Human Rights First

Crackdown Intensifies Before F1 in Bahrain

2013-04-17T12:15:45-04:00

By Sayed Yousif Al-Mahafdah

For the second consecutive year, Bahrain will host a Formula One (F1) race despite severe human rights violations documented by local and international human rights organizations, including the United Nations.

For the second consecutive year, the race will proceed with great fanfare as the plight of dozens of athletes who weredetained and tortured for exercising their freedom of expression goes unnoticed. Many of these athletes weretargeted, arrested and defamed because of their participation in the "Athletes March," a peaceful march by athletes who supported the 14th February Revolution at the Pearl Roundabout. Some remain in jail.

For the second consecutive year, the suffering of the staff of the Bahrain International Circuit - the company that hosts the F1 race - is being ignored. Back in 2011, the staff's offices were raided by security forces, and some were subjected to torture inside the F1 premises. Some were even fired from their jobs.

It's no surprise that "racing on our blood" is a slogan often chanted by Bahrainis in marches and sit-ins in reference to the F1. During last year's F1 race, the Bahrain Center for Human Rights documented the arrest of at least 60 protesters and dozens of injuries caused by the extensive use of force by the Bahraini security forces. There were also some deaths, including Salah Abbas, a 35 year-old man from Shakura village who died after being hit with gunshot pellets fired by police during a peaceful march on the eve of the F1 race.

History is repeating itself in 2013. This year, seven days prior to the start of the F1 race, we documented the arrest of 50 people, including 20 activists from the villages near the area of Bahrain International Circuit, including Darkulaib and Shahrakan, a tactic we believe is designed to spread terror among people in the areas where protests are often held.

The Bahraini security forces do all of this to ensure that the F1 goes off smoothly. It's reflective of the Kingdom's actions during the past two years. The Bahrian government responded to revolution that began in February 2011with a crackdown that has resulted in the deaths of 80 people, including children, and the arrest of thousands of men and dozens of women who were systematically tortured. The regime continues to get away with murder.

In spite of all of these abuses, the Arab and international media has failed to cover Bahrain in the way they covered other revolutions in the "Arab Spring." We, as human rights activists in Bahrain, ask journalists who are coming to cover the F1 to see the other side of things here, the side hidden by the authorities. We ask them tocome and see the daily protests in over 40 areas of Bahrain where people demand their freedom and their right of self-determination. We ask them to observe how peaceful protestors are often met with collective punishment using tear gas and shotgun pellets.

We ask them to watch as the seriously injured are scared to go to government hospitals because they have been militarized. Even private hospitals have been instructed by the Ministry of Health in Bahrain not to treat injured protestors and to report them immediately to the police upon arrival to the hospital. The BCHR recently issued a detailed report on the militarization of hospitals and the lack of medical neutrality. Despite the ongoing abuses in Bahrain, weapons sellers are ready to supply the Bahrain authorities with the weapons used in its crackdown.

If they look, journalists will have no problem witnessing the deterioration of freedom of expression in Bahrain, including the arrest ofthose who publish their views on Twitter. I was among those arrested just minutes after tweeting a photo of an injured Bahraini who was shot by shotgun bullet. I was imprisoned for my post.

The United States is one of the countries supporting the Bahraini regime despite the Obama Administration's claims to be on the side of democracy and human rights. Why does the administration often stay so silent on the situation in Bahrain and not announce its support for the legitimate demands of the Bahrainis to peaceful protest and self-determination? We know Bahrain hosts a major U.S. military base. That is why it is so important for them to speak up for us and to say that we are people who deserve democracy. Bahrainis want to enjoy it as U.S. citizens do. We want to express our opinions and to elected our officials. Our unelected prime minister has not been changed for 42 years, unlike the United States where Americans practice their right to elect a President every four years.

We are gradually being killed in Bahrain by international silence for our crime of demanding self-determination. As the F1 race commences, we ask that you look beyond the track. We ask that you look into the streets of Bahrain, where those who want democracy are in a race against time for their lives and freedom.

Sayed Yousif Al-Mahafdah is the monitoring and follow-up official in the Bahrain Center for Human Rights
@saidyousif

Russia's Wikipedia Protests Legislative Attacks on Fundamental Freedoms

2012-07-11T16:10:09-04:00

By Innokenty Grekov
Fighting Discrimination

I'm sitting in Moscow trying to figure out how to get to the Novoslobodkaya metro station to meet a friend for coffee. I Google the station's name, and as often happens, Wikipedia emerges atop of the query list, but clicking on the link leads to nothing.

Wikipedia is on strike today to protest against Russia's looming assault on internet freedom.
Today, Russia's parliament is debating amendments to the existing law on information that, if passed, would create a black list for internet websites containing "banned content." According to RIA Novosti, the bill enjoys cross-party support, while civil society groups and internet providers are united in opposition.

"Imagine a world without free knowledge," say Wikipedia's curators in the short appeal that replaced their usual homepage today. "The Wikipedia community is protesting against censorship that threatens free knowledge available to all people."

It's not the first time the Wikipedia community has gone on strike. This past January, the site joined the massive internet blackout that pushed the U.S. Congress to reconsider antipiracy legislation that could have similarly led to censorship of web content. As governments struggle to address online security, hate speech, and child safety, they must be mindful of how these concerns can also serve as a convenient pretext for censorship or surveillance in a way that violates the rights and privacy of users and threatens the free flow of information.

Consider the context in Russia: this new bill on the internet is a part of a troika that threaten democracy and human rights. First, the State Duma dramatically increased fines for participants in "illegal demonstrations" in a country in which it is often difficult to obtain a permit (just ask Moscow's LGBT groups that were handed a one hundred-year ban on pride parades in the capital). Second, the parliament approved new strict regulations on nongovernmental NGOs receiving foreign funding, requiring many to register as "foreign agents" and be subjected to additional regulatory oversight. And now this bill will create a black list of internet websites.

These laws are easy to abuse because they lack concrete definitions. For example, the foreign NGO bill does not define what "political activity" means and yet requires all politically active groups to wear the foreign agent/spy label. Similarly, the existing and massively misused law on extremism lacks a definition of extremism and is regularly used to target religious believers, civic dissenters, and artists.

What Wikipedia is fighting against--the black list--is just one way that Russia fights "extremist materials." The government targets dissenters by placing publications or media files on the federal list of banned extremist materials, which now stands at more than 1,200 entries. The use or distribution of these texts, images, movies, or songs can lead to warnings, fines, and suspended sentences. The list is often criticized as purposeless and ineffectual, yet it continues to grow as more courts rule against authors as wide ranging as Adolf Hitler and Said Nursi. You can imagine what a black list of unacceptable internet websites might look like.

This legislative attack on the ability of Russians to express opinions or assemble freely will likely go through as there are few roadblocks in the Parliament. The Russian people once again have to decide if the seeming economic stability of Putin's regime is more important to them than a chance at a country that realizes its full economic potential while respecting the fundamental freedoms of its citizens. In the meantime, let's hope that Facebook, Twitter, or even humanrightsfirst.org don't make it onto the black list.

Facebook: Before You Buy

2012-05-17T12:13:58-04:00

By Meg Roggensack and Marshall Thompson
Business and Human Rights

What investors should know ahead of Facebook's IPO.
View PDF Version»

Much of Facebook's IPO projected income depends on entry into China, a nation that is hostile to privacy and free expression.

But what is Facebook's plan for staying in China? Google quit China after determining that dealing with authorities undermined its brand and put its trade secrets at risk. China, like other oppressive countries, is hostile to privacy and free expression. To operate in China, Facebook would likely have to partner with search engine giant Baidu, which already complies with China's censorship regime, the Great Firewall.Censorship is standard operating procedure in China; that's the cost of doing business there. But the Chinese government is likely to demand more than just compliance with the Great Firewall. If it asks Facebook for information about activists -- which it could easily do under its overly broad state secrets law -- would Facebook provide it?

