A Right to Secure Data

During a December press conference, President Obama confidently claimed that the NSA call logs strike the proper balance between privacy and civil liberties. The former Constitutional law professor explained that the purpose of his upcoming surveillance reforms was to “give the public more confidence that in fact the NSA is doing what it’s supposed to be doing.” Ironically, President Obama has given us very few assurances about the majority of the NSA’s activities.

 

On January 17, President Obama proposed that private companies hold telephony metadata until the NSA appears before the FISA court. Some have raised privacy concerns about his proposal. More importantly, though, President Obama said nothing about the collection of geolocation data, medical records, financial transactions, email data, and Internet browsing histories. How could such an incomplete, cosmetic reform reassure anyone?

 

Our lives are flooded with data. The information our electronics broadcast paints a picture of our lives in terrifying detail. President Obama is focusing the debate on who should store our data – not who should collect in in the first place. Outsourcing data storage and adding the scrutiny of a secret court does little to protect the privacy of anyone.

 

Privacy has never been a central focus of Human Rights activists. Quite unlike torture or incarceration, wrongful surveillance is invisible. But too much is a stake for Human Rights activists to ignore privacy. Many simply trust the discretion of President Obama.  Future leaders could be worse. Imagine that our current surveillance capabilities where in the hands of President Nixon, Senator McCarthy, or J. Edgar Hoover. We would certainly watch what we typed. The danger mass surveillance poses to free speech and democracy is not exaggerated.

 

The future of privacy depends on proactive collaboration between governments to protect their people from inappropriate data collection. Unfortunately, the jurisprudence of International Human Rights Law on electronic privacy is vague. In July 2013, a group of International NGOs drafted the first ever International Principles on the application of Human Rights Law to communications surveillance. These principles represent a huge step forward. But they fall short of acknowledging what the future of privacy requires – a robust Human Right to the security of personal data.

 

President Obama’s actions demonstrate a belief that no one’s personal data is off limits. By sweeping up the communications of our allies in Europe and Latin America, the President sets the precedent that foreign surveillance is limitless. In the hands of dictators, Orwellian Surveillance restrains free speech and keeps populations in shackles. Because of the NSA’s overreach, the International Community has no moral high ground to promote privacy rights throughout the world.

 

In his Christmas Day message, Edward Snowden bemoaned the fact that children born today will not know what it is like to have a private conversation. Activists must not give up on a Human Right to secure personal data, or our children may forget what it is we are fighting for.

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3 Questions Left Unanswered on National Security

A few days ago President Obama gave a speech outlining his plan to reform national security policy. The speech was an eagerly anticipated follow-up to his campaign promises to close Guantanamo Bay and reform Bush-era policies. The speech also ended a four-year silence about drone strikes. If President Obama follows through with his stated commits, this represents a huge step forward. But it also highlights three unanswered questions about the direction of our country’s military.

In one of the most candid moments of his presidency, President Obama explained that the War on Terror should not operate under the legal paradigm of traditional war. He therefore promised to lead an effort to “reform or repeal” the 2001 AUMF resolution, as well as refusing to sign any geographical extension of the AUMF. This is a long-awaited bit of good news.

But President Obama’s word choice on this point is a bit equivocal. President Obama suggested that his administration may be satisfied with a compromise – merely reforming the AUMF. But reforming the AUMF is not enough. War between sovereign states is fundamentally different than our counter-insurgency operations. If we at all view the War on Terror as a “global war,” we create allowances for our military to act without Congressional oversight or judicial review of lethal force. Therefore, the AUMF must be repeal in its entirety, without compromise.

In his speech, The President also eloquently argued that drone strikes save American lives, reduce American troop losses, and minimize civilian casualties. But none of these points are the real points of objection for NGOs like Amnesty International or the ACLU.

