Tag Archives: civil liberties

U.S. surveillance to follow in footsteps of the UK?

The United Kingdom is light years ahead of the U.S. in terms of surveillance, but will we soon be seeing a similar push stateside?

In mid-July, the Telegraph newspaper reported that the UK is using covert surveillance to monitor conversations in an effort to detect behavior that could be conceived as threatening. In addition, it was announced that the country’s police traffic network camera system is being used to monitor drivers’ movements and to keep a database of all relevant information for up to two years.

Add those two to an already controversial decision to require all Internet records to be stored for a year and tracking devices used to covertly track citizens and the UK would seem to have the makings for a perfect storm of privacy concerns. That doesn’t even take into account the more than 4 million surveillance cameras already in place.

The possibility of similar measures coming across the pond may seem highly unlikely, according to experts, especially under an Obama administration that praises transparency. But is it really? Just over a year ago, a bill was proposed to stop a program called the National Applications Office from ever starting up. The NAO was a program designed to use military satellites to keep tabs on Americans whether in their home or in the public and then share that information with law enforcement officials at all levels.

However, Department of Homeland Security Secretary Janet Napolitano ended the program, after a five-month review, before it came to fruition.

At the time of her decision, she said in a news release that, “This action will allow us to focus our efforts on more effective information sharing programs that better meet the needs of law enforcement, protect the civil liberties and privacy of all Americans, and make our country more secure.”

But even the idea of a program such as the NAO raises the question of whether the U.S. is headed down the same road as the UK, with increased surveillance as we never seen before.

In some ways, that has already started, with various cities across the country taking measures into their own hands when it comes to surveillance. Chicago has more than 10,000 public and private cameras used for surveillance, with plans to add more. New York City has about 4,200 surveillance cameras. None of the U.S. efforts come close to the UK, but the foundation has been laid. And it is being laid at the local level.

“In the U.S., we see signs of increasing numbers of cameras in cities between governments and private parities,” said John Verdi, senior counsel at the Electronic Privacy Information Center. “You’re seeing a push and pull across the country. Now, there is no move to federalize it, it is a local issue. It is driven by local groups, politicians. They are getting some federal money, but it’s all at the municipal level.”

While cities may be leading the charge, could it be only a matter of time before the federal government takes the lead?

“It is a concern,” Verdi said. “But I don’t see it happening for two reasons: it is fairly expensive and it is fairly ineffective. As we saw in Times Square, one of the most densely populated camera areas, with the bomb just over a month ago, it was vendors on the street who noticed the van before the cameras did, even though it was on camera for quite awhile.”

Steven Aftergood, who directs the Project on Government Secrecy for the Federation of American Scientists, added, “In the UK, in cases of crime and public misconduct, you’re more likely to be on visual record. Here in the U.S., we value the sense of not always being monitored by some official surveillance. It’s part of the American preference for freedom from official intrusion. It’s part of our national character.”

But should American’s citizens be concerned that a government agency is listening in to their conversations or watching their every action?

“Still quite a gap separates us from the UK,” Aftergood said. “But there’s a perceptible temptation in increase surveillance, especially in areas of high crime or perceived threat.”

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Enemy combatants are nothing new

Eight years ago, a former gang member from Chicago named Jose Padilla was arrested at O’Hare International Airport and held at a military prison as an enemy combatant under suspicions that he had had contact with al-Qaida and was plotting to use a “dirty bomb.” The Bush administration maintained that Padilla’s status precluded him from rights including habeas corpus, a trial and due process — despite the fact that he was a U.S. citizen.

But while the term “enemy combatant” may seem to have been begotten by government machismo in reaction to the 9/11 terrorist attacks, the label actually goes all the way back to World War II. In recent years, the government has simply revised it.

Charles E. Tucker Jr., executive director of the International Human Rights Institute at DePaul University, said the term was first attributed to Nazi saboteurs.

In the 1942 case Ex parte Quirin, the U.S. Supreme Court upheld the constitutionality of trying eight German infiltrators in military commissions as “unlawful combatants”:

“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

In the case of the Nazi saboteurs, they had shed their uniforms to surreptitiously infiltrate and threaten U.S. targets, making them unlawful combatants and thus subject to a military trial.

In 2006, the Military Commissions Act defined unlawful enemy combatants in a similar manner, primarily in relation to the lawful combatant.