There are undoubtedly some things Facebook would refuse to do under government pressure. Where and how will it draw those lines? Does Facebook have policies to guide such decisions? Will it make them public? An ad hoc policy whereby it responds to government demands on a case-by-case basis is insufficient. Facebook should establish clear policies to guide its actions as it responds both to the demands of governments and the needs of users. And it should make them public so that the outside world can evaluate its actions according to Facebook's own standards.

Potential investors should understand the business risks companies like Facebook take on when they fail to protect the rights of users. If Facebook is serious about being the industry leader on privacy, it should use its mega-IPO to tell the world what that means by including an explicit human rights section in its written privacy policy.

Facebook's privacy policies have come under fire for lack of transparency.

Concerns about privacy issues deter potential users. According to a recent survey, 21% of people who don't use Facebook named privacy concerns as the number one reason. The Federal Trade Commission recently ordered Facebook to be clearer with users about its privacy policies and to undergo regular independent review. The FTC review follows similar ones in Canada, Sweden, Ireland, the UK and Germany. Taken together, they establish that Facebook's privacy policies are prohibitively confusing, make it difficult for users to protect personal information, expose to disclosure information users believe is private, and are changed without adequate warning or consent from users.Facebook's privacy policies distinguish between what it calls "your information," which includes registration information and information users post about themselves, and "information" about you, which includes the vast amount of data that Facebook collects about users. The FTC order requires Facebook to make disclosures and obtain affirmative consent before sharing "your information" with third parties, but doesn't restrict sharing "information" about you. In addition, Facebook's settlement with the FTC also requires it to clearly and prominently disclose to users specifically how and when their information is used, maintain a comprehensive privacy program to address existing and foreseeable issues, and submit to a privacy policy assessment by a qualified independent assessor every two years for 20 years.

Access to some of Facebook's privacy settings, however, remains needlessly difficult and opting out of some policies can require users to take multiple steps.

Facebook has proposed changes to its privacy policy that make it clearer what information users can and cannot control. Facebook is currently taking user comments on the changes through its governance page and will finalize the updates on May 18, the same day as the IPO. A document with the proposed changes can be found here.

The Global Network Initiative provides assurance that companies are taking steps to address these challenges.The Global Network Initiative (GNI) is a multi-stakeholder organization that protects online freedom and privacy in the face of government pressure on companies. Company members of GNI incorporate its guidelines into their policies and practices and undergo independent assessments of their efforts. In addition, GNI members work collaboratively to identify and address emerging threats stemming from government practices and policies that might limit or degrade online services.

Human Rights First hopes that Facebook will use its time as an observer of the GNI to prepare to become a full member and adopt the corresponding obligations including implementing GNI principles and committing to accountability. This would address ongoing concerns about Facebook's commitment to online privacy and free expression.

ICE's Detention Reform Promises - A Second Look

2012-03-28T12:39:25-04:00

By Ruthie Epstein
Refugee Protection Program

My drive back from Karnes County, Texas, to San Antonio, two weeks ago, was long and empty. Not long by Texas standards, true, but it took more than an hour - so, long for a non-profit or pro bono attorney to drive twice in one day to visit a client at ICE's newest immigration detention facility. And long enough for me to think about what the new Karnes County facility really means for ICE's promised reform of the U.S. immigration detention system.

Today, the House Judiciary committee will consider the same question in an oversight hearing on detention reform, albeit from the perspective of Rep. Lamar Smith (R-TX/21^st), who has accused the administration of going "beyond common sense to accommodate illegal immigrants and treat... them better than citizens in federal custody." This assertion is ludicrous. And ICE still has a long way to go.

By and large, national media coverage of the Karnes opening didn't quite give readers the full picture. It parroted, without criticism, the messaging of anti-reformists who disingenuously claim that ICE coddles detained immigrants. It also took ICE's assertions about its reforms at face value, and failed, for example, to highlight the fact that the vast majority of ICE detainees - numbering almost 400,000 per year - will continue to be held in jails and jail-like facilities, even with the opening of Karnes. (For a more complete perspective on the status of detention reform, check out these pieces from New York Times, Los Angeles Times, Texas Observer, and National Public Radio, as well as Just Detention International's piece on PREA and ICE detention standards.)

On March 13, before visiting Karnes - which ICE touts as a model facility for "civil" immigration detention - I described my expectations of how it might look, based on Human Rights First's years of advocacy work relating to the detention of asylum seekers and other immigrants, and recent research for our latest report, "Jails and Jumpsuits: Transforming the U.S. Immigration Detention System - A Two-Year Review." In terms of detention conditions, I wasn't disappointed by much. With the caveat that we toured an empty facility that will ultimately hold 600 detained individuals, I grant that ICE has developed a facility that can serve as a model for "civil" immigration detention. The Karnes layout should allow detainees to access the outdoors all day, and they will be able to move freely - within the confines of the secure facility - from their housing area to the law library to the cafeteria. They will have private bathrooms which they'll share with the 7 others living in 8-person rooms. They will have email and Internet access and they'll be permitted contact visits with family members who are able to make the trip to visit them in detention. These are not radical offerings, but ICE should absolutely be commended for adopting them at Karnes. According to corrections professionals, normalized conditions - ones that approximate as much as possible life on the outside - can actually help ensure the safety of both detainees and officers.

But despite the development of a facility that will offer more appropriate conditions for civil immigration detainees, the government's reforms still fall short. At Karnes, detained individuals will still be forced to wear uniforms. At least the uniforms are not color-coded prison jumpsuits, as they are in most ICE facilities, but they are still uniforms - orange or gray sweatshirts, gray or white t-shirts, and elastic-waist denim pants. They'll have their deportation proceedings heard via video-conference rather than in person, introducing significant due process concerns. The immigration courtroom built in the facility will lie empty. Non-profit legal service providers in San Antonio and Austin will need more funding to be able to serve the individuals held at Karnes, who do not receive government-funded counsel to help them navigate complex immigration laws.

And the individuals slated for detention at Karnes should probably not be detained in the first place. They will be individuals whom ICE has deemed low-risk, with no criminal records or only non-violent misdemeanor records. They will include arriving asylum seekers who fled persecution in their home countries and seek safety in the United States. These individuals are good candidates for effective and less expensive alternatives to detention (ATDs). The annual ICE detention budget is over $2 billion - 28 times ICE's budget for ATDs. ATDs cost, on average, $8.88 per detainee per day. That's more than $100 less than detention, which costs taxpayers $122 per detainee per day.

ICE should increase its investment in effective ATDs, end the use of jails and jail-like facilities, and reserve facilities like Karnes for a much smaller detained population that cannot be released on alternatives to detention or community-based release programs. Congress should reform laws to provide for an independent assessment of the need to detain an asylum seeker or other immigrant. These changes would be a more sensible and humane use of limited resources. And allowing a court to rule on whether a person should be detained is consistent with U.S. commitments under international human rights treaties. Current detention policies and practices - despite the non-fact-based claims of Chairman Smith, and despite some real steps forward from ICE - remain inappropriate, ineffective to their limited purpose, and inconsistent with the better version of American values.

ICE Pledge on Immigration Detention Tested Today at Karnes Facility

2012-03-13T13:35:18-04:00

By Ruthie Epstein, Refugee Protection Program.

I've toured facilities all over the country, from rural Louisiana to rural Pennsylvania, from south Texas to Newark, New Jersey's "Chemical Corridor." They're surrounded by layers of high barbed wire fencing topped with concertina coils.