President Obama claimed to have a deeply-rooted commitment to Congressional and public oversight of drone policies. Unfortunately, we cannot take this claim at face value. While President Obama’s speech represented a rare public discussion of the subject, it leaves unanswered the question of how he is going to advance transparency on drone strikes. There has only ever been one Congressional hearing on the use of drones, and the administration refused to send anyone to testify. The Justice Department has previously denied Congressional access to memos about targeted killings. If President Obama is committed to transparency on drone strikes, the burden is on him now to show it.

Finally, President Obama urged Congress to repeal sections 1027 and 1028 of the NDAA, which effectively ban prisoner transfer outside of Guantanamo Bay. This commitment is another welcome sign. But it also foreshadows a coming political conflict. The past few years the NDAA has renewed with indefinite detention clauses, (1021/1022) and this past year with transfer bans (1027/1028), all without the protest of the administration.

If President Obama is going to make good on this promise, he will have to weight in on the NDAA debate in a way that he hasn’t in the past. The past two years, his administration has hinted that he would veto any military appropriations that legalized indefinite detention – but the President never made good on that threat. This year, he will have to take drastic action, possibly by vetoing a version of the bill. We can only hope that President Obama makes good on this commitment to close Guantanamo.

President Obama’s speech represented a huge step forward on national security policy. Not only did he discuss policy advancements, he ended the long silence of his presidency on Guantanamo Bay and Drone Strikes. Moreover, he deeply committed himself to turning back unjust policies. While questions remain, we can only hope he makes good on those commitments.


Have feedback for us? Interested in hearing more about any aspect of our efforts to raise awareness about trafficking? Give us a shout in the comments below! And as always, thanks for reading.

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Raising Awareness about Human Trafficking on Yale’s Campus

by Katy Naples-Mitchell, Co-Coordinator

“Every time you spend money, you’re casting a vote for the kind of world you want.” – Anna Lappé

Human trafficking is a multi-billion dollar industry; it leaves few corners of the world untouched. Experts estimate that 27 million people are trafficked annually. And yet it is rare that we think about how our actions as consumers may contribute to the enslavement of others.

Raising Awareness on Cross Campus

On Wednesday, November 14, Yale Amnesty International undertook an awareness raising event about human trafficking on Yale’s Cross Campus. After months of brainstorming and weeks of preparations, our plans had finally come together. The premise behind the event was to find a way to demonstrate the global reach of trafficking as well as to encourage individuals to consider their individual impacts. We chose to focus on the garment industry because it’s something that pretty universally affects us—as most people we know tend to own and wear clothing.

Raising Awareness

Making Our Idea a Reality

The initial vision for this event was hazy at best. We wanted to have a world map which people would pin their clothing tags on, and then we could give them information about what kind of trafficking patterns or documented cases of trafficking might exist in the country in which their clothing was made. Since trafficking is an immense criminal industry, statistics on the number of trafficking cases or victims in a particular country are hard to come by. The United Nations Office on Drugs and Crime, the body charged with governing the UN Convention against Transnational Organized Crime, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, puts together reports semi-annually which qualitatively describe countries’ trafficking patterns.

But in putting together a visual representation of countries and human trafficking, we needed a much more quantitative measure, one in which countries were ranked relative to one another. This meant we relied upon the U.S. State Department’s Trafficking in Persons (TIP) Report, published annually in June.

TIP Report Rankings

Trafficking Tiers

The TIP Report ranks countries according to whether their governments have taken proactive steps to prevent, punish, and prosecute human trafficking. The report categorizes countries into three distinct tiers. From the State Department website:

TIER 1

Countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.

TIER 2

Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.

TIER 2 WATCH LIST

Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND:

a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing;

b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or

c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country 
to take additional future steps over the next year.

TIER 3

Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.

Our Map

We printed a large map and hand-painted it according to colors associated with each TIP Report ranking.

