CCR sues ‘Guantanamo North’ detention facilities in Aref et al v. Holder

NPR has a story about the “Communications Management Units” in Terre Haute, Ind., and Marion, Ill. The special detention unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the “country’s biggest security threats”, including John Walker Lindh. The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996. The Bureau of Prisons says a total of 71 men now live in the units.

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities.

According to CCR:

“Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as “ecoterrorists.”

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. AAlexis Agathocleous, a lawyer at the Center for Constitutional Rights:

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says. They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

Civil rights groups have filed lawsuits however that accuse the two U.S. facilities of some of the same due process complaints raised by people at Gitmo.Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out. Also, as word got out that the special units were disproportionately Muslim,
civil rights lawyers say, the Bureau of Prisons started moving in
non-Muslims. According to CCR:

“Five CMU prisoners and two of their spouses (who, along with their children, have been subjected to draconian rules governing visitation and phone calls) have joined the lawsuit as plaintiffs. All five men confined in the CMU have been classified as low or medium security, but were designated to the CMU despite their relatively, and in two cases perfectly, clean disciplinary history. Not a single one has received discipline for any communications-related infraction within the last decade, nor any significant disciplinary offense.

Like all CMU prisoners, the men received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. They are also being held indefinitely at the CMU without any meaningful review process. They expect to serve their entire sentences in these isolated and punitive units.

Predictably, the lack of procedural protections has allowed for an unchecked pattern of discriminatory and retaliatory designations to the CMU. Rather than being related to a legitimate penological purpose or based on substantiated information, our clients’ designations were instead based on their religious and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.

Documents:

Towards a tiered risk system at airports?

The NY Times reports that the several industry organizations are working on proposals to overhaul security checkpoints to provide more or less scrutiny based on the risk profile of each traveler. While the proposals are in the early stages, they represent a growing consensus around a concept that has the support of John S. Pistole, the head of the Transportation Security Administration: divide travelers into three groups — trusted, regular or risky — and apply different screening techniques based on what is known about the passengers.

A crucial part of the group’s “checkpoint of the future” proposal, and similar plans under discussion by other industry organizations, is creating a trusted traveler program that would allow passengers to undergo a background check to gain access to an expedited security lane at the airport. These trusted travelers would probably pay a fee for the vetting, much like the $100 application fee for the Global Entry program operated by United States Customs and Border Protection. After submitting to an interview, a background check and a fingerprint scan to join Global Entry, members can clear customs using a kiosk instead of waiting to speak with an agent.

The association, a trade group, plans to release its own proposal for ways to improve security checkpoints next month, but many of its core concepts overlap with ideas presented by the International Air Transport Association at an industry conference last year.

Both groups envision three screening lanes with different security procedures based on varying levels of risk. Trusted travelers would undergo lighter screening, perhaps passing through a metal detector with their shoes on and laptops in their bags, whereas anyone flagged as potentially risky would receive more intensive scrutiny, using technology like the body scanners and interviews with officers trained in behavioral analysis.

Although many of the procedural details are still just proposals, the idea is to determine who may present a risk based on better use of government intelligence and watch lists as well as suspicious behaviors like checking in for a one-way international flight with no luggage.

Napolitano circumspect on Israeli air tips for U.S.

U.S. Homeland Security Secretary Janet Napolitano played down on Tuesday prospects of adopting Israeli-style aviation security in response to protests at intrusive patdowns and screenings at American airports.

Visiting Israel to assess its streamlined and sometimes controversial system, Napolitano defended her administration’s measures as appropriate to the scale and legal requirements of U.S. air travel, and said they were gaining public support.

“I don’t see any changes in the immediate future,” she told Reuters. “We are always refining our procedure, but the point is that we have fewer than one percent of the traveling public opt out of the system, and so part of what is going on is people adjusting to the changes in airport security.”

While avoiding direct comment on Israeli policy, Napolitano made clear profiling would not fly in the United States.

“There are some differences in the laws and the legal constraints that we abide by,” she said. “There may be some things that can be shared (with Israel) and some things that would not … The practices and techniques that we use will differ and do differ.”

Recent daily mail article on Israel airport security: here.

Council of Europe adopts recommendation on the protection of individuals with regard to automatic processing of personal data in the context of profiling

Read it here.

European Commission adopts internal security strategy

The “EU Internal Security Strategy in Action” adopted today comprises 41 actions to be regulated in the coming four years and is imed at implementing the extra powers in the field of home affairs acquired by the EU once the Lisbon Treaty came into force. It also responds to requests from the European Parliament to have EU-based data extraction and analysis on bank transactions to terrorist organisations, instead of sending all the banking data to the US, where such a programme has existed since 2001. Read COM(2010) 673 final here.

