The Obama Administration recently underwent its first U.N. treaty body review, and the resulting concluding observations made public yesterday should be a cause for alarm. The observations, issued by independent U.N. experts tasked with monitoring compliance with the international treaty on the rights of children in armed conflict (formally known as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict or “OPAC”), paint a dark picture of the treatment of juveniles by the U.S. military in Afghanistan: one where hundreds of children have been killed in attacks and air strikes by U.S. military forces, and those responsible for the killings have not been held to account even as the number of children killed doubled from 2010 to 2011; where children under 18 languish in detention facilities without access to legal or full humanitarian assistance, or adequate resources to aid in their recovery and reintegration as required under international law. Some children were abused in U.S. detention facilities, and others are faced with the prospect of torture and ill-treatment if they are transferred to Afghan custody.
By ratifying OPAC in 2002, the U.S. committed to guaranteeing basic protections to children in armed conflict zones, and to submit periodic reports on the implementation of its treaty obligations to the U.N. Committee on the Rights of the Child. We wrote about the latest U.S. report, released in November, which revealed that over 200 children have been held in U.S. custody in Afghanistan since 2008, some for lengthy periods of time. During its review of the U.S. on January 28, the Committee posed critical questions about the treatment of children by the U.S. military and issued recommendations to remedy these human rights violations.
These recommendations include taking “concrete and firm precautionary measures [to] prevent indiscriminate use of force” particularly against children, and ensuring all allegations of unlawful use of force are “investigated in a transparent, timely and independent manner” and that “children and families victims of attacks and air strikes do always receive redress and compensation.” In regard to the detention of juveniles, the Committee urged the U.S. to ensure that all children under 18 are detained separately from adults and guaranteed access to free and independent legal assistance as well as an independent complaints mechanism. Importantly, considering the previous U.S. response to the Committee revealed that the average age of children detained by U.S. forces is only 16 years old and the average length of stay for juveniles in U.S. military custody has been approximately one year, the Committee recommended children be detained only “as measures of last resort and for the shortest possible period of time and that in all cases alternatives to detention are given priority.”
The Committee also stressed that allegations of torture and other forms of mistreatment must be investigated and the perpetrators brought to justice, and that no child should be transferred to Afghan custody if “there are substantial grounds for the danger of being subject to torture and ill treatment.” The Committee specifically mentioned the case of Omar Kadr, a former child soldier who was detained by U.S. forces at the age of 15 and was subjected to torture and a systematic program of harsh and highly coercive interrogations at the American prisons at Guantánamo Bay and Bagram.
The U.S. government’s human rights obligations do not end with the release of a periodic report or the completion of a treaty body review. In order to give meaning to the words of the children’s rights treaty, the U.S. must work diligently to implement the Committee’s recommendations and ensure that our military forces, intelligence agents, and other government officials treat children in the war zones of Afghanistan and elsewhere in accordance with international law.
- A quarter of countries supported CIA in torturing, detaining individuals: report (alethonews.wordpress.com)
Document Outlines Government’s Claimed Authority to Kill American Citizens Outside Combat Zones
NEW YORK – A Justice Department white paper argues that the government has the right to carry out the extrajudicial killing of American citizens that the government believes are affiliated with a terrorist organization, according to the document posted tonight on NBCNews.com. The white paper summarizes a memo prepared in 2010 by the Justice Department’s Office of Legal Counsel (OLC) to justify the targeting of U.S. citizen Anwar Al-Awlaki.
“This is a profoundly disturbing document, and it’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.
“But this briefing paper is not a substitute for the 50-page legal memo on which it’s based. When the executive branch seeks to give itself the unilateral authority to kill its own citizens, a summary of its argument is no substitute for the argument itself. Among other things, we need to know if the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little. President Obama rightly released the Bush-era OLC torture memos and he should now hold his own administration to the same standard by releasing its killing memo.”
Tomorrow, the American Civil Liberties Union and the Center for Constitutional Rights will file a court brief arguing against the government’s attempt to dismiss their lawsuit challenging the targeted killing of Al-Awlaki and two other Americans in Yemen in 2011, Al-Awlaki’s 16-year-old son Abdulrahman and Samir Khan.
