THE EMERGENCE OF A GLOBAL … · this exercise, however, ... global system for mass registration and sur- ... more than mere privacy, or even democratic processes,

International Campaign Against Mass Surveillance

THE EMERGENCE OF AGLOBAL INFRASTRUCTUREFOR MASS REGISTRATION

AND SURVEILLANCE


THE EMERGENCE OF A GLOBALINFRASTRUCTURE FOR MASSREGISTRATION AND SURVEILLANCE

Published April 2005

For more information, contact: [email protected]

THE EMERGENCE OF A GLOBAL INFRASTRUCTURE FOR MASS REGISTRATION AND SURVEILLANCE

Table of ContentsTHE ROAD WE ARE HEADING DOWN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Myth #1:We are merely being asked to sacrifice some of our privacy and convenience forgreater security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1st SIGNPOST: THE REGISTRATION OF POPULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Mass Detentions of Muslim Immigrants and Registration through NSEERS . . . . . . 52. US-VISIT and the E.U. Visa Information System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

a) Biometric Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5b) Linkage of Biometric Information to a Global Web of Databases . . . . . . . . . . . . 6c) U.S. Acquisition of Domestic and Foreign Databases . . . . . . . . . . . . . . . . . . . . . . 6d) The Template for the Global System of Mass Registration and Surveillance . . 8

2nd SIGNPOST: THE CREATION OF A GLOBAL REGISTRATION SYSTEM . . . . . . . . . . . . . . . . . . 8

1. Biometric Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8a) Policy Laundering – Referral to ICAO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9b) The Model: Carte Blanche . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9c) RFID Chips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10d) Biometric Passports and the Democratic Deficit . . . . . . . . . . . . . . . . . . . . . . . . .10e) Flawed Technology and Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11f) Expansion to Other Transportation Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12g) Institutionalizing “Non-Personhood” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

3rd SIGNPOST: THE CREATION OF AN INFRASTRUCTURE FOR THE GLOBAL SURVEILLANCE OFMOVEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

1. U.S. Demands for Sharing Passenger Name Records . . . . . . . . . . . . . . . . . . . . . . . .122. The Deals Made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133. PNR and the Democratic Deficit – Another Referral to ICAO . . . . . . . . . . . . . . . . . .134. Expansion to Other Transportation Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Myth #2: These initiatives facilitate travel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

4th SIGNPOST: THE CREATION OF AN INFRASTRUCTURE FOR THE GLOBAL SURVEILLANCE OFELECTRONIC COMMUNICATIONS AND FINANCIAL TRANSACTIONS . . . . . . . . . . . . . . . . . . . .14

1. “Building in Surveillance” and the Convention on Cybercrime . . . . . . . . . . . . . . . . .152. Mandatory Data Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163. Expansion of ECHELON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164. Mandatory Information-Gathering and Reporting for Financial Transactions . . . . .17

5th SIGNPOST: THE CONVERGENCE OF NATIONAL AND INTERNATIONAL DATABASES . . .181. Radical Acceleration of Convergence Since 9/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .182. The “Black Box” of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20


6th SIGNPOST: THE DANGERS OF A RISK ASSESSMENT MODEL – A WORLD THAT IS BOTHORWELLIAN AND KAFKAESQUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

1. Data Mining: The High-Tech “Solution” to Risk Assessment . . . . . . . . . . . . . . . . . . .20a) Orwell Revisited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Myth #3: If one has nothing to hide, one has nothing to worry about. . . . . . . . . . . . . .20

b) TIA, MATRIX and Other Data Mining Projects inImplementation or Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

c) CAPPS II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22d) Canadian Risk Assessment Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23e) German “Trawling” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23f) Data Mining and the Democratic Deficit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23g) Flawed Facts, Dirty Information, Guilt by Google, Ethnic Profiling . . . . . . . . . . .24

Myth #4: The technology being used objective and reliable. . . . . . . . . . . . . . . . . . . . . .24

2. Low-Tech “Solutions” to Risk Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24a) Guilt by Association and Indiscriminate Sharing of Information:

The Story of Maher Arar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24b) Using Information Obtained by Torture and Tipping Off Torturers . . . . . . . . . . .26c) Sloppy Mistakes: The Madrid Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27d) Getting People Off the Street: Arbitrary Detentions . . . . . . . . . . . . . . . . . . . . . . .27e) Broad Strokes: The U.N. list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29f) Disciplining Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

i) Targeting the “Unpatriotic” in the U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29ii) The U.S. No Fly List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30iii) Open Season on Individuals and Groups Challenging

Repressive Regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31g) A Plethora of Ballooning Watch Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Myth #5: Terrorist watch lists are a reliable product of international intelligencecooperation and consensus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

3. Kafka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

7th SIGNPOST: DEEP INTEGRATION AND THE LOSS OF SOVEREIGNCHECKS AND BALANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Myth #6: If one is mistakenly caught up in the global surveillance net, one’sgovernment can protect one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Myth #7: Governments want to implement these systems to protect theircitizens from terrorists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

8th SIGNPOST: THE CORPORATE SECURITY COMPLEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

9th SIGNPOST: THE EXPROPRIATION OF THE DEMOCRATIC COMMONS . . . . . . . . . . . . . . . . .38


10th SIGNPOST: A LOSS OF MORAL COMPASS – RENDITION, TORTURE, DEATH . . . . . . . . .39

1. The Global Gulag . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39a) Detention Centres Used by The U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39b) The Practice of Rendition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40c) Disappearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41d) The Assertion of a Legal Black Hole and Authority to Torture . . . . . . . . . . . . . .42e) Torture Committed by U.S. Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44f) The Plan to Build Permanent Prisons Outside the U.S. . . . . . . . . . . . . . . . . . . . .44g) The Participation of Other Western Democracies . . . . . . . . . . . . . . . . . . . . . . . . .45

Myth #8: Western democracies are defending democracy and humanrights around the world. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

h) New License for Brutal Regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

THE ILLUSION OF SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

Myth #9: These initiatives make us safer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

Myth #10: Guaranteeing security is the paramount responsibility of governments. . .48

Myth #11: At least, these initiatives are better than doing nothing. . . . . . . . . . . . . . . .49

RESISTING THE REGISTRATION AND SURVEILLANCE AGENDA . . . . . . . . . . . . . . . . . . . . . . . .49

1. Pockets of Resistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50a) NGOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50b) Democratic Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50c) Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

2. The Future is in Our Hands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53



THE ROAD WE ARE HEADING DOWN

On September 11, 2001 a number of per-sons supported by networks inside andoutside of the United States executed

one of the largest attacks ever made againstcivilians on American soil.

The Bush Administration responded quicklyby propelling the USA PATRIOT ACT andother legislation through Congress that itsaid would fight terrorism, and by demand-ing that other countries follow the templateprovided by these pieces of legislation.Much of the Bush Administration’s agendawas backed by U.N. Security CouncilResolution 1373, under which member statesfailing to comply risked Security Councilsanctions. But the agenda was also backed bythe economic, political and military might ofthe United States. Under this pressure, andoften for their own opportunistic reasons,many governments in the North and South,East and West have followed suit with agrowing web of anti-terrorism laws andmeasures.

The result has been an emerging trend towardthe harmonization and integration of securityfunctions on a global scale. In democraticcountries, this has led to a rollback of rights,freedoms, and civil liberties that have beenwon by centuries of popular struggle. In unde-mocratic countries, repressive regimes havebeen enabled and strengthened, and develop-ment assistance has been diverted to bolstersecurity apparatuses. Internationally, the post-World War II order – which enshrines the uni-versal, inalienable human rights of all individ-uals – has been seriously eroded.

Governments have been telling us that we must bewilling to sacrifice some of our freedoms forgreater security. Authorities say they need extraor-dinary powers to protect us from terrorists, and thatwe should be willing to put up with some incon-venience and invasion of privacy. Those who havenothing to hide, we are told, have nothing to fear.

But in this new world where individuals areexpected to hide little from governments,governments are hiding a lot. And, there is alot to be feared.

THE EMERGENCE OF AGLOBAL INFRASTRUCTUREFOR MASS REGISTRATION

AND SURVEILLANCE

1


“Eternal vigilance is the price of liberty.”- Wendell Phillips, 1852


Myth #1 We are merely being askedto sacrifice some of our privacy andconvenience for greater security.

Under the radar screen of the public, a globalregistration and surveillance infrastructure isquietly being constructed. It consists of numer-ous initiatives, most of which have been agreedto by governments without any democraticdebate through international forums, treaties andarrangements. Many of these initiatives are nowbeing implemented or are about to be imple-mented. Some are still in the research or propos-al stage. Most of them require governments tooverride or ignore existing domestic and inter-national legal obligations.

Although some of these initiatives have beenreported in the press, it is difficult to grasp theirsignificance by looking at each one in isolation,as they are often presented by the media.Viewed together, it can be seen that these initia-tives aim to ensure that almost everyone on theplanet is “registered”, that all travel is trackedglobally, that all electronic communications andtransactions can be easily watched, and that allthe information collected about individuals inpublic or private-sector databases is stored,linked, and made available to state agents.

Governments are not just collecting individu-als’ personal information and checking itagainst information about known terrorists, orthose suspected of terrorism on “reasonablegrounds”. They are using it to assess “risk lev-els” for all of us, and sharing it with foreignagencies, with little or no control over howthose agencies will use the information.

The object of the infrastructure that is beingconstructed is not ordinary police or intelli-gence work but, rather, mass surveillance ofentire populations. In this infrastructure,everyone will be treated as a suspect, andstate agents will maintain data profiles on allof us.

A major paradigm shift is occurring.Governments are no longer focussed on lawenforcement and intelligence-gathering aboutspecific risks. They have embarked on a muchmore ambitious and dangerous enterprise: theelimination of risk. In a “risk assessment” sys-tem, many of the ordinary legal protections thatare fundamental to democratic societies – dueprocess, the presumption of innocence, rightsagainst unreasonable search and seizure andthe interception of personal communications,and rights against arbitrary detention and pun-ishment – go out the window. For the riskscreeners, guilt or innocence is beside thepoint. What matters is the avoidance of riskfrom the point of view of the state, “separatingthe risky from the safe on the basis of the bestinformation available from all sources…”.1 Inthis exercise, however, the “best information”need not be complete or even accurate: it needonly be available.

In a risk avoidance model, the informationappetite of states is infinitely expandable,2 asthey increasingly orient themselves to thefuture and concern themselves with the predic-tive power of the information gathered.3

There are, of course, historical antecedents ofthis kind of system – the witch hunts of theMcCarthy era, the registration of the Jews inNazi Germany, the secret files of the Stasi. Butthe system that is currently being constructed isunlike anything that has come before, for tworeasons. First, its technological capacity dwarfsany previous system and makes Orwell’s bookNineteen Eighty-Four look quaint. Second, itsglobal reach ensures that one has to worry, notjust about what one’s own state might do withone’s personal information, but about what anyother state might do.

Indeed, it is now evident and documented thatthe United States and other countries are act-ing aggressively on information, seizing anddetaining people without reasonable

2


grounds, and “rendering” them to third coun-tries or extraterritorial camps run by theU.S., where they face torture during interro-gation and indefinite detention. Alongside theglobal system for mass registration and sur-veillance is emerging what some commenta-tors are calling a “global gulag”,4 in whichunknown numbers of people are languishing.What is at stake in this new world order ismore than mere privacy, or even democraticprocesses, legal systems, and civil liberties.Basic human rights are in jeopardy.

Governments promote mass surveillance initia-tives as technical solutions to the problem ofterrorism, and it may be that governmentsbelieve that these initiatives will do somethingto prevent terrorism. Certainly, governmentsbelieve that they must be seen to being doingsomething. But the questions we all should beasking our governments are these: is generaland pervasive surveillance an effectiveresponse to terrorism? Is it proportionate to thereal risk posed by terrorists? Will it destroy thevery democratic societies it is supposed to beprotecting and entrench the kind of corrupt,oppressive regimes that breed fanatical opposi-tion and terrorism?

Are governments, in fact, also being oppor-tunistic? Are they using the excuse of fightingterrorism to embrace initiatives that have con-sistently been defeated in democratic and legalprocesses, for purposes other than anti-terror-ism, that is, in order to suppress dissent,enforce their hegemonic interests, keep outimmigrants and refugees, increase ordinary lawenforcement powers, and generally enhancethe control they have over their populations?

What are the economic drivers in these initia-tives? Are governments trading away their sov-ereignty and the real security of their citizens toappease the United States for economic rea-sons? Are there corporate interests in deep inte-gration with the U.S.? Are there corporate

interests in a global system of mass registrationand surveillance?

Why are governments leading us headlongdown this road?

What follows is an attempt to answer theseimportant questions and to flag the “signposts”on the road governments are leading us downthat show just how far down the road we havetraveled and the dangers that lie ahead for all ofus if we fail to make governments turn back.Ten of these signposts will be examined indetail. They can be summarized as follows:

• The first signpost was the effort of the UnitedStates to ethnically profile Muslim, or potential-ly Muslim, immigrants and visitors, and to reg-ister and/or detain them under immigration lawsand programs called NSEERS and US-VISIT.

• The second signpost was the move on the partof the U.S. and its allies to do through interna-tional channels what most of them could not dothrough their own democratic systems – toexpand registration to their own populations andcreate what is, in effect, a global identificationsystem. This was accomplished by requesting theInternational Civil Aviation Organization(ICAO) to introduce a “biometric” passport thatwould be imposed universally.

• The third signpost was the creation, by similarmeans, of a global infrastructure for the surveil-lance of movement – using the biometric pass-port and airlines’ passenger name records. Underthis system, information about where individualsfly, and how often, will be tracked, stored, andshared between countries, and used to control themovement of people across borders.

• The fourth signpost was the creation of aninfrastructure for the global surveillance ofelectronic communications and financial trans-actions. Through this infrastructure, stateagents from our own and other countries will

3


have cost-free, direct access to individuals’ e-mails, phone calls, and website browsing, andfinancial institutions will monitor transactionsand report on them to state authorities.

• The fifth signpost is a development that feedsinto all of the others – the radical convergenceof government and private-sector databases,nationally and internationally. This is takingplace under new laws, but businesses are alsovoluntarily surrendering databases to govern-ment agencies, and the U.S. government is pur-chasing databases, domestically and abroad.The result is the creation of a global web ofdatabases that will be used by the U.S. andother countries (in conjunction with the infra-structures for the global surveillance of move-ment and of electronic and financial transac-tions) to generate detailed information dossierson everyone.

• The sixth signpost is the growing number ofmistakes and abuses that demonstrate the dan-gerous flaws inherent in the “risk assessment”paradigm that is driving the collection, storageand linkage of so much information.

• The seventh signpost is the deep integrationof countries’ police, security intelligence andmilitary operations with American operationsthat governments around the world are acqui-escing to, and their concomitant abandonmentof national sovereignty and control.

• The eighth signpost is the huge profits beingmade by corporations in the new global massregistration and surveillance order, and the emer-gence of a new “corporate security complex”.

• The ninth signpost is what is happening todemocratic societies – in terms of the erosionof democratic processes , centuries-old protec-tions in criminal law, freedom of speech andassociation, and the rule of law itself as gov-

ernments pursue the agenda for global, massregistration and surveillance.

• The tenth signpost, and perhaps the mostominous of all, is the collective loss of moralcompass societies are exhibiting as theybegin to accept inhumane and extraordinarypractices of social control. Countries thathold themselves out as defenders of humanrights are engaging directly in extra-legalrendition, torture and extra-judicial killing –as well as contracting out these services tobrutal regimes which are being rewarded fortheir contributions.

The attacks of September 11, 2001 in theUnited States and a subsequent attack inMadrid, Spain on March 11, 2004, made peo-ple everywhere realize that terrorism can hap-pen in any country, and that technologically ithas the potential to inflict harm on large num-bers of people. The attacks were reportedlycarried out by Muslims extremists who hadgained legal entry to the country of their target,were technologically sophisticated, and hadfinancial backing from sources inside and out-side the country. These are facts that must begrappled with and addressed. However, theconclusion that must be drawn from a carefulexamination of the facts described in this reportis that the initiatives that governments haveembarked on do not create real security: theyprovide only the illusion of security. Steps thatcould be taken to effectively address terrorism– such as investing in on-the-ground humanintelligence instead of technological surveil-lance, building bridges with Muslim communi-ties, and helping to eradicate the poverty andoppression that are often the root causes of ter-rorism – are being given low priority by gov-ernments as they pursue their agenda of a glob-al system for mass registration and surveil-lance. At the same time, the checks and bal-ances that are essential to safeguarding person-

4


al liberty and security are being stripped away.The net result is that we are now less safe, notmore.

It’s time to tell our governments what wethink – and to demand that they turn backfrom the dangerous road they are leading usdown, before it’s too late.

FIRST SIGNPOST: THE REGISTRATIONOF POPULATIONS

In 1930s Germany, the Holocaust began with thesimple registration of people of Jewish descent.First, they were registered, and then the statebegan an incremental stripping-away of theircivil rights. In the countries invaded by theNazis, the death rate of Jews was directly relatedto the census information available. In Norway,which had a population register, 50 percent ofJews were killed – compared with only 15 per-cent in Denmark and 0.5 percent in Finland.5

A full analogy does not need to be drawn tocurrent circumstances to make the point thatthe registration of populations by ethnic origin,race, religion, political belief, or similar per-sonal characteristics – while used for benignpurposes in some countries – can also be a dan-gerous thing, easily abused by those in power.

One needs only to recall the internment ofJapanese citizens that took place in NorthAmerica during the 2nd World War, the 1994genocide that took place in Rwanda,6 and thePass Laws of apartheid South Africa to knowthis is true. Registration is the tool by whichthose in power can easily single out and tar-get certain kinds of people – not for what theyhave done, but for who they are.

1. Mass Detentions of MuslimImmigrants and Registrationthrough NSEERS

One of the first actions of the U.S. government afterSeptember 11, 2001 was to ethnically profile and

detain hundreds of Muslim non-citizens. Thesepeople were denied their legal rights to counsel,habeas corpus, speedy charges, and freedom frominhumane treatment and arbitrary detention.7

The U.S. government then went on to system-atically register and create dossiers on nearlyevery male over the age of 16 with origins in alist of designated (mostly Muslim) countries,visiting the United States or traveling to orthrough the country.8 This was done under aprogram called the National Security Entry-Exit Registration System (NSEERS). Manystories of harassment, insult, and rough treat-ment were told by the over 80,000 people9 reg-istered. Muslims and people with origins inMuslim countries felt unjustly targeted, andresponded with outrage and fear.

NSEERS resulted in more than 13,000 peoplebeing put into deportation hearings.10

Thousands more left the country in fear, deci-mating communities.11

2. US-VISIT and the E.U. VisaInformation System

a) Biometric Visas

Under the recently inaugurated US-VISIT pro-gram, the registration that occurred throughNSEERS is being expanded to most visitors tothe U.S.12 People applying for a visa for travelto the U.S. will now be registered by havingtheir photographs and fingerprints taken at“virtual borders” outside the country, and citi-zens of visa waiver countries will be pho-tographed and fingerprinted on entry. Photoand fingerprint data will be stored in a centralU.S. database and inside a computer chip ineach visitor’s visa.13 The technology being usedto do this is known as “biometrics”. It encodesthe physical characteristics of a person – suchas facial dimensions, fingerprints, iris patternsor voice patterns – into a computer chip or

5


database, so that the identity of the person car-rying the chip can be verified against the infor-mation in the chip and/or database.

A similar program in the E.U. called the VisaInformation System is being developed follow-ing a Decision of June 2004. It will capture andstore all of the information, including biomet-ric data, from visa applications to the 25 E.U.member states – about 15 million per year.14

b) Linkage of Biometric Information to aGlobal Web of Databases

The plan in the US-VISIT program, however,is not merely to verify that the person carryinga visa is who he says he is, or even to check hisphotographs and fingerprints against those ofknown terrorists or of persons suspected of ter-rorism on “reasonable grounds”. (At best, sayanalysts, the U.S. may have a few dozen pho-tographs of suspected terrorists; it has no data-base of their fingerprints or any other biomet-ric identifier.15)

The plan is to create information dossiers on allpersons entering the United States, to store thesedossiers for 100 years,16 and to link individuals’biometric data to a web of databases, encom-passing over 20 U.S. federal government data-bases as well as U.S. commercial databases.17

Moreover, there is evidence that U.S. VISIT willeventually be linked to other programs – so thatthe web of databases dossiers are compiled fromcould be even wider, and have a global reach. AFederal Register Notice published by theTransportation Security Administration’s (TSA)on August 1, 2003, for example, stated that theTSA anticipated linking the US VISIT programwith a program discussed later in this report,CAPPS II, when both programs became “fullyoperational”.18 CAPPS II, was a a passengerscreening system that envisioned linking a virtu-ally unlimited number of public and private sec-tor databases together. It has since been replacedby a slightly modified program, Secure Flight,

but the aim of the program remains the same:linkage of as many databases as possible. AndSecure Flight will be accessing the databases oflarge data aggregating companies, many ofwhich buy information on citizens in countriesoutside of the U.S. (see p. )

Potentially, the data accessed by the U.S.under US-VISIT and other programsdescribed in this report could include infor-mation about individuals’ medical histories,social benefits, driving records, immigrationstatus, passport applications, criminalrecords, security intelligence files, censusresponses, tax returns, employment histo-ries, address histories, banking records,credit card purchases, medical prescriptions,air travel patterns, e-mails, e-mail corre-spondents, Internet use, on-line purchasesand Internet music selections, cell phonecalls, Internet phone calls, and library, book-store and video selections.

Insiders are calling the database that is beingbuilt by the U.S. the “black box”, as no oneknows exactly what it will eventually contain,19

only that it will be as comprehensive as possible.

Of course, some convergence of databases wastaking place before September 11, 2001, butsince that date there has been a radical acceler-ation of this trend (for a full description, see p). In the post 9/11 world, the public can nolonger rely on the existence of “firewalls”between databases that to some extent protect-ed privacy until recently. Where once, onecould be relatively confident that no businessor government agency could know everythingabout one, now, this is no longer true.

c) U.S. Acquisition of Domestic andForeign Databases

One development that would shock many peo-ple is the aggressive acquisition by the U.S.government databases domestically andabroad since 2001.