The EU Internal Security Strategy in Action identifies five strategic objectives and outlines a series of actions for each of them:

1. Disrupt international crime networks
– To identify and disrupt criminal networks, it is essential to understand their members’ methods of operating and their financing, the Commission says.

The Commission will therefore propose in 2011 EU legislation on the collection of Passenger Name Records of passengers on flights entering or leaving the territory of the EU. These data will be analysed by the authorities in Member States to prevent and prosecute terrorist offences and serious crimes.

– The Commission also suggests to revise the EU anti-money laundering legislation and setting up joint investigation teams

The Commission will propose legislation in 2011 to strengthen the EU legal framework on confiscation as well.

2. Prevent terrorism and address radicalisation and recruitment
The Commission stresses that the core of the action on radicalisation and recruitment is – and should remain –
at national level.

By 2011, and in partnership with the Committee of the Regions, the Commission will promote the creation of an EU radicalisation-awareness network.This network will consist of policy makers, law enforcement and security officials, prosecutors, local authorities, academics, field experts and civil society organisations, including victims groups. The Commission will also support the work of civil society organisations which
expose, translate and challenge violent extremist propaganda on the internet.

The Commission will in 2012 organise a ministerial conference on the prevention of radicalisation and recruitment at which Member States will have the opportunity to present examples of successful action to counter extremist ideology.

More importantly the Commission will in 2011 consider devising a framework for administrative measures under Article 75 of the Treaty as regards freezing of assets to prevent and combat terrorism and related activities, and it will develop a policy for the EU to extract and analyse financial messaging data held on its own territory.

3. Raise levels of security for citizens and businesses in cyberspace
– Establishment of an EU cybercrime centre (2013).
– Establishment of a network of Computer Emergency Response Teams (CERT) (2012).
– Establishment of a European information sharing and alert system, EISAS (2013).

The Commission adds:

The handling of illegal internet content – including incitement to terrorism – should be tackled through guidelines on cooperation, based on authorised notice and take-down procedures, which the Commission intends to develop with internet service providers, law enforcement authorities and non-profit organisations by 2011. To encourage contact and interaction between these stakeholders, the Commission will promote the use of an internet based platform called the Contact Initiative against Cybercrime for Industry and Law Enforcement.

4. Strengthen security through border management
– Establishment of European external border surveillance system, EUROSUR (2011).

EUROSUR will establish a mechanism for Member States’ authorities to share operational information related to border surveillance and for cooperation with each other and with Frontex at tactical, operational and strategic level. EUROSUR will make use of new technologies developed through EU funded research projects and activities, such as satellite imagery to detect and track targets at the maritime border, e.g. tracing fast vessels transporting drugs to the EU.

According to EU observer “Eurosur is likely to spark controversy among human rights groups
pointing to the fallacy of mashing together asylum seekers and irregular
migrants with traffickers and organised crime lords. “

– Better analysis to identify ‘hot spots’ at the external borders (2011).
– Joint reports on human trafficking, human smuggling and smuggling of illicit goods as a basis for joint operations (2011).

The Commission shrewdly states that Frontex should be able to process personal data.

During its operations, Frontex comes across key information on criminals involved in trafficking networks. Currently, however, this information cannot be further used for risk analyses or to better target future joint operations. Moreover, relevant data on suspected criminals do not reach the competent national authorities or Europol for further investigation. Likewise, Europol cannot share information from its analytical work files. Based on experience and in the context of the EU’s overall approach to information management, the Commission considers that enabling Frontex to process and use this information, with a limited scope and in accordance with clearly defined personal data management rules, will make a significant contribution to dismantling criminal organisations. However, this should not create any duplication of tasks between Frontex and Europol.

5. Increase Europe’s resilience towards crises and disasters
– Proposal on the implementation of the solidarity clause (2011).
– Proposal for a European Emergency Response Capacity (2011).
– Establishment of a risk management policy linking threat and risk assessments to decision making (2014).

The Commission will submit an annual progress report to the European Parliament and the Council. The Commission will support the Standing Committee on Operational Cooperation on Internal Security, COSI, which will play a key role in ensuring the effective implementation of the strategy.

Implementing the strategy: the role of COSI
The Commission will support the activities of the Standing Committee on Operational Cooperation on Internal Security (COSI) to ensure that operational cooperation is promoted and strengthened, and that coordination of the action of Member States’ competent authorities is facilitated.

Comments
Commissioner Malstrom:

“EU internal security has traditionally been following a silo mentality, focusing on one area at a time. Now we take a common approach on how to respond to the security threats and challenges ahead. Terrorism, organised, cross-border and cyber crime, and crises and disasters are areas where we need to combine our efforts and work together in order to increase the security of our citizens, businesses, and societies across the EU. This strategy outlines the threats ahead and the necessary actions we must take in order to be able to fight them. I encourage all relevant actors to take their responsibility to implement these actions and thereby to strengthen EU security”, said Cecilia Malmström, Commissioner for Home Affairs.