The OLC memo summarized by the white paper is one of the documents sought by the ACLU’s pending Freedom of Information Act lawsuit. That case was dismissed last month by a federal judge in New York, and last Friday the ACLU filed a notice of appeal. The government argued that the requested documents cannot be released, despite the fact that government officials have talked publicly on numerous occasions about Al-Awlaki’s killing and the targeted killing program in general.
The D.C. Circuit Court of Appeals is currently considering another FOIA lawsuit filed by the ACLU seeking other information on the U.S. targeted killing program, including its legal basis, scope, and number of civilian casualties caused by drone strikes. The court heard oral argument in September.
An in-depth analysis of the DOJ white paper in a blog post written by ACLU Deputy Legal Director Jameel Jaffer is at:
Information on the ACLU’s targeted killing lawsuits is at:
The TSA has issued a “Market Research Announcement” in which the agency expresses a desire to expand its Pre-Check whitelist program by allowing private companies to carry out risk analysis of Americans that would determine whether they are “trusted” enough to participate in the trusted traveler program. This would be a major step toward turning the agency’s Pre-Check whitelist into the insidious kind of passenger profiling system that was proposed under the Bush Administration in the wake of 9/11, and a confirmation of our longstanding warnings that the logic of the risk-assessment approach to security will drive the government toward the use of more and more data on individuals. It would be the most significant of the new initiatives the TSA is looking at this year.
Currently, under Pre-Check, travelers who have attained a certain level within the frequent flier programs of six airlines can apply for the program by providing the government with certain information and, if they are accepted, receive access to expedited security lines. Department of Defense personnel and those with certain security clearances may now also join—and future expansions are inevitable. Although it is currently limited in scope, we have been warning that this kind of program points us down the road of engaging in background checks and discriminatory profiling of passengers. The concept raises knotty questions about fairness; we don’t know who is approved for this program and who is rejected, and based on what data, or what criteria for evaluating that data.
Defenders of Pre-Check point out that it is voluntary. However, as the agency explicitly states in this new document, “TSA desires to maximize appropriate participation in expedited screening initiatives.” In short, it hopes to lighten the screening load as much as possible by enrolling as many people as it can in Pre-Check. That means that ultimately, we face the prospect of a two-class airline security system, or even a system in which simply everyone has a Pre-Check ID, and the hapless group who can’t get one become a security underclass. Then the Pre-Check is adopted for all kinds of other purposes by piggybacking organizations, and like a “voluntary” credit card, it becomes impossible to fully participate in American life without one, and those who are shut out—and they won’t know why—face all kinds of obstacles and disadvantages.
As I discussed in this post, the Bush program, called CAPPS II, would have tapped into commercial data sources to perform background checks on every air passenger, and crunched that data to produce a profile of each traveler’s “risk to aviation.” The initial vision seemed to be to measure individuals’ “rootedness in their community,” measuring such things as how long a person has lived at their current address, held their current job, held a credit rating, etc. Among the numerous problems with this concept, it would have been enormously discriminatory in its impact (African-Americans, for example, tend to move more often than whites), and would have been grossly ineffective in spotting terrorists. (As Bruce Schneier has long pointed out, the danger is that to the extent you exempt some groups from security measures, you open up a pathway for terrorists to join or recruit their way into the program.)
We and others fought this terrible idea, and over several years of battles in Congress and the media, it was renamed “Secure Flight” and basically reduced to watch list checks. A victory of sorts—although the watch list system underpinning Secure Flight continues to be a mess.
Now it is clear that our concerns about Pre-Check sliding back towards some kind of CAPPS II-like profiling system have been warranted. In particular, the agency appears never to have lost its fixation with partnering with private-sector data aggregators to evaluate American citizens. The TSA writes:
TSA is particularly interested in techniques that … use non-governmental data elements to generate an assessment of the risk to the aviation transportation system that may be posed by a specific individual, and to communicate the identity of persons who have successfully passed this risk based assessment to TSA’s Secure Flight.
