From left to right: Mr Neven MIMICA, Member of the European Commission; Ms Federica MOGHERINI, High Representative of the EU for Foreign Affairs and Security Policy; Mr Erlan IDRISSOV, Minister for Foreign Affairs of Kazakhstan; Mr Erlan ABDYLDAEV, Minister for Foreign Affairs of Kyrgyzstan; Mr Aslov SIRODJIDIN, Minister for Foreign Affairs of Tajikistan; Mr Rashid MEREDOV, Foreign Affairs Minister of Turkmenistan; Mr Abdulaziz KAMILOV, Minister of Foreign Affairs of Uzbekistan.
2016 European Union
(Brussels) – The European Union should make respect for human rights and an end to decades of repression a core component of its engagement with Central Asian countries, Human Rights Watch said today. In the past year, Central Asia has seen some positive developments, after Uzbekistan’s new president took power in September 2016 and, in Kyrgyzstan, the region’s first peaceful transfer of power from one elected leader to another in October 2017.
On November 9 and 10, 2017, the European Union’s top diplomat, Federica Mogherini, and the head of its cooperation and development agency, Neven Mimica, will join a regional meeting in Samarkand with the foreign ministers of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. On November 8, Mogherini and Mimica are paying a one-day visit to Kyrgyzstan, following the presidential election there on October 15.
“The glimmers of hope in the region should not be taken for granted, nor their fragility underestimated,” said Philippe Dam, Europe and Central Asia advocacy director at Human Rights Watch. “Recent developments showed that change is possible, but tangible progress on rights will require greater political will from Central Asian leaders.”
Central Asian countries have distinct human rights records – but none can be portrayed as championing respect for international human rights standards, and all have used politically motivated detention against critics.
In Uzbekistan, President Shavkat Mirziyoyev has taken some positive steps to improve the human rights situation during his first year in office, with the release of at least 16 critics detained on politically motivated grounds. Other measures include the moderate easing of certain restrictions on freedom of expression, the removal of a large number of names from the security services’ “black list,” pledges to increase the accountability of government institutions to citizens, and a ban on forced mobilization of teachers, doctors, and college students in the country’s cotton fields.
The European Union should see these actions as steps in the right direction, but also insist that the Uzbek government should make lasting changes to protect human rights. Thousands are still behind bars on politically motivated grounds, including human rights defenders, journalists, religious figures, and other perceived government critics.
On September 27, Bobomurod Abdullaevon, an independent journalist, was detained on what appeared to be a politically motivated charge. On the same day, police also detained Nurullo Muhummad Raufkhon, an author, at Tashkent airport on his arrival home after two years of exile and charged him with extremism for a book in which he criticizes the former longtime repressive leader, Islam Karimov, who died in September 2016. The author was released on October 1, but still faces charges. Authorities also use a penal code provision to arbitrarily extend prison sentences. There has been nearly total impunity for the torture of people in government custody, and the International Committee of the Red Cross has not been able to carry out independent monitoring in Uzbekistan since 2013.
In Kyrgyzstan, the European Union should seize the opportunity of the recent presidential election to urge President-elect Sooronbai Jeenbekov to put human rights front and center when he takes office. Human Rights Watch is concerned about increased pressure on nongovernmental groups and the media in the period before the election, including through multi-million Kyrgystani Soms defamation lawsuits on behalf of the outgoing president by Kyrgyzstan’s prosecutor general.
The EU decision, announced just days before the election, to negotiate an enhanced partnership agreement, means it should urge Jeenbekov to ensure that journalists and human rights defenders in Kyrgyzstan can work without fear of reprisal or harassment. The EU should also unequivocally call on the Kyrgyzstan authorities to release the human rights defender Azimjon Askarov, who was wrongfully sentenced to life in prison for his alleged role in the June 2010 conflict in southern Kyrgyzstan. The government has yet to carry out the UN Human Rights Committee’s ruling to free Askarov and quash his conviction.
In Kazakhstan, the authorities have continued to silence critics and to bring charges against them since the previous EU-Central Asia gathering in October 2016. In November 2016, two activists, Max Bokayev and Talgat Ayan, were each sentenced to five years in prison after peacefully protesting land reform proposals.
The government has also carried out a large-scale crackdown to suppress independent trade union activity. In January, a court closed the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) for failing to register in accordance with the restrictive trade union law. Amin Yeleusinov and Nurbek Kushakbaev, both trade union activists, were jailed in politically motivated trials after their involvement in peaceful protests in western Kazakhstan in January that the government declared illegal.
Since 2011, Kazakhstan authorities have repeatedly misused the overbroad and vague criminal charge of “inciting social, national, clan, racial, class, or religious discord” to prosecute numerous activists, human rights defenders, and journalists, and have closed down critical media outlets. As the European Commission is seeking the ratification of an Enhanced Partnership and Cooperation Agreement with Kazakhstan, it should signal that it also expects the release of the detained land-rights and labor activists and meaningful legal reforms.
Human rights conditions in Tajikistan have rapidly deteriorated since 2015 as authorities deepened a widespread crackdown on freedom of expression and association, peaceful political opposition activity, the independent legal profession, and religious freedom. Well over 150 political activists, including lawyers and journalists, remain unjustly jailed. The authorities have demonstrated an increasingly aggressive stance toward international organizations such as the Organization for Security and Co-operation in Europe (OSCE). The relatives of dissidents abroad who peacefully criticize the government are subjected to violent retaliation orchestrated by Tajik authorities.
Finally, Turkmenistan remains one of the most repressive and closed countries in the world, cut off from any independent human rights scrutiny. The rare foreign media representatives allowed into the country are under government surveillance. Activists and correspondents who provide information to foreign outlets face government retribution, and journalists face arrest or harassment.
More than 100 people, including dozens arrested in the early 2000s, have been forcibly disappeared in the prison system, cut off from all contact with family, lawyers, and loved ones, in some cases for nearly 15 years. Families have no official information about whether their loved ones are dead or alive. The EU should press Turkmenistan to end all enforced disappearances, including of political opponents, and inform the families of people being held about their whereabouts.
During their ministerial meeting in October 2016, EU and Central Asia ministers agreed to stress the importance of the protection of human rights, fundamental freedoms, and the rule of law. In June 2017, Foreign Affairs Conclusions on Central Asia adopted by EU Member States recognized the “serious challenges to human rights” in the region.
“The EU-Central Asia meeting in Samarkand is a test for Brussels’ ability to press for genuine and sustained human rights improvements,” Dam said. “To ensure there is no turning back, the EU should secure commitments to meaningful reforms from leaders in the region, starting with freeing anyone held on political grounds and ending harassment and pressure on independent activists and the media.”
Indonesia’s beleaguered religious minority groups got some rare good news today.
The Constitutional Court ruled that the Population Administration Law’s prohibition on adherents of native faiths from listing their religion on official identification cards is unconstitutional.
The ruling will help protect adherents of more than 240 such religions from prosecution under Indonesia’s dangerously ambiguous blasphemy law. Prior to the court’s ruling, members of religious minorities faced an impossible choice: leave blank the ID card’s religion column and possibly be accused of being an atheist – which is punishable under the blasphemy law – or select one of Indonesia’s six officially protected religions and be accused of falsifying their identity. The 1965 blasphemy law only protects Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism.
All Indonesians must obtain a national ID card at age 17 and are required to apply for official documents including birth, marriage, and death certificates. For decades, the religious identity category of national ID cards and their implicit blasphemy prosecution threat for officially unrecognized religions have led some members of those communities to avoid applying for ID cards, depriving themselves of essential state services. Some local governments have imposed even more onerous discriminatory rules restricting religious minorities’ access to ID cards. In June, representatives of the Ahmadiyah community in Manislor district in West Java’s Kuningan regency filed a formal complaint against a local government requirement that they renounce their faith to obtain a national ID card.
The court ruling was a response to a legal challenge to the discriminatory articles of the 2006 Population Administration Law filed by several native faith adherents. If enforced, the ruling will eliminate an element of discrimination built into Indonesian law that affects the country’s estimated 400,000 native faith adherents. But it won’t help Ahmadiyah and Shia communities, who can still expect to be victims of routine bureaucratic discrimination related to national ID card issuance.
The Ministry of Home Affairs should use the court ruling as a starting point to abolish all of the discriminatory regulations and institutions that target religious minorities. As long as they remain on the books, the rights of Indonesia’s religious minorities will remain in peril.
(Tunis) – Mauritanian authorities should quash the death sentence for a Mauritanian blogger, Mohamed Cheikh Ould Mkhaitir, and drop all charges against him that violate freedom of expression, Human Rights Watch said today. The Court of Appeals in Nouadhibou is due to review the case on November 8, 2017.
Prosecutors charged Mkhaitir with apostasy for posting an online article in January 2014 questioning the use of religion to legitimize ethnic and caste discrimination in Mauritania. After three years of judicial proceedings, Mauritania’s Supreme Court in January set aside a ruling by the Court of Appeals that upheld the death sentence and referred the case to a new panel of judges for review.
“Mauritania has no business charging anyone with ‘apostasy,’ much less sentencing a blogger to death for such an absurd charge based on an article he wrote,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “It’s good that the appeals court is reviewing this case, but he never should have been charged in the first place.”
Human Rights Watch raised concerns about the conviction, lengthy procedure, and extreme sentence Mkhaitir is facing for a speech offense with Justice Minister Mohamed Ould Daddah during a meeting in Nouakchott on October 19. “Mkhaitir is entitled to a fair trial in line with our international commitments,” he told Human Rights Watch. “I hope that he will be tried by the end of the year.”
It has almost been four years since Mauritanian authorities arrested Mkhaitir after the Mauritanian news website Aqlame published his blogpost on the marginalization of certain groups in Mauritania. He spent 12 months in pretrial detention, and a court sentenced him to death in December 2014 for “speaking lightly” of the Prophet and heresy.
In 2016, the Court of Appeals in Nouadhibou lowered the charges from “apostasy” (zendagha) to “disbelief” (ridda) but maintained the death sentence. The defense appealed the case to Mauritania’s Supreme Court, which set aside the lower court’s decision on January 31, 2017, and sent the case back to a new panel of judges from the same Court for a new hearing.
Some Mauritanian activists have noted that there has been an outpouring of protests over the article on religious grounds. Over the last two-and-a-half years, thousands of protesters have gathered on a number of occasions to call for Mkhaitir’s execution. On November 3, Mohamed Diop, journalist for the Mauritanian news agency Alakhbar, reported that police authorities prevented protesters calling for Mkhaitir’s execution from marching in the streets of Nouakchott and arrested four of them.
