Tracing dissidents and potential terrorists

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Recalling the privilege of the executive power to safeguard information deemed sensitive to national security, the White House still prevents the courts from considering the issue of legitimacy of the comprehensive electronic surveillance program, sanctioned by the G. Bush administration. Soon after terrorist attacks of September 11, 2001, G. Bush signed a secret executive order authorizing the U.S. National Security Agency (NSA) to eavesdrop on telephone calls without court order, as well as to inspect electronic and phone messages coming from foreign citizens suspected to have ties with terrorist organizations, even if the second counterpart stays within the USA.

The current U.S. legislation essentially allows the intelligence community to perlustrate totally all electronic communications of foreigners and Americans without court order. It also obliges telecommunications companies to assist the government in collecting and safeguarding intelligence information on targets in foreign lands, providing to them immunity from lawsuits arising from their current and potential cooperation with federal law enforcement agencies within the framework of the Terrorist Surveillance Program.

In 2011 the U.S. law enforcement agencies made more than 1.3 million requests to release information on telephone calls of cellular subscribers.

At present the U.S. Congress is considering the Cyber Intelligence Sharing and Protection Act (CISPA) that provides for amending the National Security Act of 1947 to improve information sharing between government agencies and the technology industry. This bill is aimed to facilitate the provision of classified information by the intelligence community and other government agencies to the private sector and at the same time to encourage voluntary submissions by companies about potential cyber threats.

Many big telecommunications companies, including Microsoft, Facebook, IBM, Oracle, Intel and the U.S. Chamber of Commerce, support this bill. However, U.S. human rights organizations severely oppose it as they believe that a cyber espionage act actually removes limits on opportunities the Government has to monitor an individual’s web history. Thus, the right to privacy will be violated.

In February 2011, B. Obama signed an act extending provisions of the Patriot Act adopted after the events of September 11, 2001, for the next 4 years. The provisions concerned allow law enforcement agencies and secret services to monitor lone veterans (even without confirmation that they have ties with terrorist organizations), to inspect business reports and to eavesdrop on phone calls made by suspicious telephone subscribers from any number under the cross-country order that is valid throughout the USA.

The FBI still intensively implements its surveillance program targeting Arab and Muslim communities under the pretext of combating terrorism. Secret services offer illegal migrants to legalize them if they agree to follow "suspicious elements" in their church communities and threaten to expel them from the country if they reject this offer. In June 2012, eight Muslim residents from the state of New Jersey filed a lawsuit in the Federal Court, alleging that law enforcement officers violated their constitutional rights in the course of the extensive surveillance program targeting Muslim communities in 2007 (earlier Attorneys-General of the states of New York and New Jersey recognized the program as legitimate).

In compliance with the Electronic Communications Privacy Act (ECPA) of 1986, unlike Americans those foreigners who do not have a green card may be subject to electronic surveillance even when there are no grounds to believe that they are involved in criminal activities.

The police report received by the Associated Press showed that after terrorist attacks of September 11, 2001, the New York police officers regularly monitored the mosque congregation and clients of book stores, bars and other places where Muslims used to gather. Surveillance on Muslim students was carried out even beyond the city, in particular, in the Yale University and the Syracuse University.

In spring 2011, the Council on American-Islamic Relations filed a lawsuit in the Federal Court against the U.S. Department of Justice and the FBI on behalf of Y. Afifi, a college student in California, who found a GPS tracker placed underneath his car as it was being repaired. At first the young man decided that it was a bomb, but after having posted images of the device in Internet, he was visited by the FBI agents who confiscated the device.

In January 2012, the Supreme Court made a decision on the United States v. Jones case, ruling that the police violated the constitutional rights of the suspect by installing a GPS tracking device on his vehicle and tracking all his movements for 28 days without a court order (according to the evidence of V. Herron, a former Maryland police officer, such technical devices are widely used by law enforcement agencies of the states in the course of criminal investigations).

Serious concern is expressed about the FBI’s DNA database expanding at an exponential rate. Until April 2009 it contained genetic information of federal convicts, and now it includes samples collected from those awaiting trial and detained illegal migrants (such databases have been created in 15 states).