6


Some of this access has been obtained underthe USA PATRIOT ACT, which gives theFederal Bureau of Investigation (F.B.I.) a pro-cedure to access any business records held byAmerican-based companies and their sub-sidiaries, whether the data pertains to Americanresidents or to residents of other countries.20

These records could include the masses of per-sonal information held by credit card companies,computer and Internet companies, bookstore andvideo companies, and others. It could includeemployment information about the people whowork for these companies. And, as governmentsoutside the U.S. contract out more of their serv-ices to U.S. companies and their subsidiaries, itcould also include public-sector information oncitizens in countries outside the U.S.

In Canada, for example, the federal govern-ment has entertained a bid to conduct the 2006national census from a group of companiesled by Lockheed Martin Canada (a unit of theU.S.-based Lockheed Martin Corporation).21

The provincial government of BritishColumbia has contracted out the operation ofits Medical Services Plan and Pharmacare toMaximus B.C., which is owned by theCanadian subsidiary of the U.S.-based com-pany, Maximus.22 A number of B.C. Hydroservices (such as customer relationship man-agement, human resources, financial procure-ment services and information technology)are handled by a Canadian subsidiary ofAccenture, a Bermudian company with itsmain office in the U.S.23 Under the USAPATRIOT ACT, the FBI need only ask forseizure of the business records of these com-panies in order to obtain them. The specialcourt set up under the Foreign IntelligenceSurveillance Act which hears its requests hasnever turned down a government request inmore than 14,000 applications.24 When seizureis granted, a gag order is placed on the busi-ness involved, preventing them from tellinganyone about it.

Access to private-sector information has alsobeen obtained by the U.S. under the EnhancedBorder Security and Visa Entry Reform Act of2002. Pursuant to this Act, the U.S. hasdemanded that all airlines travelling to orthrough the U.S. provide U.S. authorities withaccess to their passenger databases (see ThirdSignpost, p. ).

In addition to statutory access, U.S. govern-ment agencies are voluntarily being givenaccess to individuals' personal information bythe private sector. Many U.S. companies, insti-tutions, and organizations have shown them-selves willing to simply hand over informationabout their customers and members whenasked by the F.B.I. and other agencies. Somebelieve it is the patriotic thing to do; othersmay be afraid, or eager to please the govern-ment. Examples include the following.

• In 2001, 195 U.S. universities and collegesvoluntarily turned over personal informationabout their students to government agencies –172 of them did not wait for a subpoena.25

• In 2001, 64 percent of U.S. travel and trans-portation companies voluntarily turned over infor-mation about their customers and employees.26

• In 2002 the American ProfessionalAssociation of Diving Instructors voluntarilygave the F.B.I. a disk with the personal infor-mation of about 2 million people.27

• Under a program called InfraGuard, morethan 10,000 private companies in the U.S. vol-untarily exchange information with the govern-ment,28 checking out security alerts and moni-toring the computer activity of customers andemployees.29

• The airline JetBlue voluntarily gave theTransportation Security Administration overfive million passenger itineraries, which

7


were then given to the Pentagon and com-bined with data profiles on each passengerobtained from Axciom, a large data aggrega-tor company.30

• Northwest Airlines denied sharing passengerrecords with the government when the JetBluestory broke, but later it was discovered that ithad voluntarily given millions of passengerrecords to the National Aeronautics and SpaceAdministration (NASA).31

• In April 2004, American Airlines admitted tosharing 1.2 million records with theTransportation Security Administration andfour research companies that were bidding fora government data mining contract.32

• In May 2004, the biggest airline companies inthe U.S. – including American, United, andNorthwest – admitted to voluntarily handingover millions of passenger records to the F.B.I.after the 9/11 attacks.33

All of the above incidents occurred without theconsent of the individuals whose records wereinvolved and, for the most part, in contraven-tion of the privacy policies of the organizationsproviding the information.

Alarmingly, the U.S. government has also beenbuying personal data on Americans and the citi-zens of other countries from commercial dataaggregators. Inside the U.S., companies likeDoubleClick boast that their data includes infor-mation from over 1,500 companies, adding up toinformation on 90 million households andrecords of 4.4 billion transactions.34 Outside theU.S., the company ChoicePoint Inc. has collect-ed information on hundreds of millions of resi-dents in Latin America, without their consent orknowledge, and sold them to U.S. governmentofficials in three dozen agencies. In Mexico,ChoicePoint has bought the driving records ofsix million Mexico City residents and the coun-

try’s entire voter registry and sold them to theU.S. government. In Colombia, ChoicePoint hasbought the country’s entire citizen ID database,including each resident’s date and place of birth,passport and national ID number, parentage, andphysical description. It has bought personal datafrom Venezuela, Costa Rica, Guatemala,Honduras, El Salvador, Nicaragua, 35 andArgentina as well. The company will not revealwho sells the information to it, but privacyexperts say that government data is often soldclandestinely to companies like ChoicePoint bygovernment employees.36

d) The Template for the Global System ofMass Registration and Surveillance

In many ways, an examination of the US-VISITprogram and the data acquisition that the U.S.has embarked on reveal the template for theproject of global, mass surveillance. Drivenand designed largely by the U.S., the project’sgoal is to link individuals’ biometric data witha web of databases, so that informationdossiers can be compiled for each individualand they can be screened for “risk”.

In this “brave new world”,37 the U.S. andother governments’ goal is to compile infor-mation dossiers on as many people as possi-ble and to create an information infrastruc-ture that is not merely domestic in scope,but has a global reach.

SECOND SIGNPOST: THE CREATIONOF A GLOBAL REGISTRATION SYSTEM

1. Biometric Passports

The global introduction of a biometric passportis one way to achieve nearly universal registra-tion of everyone on the planet, so that individ-uals can be easily identified, surveilled andassessed for risk.

In recent years, many countries in Asia havestarted or intensified efforts to implement bio-

8


metric national ID cards, notably, India, China,Hong Kong, Bhutan, Malaysia, South Korea,Thailand, the Philippines, Indonesia, andVietnam.38 In the western hemisphere, Mexicois planning to introduce a national ID card, andChile and Peru already have them. But in mostdemocracies to date, the idea of a nationalidentity card has been anathema – associatedwith police states, and politically unsellablebecause of the effect it would have on civil lib-erties. Although some democracies havenational identification cards, in most of thesesystems, the kind of information linked to thecard is limited, and access is restricted todomestic officials for specific purposes.39

An internationally-mandated biometric pass-port is a politically palatable way of imposinga de facto identity document on citizens in allcountries, and of making the informationlinked to such a document globally available.

a) “Policy Laundering” – Referral to ICAO

Like many other global surveillance initiatives,biometric passports have been the subject ofdiscussion among states for some time. TheInternational Civil Aviation Organization(ICAO), the organization that governs interna-tional civil aviation, has been researching bio-metric passports since 1995, but national andregional laws protecting privacy and civil lib-erties were barriers to the adoption of mostmodels for their deployment until recently. TheU.S. led “war on terror” breathed new life intothese efforts.

The USA PATRIOT ACT, passed in 2001,required the U.S. President to certify a biomet-ric standard for identifying foreigners enteringthe U.S. within two years. The U.S. EnhancedBorder Security and Visa Entry Reform Act of2002 required all countries wishing to retaintheir visa waiver status with the U.S. to imple-ment the technology necessary to meet thestandard by October 200440 and designated

ICAO as the standard-setter. Handing the mat-ter over to ICAO ensured that the organizationwould finally produce biometric passport spec-ifications and that all countries, including theUnited Staes itself, would ultimately be obli-gated to adopt a biometric passport.

With the prospect of “international standards”being imposed on them by the U.S and ICAOto relieve them of political responsibility, gov-ernments likely felt more free to dispense withtheir earlier concerns about biometric passport.In May 2003, the G8 countries (Canada, theU.K., France, Japan, Italy, Russia, Germanyand the U.S.) jumped on the biometric band-wagon, entering into an agreement to imple-ment a biometric passport system.41

The loose standards that ICAO subsequentlyset for biometric passports are giving govern-ments leeway to adopt just about any model ofdeployment they choose.

b) The Model: Carte Blanche

At its spring 2004 meeting in Cairo, ICAOadopted globally interoperable and machine-readable specifications for biometric passportswith facial recognition as the mandatory bio-metric standard, and fingerprints and iris scansas optional additional standards.

The ICAO specifications only require coun-tries to implement systems which can verifythe identity of passport-holders against the bio-metric information stored in the computer chipin their passports, and which can check thatinformation against the biometric informationof other individuals (on a terrorist suspect list,for example).

Critically, however, ICAO has given states fulldiscretion to use biometric passports for otherpurposes.42 Under the ICAO standards, stateswill have free rein to create central databases ofall travellers’ biometric information, to store

9


information other than biometrics on chips, touse biometric passports as “keys” to multiplestate and private databases, and to use biomet-ric passports for purposes other than anti-terror-ism. If the US-VISIT program for biometricvisas is anything to go by, the U.S. will be stor-ing biometric passport information and linking itwith every available database around the worldto create dossiers on all travellers. In Europe,there is already talk of creating a central data-base of travellers’ fingerprints and other person-al information, even though this would likelyviolate E.U. data protection laws.43

c) RFID Chips

The leeway states have to store, link, and usebiometric passport data for purposes than anti-terrorism is not the only reason to be concernedabout biometric passports. ICAO has alsoadopted a standard which requires biometricinformation to be stored in “contact-less inte-grated circuits”, a technology similar to RFIDchips.44 RFID chips, or radio frequency identi-fication chips, are tiny computer chips withminiature antennae that can be put into physi-cal objects. When an RFID reader emits a sig-nal, nearby RFID chips transmit their storeddata to the reader. “Passive” chips do not con-tain batteries and can be read from a distancevarying from 2.5 cm to six to nine metres.“Active” or self-powered chips can be readfrom a much greater distance.

Like RFID chips, contact-less chips allow foridentification at a distance, though at the presenttime, the ICAO standard only calls for identifi-cation within 10 cm . Anyone with a readercould, secretly if they wished, read the chipthrough a wallet, pocket or backpack. So, notonly will the customs officials of one’s owncountry have access to the information in one’sidentity document, but retail companies, identitythieves, and the agents of other governments willhave access too. Contact-less integrated chips are

also capable of being “written into” and couldhold anonymous “security clearance” types ofinformation inserted by government agencies.

If we are required to carry identity documentsat all times, which may be the case if biometricidentity checkpoints are expanded from foreignair travel to domestic air travel and other formsof transportation (see p. ), we will be extreme-ly vulnerable to the surreptitious reading of ouridentities. In the future, government agentscould use this kind of technology to sweep theidentities of everyone at, say, a political meet-ing, protest march, or Islamic prayer service, oreven to set up a network of automated readerson sidewalks and roads in order to track thelocations of individuals.

d) Biometric Passports and theDemocratic Deficit

The way in which biometric passports arebeing introduced around the world, is aprime example of how governments havebeen acting in stealth, outside democraticprocesses, to build a global surveillanceinfrastructure.

In Canada, a proposal for a biometric nationalID card was floated in fall 2002 and soundlyrejected in a Parliamentary committee45 and theforum of public opinion by the fall of 2003.46

The proposal was officially dropped. However,after government restructuring in 2004, thecommittee examining the idea was relieved ofits duties before its final report could bereleased, and the deployment of a biometricpassport (starting in 2005) was announced.47

These developments came as a complete sur-prise to most of the institutions and organiza-tions engaged in the earlier debate about a bio-metric identity document. They had not heardabout Canada’s agreement at the G8 summit toimplement a biometric passport system andthere had been no public debate before thatundertaking had been made. When the plan was

10


announced, the government claimed it had nochoice in the matter; that if Canadians wished toparticipate in global travel, they would have togo along with the measure.48

In the U.S., where it is unlikely that a nationalID card would ever be accepted by the public,there was huge resistance to the idea of turningdrivers’ licenses into a kind of national ID cardwhich would link numerous state and federaldatabases.Yet the federal government has man-dated a biometric passport for Americansthrough international fora without many ofthem even being aware of it.49

In the U.K., there was hot debate over a propos-al to introduce a national ID card. Under criti-cism, the idea was put on the shelf by the gov-ernment in October 2003,50 But, the U.K govern-ment had already agreed in May 2003 to developa biometric passport system with other G8 coun-tries.51 Then, in December 2004 the E.U.announced that mandatory biometric passportswould be introduced with facial scans requiredfrom 2006 and fingerprints required from 2007.

The U.K. government then introduced an IDCards bill proposing the same biometric databe included in a new national identity cardissued to everyone renewing their passport andto all immigrants and refugees. Under the bill,cards will become mandatory once three quar-ters of the population have them. A new nation-al population database is being developed aswell. The ID Card Bill was passed by House of Commons on February 10, 2005, with 224votes in favour and 64 against. More MPsabstained than voted.52 At the time of writing, itis being considered by the House of Lords.

e) Flawed Technology and Assumptions

By the time biometric passports are fullyimplemented, they could be carried by wellover one billion people.53

While biometrics are being touted as the onlyway to ensure secure identity documents, bio-metric technology is known to be seriouslyflawed. Facial recognition, in particular, has ahigh rate of false negatives (where the technol-ogy fails to recognize individuals) and falsepositives (where the technology matches anindividual to someone else, incorrectly). U.S.government tests have shown that even whenthe identity of a document holder is being com-pared only to the biometric information con-tained in the document (a “one to one” com-parison as opposed to a “one to many” com-parison) using recent photographs, there is arate of five percent false negatives and one per-cent false positives. The reliability rates quick-ly deteriorate as photographs become dated,rising to 15 percent after only three years forthe best systems tested.54

Fifteen percent of a billion people could mean150,000,000 people misidentified! Even thepeople who invented biometric technologyadmit that it is dangerously flawed. GeorgeTomko, regarded as one of the fathers of thetechnology, says that even a 99.99 percentaccuracy rate – which doesn’t exist for any ofthe identifiers – could leave millions of peoplevulnerable to mistaken identity.55

Moreover, determined terrorists could usefalse identities to obtain biometric identitydocuments. A security breach like the one suf-fered by the data aggregating companyChoicePoint recently – which allowed thievesaccess to personal data on 145,000 people –could help terrorists gain false documents.56

Terrorists can also be successful using theirown identities. All but two of the known 9/11hijackers travelled in and out of the UnitedStates using their real identities.57 Spain had anational identity card system at the time of theMarch 2004 Madrid bombing, but identitycards did not assist authorities in preventingthe plot.

11


f) Expansion to Other TransportationSystems

Governments have recently been talking aboutexpanding the security measures that are beingimplemented for air travel to other transporta-tion systems.58 If this happens, the use of bio-metric identity documents would expand expo-nentially, and transport systems could becomethe kind of internal checkpoints generally asso-ciated with police states.

g) Institutionalizing “Non-Personhood”

Of course, in a global identity system predi-cated on the avoidance of risk, not being reg-istered or having a personal profile willamount to being a “non-person”. By creatinginclusion, the system also creates exclusion.For practical purposes, a person without amandatory identity document will not exist –or will exist only as a risk to the state.

If one doesn’t have an identity document(because it has been lost or stolen or withheldthrough a bureaucratic mistake) or a data pro-file (because one is poor, or a conscientiousobjector, or doesn’t participate in the kinds ofactivities by which data is collected) – one willbe, by definition, a risk. And one will be at risk,since the state will deal with one aggressively,according one few, if any, legal safeguards.

THIRD SIGNPOST : THE CREATIONOF AN INFRASTRUCTURE FORTHE GLOBAL SURVEILLANCE OFMOVEMENT

The biometric passport and the biometric visaare components of a larger infrastructure that isbeing set up for the global surveillance ofmovement. This infrastructure includes anoth-er initiative: the sharing of passenger namerecord (PNR) information.

PNR information is the information kept in air

travel reservation systems. It can include over60 fields of information, including the name andaddress of the traveller, the address of the personwith whom the traveller will stay, the trip itiner-ary, the date the ticket was purchased, creditcard information, seat number, meal choices(which can reveal religious or ethnic affiliation),medical information, behavioural information,and linked frequent-flyer information.

1. U.S. Demands for SharingPassenger Name Records

In its Aviation and Transportation Security Act,the U.S. required foreign air carriers to makePNR information available to its customsagency on request, and provided that this infor-mation could be shared with other agencies.The Bush Administration then passed an inter-im rule in June 2002, which interpreted the leg-islative requirement broadly. The rule required:

• that carriers give U.S. Customs direct accessto their computer systems;

• that data be available for all flights, not justthose destined for the U.S.;

• that once transferred, data be made availableto federal agencies other than Customs fornational security purposes or as authorized bylaw; and

• that the U.S. be permitted to store transferreddata for 50 years. 59

Airlines, faced with fines and the possible denialof landing rights in the U.S., began giving theU.S. what it wanted, even though they were vio-lating core principles of the privacy laws in theirhome countries. These principles require:

• restriction on the disclosure of personal infor-mation to third parties;

• limits on the use of data to the purpose forwhich it is collected;

12


• retention of data only as strictly required fora declared use;

• legal redress for individuals to correct inac-curate data or challenge misuse of data; and

• the maintenance of data security by the dataholder.60

National governments in the countries wherethese air carriers were based were then left withthe question of whether to enforce their priva-cy laws against the airlines or to allow theinformation transfers. At the same time, theU.S. government was approaching them tonegotiate formal bilateral agreements for thesharing of PNR.

2. The Deals Made

In Canada, where the government was planningits own PNR system, and in December 2001, hadagreed to share PNR information in some waywith the U.S.,61 an exemption to the Canadiandata protection act was quietly pushed throughParliament. It allowed Canadian carriers to dis-close any passenger information in their posses-sion to a foreign state if required by the law ofthat foreign state.62

In Europe, the European Commission reached anagreement on PNR sharing with the U.S. inDecember 2003.63 To do so, the Commissionmade a highly-contested ruling about the “ade-quacy” of U.S. undertakings to protect the priva-cy of European information in conformity withthe E.U. Data Protection Directive.64 In fact, thedeal breaches many of the core principles in theDirective.65 Data is being collected for multiple,undeclared purposes and will be shared widelyamong the numerous entities that make up theU.S. Department of Homeland Security.66 Oncestored in the U.S. there are no guarantees thatinformation will not be shared or even trans-ferred wholesale to third countries.67 There is noclear right of access for individuals, no judicial

right of redress,68 and no requirement that thedata be stored for the shortest possible time.69

Tellingly, the deal left open the question ofwhether the personal data of European citizenswould be used in the U.S. Computer AssistedPassenger Pre-Screening System (“CAPPS II”),even though it was known at the time of negoti-ations that the U.S. was already using Europeandata to test the program.70 (the aim of CAPPS IIwas to use PNR and other information to “riskscore” all airline passengers. It has since beenreplaced with a program called Secure Flight –see p. ).

3. PNR and the Democratic Deficit –Another Referral to ICAO

Usual democratic processes were circumventedin order to conclude the E.U.-U.S. arrangement.The deal was voted down three times by theEuropean Parliament, the only directly electedbody in the E.U., which referred the question of“adequacy” to the European Court of Justice.71

Both the Parliament and the Court were overrid-den when the Council of the E.U. (the legislativebody made up of representatives of the nationalgovernments in the E.U.) reverted to its treatypowers to rubber-stamp the deal.72

Some E.U. governing bodies, in fact, had theirown ambitions to create a system for the col-lection and use of PNR data.73 This plan wasnodded through by the E.U. Justice and HomeAffairs ministers in April 2004, just in time toavoid a new “co-decision” procedure that cameinto force on May 1, 2004, which would haverequired approval by the E.U. Parliament.National parliaments were also by-passed – theright of the U.K. Parliament to scrutinize thedocument was, for example, overridden by theU.K. government.74

Moreover, the E.U., to avoid further controver-sy, referred the matter of PNR sharing toICAO, asking it to develop global standards.75

13


As with biometric passports, then, a global sys-tem will be established by an unelected, inter-national body, and governments will be givenan excuse for doing what their laws and citi-zens might otherwise have prevented. To date,only the U.S., E.U., Canada, and Australia havepassed legislation to set up PNR sharing sys-tems, 76 but others will surely follow once ICAOstandards are adopted.

4. Expansion to Other TransportationSystems

As mentioned earlier (p. ), government offi-cials are talking about expanding the securitymeasures that are being implemented for inter-national air travel to other transportation sys-tems. Canada, for example, indicated its inten-tion to expand its PNR system to differentmodes of transportation in a submission madeto ICAO in spring 2004,77 and has alreadyexpanded the system to include domestic airtravel.78 The Department of Homeland Securityhas made similar suggestions with respect tothe planned air passenger screening system inthe U.S. 79 (see p. ).

Myth #2: These initiatives facilitatetravel.

The public relations spin about PNR sharing isthat it will facilitate travel. “Now you can trav-el to Florida”, we are told.80 A more appropriatetag might be, “buy a ticket, get a record” – or“buy a ticket, take your chances”.81

In the countries that currently have legislationpermitting PNR data sharing, PNR data arebeing stored and used to create data profiles onindividuals, so that these can be “data mined”using computer algorithms to “identify risk”(see p. ). There are no legal avenues of redressto challenge one’s risk “score”. Those who arepulled over as moderate or “unknown” riskswill miss flights. Those who are flagged as

high risk may be “rendered” by the UnitedStates and other countries, without any kind ofdue process, to third countries where they mayface torture, arbitrary detention, and even death(see p. ).

FOURTH SIGNPOST: THE CREATIONOF AN INFRASTRUCTURE FOR THEGLOBAL SURVEILLANCE OFELECTRONIC COMMUNICATIONSAND FINANCIAL TRANSACTIONS

Along with the creation of a global registrationand identification system and an infrastructurefor the global surveillance of movement, gov-ernments are now working to substantiallyenlarge their powers to intercept and surveilelectronic communications.