Mauritanian human rights activists who have publicly supported Mkhaitir have received death threats, Aminetou Mint Ely, a prominent women’s rights leader, told Human Rights Watch. In December 2016, Mkhaitir’s parents fled the country and sought asylum in France stating that they could no longer live in Mauritania under permanent threats.
Mauritania’s prosecution of Mkhaitir for his writing violates the international law guarantees protecting free speech, such as those enshrined in the International Covenant on Civil and Political Rights, to which Mauritania has been a party since 2004. The Mauritanian constitution guarantees freedom of opinion, thought, and expression. Restriction of speech, and in particular criminal prosecutions, should only be used as last resort, for a justifiable reason, when the law is clearly defined and the restriction is proportionate. Mkhaitir’s speech, given it could not conceivably be construed as incitement to violence or hatred, should never have been subject to prosecution.
Both United Nations and African human rights standards on the right to life encourage states to move toward abolition of the death penalty and in those states that retain the death penalty make clear it should be limited to the most serious crimes and can only be imposed after a fair trial. The African Commission on Human and Peoples’ Rights has stated that: “In those States which have not yet abolished the death penalty it is vital that it is used for only the most serious crimes – understood to be crimes involving intentional killing.”
Mauritanian prosecutors should drop the charges against Mkhaitir, Human Rights Watch said, and Mauritanian legislators should repeal penal code provisions that violate freedom of expression, including Article 306, which provides the death sentence for apostasy.
(New York, November 3, 2017) – The Vietnamese government should immediately release everyone it has detained or imprisoned for peacefully exercising their rights, Human Rights Watch said today. Human Rights Watch posted a new web page highlighting the cases of 15 of more than 100 people imprisoned for political or religious reasons.
International leaders and trade partners attending the upcoming Asia-Pacific Economic Cooperation (APEC) summit in Da Nang on November 10, 2017, should call on Vietnamese authorities to end the government’s systematic persecution of peaceful critics and ensure the basic rights to freedom of expression, association, assembly, and religion for its citizens.
“While doing photo-ops and trade deals with the leaders of Vietnam’s one-party state, foreign officials in the country for APEC should not turn a blind eye to the over 100 political prisoners those very same leaders have put behind bars,” said Brad Adams, Asia director. “At the same time that Vietnam is playing the role of a friendly host to welcome international delegations, the authorities are intensifying their crackdown on anyone with the courage to speak up for human rights and democracy.”
Since its formation in 1976, the modern, unified Vietnamese state has imprisoned people for the exercise of basic freedoms. At present, at least 105 peaceful critics (list below) are in prison for expressing critical views of the government, taking part in peaceful protests, participating in religious groups that don’t have the authorities’ approval, or joining civil or political organizations that the ruling Communist Party of Vietnam deem threats to its monopoly on power.
Within the past 12 months, the police have arrested at least 28 people for sweeping “national security” offenses that are used to punish critical speech. The most recent arrest was on October 17, when the police detained an environmental activist, Tran Thi Xuan, in Ha Tinh province and charged her with activities aimed at overthrowing the government.
Vietnamese rights bloggers and activists face police harassment, intimidation, intrusive surveillance, detention, and interrogation on a daily basis. Many are denounced on state media and national television, and others are subjected to public criticism in their neighborhoods. Police frequently prohibit rights campaigners from leaving the country or place them under temporary house arrest to prevent them from joining a protest or meeting with foreign diplomats. Activists have faced increasing numbers of beatings and assaults by men in civilian clothes operating under the protection of the authorities. Vietnamese activists who are arrested are often placed in lengthy police detention before their trial, without access to legal assistance or family visits.
“Neither a glittering APEC summit nor new trade deals can cover up the ugly reality that Vietnam still runs a police state that brooks no dissent,” Adams said. “Any leader of a democracy who goes to APEC but doesn’t take up the cause of Vietnam’s political prisoners should be ashamed at missing the opportunity to do the right thing on a global stage. International donors and trade partners should press Vietnam for systemic change to a more democratic system that respects human rights and the rule of law.”
Human Rights Watch List of Political Prisoners
The following is a list of people imprisoned in Vietnam for expressing critical views of the government, taking part in peaceful protests, participating in religious groups not approved by the authorities, or joining civil or political organizations that the ruling Communist Party of Vietnam deems threats to its monopoly on power. This list only includes people who have been convicted and remain in prison and does not include the significant number of detainees who have been arrested, are currently facing trial, and have not yet been convicted. It is also almost certainly incomplete, as it only includes convictions that Human Rights Watch has been able to document.
Due to difficulties in obtaining information about convictions and sentences in Vietnam, this list may differ from those compiled by other organizations, and such differences do not necessarily reflect inaccuracies. Vietnam should be urged to open its legal system – including case files and proceedings – to public scrutiny.
Phan Kim Khánh, born 1993
Nguyễn Văn Oai, born 1981
Trần Thị Nga, born 1977
Nguyễn Ngọc Như Quỳnh (also known as Mẹ Nấm), born 1979
Rơ Ma Đaih (Ama Pôn) born 1989
Puih Bop (Ama Phun), born 1959
Ksor Kam (Ama H’Trưm), born 1965
Rơ Lan Kly (Ama Blan), born 1962
Đinh Nông (Bă Pol), born 1965
Trần Anh Kim, born 1949
Lê Thanh Tùng, born 1968
Cấn Thị Thêu, born 1962
Ksor Phit, born 1970
Siu Đik, born 1970
Nguyễn Hữu Quốc Duy, born 1985
Ksor Púp (Ama Hyung)
Siu Đoang, born 1983
A Jen, born 1984
A Tik, born 1952
Đinh Kữ, born 1972
Thin, born 1979
Gyưn, born 1980
Nguyễn Đình Ngọc (also known as Nguyễn Ngọc Già), born 1966
Ngô Thị Minh Ước, born 1959
Nguyễn Hữu Vinh (also known as Ba Sàm), born 1956
Nguyễn Tiến Thịnh
Hoàng Văn Thu
Nguyễn Lê Châu Bình
Nguyễn Văn Thông, born 1965
A Kuin (also known as Bă Chăn), born 1974
Ngư (also known as Bă Săn), born 1972
Điểu B’ré (also known as Bạp Bum), born 1969
Điểu By Ơ, born 1967
Đinh Yum, born 1963
Rơ Mah Plă (also known as Rmah Blă; a.k.a Ama Em), born 1968
On the evening of September 28, Narine Avetisyan, editor-in-chief of a regional television station, got a call about workers laying asphalt on a road in the pouring rain in Vanadzor, Armenia’s third largest city. She went to investigate.
According to Avetisyan, soon after she arrived and started asking questions, the head of the construction company told her to go away, that the road work was none of her business. She said that when she didn’t leave, the director and several colleagues threw her to the ground, twisted her arms behind her back, and dragged her along the ground, demanding her phone. She said they seized her phone and deleted the video of the construction site. In response to a Human Rights Watch query, the director denied the charges.
Avetisyan filed a police complaint that evening. Investigators initiated a criminal investigation and brought charges against the company director for hindering the work of a journalist. But according to Avetisyan, the charges say nothing about her being physically attacked by the director and other workers.
Attacks on journalists are not uncommon in Armenia, and highlight the vulnerability of those who work in the media here.
In another incident a week later, Paylak Fahradyan, a journalist for the online news site Armday.am, was investigating a dispute involving a local hospital in the village of Shatin. Fahradyan said that when he began asking the doctor at the center questions about corruption allegations, the doctor and a hospital nurse tried to grab his camera. When he refused to delete his footage, they forced him into a room in the hospital, threatening to hold him until he did so. Fahradyan managed to leave the room about 10 minutes later, after he called the police. Investigators initiated a criminal case, but no charges have been brought so far. Human Rights Watch’s queries to the hospital staffers received no response.
Outside observers have raised concerns about conditions for journalists in Armenia. During a recent visit to the country, Harlem Désir, the representative on freedom of the media for the Organization for Security and Co-operation in Europe (OSCE), expressed concerns about attacks on journalists. He emphasized the need for safe working conditions, especially while covering public events or topics of public interest.
These cases are two of many attacks on journalists in Armenia who are just trying to do their job. The authorities need to ensure that media workers can do their work without fear of assault; effective, impartial investigations by Armenian authorities of these and similar incidents would be a good start.
Uzbekistan is going through a reform shake-up under president Shavkat Mirziyoyev, who last year took over the reins following the death of the authoritarian leader Islam Karimov. There have been some important human rights changes, but severe patterns of abuse still exist.
Many people are excited about the changes but Musaev, 50, is an unlikely candidate to be one of them. He was a senior official for Karimov’s administration for many years, and one of his representatives to NATO. Yet in 2006 he found himself facing bogus espionage charges, and was thrown in jail, convicted and sentence to 20 years in prison. Musaev was severely tortured, and his health suffered during his 11 years behind bars. But then, in August, he was released — one of more than 10 former political prisoners set free since Mirziyoyev assumed the presidency.
“Since my release I’ve written to president Mirziyoyev and offered to support what he is doing,” Musaev told us, referring to the president’s efforts to respond to ordinary people’s problems through a new network of local complaint centers across Uzbekistan.
Considering the horrors Musaev lived through in prison, his eagerness to look forward is both refreshing and deeply impressive. A specialist in military technology, Musaev worked in the 1990s for the Defense Ministry, at one point also joining a US-sponsored exchange program to study English in Texas. His NATO posting from 1997 to 2001 took him to Brussels, where he heard for the first time of concerns about Uzbekistan’s human rights record.
In 1999 he attended an EU-Uzbekistan meeting on human rights during which the EU representatives raised concerns about torture in Uzbek prisons. In the coffee break he recalls complaining to one of the European delegates: “There is no torture in Uzbekistan!”
He pauses in his story, the bitter irony clear to him — that this government official who defended Tashkent’s record would just a few years later himself suffer the torture he asserted did not exist.
Later, he went to work for the Tashkent office of the UN Development Program, working on border management issues.
He was arrested at Tashkent airport on January 31, 2006 and later coerced to sign a confession that he had spied for the US, the UK and UN. One theory is that Karimov was angry at Western governments’ critical reactions to the killing of hundreds of protesters by government security forces in the eastern Uzbek city of Andijan in May 2005. As a UN employee, Musaev was an attractive target.