Tier 1 = green
Tier 2 = yellow
Tier 2WL = orange
Tier 3 = red

World Map

We also cross-hatched 21 countries based on a list we compiled of countries that have documented cases of trafficking in the garment industry, notable sweatshops from major companies, or produce raw materials that are linked to trafficking and exploitative labor conditions. This was our effort to combat the impression the TIP Report rankings give that the Western World (and Global North) have exclusively better standards than other parts of the globe.

The cross-hatched list traversed all ranks of the trafficking Tiers, demonstrating that just because a country may punish trafficking severely and take policy steps to combat it does not mean that said country is free of trafficking or exploitative labor practices and companies that rely on slave labor in their supply chains. We then attached the finished map to a corkboard so we could pin people’s tags directly to the map.

Action Opportunities

We asked passersby to cut out a tag from something they were wearing, pin it on the map, and then together with our members, figure out what that might mean. Here were our results.

Countries Represented by Tags on the Map

(listed roughly from East to West and North to South, to go along with the map)

Country Name

Number of Tags Tier Placement Crosshatched for Garment Trafficking?

USA

1 1 Yes

Haiti

1 2WL No

Gautemala

2 2 No

Honduras

4 2 Yes

Nicaragua

1 1 No

Qatar

1 2 No

India

5 2

Yes

China 8 2WL

Yes

Bangladesh 1 2

No

Thailand 1 2WL

Yes

Philippines 1 2

Yes

Malaysia 1 2WL

Yes

Indonesia 2 2

Yes

Cambodia 2 2

Yes

Vietnam

2 2

Yes

Hong Kong 2 2

No

Of the tags we had, 10 out of 16 (62.5% of) countries represented had been crosshatched for trafficking. Moreover, adjusted for the proportion of tags from each country, 77% of the tags on the map came from countries that have high rates of trafficking in the garment industry. This is not a statistically representative pool and there are certainly problems with our methodology, but it was random and does make for a pretty startling representation of our habits as consumers.

We also had a petition on hand, directed at Forever 21’s headquarters. Forever 21 has a reputation of sourcing most of its cotton from Uzbekistan, where there have been documented cases of forced child labor in the cotton picking industry. Additionally, Forever 21 has been accused of sweatshop conditions in its manufacturing. We wrote a letter to Forever 21, in tandem with the existing change.org petition hyperlinked above, calling on the executives of the company to make sure that there was no slavery in their supply chain going forward. This petition has particular traction for students of our age demographic, since the store targets us as its primary consumers. During the course of the day, we gathered 118 signatures! For more information on trafficking and exploitation in the garment industry, check out the Clean Clothes Campaign, the largest alliance of labor unions and NGOs in the garment industry.

We had takeaway materials on hand to give away to those who wanted more information or didn’t have time to stop at the table. We compiled a Human Trafficking Fact Sheet as well as a “Watch What You Wear” Country Breakdown, which you can view for yourself by clicking on the links.

Check out some photos from the day’s activities below. To see an enlarged version of the image, simply click on it.

DSC00178DSC00194DSC00181DSC00193DSC00195

Reservations & Reflections

As a few passersby pointed out during our demonstration, and as we were concerned about in preparing the map, using a ranking based on legality and government steps taken to address trafficking created a visual representation that, if mistaken for being a visual representation of trafficking in the world, would be extremely misleading and particularly damning and damaging to the Global South. This was not our intention, and we do regret having contributed to any misconceptions that seem to exempt the countries in Tier 1 from the presence of trafficking. For the purposes of creating a map this coloring scheme was the best we could come up with—and so perhaps this brings to light the real need for further research into global trafficking streams and hard data on the extent to which trafficking happens within each country in the world.


Have feedback for us? Interested in hearing more about any aspect of our efforts to raise awareness about trafficking? Give us a shout in the comments below! And as always, thanks for reading.

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Personal Reflections: Israel, Gaza, and the International Community

by Alex Emmons, co-coordinator*

This past week the world has looked on in horror as the Gaza Strip conflict has escalated, prompting a wealth of opinions and various criticisms from the international community. On Monday the death toll in Gaza officially rose to 91, quickly surpassing the 3 Israelis killed by Palestinian Rockets since Wednesday. Social media have been flooded with horrific images of Palestinians flocking to hospitals and family members caught in the collateral damage.