As I understand it, the concept here is that a company such as a data broker would sift through the enormous volumes of data they store on Americans and come up with a proposed algorithm for judging “the risk to the aviation transportation system” of any given individual. TSA would examine that algorithm, and upon the agency’s approval, the company would be authorized to sell Pre-Check memberships using that algorithm applied to its own data.
For now, the TSA says it “is seeking white papers that successfully demonstrate sound, well-reasoned concepts … to identify ‘known travelers’ pre-screened to a high degree of confidence.” The agency says it wants to allow “entities latitude to do what makes the most sense for them”:
TSA will specify a few common core requirements for process and algorithm content, while encouraging innovation by allowing participating entities to include additional elements in their algorithms as they see fit (as long as they are legal). These hybrid algorithms would have to meet certain performance criteria, described below.
Those criteria include:
- An enrollment process that is convenient and user friendly
- A proposal that “presents an effective process for gathering required personal information from potentially large numbers of prospective enrollees”
- Handling travelers’ personal information with various security and privacy safeguards
- “Has identified and obtained access to specific sources of current, accurate, and complete non-Governmental data that can be used to support effective screening of prospective travelers”
- An algorithm “that produces dependable results”
The agency outlines a three-phase process for turning these white papers into functioning part of our security system. Phase 1 (30 days) is selection of promising submissions, phase 2 (45-60 days) is prototype implementation, and phase 3 (4-6 months) will be live prototyping on actual passengers at an actual airport.
Aside from the fundamental effectiveness questions of this concept, there are a number of major problems with it from a civil-liberties point of view:
- Unfair effects. It is likely to have an unfair impact on the American public. As I mentioned above it could easily be discriminatory in its application, or otherwise unfair depending on the data sources used. For example, see this story about a man having problems with his credit score precisely because he had always been careful not to go into debt. The data aggregators are subject to no rules regarding data quality, and their databases are rife with errors, as are the credit ratings agencies’ (despite their being subject to some regulations).
- Secrecy. We probably won’t even know about such unfair effects because the system will be wrapped in secrecy. The TSA’s document specifies that “The specific sources and types of information employed for pre-screening purposes under this initiative may not be publicly disclosed.” It also contains a long section specifying that any private partners of the TSA will be subject to the agency’s Sensitive Security Information (SSI) rules.
- Private-sector delegation. Delegating security assessments to a private company raises significant issues. We have always believed that it’s a foolish idea to start building an algorithm-based system for “rating” Americans on their security “trustworthiness,” which is then used to curb people’s rights (such as the right to travel). If we must have such ratings performed, that would at least be an inherent law enforcement function. We shouldn’t have private, profit-oriented companies making those designations, any more than such companies should be deciding who to prosecute. Having private companies make the ratings, and the government acting upon them, may be pretty close to the worst of all worlds. In addition, much of the corporate world operates on relationships and favors—not to mention money; it’s not clear how the TSA would regulate these companies to ensure they won’t engage in corruption or abuse or systematic bias when deciding who can get a Pre-Check pass. Especially given that the TSA won’t routinely have access to the underlying data.
- Access to data. However, the agency does state that while it won’t “generally” access the personal information about an individual used by a company, it may do so during audits. Also, the “results of the pre-screening process” will be shared with the TSA “upon request”; it’s not clear to me what the agency means by “results” here.
Ultimately, the core problem with Pre-Check remains: it is (as I said here) caught between two possibilities: collecting so little information that it’s useless as a security measure, or so much that it is scarily intrusive. The TSA wants to take a long stride toward the latter. True, by outsourcing the data-crunching function to a private company, the agency won’t be collecting the information itself. That certainly ameliorates some of the privacy problems with the concept—but if anything worsens the other concerns, such as fairness, accuracy, due process, and the role of for-profit companies in providing what are essential government functions. Thwarted in its efforts to tap private databases a decade ago, the agency seems to be edging back toward that concept via a classic Surveillance-Industrial Complex strategy.
Newly obtained documents confirm that the Federal Bureau of Investigation was monitoring peaceful protesters with the Occupy Wall Street movement before the first OWS demonstrations even began.
Files uncovered this week by the Partnership for Civil Justice Fund (PCJF) through a Freedom of Information Act request reveals that the FBI was actively keeping an eye on activists across the United States since Occupy Wall Street was still in its preliminary planning stages.