Musaev said the circumstances of his arrest and interrogation would be laughable, if they were not so serious. The first reason border guards gave for arresting him was that they allegedly found a CD containing state secrets in his luggage. “The CD was planted in my luggage” Musaev said, noting that the guards were hardly subtle with their plan. “The CD was labelled clearly: ‘secret information, Ministry of Defense.’”
After months of interrogation and harrowing torture at his captors’ hands, Musaev “made up a history” of his alleged spy activities. Musaev explained that such a strategy was the only way to halt the torture. “The café I said I frequented did not actually exist, nor did the information I allegedly handled.”
While he was in detention UN bodies repeatedly said they had gathered credible evidence that Musaev was tortured in prison. But hearing about it from the man himself is chilling. Held in a cramped cell in the basement of the SNB security services for six months, he was beaten repeatedly on his head, chest and feet. He felt like there was also little oxygen to breathe properly. “Those torturers are still working there” he said.
In a 2008 public letter written after a prison visit, his wife, Rayhon Musaeva, said he had been beaten so badly his face was unrecognizable. He was deprived of sleep and water on occasion throughout his prison time.
“Often they would prevent us from sleeping for no reason, coming into my cell at 5 a.m. and forcing me to ‘take a jog’ in the prison compound in the freezing cold” he told us. “At times, they [prison guards] doused me with freezing cold water and then let me freeze. On another occasion, I was placed into an extremely cold, closed cell for 10 days straight.”
Musaev, an educated man who read books by Aleksandr Solzhenitsyn and Barack Obama while in jail, helped other prisoners write letters to relatives or to lodge complaints. “My prison nickname was ‘the writer,’” he said, estimating that he wrote 150 letters a year for himself and others. He admitted, however, that most, if not all, probably did not reach their destinations.
He also wrote a book while in prison, with stories about his fellow prisoners. But guards confiscated and destroyed the manuscript, suspicious because it was written in Russian, not Uzbek.
Even this story doesn’t disrupt his optimism. He is clearly determined to catch up with the outside world and move on with life as quickly as he can. He is brimming with ideas of how to make prisons more humane, noting some modest improvements under Mirziyoyev while stressing how unjust the overall system remains.
And does he have an underlying secret of how he survived and remained positive? His reply: “Solzhenitsyn says that we should fight for justice until the end. If we don’t get justice, then the repression will repeat itself. That’s’ what I’m trying to do.”
Hugh Williamson is the Europe and Central Asia director at Human Rights Watch. Steve Swerdlow is the Human Rights Watch researcher working on Uzbekistan. Human Rights Watch issued a report on October 24, 2017 assessing progress on human rights in Uzbekistan after a year under the country’s new president, Shavkat Miryziyoyev.
(Bishkek) – The Uzbek government during President Shavkat Mirziyoyev’s first year in office has taken some positive steps to improve the human rights situation, but should now transform them into institutional change and sustainable improvements, Human Rights Watch said today. The findings are based on Human Rights Watch’s first in-country research in seven years, including meetings and interviews with government officials, civil society activists, former political prisoners, and ordinary citizens.
Human Rights Watch also issued a video on recent developments in Uzbekistan. It includes comments by Muhammed Bekjanov, a former political prisoner who was one of the world’s longest-held journalists, imprisoned for nearly 18 years, until his release in February 2017.
“At this moment of hope for the country, the Uzbek government should transform the modest steps already taken in the right direction into lasting human rights protection for all of Uzbekistan’s citizens,” said Steve Swerdlow, Central Asia researcher at Human Rights Watch. “The test for Tashkent is to turn positive moves into enduring structural improvements.”
Mirziyoyev’s administration should make fulfilment of its international human rights obligations a hallmark of the country’s new political era, Human Rights Watch said. The Uzbek government should send a clear message that peaceful criticism of government policies – whether by rights activists, journalists, artists, or religious believers – will not merely be tolerated but genuinely valued in Uzbekistan’s transition to a more open and democratic society.
Last month, Human Rights Watch met with a wide spectrum of government officials and interviewed civil society activists, former political prisoners, relatives of current political prisoners, as well as ordinary citizens in Tashkent and other cities in Uzbekistan. The findings highlight the positive steps the Uzbek government has taken to improve the human rights situation and identify the key concerns it should urgently address to make improvements sustainable.
Mirziyoyev assumed the presidency in September 2016, following the death of Islam Karimov – the Central Asian country’s authoritarian ruler for 27 years – in late August. Since then, the Uzbek government has released at least 16 political prisoners, relaxed certain restrictions on free expression, removed citizens from the security services’ notorious “black list,” and increased the accountability of government institutions to citizens. It has also banned the forced mobilization of teachers, doctors, and college students to labor in fields for the annual cotton-picking season.
While these moves have offered hope that Mirziyoyev may break with the ruthless legacy of his predecessor, it remains to be seen whether Uzbekistan’s still-authoritarian political system will meaningfully improve and end grave abuses, including widespread torture, politically motivated imprisonment, and forced labor in cotton fields.
Detailed recommendations Tashkent should undertake to improve the human rights situation include immediately ending the practice of arbitrarily extending prison sentences, ensuring genuine media freedom, registering nongovernmental organizations that take on politically sensitive issues, and immediately abolishing exit visas required for foreign travel.
Uzbekistan in a New Political Era: Cautious Optimism for Change
A little more than a year has passed since Uzbekistan’s second president, Shavkat Mirziyoyev, assumed power after the death of Islam Karimov, the Central Asian nation’s former authoritarian leader. Since the transition, the Uzbek government has begun to take steps to improve the country’s abysmal human rights record.
These moves – coupled with currency reforms and a foreign policy pragmatically focused on repairing relations with Uzbekistan’s immediate neighbors Kazakhstan, Kyrgyzstan, Tajikistan, and Turkmenistan – have contributed to a sense of hope in Uzbekistan about the possibility for change not witnessed in many years.
President Mirziyoyev’s conscious attempt to break with the legacy of his predecessor is probably best exemplified by the extensive network of presidential reception centers established across the country, which have the specific task of responding to individual citizens’ grievances. For instance, Gulnora Ikramova, a long-time rights defender, explained that while the centers are not addressing serious rights abuses, they have, to her knowledge, on occasion proven effective in addressing everyday social, communal, and practical issues of citizens that had long been ignored during Karimov’s reign:
Many social problems that lingered for years under Karimov have now been resolved quickly by the [presidential reception] centers. Take our neighborhood, where the streets had been dark and dangerous for years. After my call to the center, street lights have finally been installed.
Mirziyoyev has also, unlike Karimov, been willing to acknowledge the persistence of human rights abuses, even on the international stage. The president’s highly publicized National Action Strategy 2017-2021, which is invoked regularly in official discourse and slogans that are prominently displayed, includes pledges to improve public administration, strengthen protections for vulnerable segments of the population, and liberalize the economy, as well as new legislation to strengthen judicial independence.
The optimism and heightened expectations of millions of Uzbeks are palpable inside the country. But it is far from clear if Uzbekistan’s still-authoritarian government will transform the modest steps it has taken thus far into institutional change and sustainable human rights improvements. Grave abuses such as torture, politically motivated imprisonment, and forced labor in the cotton fields remain widespread.
The tension present between positive moves and steps backward was especially apparent in October when, in the span of a few weeks, Uzbek authorities released five long-time held political prisoners – journalist Solijon Abdurakhmanov, political opposition activist Muhammadali Karabaev, and human rights defenders Azam Farmonov, Ganihon Mamatkhanov, and Akzam Turgunov – while arresting author Nurullo Muhammad Raufkhon and journalist Bobomurod Abdullaev on new charges.
Politically Motivated Imprisonment, Torture, Ill-Treatment in Detention
While the Mirziyoyev administration has yet to acknowledge the existence of politically motivated imprisonment in Uzbekistan, it has since September 2016 released at least 16 people imprisoned on politically motivated charges. They are: Solijon Abdurakhmanov, Muhammad Bekjanov, Botirbek Eshkuziev, Azam Farmonov, Bahrom Ibragimov, Davron Kabilov, Muhammadali Karabaev, Samandar Kukanov, Ganihon Mamatkhanov, Erkin Musaev, Bobomurod Razzakov, Davron Tojiev, Akzam Turgunov, Rustam Usmanov, and Ravshanbek Vafoev. In March 2017, authorities also released Jamshid Karimov, an independent journalist and Islam Karimov’s nephew, from forced psychiatric treatment.
The number of prisoner releases over the past year, especially five prisoners freed over a short period in October, stands in stark contrast with the one or two prisoners released each year on average during Karimov’s reign, and signals some hope that the Uzbek government could move toward freeing thousands of political prisoners in Uzbekistan.
Musaev, a former United Nations staff member convicted of fabricated charges of espionage was granted early release 11 years into his 20-year sentence. But most of the others had already reached the end or were within one or two years of the end of their prison terms – some of which had been arbitrarily extended on bogus grounds – or were elderly or in ill-health.
Human rights activists in prison include Mehrinisso Hamdamova, Zulhumor Hamdamova, Isroiljon Kholdorov, Gaybullo Jalilov, Chuyan Mamatkulov, Zafarjon Rahimov, Yuldash Rasulov, and Fahriddin Tillaev.
Journalists in prison include Bobomurod Abdullaev, Gayrat Mikhliboev, Yusuf Ruzimuradov, and Dilmurod Saidov.
Imprisoned religious figures and other perceived government critics include Aramais Avakyan, Ruhiddin Fahriddinov, Sobir Hamidkariyev, Nodirbek Yusupov, Dilorom Abdukodirova, and Ravshan Kosimov. Kudratbek Rasulov, an opposition activist, also remains behind bars.
Prison authorities in Uzbekistan also continue to use Article 221 of Uzbekistan’s Criminal Code regarding “violations of prison rules” to arbitrarily extend the sentences of people imprisoned on politically motivated charges.
In February, authorities released Muhammad Bekjanov, one of the world’s longest imprisoned journalists. He was kidnapped in Ukraine before his arrest in 1999, and severely tortured in prison, and his sentence was arbitrarily extended in 2012 by five years. In a meeting with Human Rights Watch in September 2017 at his home in northwestern Uzbekistan, Bekjanov described some of the torture he and other prisoners, including the currently imprisoned journalist Yusuf Ruzimurodov, suffered shortly after his kidnapping in Ukraine in 1999 and transfer back to Tashkent:
We arrived in Tashkent still blindfolded on the airplane, and (I noticed later) the skin on my arms was turning black from the handcuffs which almost cut through the bone they were on so tight. We were immediately taken to the Ministry of Internal Affairs basement, where the officers began beating our legs with rubber truncheons. They beat us all the time from the evening until the morning, only pausing for 5 or 10 minutes at a time. They broke my right leg, and when they got tired of beating my legs they beat other areas. After three days of that I could no longer walk and could not bear the beatings any further. This went on daily for at least a month and a half, as the officials tried to force me to make a false confession. When I refused they would beat me harder. They beat me so hard that I forgot the names of my own daughters.