It is the historical tendency of law enforcementagencies, and governments concerned with lawenforcement, to push for ever-greater surveil-lance powers. In democratic countries, civil lib-erties laws and traditions have acted as a brake totheir overreaching, insisting that governmentsbalance the law-enforcement interests of the stateagainst the rights of the individual to be left aloneand to be free from unreasonable search andseizure. However, these tenuous counterweightshave been overridden in the period sinceSeptember 2001 as many countries have adoptedanti-terrorism legislation that has expanded stateagents’ interception and search and seizure pow-ers and weakened or removed judicial oversightover those powers.82

But something else is happening, too. The pri-vate sector is being pressed into service as thestate’s eyes and ears. Just as it has done withthe acquisition of private-sector databasesand airline passenger record systems, thestate is using the private sector to exponen-tially increase its surveillance capacity in therealm of electronic communications and finan-cial transactions. And, instead of relying on theinconsistent practices of businesses, govern-

14


ments are starting to tell businesses how todesign their information systems, what infor-mation to gather, how long it must be stored,what must be checked and reported, and whatmust be given directly to state officials.

1. “Building in” Surveillance83 andthe Convention on Cybercrime

Since 1994, land line telephone companies inthe U.S. have been required by theCommunications Assistance for LawEnforcement Act (CALEA) to design theirequipment according to the F.B.I.’s specifica-tions, in order to give law enforcement officialsa “back door” through which they can wiretapthe systems. In March 2004, the F.B.I., U.S.Department of Justice, and U.S. DrugEnforcement Administration asked for CALEAto be expanded to cover wireless serviceproviders and any new communications tech-nology coming on-stream. The F.B.I. and otherlaw enforcement agencies have also pushed foran aggressive interpretation of CALEA thatwould allow monitoring of certain Internetcontent without a warrant, as well as the col-lection of information about the physical loca-tions of cell phones.84

Of course, law enforcement and securityintelligence officials in the U.S. always hadaccess to these kinds of systems under inter-ception and search and seizure warrantsrequiring service providers’ cooperation. But,prior to CALEA, authorities’ access to infor-mation was limited by technical barriers inthe technologies used by the providers, andby authorities’ budgets for installing intercep-tion equipment.

Compelling service providers to “build in”surveillance capacity to their systems meansthat within minutes of receiving a warrantfrom a court, real-time interception of a per-son’s Internet or voice over Internet use canbe implemented with just a few computer

strokes, making a connection between thecomputerized listening stations of lawenforcement and the service provider’s sys-tem. At the same time, tools like the F.B.I.’s“Carnivore” software can be used to searchmasses of information within a system forkey words.85 The access to personal informa-tion that could be gained in this way is virtu-ally limitless, since there will be few techni-cal impediments and little cost to the state.

The U.S. is pressing other countries to followits lead and implement more intrusive intercep-tion and search and seizure laws. Specifically,it is pushing for the global adoption of theCouncil of Europe’s Convention onCybercrime, which would toughen and harmo-nize all countries’ cyber-security laws andallow countries to carry out investigationsacross borders.86

Negotiations for the Convention were difficultand prolonged, and were apparently slidingtoward deadlock because of the barriers incountries’ various domestic laws, when theevents of September 2001 galvanized the par-ties to conclude the agreement. In November2001, the U.S. and 29 other countries signedthe document, and as of November 2004, therewere 45 signatories. 87 The Convention’s pur-pose is not limited to anti-terrorism, butincludes ordinary law enforcement as well.

In order to ratify the Convention, signatoriesmust first implement the legislative changesnecessary to comply with it. One obligation isto require “service providers” to provide lawenforcement with real-time or direct access tothe content data (e-mail messages, documents)and traffic data (information about when and towhom messages were sent, and web pagesbrowsed) in their systems.88 Gag orders onservice providers whose systems have beenaccessed are another of the Convention’srequirements.89 Mandatory preservation orders(orders directed at service providers requiring

15


them to preserve information in their systems)are another.90 Alarmingly, another aspect of theConvention is the requirement, in some cir-cumstances, to provide mutual assistance to co-signatories even where the activity to be inves-tigated is considered a crime only in therequesting country.91

Governments of each of the signatory states arenow drawing up legislation to implement thesemeasures.

As with the ICAO guidelines for biometricpassports, citizens would do well to carefullystudy the exact requirements of the Conventionon Cybercrime. It appears that the Conventionrequires less draconian measures than govern-ments claim it does. The Convention does notrequire service providers to design their sys-tems to provide direct, real-time access, forexample, as the U.S., Canada,92 and the E.U.93

are asking them to do, but only to provide suchaccess “within existing capabilities”.94 TheConvention does not require the use of power-ful word searching software like the Carnivore(DCS 1000) system developed by the F.B.I.,which can scan millions of e-mails a second.Nor does it require warrantless access, such asthe FBI is seeking, and such as Colombia’snew Anti-terrorism Act and China’s “GoldenShield” project provide, and such as state agen-cies in Russia and the Ukraine have sought inthe past. 95

Similarly, the Convention for Cybercrime doesnot require mandatory routine storage of data bycommunication service providers, like the E.U.has embraced. A proposal for mandatory stor-age96 was defeated in Convention negotiationsbecause of national concerns about privacy laws.

2. Mandatory Data Retention

In a letter dated October 16, 2001, the BushAdministration made a number of demands tothe E.U., asking for cooperation in its “war on

terror”.97 One of these demands was for theE.U. to require mandatory, routine data reten-tion by communication service providers. Thedemand was made despite the lack of dataretention laws in the U.S. and the absence ofdata retention provisions in the Convention onCybercrime.

Mandatory data retention requires the privatesector to save and store data it would otherwiseerase (when the data were no longer needed, oras required by privacy laws). As such, manda-tory data retention exponentially expands theamount of information that can be tapped intoby state authorities.

In 2002, the E.U. Data Protection Directivewas amended to allow member states topass domestic laws on mandatory dataretention of traffic data for all communica-tions. (Previously, data could only be storedfor billing purposes.) By the end of 2003, 11of the member states had set up, or plannedto introduce, data retention regimes withretention periods ranging from one to fiveyears. The second draft of a FrameworkDecision released in April 2004 whichwould bind all member states, provides forretention of traffic data for 12 to 24 monthsand for “lawful access” to the data by policefor the purpose of “crime prevention” – cre-ating a virtual license for police to go on“fishing expeditions” through Europeans’personal data.98

3. Expansion of ECHELON

Officials within individual nations may still,for the most part, have to secure judicial war-rants in order to intercept and surveil the com-munications made available through “built in”surveillance and mandatory data retention.However, on the international stage, stateagents will have access to this “new frontier”with no judicial oversight.

16


In 1948, the U.S., the U.K., Canada, Australiaand New Zealand created a program underwhich they trawled the world’s telephone commu-nications – to spy on other countries and to shareinformation on each others’ citizens that could notbe obtained by their own officials under domesticlaws. Since the early 1980s, this program has beencalled ECHELON, and has been expanded tointercept e-mails, faxes, telexes, electronic trans-actions, and international telephone calls carriedvia satellites. The five agencies participating inECHELON are the National Security Agency inthe U.S., the Government CommunicationsHeadquarters in the U.K., the Defence SignalsDirectorate in Australia, the CommunicationsSecurity Bureau in New Zealand, and theCanadian Security Establishment in Canada.

Under the ECHELON program, millions of mes-sages and conversations are analyzed daily for keywords and traffic patterns.99 Each of the five cen-tres supplies dictionaries to the other four of keywords, phrases, people and places to “tag”. Thetagged intercepts are forwarded straight to therequesting country.100 The quantity of communica-tions available to be spied upon without judicialwarrant under the ECHELON program willexpand exponentially once communicationsaround the world are stored for longer periods pur-suant to mandatory retention laws, and may alsoincrease when communications are made techno-logically available for tapping pursuant to theConvention on Cybercrime in the participatingcountries. And, while Echelon was previouslyused as an espionage tool, in the current politicalclimate it is likely to be used more and more forlaw enforcement purposes. The number of coun-tries participating in ECHELON may also expand.

4. Mandatory Information-Gatheringand Reporting for FinancialTransactions

U.N. Security Council Resolution 1373, passedshortly after September 11, 2001, requiredstates, among other things, to:

…prevent and suppress the financing ofterrorism, as well as criminalize thewillful provision or collection of fundsfor such acts …[and] …to prohibit theirnationals or persons or entities in theirterritories from making funds, financialassets, economic resources, financial orother related services available to per-sons who commit or attempt to commit,facilitate or participate in the commis-sion of terrorist acts.101

Under the Resolution, states must report ontheir implementation of these measures, andstates failing to implement measures faceSecurity Council sanctions.

The Resolution, and activism on the part of theU.S. and the international financial Institutionsin promoting harmonized standards,102 have ledto new national laws around the world thatenlist financial institutions and ordinary busi-nesses into the surveillance infrastructure.103

Many of these laws require banks and busi-nesses to do more than simply “build” surveil-lance capacity “into” their information sys-tems. They also require them to actively gath-er information about their customers that theywould not otherwise gather, to report to gov-ernment on certain kinds of transactions, and tocheck their customers against governmentwatch lists.

In the U.S., for example, the USA PATRIOTACT has dramatically expanded existingrequirements for banks and credit unions toreport deposits by customers, lowering thethreshold to $10,000.104 Now, “any personengaged in a trade or business” is required tofile a “Suspicious Activity” report when he orshe receives that amount or more in cash.105

This means that every plumber, shop owner,general contractor, car salesman and real estateagent will be inducted into the financial trans-actions surveillance infrastructure.

17


Section 326 of the USA PATRIOT ACT requiresfinancial companies to check customersagainst government watch lists. ExecutiveOrder No. 13224, issued September 24, 2001,requires businesses involved in helping indi-viduals buy or sell various kinds of property(such as pawn brokers, real estate companiesand jewellers) also to check customers againstgovernment watch lists.

Regulations stemming from s. 314 of the USAPATRIOT ACT require financial institutions tosearch through their records for any transac-tions made by individuals suspected of moneylaundering by any arm of the U.S. governmentwith a law enforcement function. Money laun-dering is a broad offense encompassing anyattempt to disguise illicit profits in pursuit ofmore than 200 different crimes. In other words,under USA PATRIOT ACT regulations, agen-cies like the U.S. Agriculture Department andthe Postal Service have the power to conduct across-country search for financial recordsmatching someone they suspect of illicit deal-ings, whether these dealings are related to ter-rorism or not.106

Around the world, charities are also havingobligations imposed on them in the bid to cutoff funds for “terrorist” groups. In Canada, forexample, the Anti-Terrorism Act imposessignificant liability on charities accused ofhaving links with terrorist organizations,including the de-registration of their charita-ble status and the seizure of their assets. Lawslike these are having an enormous effect onhumanitarian organizations operating in theconflict zones of the world, where it is oftenimpossible to avoid direct or indirect contactwith entities that are rightly or wronglylabelled as “terrorist”.107

FIFTH SIGNPOST: THE CONVERGENCEOF NATIONAL AND INTERNATIONALDATABASES

1. Radical Acceleration ofConvergence Since 9/11

The collection of new information has beenaccompanied by a new and rapid convergence ofinformation – a bringing together, or sharing ofmultiple sources of information so that larger andlarger pools of information are accessible to stateofficials. Certainly, convergence has been a trendin the last couple of decades, a notable examplebeing the Schengen Information System (“SIS”)in Europe, which was set-up to compensate forthe abolition of internal border controls and pro-vided for the sharing of criminal and immigra-tion information between certain countries.108

But there has been a radical acceleration ofconvergence, or sharing, of information sinceSeptember 2001. U.N. Security CouncilResolution 1373 (see pp. ) calls on states tointensify and accelerate the exchange of infor-mation regarding terrorist actions and move-ments, and governments have been taking stepsnationally and internationally to heed the call.

Some of the convergence that has been takingplace since 9/11 has already been described:

• the convergence of private and public data-bases under the US-VISIT program;

• the access to domestic and foreign databasesthe U.S. has gained through purchase from “forprofit” data aggregators;

• the voluntary sharing of data by the privatesector in the U.S. at the request of U.S. gov-ernment agencies;

• the access the F.B.I. has gained under the USAPATRIOT ACT to the business records of U.S.-based companies operating at home and inother countries;

• the creation in the U.S., the E.U., Canada, andAustralia of central databases for PNR data;

18


• plans for the creation of a European-wide fin-gerprint register piggybacking on the biometricpassport initiative;

• expanded access to information international-ly under ECHELON; and

• private-sector reporting of financial transac-tions to government.

Many more examples of convergence couldbe added to the list:

• In Europe, in the name of combating terror-ism, a second generation SchengenInformation System, called SIS II, is beingdeveloped. It will cover 27 European countries,will share a technical platform with the E.U.Visa Information System (see p. ?? above) andwill exist alongside the E.U. population data-base being developed as part of the biometricpassport proposals (see p. ?// above).

• Under a U.S. program called “Multi-StateAnti-Terrorism Information Exchange” orMATRIX, government data bases109 from par-ticipating American states are being combinedwith a private database that claims to have“20+ million records from hundreds ofsources”.110

• In Canada, a Public Safety InformationNetwork is currently under construction thatwill link together key justice records and possi-bly criminal investigation information, pass-port information, and travel information. It willbe accessible to numerous Canadian agenciesthat formerly did not routinely share informa-tion, and will be interoperable with systems inthe U.S. and other countries.111

• In Colombia, the new Anti-terrorism Actenvisions the creation of a new registry con-taining private information on allColombians, to which military authoritieswill have access.

• In Europe, an interim agreement signedbetween Europol and the United States, con-cluded without democratic oversight and with-out publication, will give an unlimited numberof U.S. agencies access to Europol information– including sensitive information on the race,political opinions, religious beliefs, health andsexual lives of individuals. The agreement con-travenes the Europol Convention and the E.U.Data Protection Directive, in that individualscannot access their data if the U.S. does notagree, or request the correction or deletion ofdata.112

• The new E.U.-U.S. agreement on mutualassistance provides for cooperation in a num-ber of areas including the exchange of bankinginformation and for purpose . not limited to ter-rorism.113

• Joint investigation teams being set upbetween the U.S. and Europe under the agree-ment mentioned above, and between the U.S.and Canada,114 could include customs, police,and immigration agents, as well as agents fromorganizations like MI5, the Canadian SecurityIntelligence Service (CSIS), the F.B.I., and theCentral Intelligence Agency (C.I.A.). Theseteams will share information without the for-mal state-to-state requests required undermutual assistance agreements. Members of theteams will also be able to directly request theircounterparts to facilitate interceptions, search-es and seizures, arrests, and detentions, andmay not be legally accountable for their actionson foreign soil.

• Existing mutual assistance agreements arebeing used in new ways. In October 2004, twocomputer servers were seized by the F.B.I.from the England office of the Texas-basedinternet company, Rackspace.The servers werehosting the website of Independent MediaCentres. The seizure was reportedly madeunder a U.K.-U.S. Mutual Assistance treaty of

19


1996, but on the request of Swiss or Italianpolice.115

• In countries known for their oppressiveregimes, the extent to which an integration offunctions and information-sharing with theU.S. has been occurring is probably thegreatest As discussed later in this report,countries like Georgia, Indonesia, Egypt,Malaysia, and Uzbekistan are sharing infor-mation, suspects, and in some cases, intelli-gence and military operations with the U.S.in the “war on terror”

2. The “Black Box” of Information

The “black box” of information that wasdescribed in the context of the US-VISIT pro-gram (p. ) – the database of databases that theU.S. is currently amassing with the help ofthe convergences described above – couldcontain all of the information describedabove and more. Without doubt, it will be aglobal web of databases, encompassingdomestic and foreign and public and privatesector sources.

SIXTH SIGNPOST: THE DANGERSOF A RISK ASSESSMENT MODEL – AWORLD THAT IS BOTH ORWELLIANAND KAFKAESQUE

But is there anything to fear if one is innocent?

1. Data Mining – The High-Tech“Solution” to Risk Assessment

A veritable ocean of information is beingcollected, stored, linked together, andshared. No country has the capacity to ana-lyze it using human intelligence. The “high-tech” solution to this, which some govern-ments are pursuing with fervor, is datamining.

a) Orwell Revisited

Data mining is the use of computer models, oralgorithms, to scrutinize masses of data forselected criteria. In the “war on terror” world,data mining is being used to identify patterns ofbehaviour that are supposedly indicative of ter-rorist activity, in order to assess the level of riskthat individuals pose to the state.

In Orwell’s famous book, Nineteen Eighty-Four, the hero says:

It was inconceivable that they watchedeverybody all the time. But at any rate,they could plug in your wire wheneverthey wanted to. You had to live – didlive from the habit that became instinct– in the assumption that every soundyou made was overheard.116

Orwell’s book presents us with an imagina-tive, dark vision of what living in a surveil-lance society could be like, but the methods itdescribes are quaint in that they requirehuman beings to watch others using auditoryor visual devices. In the Orwellian society ofthe 21st century, we will be watched andassessed by computers. And the assessmentwill be based, not on our actual observedinvolvement in terrorist activity, but on theprobability that we might be engaged in suchactivity.

Myth #3: If one has nothing tohide, one has nothing to worryabout.

In the Cold War/McCarthy period in the UnitedStates of the 1950s, the maxim was that if anydoubt existed as to the reliability or loyalty ofan individual, such doubts should be resolvedin favor of the state. As a historian of the peri-od has said,

Anyway, there was little or no interestin individuals, as such. Individualswere messy, unfathomable in their

20


complexity and idiosyncrasy to bureau-crats who had to deal with large num-bers of cases and in universal cate-gories. Dossiers were neat, simple andserviceable for the specific purposesrequired ... Of course, it was possiblethat mistakes could be made, that infor-mation might prove faulty in some par-ticulars, that innocence might be mis-taken for something else…117

An example of the many mistakes that weremade in that era was the naming of academ-ic Owen Lattimore as the Soviet Union’s topspy in the U.S. He later was fully cleared ofthe charges. In his account of the affair henoted that the F.B.I. and other agencies had“built up on him a dossier of ‘a man whomight have existed’”.118 Again, as a historianof the period has observed, “that phrasecatches the very essence of the creation ofthe national insecurity state: a data worldthat shadows, mimics, and caricatures thereal world”.119

We may think that anyone looking at our per-sonal data with the proper explanation wouldconclude we are innocuous, but, in fact, in thedata world we have no control over our “vir-tual identities” or the interpretations thatothers make of them.

a) TIA, MATRIX and Other Data MiningProjects in Implementation or Development

The forerunner of all post-9/11 data miningprojects was a program known as TotalInformation Awareness (TIA), run by Iran-Contragate’s John Poindexter out of theDefense Advanced Research Projects Agency(DARPA). The goal of the program, asdescribed by Poindexter, was to mine “thetransaction space” to find “signatures” of ter-rorist activity. According to the program’s web-site, the transactions mined would include indi-viduals’ financial, medical, travel, “place/evententry”, transportation, education, housing, and

communications transactions. Poindexter envi-sioned his program developing software thatcould quickly analyze “multiple petabytes” ofdata. (The 18 million books in the Library ofCongress could fit into one petabyte 50 timesover; one petabyte could hold 40 pages ofinformation on each of the 6.2 + billion personson earth.)120 As the manager of the projectdescribed it, the task was:

“…much harder than simply findingneedles in a haystack. Our task is akinto finding dangerous groups of needleshidden in stacks of needle pieces. Wemust track all the needles all of thetime.”121

One of the researchers for the TIA project,David D. Jensen at the University ofMassachusetts, acknowledged that the programcould generate “high numbers of false posi-tives …”.122

Because the concept of “total informationawareness” on the part of government botheredAmericans so much, the program’s name waslater changed to Terrorism InformationAwareness. Nevertheless, Congress pulled thefunding from it in fall 2003.

TIA lives on, however, in hidden research proj-ects and other programs. As Steve Aftergood ofthe American Federation of Scientists, whichtracks work by U.S. intelligence agencies, haswritten:

“the whole congressional action lookslike a shell game. There may be enoughof a difference for them to claim TIAwas terminated while for all practicalpurposes the identical work is continu-ing.”123

Congress has transferred some TIA funding to theNational Foreign Intelligence Program which, itsays, can only use its research against persons

21


overseas or against non-Americans within theU.S. But there is nothing to stop the governmentfrom expanding this program to American citizensat a later date or through other programs. Somesay parts of the original TIAprogram live on in thePentagon’s secret “black budget”.124 People withdirect knowledge have told the press that the sur-viving TIA programs include some of the 18 datamining projects collectively known as EvidenceExtraction and Link Discovery.125

In its May 2004 report on federal data miningefforts,126 the U.S. General Accounting Office(now known as the Government AccountabilityOffice, or GAO) revealed at least four projectsthat use personal information from the privatesector. One of these, run by the DefenseIntelligence Agency, mines data “to identify for-eign terrorists or U.S. citizens connected to for-eign terrorism activities”. The National SecurityAgency has a program called Novel Intelligencefrom Massive Data, which is supposed to extractinformation from databases including text,audio, video, graphs, images, maps, equations,and chemical formulae. The C.I.A. reportedlyhas a data mining program called “QuantumLeap” which “enables an analyst to get quickaccess to all the information available – classi-fied and unclassified – about virtually anyone”.The deputy chief information officer of theC.I.A. told a reporter that the program’s technol-ogy “is so powerful it’s scary”.127

MATRIX (see p. above). is another data mininginitiative of the U.S. government. Informationon the false positive rates for this programs isnot readily available. But an indication of therate can be gleaned from the number of peopleSeisint Inc. told state authorities showed statis-tical likelihood of being terrorists in its bid forthe contract to develop MATRIX: 120,000.

b) CAPPS II

The data mining program to which U.S. VISITwas supposed to be linked (see p. ), CAPPS II,

or the second-generation Computer AssistedPassenger Prescreening System, was designedto use algorithms to sort through PNR (see p. )and other information in order to “risk score”all airline passengers as “green”, “amber” or“red”. “Green” stood for minimal risk,“amber” for an unknown or intermediate riskrequiring heightened security measures, and“red” for high risk, requiring grounding of thepassenger and reference to law enforcement fordetention. The criteria for assigning the scoreswere undisclosed.

