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19 December 2010 | Draft

Alleged Breach of UN Treaty Obligations by US

Press coverage and commentary following WikiLeaks cable dissemination

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Introduction
Press coverage
Commentary
Exploration of legal possibilities

Introduction

As noted by Robert Booth and Julian Borger (US diplomats spied on UN leadership. The Guardian, 28 November 2010):

A classified directive which appears to blur the line between diplomacy and spying was issued to US diplomats under Hillary Clinton's name in July 2009, demanding forensic technical details about the communications systems used by top UN officials, including passwords and personal encryption keys used in private and commercial networks for official communications. It called for detailed biometric information "on key UN officials, to include undersecretaries, heads of specialised agencies and their chief advisers, top SYG [secretary general] aides, heads of peace operations and political field missions, including force commanders" as well as intelligence on Ban's "management and decision-making style and his influence on the secretariat".

A parallel intelligence directive sent to diplomats in the Democratic Republic of the Congo, Uganda, Rwanda and Burundi said biometric data included DNA, fingerprints and iris scans. Washington also wanted credit card numbers, email addresses, phone, fax and pager numbers and even frequent-flyer account numbers for UN figures and "biographic and biometric information on UN Security Council permanent representatives".

The UN has asserted that bugging the Secretary General is illegal, citing the 1946 Convention on Privileges and Immunities of the United Nations which states:

The 1961 Vienna Convention on Diplomatic Relations, which covers the UN, also states:

It is noteworthy that the US withdrew in 1986 from compulsory jurisdiction by the International Court of Justice (after the court ruled that its covert war against Nicaragua was in violation of international law). The US now only accepts the court's jurisdiction on a case-by-case basis. It is therefore presumably free to reject any complaint made by the United Nations under the 1946 Convention. The 1961 convention makes no specific provision for the settlement of disputes.

Overview

The  US embassy cables indicated that Hillary Clinton as US Secretary of State, personally authorised a request to US diplomats, on behalf of the CIA, to steal personal human material and information from UN officials and human rights groups, including DNA, fingerprints, iris scans, credit card numbers, internet passwords and ID photos, in violation of international treaties. The revelations have prompted questions about whether such activity was legal, considering conventions that stipulate the UN's premises and correspondence "shall be inviolable".

On disclosure of the secret directive the UN secretary general's acting deputy spokesman, Farhan Haq, immediately issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution's inviolability: "The UN relies on the adherence by member states to these various undertakings." Furthermore, "The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation". The relevant clause of that convention reads:

Applicable treaties: More generally, the treaties governing the UN and its staff at the UN HQ in New York, are detailed by the U.S. Mission to the United Nations:

With respect to any infringement of human rights of individuals from whom information is sought in response to intelligence requests, of further relevance is the Presidential Executive Order 13107 Implementation of Human Rights Treaties (10 December 1998), signed by William Clinton. Of more general relevance are:

Questions are being raised by former UN staff, such as Stephen Schlesinger, author of a book about the organization (Act of Creation: the founding of The United Nations, 2003), who said today that the spying was not a surprise -- but what was, is the Obama administration's continuation of a policy begun by the Bush administration.

The fact that Hillary Clinton also signed off on these instructions, without modifying them, is startling to me. I would have thought a civil libertarian and liberal Democrat like Clinton (and Obama, too) would have stepped back after seeing these Bush rules and dropped them.

Official silence: Whilst there has been extensive media coverage of the alleged espionage by Julian Assange, very little has been heard of the case of espionage by the US at the UN in violation of its treaty obligations.

In a widely-circulated letter (4 December 2010) to Australian Prime Minister Julia Gillard, Peter Kemp, Solicitor of the Supreme Court of New South Wales (Australia), asks:

I join with Professor Saul [Don't cry over WikiLeaks, The Age, 2 December 2010] also in asking you Prime Minister why has there been no public complaint to the US about both Secretaries of State Condaleeza Rice and Hillary Clinton being in major breach of International law ie UN Covenants, by making orders to spy on UN personnel, including the Secretary General, to include theft of their credit card details and communication passwords. Perhaps the Attorney General should investigate this clear prima facie evidence of crime (likely against Australian diplomats as well), rather than he attempts to prosecute the messenger of those crimes.