Human rights activists are also concerned about the avalanche of data being included in the special database on potential terrorists which is maintained by the National Counterterrorism Center (NCTC).It is known that there were a lot of failures when because of similar names law-abiding citizens were denied to enter the country or board an aircraft.

Since the failed terrorist attack at the Detroit airport in December 2009 the list of persons, who are not allowed to fly an American or foreign aircraft passing through the U.S. airspace, has increased 6 times (before December 2009 there were about 3.4 thousand names on it, 2010 – 10 thousand, at present – about 21 thousand, including about 500 American citizens). As a result, some Americans cannot return home from abroad and have to remain in exile. In June 2010, the American Civil Liberties Union filed a lawsuit against the U.S. Government on behalf of 17 American citizens put on this list. Human rights activists suppose that the FBI uses this practice for interrogating persons of interest to secret services overseas without a lawyer.
Indiscriminate use of force in armed conflict zones. Program of targeted killings



According to available data, by August 2012 the conflict in Iraq has claimed the lives of up to 117 thousand civilians, of whom about 14.7 thousand have been killed by the international coalition forces led by the United States (usually as a result of air strikes and the use of unmanned aerial vehicles). In Afghanistan since the beginning of Operation Enduring Freedom around 14.4 17.2 thousand civilians have been killed, of whom up to 9 thousand by the international coalition forces led by the United States. The practice of elimination (and according to human rights activists of extrajudicial killing) of suspected terrorists with drones continues to take place. As a result of these "targeted" strikes, up to 900 civilians have died in Pakistan (175 of them children), up to 150 civilians in Yemen (24–31 of them children) and up to 60 civilians in Somalia (1–3 of them children). Cases of abuse and inhumane treatment on the part of U.S. servicemen, shooting of pregnant women and children, mutilation and dismemberment of corpses are common. Only in the most notorious cases the perpetrators are brought to justice.

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The United States draws particular criticism from international organizations for indiscriminate and disproportionate use of military force in armed conflict zones.
Iraq

According to the Iraq Body Count project, by August 2012 the conflict in Iraq has claimed the lives of up to 117 thousand civilians (more than 4 thousand in 2011), of whom approximately 14.7 thousand (13 per cent) have been killed by the international coalition forces led by the United States (usually as a result of air strikes and the use of unmanned aerial vehicles).

In January 2012, the U.S. judicial authorities ruled on the case of Staff Sergeant F. Wuterich of the U.S. Marine Corps, the last of those charged with the "Haditha massacre" in November 2005. Then, as is known, the U.S. Marines shot 24 Iraqi civilians in retaliation for the death of their fellow soldier M. Terrazas, who was killed by an improvised explosive device. In total, eight servicemen had been the defendants in this case, one of whom was acquitted, while charges against six others were dismissed. Wuterich, who pled guilty to "dereliction of duty", was reduced in rank to Private, but as a result of a plea deal he avoided even a minimum prison term.

In August 2012 the United States Department of Justice terminated the investigation into the attempt by the notorious U.S. private security company "Blackwater" (re-registered as "Xe Services", since 2012 known as "Academi") to bribe the senior officials of Iraq’s Ministry of Interior. For a sum of U.S. $ 1 million this company tried to obtain a license to operate in Iraq and block the investigation into the murder of 17 civilians, including children (with 20 people injured), by its employees in Baghdad in September 2007. The Blackwater contractors escorted the convoy of the U.S. Embassy and under the pretext of providing security they massacred civilians in the Nisour Square. However, the U.S. Department of State stopped using the services of this company only two years after the tragedy.

In this regard, it should be noted that the U.S. court sentenced Viktor Bout, a Russian citizen, to 25 years in prison only for the "intention" (which, moreover, had not been proven) to sell weapons to Colombian rebels, whereas the successor company of "Blackwater" has officially admitted illegal arms transfers to Iraq, Afghanistan and Sudan.

At the same time, the U.S. Defense and State Departments continue to actively use the services of contractors, particularly for carrying out "dirty work" in armed conflict zones. Such an "outsourcing" of state functions to private firms allows the U.S. Government to avoid responsibility for violating international humanitarian law.