Fourteen times in the past two years, I've passed through security at these facilities. The people held inside wear color-coded jumpsuits. They live behind locked doors in thick cement-walled housing units, spending 23 hours a day in the same room where they eat, sleep, shower, and use the toilet without privacy. They receive an hour a day of outside recreation, and "outside" may be a room with an opening to the sky. Often, when family members visit, even children, they're only allowed to speak to detainees by phone, through a Plexiglas barrier.

These are not medium-security prisons; they're immigration detention centers, which hold people under the Department of Homeland Security's (DHS) "civil" detention authority.

None of the people in these facilities are being held under our criminal laws; DHS's stated purpose is limited: to ensure that they appear at court hearings and comply with any removal orders. "We're not a penal institution...," John Morton, Director of Immigration and Customs Enforcement (ICE), has said. "We're not incarcerating anyone."

That's probably news to the immigration detainees. Half are held in actual jails. Almost all of the rest live in jail-like facilities.

To ICE's credit, it pledged in 2009 to shift its detention system -- which contains 33,400 beds, holds almost 400,000 detainees annually, and costs taxpayers more than $2 billion each year -- away from a penal model toward one more appropriate for civil immigration detainees. More than two years later, on March 13th, ICE will open its first so-called model facility, in Karnes County, Texas, 60 miles outside San Antonio.

Today, I'm about to pass through security for the fifteenth time, in Karnes County, and I hope this tour will be different. I hope to see detainees wearing their own clothes, rather than uniforms. I hope they'll be able to access the outdoors all day. I hope that even though they are detained in a secure facility, they'll be able to walk from their housing unit to the law library to the cafeteria. I hope their toilets and showers will offer a modicum of privacy. I hope they'll be allowed to embrace family members who visit them.

These are not radical proposals. In fact, according to corrections professionals, normalized conditions -- ones that approximate as much as possible life on the outside -- can actually help ensure the safety of both detainees and officers. I hope ICE has heeded this insight in designing the new Karnes County facility.

But even if all these modest hopes are fulfilled, I know I'll still be disappointed by what our government has not yet done. The immigration and asylum cases at the Karnes facility will be heard via video. Imagine testifying in a deportation hearing that hinges on your credibility, from jail, with your attorney and interpreter at the other end of the line and a judge miles away. Overstretched nonprofit legal service providers in San Antonio and Austin, RAICES and American Gateways, have not received increases in funding or staff to help them travel to Karnes County to provide information and pro bono legal representation referrals to the 600 detainees.

Who's detained in ICE detention centers? Asylum seekers fleeing persecution, legal immigrants who overstayed their visas, recent border crossers, and lawful permanent residents -- green card holders --with a criminal record, often nonviolent, sometimes many years old. According to ICE, in 2009 just 11 percent of its detained population had a violent criminal history. In 2011, 45 percent had no criminal history at all. Many of those held at the Karnes County facility may not need to be detained at all. They're good candidates for alternatives to detention programs, which ICE says cost $8.88 per day per person -- $100 less than detention.

ICE should increase its investment in effective alternatives to detention. And Congress should reform laws to provide for an independent assessment of the need to detain an asylum seeker or other immigrant. These changes would be a more sensible use of limited resources. And allowing a court to rule on whether a person should be detained is consistent with American ideals as well as U.S. commitments under international human rights treaties.

ICE's 2009 reform commitment was very welcome. Now is not the time to scale back that vision. Karnes County, I hope, will provide a new model for more appropriate detention conditions -- a model that will mean little if it is not just a first step in transforming all facilities where ICE holds immigrants. But ICE and other U.S. government agencies also need to put forth new models for due process, legal access, and alternatives to detention. Only then will the promised transformation of the immigration detention system be realized.

Ruthie Epstein is a Researcher and Advocate with Human Rights First. She is a co-author of the organization's report "Jails and Jumpsuits: Transforming the U.S. Immigration Detention System -- A Two-Year Review."

Dear DHS: My Husband Is Not a Terrorist -- Can He Come Home?

2012-02-03T11:59:00-05:00

By: Julie Hysenaj

The Obama administration is considering exemptions for people who have been mislabeled "terrorists" under U.S. immigration laws. This is Julie's story.

Arben is from Kosovo. When I married him, he was applying for asylum in the United States. When he was told he had to leave the country, we had just bought a house. Because I'm a U.S. citizen, our attorney recommended that Arben leave the U.S. and apply for an immigrant visa, so he did.

That was nearly four and a half years ago.

At his final interview at the U.S. embassy in Macedonia, in November 2010, Arben was told his visa had been denied. The embassy wouldn't explain why. The denial notice referred to "section 212(a)(3)(B)." Neither of us knew what that was. It wasn't until I spoke to a lawyer in New York who had represented many Albanians that I understood the problem.

The State Department was saying Arben was a terrorist because for two months in the summer of 1998, he had been in the Kosovo Liberation Army (KLA), or the UCK as they call it there. I was shocked the U.S was treating my husband as a terrorist. The United States supported Kosovo's independence. I contacted the Kosovo embassy in Washington, and a rep told me that this was not possible, that the KLA was not listed as a terrorist organization. It's not. But that doesn't matter because the definition of an "undesignated" terrorist organization in the Immigration and Nationality Act (INA) is so broad it captures hundreds of organizations, including the KLA, that the U.S. doesn't consider "terrorist" in any other context.

Arben had joined the KLA as a matter of survival. Serbian forces were attacking Kosovar Albanian villages. After two months, Arben and other young men fled to Albania, where they stayed for the rest of the war. Arben had nothing to do with the KLA after that. We got a letter from the KLA War Veterans Organization confirming this. Arben's military and police record is clean. We provided proof of this to the U.S. embassy.

Arben explained all the facts of his situation, including his past membership in the KLA, in his immigration applications. He told the truth to the immigration authorities, and I feel he's being penalized because of his honesty.

Arben is not a threat to anyone. He's a hard-working, honest, caring, funny, dependable, law-abiding person, and I miss him terribly. I have been working three jobs to make mortgage payments and have been trying to save a little extra so that I can visit him once a year. But the economic situation has been so difficult I haven't been able to see him for two and a half years. I'm determined to keep our home, but it's hard to be in the house sometimes because I see him everywhere.

I don't know what else to do. I have followed up on Arben's case so often that the security guards at the immigration office in Dallas know my name, and so do the consular staff at the U.S. embassy in Macedonia. I have written to the heads of all the government agencies involved in his case, as well as both my Senators.

When Arben's visa was denied, a staffer at one office told me that my only options were to divorce Arben or move to Kosovo. I don't think I should have to do either of those things. I married Arben for better or for worse. I take that vow seriously, and I want to make my life with him.

I am a U.S. citizen. My family and I were resettled here as refugees from Czechoslovakia when I was a little girl and I grew up in Texas. My parents and brother are here. I don't speak Albanian. The situation in Arben's village in Kosovo is still not good: his house still has bullet holes in the ceiling, and there's still violence. He has a job and a family waiting for him here.

The Department of Homeland Security is considering an exemption that would allow people like Arben to be considered for visas. I'm praying it happens -- and fast -- so that my husband can come home.

On January 23^rd, Ms. Hysenaj shared her story at an event hosted by Human Rights First, World Relief, the Hebrew Immigrant Aid Society, and Akin Gump Straus Hauer & Feld LLP. Also on the panel was Barrett Duke, Vice President for Public Policy and Research, Southern Baptist Ethics and Religious Liberty Commission. Click here to read his remarks entitled, "The Trouble with TRIG."

Visit Human Rights First's website to learn more about the impact that the overly-broad definitions -- and successive administrations' expansive interpretations -- of "terrorism" and "terrorist" organization in U.S. immigration laws have had upon U.S. citizens, refugees, asylum seekers and their families.