There have been few other communications of this nature, most notably from any Member States of the United Nations according to any formal procedure as might otherwise have been expected. Consideration can also be given to the comments elicited from readers of many of the sources quoted below.

Press coverage

Immediate response to dissemination of the relevant cable

Reaction of UN

Recognition of UN as a focus of espionage

Role of CIA

As noted by Robert Booth and Julian Borger (US diplomats spied on UN leadership. The Guardian, 28 November 2010):

The operation targeted at the UN appears to have involved all of Washington's main intelligence agencies. The CIA's clandestine service, the US Secret Service and the FBI were included in the "reporting and collection needs" cable alongside the state department under the heading "collection requirements and tasking".

Citing specific texts in the State Department Directive, which had been interpreted as an attempt to spy on UN personnel, Pincas Jawetz argues that when read carefully, seem rather to have been a program of counter-intelligence (Sustainabilitank.info, 2 December 2010)

Subsequent interaction between US and UN

Having authorised the acquisition of such information, the US Secretary of State personally expressed regret to the UN Secretary-General about its embarrassing disclosure by WikiLeaks. However it has been noted that the "regret" expressed by Hillary Clinton did not in fact take the form of an apology (Hillary Clinton 'regrets' spying on Ban Ki-moon, The Australian, 4 December 2010). Her "regret" may well have focused on the revelation rather than on her action -- as would seem to have been the case with regard to her predecessor, Madeleine Albright, in commenting on the death of 500,000 children in Iraq as a result of sanctions: "we think the price is worth it".

There is no indication whatsoever that the secret directive has been rescinded. But, if it had, this fact would necessarily be classified.

It has however been recognized that it is difficult to bring US and its agents to court on any issue -- from which they typically escape trial, conviction and punishment -- however horrendous and irrespective of the number of lives lost. The US is not a signatory/participant of the International Criminal Court for that reason -- as a means of evading the law and cases brought by other countries.

Denial by US of espionage at UN

As noted by Robert Booth and Ewen MacAskill (US embassy cables: UN seeks answers from Washington. The Guardian, 29 November 2010):

The senior American diplomat at the UN tonight defended her team after WikiLeaks disclosed a US spying operation targeting the UN's secretary-general, Ban Ki-moon, and members of the security council. Susan Rice, the US ambassador appointed to the UN by Barack Obama last year, appeared uncomfortable and, at times, exasperated as she took questions from the media at the UN today. She denied US diplomats were engaged in spying. "Let me be very clear: our diplomats are just that," she said. "They are diplomats. That is what they do every day. They get out and work with partners here at the UN and around the world." Rice was questioned about a leaked US cable showing diplomats were asked to find personal financial details about the UN leadership, including credit card information, passwords for their communications systems and frequent-flier membership. Ban's office hit back at the US with a warning that any violation of UN "immunity" may breach international law. Rice, speaking after a meeting of the security council today, three times declined to deal directly with questions about the spying.

It is unclear how to reconcile such assertions with the content of the original directive to diplomats, unless the acquisition of private biometric information -- by subterfuge or theft, if necessary -- is to be considered as a legitimate activity of diplomats.

As remarked by Robert Scheer (Hillary Gets Wiki-Served. CommonDreams.org, 1 December 2010):

Instead of disparaging the motives of the leakers, Hillary Clinton should offer a forthright explanation of why she continued the practice of Condoleezza Rice, her predecessor as secretary of state, of using American diplomats to spy on their colleagues working at the United Nations. Why did she issue a specific directive ordering U.S. diplomats to collect biometric information on U.N. Secretary-General Ban Ki-moon and many of his colleagues?....
The spying effort derived from concern that U.N. rapporteurs might unearth embarrassing details about the U.S. treatment of prisoners in Guantánamo as well as in Iraq and Afghanistan. One of the directives demanded 'biographic and biometric' information on Dr. Margaret Chan, the director of the World Health Organization, as well as details of her personality and management style. Maybe she's hiding bin Laden in her U.N. office.

