Tag: Watergate

Finding a Balance: Privacy and Safety

by Leo Mata

5 APR 2017

Considering the most recent release of information by WikiLeaks, and the ongoing 2016 election investigation, it seems as apt a time as ever to reevaluate the right of privacy and how far it truly protects the individual. In the United States, while the right to privacy is not specifically mentioned in the Constitution, the Supreme Court has looked to various amendments to establish this right through decades of court jurisprudence. In contrast, the right to privacy has been enshrined in at least 170 constitutions across the globe. Moreover the United Nations Special Rapporteur on the right to privacy, Joseph Cannataci, has stated that “[article] 12 of the UNDHR and [article] 17 of the ICCPR do not state that the right to privacy is a right which is only enjoyed by the citizens of one’s own state.” So, it should not matter whether your own country has a constitutional provision safeguarding individual privacy, as long as that country has signed onto the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. Yet, it is worth noting that even within each of these avenues for protection, constitutional or treaty based, there are limits to the protection. The line for protection is usually drawn around the ideas of unlawful interference or arbitrariness. The important question here, then, is: How do we balance our need to prevent attacks by foreign agents and our right to privacy?

Looking at the United States, we can track a variety of spying scandals as examples. The idea of spying on U.S. citizens is neither uncommon or unheard of. The Federal Bureau of Investigation (FBI) in its history has tracked such notable figures as Rev. Martin Luther King Jr. and Eleanor Roosevelt, and was implicated, along with other agencies, in the Watergate scandal. The government said it monitored Rev. King out of fear that his movement was being infiltrated by communists, and this reasoning was enough for the Attorney General to approve monitoring. In the modern era, combating foreign actors is often the guise under which government agencies justify domestic spying. Learning from our past mistakes, the United States established the FISA Court which is designed to act as a safeguard against unnecessary intrusions into our lives while allowing the government to monitor for foreign intelligence purposes. However, despite this level of protection there have been numerous reports of the National Surveillance Agency (NSA) acting beyond their legal scope. So, we must ask, is the FISA Court a sufficient level of protection against the abuse of an individual’s right to privacy? Even the Court itself has acknowledged it has a limited ability to protect our right to privacy.

The recent trove of documents released by WikiLeaks identify methods, such as the installation of spyware into your smart TV or smart phone, that the Central Intelligence Agency (CIA) could use to gather information. The idea that the CIA can hack into devices is nothing new, spying is in fact what their job entails as a means of protecting the United States, but when placed side by side with a history of abuse, it is hard to not fear a violation of privacy. This has, justifiably, put many on edge. However, it is important to note that the tools released are older and have reportedly been patched by the respective technology companies.

Putting the WikiLeaks release aside, there seems to be little concern from the public over what U.S. intelligence agencies do in their efforts to conduct foreign surveillance. However, what has raised some concerns is when foreign surveillance includes the surveillance of U.S. citizens. Recently, this has come to the attention of many Americans with the announcement that surveillance of U.S. citizens occurred while intelligence agencies monitored Russian communications during the 2016 election. It should be noted that this type of surveillance on U.S. citizens falls into a category known as incidental collection. While incidental collection is nothing new, the ongoing 2016 election investigation has resulted in the release of names and information of U.S. citizens. The disclosure of personal information has caused some people to worry that the intelligence community is not protecting our information as closely as they contend. However, this is the FISA Amendments Act doing exactly what it is designed to do. While incidental surveillance will always be an issue if surveillance exists, the recent focus on it is more relevant than ever as the FISA Amendments Act is set to expire on December 31, 2017. This presents an opportunity for Americans to voice their concerns and either continue down the path we are on, or request that changes be made.

For some, these methods of spying and releasing of personal information will create paranoia, for others anger, but for most they will create no disruption to their daily lives. Each of these responses alone demonstrates a failure within our society. In the face of the ever-growing foreign threats, it is of the utmost importance that we have a conversation about how we combat it. As members of society do we not owe a duty to one another to prevent harm from befalling us? If so, to what length does that duty extend? Should the government be given greater leeway in protecting civilians from terrorism, or would we rather risk greater harm for greater privacy? Is it enough to leave it to private companies to push back against government intrusions? If history is any indicator it seems that our privacy rights will continue to give way to combat the grave threats before us. To prevent this seemingly inevitable future, as we move forward in our efforts to protect Americans—and whatever the next threat may be—the logic behind the need for surveillance should not go unchallenged or be considered infallible. Just because the right to privacy was not designed to be an absolute right does not mean it should be cast aside.