Documents, only published over the weekend, show inner-office communiqué that confirms investigators were considering Occupy demonstrators in some instances as criminals and domestic terrorists.
Mara Verheyden-Hilliard, the executive director of the PCJF, writes in a statement this week that the initial 100-plus pages obtained through the FOIA request are “just the tip of the iceberg” of what’s expected to be a substantial trove of data proving that the FBI was actively monitoring activists.
The list of documents, says Verheyden-Hilliard, “is a window into the nationwide scope of the FBI’s surveillance, monitoring, and reporting on peaceful protestors organizing with the Occupy movement.”
“These documents show that the FBI and the Department of Homeland Security are treating protests against the corporate and banking structure of America as potential criminal and terrorist activity,” she writes. “These documents also show these federal agencies functioning as a de facto intelligence arm of Wall Street and Corporate America.”
Canada’s Adbusters magazine first published a call-for-action in June 2011 addressing what would become known months later as Occupy Wall Street. On September 12 of that year, activists from around the United States began to descend on Zuccotti Square in Lower Manhattan, and soon the movement spread across the rest of the United States and the world. Even before the first occupiers erected tents and organized actions against corporate greed and criminal police activity, though, the FBI was well involved in investigating the group.
“As early as August 19, 2011, the FBI in New York was meeting with the New York Stock Exchange to discuss the Occupy Wall Street protests that wouldn’t start for another month,” the PCJF writes. “By September, prior to the start of the OWS, the FBI was notifying businesses that they might be the focus of an OWS protest.”
In another document, the Indianapolis, Indiana division of the FBI released a “Potential Criminal Activity Alert” about the protests two days before they even started in New York, let alone spread to the Midwest.
In other locales across the country, the FBI alerted authorities to potential criminal and terrorism activity from the protesters and asked them to monitor the movement of the group.
The trove of information received through the FOIA requests is perhaps the most substantial proof so far that the FBI was thoroughly vested in treating Occupy Wall Street as a form of terrorism. It isn’t, however, the first evidence used to prove that peaceful protesters aligned with OWS were on the FBI’s radar: in September, the American Civil Liberties Union received documents obtained through their own FOIA request showing that Occupy activists in Northern California were routinely targeted by federal agents.
“Why does a political protest amount to a national security threat?” ACLU attorney Linda Lye asked at the time.
NEW YORK – In a historic ruling, the European Court of Human Rights today condemned Macedonia’s illegal transfer of Khaled El-Masri into CIA custody and found that his abusive treatment at Macedonia’s airport by the U.S. rendition team “amounted to torture.” The court also found that his abduction and detention – including the time he was in U.S. custody – constituted “enforced disappearance” under international law.
“Today’s landmark decision is a stark reminder of America’s utter failure to hold its own officials accountable for serious violations of both U.S. and international law. Continued lack of accountability is turning the United States into an outlier among its European allies, which is an appalling outcome for a nation that prides itself as a global leader on the rule of law and human rights,” said Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program. “Today’s ruling makes it harder for the United States to continue burying its head in the sand and ignoring domestic and global calls for full accountability for torture. This remarkable decision will no doubt put greater pressure on European nations to fully account for their complicity in cooperating with the illegal CIA ‘extraordinary rendition’ program, and to hold responsible those who violated the human rights of El-Masri and those like him.”
El-Masri is a German citizen who in 2003 was mistaken for another person and abducted by Macedonian authorities at a border crossing and held incommunicado for 23 days. He was then handed over to CIA operatives who put him on a secret flight to a “black site” in Afghanistan where he was secretly held, tortured and abused for about four months.
The ACLU currently represents El-Masri in a case against the U.S. now being considered by the Inter-American Commission on Human Rights, and also represented him in a lawsuit in U.S. federal court, which was dismissed. His case before the ECHR was brought by the Open Society Justice Initiative.
In a unanimous decision awarding El-Masri 60,000 Euros, the European court said that the court “underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened… The concept of ‘State secrets’ has often been invoked to obstruct the search for the truth. State secret privilege was also asserted by the US government in the applicant’s case before the US courts.”