According to a notice published in the U.S.Federal Register in January 2003, the intent ofthe Transportation Security Administration(TSA), the agency developing CAPPS II, wasto create a screening database that would belinked to virtually unlimited amounts of datafrom private and public sources, including“financial and transactional data”. Also,numerous public and private entities were tohave access to the system.128

The TSA estimated that five percent of the trav-elling public would be rated “amber” or “red”under the CAPPS II program.129 The programcontained no mechanism by which a passengercould challenge her score. The Association ofCorporate Travel Executives estimated in a studythat if only two percent of travellers were rated“red”, there would be up to eight million passen-gers detained or denied boarding every yearunder CAPPS II.130

The GAO issued a report in February 2004,131 inwhich it said the TSA had failed to show thatCAPPS II was effective in identifying possibleterrorists and had failed to resolve crucial priva-cy issues of oversight and passenger redress.

In July 2004, there was news that the govern-ment had bowed to pressure from the GAO, civillibertarians, and airlines and decided to kill theCAPPS II program.132 However, it soon becameclear that the program was only being modified

22


and postponed.133 A Homeland Securityspokesperson said that a new screening programwould rise from the ashes of CAPPS II and thatit would cover all passengers travelling to,through, or within the country.134 In August 2004,a new passenger-screening program called“Secure Flight” was announced.135

The Secure Flight program will not be looking,as CAPPS II was designed to do, for peoplewith outstanding warrants in respect of ordi-nary criminal offenses – a proposal criticizedby many as an expansion of law enforcementpowers that was unnecessary for airline safety.But, like CAPPS II, it will consult commercialdatabases, such as those owned by data aggre-gators Acxiom and Lexis Nexis to verify pas-sengers’ identities. The government claims thatSecure Flight will not incorporate CAPPS II-style computer algorithms for “risk scoring”passengers.136 However, one wonders whetherthis feature may be reintroduced in the future,especially as the government’s data miningresearch becomes more advanced.

c) Canadian Risk Assessment Centre

Since January 2004, Canada has been engagedin setting up a data mining, risk scoring pro-gram to complement the American CAPPS II/Secure Flight program.

Few details are publicly available about howit will operate, except that it will be interop-erable with the U.S. program and that it willuse computer screening. The criteria for iden-tifying high-risk travellers are undisclosedbut the program will probably rely on thesame criteria used by the American program.The information used will include PNR dataon air passengers on incoming, outgoing anddomestic flights.137 The federal governmentintends to eventually expand the program toborder-crossing passengers using all modesof transportation.138

d) German “Trawling”

After September, 2001, German police unitsstarted collecting data on young men withIslamic backgrounds from universities, regis-tration offices, health insurance companies andGermany’s “Central Foreigners Register”(Ausländerzentralregiste) using the practice of“trawling” or “dragnet control”(Rasterfahndung). Introduced in the 1970s inthe wake of the activities of the terrorist groupRote Armee Fraktion, it allows vast amounts ofdata to be collected about individuals and com-pared to various criteria.

The “profile” used in the program after9/11was that of the Arab students from theUniversity of Hamburg allegedly linked to the2001 attacks in the U.S. – effectively makingevery male Arab student in Germany a suspect-ed terrorist. As a result of the program, approx-imately 10,000 students have been placedunder surveillance in North-Rhine Westphalia(NRW) alone.139

e) Data Mining and the Democratic Deficit

As with other mass surveillance initiatives,there has been a democratic deficit in theimplementation of data mining programs.

First, there has been a conspicuous lack oftransparency about these programs. It is diffi-cult to get information about what projects arebeing undertaken and how they will operate.Many, like the Canadian initiative, have beenset up quietly, under the radar of the public,with little or no democratic debate.

Accountability for data mining programs isavoided by governments. For example, theimplementation of the highly criticized CAPPSII/ Secure Flight program was postponed untilafter the American election in November 2004,and government officials would not givedetails about what they were keeping or drop-

23


ping in the program before the election.140

Finally, governments are less than honest aboutthese projects. The TSA, for example, told thepress, the GAO, and Congress that it had notused any real-world data in the testing ofCAPPS II. This later turned out to be patentlyuntrue141 When programs are cancelled underdemocratic pressure, governments simply re-introduce them in new packages.

f) Flawed Facts, Dirty Information, “Guiltby Google”, Ethnic Profiling

The post-9/11, data mining version of theMcCarthy era is, perhaps, a bit like theHollywood film Minority Report – in whichstate officials try to use technology to read peo-ple’s minds in order to stop criminal acts beforethey happen. However, the technology that isbeing used in the post-9/11 world falls far shortof the technology of Hollywood fantasy.

Myth# 4: The technology beingused is objective and reliable.

First, the factual base on which the technolo-gy rests is unreliable. The “best informationavailable” on which data mining or risk-scor-ing technology depend is often inaccurate,lacking context, dated, or incomplete. Itmight even be dirty information – extractedby torture, or offered by an informant who isvulnerable or is acting in bad faith.

None of the data mining programs contains amechanism by which individuals can correct,contextualize or object to the information thatis being used against them, or even know whatit is. Indeed, these systems are uninterested inthis kind of precision. They would be boggeddown if they were held to the ordinary stan-dards of access, accuracy, and accountability.Operating on a precautionary principle, theyare not really concerned with the truth aboutindividuals: they are meant to cut a broadswath.

Secondly, the criteria used to sort masses ofdata will always be over-inclusive andmechanical. Data mining is like assessing“guilt by Google” key-word search. And sincethese systems use broad markers for pre-dicting terrorism, ethnic and religious profil-ing are endemic to them. The manager of theTIA program was right when he said thatlooking for anything useful with data miningwas like looking for particular needles instacks of needles. However, his analogywould have been more accurate if he hadtalked about looking for a needle in an oceanfull of needles.

2. Low-Tech “Solutions” to RiskAssessment

Of course, not all risk assessment in the “waron terror” is being done by computer data min-ing. As in the McCarthy era, human beings arealso making judgments about who might pres-ent a “risk”.

In the post-9/11 climate, where law enforcementand security intelligence agencies are beingblamed for failing to stop the attacks on U.S.soil, there are strong bureaucratic incentives forofficials to err on the side of caution. After all,who would want to be responsible for failing toreceive, gather, share, or flag informationregarding someone who later turned out to bea terrorist? As with data mining, a precaution-ary principle is at work when human beingsare making the risk assessments.

This kind of environment leads to indiscrimi-nate interpretations of information and indis-criminate actions on the part of authorities.And, as with high tech risk assessment, ethnicand religious profiling is endemic.142

a) Guilt by Association and IndiscriminateSharing of Information: The Story ofMaher Arar

On September 26, 2002, while returning from afamily vacation in Tunisia, Maher Arar disap-

24


peared. A Canadian who had migrated with hisfamily from Syria at the age of 17, Arar was atelecommunications engineer, a husband, and afather of two young children, and a Muslim.

It was not until six days later that Arar was ableto call his mother-in-law in Ottawa to tell herthat he had been taken aside at JFK airport inNew York for interrogation and then trans-ferred to a detention center. A consular officialvisited him October 3 and he was able to see alawyer on October 5. Three days later, in themiddle of the night, however, he was put on anairplane with U.S. agents and taken against hiswill to Jordan, and from there to Syria.

During his interrogation in New York, agentshad questioned him about information theycould only have received from Canadiansources. They wanted to know about AbdullahAlmalki, the brother of a man he worked with,with whom Arar had a casual acquaintance.They produced a copy of Arar’s Ottawa rentalagreement, which had been signed by AbdullahAmalki. Arar told them he had askedAbdullah’s brother to come over and witnessthe lease, but the brother had unavailable andhad sent Abdullah. The American agents sworeand yelled at Arar. His requests for a lawyerwere refused and he was pressured to agree tobe deported to Syria. He did not agree. He toldthem his mother’s cousin had been accused ofbeing a member of the Muslim Brotherhoodand had spent nine years in Syrian prisons; hetold them he would be tortured if they sent himto Syria.

Maher Arar was sent to Syria where he lan-guished in a Syrian prison for almost a year,and was tortured. He heard the screams ofother prisoners being tortured. His cell was thesize of a grave – without lighting, hardly widerthan his torso, and only two inches longer thanhis height. He thought he would die there.143

However, the Syrians eventually released Arar

on the basis that they had no evidence to con-tinue to hold him. Syrian officials later saidthey had had no interest in Arar, and had onlyinterrogated him in a show of goodwill to theUnited States.144

In Canada, the Arar affair became a causecélèbre. Canadians were shocked that a citizenwith a Canadian passport could be sent to a thirdcountry for arbitrary detention and torture. Theypressured the government to hold a publicinquiry, which started its work in June 2004. Allof the evidence has yet to come out, but itappears that Arar’s name was passed on toU.S.officials by Canadian security officials whohad noted him because of a casual encounter hehad had with Abdullah Almalki, their primarytarget. Arar, it seems, had the misfortune to beobserved eating with Almalki in a fast foodrestaurant, then talking on the street with him inthe rain outside the restaurant.145 This wasenough to land him on a U.S. terrorist list.

Canadian authorities seem to have drawn con-clusions of guilt about Arar from the most ten-uous evidence of association. They did nothave reasonable grounds to suspect him of any-thing when they passed his name on to a for-eign agency. Either they had no regard for whatmight happen to him as a result, or they were insome way complicit in what subsequentlyoccurred. How safe would any of us be, if wecould be targeted on the basis of any associa-tion we had made in the many aspects of ourlives? In relatively small religious or ethniccommunities where most people know eachother or have some shared acquaintances, hard-ly anyone would be safe.

Britain’s most senior judge, Lord Chief JusticeWoolf, upholding the release of a Libyan manwho had been held without charges on secretevidence for 15 months under the U.K. Anti-Terrorism, Crime and Security Act, asked gov-ernment lawyers:

25


“If I was a grocer and I delivered gro-ceries to somebody who was a memberof al-Qaida, do I fall within that [theAct’s definition of a terrorist]?”146

U.N. Security Council Resolution 1373 (seepps. [Intro and financial transactions]) calledon all states to “take steps to prevent the com-mission of terrorist acts, including the provi-sion of early warning to other states byexchange of information”. The Smart BorderDeclaration and accompanying Action Planfor Creating a Secure and Smart Border nego-tiated between Canada and the U.S. afterSeptember 11, 2001 call for the sharing ofinformation and intelligence in a timely way147

and for joint intelligence teams.148

Certainly, the timely sharing of informationamong agencies and countries is an importantpart of combatting terrorist acts and othercrimes. However, there need to be appropriatecriteria about the quality of the information thatcan be passed on to foreign countries, andinstructions or conditions about how the infor-mation can be used. In the Arar case, Inquirytestimony to date has revealed that neither ofthese safeguards was in place in Canada.Officials testified that many arrangements forsharing information with foreign agencies aremerely oral, and that front-line officers havewide discretion about what they share and inwhat circumstances.149

As mentioned earlier, under the recent agree-ment between Europol and the U.S. (see p. ), anapparently unlimited range of agencies in theU.S. will have access to personal data providedby Europol, and there is no condition prohibit-ing Europol data from being passed on by theU.S. to other countries.

b) Using Information Obtained by Tortureand Tipping Off Torturers

Another example of indiscriminate behaviour

on the part of authorities carrying out “low-tech” risk assessment is their use of torture.

Repressive regimes are not the only ones usingtorture to make risk assessments. Testimonyfrom the Arar Inquiry has revealed thatCanadian agencies may, in some circum-stances, share information with foreign agen-cies they suspect are engaged in torture, andthat they will receive and use information fromforeign agencies obtained through torture if itis corroborated by other sources.150 This is doneeven though Canada is a signatory to the U.N.Convention against Torture.

Reportedly, Canadian authorities may also waitfor people to go abroad in order to have themquestioned without a lawyer present and intim-idated or mistreated by foreign security forces.In September 2004, the brother-in-law ofMaher Arar, who had just moved back toTunisia, was questioned by Tunisian secretpolice. According to Arar’s family, theTunisian questioners had information to whichonly Canadian authorities would have hadaccess. Canadian authorities had had ampleopportunity to interview the brother-in-lawwhile he was living in Canada for four years,but had not done so.151 Another man, KassimMohamed, who divides his time betweenToronto and Egypt, was questioned by CSIS inCanada after videotaping Toronto landmarksfor his children, who attend school in Egypt.He was then cleared to go to Egypt. When hearrived in Egypt, he was arrested and held fortwo weeks, handcuffed and blindfolded, in aprison in Cairo.152

In the U.K., the intelligence service MI5appears to have tipped off the C.I.A. so that aBritish citizen of Iraqi origin, Wahab al-Rawi,could be seized by the C.I.A. when he arrivedin Gambia for a business trip on a flight fromLondon, and thereby deprived of his rightsunder British law. Al-Rawi has said that when

26


he asked to see British consul, the C.I.A. agentinterrogating him laughed, saying, “Why doyou think you’re here? It’s your governmentthat tipped us off in the first place”.153

The English Court of Appeal ruled in August2004 that the use of evidence obtained undertorture was legal in the U.K., as long as theU.K. neither “procured nor connived at” tor-ture.154

(For an indepth discussion about the use of tor-ture by the U.S. and other countries, see TenthSignpost , p. )

c) Sloppy Mistakes: The MadridInvestigation

In the low-tech version of risk assessment,many “false positives” are the result of sloppypolice work and crude profiling on the part ofauthorities.

The home of Brandon Mayfield, an Americancitizen and lawyer in Oregon, was secretlysearched and he was thrown in jail for twoweeks when the F.B.I. matched his fingerprintto a print found on a plastic bag used by terror-ists in the Madrid train bombing of March2004. The print was of poor quality and theSpanish authorities who had provided itwarned American investigators early in thecase that the print did not match Mr.Mayfield’s.155 But the U.S. Justice Departmentused a “material witness” law to round up Mr.Mayfield anyway on the evidence, bolsteringtheir case by painting him as a Muslim extrem-ist. The affidavit that secured the arrest mademuch of the fact that he had converted to Islam,was married to an Egyptian-born woman, andhad once briefly represented one of the“Portland Seven” in a child custody case.156

Spanish authorities eventually matched the fin-gerprint, along with other evidence, to OuhnaneDaoud, an Algerian living in Spain.157 Brandon

Mayfield had not travelled outside the UnitedStates for over a decade.158 The F.B.I., whichoriginally said it was absolutely certain the printwas Mayfield’s, subsequently claimed it was “ofno value for identification purposes”.159

d) Getting People off the Street: ArbitraryDetentions

In the low-tech version of risk assessment,governments wanting to eliminate risk haveindiscriminately swept people off the streets –using detentions without charge and indefiniteconfinements that violate constitutional guar-antees and human rights obligations.

Under human rights law, arbitrary detentionsare justified only in a time of public emergencywhich threatens the life of the nation, and onlyif the state publicly declares such an emer-gency. Then, the derogation from rights mayonly be carried out “to the extent strictlyrequired by the exigencies of the situation”,and without discrimination.160

As described earlier, the Bush Administrationdetained masses of people after September 11,2001(see p. ), and it did so without declaring thestate of emergency required under internationalhuman rights law. The Administration hadsought power to detain non-citizens withoutcharge and without judicial review in the USAPATRIOT ACT, but Congress had refused thisrequest. Undeterred, the Administration createdthe power on its own, by quietly issuing anadministrative order. The order allowed INS tohold non-citizens on immigration charges for 48hours without charges, and to extend that timeindefinitely “in the event of an emergency orother extraordinary circumstances”.161

The move was an end-run around democraticprocesses and around the constitutional protec-tions for accused people in criminal processes.In criminal cases, the U.S. Constitutionrequires charges to be laid in a timely manner,

27


and guarantees detainees the right of habeascorpus.162 The U.S. Supreme Court has held thatthe government must charge a detainee, and ajudge must determine there is probable cause tosubstantiate the charge, within 48 hours.163 Byholding people on immigration charges whilethey were in fact being investigated for links tocriminal activity (terrorism), the governmentdeliberately sought to deny them these consti-tutional rights.164

During this period, some 1,500 to 2,000 peoplewith origins in Muslim countries were roundedup and held,165 and at least 762 were thencharged with immigration charges and detainedlonger.166. The government refused to releasethe names of those held or to allow nongovern-mental organizations to monitor their treat-ment. The average detention lasted for threemonths – until the F.B.I. determined that theindividual had no links to, or knowledge of,terrorism.167 None of those held on immigrationcharges has been charged with involvement inthe September 11 attacks. With the exceptionof four people indicted in August 2002 oncharges of support for terrorism, none had beencharged with terrorism offenses as ofSeptember 2002.168

A 2003 report by the U.S. Office of theInspector General confirmed that the govern-ment held many of these detainees on immi-gration charges for prolonged periods withoutcharges, denied them habeas corpus, deniedthem contact with the outside world, impededtheir right to counsel, overrode judicial ordersto release them on bond, subjected them tocoercive interrogations and solitary confine-ment, and allowed them to be physically andverbally abused because of their national ori-gins.169

The U.S. has also been “getting people off thestreet” within its own borders by abusing“material witness” laws that allow police tohold someone for questioning without having

probable grounds to hold them as criminal sus-pects (as in the Brandon Mayfield casedescribed earlier). A district court judge hasdeclared, “The government’s treatment ofmaterial witness information is deeply trou-bling … The public has no idea whether thereare 40, 400, or possibly more people in deten-tion on material witness warrants”170 The U.S.government is also holding U.S. citizens it hasdesignated as “enemy combatants” – a termthat does not exist in international humanitari-an law. While the U.S. Supreme Court uphelddetention on this basis in the case of YaserEsam Hamdi, a U.S. citizen allegedly capturedduring hostilities in Afghanistan,171 the U.S.District Court has recently ruled (on remandfrom the U.S. Supreme Court) against the gov-ernment in the case of Jose Padilla, a U.S. citi-zen apprehended in the U.S.172

In the U.K., the government held more than adozen foreigners in indefinite detention with-out charge under the Anti-Terrorism, Crimeand Security Act 2001. As of October 2004,seven had been detained for more than twoyears. None had been charged with a crime.Indefinite detention was condemned by twoU.K. parliamentary committees, both of whichasked that the practice be “replaced as a matterof urgency”, arguing that it was unjust andundermined respect for human rights.173 InDecember 2004, the House of Lords found thatthe provisions that allowed the detentions wereillegal (See Resisting the Registration andSurveillance Agenda, p. ).

In Canada, as of December 2004, at least sixmen were being detained indefinitely withoutcharge under “security certificates” issued bythe Minister of Public Safety and EmergencyPreparedness and the Minister of Citizenshipand Immigration.174 The Canadian Anti-Terrorism Act provides authorities with addi-tional power to detain people without chargesusing “preventative arrests”.175

28


e) Broad Strokes: The U.N. List

As the mass detentions carried out by the U.S.described above show, low-tech risk assess-ment, like high-tech risk assessment, often cutsa broad swath. This can also be seen in the listof names compiled pursuant to U.N. SecurityCouncil Resolution 1373, which calls on statesto freeze the assets of terrorists or those sup-porting them.

It is not known whether there are any criteriafor the list; if there are, they are not public. Ifthey exist, the story of Liban Hussein suggeststhe criteria must be very loose. On November7, 2001, the U.S. government issued a list of 62people and businesses whose assets were to befrozen. In a speech that day, President Bushsaid there was clear evidence that the people onthe list were the “quartermasters of terror”.176

The U.S. list was then adopted by the U.N. inits list for freezing assets, and by other U.N.member states including Canada. Shortlythereafter, the Canadian government froze theCanadian assets of Liban Hussein, a Somali-born Canadian businessman who ran a moneytransfer business in Dorchester, Massachusettsand whose name was on the U.S. and U.N.lists.177

Canada jailed Hussein briefly, made it a crimefor anyone to do business with him, and tooksteps to have him deported to the U.S. Then inJune 2002, proceedings against him wereabruptly terminated when the Department ofJustice admitted that further investigation hadrevealed no evidence to suggest he had any-thing to do with terrorism. After having devas-tated the man’s business, the Canadian govern-ment removed his name from its list for freez-ing assets and settled out of court with him.Eventually his name was removed from theU.S. and U.N. lists as well.178

Reportedly, there are a number of people on theU.S. list who, like Liban Hussein, run hawalas.

Hawalas are traditional, informal money-trans-fer businesses which Somalis use to send moneyto Somalia, since the normal banking systemthere collapsed in the early 1990’s. Around twothirds of the money transferred to Somalia is sentthrough al-Barakaat, one of the largest hawalas.In Sweden, authorities froze the accounts ofthree organizers of al-Barakaat, Swedish citi-zens of Somali origin, in order to comply withthe E.U. and U.N. lists. But because the threewere so obviously innocent, a public campaignstarted up and quickly raised 22,000 euros for themen’s basic needs. Lawyers for the three menmet with the European Commission, theEuropean Parliament and the U.N. Committeeon Human Rights and also lodged a case at theEuropean Court.

At no time throughout the affair did the U.S.present any evidence or specific accusationsagainst the three men. To have their namesremoved from the lists they were ultimatelyforced to sign a statement for U.S. authoritiessaying that they had never been and never wouldbe involved in the support of terrorism andwould immediately cease all contacts with al-Barakaat. A joint request from Sweden and theU.S. to the U.N. Sanctions Committee thenresulted in a decision to remove their names fromthe various lists. A Swedish parliamentaryinquiry concluded that although the governmentshould have reacted much earlier, and at the veryleast asked questions before implementing theU.N. and E.U. lists, it had not had many options,due to its obligations in international law.179

f) Disciplining Dissent

In the low-tech version of risk assessment,governments often give way to an impulse topunish dissent.

i) Targeting the “Unpatriotic” in the U.S.

