Revelations today in The Intercept about the apparently arbitrary surveillance of several prominent American Muslims underscore the lack of safeguards to protect the rights of persons targeted by U.S. surveillance operations, Amnesty International said today.
If it is true, as alleged, that the term “Mohammed Raghead” was used as a placeholder in a government document about how to make surveillance requests, there is good reason to be concerned that anti-Muslim bias tainted the process. Any surveillance conducted on the basis of religion, rather than probable cause to believe that the defendant violated the law, would constitute discriminatory interference with the right to privacy, prohibited by both the Constitution and international human rights law.
“The burden is on President Obama to demonstrate that the surveillance was lawful, and specifically that the government had probable cause to monitor the men, and was not motivated by racial or religious bias,” said Steven W. Hawkins, executive director of Amnesty International USA. “Given the indicators of discrimination, as well as the system’s lack of meaningful safeguards, we are very concerned that the monitoring was arbitrary and abusive. It is simply unacceptable to discriminate against people on the basis of their religion or race.”
While the story is not clear on this point, the government may have been granted warrants by the Foreign Intelligence Surveillance Court (FISC) to conduct surveillance of the men. The court operates almost entirely in secret, however, relying upon secret interpretations of controversial laws, and lacking sufficient protections against abuse. In particular, the court hears only one side of a request for surveillance: the government’s side. In addition, the court’s judges are chosen by the Chief Justice of the Supreme Court, an appointments process that damages its independence and impartiality.
Amnesty International believes that these flaws greatly erode the FISC’s capacity to serve as a meaningful check on executive power and its willingness to consider the right to privacy as well as the needs of legitimate law enforcement.
Despite the system’s obvious problems, calls for legislative reform have stalled, with Congress failing to move forward on draft legislation. Amnesty International believes that the concerns raised by these cases demonstrate the urgent need for reform.
Under international human rights law, any surveillance must be necessary and proportionate to a legitimate aim, such as countering serious crime, and be the least intrusive means of achieving that aim. Furthermore, the use of surveillance must be enshrined in law, be based on probable cause, and be subject to independent review. Surveillance must be targeted at individuals and be based on probable cause. It should not be conducted on the basis of religion, race, nationality, gender or other discriminatory factors.
As a step toward remedying the system’s failures, President Obama should publicly commit to following international human rights law in U.S. surveillance efforts at home and abroad. He should ensure that his administration does not profile people on the basis of religion or race, including by improving the Department of Justice’s “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.”
Congress should pass the End Racial Profiling Act as well as comprehensive surveillance reform legislation that upholds the human rights of all people around the world and in the United States.