The court’s ruling is available at:
CONTACT: (212) 549-2666; firstname.lastname@example.org
- CIA ‘tortured and sodomised’ terror suspect, European court rules (guardian.co.uk)
Mother of American Torture Victim José Padilla Brings Case Before International Human Rights Tribunal
U.S. Courts Have Denied Recourse
NEW YORK – The American Civil Liberties Union and Yale Law School’s Lowenstein International Human Rights Clinic today filed a petition against the United States with the Inter-American Commission on Human Rights (IAHCR) for the unlawful detention and torture of José Padilla, a U.S. citizen, whom the United States detained and interrogated for four years.
The petition was filed by Padilla’s mother, Estella Lebron, on her own and on her son’s behalf. Padilla and Lebron had previously filed federal lawsuits – since dismissed – against current and former government officials for their roles in Padilla’s torture and other abuse.
The petition is an international complaint asking the IACHR, which is an independent human rights body of the Organization of American States, to conduct a full investigation into the human rights violations suffered by Padilla; to find that his mistreatment violated the American Declaration of the Rights and Duties of Man; and to recommend that the United States publicly acknowledge the violations and apologize for its unlawful conduct.
“The U.S. justice system denied a day in court to a U.S. citizen who was arrested and then tortured on U.S. soil by his own government,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program. “The U.S. has historically been a leader in ensuring access to justice for human rights violations around the world, but it has effectively closed the courtroom door to all victims and survivors of the Bush administration’s torture regime. Denied redress in U.S. courts, torture survivors like Padilla are now left with no choice but to turn to international justice.”
In 2002, President Bush declared Padilla an “enemy combatant” and ordered him to be placed in military custody. U.S. officials seized Padilla from a civilian jail in New York and secretly transported him to the Naval Consolidated Brig in Charleston, S.C., where they held him for 43 months without charge. Interrogators subjected Padilla to torture and other egregious forms of abuse, including forcing him into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture, “extraordinary rendition” and death.
“For more than a decade, Estela Lebron has lived with the terrible knowledge that her own government tortured her son, but there has never been any official acknowledgement, let alone an apology,” said Alaina Varvaloucas, a student with Yale’s Lowenstein Clinic who worked on preparing the petition. “The pain and indignity of that betrayal continue to this day.”
For the first 21 months of his captivity, Padilla was held incommunicado, without access to lawyers and his family.
“No human being deserves what happened to our family, and I will continue to work for my son and for justice as long as I’m breathing. As a mother, I want to be sure this never happens to anyone else,” said Lebron. “This petition may be my last chance.”
Today’s petition filed with the IACHR is available at:
Information on the dismissed federal lawsuit against U.S. officials is available at:
CONTACT: (212) 549-2666
The United States says that its military has detained more than 200 teenagers in war-torn Afghanistan since 2008.
The US Department of State revealed that the Afghan teenagers were held at a military prison next to Bagram Airfield in Afghanistan and a few of them are still imprisoned at the Detention Facility in Parwan.
The figure was released in a report sent every four years to the United Nations regarding the UN Convention on the Rights of the Child.
The US military held the teenagers to “prevent a combatant from returning to the battlefield,” the report claimed.
Jamil Dakwar, the director of the American Civil Liberties Union’s human rights program, said on Friday that if the average age is 16, “This means it is highly likely that some children were as young as 14 or 13 years old when they were detained by US forces.”
Dakwar also criticized the length of the detentions, which the State Department report said was one year on average.
“This is an extraordinarily unacceptably long period of time that exposes children in detention to greater risk of physical and mental abuse, especially if they are denied access to the protections guaranteed to them under international law.”
Tina M. Foster, the executive director of the International Justice Network which represents adult and juvenile Bagram detainees, said, “I’ve represented children as young as 11 or 12 who have been at Bagram.”
“I question the number of 200, because there are thousands of detainees at Parwan,” Foster stated on Friday.
“There are other children whose parents have said these children are under 18 at the time of their capture, and the US doesn’t allow the detainees or their families to contest their age.”
The United States and its allies invaded Afghanistan in 2001 on the pretext of combating terrorism. The offensive removed the Taliban from power, but years into the invasion, insecurity remains in the country.