Erkin Musaev, another former political prisoner, suffered harrowing torture in pretrial detention. He told Human Rights Watch in September 2017:
Often, they would prevent us from sleeping for no reason, coming into my cell at 5 a.m. and forcing me to ‘take a jog’ in the prison compound in the freezing cold. At times, they [prison guards] doused me with freezing cold water and then let me freeze. On another occasion, I was placed into an extremely cold, closed cell for 10 days straight.
The Uzbek government has also yet to fulfill the longstanding recommendation of UN bodies to close the Jaslyk prison colony – a detention facility long associated with some of the most egregious torture cases. Authorities continue to send people imprisoned on politically motivated charges there, including rights defender Azam Farmonov, until his release in early October.
Judicial Reform, Torture, and the Independent Legal Profession
The Uzbek government has emphasized judicial reform as a priority under the National Action Strategy and has adopted two recent presidential decrees – one in October 2016 and the other in February 2017 – designed to increase independence of the judiciary. In February, the government introduced a new institution – the Supreme Judicial Council – a body of the judiciary that, among other things, appoints, supervises, and disciplines or dismisses judges working in courts below the Constitutional and Supreme Courts and several other key courts. The decrees also put in place a system under which judges may gradually move to tenured appointments, increasing their independence from the executive branch.
While the extent to which these measures will improve citizens’ experience of justice in the court system remains to be seen, they have edged Uzbekistan’s judicial practices more closely in line with international standards outlined in the UN Basic Principles on the Independence of the Judiciary. Another amendment introduced in April reduced the time arrestees could be held in pretrial detention prior to a court hearing, from 72 to 48 hours, fulfilling a long-standing recommendation by the UN Human Rights Committee and the Committee against Torture.
These initiatives are important, not least because torture has been rampant in Uzbekistan and occurs with near-total impunity. Forum 18, a non-governmental organization that monitors religious freedom, recently reported a torture case in the northwestern city of Nukus, where police officers jailed a Jehovah’s Witness, hitting him “on his kidneys, chest, stomach, and face. They then demanded that he do 150 squat exercises without taking a rest. When he was able to do only 120, the officers again beat him in the face.” Later, police “kicked him on the back” and subsequently “[in freezing conditions] poured cold water on the floor of the cell and kicked him in the head.”
In September, lawyers reported to Human Rights Watch that the rights of detainees are routinely violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. Suspects are often not permitted meaningful access to lawyers, and police use torture to coerce confessions from detainees. Authorities routinely refuse to investigate allegations of abuse. Uzbek authorities will need to take demonstrable and verifiable action to end this situation and hold those responsible to account.
Since 2013, the International Committee of the Red Cross (ICRC) has not carried out independent monitoring of Uzbekistan’s prisons and places of detention. In 2013, ICRC announced its suspension of its monitoring programs due to an inability to conduct prison visits and confidential meetings with prisoners free of government interference. In meetings with Human Rights Watch in September, Uzbek government officials acknowledged the importance of the ICRC’s monitoring role, indicating an openness to the organization resuming its work. Officials also said that ratification of the Optional Protocol to the Convention against Torture (OPCAT), is currently under consideration.
The government has also increased the independence of Uzbekistan’s Ombudsman for Human Rights, Ulugbek Muhammadiyev, appointed just two years ago. An August 2017 law enables the Ombudsman’s Office to intervene on behalf of citizens in various legal cases as a pro bono public defender, and the provision of an independent line-item for the ombudsman’s activities in Uzbekistan’s state budget increases the office’s independence from other executive branches of government. The August 2017 law brought the powers of the human rights ombudsman closer into line with the UN “Paris Principles” that relate to the status and functioning of national institutions for the protection and promotion of human rights.
In September, Ombudsman Muhammadiyev told Human Rights Watch about his office’s increasing efforts to conduct unannounced monitoring visits of prisons across Uzbekistan and to create more opportunities for citizens to meet with his office and lodge appeals. Such efforts are important and positive, but Human Rights Watch also learned of efforts by prison officials, as recently as April 2017, to intimidate prisoners during the ombudsman’s prison visits, and of more systematic efforts to confiscate the written appeals prisoners prepare and attempt to send to his office and other government officials. Erkin Musaev, a political prisoner released in August, told Human Rights Watch about his experience when the ombudsman visited his prison, the Bekobod prison colony, in April 2017:
Ten minutes before the ombudsman’s arrival they lined up prisoners for our cellblock. They asked two of them to step forward and beat them up brutally in front of all of us. ‘Just try to complain about our prison to the ombudsman when he comes,’ they said, ‘and you’ll see what happens to you.’ Other prisoners who attempted to see the ombudsman were ‘re-directed’ to the warden’s office and kept there until after the ombudsman had left. They set out special food items and cleaned the prison before he came and then to compensate for the money spent fed the prisoners stale meat for the next week. After that experience, I wrote a letter to the ombudsman pleading with him not to come back to our prison.
Lawyers also told Human Rights Watch that a 2009 law that restructured the legal profession and abolished the previously independent bar associations, subordinating their replacement to the government, continues to severely restrict the independence of lawyers. Under the new law, all lawyers were required to re-apply for their licenses and to re-take a bar examination every three years. In the eight years since, several lawyers who consistently take on politically sensitive cases or raise allegations of torture have been disbarred, or otherwise left the profession and there has been a chilling effect on those who remain licensed to practice.
During Hussein’s visit, Tashkent agreed to resume cooperation with the high commissioner’s regional office in Bishkek. In public comments Hussein commended Mirziyoyev for his stated commitment to reforms and urged him to follow through on releasing wrongfully imprisoned activists, cooperate with UN human rights monitors, end forced labor, and lift restrictions on media. Later, the Uzbek government announced it would allow a permanent representative of the Office of the High Commissioner for Human Rights to be based in Tashkent. There are 13 other UN mandate holders with outstanding requests to visit Uzbekistan who have been refused access since 2002, including the special rapporteurs on torture, the situation of human rights defenders, and the independence of lawyers and judges.
In his speech to the UN General Assembly in September 2017, Mirziyoyev seemed determined to move on from Karimov’s legacy, expressing the goal to build “a democratic state and a just society” where “human interests come first.” Mirziyoyev added: “We are deeply convinced that people must not serve government bodies, rather government bodies must serve the people.”
In contrast to the situation under Karimov, the Mirziyoyev administration has slightly relaxed restrictions on the holding of modest peaceful demonstrations, such as those by the small group of activists who make up the Human Rights Alliance of Uzbekistan, headed by veteran rights activist Elena Urlaeva. But critical voices, including independent rights activists, journalists, and lawyers, are still largely suppressed.
Civil society in Uzbekistan continues to operate under tight restrictions, and no independent domestic human rights organization has been allowed to register since 2003. Additionally, a June 2015 law strictly regulates the activities of nongovernmental organizations, requiring an onerous and burdensome process of receiving prior approval from the Ministry of Justice by at least 20 days before conducting virtually any activity. Many local and international nongovernmental organizations have reported that the June 2015 law has seriously hindered their ability to operate.
Government officials in September reported the existence of thousands of nongovernmental organizations in the country, but offered no information on attempts by the Ministry of Justice to invite activists and groups who work on politically sensitive or critical civil and political issues to gain legal registration. In contrast, one long-time human rights activist whose name is being withheld for security reasons and whose organization monitors religious freedom and civil and political rights reported that he had attempted to obtain registration unsuccessfully for seven years and had still been unable to do so in the year since Mirziyoyev assumed the presidency.
By contrast, civil society groups that work on social and economic issues appear to have greater flexibility to operate within strict regulations set by authorities. There were also tentative signs the space for broader nongovernmental organization activity could widen. In September, Human Rights Watch had contact with a range of nongovernmental organizations working on women’s rights, environmental issues, and the rights of people with disabilities, and heard from NANNOUZ, an nongovernmental organization umbrella association, about work to support people living with HIV/AIDS. Still, one nongovernmental organization working on socio-economic issues said it still faced intimidation by authorities.
In March, authorities forced long-time rights activist Elena Urlaeva to stay in a psychiatric hospital for nearly a month in retaliation for her work. Authorities detained her again in October, this time with the photojournalist Timur Karpov as they tried to monitor conditions for laborers in Uzbekistan’s cotton fields.
Mirziyoyev announced in August that the country’s exit visas – a Soviet relic that authorities have used as a tool to prevent a wide array of perceived critics, including artists and activists, from foreign travel – would be abolished in January 2019.
While the media sphere remains highly controlled, in July a new 24-hour news channel, Uzbekistan 24, featured criticism of Karimov’s economic and social policies. Earlier in 2017, Uzbekistan 24 began regular broadcasts of talk shows on topical issues, including social and economic and social, concerns, and but at times more sensitive subjects such as on child labor in the cotton sector. For a brief period, these programs were broadcast live, but this ended abruptly in August, although broadcasts of recorded versions of the shows continues. Local media outlets such as kun.uz have acquired a reputation for more critical reporting.
The Uzbek government has made overtures to international media, giving access to a reporter from the Wall Street Journal, hosting an Organization for Security and Cooperation in Europe (OSCE) media forum in October that included several journalists, and inviting others to upcoming international conferences. The government announced in June that the BBC’s Uzbek service would be allowed to base a correspondent in Tashkent, although accreditation has not yet been issued. In the past year, however, other reporters from international outlets, such as the German reporter Edda Schlager, have been detained during their reporting trips.
On September 27, Uzbek security services detained Bobomurod Abdullaev, an independent journalist, in Tashkent, on what appears to be a politically motivated charge. He was charged with “attempts to overthrow the constitutional regime” under Article 159 of Uzbekistan’s Criminal Code, and faces up to 20 years in prison. He remains in custody.
On the same day, police also detained Nurullo Muhummad Raufkhon, an Uzbek author, at Tashkent airport, after he arrived from Turkey following two years of exile. He was charged with extremism for his book Bu Kunlar (These Days), which criticizes Karimov. He was released on October 1, but still faces charges.