Al-Nashiri Case Will Highlight All That Is Wrong With Military Commissions

2011-11-03T11:13:34-04:00

Next week, I'll be on the ground in Guantanamo as Abd al Rahim Hussayn Muhammad al-Nashiri will be arraigned before a U.S. military commission at Guantanamo Bay, Cuba for his alleged role in the USS Cole bombing, the USS The Sullivans attempted bombing, and the bombing of a French civilian oil tanker MV Limburg. The first Guantanamo detainee case to be initiated under the Obama administration's revamped version of the military commissions will yet again demonstrate that the military commissions are inherently flawed, and that terror suspects should be tried in federal courts.

Al-Nashiri is the first so-called high-value detainee to face the tribunal, and the first to face the death penalty, if convicted. He is accused of crimes that resulted in the deaths of 17 U.S. soldiers, one civilian, and the wounding of dozens more. And yet, he is being tried before an untested, make-it-up-as-you go system that has serious flaws with serious ramifications.

Trying the Saudi national before a military commission is unnecessarily risky because the case raises numerous legal questions about the tribunal's jurisdiction and its rules of evidence -- none of which would exist if he was tried in federal court -- for a case in which the stakes couldn't be higher.

In the al-Nashiri case, the military commission's jurisdiction will be challenged. Military commissions are only empowered to try war crimes committed during an armed conflict. But both the bombing of the USS Cole and the attempted bombing of the USS The Sullivans occurred in 2000 -- before 9/11, before the Authorization to Use Military Force (AUMF), and before the onset of an armed conflict with al Qaeda, the group with which al-Nashiri is alleged to be affiliated. Also, even though the attack of the MV Limburg occurred in 2002, the government will still need to show that an attack on a French-flagged civilian oil tanker beyond the zone of hostilities between the U.S. and al Qaeda or the Taliban was part of an armed conflict.

If the military commission decides nonetheless that the Cole and Sullivans attacks occurred in war, that merely creates a solid defense for al Nashiri. His conduct is simply not a war crime because navy vessels and their crews are legitimate military targets in war.

Additionally, not only are many of the crimes al-Nashiri is charged with -- terrorism and conspiracy -- not considered war crimes under international law, but they also have been created to apply retroactively in the military commissions. Prosecuting people for conduct that was not a crime when they committed the act violates the ex post facto prohibition enshrined in the U.S. Constitution and the international legal principle of legality.

Trying al-Nashiri before a federal civilian court, however, would raise none of these challenges. In fact, other USS Cole and USS The Sullivans conspirators have already been indicted in federal court. Federal courts have clear jurisdiction for terrorism cases, can try war crimes and non-war crimes, and have years of experience and precedent to rely on. Federal courts have convicted over 400 individuals on terrorism-related charges since 9/11, compared to the six convictions handed down by the military commissions, mostly in plea bargains resulting in short sentences.

Finally, we know al-Nashiri was held at a CIA black site and tortured with waterboarding. His life was threatened. He had a power drill put to his head and his interrogators threatened sexual assault against his mother. But this should not be a reason to try him in a military commission rather than a federal court since both civilian court and military commissions prohibit admitting evidence obtained through torture or coercion.

The trial of al-Nashiri before a military commission will result in years of legal challenges and appeals that will not only taint the legitimacy of any outcome, but will further delay the swift justice that the victims' families deserve.

This post was authored by Melina Milazzo, Pennoyer Fellow, Law and Security Program

The ABCs of Asylum, Post-DSK

2011-07-08T17:42:53-04:00

As revelations and speculations concerning the sexual assault case against Dominique Strauss-Kahn, the former head of the International Monetary Fund, continue to play out in the media, some attention has turned to the U.S. asylum system because of allegedly dishonest claims his accuser made in her application for asylum years ago. What has been particularly disappointing about the reporting on the U.S. asylum system I've seen, thus far, is how it has failed to recognize how rigorous, invasive and difficult the asylum process is for individuals who file claims for protection in the United States and, perhaps more importantly in this context, how seriously the U.S. asylum system takes fraud and credibility. There has also been little discussion of what asylum is, who it protects, and why it is so important.

While we don't have the facts to comment on the legitimacy or illegitimacy of the asylum claim of Dominique Strauss-Kahn's accuser, Human Rights First offers a brief overview of U.S. asylum law and process with an explanation of some of the many safeguards in place to prevent abuse of the system.

Who are refugees?

Refugees are often survivors of unimaginable atrocities. Many have had family members killed in conflict or been separated from their parents or children due to violence or chaos. They have been arrested, jailed, beaten, raped, tortured, threatened with death, or otherwise persecuted because of their political or religious beliefs, or their race, ethnicity, or other fundamental aspects of their identity. Many fled war, ethnic or sectarian conflict, genocide, or other persecution.

Refugees come from all walks of life. They could be journalists, teachers, preachers, human rights advocates, farmers, parents, or political dissidents. Their list of home countries reflects the arc of recent world history and conflict -- Laos, Afghanistan, the former Yugoslavia, the former Soviet Union, Ukraine, Vietnam, Cuba, Somalia, Sudan, Liberia, Russia, Burma, Bhutan, Iran, and Iraq -- as well as the pernicious presence of persecution in many other places.

For World Refugee Day 2011, MSNBC profiled the stories of several refugees around the world. The story, "From Congo to NY" featured a university professor who, after suffering torture in the Democratic Republic of Congo, sought and won asylum in the United States with the legal assistance of Human Rights First.

Why do some refugees seek asylum protection in the United States?

The United States has a long and proud history of providing refuge to victims of religious, political, ethnic, and other forms of persecution. This tradition reflects a core component of this country's identity as a nation committed to freedom and respect for human dignity.

According to the U.N. High Commissioner for Refugees (UNHCR), of the estimated 15.4 million refugees worldwide, 80% are hosted by other war-torn, conflict-ridden and/or developing countries.[1]

In 2009, 923,400 individual applications for asylum or refugee status were submitted to governments or UNHCR offices in 161 countries or territories.[2] 47,900 of those claims - the equivalent of 5% - were filed in the United States.[3] According to data from the U.S. Departments of Homeland Security and Department of Justice 21,113 individuals were granted asylum in Fiscal Year 2010.[4]

Watch a video from Human Rights First on the history of the Refugee Act of 1980 and the U.S. asylum system.

How does an individual apply for asylum in the United States?

See the flow chart, "How Refugees Get to the U.S."

Applicants must file for asylum with either the U.S. Citizenship and Immigration Service (USCIS) Asylum Division or -- if facing deportation -- before an Immigration Judge. The process requires applicants to provide detailed information regarding their past activities, associations, experiences of persecution, and current fear of future persecution. They must also provide information on conditions in their home country to support the accuracy of their claim. This information must be consistent with an applicant's account of events and objectively support his/her fear of return.

An asylum applicant will be carefully questioned by either the USCIS Asylum Officer or - if before an Immigration Judge -- challenged by the Judge and/or cross examined by the attorney from the government representing U.S. Immigration and Customs Enforcement (ICE).

An asylum applicant does not enjoy any presumption of credibility. Under the law an applicant will be denied if the adjudicator does not find the claim truthful. Any falsehoods or inconsistencies can lead to an adverse credibility finding.[5]

The burden of proof is on the applicant to establish that s/he meets the legal definition of refugee in the Immigration and Nationality Act (INA).[6] Adjudicators often require evidence to corroborate the applicant's testimony, if s/he is reasonably able to obtain it. The adjudicator then assesses the credibility of applicant's testimony, weighing it against any evidence of record.

What is the legal definition of a "refugee"?