In the midst of such a terrible conflict, it is difficult for human rights activists to know what to think. Human life has been destroyed on both sides of the Israel-Gaza border. The Israel/Gaza debate also inevitably draws upon strongly held personal sentiments. When the situation is so complex, what can we expect from the international community, or more specifically the United States?

On Monday, UN Secretary General Ban Ki Moon arrived in Cairo to try and support an Egyptian-brokered ceasefire. His efforts and the efforts of the Egyptian government to curb violence should be praised. A temporary ceasefire, however, is not a complete solution to a seemingly permanent sequence of human rights violations.

Since Israel’s horrific assault in 2009, Hamas has continued to bombard Israeli cities with rockets. After procuring long-range rockets that indicate Iranian supply lines, Hamas has fired rockets as far as Tel-Aviv and has injured more than 50 Israelis. However, Israel’s retaliatory response is certainly disproportionate to this violence. But I am somewhat sympathetic – Israeli leaders cannot turn a blind eye to their citizens’ continual bombardment.

As a human rights activist, however, I expect Israeli security operations to be carried out with the highest respect for human dignity. The IDF is one of the most sophisticated and modernized militaries in the world. The world thus expects the IDF to avoid widespread devastation of civilian life. The IDF has not lived up to this expectation.

Yesterday, 11 members of the Palestinian Daloo family were killed by a missile strike on their home, including five women and four children. More than ten houses in Gaza with supposed ties to Hamas have been leveled. An estimated 20 of 27 people killed were civilians. These strikes by the Israeli military are not merely reprehensible. According to the Fourth Geneva Convention, these attacks constitute war crimes.

Both the attacks by Hamas and the retaliation by Israel are horrific, unjustifiable, and illegal under international law. What can a human rights activist expect from the international community? Hamas is unlikely to adhere to the terms of an enduring ceasefire. The UN needs to discuss long-term solutions. In order to protect the rights of Israelis, the UN needs to support an enforceable arms embargo to keep rockets out of terrorist hands. The international community also needs to maintain a continual presence of monitors to ensure restrictions on military arms imports.

But the UN and the US need to engage another serious question. In 2009 and now in 2012 Israel has continued to repay violence with war crimes in the form of a disproportional response carried out by an unfettered military. The United States gives 3 billion dollars annually in military aid to Israel. It is true that Israel has been an ally and strong bastion of Democracy in the Middle East. Giving billions of dollars in aid to Israel, however, funds human rights abuses. The United States has a moral duty to use its relationship with Israel to encourage respect for civilian life. To be clear, the United States also has a weak record of respecting civilian life in Middle East conflicts. American drone strikes in Pakistan and Yemen, and contracted military groups in Iraq and Afghanistan, have caused unnecessary civilian casualties. Nonetheless, in addition to reforming its own policies, the United States has a moral duty to pressure Israel to respect civilian life, and, if those negotiations fail, to scale back its aid to Israel.


*Opinions in this blog do not represent those of Amnesty International USA or the Yale Amnesty chapter at large.

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Reactions to last night’s Presidential Debate

by Katy Naples-Mitchell, Co-Coordinator

From a human rights perspective, both candidates were disappointing in last night’s debate. Governor Romney wholeheartedly supported the increased use of drones which has been a cornerstone of President Obama’s approach to combating terrorism; neither candidate talked about the civilian deaths that have been associated with drone strikes nor their violations of international law. Governor Romney was the only candidate to mention human rights nominally, but he immediately extrapolated to “freedom” and “elections,” an extremely limited and insufficient construction of what it means to champion human rights and uphold human dignity. Neither candidate gave sufficient specifics about how to transition out of Afghanistan, although President Obama assured us it should happen “in a responsible” way. President Obama’s comments on Syria were cautious but insufficiently specific, and Governor Romney simply regurgitated a version of the same basic policy approach to Syria, except one more stringently focused on arming the resistance movement. Syria is being ravaged and human rights are being aggressively trampled via indiscriminate air attacks from an unfettered army, but perhaps the focus should be on disarmament of the army and ending arms trade deals via a strong Arms Trade Treaty, which both candidates neglected to mention. Overall the candidates’ foreign policy positions were unsettling in their similar disregard for human rights.