“The term ‘lawful enemy combatant’ means a person who is — a member of the regular forces of a State party engaged in hostilities against the United States; a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”

“The term ‘unlawful enemy combatant’ means — a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).”

For a timeline of the history of the term “enemy combatant” in the United States, click here.

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The recent evolution of the 'enemy combatant'

Since 2001, the term “enemy combatant” has been primarily applied to terror suspects associated with al-Qaida and the Taliban.

Largely on the basis of its own executive orders, the Bush administration applied the term “enemy combatant” to former Chicago gang member Jose Padilla and Yaser Esam Hamdi, who was a U.S. citizen when he was captured in Afghanistan, reportedly fighting American forces with the Taliban.

In its 2003 World Report, advocacy group Human Rights Watch said, “The use of the ‘enemy combatant’ designation appeared to be intended to circumvent the U.S. criminal justice system and its safeguard of basic rights.”

Civil rights groups often cite the cases of Padilla, who was detained for more than three years without a trial for suspected connections with al-Qaida, and Hamdi. After Hamdi was detained without being charged, he became the subject of the 2004 Supreme Court case Hamdi v. Rumsfeld. The court ruled that while the government could detain unlawful combatants, detainees with U.S. citizenship have a right to challenge their detention.

In 2005, Rep. Adam Schiff, a Democrat from California, introduced the Detention of Enemy Combatants Act, which would permit the president to detain U.S. citizens with connections to al-Qaida but would also “guarantee [detainees] timely access to judicial review.” The bill never left committee, but it made the following statement about enemy combatants:

“The term ‘enemy combatant’ has historically referred to all of the citizens of a state with which the Nation is at war, and who are members of the armed force of that enemy state. Enemy combatants in the present conflict, however, come from many nations, wear no uniforms, and use unconventional weapons. Enemy combatants in the war on terrorism are not defined by simple, readily apparent criteria, such as citizenship or military uniform. And the power to name a citizen as an ‘enemy combatant’ is therefore extraordinarily broad.”

In 2006, President George W. Bush signed the Military Commissions Act, which distinguished between lawful and unlawful enemy combatants. According to the law, lawful enemy combatants are those associated with an opposing government or other organized force who identify themselves in appearance and behavior. In short, unlawful enemy combatants are those who aren’t lawful enemy combatants.

Matthew Lippmann, a professor of criminology, law and justice at the University of Illinois in Chicago, said Bush broadly defined enemy combatants as “people who fall outside the Geneva Conventions who are at war with the United States.”

The Military Commissions Act of 2006 also specified that unlawful enemy combatants could be tried in military courts and thus were not subject to rights including habeas corpus.

In 2008, the U.S. Supreme Court ruled that prisoners have a right to habeas corpus, making that provision of the Military Commissions Act of 2006 unconstitutional.

The Obama administration officially abandoned the term “enemy combatant” last year, though it has continued holding some individuals without trial at Guantanamo Bay. It attributed continued detentions to Congressional and international law, including the Geneva Conventions.

“President Obama said no, I’m not really going to buy into the notion that this is a war,” Lippmann said. “We’re going to prosecute [detainees] in a civilian court and treat them as criminals.”

For a timeline of the history of the term “enemy combatant” in the United States, click here.

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Quarantined in sickness and in health

CHICAGO — A team in hazmat suits board your plane. One of them gives you a mask and escorts you to a hospital, where you’re held for seven days. There’s no air conditioning and the windows are sealed shut. Nurses take your temperature every few hours. You’re not allowed to leave. You have limited information and contact with the outside world. You’re given no choice in the matter. And you may not even be sick.

Quarantine Official

A quarantine official sprays disinfectant in a South Korean passenger jet from Chicago at Incheon international airport, wets of Seoul, on May 4, 2009.

This is quarantine.

Quarantine is a public health strategy used to stop the spread of contagious diseases. People in quarantine are confined to a medical facility, prohibited from leaving for days or even weeks. Chicago O’Hare International Airport is home to one of 20 quarantine stations at U.S. ports of entry where people who may have been exposed to an infectious disease are held and examined.

Quarantining is used for people who do not show any symptoms of an illness and don’t feel sick, although there is some evidence they have had contact with a contagious disease. Sometimes, they become sick and are treated in quarantine before the illness can spread. In these cases, quarantine protects the public from deadly diseases.

Sometimes, though, quarantined people are perfectly healthy – putting public health officials in the precarious position of balancing individual liberties and public health interests, which often don’t align.