To be eligible for asylum in the United States, the applicant must demonstrate that s/he is a "refugee" as defined by INA §101(a)(42), which includes several elements, each of which has been defined in greater detail through regulations and case law:

outside of country of nationality or, for those without a nationality, outside country last habitually resided;

unable or unwilling to return to that country and unable or unwilling to avail self of protection of that country;

because of persecution or a well-founded fear of persecution;

on account of race, religion, nationality, membership in a particular social group, or political opinion.

Who is barred and/or excluded from asylum protection in the United States, even if s/he otherwise qualifies as a "refugee" under INA §101(a)(42)?[7]

Applicants who have engaged in the persecution of others;

Applicants who have been convicted of a particularly serious crime and constitute a danger to the community of the United States or if there are serious reasons to believe they committed, a serious nonpolitical crime outside the United States;

Applicants for whom there are reasonable grounds to regard as a danger to the security of the United States;

Applicants who have engaged in terrorist activity;

Applicants who have been "firmly resettled" in another country prior to arriving in the United States; and

Applicants who failed to file their applications within one year of arrival, absent changed or extraordinary circumstances.

What mechanisms are in place to prevent abuse of the asylum system.

Immigration Judges, ICE trial attorneys, and USCIS Asylum Officers receive extensive and on-going training on fraud detection and credibility determinations;

To ensure appropriate consequences for making false statements, asylum applications must be signed under penalty of perjury by both the asylum applicant and the individual preparing the application;

Any fraudulent asylum applicants are permanently barred from receiving any immigration benefit, meaning that they would never be able to work legally in the United States or receive permanent lawful resident status here;

An asylum seeker's identity must be checked in a series of Department of Homeland Security and other federal databases. These checks help identify fraudulent cases as well as any individual who might present a security risk;

Asylum officers and immigration judges are not authorized to grant asylum until the applicant's fingerprints have been run through the FBI fingerprint database.

Asylum applicants' names are checked against the FBI name database;

U.S. Citizenship and Immigration Services has an Office of Fraud Detection and National Security that aids in identifying fraudulent asylum claims, and asylum officers may also refer suspected fraudulent applications to U.S. Immigration and Customs Enforcement for criminal investigation and prosecution;

Documents provided in support of asylum claims are often sent to the Department of Homeland Security's Forensic Document Laboratory where technicians analyze the documents' authenticity and, in the case of official documents, compare them to the lab's library of foreign travel and identity documents; and

Individuals who file fraudulent claims -- as well as preparers and attorneys -- can be investigated and criminally prosecuted.

Annie Sovcik is the Advocacy Counsel with the Refugee Protection Program at Human Rights First. For over 30 years, Human Rights First has helped individual refugees win asylum in the United States through our pro bono asylum legal representation program. Human Rights First and its volunteer lawyers have helped victims of political, religious, and other persecution from Burma, China, Colombia, Congo (DRC), Iraq, Zimbabwe, and many other countries gain asylum and protection from persecution in this country.

[1] "World Refugee Day: UNHCR Report Finds 80% of Refugees in Developing Countries," June 20, 2011, available at http://www.unhcr.org/4dfb66ef9.html.

[2] UNHCR Statistical Yearbook 2009, Chapter IV: Asylum and Refugee Status Determinations, available at http://www.unhcr.org/4ce531e09.html.

[3] Id.

[4] U.S. Department of Homeland Security, "Annual Flow Report of Refugees and Asylees: FY 2010," available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_rfa_fr_2010.pdf.

[5] INA §208(b)(2)(B)(iii).

[6] INA §208(b)(2)(B)(i).

[7] INA §208(a)(2)(B) and INA §208(b)(2)(A). As with the elements of the refugee definition, the bars to asylum have been defined in greater detail through regulations and case law.

Senator McConnell's Guantanamo Rhetoric Needs a Reality Check

2011-06-30T11:50:32-04:00

Adam Jacobson
Program Assistant, Law and Security

For the past two weeks, Senator Mitch McConnell (R-KY) has waged a campaign of fear and inaccuracy in an attempt to discredit our nation's federal courts and their ability to try terrorism suspects. He would rather have their trials in the flawed military commissions system at Guantanamo Bay, and doesn't mind stooping to fearmongering to make his point.

The case which has rankled Senator McConnell is that of Ramadan Alwan and Mohanad Shareef Hammadi, two Iraqis who allegedly attacked American troops in Iraq and, after making their way to the U.S., allegedly sent weapons and money to al Qaeda in Iraq. They were arrested in May, following a two-year FBI investigation.

Senator McConnell's most recent op-ed, titled "Terrorists Belong in Guantanamo, Not Bowling Green" starts with the ominous threat,

"A few weeks ago, it would have been safe to say not a single foreign terrorist in the world could find Bowling Green, Kentucky, on a map. But after the ill-advised decision of the Obama Administration to try two foreign fighters in a civilian federal court in Bowling Green, they probably know where it is now."

Before Kentuckians start panicking, let's have a reality check: Federal courts have convicted over 400 individuals of terrorism-related crimes since 9/11 in 55 federal districts across the country. And as Attorney General Eric Holder recently pointed out, "Not one of the judicial districts involved has suffered retaliatory attacks."

Senator McConnell trots out all the tired canards to push for military commissions trials. He says that Alwan and Hammadi don't deserve "all the rights and privileges of American citizens" they would receive by trying them in federal court. Senator McConnell might want to take another look at the Constitution, which affords rights to all people - whether they are citizens or not - that reside within the United States.

With a backhanded acknowledgement of the hard-working law enforcement and prosecutors, Senator McConnell admits that it would be possible to try the men in federal court. But, he adds, "After Congress created a $200-million, state-of-the-art facility in Guantanamo Bay precisely to handle foreign fighters like them, why would we want to?"

Imagine you were going in for a routine operation, and the surgeon said, "Well, we could do this the way we've always done it - the reliable, time-tested way, the way everyone else has always had it done - OR we could use a fancy new method we're not sure really works." Most (if not all) of us would prefer option one. With a proven track record, federal courts have the experience to try terrorism-related cases, while military commissions are the real unnecessary, chancy option. Compared to the 400 individuals convicted of terrorism-related crimes in federal courts since 9/11, military commissions have convicted only six in the same time.

Senator McConnell worries that classified information would be exposed in a federal court trial. But again, his fear is groundless, as federal courts have mechanisms in place to deal with this exact issue. Human Rights First's report "In Pursuit of Justice" found that in no terrorism case has sensitive information been divulged when the government has used these mechanisms. The military commissions system's rules for dealing with classified information are even modeled after the rules used in federal courts.

"And what happens if these detainees are acquitted, as nearly happened with Ahmed Ghailani?" Senator McConnell wonders. The key word here is "nearly." Ghailani, the first Guantanamo detainee to be tried in federal court, for his role in the attacks on American embassies in Kenya and Tanzania, was convicted of conspiracy and sentenced to life in prison. The trial was held in Lower Manhattan, and went off without a hitch, with no courtroom incidents, no attempted jailbreaks, not even any street closures.

Senator McConnell also cites the case of Zacarias Moussaoui, whose federal court trial in Alexandria, Virginia tied up the area and made it inconvenient for residents. Moussaoui, the so-called "20^th 9/11 hijacker" was convicted and was sentenced to life in federal prison for his role in planning the 9/11 attacks. Lieutenant General Ed Soyster lives in an apartment building that overlooks the federal courthouse in Alexandria and told us that he watched the security around the trial. He said that traffic was "tied up" for a full five minutes.

These trials and sentences in federal courts represent true justice. What isn't justice is holding criminals without a trial, as Senator McConnell, a lawyer himself, should know. Instead, he writes:

"Now, if a Guantanamo detainee is acquitted of a crime, the military can still detain him there under the law of war. Even if the military does not have evidence to hold him indefinitely, a federal court has ruled that foreign nationals at Guantanamo do not have the right to be released into our country. If a detainee is acquitted in a civilian court, however, the government's ability to continue to detain them indefinitely is far less certain."