I found one topic of the debate particularly surprising. Governor Romney repeatedly called for indicting Iranian President Ahmadinejad, but to indict him under the Genocide Convention would require Ahmadinejad to be tried in Iran for genocide (unlikely) or by an international tribunal or the International Criminal Court (ICC), to which the U.S. is not a party and for which Governor Romney has not expressed support in past public statements. In post-debate clarifications, Romney aides reportedly suggested that he meant that a World Court would arrest Ahmadinejad. Unfortunately, that’s not the way our international justice system works, and seems out of sorts with how I imagine a Romney administration would approach international law and its enforcement given previous Republican regimes and the Republican Party Platform which definitively rejects the jurisdiction of the ICC. Overall, in their foreign policy discourse the candidates focused too much on solutions that are not accountable to the American people and not considerate of basic human rights.

For a more comprehensive look at the issues of concern to Amnesty activists in this election, check out Amnesty’s human rights bingo:

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Full Disclosure: The Beginning of the End for American Torture

by Alex Emmons, Co-Coordinator

Yesterday the New York Times reported that the United States Justice Department has refused to prosecute CIA operatives for the deaths of two prisoners – one in an Afghanistan prison in 2002 who was shackled to a wall in a cold room, and the other in an Iraq prison in 2003 whose corpse had been photographed packed in ice.

According to Attorney General Holder’s official statement, the case would not proceed because “the admissible evidence would not be sufficient to obtain and sustain a conviction.” But, according to my assessment, it seems the evidence is easily strong enough to convict. According to a 2006 Human Rights First Report, between 2002 and 2006 the CIA documented more than 30 prisoners killed by suspected or confirmed homicides, and more than 10 who died from abuse-related injuries. With access to classified information, a military tribunal could easily produce enough evidence.

So why did the Justice Department decide not to proceed with prosecutions? Perhaps the Obama administration did so to avoid addressing the prosecution in campaign debates. But I would prefer to give President Obama the benefit of the doubt – and instead point to a different reason.

According to the New York Times, when President Obama signed an executive order banning “enhanced interrogation techniques” his first day in office, he also said that he preferred to “look forward as opposed to looking backwards” – meaning that he preferred to ban torture going forward and not prosecute CIA employees for former actions or for carrying out the policies enacted under a previous administration.

I certainly understand President Obama’s reasoning. Despite being nominally banned, torture became the de facto policy of interrogation operatives under the Bush administration. Officials as high up as Donald Rumsfeld approved torture at Abu Ghraib. Attorneys in the White House Office of Legal Counsel drafted the memos that sanctioned torture under the cover of interrogation techniques. Prosecution after the Bush era would be prosecution ex post facto – that is, after it was actually made illegal – and thus a violation of the principles enshrined in our Constitution.

Should CIA employees be prosecuted for torture? Would it help end torture practices in the American military? It is hard to tell. But it is clear that suppressing investigation and burying the truth prevents Americans from questioning our torture practices. Any solution requires a full disclosure and an impartial investigation.

Even the Democrat-controlled Senate Committee on Select Intelligence seems unsure about disclosure. They have not yet decided whether to release a redacted report on interrogation practices that covered an investigation spanning three years. In addition, President Obama has refused to support Senator Patrick Leahy’s (D-VT) proposed “truth commission” – a commission inviting CIA employees to testify on the acts they committed under the harsh interrogation policies and thereby receive immunity from criminal prosecution.