UN reaction to censorship of WikiLeaks

US strategy in relation to UN

Commentary

As noted above, the official position of the US, with respect to the instructions authorised by Hillary Clinton regarding acquisition of personal information on behalf of US intelligence agencies, appears to be:

Precedent of 2003: The silence on the part of the international community with respect to any action that might be taken with regard to the possible breach of treaty obligations by the US (as with the March 2003 incident) is precisely the kind of silence to which WikiLeaks has drawn attention and of which "we the peoples" have a right to be exceptionally suspicious. For initial commentary on the 2003 incident and its aftermath, see:

The Observer report noted at that time:

While the bugging of foreign diplomats at the UN is permissible under the US Foreign Intelligence Survelliance Act [FISA] it is a breach of the Vienna Convention on Diplomatic Relations, according to one of America's leading experts on international law, Professor John Quigley of Ohio University. He says the convention stipulates that: 'The receiving state shall permit and protect free communication on the part of the mission for all official purposes... The official correspondence of the mission shall be inviolable.'

The silence may be due to a poorly recognized evolution in government and corporate policy on collection of biometric data -- in future to be considered "normal", as reviewed prior to the WikiLeaks disclosure (Ethan Jacobs, Big Brother: Biometric Tyranny and DNA Databases, Global Research, 15 November 2010). Note also the subsequent comment of Dan Vorhaus (Surreptitious Genetic Testing: WikiLeaks Highlights Gap in Genetic Privacy Law, Genomic Law Report, 9 December 2010).

US foreign surveillance provisions: Any questions of "legality" from a US perspective need to be seen within the context of provisions made prior to, and subsequent to, the 2003 incident:

Denial and lying: The US is in an extremely difficult position since it is unable to prove that its diplomats are not lying when commenting on the second and third points. With regard to "lying":

The extreme significance of the latter example confirms the classic statement of Henry Wotton (1568-1639) defining an ambassador as being an: "honest man sent to lie abroad for the good of his country" (Legatus est vir bonus peregre missus ad mentiendum rei publicae causa). The contrary argument can of course be made, without being able to demonstrate its truth with respect to the United Nations. A former Australian diplomat makes such a case (Peter Ellis, Whistleblowing: Lying For Your Country, 2007):

Many senior diplomats have publicly disputed the archaic 'lie abroad for their country' wisdom, maintaining that good diplomacy is based on frankness and trust. The ineffectiveness of lying in diplomacy is one good reason for honesty, but more important is the corrosive impact lying by any public servant has on democracy at home. Any international case of political interest has the potential to become a domestic political matter, and if we were to accept State-sponsored lying overseas, who is to draw the line between lying for one's country and lying for the political Party that happens to be in power?

This argument is necessarily self-serving, whatever the truth of the matter.

It is therefore to be expected that (like Colin Powell) Hillary Clinton, Susan Rice and Betty E. King are simply "lying for their country". That is what they are paid for under the circumstances. They are completely unable to demonstrate the contrary.

It is presumably impossible to distinguish by any legal process between the "denials" by the agents of the US from the "denials" of those variously identified in the diplomatic cables as being engaged in questionable activities -- as for example the reaction of President Omar al Bashir of Sudan (WikiLeaks cables: Sudanese president 'stashed $9bn in UK banks', The Guardian, 17 December 2010).

Definitional game-playing: The situation regarding denials is especially poignant in the case of Hillary Clinton, whose husband -- as supreme authority in the US at that time -- declared with respect to Monica Lewinsky that I did not have sexual relations with that woman. (Bill Clinton, White House Press Conference, 26 January 1998). As noted in commentary on that statement:

The nature of the statement was called into question within hours when a skeptical reporter noted to White House press secretary Mike McCurry that the term "sexual relations" can be defined as meaning coitus, and asked whether the President and Lewinsky had been engaging in other forms of sex. McCurry replied, "I think every American that heard him knows exactly what he meant with the question. He didn't leave any ambiguity in it whatsoever." The controversy deepened when Clinton was revealed, in fact, to have had sexual contact with Lewinsky, although the issue (and the question of whether or not Clinton lied) remained a semantic one as to whether the words "sexual relations" includes oral sex. This and related disputes would lead to the impeachment of Bill Clinton and the settlement and conclusion of the legal case with Paula Jones.