To date, the internet in Uzbekistan is highly censored, with access blocked to many critical websites, including independent media such as Fergana News, Radio Free Europe’s Uzbek service, and other sources of news.
Freedom of Religion
Since the late 1990s Uzbekistan has maintained some of the world’s most restrictive policies on the exercise of worship or belief. Authorities highly regulate religious worship, clothing, and sermons delivered by the country’s imams, and ban all forms of proselytism. Peaceful religious believers are often branded “religious extremists.”
Following his two-week visit to Uzbekistan this month, the UN special rapporteur on freedom of religion or belief summarized his findings that while Uzbek laws theoretically guarantees freedom of religion, in practice religious practice is subject to “excessive regulations that prioritize security over freedom,” with the government’s approach promoting “toleration instead of freedom.” He said that “[w]hat is required is not just the adoption of new laws, but also meaningful institutional reform, and credible change on the ground.”
The government has for many years maintained a “black list” – made up of thousands of individuals suspected of belonging to unregistered or extremist groups. Those on the list are barred from obtaining various jobs and travel, and must report regularly for police interrogations.
In August 2017, authorities announced a reduction of the number of people on the “black list” from 17,582 to 1,352, softening certain religious freedom restrictions. In public remarks accompanying the move, President Mirziyoyev emphasized the need to rehabilitate citizens who had been “misled” by radical groups.
Despite this positive move, thousands of religious believers – religious Muslims who practice their religion outside strict state controls – remain imprisoned on vague charges of extremism. In May, authorities convicted 11 Muslims on extremism charges that appeared fabricated. Surat Ikramov, a human rights activist, said the charges were bogus, that the men only “ate, rested, and prayed together,” and that the men’s confessions were procured through torture.
Followers of the late Turkish Muslim theologian Said Nursi are prosecuted for religious extremism. Hundreds of Nursi followers have been arrested or imprisoned in the last decade. Authorities harass Christian communities. In April, a court in the northwestern Karakalpakstan autonomous region imposed short prison terms on four Protestant men – Marat, Joldasbai, Atamurat, and Salamat. Judge Sailaubai Mambetkadyrov of the Criminal Court in Nukus, Karakalpakstan’s regional capital, handed down the 15-day prison terms to punish them for meeting for worship in a home.
Authorities continue to arbitrarily extend sentences of religious prisoners for alleged violations of prison regulations. Such extensions occur without due process and can add years to a prisoner’s sentence, raising concerns that the practice appears designed to keep religious prisoners behind bars indefinitely.
For example, as reported by Forum 18, imprisoned rights defender and religious believer Mehrinisso Hamdamova was sentenced on politically motivated charges of extremism to seven years in April 2010. She was due to be released in November 2016 but, despite suffering from a myoma (a tumor associated with uterine cancer), was given an additional three-year prison term. In August 2016, her sister Zulhumor who had been due for release in May 2016, had her prison term extended by three years for alleged violation of prison rules. Both sisters’ health has long caused serious concern, and authorities have denied them medical treatment.
Forced Labor in the Cotton Fields
For years the Uzbek government has forced Uzbek citizens, including education and health workers, students, and people receiving public benefits, to pick cotton for the state-run cotton industry involuntarily and under the threat of penalty, such as dismissal or expulsion from their jobs or loss of benefits.
In September 2017, the Uzbek government recalled university students and some health and education workers from forced labor in the cotton fields. But other workers remained involuntarily in the fields or faced extortion to pay for workers to replace them if they left. On September 21, 2017, Prime Minister Abdulla Aripov ordered officials to recall students and education and medical workers, who had been picking cotton under threat of penalty since the harvest began on September 10, despite an August degree banning the recruitment of such workers.
Bringing students home from the fields is a significant change and shows the importance of political will in ending forced labor. Now it is crucial for Uzbekistan’s international partners, including the United States, European Union, other states, and international financial institutions, to urge the government to allow all involuntary workers to return from the fields without penalty – including being required to pay for someone else to work in their place – and to monitor and publicly report on findings.
Mirziyoyev addressed forced labor in his speech to the UN General Assembly. It was the first time an Uzbek president acknowledged the issue on the international stage, after a decade of international pressure from governments and other stakeholders and campaigning by the Cotton Campaign – a global coalition of human rights, labor, investor, and business organizations dedicated to eradicating child labor and forced labor in cotton production. Forced labor was raised again in a meeting with the World Bank president, Jim Yong Kim, on September 20.
These significant developments show that Uzbekistan can end the decades-long practice of mobilizing massive forced labor to harvest cotton. But these positive steps should not obscure the persistence of forced labor in the current cotton harvest or the continuing threats against activists trying to monitor the situation. The Uzbek government should follow these steps with meaningful reforms to end this repressive and exploitative form of production once and for all.
Preliminary monitoring by independent monitors in September and October shows that teachers and health care workers in some districts were recalled, but workers in other districts were not. Interviews with independent monitors revealed that even as workers are being brought back from the fields, some local officials are extorting funds from businesses and individuals to pay for “replacement” workers. In some areas, returning teachers were made to pay about US$40, half their monthly wage, to hire a replacement worker.
In the Fergana region, officials told business owners that refusal to participate in the collection would be tantamount to an “anti-state action” that would result in a visit from the tax inspector. Most independent monitors continue to work in secret because authorities carried out multiple arrests and even physical assaults on monitors during the 2015 and 2016 harvests.
Independent monitors told Human Rights Watch in September 2017 that in various regions, such as Bukhara, public sector workers were forced to sign forms that they would “voluntarily” pick cotton. Human Rights Watch also learned of instances, such as in the Parkent district of the Tashkent region, where authorities forced teachers and medical personnel to conceal their actual professions when signing up to participate in the harvest.
For the third year in a row, the International Labour Organization (ILO) has contracted with the World Bank, which has invested more than US$500 million in projects that benefit agriculture, to monitor forced and child labor in World Bank project areas. A recent letter from the American Apparel & Footwear Association (AAFA) expressed serious concern regarding the ILO’s monitoring methodology and recommended improvements in its mandate during the 2017 harvest.
All stakeholders, including the ILO and the World Bank, should closely monitor the situation on the ground from the harvest, including information provided by nongovernmental monitors, and judge progress toward eliminating forced labor in terms of how that reality matches the president’s statements.
This is a real moment of hope for the human rights of the Uzbek people. The key is for the Uzbek government to transform the modest steps it has taken thus far into institutional change and sustainable improvements. The Uzbek government should consolidate the country’s new political era by acting to fulfil its international human rights obligations.
Mirziyoyev’s government should send an unambiguous message that peaceful criticism of government policies – whether by human rights activists, journalists, artists, or religious believers – is inherently valued and useful in Uzbekistan’s transition to a more open and democratic political era. The following are specific recommendations Human Rights Watch urges the Uzbek government to take to improve the human rights situation:
Immediately and unconditionally release all wrongfully imprisoned human rights defenders, journalists, members of the political opposition, and other activists held on politically motivated charges;
End the practice of arbitrarily extending prison sentences for minor offenses or “violations of prison rules” under article 221 of the criminal code;
Take meaningful measures to end torture, implementing in full the recommendations of the UN special rapporteur on torture, the UN Committee Against Torture, and the UN Human Rights Committee, including closure of the Jaslyk prison colony, the resumption of prison monitoring by the International Committee of the Red Cross (ICRC), and the ratification of the Optional Protocol to the Covenant against Torture (OPCAT);
Ensure genuine media freedom, end censorship of the internet, cease harassment of journalists, and allow domestic and international media outlets, including those that have been forced to stop operating in Uzbekistan, to register, and grant accreditation to foreign journalists;
Allow domestic and international human rights organizations to operate without government interference, including by promptly re-registering those that have been liquidated or otherwise forced to cease operating in Uzbekistan;
Repeal the June 2015 law which imposes on nongovernmental organizations the onerous and burdensome process of receiving prior approval from the Ministry of Justice for a variety of activities;
Immediately abolish the system of exit visas required for Uzbek citizens to travel abroad;
End religious persecution, including by decriminalizing peaceful religious activity, and ending the imprisonment of thousands of people for their nonviolent religious expression;
Build on the visit by the UN special rapporteur on freedom of religion in October 2017, issue invitations to the remaining 13 UN monitors who have asked to visit Uzbekistan, and implement recommendations by independent monitoring bodies, including UN treaty bodies and special procedures;
Effectively end forced labor of adults in the cotton sector, implement fully government decrees banning the mobilization of public sector workers and students, allow independent nongovernmental organizations and activists to conduct their own monitoring without harassment; and
Ensure accountability for the 2005 Andijan massacre, during which government forces shot and killed hundreds of mostly peaceful protesters, and cease harassment and other abuses of refugees who returned to Uzbekistan after leaving the country following the massacre, and of families of refugees who remain abroad.
Jonathan R. Cantor
Acting Chief Privacy Officer
U.S. Department of Homeland Security
Washington, DC 20528-0655
October 18, 2017
Re: 82 Fed. Reg. 43556, Docket No. DHS-2017-0038
Dear Mr. Cantor:
We, the undersigned organizations, write to express our concerns with the Department of Homeland Security (DHS) System of Records Notice, issued on September 18, 2017, Docket No. DHS-2017-0038 [82 FR 43556], stating that DHS will now store social media information in ‘Alien Files’ (A-Files), which include the official record of an individual’s visa and immigration history. Alien registration numbers, and their related A-File, are assigned to people who plan to make the United States their home, and also to certain categories of non-immigrants who are granted employment authorization. This includes naturalized citizens, lawful permanent residents (green card holders), immigrant visa holders, asylees, and special immigrant juveniles, and student visa holders with optional practical training. DHS retains these records for immigrants even after they become U.S. citizens.
DHS has stated that this notice is not a departure from existing protocol. However, the notice does appear to indicate that social media review is becoming a more prominent and routine component of DHS’s immigration screening procedures. The notice raises concerns that the collection, retention, use, and sharing of social media information will (1) invade the privacy of immigrants and U.S. citizens alike; (2) chill freedom of speech and association; (3) invite abuse in exchange for little security benefit; and (4) establish a system that treats naturalized citizens as second-class citizens. Finally, the notice’s lack of clarity compounds many of these concerns. For these reasons, we urge that DHS not retain social media information in A-Files.
I. Retention of Social Media Information Will be Highly Invasive.
The notice reflects that DHS is collecting, and will now be retaining, using, and sharing, potentially vast amounts of social media information that will implicate both immigrants and U.S. citizens and expose their social media content to a myriad of entities, making this a highly invasive proposal.