The idea of holding people indefinitely who have been tried and acquitted flies in the face of our country's most basic values. In a country of laws, if you are found "not guilty," you are not guilty. Otherwise, why even have a trial? Senator McConnell seems to think that the presumption of innocence should be ignored whenever convenient.

Without going into detail about the conclusion of his op-ed (he implies that Attorney General Holder hates the troops and that President Obama doesn't respect freedom of speech), it's clear that Senator McConnell is ignoring the facts and using fear to score political points. The residents of Bowling Green should ignore his fearmongering and trust that our federal courts can handle these and any other terrorism-related cases.

Learn more about our work on prosecuting terrorism, and see what else we've been doing to fight fearmongering.

Political Interference With Torture Investigations Is Un-American

2011-06-16T16:52:51-04:00

By Melina Milazzo
Pennoyer Fellow, Law and Security Program

Almost a decade after reports of death and abuse of detainees in U.S. custody at Abu Ghraib and other sites came to light, the prosecutor appointed to look into some of these serious, criminal allegations is reportedly moving forward -- taking a long-awaited, but critical step towards rebuilding America's moral standing. Upholding the rule of law, however, will require an independent, thorough investigation without political interference.

John Durham, the prosecutor tasked with reviewing whether CIA officials committed federal crimes against detainees held in U.S. custody overseas, has reportedly subpoenaed a federal grand jury to investigate possible war crimes and crimes of torture against those agents. Among the cases is that of Manadel al-Jamadi, whose death became public during the Abu Ghraib prisoner-abuse scandal when photographs depicting U.S. prison guards giving the thumbs-up over his iced corpse were released.

Investigators found that while in U.S. custody al-Jamadi was hooded with a sandbag, with his arms handcuffed behind his back and shackled to a window about five feet from the floor making it impossible for him to kneel or sit without hanging from his arms in pain. U.S. military autopsy found that the cause of death was "Blunt Force Injuries Complicated by Compromised Respiration." His death was ruled a homicide. Despite the CIA's Inspector General referring this case to the Justice Department, no prosecution followed.

Durham's investigation may now change this -- finally bringing some accountability to the virtual impunity that has long plagued this dark U.S. chapter. The United States must reckon with the past policies and practices that subverted American values and principles and badly damaged our moral leadership. Accountability not only provides justice for the individual, but it also ensures past mistakes are not repeated.

Critics, however, have already vociferously attacked Durham's investigation as politically-motivated. Thirty-four Republican Senators reportedly sent a letter to President Obama urging him to end the Justice Department's "politically motivated investigations" of CIA interrogators. Former Republican Senator Rick Santorum, in launching his presidential bid, called Durham's review a "political prosecution" and demanded that his investigation be terminated.

But the only people playing politics here are those who are inappropriately meddling with criminal investigations. The Justice Department is charged with enforcing and upholding our laws. It should always investigate allegations of criminal misconduct with impartiality. In order to do so, prosecutors like Durham must be able to conduct a full, fair and objective review of the facts without political interference. Political interference may not only taint the legitimacy of an investigation's outcome, but it also delays a resolution. The U.S. must deal with its past in order to move forward, and this is something all sides of the political spectrum have an interest in.

To be clear, there are many Republicans who have opposed torture and have stood firmly to uphold the rule of law. Remember, it was a Republican President Ronald Reagan who signed the UN Convention Against Torture that requires signing states to investigate and prosecute for crimes of torture. It also requires that States enact domestic laws that criminalize torture, which Congress did in 1994 in passing the Federal Anti-Torture statute with bi-partisan support. Additionally, it was a Republican member of Congress, Rep. Walter Jones (R-NC) that sponsored the War Crimes Act, which passed a Republican-controlled Congress by unanimous consent.

Ironically, these are all the same laws that Durham is trying to uphold and enforce and which some Republicans are attempting to thwart. But those Republicans should be wary of interfering with a criminal investigation. Investigating and providing accountability for past abuses provides justice for past harms and ensures past mistakes are not repeated. Upholding the rule of law is a pillar of American democracy that is not a partisan issue. It's an American principle and value that is too sacred to play the game of politics.

U.S. Government Undermines Abu Ghraib Torture Victims' Right to Remedy

2011-06-13T10:14:08-04:00

Melina Milazzo
Pennoyer Fellow, Law and Security

Once again, the Obama administration shirked its legal and moral responsibility to ensure torture victims are provided an enforceable remedy when it advised the U.S. Supreme Court not to hear a case brought by Iraqi detainees tortured by private military contractors at Abu Ghraib.

The case, Saleh, et al. v. Titan Corporation, et al., is a civil suit brought by 250 Iraqi detainees for torture by U.S. private contractors CACI and Titan (now L-3 Services). The two companies were retained to provide interrogation and interpretation services at Abu Ghraib, the infamous Iraqi prison that the Department of Defense (DoD) reported was the site of "numerous incidents of sadistic, blatant, and wanton criminal abuses" of Iraqi prisoners committed by Americans under the authority of Americans. Army investigations implicated private contractors in the torture and abuse of detainees held there. While 11 soldiers were convicted on detainee abuse charges, no contractor was ever criminally charged.

In September 2009, the D.C. Circuit Court of Appeals dismissed the civil case on the ground that contractors involved in combat activities on a battlefield should be protected from lawsuits. The victims appealed to the U.S. Supreme Court, and Human Rights First submitted an amicus brief arguing that the decision by the D.C. Circuit to immunize the criminal conduct of private military contractors is incompatible with the United States' international legal obligations, including its obligation under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to provide "enforceable" or "effective" remedies to victims for acts of torture and serious abuse.

Before deciding whether or not to hear the case, the Supreme Court asked the U.S. government, which is not a party to the suit, its opinion or interest. Human Rights First sent a letter to the Acting Solicitor General urging the government to advise the Court to hear the case and reverse the decision that denies victims a remedy.

The Acting Solicitor General, however, did the exact opposite.

Eight months after the Supreme Court requested the government's opinion, the U.S. government submitted a brief telling the Supreme Court it should deny cert and leave the appellate court's dismissal intact. While acknowledging the appellate court ruling's shortcomings - that contractors cannot be "fully integrated" into combat and that torture by private contractors is a war crime actionable under U.S. law - the U.S. government largely aligned itself with the appellate court's majority position.

The government's brief asserts that it has a "variety of tools at its disposal" to punish people who torture and compensate victims, but it fails to mention not only that it has failed to enforce the applicable laws, but has also thwarted every effort by victims to seek legal redress. It also goes to great lengths to describe the number of steps the U.S. government has taken to improve contractor oversight, including barring contractors from performing interrogations. But improvement does not amount to accountability and it certainly does not provide victims an enforceable right to remedy. Indeed, the government's brief makes no mention of its obligations to provide torture victims an enforceable remedy under the ICCPR and CAT.

But even apart from its legal obligations, there are good reasons why the United States should as a matter of policy afford victims of torture a compensatory remedy. First, civil actions are a beneficial addition to criminal actions, which may alone not sufficiently create accountability for human rights abuses due to lack of will to prosecute. Second, monetary compensation provides victims of torture the necessary funds for treatment and rehabilitation. Third, the absence of an enforceable right to redress for serious crimes against civilians can only alienate local populations, which undermines U.S. counterinsurgency efforts.

The United States recognized that providing civil remedies for contractor abuses advances U.S. interests when it became a signatory to the Montreux Document on the Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, which recommends that States "provide for non-criminal accountability mechanisms for improper and unlawful conduct" of private contractors including, civil liability.

Moreover, the military has expressed its preference to rely on the existing structure of tort liability as a tool to deter contractor misconduct.