The question might be asked whether the US is now indulging in equivalent semantic games in defining its information acquisition strategy as The US is not engaging in espionage on UN leadership. As with Bill Clinton it will of course be difficult for the US to prove that the information acquisition authorised by Hillary Clinton is not an infringement of its UN treaty obligations. With respect to such "obligations", the varieties of diplomatic "intercourse" might be usefully compared to the varieties of sexual "intercourse" -- whether oral or otherwise. The strategy might be named as "definitional game-playing" (of which the UN is itself an expert) or as "conceptual gerrymandering".

One example of possible game-playing is the argument that it is not in fact the diplomats as such who are engaged in spying but rather their agents, or the technology they put in place to enable espionage by "non-diplomatic" services of the US government. For example, with respect to the alleged spying on the United Nations, in March 2003 by the US National Security Agency. The spying was allegedly committed by the US, the UK, and Australia. Does this incident explain the reluctance of Australia to counter-balance the focus on Assange byofficially raising the issue of US breach of UN treaty obligations?

Ironically, as explored separately, Julian Assange -- as a focus of Hillary Clinton's ire -- is appropriately arguing I did not rape those women (WikiLeaks and the First Global Condom War: political awakening through asymmetric psychodrama: US versus Assange, 2010). Hillary may well wreck her vengeance on Bill through Julian. As many have remarked, the Swedish law by which Assange is accused defines "rape" in a manner quite distinct from that of other countries. A good place for vengeance. In the form of an open letter, the commentary of Michael Moore is particularly enlightening (Dear Government of Sweden..., MichaelMoore.com, 16 December 2010).

Scapegoating: The displacement of media attention from its own abuse onto that of Julian Assange and WikiLeaks is a good strategy for the US -- especially in providing a substitute for a decade of frustration and expense in relation to Al-Qaida and Osama bin Laden, as the "most wanted" person on the planet. A scapegoat is required. It also avoids any consideration whatsoever of the implications noted by an editorial (WikiLeaks: the man and the idea, The Guardian, 18 December 2010):

Millions of people around the world have glimpsed truths about their rulers and governments that had previously been hidden, or merely suspected. The cables have revealed wrongdoing, war crimes, corruption, hypocrisy, greed, espionage, double-dealing and the cynical exercise of power on a wondrous scale.

Furthermore, in focusing on the criminal case against Assange, the strategy avoids any consideration of the moral responsibility of those informed of such matters -- given their complicity with threats to lives and livelihoods, as well as with the widespread practice of torture. How many lives could have been saved, and how much suffering avoided, were it not for the complicity of those entitled to read the diplomatic cables -- to safeguard the competitive advantage of the US at the expense of others (à la Madeleine Albright)? Are diplomats required to have any sense of moral responsibility or only to use it as a rhetorical device?

The moral dimension is usefully framed by Christian Caryl (WikiLeaks in the Moral Void, The New York Review of Books, 7 December 2010). Its paradoxical nature is also highlighted separately (Mirroring Global Moral Equivalence: US contra Julian Assange versus China contra Liu Xiaobo, 2010).

It is curious that withholding assistance to persons in danger is only considered a crime in some national legislations. It is not a crime defined in international law -- nor has it been extended to include withholding information of relevance to persons in danger. Those who practice it are protected by "diplomatic impunity", whilst any evidence of their malfeasance is held to be a secret vital to their own security. As demonstrated in the case of Bradley Manning, Julian Assange and WikiLeaks, those who endeavour to make apparent such information are themselves subject to criminalisation.

Identity theft: The alleged espionage on UN leadership (interpreted as "identity theft" in other contexts) -- has been variously reframed as "legitimate", with every probability that any formal, legal protest will be quashed, rather than treated as a serious breach of international treaty obligations (Julian Borger, Embassy cables: Where does diplomacy end and spying begin? The Guardian, 28 November 2010; Robert Booth and Ewen MacAskill, US embassy cables: UN seeks answers from Washington, The Guardian, 28 November 2010). US is after all a principal source of UN funds, a Permanent Member of the UN Security Council, and the location of the UN headquarters. But with respect to the charges of "molestation" against Assange, it is amusing to note that the UN Secretariat has effectively become a "mole station" -- and that whilst "den of spies" is a recognized expression, moles in nature also are said to live in "dens".

