhile, in the al Nashiri case, Judge Pohl has ordered the CIA to provide a detailed account of the detention and interrogation of Mr. al Nashiri in the agency’s so-called secret “black sites” [The Guardian].  Also see our coverage yesterday on the development.

Relatedly, the Miami Herald has updated their interactive timeline of the hunger strikes at Guantanamo.

Surveillance, Privacy, & Technology

The Washington Post has released an e-book of their complete, Pulitzer prize-winning coverage of the NSA surveillance programs, titled NSA Secrets.  Meanwhile, The Guardian has a new interactive feature “NSA Files Decoded” on what the NSA revelations mean to you as an individual.

In what some are calling a highly questionable decision [Washington Post], Edward Snowden participated in a live Q&A session with Vladimir Putin, asking the Russian President whether Russia intercepts communications of its citizens, to which Putin replied that his country does not conduct “mass-scaled, uncontrolled” surveillance.…   continue »

Guest Post: Trial Chamber Finds Power to Compel Witnesses is an “Implied Power” of the ICC

In an important victory for the Office of the Prosecutor at the ICC, the Ruto Trial Chamber, by majority, today issued subpoenas for eight prosecution witnesses for the prosecution and requested the Government of Kenya (GoK) to enforce the subpoenas, by compulsion if necessary.  The eight witnesses reside in Kenya and are no longer willing to appear voluntarily.  The Trial Chamber requested the GoK to ensure the appearance for testimony of the witnesses to testify either by video-link or in Kenya (presumably before the judges sitting in situ).  I previously wrote about the arguments of the parties here.

The Trial Chamber found that the power to compel witnesses is an “implied power” of the ICC – critical for it to perform its “essential functions” – that is not expressly foreclosed by the Rome Statute.  If witnesses were completely free to withdraw their cooperation at any moment in the process, as the defense urged, the Court would be unable to “effectively discharge” its function. In this part of the decision, the Trial Chamber offers a robust vision of an ICC actually empowered to do its job of ensuring accountability for core international crimes.

In addition, the Trial Chamber found that the Rome Statute expressly provides for compelling witnesses in article 64(6)(b), which states that “the Trial Chamber may … [r]equire the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute.”  Although article 93(1)(e) requires States Parties to “facilitate[] the voluntary appearance of persons as witnesses or experts before the Court,” article 93(1)(l) also requires those States Parties to comply with “[a]ny other type of assistance which is not prohibited by the law of the requested State.” Since Kenyan law does not prohibit witness subpoenas and measures of compulsion to enforce them, the Rome Statute requires the GoK to serve and enforce the requested subpoenas in this case.…   continue »

Weak Tea: Seymour Hersh Elaborates His Views on Why to Trust Russian Spies

If you have been following the response to Sy Hersh’s claims that rebels—and not Assad’s forces—used chemical weapons in the fateful attacks on civilians in Syria in August 2013, you likely know that his story depends—critically—on the trustworthiness of Russian military intelligence. Hersh wrote that “Russian military intelligence operatives had recovered samples of the chemical agent from Ghouta,” the site of the attacks, and sent those samples to the British. In an earlier post, I raised concerns about this link in Hersh’s story, and others have as well (here, here, here, see also these tweets Tom Coghlan, Foreign Correspondent for The Times).

Scott Horton interviewed Hersh, and unlike others who interviewed Sy, Scott raised the Russian question.

Below is Just Security‘s transcription of Hersh’s response in full. In his own words, he explains the reason why he thinks Russian intelligence is to be trusted (and was trusted by the US and British agencies) and laughs (literally) at people who don’t think so. I will let his explanation speak for itself:

Scott Horton: … I think, well, it’s all over Twitter, anyway, that like, well yeah, you know, right, it’s a Russian sample so how can you believe it? But it seems to me from your reporting here that the UK and the US Governments didn’t have a problem with the Russian origin of the sample.

Seymour Hersh: Oh my God, don’t forget, we and the Russians were pretty good allies in the 1990s. And when the chemical warfare treaty went into effect in 1997, we pooled information with the Russians. And I can also tell you, I write about this in my article, it certainly did come from a Russian.

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Ukraine accepts ICC Jurisdiction but stops short, way short

The Registrar of the International Criminal Court has announced that it has received a declaration from Ukraine accepting jurisdiction for international crimes committed on its territory between November 21, 2013 and February 22, 2014.

The start date of Nov. 21, 2013 is the day that Ukrainian President Viktor Yanukovych’s government announced it was abandoning the agreement with the European Union. And the end date of Feb. 22, 2014 is the day Yanukovych fled the country. It thus covers the period in which Yanukovych’s government used force to try to repress the protests that eventually ended his hold on power.

As I wrote in an earlier post at Just Security, Kiev would be well served by going the full distance and joining the Rome Statute in toto. It would raise the costs for Putin and for any future military action on the part of the Russian forces. As international actors grapple for additional levers to use against Moscow, there is still one waiting in The Hague.