The notice states that “social media handles, aliases, associated identifiable information, and search results” may now be included in individuals’ A-Files. Yet “social media” is not defined, and could be broadly interpreted to include any online platform or site that enables users to publicly post content, communicate with each other, or communicate with the operator or host. That could encompass the gamut of someone’s online activity, including not only Twitter and Facebook, but also platforms that might reveal professional networks, romantic interests, shopping habits, and news and entertainment consumption. Nor does the notice define “search results,” leaving people to wonder what specific content will be amassed in the A-Files.
Immigrants are already required to provide DHS with a great deal of personal information, but this notice contemplates the collection, retention, and sharing of particularly sensitive information. Even if DHS is only retaining publicly available social media content, government scrutiny of such content implicates significant privacy and speech interests. Public social media content, when aggregated and analyzed, can reveal intimate information, including an individual’s political and religious beliefs, and her network of family, friends, colleagues and affiliations. People use social media platforms to organize social activities, demonstrations, and celebrations of customs and religious practices.
Public social media can also reveal more and different information than people may realize or intend to convey. Privacy settings are not always fully understood or utilized and may be changed by the platform without notice to the user. Profiles can contain long-forgotten posts and group memberships as well as content posted by other users.
Further, a government request for social media identifiers jeopardizes the right to and benefits of online anonymity or pseudonymity, as many platforms enable profile owners to employ pseudonyms and to shield their legal identities from their public postings. When individuals provide the handles of their anonymous or pseudonymous profiles to the government, their ability to exercise the right to anonymity, and the benefits that stem from it, are compromised.
This policy impacts naturalized and U.S.-born citizens. In 2015, there were almost 45 million immigrants in the United States, 50 percent of whom are naturalized citizens. Immigrants’ social media information collected and then retained under this notice will remain part of their A-Files for DHS’s 100-year file retention period (and then indefinitely as the files are transferred to the National Archives and Records Administration), even after an immigrant has completed the naturalization process and become a citizen. Further, many naturalized and U.S.-born citizens interact with immigrants in their social networks, meaning the social media content of these citizens will also be subject to scrutiny.
Finally, the notice permits information in A-Files to be shared widely with a host of other government and private entities for a myriad of reasons, including to enforce a regulation or to obtain information for an investigation. This notice permits the contents of A-Files to be shared with other U.S. government agencies, state and local authorities, foreign governments, and even employers and private parties, which amplifies our concerns over the collection and retention of such personal and sensitive content.
II. Retention of Social Media Information Will Chill Free Speech and Free Association.
It is difficult to overstate the impact that the retention of immigrants’ social media information could have on their exercise of their rights to freedom of speech and association. Knowing that their social media content will or could be monitored, these individuals will feel pressure to self-censor, delete their social media accounts, and disengage from online spaces, with negative consequences for their social, political, and business activities. Immigrant activists have long been responsible for important reforms in our society, and government social media monitoring will jeopardize their vital engagement in civic action. As immigrants feel restrained in their freedom of speech, the public will lose valuable voices and perspectives in public debate, and immigrants will miss out on educational, social, and business opportunities.
DHS’s policy will also chill the expressive activities of both naturalized and U.S.-born citizens’ free speech because DHS will have collateral access to these individuals’ social media content. Knowing this, citizens may sanitize or delete their social media profiles. They may also limit their engagement with immigrants for fear of surveillance, chilling the exercise of their free association rights while stigmatizing and isolating immigrant communities. This fear could drive some to limit their online activity across the board, since individuals likely will not know the immigration status of the people they may casually interact with by liking an image or retweeting a post.
Finally, U.S. government policies inevitably will be replicated in other countries with weaker protections for fundamental rights. The data policy announced in the notice increases the likelihood that U.S. citizens traveling or emigrating to other countries will be subjected to this very type of surveillance in the future.
III. Retention of Social Media Information Invites Abuse in Exchange for Little Security Benefit.
The government should not be making consequential immigration determinations using information as subjective and context-dependent as that found on social media. Social media communication, like most human interactions, is idiosyncratic. Deciphering the meaning of statements is difficult without an intimate understanding of the context in which they are made. Parsing meaning from text is particularly difficult when communications employ slang, sarcasm, or non-textual information including emojis, GIFs, and “likes.” Immigrants’ social media content will also often contain foreign languages, further increasing the complexity of analyzing this information. Interpretive errors are thus not only likely but inevitable, suggesting that the relevance and predictive value of social media is likely to be minimal.
And the stakes for immigrants are high. Misinterpreted social media content could become grounds for determinations of inadmissibility and removability, or it could be used as a bar to a showing of good moral character in a naturalization proceeding. Depending on the setting, an immigrant may have little opportunity or real ability to explain their social media content, clarify misunderstandings, or contest inaccuracies. In addition, collection and retention of this information creates the risk that improper negative inferences will be drawn from an immigrant’s personal beliefs or opinions, and neither the notice nor DHS’s subsequent statement include assurances against such uses.
There is no reason to believe that collecting and retaining this information will yield a significant security benefit. DHS appears to believe that it can identify potential security threats by scrutinizing people’s online speech, but research shows that such expressive conduct is not a valid predictor of one’s propensity to commit an act of violence. Furthermore, a recent independent audit of DHS’s social media pilot programs raised serious questions about the validity and efficacy of the programs. The audit found that insufficient metrics were in place to measure the programs’ effectiveness, and that absent valid metrics and evaluation criteria, the programs would be of little utility in planning or implementing additional social media screening initiatives. DHS should not be keeping data from its monitoring and collection programs when it has not demonstrated that the programs themselves are effective.
Finally, social media screening is easy for bad actors to circumvent. Knowing that DHS will be combing through social media data, would-be criminals and terrorists can simply delete or manipulate their online social media behaviors, and disclose only newly-created, sanitized social media accounts to DHS during the immigration process in order to deflect attention. Thus, the kind of social media monitoring DHS is contemplating would be invasive, potentially abusive, and likely expensive, while yielding little actual security benefit.
IV. Indefinite Retention of Naturalized Citizens’ Social Media Information Effectively Treats Them as Second-Class Citizens.
DHS’s policy will relegate the over 20 million naturalized citizens in the United States to second-class status. Under this policy, the government will routinely retain stores of social media content associated with a naturalized citizen for effectively the rest of the citizen’s life: DHS retains A-Files for 100 years after an individual’s birth date, after which they are sent to the NARA for permanent retention. As noted above, the sharing and use authority for this notice is broad, permitting DHS and other officials to use and disseminate the social media information (and other content in A-Files) for a variety of purposes, including for intelligence gathering and counter-terrorism. On the other hand, U.S.-born citizens can engage with social media knowing that specific government scrutiny of their individual public online activity will be unlikely. The existence of a persistent dossier of a naturalized citizen’s social media activity will mean that these citizens face scrutiny of the record of their past social media activity in ways that U.S.-born citizens will not routinely face.
V. The Notice and DHS’s Statement Lack Clarity.
The lack of clarity surrounding the DHS proposal heightens the concerns discussed above. The notice and DHS’s subsequent statement on the matter do not provide answers to the many questions that have been raised. For example, will social media information that is collected before someone becomes a naturalized citizen be used and shared after they have become a citizen? Will social media information be collected about someone after they have become a naturalized citizen? Will the retention and screening of social media information occur solely at the time an individual applies for a benefit, or will this surveillance be ongoing? Further, there is no indication as to why social media information is being retained at all. The lack of clarity in DHS’s plans for implementing this policy creates confusion and fear for the immigrants impacted by this policy, which, as noted above, will manifest in a retreat from online communities at great personal and public cost.
The DHS notice details government practices that are highly invasive and that will chill freedom of speech and association, invite abuse in exchange for little security benefit, and will reduce naturalized citizens to second-class citizenship. The notice’s lack of clarity also compounds some of these concerns.
Over the past year, there has been an increase in government policies singling out immigrants for disfavored treatment. This notice and the underlying government practices it documents contribute to a climate of fear among immigrant communities about surveillance and restriction of their liberties. We urge DHS not to retain social media information in A-Files.
Advocacy for Principled Action in Government
American Civil Liberties Union
American-Arab Anti-Discrimination Committee (ADC)
The Archivists Round Table of Metropolitan New York, Inc. (A.R.T.)
Association of Research Libraries
Brennan Center for Justice at NYU School of Law
Center for Democracy & Technology
The Concerned Archivists Alliance
The Constitution Project
Defending Rights & Dissent
Electronic Frontier Foundation
The Freedom to Read Foundation
Human Rights Watch
Information Technology and Innovation Foundation
National Coalition Against Censorship
National Immigration Law Center
National Immigration Project of the National Lawyers Guild
National LGBTQ Task Force
New America’s Open Technology Institute
Resilient Communities, New America
The Society of American Archivists
Woodhull Freedom Foundation
 References to immigrants herein will refer to all individuals who receive Alien Registration Numbers, and therefore have A-Files.
 Novak, Matt, “US Homeland Security Says Tracking Social Media Is Nothing New.” Gizmodo (Sept. 28, 2017) http://ift.tt/2iylwPs…(“The notice did not announce a new policy. The notice simply reiterated existing DHS policy regarding the use of social media”).
 Department of Homeland Security, Official Usage of Publically Available Information (2015) p. 3 available athttp://ift.tt/2iylxTw…(“The sphere of websites, applications, and web-based tools that connect users to engage in dialogue, share information and media, collaborate, and interact. Social Media takes many different forms, including but not limited to web-based communities and hosted services, social networking sites, video and photo sharing sites, wikis, blogs, virtual worlds, social bookmarking, and other emerging technologies.”).
 Zong Jie, & Batalova, Jeanne, “Frequently Requested Statistics On Immigrants and Immigration in the United States”, Migration Policy Institute (March 8, 2017), http://ift.tt/2iylyqy…. Note: the Census Bureau, which is where MPI pulled this statistic, defines immigrants to include naturalized citizens, lawful permanent residents, refugees and asylees, persons on certain temporary visas, and the unauthorized. Not all 45 million immigrants as defined by the Census Bureau would have A-Files. However, the Census Bureau does not have statistics on the number of immigrant visa holders, so the definition is also under-representative. In 2013, DHS had about 70 million active A-Files, which are retained for 100 years from the immigrant’s birth, so this figure may include immigrants who are deceased. Department of Homeland Security Shared Use of Alien Registration Files by U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement, National Archives and Records Administration (2013) available athttp://ift.tt/2h98pkd.