VIDEO: On CNN, Nasser Al-Awlaki Demands “Accountability” for U.S. Drone Strike That Killed His Grandson
Speaking passionately in an interview with CNN’s Christiane Amanpour, Nasser al-Awlaki talked on television for the first time about the drone strike that killed his 16-year-old grandson, Abdulrahman. The teenager, an American citizen born in Denver, was killed by a U.S. missile in 2011.
“I want to know why Abdulrahman was killed,” al-Awlaki said via satellite from Cairo. You can watch the full interview here:
The ACLU and the Center for Constitutional Rights represent Nasser al-Awlaki in a lawsuit challenging the targeted killing of Abdulrahman as well as two other Americans killed by a drone strike two weeks earlier: Abdulrahman’s father Anwar and Samir Khan.
Later in the show, the ACLU’s Hina Shamsi debated Columbia Law School Professor Matthew Waxman, a former Bush administration official.
“There are extraordinary circumstances in which the government may use lethal force in response to an actual, concrete, and imminent threat – and those circumstances were not met in the case of any of the three citizens that we brought the lawsuit regarding,” said Shamsi.
“They are specifically called into question when you look at the case of Abdulrahman al-Awlaki, a 16-year-old boy eating dinner outside. No one has made any allegation that he was engaged in wrongdoing, and his case is representative of either a wrongful targeting or the case of a civilian bystander being killed…the lawsuit is an effort to provide transparency about the vague legal criteria the government is using and the basis on which it is carrying out that program.”
You can watch the full debate here:
- Denver Teen’s Death by Drone Remains Shrouded in Secrecy (alhittin.com)
- Obama Adviser Robert Gibbs Blames Denver Teen’s ‘Terrorist’ Father for His Drone Death (dissenter.firedoglake.com)
- How Team Obama Justifies the Killing of a 16-Year-Old American (theatlantic.com)
- Top Obama Adviser: Awlaki’s 16-Year-Old Son “Should Have Had a More Responsible Father” If He Wanted Us Not to Kill Him! (socioecohistory.wordpress.com)
Shortly before next week’s one-year anniversary of the Oakland Police Department’s brutal crackdown on Occupy Oakland, Alameda County Sheriff Greg Ahern announced that he was seeking funds to purchase a drone to engage in unspecified unmanned aerial surveillance. One of the many unfortunate lessons of OPD’s Occupy crackdown is that when law enforcement has powerful and dangerous tools in its arsenal, it will use them. Drones raise enormous privacy concerns and can easily be abused. Before any drone acquisition proceeds, we need to ask a threshold question – are drones really necessary in our community? – and have a transparent and democratic process for debating that question. In addition, if the decision is made to acquire a drone, do we have rigid safeguards and accountability mechanisms in place, so that law enforcement does not use drones to engage in warrantless mass surveillance? The ACLU of Northern California has sent the Sheriff a Public Records Act request, demanding answers to these crucial questions.
Drones should never be used for indiscriminate mass surveillance, and police should never use them unless there are legitimate grounds to believe they will collect evidence related to a specific instance of criminal wrongdoing or in emergencies.
One of the reasons cited by Sheriff Ahern in support of drones is that they are much cheaper than other forms of aerial surveillance; by his account, a helicopter costs $3 million to purchase and a drone less than 1/30 of that. But the relative inexpensiveness of electronic surveillance is also precisely why strong safeguards need to be in place. When the police have to mount elaborate and costly foot and squad patrols to follow a suspect 24/7, the expenditure of resources serves as a deterrent to abuse; it forces the police to limit their surveillance to instances when it is actually necessary. Drones permit the police to surveil people at all hours of the day and, apparently, at 1/30 the cost of other forms of aerial surveillance. The natural deterrent to abuse goes away, and invites abuse. This makes strong safeguards absolutely essential.
Before Sheriff Ahern proceeds with the drone acquisition, the community deserves answers to the questions we raised in our Public Records Act request: Why are drones necessary? How much will they cost? And what safeguards will be in place to prevent abuse?