The American Civil Liberties Union (ACLU)and newspapers across the United States have

29


documented numerous instances in which U.S.authorities have made extremely questionablerisk assessments, targeting citizens who havecriticized the policies of the BushAdministration.180 This is partly the fault of thedefinition of “terrorist” in the USA PATRIOTACT, which is so broad that it sweeps in legiti-mate activities of dissent. But the targeting ofdissenters is also happening because a climateexists in times of danger in which there is enor-mous pressure to conform to what is viewed as“normal” and “patriotic” behaviour – and anenormous tendency to engage in a “circling ofthe ideological wagons” and a collective witchhunt for the “enemy within”.

Richard Bourne, a social critic during anotherhighly polarized time in American history, theFirst World War, reflected that war “… automat-ically sets in motion throughout society thoseirresistible forces for uniformity, for passionatecooperation with the Government in coercinginto obedience the minority groups and individ-uals which lack the larger herd sense.”181 In sucha time it can be dangerous to be “different”, orto exercise that quintessential right of Americandemocracy, the right to dissent.

A Senate committee, reporting on the elimina-tion of restrictions on the F.B.I.’s ability tosurveil U.S. citizens, wrote that the agency.had adopted the “belief that dissident speechand associations should be prevented becausethey were incipient steps towards the possibleultimate commission of an act which might becriminal”.182 In the same vien, a spokespersonfor the California Anti-terrorism InformationCenter, has evinced the belief that dissentersfrom the “war on terror”, and the war on Iraqin particular, could well be characterized asterrorists:

“If you have a protest group protestinga war where the cause that’s beingfought against is international terror-

ism, you might have terrorism at that[protest]. You can almost argue that aprotest against that [war] is a terroristact.”183

Many of the instances documented by ACLUand journalists involve people protesting thewar in Iraq. In spring 2004, for example, theF.B.I. served a subpoena on Drake Universityregarding an anti-war conference that was heldthere.184 In 2003, New York police questionedanti-war protesters about their political activi-ties and associations.185

But other dissenters from Bush Administrationpolicies have also been targeted. In October2001, A.J. Brown, a 19-year-old freshmannearly jumped out of her skin when the U.S.Secret Service knocked on her door. They hadreceived an anonymous report that Brown hadan “anti-American” poster in her student digs.Did she have any information aboutAfghanistan? No. About the Taliban? No. Onlya poster opposing the death penalty, whichshowed George Bush holding a rope in front ofrows of hanged corpses, with the caption, “Wehang on your every word”.186

ii) The U.S. “No Fly” List

The names of peace activists, civil libertarians,Quakers, and a satirical cartoonist have shownup on the U.S. on the “no fly” list, the “low-tech” version of the high-tech CAPPS II/Secure Flight passenger screening program(see p. __).

Jan Adams and Rebecca Gordon were pulledaside in San Francisco International Airportand told they could not board their flightbecause their names appeared on the list. Thetwo women, who are peace activists and pub-lish a newspaper called War Times, were nottold how their names got on the list or how theycould have them removed. There appeared tobe no reason for their inclusion on the list,

30


other than the fact that they had been exercis-ing their right to disagree with the government.An ACLU lawyer, a retired Presbyterian minis-ter, a man who works for the American FriendsService Committee (a Quaker organizationwhose purpose is to promote peace and socialjustice), and an ACLU special projects coordi-nator187 have also been among the many pas-sengers pulled aside under the U.S. “no fly”list. In Canada, Shaid Mahmoud, a Toronto edi-torial cartoonist who has been critical of U.S.and Israeli foreign policies, was refused theright to buy a ticket by an Air Canada agentbecause his name appeared on the U.S. list.188

The “no fly” list is run by the TransportationSecurity Administration, with names fed to itby the F.B.I. and intelligence agencies. Airlinesare required to stop passengers whose namesappear on the list from flying, or to subjectthose identified as “selectees” to more rigoroussecurity screening. Despite requests under theAmerican Freedom of Information Act, therehas been no disclosure of the purpose of thelist, or the criteria for adding names to it.

Once a person’s name appears on the list,there seems to be no established procedurefor removing it. Massachusetts Senator TedKennedy was stopped from getting on a planefrom Washington to Boston by a ticket agentwho reportedly saw his name on the “no fly”list. Eventually Kennedy was allowed to flyhome, but he was stopped again on the returnjourney to Washington. In order to get hisname removed from the list he had to to enlistthe help of Homeland Security Secretary TomRidge189 Dozens of men with the misfortuneto be named David Nelson have been ques-tioned by ticket agents, pulled off planes andinterrogated.190

In September 2004, Canada admitted it was inthe process of establishing its own “no fly” listpursuant to the new Public Safety Act.

However, in October 2004 the Minister ofTransport noted that the initiative was far frombeing established because of the many legalconsiderations it raised, including the guaran-tee of free mobility in the Charter of Rightsand Freedoms and federal privacy laws thatlimit distribution of personal information.191

iii) Open Season on Individuals and GroupsChallenging Repressive Regimes

In repressive regimes, the risk assessmentmodel being applied in the “war on terror-ism” has allowed authorities to comfortablydeclare an open season on dissidents andgroups challenging their power. PENInternational has reported that in Burma,China, Colombia, Democratic Republic ofCongo, Indonesia, Jordan, Pakistan, Turkeyand other countries, authorities have“[found] that defining their opponents as‘terrorist sympathizers’ is a convenient wayof stifling opposition movements”.192 InTunisia, the lawyers of individuals chargedwith terrorism have themselves been chargedwith terrorism.193 In India, individualsprotesting the clearing of land for a businessdevelopment have been prosecuted underantiterrorism legislation. In Eritrea, inde-pendent newspapers have been shut downand their journalists jailed after beingaccused of having terrorist ties. InUzbekistan, members of the Human RightsSociety have been jailed on weak evidencealleging they recruited Islamic militants. InColombia, President Andres Pastrana hassaid that rebels in a four decade civil warwould be treated as terrorists “[a]nd in that,the world supports us.”194

On can imagine how much easier it will be forthese regimes to punish dissenters and oppo-nents with the greater surveillance capabilitiesand support from other countries they will haveunder the new global infrastructure for masssurveillance.

31


g) A Plethora of Ballooning Watch Lists

In low-tech risk assessment, watch lists prolifer-ate and they are often as dangerously flawed asthe watch lists created by high-tech methods.

In addition to the U.N. list, and the “no fly” listdescribed above, a plethora of low-tech listshave sprung up since 9/11.

Myth #5: Terrorist watch listsare a reliable product of inter-national intelligence coopera-tion and consensus.

None of these lists was the product of objec-tive, careful international agreement. Even theU.N. list is a compilation of national productsof variable reliability (see p. ). In many coun-tries the definition of “terrorism” used to createlists is so vague that, as the former Director ofthe Canadian Security Intelligence Service hassaid of the Canadian definition, it “…couldeasily include behaviour that doesn’t remotelyresemble terrorism”. 195

Opponents of a repressive regime in a liber-ation movement or civil war could be labeled“terrorists” under many countries’ defini-tions of terrorism, even though they are nottargeting civilian populations. In fact, theU.S. Military Commission Instruction No. 2on “Crimes and Elements for Trials byMilitary Commission” and its Comments, forexample, define the offence of “terrorism” asincluding “an attack against a military objec-tive that normally would be permitted underthe law of armed conflict”!196

There is no due process afforded individu-als or groups to allow them to challengethe inclusion of their names on a list. And,once the “terrorist” label is fastened tothem, actions are taken against them with-out normal legal protections being afford-

ed (protections such as presumption ofinnocence, the right to know the evidenceand allegations against one and torespond, the right to remain silent, andhabeas corpus). This is the essence of therisk assessment model: it treats as intol-erable risks the very legal protections thatare fundamental to free and democraticsocieties.

In the U.S. there were, until recently, nineagencies administering twelve differentwatch lists. Each of these watch lists wascreated for a different purpose, using differ-ent criteria. The government has enoughinformation to justify suspicions that someof the people on these lists are dangerous.Others are suspected of being dangerous, butthe evidence is thin. Others should simplynot be on any list: they are there because ofsome misspelling of their name, or on thebasis of some mistaken assumption abouttheir background, or due to crude ethnic andreligious profiling, or because they havebeen critical of the government, or becausesome state agent decided that he or shewould rather be “safe than sorry”.197 TheF.B.I. stopped Air France and BritishAirways flights to the U.S. in late 2003,based on matches with names on terroristlists. The suspects turned out to be a fiveyear-old child with a similar name to a want-ed Tunisian, a Welsh insurance salesperson,an elderly Chinese woman, and a prominentEgyptian scientist. “A check was carried outin each case and in each case it turned out tobe negative,” a spokesman for the FrenchInterior Minister said, “the F.B.I. workedwith family names and some family namessound alike.”198

In short, the U.S. lists have “been createdhaphazardly and without the carefully con-structed checks and balances that suchpowerful instrument[s] demand.”199 Andthe lists are certainly bloated. At various

32


times, news reports have put the numbersof names on the U.S. lists in the millions.200

Recently, a Terrorist Screening Center wascreated in the U.S., under the lead of theF.B.I., to merge the lists.201 However, criticalquestions remain to be resolved. Who willhave the authority to add names to the list,using what criteria, and for what purpose?How will the F.B.I. allow individuals toknow if they are on the list, address the lackof due process for individuals wronglyincluded on the list, maintain the accuracy ofthe list, and ensure that authorities identify-ing someone on the list know why that per-son is on the list and what action is appropri-ate to take? How will information be sharedamong agencies, and will private companieshave access to it?

To date, there has been a troubling involve-ment of the private sector with the watchlists. As with the surveillance of electroniccommunications (see p. ), private organiza-tions and corporations are being turned intothe agents of the state. Under a programcalled “Project Lookout”, the F.B.I. circulat-ed a list of hundreds of names to corpora-tions. The list, which was full of inaccuraciesand contained the names of many peoplewith whom the F.B.I. simply wanted to talk,was widely shared and quickly took on a lifeof its own.202 Health insurance giants lookedthrough millions of customer records. BlueCross found no terrorists, but 6,000 falsepositives (out of 6 million records) were gen-erated, all of whom were investigated furtherby the company’s employees. Aetna searchedthrough 13 million records. The F.B.I. admit-ted it had no way to remove innocent peoplefrom the list, because its distribution hadspun out of its control.203

As mentioned earlier, financial companies(under s. 326 of the USA PATRIOT ACT), andbusinesses involved in helping individuals to

buy or sell property, (under Executive Order13224) must verify each customer’s identityand then check whether the person is on agovernment watch list (see p. ).204

3. Kafka

The post-9/11 world of “risk assessment” –whether one is experiencing the “high-tech” version or the “low-tech” version – isKafkaesque.205

It is a world in which individuals are pre-sumed guilty, detained and not told thecharges against them, denied the right to facetheir accusers, denied the right to know theevidence against them and the criteria bywhich they are being judged, and given nolegal recourse and no one to advocate forthem.

SEVENTH SIGNPOST: DEEP INTE-GRATION AND THE LOSS OF SOVER-EIGN CHECKS AND BALANCES

When all the initiatives described above areviewed together, what emerges are the“contours of a vast, increasingly integratedmultinational registration and surveillancesystem, with information floating more orless freely between subsystems”.206

As this system emerges, the police, securi-ty intelligence, and military operations ofmany nations are becoming deeply inte-grated with U.S. operations. National gov-ernments are giving up sovereignty andthrowing aside national checks and bal-ances in favour of an integrated securityspace that is largely being designed andcontrolled by the U.S.

Myth #6: If one is mistakenlycaught up in the global masssurveillance net, one’s govern-ment can protect one.

33


As a result, when the U.S. government takesaggressive action against the citizen of anothercountry on the basis of information shared bythat country’s officials, there is little the citi-zen’s government can do to protect him or her.This was painfully evident in the Arar case,when the Canadian government was unable tosecure the release of Maher Arar for months,even after meetings at the highest levels withU.S. and Syrian officials.207

Governments’ inability to protect their citizenswas also apparent when the Swedish govern-ment sought to have several of its citizens’names removed from the U.N. list after theyhad been added at the request of the UnitedStates. As mentioned earlier (see p. ), theSwedish government had to negotiate with theU.S. government in order to have the namesremoved. Its citizens, who were of Somali ori-gin, were forced to sign a statement for U.S.authorities swearing that they never had sup-ported and never would support terrorism, andthat they would cease all contact with thehawala, al Barakaat.208

Myth #7: Governments want toimplement these systems to pro-tect their citizens from terrorists.

There are various forces at work driving deepintegration with the U.S. There is certainlysome belief among governments that bettersharing and cooperation among states is nec-essary in order to effectively counter interna-tional terrorism. However, many of the agree-ments and arrangements made are irresponsi-ble in terms of the sovereign powers they cedeand the lack of adequate conditions and con-trols they contain regarding the sharing ofinformation.

Some of the willingness of governments toacquiesce to the integrated security spacedemanded by the U.S. is rooted in oppor-

tunism. U.S. bilateral demands and thosechannelled through international forums givegovernments the excuse to do what they oth-erwise might not be able to do – to increasetheir social control within their own borders.This is the eternal tendency of governmentsand law enforcement, and it is the reason whydemocracies have entrenched rights andother institutional checks and balances.

In many cases, however, economic interestsalso drive governments to acquiesce to the inte-grated security space being pushed by the U.S.The E.U., for example, feared the economicconsequences of its airline industry beingdenied landing rights in the U.S. whendemands for PNR sharing were made; this waspart of what led it into negotiations for a formalagreement on PNR sharing.209 In Canada, where30 percent of the economy depends on exportsto the U.S.,210 where a border open to the flowof export traffic is critical, and where powerfulbusiness interests have been lobbying foryearsfor deep integration with the U.S.,211 thegovernment was quick to negotiate a SmartBorder agreement and Action Plan (see page )that were, in essence, a blueprint for many ofthe initiatives described above.

Many other countries that depend on tradewith, or aid from, the U.S. have found them-selves in similar situations. Southeast Asiangovernments, especially those of thePhilippines, Singapore, Thailand, Malaysia andIndonesia, have cooperated closely with theU.S. in its global campaign against terrorism.The collaboration ranges from arrestingalleged terrorists based on shared intelligenceand allowing U.S. agents to interviewdetainees, to facilitating the extradition ofdetainees to the U.S., to legislating anti-terrorlaws to serve the U.S.-led anti-terrorism cam-paign,212 to allowing U.S. military forces to leadspecial operations against terrorist groups inthe country.213 The E.U. is also putting pressureon countries, through aid, to cooperate with the

34


security agenda it shares with the U.S. InMarch 2004, E.U. foreign ministers backed adeclaration warning countries that they wouldlose aid and trade with the powerful economicbloc if their efforts in security cooperationwere deemed insufficient.214

The benefits of deep integration and a singlesecurity space for the U.S. include the opportu-nity to advance its hegemonic interests instrategic regions. For example, years of U.S.military presence were ended in the Philippinesas a result of popular protest, but the U.S.reasserted its military presence after 9/11. Thiswas done, ostensibly, to assist in the capture ofPhilippine-based terrorists, which would ordi-narily be a law enforcement function of thePhilippine state. But it was done without atreaty or even the usual “status of forces”agreement, and represents one of the extremeson the continuum of deep integration.215

EIGHTH SIGNPOST: THE CORPORATESECURITY COMPLEX

In Dwight Eisenhower’s farewell address at theend of his presidency in 1961, he warned theAmerican people about the rise of a powerfulmilitary industrial complex that threatened thefoundations of American democracy:

This conjunction of an immense mili-tary establishment and a large armsindustry is new in the American experi-ence. …The potential for the disastrousrise of misplaced power exists and willpersist. We must never let the weight ofthis combination endanger our libertiesor democratic processes. We shouldtake nothing for granted.216

Today, the same warning could be made withrespect to the new symbiotic relationship that isdeveloping between an immense security/intel-ligence establishment and an ambitious infor-mation technology industry. This new corpo-

rate security complex is an aggressive driver ofthe project for global, mass registration andsurveillance.

For information technology corporations, theparadigm of the “war on terror” is a boon afterthe sector’s disastrous economic downfall inthe mid-to-late 1990s. It offers them a criticalopportunity for recovery and expansion, andthey have been quick to seize it – setting inmotion a powerful lobby to promote techno-logical solutions for governments that purport-edly “increase” security and “eliminate” risks.

For the government security/intelligence com-munity, left searching for a raison d’être afterthe end of the Cold War, the “war on terror”offers an unprecedented opportunity toincrease its investigative and surveillance pow-ers by tapping into the possibilities offered bynew information technologies. And many ofthese technologies are owned or being devel-oped by the private sector.

However, the private sector offers somethingmore than technology to government agencies:it offers a way around some of the laws andaccountability mechanisms that govern gov-ernment agencies. For example, contractingwith private data aggregation corporationsallows government agencies to access massivedatabases of personal information they wouldnot, under privacy and other laws, be able tomaintain themselves. Contracting with privatecorporations for the development of data min-ing projects similarly allows government agen-cies to evade privacy. To some degree, it alsoallows governments to shield the projects frompublic scrutiny.

Billions of dollars, euros, and other currenciesfuel the corporate security complex.

In the U.S., an estimated $115 billion was allo-cated for research and development of anti-ter-ror initiatives in 2003 alone. The estimated

35


allocations up to 2010 are $130 billion to $180billion a year.217

A security research program announced by theE.U. in February 2004 is intended to make theE.U. the rival of the United States in securitytechnology. This “comprehensive” researchprogram is aimed explicitly at building a “secu-rity culture” in Europe with the help of the“security industry and the research communi-ty”. The program is charged, among otherthings, with:

[demonstrating] the appropriatenessand acceptability of tagging, trackingand tracing devices by static andmobile multiple sensors that improvethe capability to locate, identify andfollow the movement of mobile assets,goods and persons, including smartdocumentation (e.g. biometrics, auto-matic chips with positioning) and dataanalysis techniques (remote control andaccess).218

This research program is being developedbased on the recommendations of a “Group ofPersonalities” that included representatives ofeight multinational companies (including BAEand Siemens) and seven “research” institutions(including the Rand Corporation).219 By 2007,the European Commission will be providingthe security research program with more than abillion euros a year.220

In Canada, the government announced a com-prehensive $Cdn. 7.7 billion package for securi-ty spending over a five-year period in its 2001budget. The package included substantial spend-ing on surveillance and security technology.221

The major surveillance projects promoted todate by the American government – such as theTerrorism [Total] Information AwarenessSystem, MATRIX, US-VISIT and CAPPSII/Secure Flight programs – have provided for-

midable business opportunities and profits fortechnology corporations.

Data aggregator companies like LockheedMartin, Acxiom, Lexis-Nexis, ChoicePoint andothers are major winners in these multi milliondollar ventures. ChoicePoint alone claims tohave contracts with some 35 U.S. governmentagencies, including a $8 million contract with theJustice Department that allows the F.B.I. to tapinto the company’s vast database of personalinformation on individuals. The Georgia-basedcompany increased its lobbying expendituresfrom $100,000 in 2000 to $400,000 in 2002.222

Prior to being forced by Congress to abandonresearch on TIA in the fall of 2003 (see p. ), theDefense Advanced Research Projects Agencyoversaw a budget of roughly $2 billion andrelied heavily on outside contractors. Between1997 and 2002, it granted contracts to dataaggregator companies worth $88 million.Among these, 13 contracts worth more than$23 million went to Booz Allen & Hamilton,and 23 contracts worth $27 million were grant-ed to Lockheed Martin.223

Although TIA was shelved at the federal level,the MATRIX program (see pp . and ) has beenin the process of implementation at the statelevel since 2002. As mentioned earlier, it tiestogether government and commercial databas-es in order to allow authorities to conductdetailed searches on individuals, and to searchfor patterns in the databases that are supposed-ly indicative of terrorist or criminal activity.Maintenance of the system has been contractedout to Seisint Inc., based in Boca Raton,Florida. By the fall of 2003, Seisint hadreceived $12 million in Federal funds to run thesystem.224 In January 2003, a presentation aboutMATRIX was delivered by its promoters toU.S. Vice-President Dick Cheney and other topU.S. officials by Seisint, Florida Governor JebBush and Florida’s top police official.225

36


The US-VISIT program (see p. ) is anothergoldmine for the corporate sector. Congressappropriated $368 million in 2003 to developthe system and install it in airports, and $330million to expand the system to land borders in2004.226 In May 2004, the Department ofHomeland Security issued a call for bids toextend the system at sites abroad where peopleseek visas to the United States. Three compa-nies vied for the contract – Accenture,Computer Sciences and Lockheed Martin. 227

Accenture, the winner, could earn as much as$10 billion in the venture by 2014.228

Lockheed Martin, a giant of the military indus-trial complex, received a five-year, $12.8 mil-lion contract to assist the TransportationSecurity Administration in the development ofthe CAPPS II program (see p. ).229 Before itsinauguration was postponed (see p. ), morethan $60 million had been spent on the devel-opment of computer technology intended toverify individuals’ identities’ against commer-cial databases.230

CAPPS II relied heavily on data and identity-matching logarithms developed by Acxiom.The Little Rock-based company is the world’slargest processor of consumer data, collectingand manipulating more than a billion records aday, and is rapidly expanding its reach inEurope and Asia.231 Since 9/11, Acxiom hasbeen lobbying for federal contracts in home-land security with the help of retired generaland presidential candidate Wesley Clark andBill and Hillary Clinton. Clark has also lobbiedon behalf of Lockheed Martin. In February2003, the TSA made Lockheed Martin its maincontractor on CAPPS II, and Acxiom obtainedan important subcontract.232

Biometric passports and the US-VISIT pro-gram aim to biometrically identify the world’spassport holders, and this also offers theprospect of huge profits for corporations glob-

ally. The contract awarded by the Swedish gov-ernment to Setec, a Finnish company, to supplybiometric passports and ID cards over the nextfive years is worth 100 million euros.233 Anotherlucrative contract with the Danish governmentwill see Setec provide three million Danes withbiometric passports.234

In Canada, ACME-Future Security Control, anOttawa-based company, was chosen by theCanadian Air Transport Security Authority todevelop a secure credential card, using biomet-ric technologies, for individuals accessingrestricted areas of airports.235

In Asia, the Indian smart card industry is grow-ing at a rate of 45% annually, and will be worth$6 billion (U.S.) by 2010 and companies likeSony, Infineon and Hitachi are “licking theirlips”.236

IT corporations, such as Oki, have recentlymoved into the biometrics sector, anticipatingits potential. Oki now specializes in iris scansand is working for the German government ona pilot project in the Frankfurt airport.237

Corporations that specialize in biometrics, suchas Byometric Systems (Germany), Bioscrypt(Canada) and BioDentity (Canada), are aggres-sively looking for a piece of the anti-terrorismaction. On its website, BioDentity quotes aFrost & Sullivan claim that “[c]utting-edgesecurity systems could have prevented thecatastrophe – the worst terrorist attack in U.S.history”.238

Corporations have been quick to seek relation-ships globally with security apparatuses. SITAInformation Networking Computing, an ITcompany registered in the Netherlands, is nowimplementing “intelligent border services” inBahrain, Australia and New Zealand, includinga tracking system that analyzes the travel pat-terns of high risk passengers.239 Siemens, acompany based in Germany, is now providingpassports to the U.K. government, national ID

37


cards with chips and biometrics to Macau, IDcards to Bosnia-Herzegovina and Italy, andvisas to Norway.240 In 2002, the France-basedThales Group sought and won the contract forthe Chinese ID card.241 In September 2004, theCanadian government facilitated the mission ofa Canadian trade delegation to China to pro-mote the sale of surveillance and security tech-nology to the Chinese government, includingclosed circuit television devices, night-visionproducts, face recognition technology andcomputer systems for monitoring theInternet.242

In the fray of all the activity described above,corporations are constantly “pushing theenvelope” of social control by technologicalmeans – egging on governments to embracebigger, newer, and more intrusive systems ofsocial control.