The unsettled status of contemporary mercenaries is actively used by their lawyers, who try to block the claims of the families of the Iraqi victims in U.S. courts by referring to "immunity" of employees of private security firms, who had allegedly been operating in Iraq "on behalf of the state". As a result, so far none of those who were involved in the tragic events in the Nisour Square has been prosecuted.

Afghanistan

The total number of civilian casualties since the beginning of Operation Enduring Freedom in Afghanistan is about 14.4-17.2 thousand (up to 37.2 thousand, if indirect casualties are considered). About 6.2–9 thousand civilians have been killed by the international coalition forces led by the United States.

According to the Afghan authorities, just one U.S. operation in February 2011 in the Kunar Province claimed the lives of 65 civilians, including 22 women and more than 30 children. In March of that year a NATO helicopter shot nine Afghan teenagers aged 7 to 15 "by mistake".

As a result of a NATO air strike on February 8, 2012, in the village of Giawa in the Kapisa Province seven children and one adult were killed. According to the Afghan authorities, the bombing in the Logar Province on June 6, 2012, claimed the lives of 18 civilian Afghans.

The behaviour of U.S. soldiers causes particular resentment among civilian population in conflict zones. In January 2012 a scandal erupted when a video with four U.S. Marines urinating on Taliban corpses appeared on the Internet. The Afghan President H. Karzai called the actions of the soldiers "absolutely inhumane".

In February 2012, when cleaning the prison cells at the Bagram air base, the U.S. soldiers burned dozens of Islamic religious books, including several copies of the Koran, which provoked mass protests.

On March 11, 2012, Staff Sergeant R. Bales of the U.S. armed forces left the base in the Panjwai district of the Kandahar Province and shot 16 Afghan civilians in one of the nearby villages, including nine children and a pregnant woman, and wounded six others. Moreover, according to the version of the Afghan parliamentary commission, other U.S. servicemen could take part in the "Kandahar massacre".

In April 2012, one of the soldiers of the 82nd Airborne Division handed over 18 photographs to the Los Angeles Times which showed his fellow soldiers posing with body parts of killed insurgents.

Only in the most notorious cases the perpetrators are brought to criminal justice. For example, in the summer of 2010 charges were brought against five U.S. servicemen who randomly killed peaceful Afghans "just for fun". Among the victims was a 15-year-old teenager. The members of the "kill team" also collected the fingers of the murdered civilians as trophies and posed for photographs with their bodies. One of the soldiers, J. Morlock, was sentenced to 24 years in prison after he confessed to murdering three Afghans and promised to testify against his fellow servicemen, while his supervisor, Staff Sergeant C. Gibbs, in November 2011 received a life prison term with the right of pardon in 10 years.

Apart from operating on the battlefield, the CIA is actively pursuing a secret unmanned aerial vehicle program for "targeted" elimination of terrorists abroad.

According to the Bureau of Investigative Journalism, from 2004 to 2012 the CIA launched at least 327 air strikes in Pakistan with such UAVs. As a result, from 2.5 to 3.2 thousand people were killed, including 482-852 peaceful Pakistanis (of them 175 children). An air strike on the village of Datta Khel in March 2011 claimed the lives of more than 40 civilians. Similar operations in Yemen caused the deaths of 58-149 civilians (24-31 children), in Somalia – 11-57 civilians (1–3 children).

Human rights activists express serious concern about this practice, noting that in essence it does not differ from extrajudicial executions prohibited by international law. For example, in May 2010 the UN special rapporteur on extrajudicial executions P. Alston released a report in which the conformity of the U.S. drone program to international humanitarian law and standards for the protection of human rights was questioned¹⁵. According to some opinions, in this case it also violates Executive Order 12333 signed by R. Reagan on December 4, 1981, which forbids the security services to participate in planned political killings¹⁶. Despite that civilian casualties caused by drones are seen by the U.S. administration as quite acceptable "collateral damage".

In September 2011, an Islamic preacher A. al-Awlaki became the first citizen of the United States to be deliberately eliminated by a "targeted" strike that also hit another U.S. citizen, an editor of an Islamist web magazine S. Khan.

Many legal experts consider that targeted killings of United States citizens abroad violate the Fifth Amendment to the U.S. Constitution, according to which no one can be deprived of his life without a court order.