Background
In February 2010, the Spanish EU Presidency outlined the security challenges for the EU in an Internal Security Strategy (“Towards a European Security Model“), and called on the Commission to identify action-oriented proposals for implementing it.

Article 29 WP Opinion 7/2010 on European Commission’s Communication on the global approach to transfers of Passenger Name Record (PNR) data to third countries

The European data protection authorities remain very critical about the European Commission’s wish to exchange Passenger Name Record (PNR) data with countries outside the European Union. In its opinion, the Article 29 Working Party questions the necessity of large-scale profiling for law enforcement purposes on the basis of passengers’ data. The European data protection authorities stress that the European Commission still has not presented objective proof or statistics that PNR data are valuable when combating terrorism or transnational crime.
In the current Communication, the European Commission merely states that PNR are an increasingly accepted tool, necessary in the fight against terrorism and serious crime, without substantiating this statement. The Commission does not seem to make a distinction between the increasing use of PNR data and the increasing acceptance of the use of these data. It may be the case that the law enforcement authorities have indeed become used to having PNR data at their disposal, but that fact alone does not prove political or public acceptance of the collection and use of PNR data, nor does it justify its necessity.

The three arguments given in paragraph 2.2 of the Communication seem to indicate that: “it is nice for the law enforcement authorities to have PNR data” rather than “the law enforcement authorities need to have PNR data to combat terrorism and serious crime”. The Working Party also regrets the Commission has not felt the need to further elaborate on the effectiveness of the use of PNR data, which is an essential element when judging necessity.

In its previous opinions, the Working Party has time and again stressed the importance of striking the right balance. So far, this has not been the case. Most importantly, there are no objective statistics or evidence which clearly show the value of PNR data in the international fight against terrorism and serious transnational crime. This makes it impossible to clearly assess the necessity or the proportionality of the use of PNR for law enforcement purposes.

According to the Working Party, any PNR system should be:
· demonstrably necessary to address the problem;
· demonstrably likely to address the problem;
· proportionate to the security benefit;
· demonstrably less invasive than alternative measures; and
· regularly reviewed to ensure the measures are still proportionate.

Washington Post editorial on Europe’s “dangerous refusal to share air-travel data”

The paper used the foiled Yemen cargo bomb plot to say that it is “distressing” to consider the tension between the United States and Europe over aviation security, and especially the sharing of PNR information.

European privacy advocates suggest that U.S. authorities can easily misuse such information. In past years, the executive branch of the European Union has agreed to share the data; but recent legal changes have given the European Parliament control over the issue. And that body, heavily influenced by privacy activists, has instructed the E.U. to drive a harder bargain with the United States in the current round of talks over renewing the data-sharing. Among the European Parliament’s vaguely formluated demands are “effective independent oversight” of U.S. use of the data and a ban on “decisions having adverse effects on passengers . . . A human being must be involved before a passenger is denied boarding.”

Obviously, when government gathers and “mines” a vast array of names, addresses and credit card numbers, there is potential for abuse. We’re struck, though, by how little European critics of data-sharing have shown in the way of actual, as opposed to conceivable, harm. One oft-stated concern is that U.S. officials might use a request for halal meals to “profile” a passenger as a Muslim and therefore subject him or her to extra scrutiny. But that would be true for any passenger named “Muhammad” – and no one is proposing to forbid sharing passenger names. Recent events suggest that concerns over terrorism in the air are as serious as ever. The burden should be on the European Parliament to demonstrate why amorphous anxieties about privacy should trump them.

MEP Sophie in’t Veld responded here:

If the European Parliament is challenging the massive and indiscriminate collection of personal data, without concrete suspicion, this is part of its duty to Europe’s 500 million citizens, not some “amorphous anxieties about privacy.” We believe that data collection should be limited to what is necessary and proportional and that mass collection of data does not automatically lead to greater security.

Barry Steinhardt, senior adviser for Privacy International, responded here:

Private data, such as like our travel and financial records, flows back and forth across international borders. Europe and much of the rest of the developed world have has strong laws and independent institutions – data protection commissions – to guard private data within their borders. European law prohibits export of data to the nations without “adequate” privacy protections.

Sad to say, the United States flunks that adequacy test. We are the Wild West of privacy, where almost anything goes. With a few loophole-ridden exceptions, we have virtually no privacy laws that adequately protect Americans, let alone foreigners.

We do have a sheriff – the Federal Trade Commission-but it polices only the private sector, not the government. Even there, its role is limited to being an honesty cop. Corporations don’t have to affirmatively protect our privacy. They just can’t misrepresent what they do with our data. Bravo to Europe for protecting its citizens. Americans stand to benefit if those efforts rub off here.