Intelligence community refuses to follow treaty requirements on human rights

On behalf of the intelligence community, the U.S. Office of the Director of National Intelligence (ODNI) has provided a non-response to a request from Access Now and civil society organizations to publicly establish a point of contact to field complaints about potential human rights violations as required by law. Executive Order 13107 requires U.S. federal agencies to respond to complaints about human rights, but so far most agencies have failed to designate a contact person. See our press release here.

Nearly 20 years ago, U.S. President Bill Clinton signed Executive Order 13107, requiring U.S. agencies to comply with international treaties including the International Covenant on Civil and Political Rights (“ICCPR”). This legally binding order requires every federal agency to establish a single point of contact to, among other things, coordinate responses to “complaints about violations of human rights obligations that fall within its area of responsibility.”

In plain English, that means that government agencies must set up a mechanism enabling people — regardless of nationality — to file complaints about abuses of human rights. The order also mandates that those who file these complaints must receive a response, and that all non-trivial complaints must be reviewed annually. Unfortunately, most agencies have failed to fulfill this legal obligation.

We at Access Now believe that the United States must recognize and respect the human rights of all people, even those who can’t vote in U.S. elections. In March 2015, Access Now and other civil society groups sent a letter to several agencies, including the Office of the Director of National Intelligence (ODNI), the National Security Agency, the Federal Bureau of Investigation, the Department of Defense, and the Central Intelligence Agency, all members of the U.S. intelligence community. The letter was also sent to the Department of Justice.

From the letter: “To ensure compliance with human rights treaties, EO 13107 mandates, among other things, that the head of each executive agency ‘shall designate a single contact officer who will be responsible for overall coordination of … respon[ses] to inquiries, requests for information, and complaints about violations of human rights obligations that fall within its area of responsibility…’.”

More than six months after we sent the letter, there was no response from any agency. Other organizations then joined us to send a follow-up letter, specifically noting that when the E.U.-U.S. “Safe Harbor” framework was invalidated, it made having a human rights point-of-contact even more important:

“Appointing a point of contact under EO 13107 will not assuage all of the questions about safe harbor. Nor will it automatically bring U.S. federal agencies in accord with international treaties, like the International Covenant on Civil and Political Rights. However, it is an important first step toward demonstrating that the United States takes seriously its international human rights commitments and obligations.”

The ODNI has finally responded on behalf of the intelligence community. Unfortunately, it gave a “non-response” that fails to address the requirement to appoint a point of contact to accept complaints about human rights violations. Rather than provide a point of contact or refusing to do so, the letter does not address the request at all.

“The United States remains committed to effective implementation of its obligations under the human rights treaties to which it is a party,” ODNI asserts. ODNI then goes on to provide details about its participation in United Nations processes, and explains that its civil liberties office is in charge of complaints about possible abuses of civil liberties and privacy, and also functions as the central coordinator on transparency.

Unfortunately, while recognizing its place as the center for civil liberties and privacy, the ODNI does not name anyone for people outside the U.S. to contact, and it does not set up a formal redress mechanism for those non-U.S. citizens who have human rights complaints.

Why is it important that we have a single point of contact? For one, it’s the necessary first step toward recognizing the disproportionate impact that U.S. surveillance practices have on the rest of the world.

When it comes to human rights, the U.S. has consistently fallen short. The U.S. does not extend human rights protections to non-U.S. citizens.

For example, international human rights law requires that surveillance is necessary and proportionate, and is carried out to further a legitimate government interest. Bulk, indiscriminate surveillance does not fall into that category. Under another executive order, Executive Order 12333, the U.S. conducts broad surveillance of innocent people around the world, without having to meet any evidentiary standard at all. It does so with little oversight and no transparency. The NSA conducts many secret programs under this order. Some that were revealed by Edward Snowden include programs to collect people’s address books and buddy lists, to install malware for surveillance, and to record every phone conversation, across full countries.

These U.S. policies harm human rights across the globe. Yet people outside the U.S. have no official avenue in the U.S. government to complain.

Access Now plans to appeal the ODNI’s non-response, continuing to fight for human rights protections for everyone, not just U.S. citizens.