Leo Mata is a J.D. student at Texas Law, Rapoport Center Fellow, and a member of the 2016-2017 Working Paper Series Editorial Committee.

What Do We Do With What We Know? The War on Terror and Human Rights

by Natalie Davidson

9 DEC 2015

We at the Rapoport Center were privileged last month to hear journalist Mark Danner talk about human rights and the War on Terror at the inaugural Frances Tarlton “Sissy” Farenthold Endowed Lecture in Peace, Social Justice and Human Rights, titled “Spiraling Down: Human Rights, Endless War.” Danner offered an incisive analysis of the current state of the United States’ War on Terror, an analysis that should not only sound alarm bells among European leaders as they choose military strikes as their response to the latest attack by ISIS in Paris, but also raises difficult questions about the part a human rights framework could play in putting an end to torture, indefinite detention, targeted assassinations and wiretapping by the U.S. executive.

Danner nostalgically described the Watergate scandal, which exposed the Nixon administration’s illegal activities against political opponents and led to the president’s resignation under threat of impeachment, as his political coming-of-age. Watergate, in Danner’s view, is a demonstration of “how the system is supposed to work”: a revelation of governmental wrongdoing by journalists, followed by investigations by Congressional committees and the courts, and finally punishment when the President resigns.

For Danner, contemporary American politics operate according to a very different logic. Instead of cycles of injustice-revelation-justice, human rights are now in a state of “frozen scandal.” Torture by and at the instigation of the U.S. military has been widely written about, including in a long Senate report. The practice has been denounced by President Obama, but other forms of gross human rights violations soon emerged. The Obama administration has made extensive use of drone attacks in Afghanistan, Pakistan, Iraq, Syria and Somalia, killing between 3,500 and 5,000 individuals. Meanwhile, prisoners cleared for release continue to languish at Guantánamo under the legal fiction that they can neither be tried nor released, for they are prisoners held captive until the end of hostilities. Although these governmental abuses are well-known, there is no change, no expiation. The liberal assumption that exposing injustice will lead to its correction has not been borne out. This insight leads Sissy Farenthold to ask, when introducing Mark Danner: “what are we going to do about what we know?”

Danner sees the “frozen scandal” of human rights violations as one facet of the state of endless war inaugurated in September 2001 when Congress authorized the use of military force in the aftermath of September 11. The War on Terror has not only failed spectacularly to reduce terrorism, as the rise of ISIS and reemergence of the Taliban indicate. It has also provided the key infrastructure for torture, for it transforms “prison without trial” into “wartime detention,” and “torture” into “enhanced interrogation technique.” The war, though indiscernible in Americans’ everyday life, allows gross governmental violence to appear legal. Drone killing is permitted by government lawyers when there is a “continuous imminent threat”. Danner reports that lawyers in the Obama administration are now developing the concept of “elongated imminence” to further detail the conditions under which targeted killings is justified.

Where do we go from here? Sitting in the audience and listening to Danner, it seemed to me that it is not only the Watergate model that seems to have waned. If exposure and knowledge of human rights abuses do nothing to curb their commission, the traditional model of human rights reporting also seems insufficient. Or perhaps these two models are not so much broken as inapt to address violence committed by Americans against foreigners. The Watergate model assumed governmental abuses of American citizens; the human rights model traditionally targets repression by a foreign government of its own citizens. The human rights abuses in the War on Terror, in contrast, mainly affect foreigners living outside U.S. territory. What avenues of justice-seeking can address this sort of violence?

One path currently popular among international human rights activists around the world for addressing state-sponsored violence is criminal prosecution. Yet Danner does not think that prosecutions of offenders, whether high-ranking officials or low-level torturers, are feasible. Nor will they achieve much change in his view. He suggests instead that a truth commission might lead to a profound political acknowledgment and rejection of torture. Most importantly, Americans must combat the politics of fear fueling their country’s permanent war.

What part should law and human rights activism play in pulling the United States out of the state of exception? Danner asks how we can return to legality – but the story he tells can also be understood as one in which law, with its indeterminacy and malleability, its sometimes absurd fictions and bureaucratic vocabulary, plays a key role in reassuring government officials that even acts such as torture and execution are acceptable. Is talk of “continuous imminent threat” to justify targeted killings a perversion of law, or is this legal logic at work? What tools do human rights activists have at their disposal to effectively combat such uses of legal discourse? If denunciation is insufficient, and what is needed is political mobilization, how does human rights activism retain its relevance?

Natalie Davidson is a PhD Candidate at Tel Aviv University’s Faculty of Law, and  a 2015-16 research fellow at the Rapoport Center where she chaired the WPS Editorial Committee.