In al Nashiri, Judge Pohl orders disclosure of details of CIA’s “black sites” to the defense

To say it has been an eventful week for the military commissions in Guantanamo might be an understatement.  As Ruchi has covered each morning this week in the Early Edition, the pre-trial motions proceedings in KSM et al. (also known as the “9/11 case”) were halted this week upon revelations that two FBI agents questioned a contract security officer on one of the defense teams and sought to enlist him as a secret informant. Wells Bennett over at Lawfare has been following the proceedings closely each day, and I highly recommend his coverage from the week.  And as we learned earlier today, it looks like the proceedings in the 9/11 case have been adjourned until June.

If that weren’t enough to keep things interesting, this morning Carol Rosenberg of the Miami Herald is reporting that in the al-Nashiri case, Judge Pohl has ordered the U.S. government to give the defense lawyers the details, including the names, dates, and locations, of the CIA’s secret overseas detention and interrogation of the defendant, who is accused of planning the bombing of the U.S.S. Cole in 2000.  That order, which was reportedly issued on Monday, remains sealed, but Carol provides further details:

“Army Col. James L. Pohl issued the five-page order Monday. It was sealed as document 120C on the war court website Thursday morning and, according to those who’ve read it, orders the agency to provide a chronology of the overseas odyssey of Abd al Rahim al Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantánamo four years later.

The order sets the stage for a showdown between the CIA and a military judge, if the agency refuses to turn over the information to the prosecution for the defense teams.

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New Editors’ Picks Reading List: IHRL on Privacy and Surveillance

As regular readers will likely recall, in recent weeks there has been much discussion here on the pages of Just Security (and elsewhere) on important questions regarding the extraterritorial application of human rights treaties, notably the ICCPR, and more specifically, whether international human rights law (IHRL) imposes an extraterritorial obligation to respect the privacy rights of foreign populations.  As the discussions illuminate, the scope of these international legal obligations may have direct (or indirect) implications on U.S. foreign surveillance programs operating pursuant to Section 702 of FAA or E.O. 12,333. [For earlier coverage on Just Security, see here, here, and here. And don't miss thoughtful posts from Ashley Deeks, Ben Wittes, and John Bellinger on Lawfare.]

The PCLOB also recently grappled with these questions during the third and final panel of a recent hearing discussing foreign surveillance programs authorized under Section 702 that was held on March 19th. Unfortunately, the link to a video of the panel which was once available is no longer working [note: to the PCLOB and CSPAN], but a complete transcript of last month’s hearing can be found here.

The discussions on the reach and scope of international human rights obligations with respect to privacy rights is timely, given that Congress, the the administration, and oversight bodies like the PCLOB are currently engaged in a holistic evaluation the nation’s surveillance authorities.  However, resources that encompass the universe of academic literature and legal commentary in this area is unfortunately sparse.  This is why we are thrilled to announce the publication of a new Just Security ”Editors’ Picks” reading list on “International Human Rights Laws and Privacy (and Surveillance).”  For this “Editors’ Picks,” we have provided an annotated list of essential reads on the IHRL on privacy and its implications for foreign intelligence surveillance programs.  …   continue »

News Roundup and Notes: April 17, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

Ukraine

Speaking in a televised show today, Russian President Vladimir Putin has admitted that Russian armed forces had been deployed in Crimea [New York Times’ David M. Herszenhorn]. Putin also emphasized Russia’s historical claim to eastern Ukraine, stating that his parliament’s upper chamber has authorized the use of military force in the region if necessary. The Wall Street Journal (Lukas I. Alpert and Andrey Ostroukh) and Washington Post (Kathy Lally) also cover Putin’s address.

In the latest developments, pro-Russian separatists have attacked a Ukrainian base, with three separatists killed in the clashes, while Ukrainian, Russian and Western leaders arrived in Geneva for diplomatic talks on the crisis [Reuters’ Aleksandar Vasovic]. The Washington Post (David Nakamura and Karen DeYoung) reports that U.S. officials have “low expectations” of today’s diplomatic meetings.

NATO Secretary General Anders Fogh Rasmussen announced yesterday that the alliance will be implementing “further military measures to reinforce [its] collective defense and demonstrate the strength of Allied solidarity” in response to the Ukraine crisis. Rasmussen said NATO “will have more planes in the air, more ships on the water, and more readiness on the land.”

U.S. officials say that the administration is “close to authorizing a limited shipment of nonlethal supplies to Ukrainian forces, including medicine and clothes,” reports the Wall Street Journal (Adam Entous).

White House press secretary Jay Carney confirmed yesterday that the administration has “additional sanctions prepared and … will impose them as appropriate” [The Hill’s Justin Sink]. The New York Times (David M. Herszenhorn) reports that Russia’s economy “worsens even before [new] sanctions” are imposed.…   continue »