It's unclear whether the Supreme Court will follow the U.S. government's recommendation to not hear the case, effectively foreclosing any possibility that Abu Ghraib torture abuses will be remedied. But what is clear, is that the U.S. government is not serious about meeting its international legal obligations to ensure torture victims have such a right.

Stopping Enablers of Mass Atrocities in Sudan

2011-05-27T11:43:21-04:00

By Winny Chen

U.S. Special Envoy to Sudan Princeton Lyman will head to the Sudan this week in an effort to stem renewed fighting between northern and southern forces. As the United States works with international partners to prevent the current crisis from escalating into another full-fledged civil war, it would do well to also focus its efforts on third-party entities that have enabled years of violence against civilians in Sudan.

China, one of several enablers, has for decades served as a leading proponent of Khartoum. It has provided the government of Sudan political aegis at the United Nations, bountiful investment and economic aid, and a steady supply of arms that continues to fuel deadly campaigns in Darfur and beyond. In return, China receives more than 60% of Sudan's oil output.

In Abyei, the disputed border town that both North and South Sudan claim and are now fighting over, China has obvious economic interests. The China National Petroleum Company (CNPC), a state-owned entity, leads an oil consortium with investments in Abyei's Defra oil field. With this and other oil investments put at risk by recent clashes between North and South, China has called for both sides to "adhere to peace and [to] restrain themselves..."

But if China is genuinely interested in "regional peace and security," as it asserts, it should immediately suspend its financial, material, and practical support to Khartoum, which continues to defy UN Security Council calls to withdraw its troops from Abyei. And China must, as Sudan's largest trading partner in the world and a prime supplier of military materiel, leverage its economic and political clout to put an end to the recent clashes.

However, if history is any indication, the likelihood that that will happen without sustained international pressure is slim, which is why the United States should focus its attention on putting an end to China's enabling role in Sudan in addition to pressuring the leaderships in Khartoum and Juba.

Halting an escalation of current tensions and preventing mass atrocities from happening in Sudan again will require cutting off the goods and services that combatants need to perpetrate further violence. In Abyei and in other areas where the threat of atrocities is high, targeting enablers such as China and cutting off their supply of goods and services to perpetrators could help prevent mass violence from occurring.

Addressing enablers can happen only through well-coordinated U.S. action, but the current absence of a standing interagency process in the U.S. government to prevent atrocities -- in part by taking into account all actors, not just the perpetrators -- means that policymakers have to scramble for available responses each time a new threat of mass atrocities arises. This wastes valuable time and diminishes the range of effective options.

Identifying, targeting, and successfully neutralizing enablers requires building a standing interagency process. Because addressing enablers needs a wide range of action -- analysis of intelligence on enablers, strong diplomacy, and options from relevant agencies such as the Treasury, Commerce, and Defense Departments, for example -- it will need coordination and strong leadership. An interagency process can provide both and could potentially cut down on the valuable time needed to marshal an effective response to ongoing violence and end the killing of civilians.

Winny Chen is Senior Associate in the Crimes Against Humanity Program at Human Rights First.

Time is Now to Clarify U.S. Criminal Jurisdiction over Contractors

2011-05-24T13:54:03-04:00

By Melina Milazzo
Pennoyer Fellow, Law and Security Program

Recent news that Blackwater founder and bad boy, Erik Prince, is creating an American-led mercenary army in the United Arab Emirates is a bleak reminder of how Blackwater became the poster child for the unaccountable, gun-slinging American contractor of the not so distant past.

Indeed, Blackwater (now called Xe) has been implicated in a series of high-profile killings abroad including of unarmed civilians in Nisoor Square, Iraq; of a member of Iraqi Vice President's security detail; and of Afghan civilians. But Blackwater is not alone.

Contractors have been accused of a broad range of abuses across theaters and in multiple capacities, but there has been almost no accountability. Tomorrow, the Senate Judiciary Committee will be holding a hearing titled, "Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad" addressing the need to clarify criminal jurisdiction over U.S. contractors.

Currently, U.S. federal courts have criminal jurisdiction over contractors for a host of crimes committed abroad - including war crimes, torture, and certain felonies committed within U.S. maritime and diplomatic areas and military bases. They also have jurisdiction for serious crimes committed abroad by Defense contractors and contractors "supporting the mission of the Department of Defense." But former government officials say there is a jurisdictional gap because U.S. law does not reach non-DoD contractors, even in war zones.

This ambiguity must be clarified before the transition from military to civilian control occurs in Iraq at the end of this year. The State Department reports it will increase its overall contractor force to 17,000 and more than double its use of private security contractors to 7,000 by the time the military leaves Iraq. Private contractors will be performing critical security-related functions once performed by the military, including convoy security, recovering killed and wounded personnel, recovering damaged vehicles and downed aircraft, clearing travel routes, and explosive-ordnance disposal.

The independent Commission on Wartime Contracting in Iraq and Afghanistan recently called on Congress to "clarify U.S. criminal jurisdiction over civilian-agency contractors operating overseas."

Congress has made several attempts to plug the jurisdictional hole, including legislation introduced by then-Senator Barack Obama. In the last Congress, Senator Patrick Leahy and Representative David Price introduced the Civilian Extraterritorial Jurisdiction Act (CEJA) - and are expected to reintroduce it sometime after tomorrow's hearing - to clarify and expand U.S. criminal jurisdiction over civilian contractors for serious crimes committed abroad.

The United States' reliance on contractors abroad, including in war zones, is at an unprecedented level in both size and scope. In Iraq and Afghanistan, contractors equal, and at times have outnumbered, U.S. troops there. The most recent quarterly census shows approximately 155,000 Defense contractors compared to about 159,000 U.S. troops. And this does not even take into account the number of contractors working for the State Department, United States Agency for International Development (USAID) or any other U.S. agency operating overseas, because the U.S. does not effectively track the total number of contractors it fields abroad.

Given their huge numbers, it should come as no surprise that there's been a significant increase in serious incidents involving contractors. The United States has both a responsibility and a national security interest to ensure that contractors who perform military and security services in its name will be held accountable for serious abuses - just as it does for our men and women in uniform.

To be sure, the vast majority of U.S. contractors do their jobs conscientiously and courageously - often putting their lives at risk in places like Iraq and Afghanistan. Indeed, contractor deaths now exceed those of U.S. troops in Iraq and Afghanistan. Many in the private contractor industry recognize that the criminal actions of some bad contractors stain the reputation of the industry as a whole. Industry leaders who painstakingly select, vet, and train private security contractors therefore do not want to be lumped with the negligent and criminal acts of others. Moreover, U.S. contractors who are accused of crimes in weak or failed states with unreliable legal institutions may well prefer to have claims against them heard in a U.S. federal court than in many of the countries they operate. For these reasons, industry leaders, such as Triple Canopy, support fair measures to hold contractors accountable for serious crimes committed abroad like CEJA.

It's been a little over 3 ½ years since the Blackwater Nisoor Square massacre created a political firestorm. While the United States has taken some positive steps concerning private contractors, serious oversight and accountability gaps persist.

Tomorrow, the Senate Judiciary Committee will take another step towards clarifying U.S. criminal jurisdiction over U.S. contractors fielded abroad. Our U.S. troops are held to account for their actions under the Uniform Code of Military Justice. Private contractors that work in support of DoD's mission are held to account under the Military Extraterritorial Jurisdiction Act. But, there is an open question whether civilian private contractors not contracted by DoD or working in support of DoD's mission can be held to account under any jurisdictional statute. Congress and the President should work together to immediately address this by re-introducing and passing CEJA in order to protect U.S. interests and the contractors tasked with advancing them.