 See United States v. Jones, 565 U.S. 400 (2012) at 416 (Sotomayor, J., concurring) (“Awareness that the Government may be watching [public movements] chills associational and expressive freedoms.”).
 See, e.g. Ahmed Abbasi, Ammar Hassan & Milan Dhar, Benchmarking Twitter Sentiment Analysis Tools, http://ift.tt/2h9Rz4s…(finding that the most common errors in text-analysis tools involved use of jokes, sarcasm, and literary devices in social media postings).
 Patel, Faiza & Koushik, Meghan, Countering Violent Extremism, Brennan Center for Justice (2017) p. 15 available athttp://ift.tt/2h9RzBu…(“Extreme or radical views are often assumed to lie at the heart of terrorism. But evidence shows that
the overwhelming majority of people who hold radical beliefs do not engage in, nor support, violence.”).
 Office of Inspector General, DHS’s Pilots for Social Media Screening Need Increased Screening to Ensure Scalability and Long-term Success (Feb. 27, 2017) available athttp://ift.tt/2rwqTPC.
 Zong Jie, & Batalova, Jeanne, “Frequently Requested Statistics On Immigrants and Immigration in the United States” Migration Policy Institute (March 8, 2017), http://ift.tt/2iylyqy….
 Privacy Impact Assessment Fraud Detection and National Security Directorate DHS/USCIS/PIA-013 (Sept 2013) p. 4 available athttp://ift.tt/2izq1ZY….
(New York) – Newly released documents reveal a US Defense Department policy that appears to authorize warrantless monitoring of US citizens and green-card holders whom the executive branch regards as “homegrown violent extremists,” Human Rights Watch said today. Separately, the documents also reinforce concerns that the government may be gathering very large amounts of data about US citizens and others without warrants. Both issues relate to a longstanding executive order that is shrouded in secrecy and should be a focus of congressional inquiry.
The new materials, which Human Rights Watch obtained through a freedom of information request, are training modules that primarily concern Executive Order 12333 (EO 12333). That order broadly governs the US intelligence agencies’ activities, and includes provisions allowing the agencies to collect information on US persons – meaning US citizens and lawful permanent residents, as well as some corporations and associations – in a manner the government has never fully explained to the public. The training slides largely summarize Defense Department procedures concerning EO 12333 that were released in 2016, updating a 1982 version. Using plain language to demystify the procedures’ phrasing, the slides offer hints about Defense Department intelligence practices that require further inquiry and exposure.
“These documents point to just how thoroughly the public has been kept in the dark about warrantless surveillance under Executive Order 12333,” said Sarah St.Vincent, US surveillance and national security researcher at Human Rights Watch. “Their explanations of the order suggest that the government may be carrying out monitoring that poses serious problems for human rights, and Congress should seek more information about what the intelligence agencies are doing in this respect.”
One of the documents’ most troubling aspects is the indication that the Defense Department has authorized its intelligence components to carry out at least some forms of monitoring of US persons without a warrant, based on designations that use unknown and potentially discriminatory criteria. Specifically, one of the training documents indicates that this monitoring is permitted for US persons whom the government regards as “homegrown violent extremists” (referred to as “HVEs” in the slides) – even when they have “no specific connection to foreign terrorist(s).” The government’s basis for this authorization is a revised definition of “counterintelligence” collection found in the 2016 procedures.
The procedures address several forms of surveillance, and it is unclear which types the government plans to use when monitoring “homegrown violent extremists.” However, a current senior Defense Department official who provided comments to Human Rights Watch on condition of anonymity stated that “the [Department’s] counterintelligence elements would be unable to collect necessary information on potential HVEs” without this change.
The Defense Department official did not respond to a question from Human Rights Watch about whether the monitoring of US persons under this policy may include electronic surveillance. If it does, this would raise concerns that the government is violating – or believes it is exploiting a possible loophole in – federal law, which generally prohibits deliberate spying on the content of US persons’ telephone or internet communications without a warrant.
The authorities may only obtain such a warrant if they show probable cause to believe that the person has committed or is about to commit a crime, or that the person is “a foreign power or an agent of a foreign power.” The disclosure of the government’s policy regarding the surveillance of “homegrown violent extremists” who are not connected to a foreign group raises concerns about whether intelligence and/or law enforcement bodies are using EO 12333 to do an end-run around these legal protections.
Human Rights Watch is also concerned about the methods and criteria the government may be using to define and identify “homegrown violent extremists,” and particularly about the risk that people who are exercising their legitimate free-expression rights will be targeted for monitoring in a discriminatory or arbitrary manner. As an example of “homegrown violent extremists,” the Defense Department official who commented to Human Rights Watch pointed to individuals who “may be self-radicalized via the internet, social media, etc., and then plan or execute terrorist acts in furtherance of the ideology or goals of a foreign terrorist group.” However, the official did not respond to a question about the criteria the executive branch uses when designating a US person a “homegrown violent extremist” for the purposes of this policy.
Additional questions remain about the range of agencies that may warrantlessly monitor such individuals. The Defense Department official’s comments imply that the policy disclosed in the slides applies to the Department’s “counterintelligence elements,” such as the Naval Criminal Investigative Service and the Air Force Office of Special Investigations. These bodies, the official stated, “investigate activities by active duty military members of their Service or [Defense Department] civilian personnel engaged in activities targeted against interests of their Service.” The official noted, “If the military counterintelligence elements conduct investigations of persons other than active duty military members, they do so jointly with the FBI [Federal Bureau of Investigation].”
Although the official’s remarks focused on the military counterintelligence bodies, further information is needed about whether other agencies – such as the National Security Agency (“NSA”) or the FBI – may rely on similar policies to identify and/or monitor US persons who do not have an affiliation with the military, Human Rights Watch said.
The Defense Department official emphasized that “counterintelligence collection against these, or any other individuals or groups, must be predicated upon the ‘reasonable belief’ standard, which is reviewed through the operational and legal chain of command prior to initiation of any activity. Field personnel may not rely solely upon ‘hunches’ or intuition’ as justification for the initiation of counterintelligence activities.” However, the government’s failure to disclose its methods and criteria for designating US-person “extremists” makes the effectiveness of these stated protections difficult to evaluate.
“The government’s authority to monitor people doesn’t depend on their beliefs, or what the government thinks they believe, but on specific evidence that gives sufficient reason to think a criminal offense is occurring or that the person is an agent of a foreign power,” St.Vincent said. “A secret determination that someone’s rights should be curtailed based on undisclosed criteria is incompatible with the rule of law. The government should explain what it’s doing as well as its legal basis for doing it.”
A separate problem to which some of the newly released materials point is the potential volume of data collection – including collection affecting US persons – under EO 12333. The 2016 procedures created the category of “special circumstances collection” to encourage the authorities to consider whether surveillance activities “raise special circumstances” and merit extra safeguards based on “the volume, proportion, and sensitivity” of US-person information the government is likely to obtain. (The category itself does not authorize any surveillance that could not otherwise take place under the order.) However, the training documents use the informal term “big data” to describe “special circumstances collection,” raising the possibility that the government may be carrying out or contemplating surveillance on a massive scale.
Documents revealed by the former NSA contractor Edward Snowden beginning in 2013 have indicated that the government uses EO 12333 as the basis for bulk communications surveillance programs overseas. However, these new references to “big data,” while fleeting, appear to represent one of the most direct acknowledgments yet by the government that warrantless monitoring under the order may entail seizing very large or systematic sets of data – including about US persons.
Details regarding the newly released documents are provided below, and the documents themselves are posted on the Human Rights Watch website. Human Rights Watch shared the documents with Reuters, which published a related story on October XX.
Human Rights Watch is also releasing documents obtained from the National Reconnaissance Organization and the Department of Homeland Security’s Office of Intelligence and Analysis.
The following are elements of the training documents obtained by Human Rights Watch that give rise to new concerns.
Expansion of warrantless Defense Department intelligence collection on US persons for “counterintelligence” purposes to include “homegrown violent extremists”
One of the documents indicates that pursuant to a 2016 change in procedures concerning Executive Order 12333, the Defense Department may now extend the monitoring of US persons for “counterintelligence” purposes to people the government regards as “HVEs,” which a senior Defense Department official consulted by Human Rights Watch confirmed means “homegrown violent extremists.” The official indicated that the term is “shorthand … used in the counterintelligence community to describe people who may not have a specific connection to a particular foreign terrorist group but are engaged in violent extremist activities, often following engagement with these groups’ propaganda on the Internet or social media, etc.”
The procedures themselves do not directly mention such “homegrown violent extremists,” instead providing in more general terms that the monitoring of US persons for “counterintelligence” purposes may extend to “[a]n individual, organization, or group reasonably believed to be acting for, or in furtherance of, the goals or objectives of an international terrorist or international terrorist organization, for purposes harmful to the national security of the United States.”
In indicating that this category includes “HVEs,” the training document depicts this expansion of the “counterintelligence” collection definition as a “[k]ey” change in the new procedures. The document indicates that the change allows the collection of intelligence on US persons even in the absence of a “specific connection to foreign terrorist(s).” As examples, it alludes to the individuals who carried out mass shootings in San Bernardino, California in 2015, and in Orlando, Florida in 2016.
The Defense Department’s methods and criteria for identifying “homegrown violent extremists” remain unclear, raising fears that the designation could be applied in ways that are arbitrary, inconsistent, or discriminatory. It is also unknown whether US persons who merely exercise their free-expression rights by visiting a controversial website, espousing certain political or religious views, or criticizing the government might be targeted.
The government also has not yet disclosed its legal justification for this policy, especially insofar as it involves any warrantless monitoring of US persons that would normally require a warrant under the Foreign Intelligence Surveillance Act, other statutes, or Fourth Amendment case law. The government should fully disclose the policy, its legal underpinnings, the type(s) of monitoring to which it may lead, and its anticipated and actual application.
Human Rights Watch remains concerned that several other aspects of this important policy change have not yet been publicly revealed. For example, as mentioned above, it is not yet clear whether the policy (or a similar one) may also apply to the NSA or non-Defense intelligence agencies, or whether people who have no affiliation with the Defense Department may be monitored.
“Special circumstances” collection and references to “big data”
The Defense Department procedures adopted in 2016 refer to the idea of “Special Circumstances Collection”: intelligence “collection opportunities” for which certain extra safeguards may be appropriate due to the “volume, proportion, and sensitivity of the [US person information] likely to be acquired,” as well as the “intrusiveness of the methods used to collect the information.” The Defense Department official Human Rights Watch consulted said the concept of special circumstances collection itself “does not provide any new or independent authority to conduct electronic surveillance”; that is, it does not give the Defense Department any powers it did not already have. However, the scope and scale of such collection is unknown, including the kinds of data that may be collected.