“How do you handle quarantine when you’re dealing with individual people and individual freedoms?” said Dr. Michael Schmidt of Northwestern University’s Department of Emergency Medicine. “They’re difficult situations.”

Because quarantines are ordered for people who may not be sick, they can strip people of their personal freedoms when they never posed public health threat, said Colleen Connell, executive director of American Civil Liberties of Illinois.

“You really risk violating people’s civil liberties in a way that I think a court would be sympathetic to,” Connell said.

Connell argues that quarantine could result in racial profiling in cases where a certain disease occurs more frequently in a certain population. The power could also be abused to exclude certain populations from entering the country for national security concerns.

“The quarantine authority could be used in a political and punitive way rather than in a way that really truly reflects a public health risk,” Connell said. “I’m really not scared of the public health officials, I’m scared of the government with quarantining power.”

The federal and state governments and Centers for Disease Control have authority to order quarantines. The federal government last ordered a large-scale quarantine in 1918 during the Spanish flu pandemic. Large-scale quarantine orders are rare, because they require legal and public health resources beyond what is often feasible, said Illinois State Epidemiologist Craig Conover.

“Using the least restrictive measure possible is always desirable,” Conover said. “It can become a big job to issue a quarantine order for large groups of people.”

Illinois did not mandate any quarantines during H1N1, although public health officials discussed the more preferable strategy of voluntary “snow days” during which communities would close public places and restrict non-essential travel, Conover said.

By contrast, China implemented stringent quarantine orders during the height of H1N1. In 2009, more than 2,000 Americans, including students, journalists and doctors visiting the country, were quarantined, according to the United States Embassy in Beijing. CBS News’ Asia Bureau Chief Marsha Cooke was quarantined upon her arrival in the country on June 16, 2009. In a memoir  that was published shortly after, she writes: “I’ve lost all personal liberty here and I can’t really explain how I feel to anyone. It’s a horrible, horrible feeling.”

But China’s harsh policies in H1N1 are an example of how quarantine can be an effective public health strategy. In the New York Times article “China’s Tough Flu Measure Appear to Be Effective,” Nov. 12, 2009, world health leaders credit China’s quarantine methods with slowing the spread of H1N1 in one of the world’s most populous countries. As of March, China has reported more than 127,000 cases and about 800 deaths from H1N1, according to reports from Chinese officials. Meanwhile, from April 2009 to March 2010, the U.S. saw about 60 million cases of H1N1 and more than 12,000 deaths, according to the CDC. China’s population is 1.3 billion, while the U.S. has a population of more than 309 million.

State or federal authorities in the U.S. could mandate a quarantine if there was ever a resurgence of small pox or a if an airplane passenger was carrying a highly contagious disease like SARS, Conover said.

“I think you’re balancing the impact of that person’s civil liberty and the public good, and how you’re trying to help protect the public,” Conover said.

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Omar Khadr's prosecution pushes the limits of international law

Guantanamo Bay, Cuba– Omar Khadr, a 23-year-old Canadian citizen charged with murder, conspiracy and support of terrorism whose pretrial hearings began this week, was captured by the United States in Afghanistan in 2002. Khadr was 15 at the time.

That’s not the centerpiece of the hearings; Khadr’s attorneys are asking the court to exclude incriminating statements he made because they were allegedly procured using torture. But Khadr’s age at the time of his capture remains a major concern for human rights advocates, and a point of legal contention.

Several non-governmental organization representatives here to observe the hearings believe that, at the time of Khadr’s capture, he was a child soldier. Subsequently, they contend, his rehabilitation, rather than prosecution, should have taken precedence and perhaps even blocked him from being charged in the first place.

“The detention, treatment and prosecution of Omar Khadr violates international law and flies in the face of accepted international practice,” said Jennifer Turner, an attorney with the American Civil Liberties Union, in an interview.

“Under international law, an alleged child soldier like Omar Khadr should be treated first and foremost as a candidate for rehabilitation and reintegration, not subjected to abuse and prosecution before military commission.”

The Department of Defense has acknowledged that at least 12 juveniles have been held in the Guanatanamo Bay detention facility, although human rights advocates speculate that the actual number may be higher.

Navy Capt. David Iglesias, a legal advisor to the office of military commissions and a prosecutor for commission cases other than Khadr’s, disagrees with the contention that the United States is in violation of international law. The government’s position, Iglesias said in an interview, is that the United Nations enacted the child soldier provisions to penalize countries that force children to fight.”