Imagine a searchable database that would enable police or federal agents to instantly track everywhere you’ve ever driven in your car, like a “Google search” of your location over a period of months or even years. According to a law enforcement data manager speaking at a 2010 National Institute of Justice conference, that’s where the government is headed.
A driver location “Google search” is not available to police today because there aren’t enough license plate readers to ensure total information awareness about our driving habits. But if the federal government’s seed funding of the surveillance camera boom over the past ten years is any indication of where we are headed with license plate readers—and we have evidence to suggest a similar process is unfolding—we will get there soon enough.
The police are preparing for it, too. Dale Stockton, Program Manager of the “Road Runner” project at the Automated Regional Justice Information System in San Diego spoke on a panel on license readers at the 2010 conference and explained to police and prosecutors in attendance how best to share license plate data. Mind you, he was talking about the location information of people never accused of any crime.
Aware that a “centralized national giant bucket of license plate reader data…probably wouldn’t stand the court of public opinion,” he suggested a number of backdoor alternatives that would grant the government the same power to spy on us retroactively and with frightening precision. No such centralized data system exists and probably won’t, he said, but he described other paths towards total information awareness regarding license plate data, among them a “regional sharing capability” that in 2010 already existed in San Diego and L.A. Another option is informal data sharing between police departments, Stockton said, encouraging “anyone involved in LPR in the interim to establish an e-mail group and do an e-mail blast when you have a vehicle of interest. This is working in the southwest area of the United States,” he said.
But the regional data sharing and the informal e-mail systems Stockton described pale in comparison to the real endgame, what he called “something akin to a Google.” Not “a storage unit” per se—because remember, such a centralized database “wouldn’t stand the court of public opinion”—but a “pointer system” that would enable agencies to store their own data locally while making it readily available to police departments and federal agencies nationwide at the click of a button.
Central storage of data vs. distributed storage indexed via a pointer system? When it comes to privacy, that’s a distinction without a difference.
As license plate scanners proliferate nationwide, boring questions regarding data retention and sharing take on great importance. Unfortunately, it appears as if the government is taking us in precisely the wrong direction, from the top, down.
We’ve been making a lot of noise about location tracking of late. License plate readers rank high among the technologies that are threatening our privacy with respect to our travel patterns. Where we go says a lot about who we are, and law enforcement agencies nationwide are increasingly obtaining detailed information about where we go without any judicial oversight or reason to believe we are up to no good. Stockton says we have nothing to worry about with respect to license plate reader data and privacy, that that’s all “hocus pocus.” But he’s wrong.
We must ensure license plate readers do not become license plate trackers.
Law enforcement’s advancement of the position that agencies should be able to access data willy-nilly from other departments illustrates precisely why we’ve been worried about this technology. Perhaps we shouldn’t be surprised to read such a position on the Department of Justice’s website; after all, it’s the same DOJ that told a court last week that Americans have “no privacy interest” in our location information as it pertains to our cellphones.
We disagree, and we intend to make sure that a license plate data system “akin to a Google” doesn’t take shape. Nothing less than our freedom on the open road is at stake.
- License-plate readers create ‘massive intelligence database’ (gazette.com)
- License plate readers and the rise of a surveillance industry (theverge.com)
- Smile! You’re being photographed by a license plate reader (digitaltrends.com)
- ACLU files suit for information on automatic license plate readers (jurist.org)
Abdullah al-Kidd is a Kansas-born American citizen, a father, and a graduate of the University of Idaho where he was a star football player. And in 2003, he became the victim of the FBI’s misuse of a little-known federal law to imprison him without charges. He was arrested and imprisoned under harsh conditions for more than two weeks—even though the FBI had no probable cause to believe he had done anything wrong. The ACLU represents Mr. al-Kidd in his effort to hold the government accountable for its violation of his rights. Last week, the federal district court in Idaho issued two long-awaited decisions calling the FBI to account for Mr. al-Kidd’s unlawful arrest.