It is not implausible in the new world orderthat corporations will sell governments onthe idea that their populations should berequired to have computer chips implantedunder their skin, so that the state may bettercontrol them. In October 2004, the U.S. Foodand Drug Administration authorized AppliedDigital Solutions, a Florida-based company, tomarket implantable chips for patients that willencode their medical records. The companyexpressed the hope that the medical use of itsVeriChips would accelerate the acceptance ofunder-the-skin ID chips as security and accesscontrol devices.243

Eisenhower’s warning that we should takenothing for granted, it would appear, hasnever been more relevant.

NINTH SIGNPOST: THE EXPRO-PRIATION OF THE DEMOCRATICCOMMONS

The global project for mass registration andsurveillance that governments and corporationsare building in the name of protecting freedom

and democracy is, in fact, threatening thosevery values around the world. In the North andin the South, the East and the West, the demo-cratic “commons” that have been won aftercenturies of struggle are being expropriated.Misguided governments pushing to implementthe global surveillance project are:

• suspending judicial oversight over lawenforcement agents and public officials;

• placing unprecedented power in the hands ofthe executive arm of government;

• making end-runs around the oversight anddebate normally provided by the legislativearm of government;

• inviting unelected, unaccountable suprana-tional bodies to set policy for them;

• abandoning well-established privacy protec-tions for citizens;

• ignoring constitutional guarantees;

• rolling back criminal law and due processprotections (such as the presumption of inno-cence, habeas corpus, solicitor-client privilege,public trials, the right to know the evidenceagainst one and to respond, reasonable groundsfor search and seizure, and the right to remainsilent) that balance the rights of individualsagainst the power of the state;

• systematically violating basic human rights;and

• endangering the rule of law itself.

Governments have been able to make thesechanges in democratic countries by declaringa state of crisis. But the “war on terror” is awar without end, so the state of crisis is per-manent, not temporary. As a result, demo-cratic societies are in grave danger of beingturned, over time, into surveillance societies– or worse, into police states.

38


In undemocratic societies, the prospects for free-dom are fading. Emboldened by the abandon-ment of democratic values in Western countries,governments in these countries are abandoningdemocratic reforms and tightening their grip onpower. In Russia, for example, PresidentVladimir Putin announced, in September 2004,plans for a sweeping political overhaul in thename of fighting terrorism. If adopted as expect-ed, his controversial proposals will strengthenthe president’s already extensive control over thelegislative branch and regional governments.244

In the 18th century, English philosopher JeremyBentham proposed an architectural design forwhat he considered the perfect prison. It enabledone unseen warden to watch all of the prisonersin an institution. Bentham called his design the“Panopticon”. His idea was that if prisonersnever knew when they were actually beingwatched – only that they might be watched atany time – they would begin to modify theirbehavior. Fearing they could be seen, and fear-ing punishment for transgressions observed,they would begin to internalize the rules of theinstitution so that actual punishment wouldeventually be rendered superfluous.245

As people begin to realize that every transac-tion in their personal lives is potentially beingwatched – and that their innocent actions andbeliefs can be easily misconstrued by riskassessors in their own and other countries,they will begin to internalize the social con-trol that is being exerted by governments,watching what they say, what they criticize,who they associate with, and what they pro-fess to believe in.

French philosopher Michel Foucault wrotethat:

In appearance [panopticism] is merelythe solution to a technical problem, but,through it, a whole new type of societyemerges [transported] from the penalinstitution to the entire social body.246

TENTH SIGNPOST: A LOSS OFMORAL COMPASS – RENDITION,TORTURE, DEATH

One commentator, reflecting on the implica-tions of writing about biometric registrationand mass surveillance, has written:

There has been an attempt the last fewyears to convince us to accept as thehumane and normal dimensions of ourexistence, practices of control that hadalways been properly considered inhu-mane and exceptional.247

To this observation, it could be added that oncesocieties begin to accept inhumane and excep-tional practices of social control, they begin tolose their moral compass.

It is now clear that the U.S. and other countriesparticipating in the global surveillance projectare engaging in torture, inhumane treatment,and indefinite detention of detainees of the“war on terror” in their own facilities, as wellas sending suspects to third countries wherethey face torture, inhumane treatment, andindefinite detention. So that the worst that indi-viduals have to fear from the global system ofmass surveillance is something far darker than“mere” loss of privacy, civil liberties, freedomof movement, or loss of democratic patri-monie: that is, that the system runs alongsideand feeds into what some commentators arecalling a global gulag.

1. The Global Gulag

a) Detention Centres Used by the U.S.

When Alexander Solzhenitsyn wrote TheGulag Archipelago in the last half of the 20th

century, he described a physical chain of islandprisons clustered in Soviet Russia’s northernseas and Siberia. But the description wasmetaphorical as well as physical: the archipel-

39


ago was a cluster of prisons around whichswirled the sea of normal society.248 Before andduring Solzhenitsyn’s time, people were oftensent to the gulag secretly, without due process,and many disappeared, never to be seenagain.249

Like the Russian system that Solzhenitsyndescribed, the United States is operating anarchipelago of prison camps and detention cen-tres around the world that remains largelyunseen by the world. Some of these are beingrun directly by the U.S. – including CampDelta at Guantanamo Bay in Cuba; Bagramand other military bases in Afghanistan; CampJustice on British Diego Garcia; a floatingdetention centre on board a U.S. naval vessel inthe Indian Ocean; Camp Cropper at theBaghdad airport and other detention centers inIraq; the U.S. airbase in Qatar; a jail with anundisclosed location referred to by the C.I.A as“Hotel California”; and other C.I.A. centresdisclosed and undisclosed in Afghanistan,Pakistan, Thailand, Jordan, Qatar, and else-where.250

Other detention centres are run by allies of theU.S. in its “war on terror”, in close cooperationwith U.S. agencies like the C.I.A.. These cen-tres are located in Jordan, Syria, Egypt,Morocco, Saudi Arabia, Uzbekistan, andPakistan — countries with documented recordsof using torture in interrogation and indefinitedetention.251 Among the worst are the Far’Falastin interrogation centre in Damascus,Syria, where Maher Arar was held, and theScorpion jail and Lazoghly Square secretpolice headquarters in Cairo.252 Former C.I.A.agent Bob Baer, who worked covertly for theU.S. across the Middle East until the mid 1990shas said, “If you want a serious interrogation,you send a prisoner to Jordan. If you want themto be tortured, you send them to Syria. If youwant someone to disappear – never to see themagain – you send them to Egypt.”253

Although difficult to verify, Pentagon figuresand estimates of intelligence experts put thenumber of people being held by the U.S.,directly or at its request, at more than 9,000 asof May of 2004.254

b) The Practice of Rendition

Many detainees have been transferred to deten-tion centres in other countries from the Afghanand Iraq255 theatres of war, in contravention ofArt. 49 of the Fourth Geneva Convention,which provides that “[i]ndividual or massforcible transfers, as well as deportations ofprotected persons from occupied territory tothe territory of the Occupying Power or that ofany other country ... are prohibited, regardlessof their motive”. However, the BushAdministration has also moved detainees toand between detention centres using an exist-ing American practice known as “extraordinaryrendition”.

The practice was developed as “rendition tojustice” in the late 1980s, reportedly to allowU.S. agents to apprehend wanted persons infailed states like Lebanon,256 where lawfulextradition procedures were either ineffectualor non existent. Before September 2001, theC.I.A. was authorized by presidential direc-tives to carry out renditions, but the rules wererestrictive, requiring review and approval byinteragency groups led by the White House.The purpose of the procedure at that time wasto bring prisoners to the United States or toother countries to face criminal charges.257

According to current and former governmentofficials, days after September 11, 2001,President Bush signed a directive that gave theC.I.A. expansive authority to use renditionwithout case-by-case approval from the WhiteHouse, the State Department, or the JusticeDepartment.258 Since then, the program has“expanded beyond recognition – becoming,according to one former C.I.A. official, ‘an

40


abomination’”.259 Rendition is now being used –not to bring a small number of individualscharged with criminal offenses to face trial inthe U.S. – but to transfer a large group ofindividuals who will likely never have crimi-nal charges brought against them to detentioncentres outside of the U.S., and solely for thepurpose of detention and interrogation.260 Asanother C.I.A. official has said of the currentpractice, “It’s not rendering to justice. It’skidnapping.”

This new form of rendition has become one ofthe principal strategies of the U.S. in the “waron terror”.261

Under the new form of rendition, the UnitedStates picks up individuals around the worldwith the help of its allies, and transfers them toextraterritorial detention camps and centres onjets operated by the U.S. Special CollectionService. The service runs a fleet of luxuryplanes and military transports that has movedthousands of prisoners around the world sinceSeptember 11, 2001 – much as the C.I.A.’ssecret fleet, “Air America”, did in the 1960sand 70s.262 Maher Arar was transported toJordan (on his way to Syria), in this way.

c) Disappearance

The operations of the Special CollectionService air fleet, and of the detention centres towhich it delivers detainees, are shrouded insecrecy.263 With few exceptions, when detaineesarrive at their destinations either as renderedsuspects or as prisoners captured in a theatre ofwar, they disappear.

The Geneva Conventions require the promptregistration of detainees captured in theatres ofwar, so that their treatment can be monitored.264

Under the Rome Statute of the InternationalCriminal Court, “enforced disappearance” is a“crime against humanity” and is defined as“the arrest, detention or abduction of persons

by, or with the authorization, support or acqui-escence of, a State or a political organization,followed by a refusal to acknowledge that dep-rivation of freedom or to give information onthe fate or whereabouts of those persons, withthe intention of removing them from the pro-tection of the law for a prolonged period oftime.”265 While the U.S. is not a signatory to theRome Statute, the Statute’s definition arguablycodifies existing international law regardingdisappearances.

Although the U.S. has released the names of afew of the high level Al Qaeda suspects itholds,266 and other detainees’ names havebecome public through families’ efforts as inthe case of Maher Arar, the U.S. does notrelease any details about the people it rendersto foreign prisons267 or about most of the peoplethe people it holds in C.I.A.-run detention cen-tres. 268 The latter have been called “ghostdetainees” by Human Rights Watch, since theBush Administration has consistently refusedto reveal their fate or locations.269 Recent addi-tions to their ranks came from the Iraq theatreof war when a number of detainees were keptoff the registers shown to the Red Cross therewith the approval of the U.S. Secretary ofDefense, Donald Rumsfeld. 270

As of March 2005, the Bush Administrationwas still refusing to release the names ofdetainees held at Guantanamo Bay to lawyersand the public — seven months after the U.S.Supreme Court’s ruling in Rasul v. Bush271

which held that every detainee there had theright to challenge his detention in federal court.Most of these detainees were transferred fromthe Afghan theatre of war but many have beenrendered there from other countries.272

In 2002, at a joint hearing of the House andSenate Intelligence Committees, Cofer Black,then Head of the C.I.A. CounterterroristCenter, spoke of the United States’new forms

41


of “operational flexibility” in dealing with sus-pected terrorists: “This is a highly classifiedarea. All I want to say is that there was “before9/11”, and “after” 9/11. After 9/11 the glovescome off.”273

d) The Assertion of a Legal Black Hole andAuthority to Torture

The Bush Administration has asserted that nei-ther the U.S. Constitution,274 nor the GenevaConventions, 275 nor international human rightslaw276 apply to “enemy” or “unlawful combat-ants” in the “war on terror”. In other words,according to the United States, these detaineesexist in a legal “black hole”. They are in a noman’s land where the United States, and byimplication its allies, are free to act outside thelaw, or to pick and choose what parts of the lawthey will apply – as in the Military Orders andInstructions277 for the detainees in GuantanamoBay.

While there is some basis in U.S. caselaw tosuggest that the U.S. Constitution does notapply to aliens outside the U.S.,278 theAdministration’s assertions in respect of theGeneva Conventions and human rights obliga-tions are false. Under the Geneva Conventionsthere is no such category as “enemy” or“unlawful” combatant. In armed conflict likethe war in Afghanistan or the war in Iraq, allpersons are covered under the Conventionseither as “civilians” or “combatants”.279 Inrespect of human rights law, under theInternational Covenant on Civil and PoliticalRights (to which the U.S. is a signatory) statesarguably bear obligations wherever they havejurisdiction.280 Under the Convention AgainstTorture (to which the U.S. is a signatory) statesare responsible for taking effective legislative,administrative, judicial, and other measures toprevent acts of torture in any territory undertheir jurisdiction.281 Finally, it is clear that,under the customary international law of

human rights the detainees have due processrights and protections against torture, arbitraryand prolonged detention, and extra judicialkilling.282

The Bush Administration has repeatedlydenied that it condones the torture of detaineesor that it has a policy of torture, but evidencesuggesting the contrary is mounting.

The American newsmagazine Newsweek hasreported that after September 11, 2001,President Bush signed a secret order authoriz-ing the C.I.A. to set up detention centres out-side the U.S. and “to question those held inthem with unprecedented harshness”.283

According to Newsweek, agreements were thennegotiated with foreign governments withrespect to these sites, giving U.S. personneland private contractors immunity for theiractions there.284

Newspapers have also reported on a series ofinternal legal memoranda, collectively referredto as “the torture memos”. These memoranda,some of which were leaked and some of whichwere made public by groups such as the N.Y.U.Center for Law and National Security, advisethe Bush Administration, in essence, on how toengage in practices of inhume treatment andtorture, and justify or redefine the conduct.According to the New Yorker, most of thememoranda “were generated by a small hawk-ish group of politically appointed lawyers inthe Justice Department’s Office of LegalCounsel and in the office of Alberto Gonzales”.285 At the time the memoranda were written,Gonzales was White House Legal Counsel.More recently, he has been appointed byPresident Bush to be the new Attorney Generalof the United States.

• A series of memoranda written in January2002 by the Justice Department, provided legalarguments to support Bush Adminstration offi-cials’ assertions that detainees captured in the

42


Afghan theatre of war did not have to be treat-ed in accordance with the Geneva Conventions,creating a new category not found in theGeneva Conventions — that of “illegal enemycombatant”286

• An August 2002 memorandum signed byAttorney General Jay S. Bybee , defined tortureas the intent to inflict suffering “equivalent inintensity to the pain accompanying seriousphysical injury, such as organ failure, impair-ment of bodily function, or even death.”According to newspaper reports, the memoran-dum “also claimed that torture only occurswhen the intent is to cause pain. If pain is usedto gain information or a confession, that is nottorture.”287 These definitions of torture, ofcourse, do not accord with international law.288

But a senior Administration official is reportedto have said that the memorandum’s conclu-sions align closely with the prevailing WhiteHouse view of interrogation practices.289

• Another memorandum advised interrogatorson how to shield themselves from liabilityunder the Convention Against Torture and thefederal Anti Torture Act, by contending thatprisoners were in the custody of another gov-ernment and that U.S. officials were onlyreceiving information from the other country’sinterrogations.290

• A memorandum prepared by a DefenseDepartment legal task force drew on earliermemos to declare that the President could over-ride international treaty prohibitions and feder-al anti torture law under his authority asCommander-in-Chief to approve any techniquenecessary to protect the nation’s security. Thememorandum also stated that Executive andmilitary officials could be immune fromdomestic and international prohibitions againsttorture for a variety of reasons, including abelief by interrogators that they were acting onorders from superiors “except where the con-

duct went so far as to be patently unlawful”.291

This advice contradicts the Convention AgainstTorture which states that “[n]o exceptional cir-cumstances whatsoever … may be invoked asa justification of torture”, and, in particular,that “[a]n order from a superior officer or apublic authority may not be invoked as a justi-fication of torture.”292

• According to the Times, “a secret memoissued by Administration lawyers authorizedthe C.I.A. to use novel interrogation methods –including “water-boarding”, in which a suspectis bound and immersed in water until he nearlydrowns.”293

• A memorandum from Secretary of DefenseDonald Rumsfeld to General James T. Hill ofApril 2003 outlined permitted interrogationtechniques for detainees in U.S. custody, whichincluded stress and duress methods.294

• Finally, an F.B.I. email released inDecember 2004 under a Freedom ofInformation Act request repeatedly referredto an Executive Order that permitted militaryinterrogators in Iraq to place detainees inpainful stress positions, to use hoods, tointimidate detainees with military dogs, andto use other coercive methods.295

After the Abu Ghraib scandal in Iraq, theAugust 2002 memorandum described abovewas formally rescinded by the JusticeDepartment and replaced by a legal opinionthat stated torture should be more broadlydefined.296 However, the Bush Administrationhas fought vigorously against legislativeefforts to rein in the C.I.A. In early 2005,“Republican leaders, at the White House’s urg-ing, [blocked] two attempts in the Senate toban the C.I.A. from using cruel and inhumaneinterrogation methods. An attempt in the Houseto outlaw extraordinary rendition, led by

43


Representative Markey, also failed”.297 In fact,as of March 2005 the Administration was sup-porting a provision in an intelligence reformbill that would authorize U.S. authorities,retroactively, to send foreigners suspected ofhaving links with terrorist organizations tocountries where they are likely to be tortured orabused. The provision violates the ConventionAgainst Torture which prohibits states fromsending persons to countries where there aregrounds to believe they would be in danger ofbeing subjected to torture,298 in that it shifts theburden of proof to the detainee and raises thestandard of proof to “clear and compelling evi-dence” that torture would occur.299

e) Torture Committed by U.S. Personnel

In U.S. detention centres, prisoners have beendoused with cold water and subjected to freezingtemperatures,300 beaten,301 denied medical treat-ment,302 subjected to severe sleep deprivation,303

bound in awkward, painful positions for hours,304

blind-folded and thrown against walls,305 forcedoff bridges,306 subjected to loud continuous musicand noises,307 shot,308 forced into asphyxiation,309

water-boarded,310 had their 7 and 9 year old sonspicked up to induce them to talk,311 been coveredwith their own urine,312 strangled,313 had lightedcigarettes put in their ears,314 been chained in thefetal position for 24 hours or more,315 humiliatedby female personnel,316 bitten by dogs,317 bangedheadfirst repeatedly into doors,318 forced tosodomize themselves,319 held naked for long peri-ods,320 and thrown on top of each other andjumped on.321 Military pathologists have pro-nounced as homicides the deaths of two prison-ers in Afghanistan, but in many other cases themilitary has not conducted autopsies and says itcannot determine the causes of death.322 As ofMay, 2004, 39 prisoners had died in U.S. custodyin the “war on terror”.323

A review of this record, alongside the memo-randa, Executive Orders, and proposed legisla-

tion described earlier, show that the revelationsat the Abu Ghraib prison in Iraq which shockedthe conscience of the American people in 2004,were by no means an isolated phenomenon. Onthe contrary, they were part of a wider systemof abuse fostered, if not sanctioned, by the toplevels of the U.S. government.

f) The Plan to Build Permanent PrisonsOutside the U.S.

Michael Scheuer, a counter-terrorism expertwith the C.I.A. until 2004, helped establish thepractice of rendition. In a recent report hepointed to the folly of the whole project. “Arewe going to hold these people forever?”…Once a detainee’s rights have been violated youabsolutely can’t reinstate him into the courtsystem. You can’t kill him either. All we’vedone is create a nightmare.”324

“A senior U.S. official told the New York Timesin January 2005 that three quarters of the 550prisoners then at Guantanamo Bay no longerhad any intelligence of value. But they wouldnot be released out of concern that they poseda continuing threat to the U.S.”325 In January2005, the Washington Post and other newspa-pers broke the story that the U.S. governmentwas thinking of building jails in foreign coun-tries, “mainly ones with grim human rightsrecords, to which it [could] secretly transferdetainees (unconvicted by any court) for therest of their lives …. beyond the scrutiny of theInternational Committee of the Red Cross, orany other independent observers or lawyers.”326

Under the new scheme, most foreign detaineesare expected to be in the hands of the C.I.A.,which is subject to less Congressional over-sight than other U.S. agencies, operates insecrecy and, as mentioned earlier, gives theRed Cross, lawyers, the media and family noaccess to detainees.327 One proposal is for theU.S. to build new prisons in Afghanistan, SaudiArabia and Yemen. Those countries would run

44


the prisons but U.S. officials would haveaccess to “ monitor human rights compli-ance”.328 Already, the U.S. has transferred 65detainees from Guantanamo Bay to other coun-tries, including Pakistan, Morocco, France,Russia and Saudi Arabia so that they can eitherbe prosecuted (an unlikely prospect) ordetained indefinitely. The Defense Departmenthas also asked Congress for funds to build anew prison at Guantanamo Bay, since, officialssay, any remnant population of detainees thatcould not be transferred to other countrieswould likely be held there indefinitely sincecharges will never be brought against them.329

g) The Participation of Other WesternDemocracies

Myth #8: Western Democraciesare defending democracy andhuman rights around the world.