Iglesias, a former U.S. Attorney, also noted that the two Additional Protocols of 1977, amendments to the Geneva Conventions that concern child soldiers, have not been ratified by the United States.

The United States did ratify the Optional Protocol on the involvement of Children in Armed Conflict, but even that does not prohibit Khadr’s prosecution, according to UNICEF’s website.

Stacy Sullivan, a court observer for Human Rights Watch, acknowledged that international law does not ban the prosecution of children for war crimes. But she noted that military tribunals have not been a venue for juvenile prosecution since the Second World War.

“Even the Special Court for Sierra Leone, where a great many of the crimes were committed by children, did not prosecute children,” wrote Sullivan in an email. “Prosecutors will say that that children were prosecuted for war crimes in Germany following World War II — but the claims are ridiculous. A couple of children were prosecuted for theft, and I think maybe one for murder, but none for war crimes.”

Sullivan also noted that there are other international laws regarding children that the U.S. may have violated since it captured Khadr.

“There is a lot in international law about the detention of children,” she wrote in an email.“They must be held separately from adults, given family visits, provided a lawyer, provided education, etc… The US, of course, did not do any of this [during Khadr’s detainment] so there is no question that the US violated its international legal obligations.”

Meanwhile Iglesias contends that there is only aspect of Khadr’s case to which his age is germane.

“Where it becomes relevant is for sentencing purposes,” he said. “ If he is found guilty, the judge can take into consideration the fact that he was only fifteen years old,” when the alleged crimes occurred.

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Zazi case offers vindication for supporters of civilian trials for suspected terrorists

WASHINGTON — In the partisan realm of national security policy, President Barack Obama’s administration looks to have scored a victory this week.  Najibullah Zazi, a man accused of planning to bomb the New York subway system last September, pleaded guilty in civilian court to three terrorism charges.  As the Washington Post noted, law enforcement officials said “Zazi began to accelerate his cooperation after authorities charged his Afghan-born father with crimes and threatened to charge his mother with immigration offenses – options that are not available in the military justice system.”

Save for the immediate aftermath of the Sept. 11 attacks, national security and terrorism seem destined to feature perpetual strife and partisan opportunism.  Don’t think the political operatives inside the Bush White House didn’t notice the boost the Republican president’s approval rating got with each decision to raise the color-coded terror alert level.

The Obama administration’s support for using civilian criminal courts over military tribunals for suspected terrorists makes sense; there is no compelling argument in favor of military tribunals, and a host of good reasons to treat terrorists like the criminals they are.

When Republicans heard FBI interrogators had read the so-called “underwear bomber” Umar Farouk Abdulmutallab his Miranda rights nine hours after he was detained, they smelled blood in the water.  This was another sign that Obama just didn’t “get” the threat we face; another chance to hurl a barrage of “soft on terror” accusations; another opportunity to frighten the American public and watch Obama’s poll numbers correspondingly decline.

But a funny thing happened between the attempted Christmas Day bombing and now: Obama’s poll numbers on the issue went up.  A Washington Post/ABC News poll asked Americans if they “approve or disapprove of the way Obama is handling the threat of terrorism.”  The last such survey conducted prior to the terror attempt – taken Nov. 15 – found 53 percent “somewhat” or “strongly” approved.  In the latest poll on Feb. 8, that number was 56 percent.

Granted, with a margin of error of 3 percentage points, this is not exactly a ringing endorsement of Abdulmutallab’s handling.  But given the ferocity with which Republicans firebombed the president on this one, it is, in the view of any civil liberties advocate, an encouraging sign.

In his inaugural speech, Obama spoke eloquently on the nexus of civil liberties and national security.

“As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man – a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience sake.”

It remained to be seen whether he could practice what he preached.  No one doubts the difficulties inherent in ensuring freedoms while protecting the populace, and there was always certain to be the accusations of former Vice President Dick Cheney and company; those noble and selfless fear mongers eager to assert that the president’s touchy-feely approach to the bad guys was equivalent to “pretending we’re not at war.”

In the 13 months since his inauguration, Obama’s track record is not perfect.  It is, nonetheless, an improvement over eight years of egregious disregard for civil liberties and due process.  More encouraging still, the poll numbers seem to indicate that most Americans are ready to “light the world” once more.

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