Ironically there is every possibility that the intense efforts by UA authorities to formulate a case against Julian Assange will hold a degree of applicability (mutatis mutandis) for a case that could be made against US with respect to the deliberately authorised theft of confidential personality information -- especially when appeals are made to principles in determining grounds for prosecution. Possibilities include appeals based as follows.

and against
Comparability of cases against Assange-WikiLeaks and against USA?
Principles States (US)
case against Assange-WikiLeaks		 Individuals (UN office holders)
case against US
Right to property Property of states (theft, misuse) Property of individuals (theft, misuse)
Privacy Defence secrets Confidential personal information
Enhancing security threats (espionage) Enhancing threats to national security Enhancing threats to personal security
Freedom of speech As a constitutional provision Universal Declaration of Human Rights
     

Of particular interest is the focus of the US on whether Assange was seeking to cause harm to the US, or was complicit in such efforts. This focus could clarify the more general international legal arguments as to whether a legal person, recognized in international law (whether individual, association, corporation or government) caused harm to another legal person, whether immediately or at some future time, by :

In the case of "persons" not recognized as existing in international law, as with WikiLeaks (or Al-Qaida) or those without adequate representation, the efforts of the US are to be welcomed in helping to clarify what is required to demonstrate their "existence", as discussed separately (Cultivating Global Strategic Fantasies of Choice: learnings from Islamic Al-Qaida and the Republican Tea Party movement, 2010). The analysis should help to demonstrate the nature and significance of "harm" between actors variously recognized -- despite difficulties experienced in defining "aggression", "violence" and "terrorism", and avoidance of defintions of "suffering". This would provide a legal framework for considering the US policy previously articulated by Madeleine Albright, in commenting on the death of 500,00 children in Iraq as a result of sanctions: "we think the price is worth it".

Of particular interest is the extent to which the arguments developed by the US will provide a legal case for framing the extent to which the US may be understood as causing (or intending to cause) "harm" to the United Nations, individuals working therein, or "we the peoples" in whose name they are acting -- whether or not the contrary is claimed. Especially interesting will be the articulation of exceptions to any more general principles with respct to the "security" of that legal person.

Court of public opinion: Whilst it is typically the case that means will be found by US to prosecute Assange (or to legitimate his "elimination"), the stronger the case made against Assange, the greater the relevance of those arguments to a case against US with respect to the individuals in the UN (or those on behalf of whom they are acting), whether or not it can be made before any court of law.

US will be tried in the court of public opinion -- and in the eyes of international civil servants -- in the light of the principles they seek in defence of their collective interests in endeavouring to prosecute Assange. There is even an argument for a form of class action suit -- as with the Permanent Peoples' Tribunal -- on behalf of "we the peoples". This might even recognize what amounts to a form of "organized crime" in endeavouring to obtain personal details by theft. There is considerable irony in the fact that the embassy cables described the Russian regime as a "kleptocracy". The latter argument could well be reinforced by claims that the generous use of quantitative easing constituted a theft of the resources of individuals (as taxpayers), then redistributed to corporate entities "too big to fail".

Infringement of individual rights: Useful points have been made with respect to the aggression of US against its own people by Naomi Wolf (Espionage Act: how the government can engage in serious aggression against the people of the United States, The Huffington Post, 10 December 2010). Should individuals be encouraged to extend their notions of "security" as is done with respect to "national security", perhaps to include threats to: food security, job security, shelter, physical security, social security, health security? Are "we the peoples" having such "enhanced security" threatened by the actions of US?

The problem for the US Attorney General in the case of Assange-WikiLeaks is finding a legal basis to punish the distribution of classified information where the person involved is neither a US official nor the agent of a foreign power. The question is then what distinguishes Assange from any other person if the cables are forwarded by e-mail. Both questions are relevant in the case of UN office holders, additionally protected by international treaty (Daniel Dombe, Case against Assange beset with problems, Financial Times, 7 December 2010; Daniel Nasaw, Wikileaks: Barriers to possible US Assange prosecution, BBC News, 8 December 2010; Peter Spiro, Wikleaks: Conundrums of Disclosure and Declassification Opinio Juris, 8 December 2010).