The new paradigm of having a global pool ofdetainees held and transferred between centresaround the world and accessible to the securityagencies of the U.S. and its allies in the “waron terror”, is not the policy of the U.S. alone,but is one that is being embraced, acquiescedto, or made use of by many of its Western lib-eral allies.

The U.K. allows the C.I.A. to operate one of itsextraterritorial detention centres on the Britishisland of Diego Garcia. The Swedes haveallowed U.S., U.K. and German agencies toquestion suspects held in Sweden,330 and havecooperated in the rendition of two asylumapplicants from Sweden to Egypt by U.S.agents. Evidence shows that these individualswere tortured in Egypt. One was subsequentlyreleased and one was sentenced to 25 yearsimprisonment by a military court that did notmeet international standards for fair trial.

While in a few cases, Western liberal govern-

ments or agencies have protested the kidnap-ping or rendition of their nationals by U.S.agents, the protests have not affected diplomat-ic relations. In the case of Maher Arar, theCanadian government asked the U.S. govern-ment a number of times for his return, and weretold it was Canadian agencies which hadflagged him to the U.S. as a suspect in the firstplace. In Italy, police are investigating allega-tions that U.S. intelligence agents kidnappedan Islamic militant in Milan and transportedhim in an American plane to Egypt, where hewas tortured. Italian prosecutors were angryabout his disappearance since they had beenpreparing to prosecute him in Milan.331 Butthere has been no cooling of Italian-U.S. rela-tions over the incident. In Germany, the gov-ernment is investigating allegations that aGerman car salesman from the town of Ulm,traveling to Macedonia for a New Year’s holi-day was seized by Macedonian police at theborder, held incommunicado for weeks withoutcharge, then beaten, stripped, and flown to ajail in Afghanistan controlled by U.S. agents,where he was held and tortured for five monthsbefore being dumped in Albania. 332 AlthoughGerman officials said they believed the manwas innocent, no official protest had beenlodged as of January 2005.

Meanwhile, as described earlier (see p. ????above) there is evidence that the agencies ofsome Western liberal countries have activelycooperated with C.I.A. agents and securityagencies in countries like Egypt and Tunisia,arranging for suspects to be picked up andinterrogated or detained abroad by those agen-cies, and then sharing in the fruits of the inter-rogations.

Finally, it is clear that the governments ofAustria, Canada, Germany, Sweden, Turkey,and the U.K. have themselves sought to deportterrorist suspects to countries where torture is awidespread or systemic problem, including

45


Egypt, Russia, the Philippines, Russia, SriLanka, Syria and Uzbekistan.333

h) New License for Brutal Regimes

At the same time, regimes whose human rightsabuses have, in the past, elicited sharp criticismfrom Western liberal governments are nowbeing tolerated, supported and even bolsteredby those governments.

Since it launched its military campaign inChechnya, Russia’s leaders have characterizedthe armed conflict there as counter terrorism,glossing over the political aspects of it. Butworld leaders were critical of the gross humanrights abuses of the Russian operation, whichhave included the indiscriminate bombing ofcivilian populations, village massacres, disap-pearances, mass arbitrary detentions, and tor-ture. Weeks after the 9/11 attacks, however,democratic leaders like German ChancellorGerhard Schroeder and Italy’s Prime MinisterSilvio Berlusconi were saying that they wouldhave to judge Russian operations in Chechnyadifferently.334

In Egypt governments have ruled under anemergency law continously since 1981 andhave routinely used their authority under thelaw to “arrest people at will and detain themwithout trial for prolonged periods, refer civil-ians to military or exceptional state securitycourts, and prohibit strikes, demonstrations,and public meetings”. On the extension of thelaw in February 2003, a U.S. State Departmentspokesperson stated that the United States“under[stood] and appreciate[d] the Egyptiangovernment’s commitment to combat terrorismand maintain stability”335

In Georgia, where operations against Chechenrebels in the Pankisi Gorge have been brutal,involving extrajudicial execution, disappear-ances, arbitrary detention, and discriminationon the basis of racial and ethnic identity, the

U.S. has established a $64 million “Train andEquip” program “to strengthen Georgia’scounter-terrorism capability”. At least six U.S.military personnel were present in Georgia asof October 2002 to provide training.336 TIMEmagazine has reported that Georgian opera-tives have “disappeared” and killed suspectsbased on “real-time intelligence” provided bythe U.S. Georgian officials have also admittedto the secret and extralegal rendition of indi-viduals into U.S. custody.337

In Indonesia, the U.S. has renewed its linkswith the Indonesian military, which had beencut after the violence orchestrated by that mili-tary in East Timor in 1999. After September 11,2001, the U.S. military training program wasreinstated and a new $50 million programannounced to assist Indonesian security forcesin their counter terrorism efforts. In December2002, a Kuwaiti citizen married to anIndonesian woman was arrested “and handedover to the U.S. authorities as part of an intelli-gence operation involving Indonesia’s intelli-gence service and the C.I.A”.338

In Malaysia, nearly 100 men have been heldfor alleged links to terrorist groups under thecountry’s draconian Internal Security Act (ISA)– some for more than 3 years.339 Prior to 9/11,the U.S. government had been extremely criti-cal of the Malaysian government’s detentionsof opponents under the ISA and relationsbetween the two countries were strained.340

Since then, U.S. officials have praised thedetentions341 and President Bush has referred tothe country as a “beacon of stability”.342 TheU.S. has helped Malaysia to set up theSoutheast Asia Regional Center forCounterterrorism and provided training therefor Malaysian government officials.343 “TheMalaysian government regularly shares intelli-gence information with the U.S. government,and has offered the U.S. access to detainees inMalaysia. When the U.S. interrogated thirteen

46


Malaysian students detained without trial inKarachi, Pakistan, in September 2003, theMalaysian government remained silent ratherthan protest the detentions.”344When the thir-teen returned to Malaysia, the governmentdetained them.345 Detainees who have refused tocooperate with security officials in Malaysiahave been told that they could be transferred toU.S. custody in Guantanamo Bay, Cuba.346

Former British ambassador to Uzbekistan,Craig Murray, has claimed that U.S. agentssent detainees from Afghanistan to that countryto be interrogated using torture. Murray wasremoved from his post after sending a memo tothe British Foreign Minister in which hereported that the C.I.A. station chief inTashkent had “readily acknowledged torturewas deployed [in Uzbekistan] in obtainingintelligence [from U.S. suspects]”. 347 InUzbekistan, Murray has stated, the “partialboiling of a hand or an arm is quite common [ininterrogation]”348 “I have seen post mortemphotos of a corpse. These show that the personwas boiled to death.”349

In Latin America, the U.S. has intensified itssupport of the Colombian military in order tohelp it win a four decade old war against theleftist Revolutionary Army Forces of Colombia(FARC) and the National Liberation Army(ELN).350 The head of the U.S. SouthernCommand told a Congressional panel in March2004 that Washington “must take comprehen-sive measures in our region to combat terror-ism” including, he said, strengthening LatinAmerican militaries. He also suggested thatLatin American countries should be encour-aged to break down legal barriers betweencivilian policing, intelligence functions, andmilitary functions.351 Latin American militaries,in the past, have been responsible for some ofthe worst human rights abuses in the region.

Brutal or repressive regimes have been quick to

point to the current practices of the U.S. to jus-tify their own practices. The Liberian govern-ment claimed that an editor of one of Liberia’sindependent newspapers whom it had arrestedcould be held incommunicado and tried beforea military court since he was an “illegal com-batant” involved an Islamic fundamentalistwar.352 Egypt’s President Mbarak has said“There is no doubt that the events of September11 created a new concept of democracy thatdiffers from the concept that Western statesdefended before these events, especially withregard to freedom of the individual.” The U.S.decision to authorize the use of military tri-bunals in its “war on terror”, he said, “provesthat we were right from the beginning in usingall means, including military tribunals.”

THE ILLUSION OF SECURITY

Myth #9: These initiativesmake us safer.

The global surveillance initiatives that govern-ments have embarked upon do not make usmore secure. They create only the illusion ofsecurity.

Sifting through an ocean of information with anet of bias and faulty logic, they yield outra-geous numbers of false positives – and falsenegatives. The dragnet approach might makethe public feel that something is being done,but the dragnet is easily circumvented by deter-mined terrorists who are either not known toauthorities, or who use identity theft to evadethem.

For the statistically large number of people thatwill be wrongly identified or wrongly assessedas a risk under the system, the consequencescan be dire.

At the same time, the democratic institutionsand protections, which would be the safeguards

47


of individuals’ personal security, are beingweakened. And national sovereignty and theability of national governments to protect citi-zens against the actions of other states (whenthey are willing) are being compromised assecurity functions become more and moredeeply integrated.

The global surveillance dragnet diverts crucialresources and efforts away from the kind ofinvestments that would make people safer.What is required is good information aboutspecific threats, not crude racial profiling anduseless information on the nearly 100 percentof the population that poses no threat whatso-ever.

Good information about specific threats is usu-ally obtained through human, not technologicalintelligence, by agents capable of infiltratingthe circles where these threats exist. As securi-ty experts admitted in the aftermath of 9/11,these were the kind of critical resources thatwere lacking in U.S. security agencies at thattime. There was a dearth of agents who pos-sessed the background and languages relevantto the threat and a dearth of agents on theground collecting human intelligence. Eventranslators were lacking. The Al Qaeda mes-sages that were reportedly intercepted by theNational Security Agency on September 10,2001 (“Tomorrow is zero hour”, “The match isabout to begin”) were not translated until dayslater. Three years after the attacks, more than120,000 hours of recorded telephone calls hadyet to be translated by the F.B.I.353

The global surveillance dragnet alienates thevery communities from whom intelligenceagencies need assistance, making it difficult toget crucial tips from them and difficult torecruit the law enforcement and intelligenceofficers needed from their ranks. The racialprofiling that is endemic to the dragnetapproach harasses and targets these communi-

ties wholesale. Ronald Noble, the blackAmerican who runs the 181-nation Interpolagency, says he himself has been singled outwhen travelling because of his looks:

“I perspire and I’m the head on an inter-national law enforcement agency…You have a lot of abuses that arenever, ever checked.”354

Global surveillance does nothing to address theroot causes of terrorism – for example, pover-ty, dispossession, conflict, repressive govern-ments and human rights abuses. The currentsecurity agenda treats the symptom instead ofthe disease. It proselytizes a skewed and nar-row conception of human security, making ter-rorism – which by any measurement poses farless of a threat to human beings and to democ-racy than any of the above-listed threats – thepreeminent focus.

In fact, the current security agenda exacerbatesglobal insecurity. Its unjust targeting andstereotyping of Muslims, combined with theWest’s rhetoric about a clash of civilizationsand its collusion with repressive regimes – andthe brutal, lawless treatment meted out in theglobal gulag – engender hatred against Westerncountries and their partners, fomenting onlymore fanatical opposition and terrorism.

Myth #10: Guaranteeing securityis the paramount responsibilityof governments.

There is a widely held public opinion that gov-ernments should have known about and pre-vented the 9/11 plot. In fact, the traditional sys-tems of intelligence and law enforcement thatwere in place at the time did yield informationabout the likelihood of an attack on U.S. soil byMuslim extremists using airplanes, and someof the key players in the 9/11 attacks wereunder investigation by the C.I.A. and F.B.I.

48


before the events.355 The Joint Inquiry into thecircumstances surrounding the 9/11 attacksconducted by the U.S. Senate and House intel-ligence committees reported that while theintelligence community did not have informa-tion on the “time, place and specific nature” ofthe 9/11 attacks, it had “amassed a great deal ofvaluable intelligence” that warned of theattacks.356 The community’s failure, accordingto the Joint Inquiry, was its inability

…. to discern the bigger picture… tocapitalize on both the individual andcollective significance of availableinformation…No one will ever knowwhat might have happened had moreconnections been drawn between thesedisparate pieces of information …Theimportant point is that the IntelligenceCommunity, for a variety of reasons,did not bring together and fully appre-ciate a range of information that couldhave greatly enhanced its chances ofuncovering and preventing Usama binLadin’s plan to attack these UnitedStates on September 11, 2001.357

If U.S. agencies could not “see the forest forthe trees” when they had specific informationabout a specific kind of threat and specific indi-viduals, would it have helped them to have hadto sift through information on the lives of hun-dreds of millions of people?

If there was failure in communication or analy-sis on the part of U.S. security agencies, therewas also political failure on the part of theWhite House. While the Bush Administrationrefuses to reveal what it was briefed about andwhen prior to the attacks , sources indicate thatit was briefed,358 and the record shows that ittook no steps to heighten security in appropri-ate areas. Under Attorney General JohnAshcroft, the F.B.I.’s counter-terrorism pro-gram faced pressures for funding cuts. Despite

the numerous intelligence warnings about theimportance of the Al Qaeda threat, the C.I.A.unit focusing on bin Laden could not get thefunding it needed. Lieut. General MichaelHayden, director of the National SecurityAgency (NSA), said that he knew in 2001 thatthe NSA needed to improve its coverage of AlQaeda but that he was unable to obtain theresources for that effort.359

Neither bureaucratic failure nor the failure ofpolitical leadership would have been improvedin any way by mass surveillance of the wholepopulation. The 9/11 experience, itself, showsthat authorities had enough trouble appreciat-ing the significance of the specific, relevantinformation they did have. They did not needthe ocean of general, irrelevant informationthey are now collecting, and very possibly theywould have drowned in it altogether.

Myth #11: At least, these initia-tives are better than doingnothing.

Careful examination shows that the global,mass registration and surveillance initiativesthat have been described in this document arenot “better than doing nothing”. They divertresources away from activities that would pro-vide us with better security, they are not effec-tive, and the harm they do to democracies,individuals, the rule of law, and global securi-ty is not proportional to their utility, or even tothe risk they are supposedly addressing.

It’s time to tell our governments that they areon the wrong track, and to insist that they turnback from this dangerous road they are lead-ing us down.

RESISTING THE REGISTRATIONAND SURVEILLANCE AGENDA

The evidence and analysis in this report paintsan alarming picture of a world that is not only

49


possible, but in the current political climate,probable. And, once the infrastructure that hasbeen described is fully in place, it will beextremely difficult to dismantle it. These kindsof systems naturally accrete in the absence ofsustained resistance. Corporate interests,advances in technology, function creep, andgovernments’ need to prove that flawed sys-tems only require more information in order towork, ensure accretion. If left unchecked, wecould soon find ourselves living under regimesof all-pervasive surveillance.

This is not a global conspiracy, though thereare certainly many agreements on the part ofgovernments to act on different initiatives anda general intention among them to pursue themass surveillance of populations. Rather, thesurveillance agenda is fragmented across poli-cy arenas and driven by a number of interestsin each country, which include, as describedearlier, domestic security, law enforcement,international relations, economic, class, andcorporate interests.

To date, there has been relatively little resist-ance to the security/surveillance agenda on thepart of civil society. The fragmentation of theagenda across policy arenas may be one expla-nation. However, the lack of resistance can alsobe explained by the fact that the issues are tech-nical and multi-faceted, and government mes-saging about the need to provide security ispowerful. Most media reports fail to “connectthe dots” and paint the larger picture that wouldalert the public to what is going on. Measuresare often presented as logical improvements onexisting policing methods and, therefore, rela-tively benign. The critical decision-making thatis being done by governments is regularlyshielded from democratic scrutiny and publicdebate.

The development of global infrastructure sur-veillance for mass registration and surveil-

lance, however, is by no means inevitable. Thisreport is intended to serve as a wake-up call,and to inspire resistance and activism. Tounderstand the world is to change it: all-perva-sive surveillance can only become a reality ifapathy and acquiescence prevail over concernsfor human rights, civil liberties, and democrat-ic standards. If and when public outrage reach-es a critical mass, the initiatives and trendsdescribed in this report will be slowed and thenstopped. This, however, cannot happen withoutwidespread public awareness. Without publicactivism, we are in danger, as the U.K PrivacyCommissioner has said, of “sleep-walking intosurveillance societ[ies]”.360

1. Pockets of Resistance

There are already pockets of resistance.

a) NGOs

Pressure from the Global Internet LibertyCampaign (“GILC”) and others securedamendments to the draft Council of EuropeConvention on Cybercrime and the deletion ofits clauses on mandatory data retention; theGLIC continues to campaign on a host ofissues.361 The E.U. proposal for a bindingFramework Decision on data retention wasexposed by the E.U. group, Statewatch, in2002 and a campaign from the EuropeanDigital Rights Initiative (“EDRi”) saw the pro-posal removed from the E.U. agenda, if onlytemporarily. 362 The resurrection of theFramework Decision in 2004, in the wake ofthe Madrid bombings in March 2004, saw theU.K. group, Privacy International (“PI”), joinEDRi in the campaign against a cross-Europedata retention regime, obtaining a compellingopinion from a London-based law firm whichdetailed how the proposal violated Europeanhuman rights laws. PI also took the lead incrafting and circulating a joint statement call-ing on the European Commission to abandon

50


the proposal. 363 Those signing the statementultimately included 80 European telecommuni-cations companies and over 90 NGOs repre-senting almost two dozen nations in Europeand elsewhere around the globe, though theproposal remains firmly on the table at the timeof writing.364

There is also a developing campaign againstthe global surveillance of movement. PI, alongwith the American Civil Liberties Union(ACLU), Statewatch, EDRi and the Institutefor Public Policy Research, for example, havebeen working together to oppose PNR sharing.They have written an open letter to ICAO andproduced a detailed report on E.U.-U.S. nego-tiations for the transfer of European PNR.365

The TransAtlantic Consumer Dialogue, a coali-tion of more than 60 consumer organizations inthe U.S and Europe have passed a resolutioncalling on the E.U. and U.S. governments tosuspend the sharing of PNR data until muchstronger privacy safeguards are adopted.

There has also been growing resistance innational campaigns around the world to theproposed introduction of national ID cards,mandatory fingerprinting and biometric IDsystems.366

The International Commission of Jurists andothers have called on the U.N. to establish amechanism within the U.N. system to monitorthe effect of anti terrorism measures on humanrights.367

Given that the U.S. is the catalyst and driver ofthe new security agenda around the world,resistance within the United States will be criti-cal to stopping the agenda. Encouragingly, theU.S. is home to some of the most popular andsuccessful resistance. The ACLU and other non-governmental organizations enjoy wide supportin the U.S. in their work against domestic poli-cies and they are fighting on many fronts. TheACLU, for example, has started a campaign

calling on consumers to pressure corporationsregarding the protection of personal informa-tion.368 It has also mounted sustained oppositionto the Total Information Awareness program andsuccessor programs in the U.S.369 It has beenfighting MATRIX,370 CAPPS II371 and working todiscover how the U.S. government’s secretwatch lists operate.372 It has researched andexposed government and private sector syner-gies in the area of surveillance.373

b) Democratic Institutions

Although, to date, much of the resistance andanalysis has come from NGOs with mandatesdedicated to privacy and civil liberties, theirconcerns are beginning to reverberate in demo-cratic institutions.

Data Protection and Privacy Commissioners,for example, have protested incursions madeby the “war on terror” on privacy protectionsen bloc, attempting to alert the rest of society tothe broader dangers ahead, once privacy is vio-lated. E.U. Data Protection Commissionershave opposed successive E.U. proposals andagreements on data retention, on the exchangeof passenger data with the U.S., and on the cre-ation of a biometric population database. At theInternational Conference of Data Protectionand Privacy Commissioners in Australia, inSeptember 2003, participants warned that the“war on terror” is in “danger of underminingdemocracy and freedom by measures designedto defend it”.374 More recently, the Czech DataProtection Officer reminded the public that:

“Privacy is one of the basic values ofhuman life and personal data is themain gateway enabling entry into it.The citizens of countries that experi-enced a period of totalitarian regimeshave that hard experience – when pri-vacy was not considered of value andwas sacrificed to the interest of thestate” 375

51


Concerns about the surveillance agenda arealso filtering into democratic bodies. Multiparty committees in houses of governmentaround the world are taking a critical view ofthe measures that are being brought beforethem, and often acting to defeat or at leastdelay implementation. In Canada, the PublicSafety Act was tabled three times with amend-ments before being passed. In the U.S. therehas been greater scrutiny by Congress of legis-lation augmenting the USA PATRIOT ACT(known as PATRIOT ACT II) than there was ofthe original act. As mentioned earlier in thisreport, the U.S. General Accounting Office hasproduced reports that have detailed and criti-cized CAPPS II and the data mining projects ofthe U.S. government.376 The CAPPS II reportled to the withdrawal of the program. TheOffice of the Inspector General has produced areport that criticized government treatment ofdetainees held on immigration charges.377 In theU.K., there was outspoken opposition in theHouse of Commons from members of all par-ties about the proposal to introduce a U.K.national ID card. In Europe, as described earli-er, the European Parliament has vigorouslyobjected to the deal struck by the E.U.Commission to share E.U. PNR with the U.S.