The special rapporteur on extrajudicial executions of the UN Human Rights Council C. Heyns published an annex to the USA-dedicated annual report for the 20^th session of the UNHCR. It contains an analysis of how the U.S. authorities implement the recommendations set forth by the previous special rapporteur following his visit to the United States in June 2008. Of the 25 recommendations only one has been implemented in full and three more – just in part.

Abductions, CIA "black site" prisons, tortures
The problem of CIA "black site" prisons, located in the territory of Poland, Afghanistan, Iraq, Thailand, Morocco, Romania and Lithuania, remains unsolved. American authorities actively practiced abductions of future detainees of these prisons. The U.S. "black site" prisons actively practiced tortures. Those, who are responsible for such crimes, are sheltered by the U.S. judicial bodies. Lawsuits from "black site" prison detainees against U.S. authorities are being dismissed.

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In September 2006 G. Bush acknowledged the existence of CIA "black site" prisons. As it became known later, in 2002-2003 special services established about 10 similar detention centers, including in the territory of foreign states – Afghanistan, Iraq, Thailand, Morocco, Djibouti, Romania, Lithuania and Poland, which kept approximately 100 prisoners "in a legal vacuum".

Illegal capture of those suspected of terrorism was deprecated by the international community, including U.S. allies. The UN Working group on arbitrary detention was deeply concerned by the CIA secret program, noting that abductions represent a serious violation of international humanitarian law. Detailed reports, which denounce illegal practice of American special services, were drafted by special commissions of the Council of Europe (published on June 7, 2006) and the European Parliament (approved on February 14, 2007). They report on more than 1200 secret flights, made by the CIA aircraft allegedly to transfer those suspected of terrorism.

Arbitrary arrests and abductions of the Russian citizens in third states affect seriously Russia-U.S. relations. In this context, arrests of Russian citizens V. Bout in Thailand and K. Yaroshenko in Liberia, based on the evidence given by false agents and doubtful evidence, are the most striking examples. Physical and psychological pressure exercised on them casts doubt on the grounds for investigation and the whole judicial process. We consider verdicts of the American court in respect of V. Bout and K. Yaroshenko unjust and politicized. The MFA of Russia will pursue their return to the homeland through an active use of all legitimate means, including international legal mechanisms.

On April 16, 2009 the U.S. Department of Justice published with considerable omissions four memoranda, drafted by lawyers of this Department in 2002-2005. They justify in detail the legitimate application of harsh interrogation techniques in respect of detainees of CIA prisons in the context of American legislation and international law.

In general, declassified memoranda authorize the use of 14 unconventional interrogation techniques. This includes: forced sleep deprivation for a long time (up to 180 hours together), replacement of normal nutrition by liquid food surrogates, pushing of detainees against elastic wall, face and belly slaps, placing in tight boxes (sometimes with insects), forced long keeping of detainees in positions, which cause muscle pain, forced nudity, including in the presence of female investigators (under minimum 14C), cold water ablutions (under 5C) and simulated drowning (the detainee is put on his back, tied up to the board and poured with water over his face). The last method was used by the medieval inquisition to obtain confessions and, in view of medical experts, can cause damage to brain, lungs and lead to fatal outcomes.

It is indicative that according to investigation, carried out by the Senate Select Committee on Intelligence, top U.S. officials gave their principal consent on the use of "alternative" interrogation techniques in respect of CIA "high value" detainees long before these notorious memoranda. In May-July 2002 the use of tortures, including "simulated drowning", was agreed with the Vice-President D. Cheney, the President’s National Security Advisor C. Rice, the Attorney General G. Ashcroft, legal advisor of the National Security Council and of the White House J. Bellinger and A. Gonzales respectively and the CIA Director G. Tenet.

The 2006 report of the Working group on arbitrary detention of the UN Commission on Human Rights¹⁷, the confidential report of the International Committee of the Red Cross of February 2007¹⁸, the report of the Swiss senator D. Marty in the Parliamentary Assembly of the Council of Europe of 2007¹⁹ and other similar documents qualify treatment of detainees in the CIA "black sites" as tortures.