America cannot end torture without knowing the truth. Sign the Human Rights First Petition urging the Senate Intelligence Committee to release their report on torture practices.

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When Lunacy Rules, the Arms Trade Treaty Fails

by Alex Emmons, Co-Coordinator

I grew up in Fairfax, Virginia, 10 minutes from the national headquarters of the NRA. I know a lot of gun owners. I also know that local gun owners understand the responsibility that comes with being armed. I respect gun ownership – on the condition that gun owners are nonviolent and law-abiding. I also maintain that if someone demonstrates violence or insanity, they should not be given a gun.

That was the message of a June 2012 Amnesty International protest in Times Square. This message, however, was not about local gun owners. Protestors were instead demonstrating for stronger controls on the international arms trade. Under present rules, arms merchants are free to sell military weapons to dictators, terrorists, and perpetrators of gender-based violence.

By selling guns to human rights violators, arms dealers profit from enabling oppression, slaughter, and rape. The international arms trade has been guilty of keeping dictators like Bashir Al-Assad and Saddam Hussein in power. Arms merchants have also enabled civilian violence and mass rape – like that committed by the army of and various militias in the Democratic Republic of Congo.

Representatives to the UN convened in July to negotiate a solution. With the world’s first ever Arms Trade Treaty (ATT), the UN attempted to ban the export of weapons to the world’s worst human rights violators. Contrary to the criticisms of the NRA, the ATT did not address domestic gun sales or ownership.

But that didn’t stop President Obama from killing the treaty. On the final day of negotiations, American delegates declared that they had not been given enough time to read the 11-page treaty. Their interests were all too clear. The United States is the largest exporter of weaponry. American arms exporters make about 25 billion dollars a year by arming the world. Any regulation at the international level would come with a noticeable cost to American industry.

Treaty negotiations ironically failed one week after the terrible tragedy in Aurora Colorado. President Obama had just finished calling the nation to “prayer and reflection” about arming dangerous men. It is clear that he is not willing to stand strong on that point in the international arena. And the world will continue to suffer for it.

The ATT is a necessary measure for a world safe from dictators and terrorists. Tell heads of state to support the ATT by signing the Control Arms Campaign’s petition.

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Endorsing Political Repression: The Yale-NUS Venture

by the Yale Amnesty Co-Coordinators

The first round of admissions has ended at Singapore’s newest college, even though the new campus is not expected to open until August 2013. That’s right—the venture in which Yale University has partnered with the National University of Singapore (NUS) to create Yale-NUS College, Singapore’s first liberal arts program, is going full steam ahead. The school offers students the chance to take coursework across broad interests in discussion-based classes. The Yale-NUS website states: “Learning is different here… the Yale-NUS curriculum emphasizes critical thinking….” The Yale-NUS partnership, however, is built on hypocrisy.

The laws of Singapore forbid critical expression. The Singaporean constitution allows the government to illegalize any speech deemed a threat to public security. According to Amnesty International, the Singaporean Government fines and detains opposition leaders for “public speaking without a permit.” Even foreign journalists, like Alan Shadrake, have been imprisoned for critical publications.

Amidst an outcry from Human Rights Watch, covered by local paper the New Haven Register, Yale President Richard Levin and Yale-NUS President Pericles Lewis have tried to pacify concern. Levin released a statement saying that the Yale-NUS partnership will yield “pedagogy encouraging critical inquiry.” Lewis has said Yale-NUS would “protect academic freedom for…discussion and publication.” Both statements seem to be lies on face.

The Singaporean Government must approve all Yale-NUS political associations. Only one campus location is available for public speaking, and only with a special government permit. Faculty will not be able to publish anything critical of local government. As the Wall Street Journal reported on July 16, protests are not allowed on campus, and partisan political societies are similarly outlawed. We find it hard to believe that either President Levin or President Lewis can honestly believe that NUS will protect critical discussion. We’re joined in this uneasiness by the editorial staff of the Yale Daily News, which published an editorial on the issue on July 23. This came on the heels of their most recent article as part of their continuing coverage of the Yale-NUS venture.