Two of the newly disclosed training documents suggest that at least some of the collection the government may be carrying out that falls into the “special circumstances” category includes the gathering of “big data” – a term that lacks a settled definition but can refer to enormous troves of information. These explicit references to “big data” raise renewed concerns that under EO 12333, the government may be sweeping up huge amounts of data containing private communications or other sensitive information – including information belonging to US persons. They may also be some of the most direct acknowledgments yet by the government itself of this possibility.
The possibility of the collection of “big data” is particularly troubling in light of the Defense Department’s power to disseminate “large amounts of unevaluated” information about US persons to entities both within and outside the federal government, as confirmed in the 2016 procedures.
Congress should seek, and the executive branch should provide, detailed explanations of the scale and nature of all “special circumstances collection” activities, including their impact on US persons.
“Physical surveillance” of non-US persons in the United States
The 2016 Defense Department procedures define “physical surveillance” as the “deliberate and continuous observation … of a person to track his or her movement or other physical activities while they are occurring, under circumstances in which the person has no reasonable expectation of privacy,” and say this monitoring may include the use of “enhancement devices” such as “binoculars or still or full motion cameras.”
The new training documents highlight a section of these procedures that allows the Defense Department’s intelligence components to conduct such physical surveillance of any non-US person in the US without a warrant, as long as the surveillance takes place for “an authorized foreign intelligence or [counterintelligence] purpose.” Non-US persons in the US include undocumented immigrants and temporary visa holders.
By comparison, the Defense Department’s intelligence components may only subject US persons in the US to such physical surveillance if they are current or prospective employees of (or contractors for) those components, or if they are members of another element of the armed services.
The senior Defense Department official Human Rights Watch consulted indicated that this new provision of the procedures “was needed to maintain [a] long standing rule that allows the physical surveillance of non-U.S. persons inside the U.S.” This rule was not stated explicitly in the earlier version of the procedures, although the government appears to view it as having been implicit.
The rule raises troubling questions about whether the government, contrary to the general understanding that all persons in the territory of the US enjoy rights under the constitution, believes it has wider latitude to engage in national security or criminal surveillance of non-US persons in the US than it does to surveil US citizens and green-card holders in the country. The policy also prompts questions about its potential effect on any US persons who become caught in a dragnet intended for non-US persons.
“Physical surveillance” does not include communications surveillance. However, some activities that may qualify as “physical surveillance” may have Fourth Amendment implications: for example, US federal courts arecurrentlydivided as to whether the government needs a warrant for continuous video monitoring of areas that are visible to the public. The government should clarify what the manual means when it refers to “circumstances in which the person has no reasonable expectation of privacy”; it should also explain the specific types of monitoring that may take place under this policy as well as any rules for storing, searching, and sharing the data.
As a general matter, the government should explain how it regards the Fourth Amendment as applying to people in the US who are not citizens or lawful permanent residents.
Military law enforcement “Intercept Program” associated with Department of Defense Instruction O-5505.9
One training document briefly refers to an “Intercept Program” associated with Department of Defense Instruction O-5505.9 – a document whose current version is not publicly available, although a 1995 version addressed the interception of wire, electronic, and oral communications for law enforcement by Defense Department entities. The Defense Department official said the program “pertains exclusively to DoD law enforcement entities” and that Instruction O-5505.9 “does not authorize any DoD intelligence activity.” The government should release this instruction along with information about its uses.
National Security Letters
A set of slides in one of the training presentations offers a stark illustration of the possible scope of warrantless National Security Letters, which the government may use to obtain financial and other records as part of foreign intelligence and international terrorism investigations. While the information found in the slides was already publicly available, the array of records the FBI may seek through the letters without court approval – from bank account and credit card transaction histories to documents held by pawnbrokers, jewelers, travel agencies, car dealers, real estate agents, and casinos – is vividly on display.
Recommendations to the US government
The US executive branch should release clear and comprehensive information about the monitoring the intelligence agencies may conduct under Executive Order 12333 and other surveillance authorities.
In response to specific concerns raised by the new materials, the executive branch should:
Ensure that all surveillance authorities, legal interpretations, and policies are clear, detailed, and publicly available. The language in these documents should enable the public to understand the circumstances in which surveillance may take place.
Release any legal interpretations or policies concerning the definition, designation and monitoring of US persons the government regards as “homegrown violent extremists.”
Provide explanations and legal justifications for all “special circumstances collection” activities, as well as an explanation of their scale.
Provide a clear and comprehensive explanation of the types of “physical surveillance” to which non-US persons in the US may be subjected as well as the sharing, storage, and usage of any resulting data.
Disclose Department of Defense Instruction O-5505.9 and explain the activities conducted under that authority.
The US Congress should also ask for further information about each of the policies and activities detailed above, and ensure that all government surveillance complies with US constitutional and international human rights law and takes place within a statutory framework that is effective in preventing abuses. Congress should also ensure that as much information as possible is disclosed to the public.
Over the past two years, Poland’s government has tightened its control over the courts, the media, and domestic rights groups. Thousands of outraged citizens have staged protests nationwide against these moves, even successfully pressuring the government to withdraw some laws that would have further restricted rights. Philippa Stewart speaks to Europe researcher Lydia Gall about what is happening in the country, and what needs to be done.
What is happening in Poland right now?
We have a situation where the government has essentially engaged in a power grab. It is seeking to put everything that might be a threat to its power under its control.
That includes the courts, ombudsmen, even the people out demonstrating or the media reporting on all this – indeed, any institution or entity that seeks to be critical. The shape or form the criticism takes doesn’t matter, the government is seeking ways to stop or limit it. Ultimately, they are trying to restrict the flow of critical opinions or information by locking down the very institutions democratic countries put in place to act as checks and balances on the government and to protect the people.
If it keeps going this way, we could have a situation where the government is in full control, where no critical voices would be allowed. That is the worst-case scenario for Poland’s future.
Why is that?
There are several institutions, such as the courts and media, whose role is not to serve the government of the day, but to act independently so they can protect people from government overreach or abuse. But when their independence is completely undermined by government policies, who’s left to protect you?
This government has taken their democratic mandate and misused it to stifle democratic voices.
Why should this matter to normal people in Poland?
When the going is good the whole concept of “rule of law” and “checks and balances” is not something that people walk around thinking about every day. It’s when the going gets tough that that people suddenly wake up and ask questions. The Polish people have been doing this, but it’s more important than ever now.
If you have an abusive boss or you’re the victim of a crime and you want to go to the authorities for help or protection, you want to be able to trust those authorities to treat your problem fairly. You can’t count on the courts’ objectivity and independence if they are controlled by the government, you can’t really trust the media if the messages are being controlled by the government, and you can’t trust other institutions to work to protect your rights as a resident of that country.
Losing the guarantee of a fair hearing because the courts are being controlled politically could affect you on a lot of different levels, such as if you are accused of a crime, or if your home is subject of compulsory purchase by the state. If it’s up to the good will of individual judges whether or not you get a fair hearing then that’s a problem. A fair hearing isn’t something that should be left to chance.
A new law allows common court judges to be dismissed without any reason, not by their peers but by the president and so you have these arrangements that are problematic, that you might not feel personally as a citizen of Poland right at this moment but that may have some very serious implications for you if you ever need the justice system to protect your rights.
Other than the courts, what is being restricted in Poland?
The media are also being intimidated through various legislative measures to make it easier to punish those who may write or report critically on the government. That affects the public as well. Now, information might be compromised or censored.
As a journalist, you might be inclined to write what the government wants just to put food on the table for your family. It has quite severe implications for the information flow when critical voices are losing their jobs.
There’s also a clampdown on civil society – groups working on issues like women’s rights, or asylum. The government just adopted a law that basically centralizes all public funding – money these groups depend on – in an effort to obstruct and restrict the work they are doing.
That is a sweeping range of issues.
Yes, and there are also specific communities whose rights are being compromised. For example, women’s and girls’ reproductive rights are threatened with further restrictions in a country that already has some of the most restrictive abortion rules in Europe.
Then you also have an issue with how the government is treating asylum seekers. Asylum seekers are summarily returned from the Polish border to Belarus, a country where they are not safe, and a country where they might risk being returned to their countries of origin, where they are certainly not safe.
Third, the new counterterrorism legislation has a very broad and vague definition of terrorist crimes and allows for arbitrary surveillance on very vague grounds, and lengthy pretrial detention before formally charging suspects. It also allows authorities to shut down websites on arbitrary grounds.
It might seem quite abstract to people on the street, but the Constitutional Tribunal – basically the highest court in the country, which monitors whether the laws passed by the government are in line with the constitution – has basically been paralyzed for the past two years. This means that laws being adopted that violate constitutional principles can’t be struck down because the government is refusing to accept the rulings from the Tribunal.
What can people in Poland do?
People have taken to the streets and they do protest these measures, which is good. It has, on occasion, made the government budge on issues. Mass protests helped stop the government from further restricting Poland’s abortion law, and nationwide protests pressured Poland’s president to veto controversial laws undermining the independence to the judiciary.
It is more important than ever now for people to speak out because the very right to take to the streets is under threat and has been restricted by the government. Clearly there is a reason why the government is doing it, they are not keen on thousands of people taking to the streets. Protest is working so they have introduced laws that make it more difficult to protest.
How has the situation been allowed to reach this stage?
That this is going on in an EU member state may be troubling, but sadly not surprising. We have a similar situation in Hungary that started seven years ago. The EU’s failure to impose any consequences on Hungary for rolling back rights sent a message to Poland that if Hungary got away with it, they can – get away with it too – and they are.
What can be done?
The European Commission can take action against a member state in which there is a systemic threat to the rule of law. It is doing finally taking action – for the first time – against Poland. The first step was creating a “dialogue,” which has been under way for almost two years. In short, the commission is saying, “These are the things the Polish government needs to do,” but the Polish government has basically ignored all recommendations. The next stage is to trigger proceedings that can ultimately lead to the member state being deprived of its voting rights at the council level.
Poland also receives more EU funding per capita than most other EU countries. These funds should only be given to Poland if its government meets certain conditions. If the European Commission doesn’t get serious about holding the Polish government to account for backtracking on rights, the risk is that other EU member states will be tempted to follow a similar path. That would put the credibility of the EU as a whole into question.