Nevertheless, in violation of international legal obligations under the Convention against tortures the U.S. Department of Justice decided not to prosecute neither intelligence officers, who personally practiced harsh interrogation techniques towards suspected terrorists, nor their supervisors, who authorized such tortures. A special prosecutor J. Durham, who in 2009 was tasked to investigate whether the CIA’s interrogation techniques were legitimate, recommended to initiate criminal cases only on two violent deaths.

Former officials from the U.S. Department of Justice, who prepared "legal" justification for the use of tortures, have not been punished either. One of the "lawyers" – J. Yoo – is a professor of law at Berkly University in California, the other – J. Bibby – has been appointed a judge of the Federal Court of Appeals in Nevada state.

The U.S. Administration still regularly refers to its prerogative to keep in secret information sensitive for the national security, to insist that the courts stopped considering civil claims from victims of torture. For example, the Administration blocked the consideration of the claim, submitted by the American Civil Liberties Union on behalf of five former CIA prisoners, against the subsidiary of Boeing company, Jeppesen Dataplan, whose aircraft transferred the captives to "black site" prisons.

A. Rahim al-Nashiri, who was kept in American "black site" prisons in Afghanistan, Thailand, and Poland, failed to access justice in the USA. In this regard in September 2010 his lawyers filed a request to the Polish Prosecutor’s Office to investigate the detaining of their client in the secret prison in that country. In 2012, the Office of the Prosecutor General of Poland accused the former head of Polish intelligence services, Z. Siemiatkowski, of abuse of powers and illegitimate imprisonment of prisoners of war in connection of the CIA program of "black site" prisons in this country.

For the same reason, in December 2009 a Yemen national, M. al-Asad, filed to the African Commission on Human and People’s Rights a lawsuit against another state with CIA "black site" prison – Djibouti - on its territory (currently the Commission is considering admissibility of the plea).

A. Zubaida’s lawyers complain that the U.S. Department of Justice put obstacles while they tried to receive the documents required to protect their client’s interests in the European Court of Human Rights, where they filed a lawsuit against Lithuania (one of the "black site" prisons, in which once a Guantanamo prisoner was kept, was located on the territory of this State).

In June 2012, the U.S. Supreme Court denied a request of the American Civil Liberties Union to reconsider the decision of the Federal Court of Appeals for the fourth circuit, which rejected a case filed by the terror convict, the U.S. citizen J. Padilla, against the former U.S. Secretary of Defense D. Rumsfeld. In 2002 J. Padilla was transferred from the New York state prison to a Charleston naval base, South Carolina, where he experienced tortures: sleep and light deprivation, long-term isolation, exposure to extreme temperatures, sexual assault threats, psychotropic substances, stressful positions (which cause muscle pain) etc.

In May 2012, the Federal Court of Appeals for the ninth circuit denied in its turn J. Padilla’s symbolic claim for compensation for moral damage in the amount of one dollar against the lawyer, J. Yoo, who authorized tortures in interrogations on the grounds that the law on harsh interrogation techniques had not become conventional at the time when memoranda on tortures were drafted.

In August 2011 the last prisoner on torture case in the Iraqi "Abu Ghraib" prison, superintendent Ch. Graner, was early released (4 years earlier than prescribed by the courts sentence).

In January 2012 the special commission of the Afghanistan government made public new cases of tortures (beatings, sleep deprivation, keeping in tight cells and in extreme cold) in respect of detainees of the Parwan prison, located in the territory of the American Bagram military base near Kabul (two Afghan prisoners died there in 2002). The handover of this prison to the Afghan security forces was held in September 2012. Meanwhile, the Afghan representatives state that the American side keeps its control over 50 foreign prisoners, whose destiny would be defined later. The transfer under the Afghan jurisdiction of 600 prisoners, captured by international coalition forces even after the handover agreement had been signed in March 2012, is still in process as well.

In March 2012 the Afghan Independent Human Rights Commission in cooperation with G. Soros Fund published a report "Torture, Transfers and Denial of Due Process". It says that the USA, as opposed to International Security Assistance Force, did not suspend transfers of captives to such Afghan prisons even after 2011, when the UN published its report on tortures practiced there. The document gives examples of more than 10 cases, when detainees, transferred by the American military staff, experienced tortures in the Afghan prisons, including beatings and electroshock.