Yale-NUS claims that its curriculum emphasizes leadership development. But the college does not stand on a strong enough foundation to do so. According to Yale’s Free Expression Policy, true leadership requires being able to critically engage with social institutions. It requires students to be able to propose solutions and advocate for reforms. If Yale-NUS suppresses those skills, it cannot claim to provide a legitimate liberal arts education.

In July, Secretary-General of the Singapore Democratic Party wrote to Professor Pericles Lewis, Yale-NUS President, condemning Yale’s hypocritical creation of a university that stifles speech and political expression while promising academic freedom. [Check out his letter here.] We support you, Dr. Chee Soon Juan! Yale’s shameful acquiescence to an authoritarian government is unacceptable, and we must fight for change.

Through the Yale-NUS partnership, Yale is endorsing human rights violations. As student activists in a chapter of Amnesty International, a group founded to support freedom of political expression, we cannot accept this decision and will continue to pressure the Yale administration to change this policy of political repression.

For a clearinghouse of information on human rights in Singapore as well as the Yale faculty, alumni, and student reactions to the Yale-NUS venture, check out the website put together by Yale faculty, a joinable site on the classesv2 server. Learn how to log in here!

Please check back with us soon for more updates and join us in the fall to protest President Levin’s decision. We’re hoping to build a coalition with other student groups to ensure that Yale lives up to its human rights obligations. Please send us an email at yale.amnesty@gmail.com or contact one of our co-coordinators to get involved.

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Intentional Ambiguity: The NDAA Explained

by Alex Emmons, MC ’15, Co-Coordinator

On December 15, 2011, Congress passed the National Defense Authorization Act (NDAA). Just like they had the year before. And the year before that. The NDAA is a 700 billion dollar appropriations bill required to fund the Department of Defense. But, like so many appropriations, it comes with strings attached.

The 2012 NDAA quickly became the epicenter of a national controversy. Pundits declared that the law allowed indefinite detention of American Citizens without trial, ignoring due process rights. Republican officials defended the bill, claiming that it does not apply to American citizens.

The truth is unclear. Section 1021E of the NDAA asserts “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens.” The ambiguity rests in the phrase “existing law.” Tragically, “existing law” probably does not refer to the Bill of Rights.

Many legal scholars believe that it likely refers to the 2001 Authorization for Use of Military Force–a law that conferred unchecked authority on the military. To add to the uncertainty, the Supreme Court has failed to settle the issue. In Hamdi v. Rumsfeld, the Supreme Court ruled that due process for detainees can be limited and the burden of proof suspended.

The lack of clarity in the 2012 NDAA naturally concerned a group of US journalists. Fearing that honest reporting could lead to detention without due process, they filed suite in a New York Court on the grounds that the NDAA could violate the freedom of the press.

When District Court Judge Katherine Forrest interrogated the government’s attorneys about their interpretation of the NDAA. They repeatedly replied, “We are not prepared to answer that question.” Their failure to respond was so astounding that it indicated something worse than a lack of preparation. They did not intend the law to be clarified by judicial review. In May, Katherine Forrest courageously struck down the “indefinite detention” provisions in the NDAA. But her verdict fell on deaf ears. The Obama administration replied that her verdict applied only to the plaintiffs of the case.

The detention of any individual–citizen or non-citizen–without due process is wrong. The case of the 2012 NDAA demonstrates the need for clarity on the matter. While scholars remain uncertain, ambiguity leads to impunity. By passing legal codes too unclear to enforce, Congress has sanctioned human rights violations. Congress instead needs to assertively illegalize indefinite detention, for both citizens and non-citizens.

This July, the Senate will consider the NDAA for 2013. Senator Mark Udall (D-UT) is leading the fight against indefinite detention. Help him by signing his online petition.

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