The current focus on additional international treaty instruments to enable "leakers" and whistleblowers to be more effectively prosecuted raises the question of the corresponding provisions required to effectively prosecute states that infringe the rights of individuals -- as with those of supposedly protected from identity theft by existing international treaties (Ron Synovitz, WikiLeaks Case Fuels Debate Over Secrecy, Access Laws, Radio Free Europe / Radio Liberty, 8 December 2010). The latter comment cites Ben Saul to the effect that:

If you're going to create a rule designed to protect diplomatic communications from disclosure... you need an exception to cover these cases where some information which is truly in the public interest ought to be disclosable and publishable. There shouldn't be any criminal penalty for such disclosures.

However Synovitz concludes with the question as to which existing international court -- if any -- would have the jurisdiction to rule on what is "in the public interest". This question also applies in the case of US infringement of the rights of UN staff.

Curiously the only staff association initiative within the UN system that appears to have mentioned the implications of the activities authorised by Hillary Clinton is that of the UNDP in reacting to an earlier (unrelated) matter involving a whistleblower within the organization. As noted by George Russell (U.N. Workers Call on Ban Ki-Moon to Reinstate Whistleblower, 1 October 2009):

The United Nations' five staff associations sent a stinging message to Secretary-General Ban Ki-moon Wednesday, demanding reinstatement of a whistleblower who lost his job after reporting financial and other irregularities in the program of the United Nations Development Program (UNDP) in North Korea. The resolution also condemned a 'culture of impunity permeating the higher levels of the organization, complemented by a dysfunctional internal justice system.'

Paralysis of the UN: But how should a state be "punished" for acting against a person, even one protected by international treaty? In the case of WikiLeaks itself, interesting legal questions arise regarding the degree to which it even "exists" as a legal entity, as separately discussed in relation to both Al-Qaida and the Tea Party movement (Reality and Existence, 2010). Only the UN offers a slight degree of recognition to international nongovernmental entities -- provided they have some "consultative status" with the UN.

The total silence regarding the actions formally authorised by Hillary Clinton reinforces the view that the powers of the Office of the UN Secretary-General have long been severely constrained by US. This follows naturally from the fact that US contributes 22 percent of the UN's regular budget and 25 percent of the UN's peacekeeping operations budget. Further more, as noted by Wendy Wright (U.N. Gets New Oversight, American Thinker, 15 December  2010) the new chairperson of the US House Foreign Affairs Committee has declared that she plans to use US contributions to international organizations as leverage to press for real reform of those organizations, such as the UN, seeking to making the US contributions voluntary until the US creates an office to audit the UN for transparency and waste. Neither the UN, nor its staff, can afford to protest any alleged breach of treaty obligations -- nor can other Member States.

A degree of constraint is also evident following the daring, much-delayed, declaration by the previous holder of that office regarding the legality of the Iraq war (Iraq war illegal, says Annan, BBC News, 16 September 2004; Iraq war was illegal and breached UN charter, says Annan, The Guardian, 16 September 2004). It is this statement that determined the profile of the current incumbent. However the existence of higher levels of secrecy does raise the question as to how secret was the information regarding the controversial background of his predecessor, Kurt Waldheim -- and who was complicit in that secret? Are secret constraints a prerequisite for the role?

Exploration of legal possibilities

To the extent that the directive of the US Secretary of State can be construed as theft of the private property of a UN staff member, bodies possibly competent to consider both individual and collective complaints include:

Staff members within the UN system are represented by a variety of staff associations who could consider the nature of any formal complaint to be made against the actions affecting them of a member country of the UN system. Such bodies include:

Of relevance in relation to any such representation is the experience of the New Wood Staff Union with the objective of ensuring a coherent application of international human rights and labour norms with regard to all civil servants employed in the international organizations (Pearl Lang, Duplicity at Work Or … How the UN falls short of its own principles, 2007). The latter is consistent with an earlier commentary (Shirley Hazzard, Defeat of an Ideal: a study of the self-destruction of the United Nations, 1973).

Bodies which might have a degree of interest in any breach of UN treaty obligations include:

Relevant documents might include:

Of interest in any such exploration is any conclusion to the effect that the individuals, whose private information is obtained following such a directive, have no legal recourse and no protection whatsoever against such initiatives.

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