Mr. al-Kidd’s ordeal began after 9/11 when the FBI started investigating Muslims in Idaho—including Mr. al-Kidd, who converted to Islam in college. The FBI spoke with Mr. al-Kidd on multiple occasions, and he always voluntarily cooperated with their requests for interviews. Yet in March 2003, as he was preparing to travel to Saudi Arabia to study abroad on a scholarship, the FBI arrested him without warning. For 16 days, he was imprisoned under extremely harsh conditions. He was held in high-security cells that were kept lit 24 hours a day. He was stripped naked in full view of criminal inmates and guards. He was shackled, humiliated, and subjected to multiple body-cavity inspections. Although he was treated like a dangerous criminal, he was never charged with any wrongdoing. Finally, the court released him from jail on the condition that he relinquish his passport, live with his in-laws, and limit his travel to four states. Mr. al-Kidd lived under these conditions for more than a year. During this time, he lost his scholarship, had difficulty finding work and saw his marriage disintegrate.
How did this happen? Mr. al-Kidd’s imprisonment was the result of the FBI’s misuse of a little-known federal law called the “material witness” statute. This statute allows the government to arrest a witness who is needed to testify in the criminal case against someone else. It is intended only to allow for the brief detention of witnesses who are truly necessary to the trial and who otherwise would not cooperate with a subpoena. In the wake of 9/11, however, the government began abusing this limited power in an alarming new way. As the ACLU and Human Rights Watch found, the government began using the statute to arrest, preventively detain, and interrogate scores of people—almost all Muslim men—whom the government viewed with suspicion, but against whom they had no probable cause to justify a traditional arrest. Calling these people“witnesses” was a pretext. In Mr. al-Kidd’s case, the government never even called him to testify at the trial for which he was supposedly needed.
What’s more, in Mr. al-Kidd’s case, the FBI agents misled the court in order to get the arrest warrant they wanted. There was simply no reason to believe Mr. al-Kidd wouldn’t voluntarily show up to testify if asked. On the contrary, he was a U.S. citizen with a wife and child in Idaho and strong community ties, who had previously cooperated with the FBI on every occasion. So instead, the FBI submitted a warrant application riddled with omissions and falsehoods. The FBI did not tell the court that Mr. al-Kidd was an American citizen with family members living in the United States; instead, the application strongly implied that he was a Saudi national leaving the United States for good. Nor did they tell the court about Mr. al-Kidd’s past cooperation with the FBI. The FBI’s warrant application even falsely claimed that Mr. al-Kidd had purchased a one-way ticket to Saudi Arabia—when in fact, he had a round-trip ticket with an unscheduled return date, exactly what you’d expect of a student going to study abroad.
Last week, the court in Idaho—the very same court that granted the FBI’s request for a warrant in 2003—took the FBI to task for this “misleading and highly suggestive” warrant application. Judge Edward J. Lodge, adopting the recommendations of Magistrate Judge Mikel H. Williams, ruled that the FBI agent who sought Mr. al-Kidd’s arrest violated the Fourth Amendment by recklessly misleading the court. Judge Lodge also ruled that the United States was liable for false imprisonment, and that Mr. al-Kidd’s “abuse of process” claim—his claim that the government had misused the material witness statute “for a purpose other than to secure testimony”—deserves a trial.
As national commentators have recognized, the court’s rulings are a “big deal.” It’s the first time that a court has found on the merits that the government violated the constitutional rights of a person wrongfully arrested as a material witness after 9/11. It’s a reaffirmation of the judiciary’s role in preventing unjustified imprisonment. And most importantly, it’s a reminder that the FBI isn’t above the law.
Last year, the Supreme Court decided that former Attorney General John Ashcroft can’t be held liable for directing a policy of using the material witness statute to preventively detain and interrogate people after 9/11. But four out of the eight Justices considering the case (Justice Kagan was recused) agreed that there were serious questions about “whether the Government’s use of the Material Witness Statute in [Mr. al-Kidd’s] case was lawful.” Magistrate Judge Williams and Judge Lodge have now answered this question decisively in Mr. al-Kidd’s favor. As Justice Ginsburg wrote in her concurring opinion in last year’s case against Ashcroft, Mr. al-Kidd’s “ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.” Mr. al-Kidd’s victory last week is an important step towards holding the government accountable for its abuses of power, and preventing them from ever happening again.
- Is torturing “material witnesses” constitutional? (digbysblog.blogspot.com)