Facebook Faces China Censorship Dilemma

2011-04-21T11:26:19-04:00

By Meg Roggensack; Senior Advisory, Business and Human Rights

With President Obama fresh off a visit to Facebook Headquarters in Silicon Valley for a town hall meeting on the role of social media in politics, the social networking company is considering investments in China, a country whose government wants social media out of politics.

According to news reports, Facebook is evaluating possible arrangements that would allow the company access to China's estimated 450 million internet users. For example, Bloomberg recently reported that a deal was in the works for a joint venture with the Chinese web services company Baidu, although the current status of that deal is uncertain. As Facebook joins a long list of U.S. ICT companies in or looking to enter China, its move raises fresh questions about the ICT sector's responsibility for facilitating China's restrictive Internet policies.

China employs one of the largest and most sophisticated Internet censorship and surveillance systems in the world. Last November, the U.S. China Economic Security Review Commission reported on developments in 2010 and found that the private sector in China plays a key role in Internet control and management. Particularly singled out for comment was Baidu, the most popular site in China and Facebook's prospective partner in this arrangement. According to Congressman Chris Smith, "Baidu is now very much a part" of China's "comprehensive oppression" on the Internet.

Additionally of concern to American policymakers should be the responsibility of U.S. actors in Baidu's cooperation with China's control of the Internet. The commission report highlighted that it was American investors who provided the initial funding for Baidu and that U.S. based investment firms still own 31.4% of the company, second only to the 31.9% owned by co-founder and CEO Lǐ Yànhóng.

As head of China's largest internet firm, one would hope that Lǐ has some maneuvering room to engage with the Chinese government on issues of censorship and privacy, but that is not how he sees it. In his view, his options in dealing with censorship demands are very limited and accepting these policies is simply the cost of doing business in this lucrative market. "I'm Chinese. I don't have any other choices," he remarked at an industry forum last year. Industry reports note that Lǐ considered, but rejected, a Google-like solution for fear that hosting search results from Hong Kong would brand him an enemy of the state.

At the same time, Lǐ has argued that foreign companies have greater latitude, given their value as "strategic partners." Lǐ has acknowledged that complying with China's policies creates unwanted costs and damages his company's relationships with its users. Since Lǐ doesn't believe he is in a position to challenge censorship demands, it is unfortunate that Baidu's U.S. investors have not used their latitude to question China's repressive policies.

Facebook's potential partnership with Baidu to enter the Chinese market raises questions about the extent to which market leaders -- whether Chinese or foreign -- can and should use that position to promote less restrictive policies and to take affirmative steps to protect their users from the consequences of existing policies. We're assuming that Facebook has carefully considered the risks that Baidu faces, as well as its own potential reputational risk from partnering with a company so closely identified with China's repressive internet policies. Even so, any partnership with Baidu would provide a new opportunity to revisit Baidu's position on engagement with the Chinese government. Together, these two market leaders are in a strong position to promote policies that address ongoing user concerns.

At minimum, before Facebook moves forward to finalize this potential partnership, we hope that Facebook will:

Have policies and procedures in place to identify and respond to government demands -- for user information or to limit its services -- in ways that protect its users' freedom of expression and privacy.

Hire personnel with expertise in international human rights guarantees and familiarity with conditions faced by Chinese civil society activists and organizations, and ensure that they are empowered to make decisions about compliance with Chinese government requests.

Take steps to protect user privacy, including making https the default setting, offering users training on privacy settings, and establishing a "hotline" and other tools to enable users to raise ongoing concerns.

To date, Google, Godaddy, and a few others have been the only ICT companies to challenge China's restrictive policies. We hope Facebook follows their lead, and at a minimum, takes the steps we have identified.

The Truth Behind U.S. Interrogation Policy

2011-04-19T12:32:27-04:00

by Joe Navarro

Has the CIA been displaced from its rightful role as global terrorist jailer and interrogator, a shift that may make the United States less safe as a result? Those reading Ken Dilanian's recent Los Angeles Times story "CIA has slashed its terrorism interrogation role" may have that impression from the sources he quotes - both Republicans and unnamed Obama Administration officials. As someone who spent nearly three decades as an FBI interrogator, I am compelled to set the record straight.

The CIA's role in countering terrorism has never traditionally included detention and interrogation. Instead, the CIA has typically focused on what it's good at: clandestine intelligence gathering.

It was only after 9/11 that the CIA began detaining and interrogating terrorism suspects. At that time, the CIA had literally no detention and interrogation experience, so it hired contractors to reverse-engineer interrogation methods from the military's Survival, Evasion, Resistance, and Escape (SERE) program-a program designed in part to prepare American soldiers to resist torture and other abusive interrogation methods if captured. As a result, the CIA came up with an interrogation program that relied heavily on unlawful, secret detention at "black sites," where terrorism suspects were tortured or subjected to cruel, inhuman, and degrading treatment.

Moral considerations aside, nearly 10 years after 9/11 we have no reason to believe that these CIA interrogations yielded any additional actionable intelligence that kept us safer. To the contrary, interrogation experts report that abusive interrogation methods either lead terrorism suspects to say whatever is necessary to reduce or eliminate their pain and suffering, or they ultimately refused to cooperate with interrogators. Torture as I have often said, guarantees pain but never the truth.

As a professional interrogator, I know that successful interrogations rest on building rapport with detainees and convincing them that cooperation is in their best interests. This process works well when done within the criminal justice system, where terrorism suspects have provided substantial amounts of actionable intelligence information in return for reduced sentences or other forms of favorable treatment. This process has yielded - among other actionable intelligence information - telephone numbers and email addresses used by al Qaeda and its affiliates, al Qaeda security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests.

I was somewhat surprised to read the quotes from Republican lawmakers lamenting that high-value terrorism suspects like Umar Patek - who allegedly coordinated the 2002 bombings in Bali, Indonesia and is thought to have substantial intelligence on al Qaeda - could be turned over to foreign authorities. Members of Congress should know that worries about terrorism suspects ending up in the hands of foreign governments are overblown. The FBI, along with other departments and agencies within the United States government, has a long history of working with foreign security officials to interrogate and facilitate the transfer of terrorism suspects to the United States for prosecution, when appropriate.

In the case of Patek, he will rightfully be transferred to Indonesia, where he allegedly committed his horrific acts of terrorism. He will face questioning and ultimately be brought to justice in a trial conducted by Indonesian authorities. In return, Indonesian authorities are expected to provide to the CIA intelligence information from his interrogations, which the United States still has the opportunity to help shape. The FBI has relationships with many countries and is prepared to do additional interviews which may be of lead, intelligence, or probative value.

His case and others like it in which international terrorists were transferred to foreign authorities do not make the case for a return to the CIA interrogation program or any other worldwide detention regime. Other countries are also rightfully worried about the threat of international terrorism. The United States should work with these foreign governments to secure and provide intelligence information to further disrupt al Qaeda and its affiliates.

The bottom line is that a sensible and sustainable counterterrorism policy requires that the world share the burdens and benefits of combating terrorism. This can only be done by leaving the failed post-9/11 detention and interrogation policies behind us once and for all and moving towards counterterrorism policies that operate within the rule of law.

The FBI has a long history of conducting interrogations that stand up to judicial scrutiny. 9/11 did not change human brains, interrogation is still about getting inside the human head and exacting cooperation, not just compliance. Proven methods of getting information through rapport building will guarantee success without having to debase ourselves by relying on methods from the Gestapo playbook.

Joe Navarro spent 25 years working as an FBI special agent in the area of counterintelligence and behavioral assessment and is a founding member of the National Security Division's Behavioral Analysis Program. Navarro authored the book that the FBI uses to train advanced interrogators. He is author of a number of books about interviewing techniques and practice including Advanced Interviewing, which he co-wrote with Jack Schafer, and Hunting Terrorists: A Look at the Psycopathology of Terror.