In a few cases, governments themselves haveacted to protest or roll back laws. In the U.S.,more than 370 local authorities in 41 states havepassed resolutions opposing parts of the USAPATRIOT ACT.378 Brazil has imposed the samefingerprinting on American travelers at its bor-ders that the U.S. imposes on Brazilian citizensunder the U.S.-VISIT program. The new gov-ernment in India has repealed India’s Preventionof Terrorism Act (POTA), adopted in haste inDecember 2001. Citing the fact that POTA hadbeen used to justify gross human rights viola-tions, particularly against Muslims fromKashmir and Gujurat, the new government saidit would continue to combat terrorism but withlaws existing before September 2001.379

Some governments have taken action underpolitical pressure. After sustained public pres-sure and criticism from the mainstream media,the Canadian government agreed to hold a pub-lic inquiry into Canada’s role in Maher Arar’srendition from the U.S. to Syria. However,government authorities are doing their best tolimit scrutiny of their actions, as American andBritish officials also have in the variousinquiries into intelligence on Iraq, the handlingof intelligence leading up to September 11, andthe death of British scientist, Dr. David Kelly.

c) Courts

The courts in a number of countries have struckdown or ruled against a number of antiterror-ism measures.

The House of Lords recently ruled (7 to 1) thatthe detention of foreigners without charge tak-ing place under the U.K. Anti-Terrorism Actwere discriminatory and violated Europeanhuman rights standards against arbitrary deten-tion and discrimination.380 Lord Nichols ofBirkenhead wrote that “[i]ndefinite imprison-ment without charge or trial is anathema in anycountry which observes the rule of law.”381 LordHoffman rejected the government’s contentionthat a derogation from the prohibition on arbi-trary detention was justified on the basis of a“threat to the life of the nation”. “Terrorist vio-lence”, he wrote, “serious as it is, does notthreaten our institutions of government or ourexistence as a civil community… The realthreat to the life of the nation, in the sense of apeople living in accordance with its traditionallaws and political values, comes not from ter-rorism but from [draconian] laws.”382

In Rasul v. Bush, the U.S. Supreme Court heldimportantly that “the federal courts have juris-diction to determine the legality of theExecutive’s potentially indefinite detention ofindividuals who claim to be wholly innocentwrongdoing.”383 In Hamdi v. Rumsfeld the

52


Supreme Court wrote, “a state of war is not ablank check for the President when it comes tothe rights of the Nation’s citizens”. The courtmajority held that Hamdi, a U.S. citizenallegedly captured on the battlefield inAfghanistan, and held incommunicado formore than two years on various military brigswithout charges and trial, had a right to knowthe factual basis for his “enemy combatant”classification, and to rebut these assertions offact before a neutral decision-maker. InRumsfeld v. Padilla, a petition for habeas cor-pus made by a U.S. citizen arrested anddetained in the U.S. was dismissed by theSupreme Court on the basis that it had beenfiled in the wrong court. In the new claim, theFederal District Court ruled in March 2005 that

“the president has no power, neitherexpress nor implied, neither constitu-tional nor statutory, to hold petitioner asan enemy combatant”384

A recent District Court decision has alsofound that the special trials established by thegovernment following the Supreme Court’sdecision in Rasul v. Bush and Hamdi v.Runsfeld, to determine the guilt or innocenceof detainees in Guantanomo Bay, wereunlawful and could not continue in their cur-rent form since the detainees may be “prison-ers of war” and therefore entitled to a higherstandard of justice under the GenevaConventions.385 Finally, in Doe and ACLU v.Ashcroft et al., the Federal District Courtstruck down a provision in the USA PATRIOTACT that gave the government uncheckedauthority to issue “National Security Lettersto obtain sensitive customer records fromInternet service providers and other business-es without judicial oversight. The court alsofound a broad ‘gag’ clause in the provision tobe an unconstitutional ‘prior restraint’ on freespeech, saying ‘democracy abhors unduesecrecy’”.386

Courts in other countries have similarly struckdown anti terrorism laws passed sinceSeptember 11, 2001.387 In Indonesia, a top courthas ruled that that the tough anti terrorism lawNo. 16 used to convict the Bali bombers wasunconstitutional.388 In Austria, the FederalConstitutional Court has held that a statutecompelling telecommunication serviceproviders to implement wiretapping measuresat their own expense is unconstitutional.389

Finally, in Germany, the Constitutional Courtrecently declared portions of a law for telecom-munication interception unconstitutionalbecause it violated the communications secre-cy guaranteed in art. 10 of the German consti-tution. This ruling may have implications fordata retention in Germany.390

2. The Future is in Our Hands

The Universal Declaration of Human Rights isone of the seminal documents of the postWorld War II order, enshrining a collectivecommitment to a new world in which the dig-nity of all persons was to respected andacknowledged as the inalienable birthright ofmankind. Its contents have been incorporatedinto constitutions and treaties around theworld, becoming in the process, internationalcustomary law.

But if the Universal Declaration ushered in anage of human rights, the disregard that govern-ments around the world are now showing forits principles may be the ominous portent ofthat age’s demise. Certainly, its rights-basedprotections for individuals are the antithesis ofthe current risk-based paradigm which govern-ments are now espousing.

This report has identified infringements of noless than half of the minimum standards con-tained in the Declaration. In addition to theright to privacy (art. 12), these include the banon racial discrimination (art. 2), the right to lib-erty and security of person (art. 3), the prohibi-

53


tion of torture, inhumane and degrading treat-ment (art. 5), the right to recognition and equal-ity before the law (arts. 6 and 7), the right to aneffective legal remedy (art. 8), the prohibitionon arbitrary arrest, detention or exile (art. 9),the right to a fair and public hearing by an inde-pendent and impartial tribunal (art. 10), thepresumption of innocence (art. 11), the right tofreedom of movement (art. 13), the right tofreedom of thought, conscience and religion(art. 18), freedom of expression (art. 19), free-dom of peaceful assembly and association (art.20), and the entitlement to a social and interna-tional order in which rights and freedoms canbe fully realized (art. 28).

If human rights and civil liberties are to surviveinto the 21st century, there must be a seachange in political and popular culture. Theresistance that has occurred to date is notenough. Groups and individuals across thewhole spectrum of civil society must play apart. The future is in all of our hands.

54


EndnotesNote: Dates in square brackets after on-lineaddresses refer to the most recent dates the websitesor on-line documents were accessed.

1 Reg Whitaker, The End of Privacy (New York: The NewPress, 1999), p. 25. [Reg Whitaker]

2 Reg Whitaker, TIbid.he End of Privacy, p. 45.

3 Reg Whitaker, ThIbid.e End of Privacy, p. 45.

4 Estanislao Oziewicz, “Shroud lifting on global gulag set up tofight ‘war on terror’”, The Globe & Mail, May 13, 2004, pageA14. [Estanislao Oziewicz]

5 Thomas Mathiesen, On Globalistion of Control: Towards anIntegrated Surveillance System in E.U.rope (London: InstantPrint West, November 1999), p. 3. Available from Statewatch(http://www.statewatch. org, or e-mail [email protected]).[Thomas Mathiesen]

6 “Once the Belgians had decided to limit administrative posts andhigher education to the Tutsi, they were faced with the challengeof deciding exactly who was Tutsi. Physical characteristics identi-fied some, but not for all. Because group affiliation was suppos-edly inherited, genealogy provided the best guide to a person’s sta-tus, but tracing genealogies was time-consuming and could alsobe inaccurate, given that individuals could change category astheir fortunes rose or fell. The Belgians decided that the most effi-cient procedure was simply to register everyone, noting theirgroup affiliation in writing, once and for all. All Rwandans bornsubsequently would also be registered as Tutsi, Hutu, or Twa at thetime of their birth. The system was put into effect in the 1930s.Human Rights Watch, Leave None to Tell the Story: Genocide inRwanda, April 1, 2004.http://www.hrw.org/reports/1999/rwan-da/Geno1-3-09.htm [March 5, 2005].

7 See Office of the Inspector General, United StatesDepartment of Justice, The September 11 Detainees: A Reviewof the Treatment of Aliens Held on Immigration Charges inConnection with the Investigation of the September 11 Attacks,June 2003. http://www.usdoj.gov/oig/special/0306/index.htm[December 30, 2004]. [Office of the Inspector General Reporton Detainees].

8 Federal Register, Final Rule dated August 12, 2002; 8 CFR264. See also, National Security Entry-Exit Registration(NSEERS) Summary Chart, February 25, 2003.h t t p : / / 6 4 . 2 3 3 . 1 6 7 . 1 0 4 / s e a r c h ? q = c a c h e : -34s3QXmzLMJ:www.oiss.wayne.edu/Forms/PDF/NSEERS_SUMMARY_CHART.pdf+NSEERS&hl=en [March 5., 2005].

9 Asian American Legal Defense and Education Fund

(AALDEF), Special Registration: Discrimination andXenophobia as Government Policy (AALDEF,, 2004), p. 1.http://www.aaldef.org/images/01-04_registration.pdf[November 24, 2004].

10 Ibid.

11 Immigration Policy Center, “Targets of Suspicion: TheImpact of Post-9/11 Policies on Muslims, Arabs and SouthAsians in the United States”, Immigration Policy In Focus,Vol. 3, Issue 2 (May 2004) p. 7. http://www.ailf.org/ipc/ipf051704.pdf [December 1, 2004]. See also, FlynnMcRoberts, “Muslim exodus from U.S. unravels tight knitenclaves”, Chicago Tribune, November 18, 2003.

12 The US-VISIT program requirements apply to all visitorsexcept (as of December 2004) Mexican citizens holding “bor-der crossing cards” or “laser visas” and most Canadian citi-zens. See U.S. Department of Homeland Security, US-VISITFact Sheet: U.S.-Canada Land Borders, and US-VISIT FactSheet: U.S.-Mexico Land Borders., available online athttp://www.dhs.gov/dhspublic/interapp/editorial/editori-al_0435.xml [December 30, 2004].

13 Associated Press, “U.S. eye scan plan under scrutiny: U.S.demanding biometric technology in passports; world may notbe ready”, The Okanogan, August 24, 2003.

14 See, Statewatch, “Biometrics – the E.U. takes another stepdown the road to 1984”, Statewatch News Online, September2003. http://www.statewatch.org/news/2003/sep/19E.U.bio-metric.htm [March 5, 2005]; E.U.ractive, News, February 7,2005. http://www.E.U.euractiv.com/Article?tcmuri=tcm:29-133939-16&type=News. [February 7, 2005].

15 Lynda Hurst, “Bio-Security Still a Fantasy; AirportScreening Won’t Work: Experts; No information to identifyterrorists”, The Toronto Star, January 24, 2004, p. A1. [LyndaHurst]

16 Ryan Singel, “CAPPS II stands alone, feds say”, Wired News,January 13, 2004. http://www.wired.com/news/priva-cy/0,1848,61891,00.html?tw=wn_story_related [March 6,2005]. [Ryan Singel]

17 Eric Lichtblau and John Markoff, “U.S. Nearing Deal onWay to Track Foreign Visitors”, New York Times, May 24,2004. http://travel2.nytimes.com/mem/travel/article-page.html?res=9903EEDD173EF937A15756C0A9629C8B63[December 23, 2004]. [Lichtblau and Markoff]. GET key cite?BORDC?that says foreign and commercial databases

18 The Federal Register Notice states that “[i]t is . . . anticipat-ed that CAPPS II will be linked with the U.S. Visitor andImmigrant Status Indicator Technology (US-VISIT) programat such time as both programs become fully operational, inorder that processes at both border and airport points of entryand exit are consistent.” See also, Questions Submitted for theRecord by Senator Ron Wyden, Oversight Hearing forTransportation Security, September 9, 2003.

55


http://www.eff.org/Privacy/cappsii/20030909_wyden_ques-tions.php [March 6, 2005]. “U.S. officials said they are con-sidering merging the two programs [U.S. VISIT and CAPPSII].” Sara Kehaulani Goo, “U.S. to Push for PassengerRecords: Travel Database to Rate Security Risk Factors,Washington Post, January 12, 2004, p. A01; and Interim FinalRule and Notice, 69 Federal Register 467 (January 5, 2004).http://a257.g.akamaitech.net/7/257/2422/05jan20040800/edocket.access.gpo.gov/2004/pdf/03-32331.pdf [January, 2005].The rule “requires the integration of all databases that processor contain information on aliens”. Compare, Ryan Singel,supra note 16.

19 Lynda Hurst, supra note 15. See also, ACLU, “ACLUCriticizes Plans to Go Forward with CAPPS II, Calls DragnetProfiling Approach Fake Security on the Cheap”, MediaRelease, January 12, 2004. http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=14699&c=206 [March 4, 2005]. Theterm “black box” is also used to refer to Internet monitoringdevices on ISP networks to monitor user traffic. Little is pub-licly known about the workings of these, except that they arelike the “‘packet sniffers’ typically employed by computer net-work operators for security and maintenance purposes. Packetsniffers are specialized software programs running in a com-puter that is hooked into the network at a location where it canmonitor traffic flowing in and out of systems. Sniffers canmonitor the entire data stream searching for key words, phras-es or strings such as net addresses or e-mail accounts. They canthen record or retransmit for further review anything that fitstheir search criteria. Black boxes are apparently connecteddirectly to government agencies by high speed links in somecountries. Privacy International, Privacy and Human Rights2003, Executive Summary. http://www.privacy international.org/survey/phr2003/threats.htm [March 5, 2005, 2005].

20 Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and ObstructTerrorism (USA PATRIOT ACT) Act of 2001, PL 107-56, s. 215(Washington: GPO, 2001). http://thomas.loc.gov [November25, 2004].

21 Due to public concerns expressed about privacy, theLockheed Martin group was eventually only awarded a con-tract to assist in the census by providing advanced systems andprocessing technologies. Statistics Canada, “Role of privatecontractors in the census”, n.d. http://www12.statcan.ca/eng-lish/census06/info/outsource/outsourcing.cfm [December 20,2004].

22 See British Columbia Ministry of Health Services,“Government Moves to Improve MSP and Pharmacare Services”,News Release, November 4, 2004: and “Backgrounder: MaximusBC/Alternative Service Delivery”, both available on-line athttp://www.healthservices.gov.bc.ca/msp/ [December 20, 2004].

23 B.C. Hydro, “B.C. Hydro and Accenture AgreementDesigned to Save $250 Million in Costs”, News Release,February 28, 2003. http://www.bchydro.com/news/2003/feb/release4622.html [December 20, 2004].

24 Steven Donziger, “The Twilight-Zone Court, The Nation,September 22, 2003.

25 See Patrick Healy, “Colleges giving probers data on foreignstudents’ finances”, Boston Globe, Oct. 3, 2001. AmericanAssociation of Collegiate Registrars and Admissions Officers,“Preliminary Results of the AACRAO Survey on CampusConsequences of the September 11 Attacks”, October 4, 2001.http://www.aacrao.org/transcript/index.cfm [December 19,2004].

26 Stephanie Stoughton, “Poll: Firms Relaxed Privacy Rules”,Boston Globe, October 8, 2001.

27 Eunice Moscoso, “Demand for data by feds on rise”, CoxWashington Bureau, August 17, 2003. http://www.federalob-server.com/print.php?aid=6378 [December 18, 2004].

28 See the website of InfraGard: Guarding the Nation’sInfrastructure, http://www.infragard.net [November 24, 2004].As of November 22, 2004, the number of InfraGard memberswas given as 14,536.

29 Chris Seper, “Combating Cybercrime: FBI’s InfraGardProgram Promotes Security Awareness”, Cleveland PlainDealer, Nov. 4, 2002. http://www.infragard.net [November 24,2004].

30 Ryan Singel, “JetBlue Shared Passenger Data”, Wired News,September 18, 2003; Ryan Singel and Noah Schachtman,“Army Admits to Using JetBlue Data”, Wired News,September 23, 2003. http://www.wired.com/news/privacy[November 24, 2004].

31 Electronic Privacy Information Center, “Northwest Airlinesgave NASA Personal Info on Millions of Passengers; DisclosureViolated Privacy Policy”, Press release, Jan. 18, 2004.http://www.epic.org/privacy/airtravel/nasa/pr1.18.04.html[November 24, 2004]. See also: Sara Kehaulani Goo,“Northwest Gave U.S. Data on Passengers”, Washington Post,January 18, 2004. http://www.washingtonpost.com/wp-dyn/arti-cles/A26422-2004Jan17.html [November 24, 2004].

32 Sara Kehaulani Goo, “American Airlines RevealedPassenger Data”, The Washington Post, April 10, 2004, p. D12.http://www.washingtonpost.com/wp-dyn/articles/A720-2004Apr9.html [December 7, 2004].

33 John Schwartz and Micheline Maynard, “FBI got Records onAir Travelers”, New York Times, May 1, 2004.

34 DoubleClick, “Abacus B2C Alliance”,

http://www.doubleclick.com/us/products/direct_marketing/abacus_b2C_alliance/ [December 21, 2004].

35 Jim Krane (Associated Press), “Information bank reachesinto Latin America: U.S. buys access to personal data”, DailyNews (Los Angeles), April 20, 2003. http://portal-pfc.org/eng-lish/articles/2003/039.html [December 21, 2004]. According to

56


ACLU researchers, no country in Latin America has protec-tions in place against the export of data.

36 Ibid.

37 In the novel Brave New World, a totalitarian government con-trols society through the use of science and technology. AldousHuxley, Brave New World, 1932, 1946 (New York: HarperCollins, 1998).

38 “Smart cards make inroads into Asia”, Asian Times, October2004. [“Smart cards make inroads in Asia”]

39 House of Commons Canada, Interim Report of the StandingCommittee on Citizenship and Immigration, A NationalIdentity Card for Canada?, October 2003, pp. 16-23. [ANational Identity Card for Canada?] http://www.parl.gc.ca/InfocomDoc/Documents/37/2/parlbus/commbus/house/reports/cimmrp06-e.htm [November 24, 2004].

40 Initially, the U.S. exempted 28 visa waiver countries from therequirements of the U.S. VISIT program provided they imple-mented biometric passports by an October 2004 deadline.However, when it became clear that countries were not goingto be able to meet the deadline, the U.S. VISIT program wasextended to all countries with the exception of Canada, whichenjoys a partial exemption in respect of Canadian citizens trav-elling to the U.S. without work or student visas. Once visawaiver countries implement machine readable biometric pass-ports, fingerprinting of their nationals under the U.S. VISITprogram may stop, but it may also continue if the passportsadopted do not incorporate a fingerprint biometric. Seehttp://news.bbc.co.uk/2/hi/americas/3595221.htm [November2004]; Tim Harper, “U.S. to Screen Canadians”, The TorontoStar, January 6, 2004.

41 See Statewatch, “E.U. Summit: Agreement on “harmonised”biometric identification linked to E.U. databases”, StatewatchNews online, June 2003. http://www.statewatch.org/news/2003/jun/22bio.htm [December 13, 2004].

42 At the outset of its deliberations, ICAO promised to designstandards that upheld national data protection laws and cultur-al practices in the domestic and transborder use of information,but it did none of this. See Open Letter to ICAO, March 30,2004. www.privacyinternational.org/ issues/terrorism/rpt/icao-letter.pdf [March 5, 2005].

43 On December 13, 2004, the E.U. General Affairs Counciladopted a regulation on mandatory facial images and finger-prints in E.U. passports. See Euractive, “Newly issued pass-ports to include fingerprints”, December 15, 2004.http://www.euractiv.com/Article?tcmuri=tcm:29-133440-16&type=ShortNews [March 5, 2004].

44 International Civil Aviation Organization, “BiometricTechnology in Machine Readable Travel Documents – TheICAO Blueprint”, FAL-12-WP/4, 5/11/03, Presented to theTwelfth Meeting of the Facilitation Division of theInternational Civil Aviation Organization, March 22-April 2,

2004, Cairo, Egypt. http://www.icao.int/icao/en/atb/fal/fal12/documentation/fal12wp004_en.pdf [December 3, 2004].

45 See A National Identity Card for Canada?, supra note 39.

46 With the release of the Commons Committee report in earlyOctober, Citizenship Minister Denis Coderre was immediatelyput on the defensive. See, for example, Tyler Hamilton,“Security-as-Theatre, Intrusive, Ineffective Smoke and MirrorsSecurity Fails” The Toronto Star, September 1, 2003, p. D1.[Tyler Hamilton] At a public forum on national ID cards organ-ized by Coderre’s Ministry and held on October 7 and 8, 2003,civil society groups and privacy commissioners criticizedCoderre’s proposal to introduce a national ID card, and also theheavy participation of industry in the forum.

47 The Canadian Press, “Ottawa to introduce biometric pass-ports”, The Toronto Star, July 18, 2004.

48 Ibid.

49 The U.S. Congress set October 26, 2004 as the deadline bywhich both U.S. and foreign passports were to be upgraded toinclude biometric identification, but the U.S. along with othercountries were unable to meet the deadline. See, “Iris-recogni-tion will become common at border crossings into the UnitedStates by the end of the year”, National Post, August 28, 2004,p. FP7; Tyler Hamilton, supra note 46.

50 Kamal Ahmed, “Ministers to dump ‘useless’ identity card”,The Observer, October 12, 2003.

51 At the G8 meeting, the U.K. Home Secretary said that bio-metric data would be included in U.K passports from 2006.Kristina Merkner and Elise Kissling, “Germany to shape E.U.passport rules”, Frankfurter Allgemeine Zeitung (F.A.Z.), June27, 2003.

52 Tanya Branigan, “Lords could sink ID Bill admits Clarke”,The Guardian, February 11, 2005. http://www.guardian.co.uk/idcards/story/ 0,15642,1410578,00.html [March 6,2005].

53 BBC News, “Concern over biometric passports”, March 30,2004. http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/technology/3582461.stm [April 22,2004].

54 Government of the United States, “Face Recognition forIdentity Confirmation – Inspection of Travel Documents”,FAL/12-WP/63, 10/3/04, Presented to the Twelfth Meeting ofthe Facilitation Division of the International Civil AviationOrganization, March 22-April 2, 2004, Cairo, Egypt.http://www.icao.int/icao/en/atb/fal/fal12/documentation/fal12wp063_en.pdf

[November 25, 2004].

55 Lynda Hurst, supra note15, p. A1.

57


56 David Colker and Joseph Menn, “Choicepoint CEO hadDenied any Earlier Breach of Database”, Los Angeles Times,March 3, 2005. http://www.newsday.com/business/la-fi-choi-cepoint3mar03,0,6289300.story?coll=ny-business-headlines[March 6, 2005].

57 Lynda Hurst, supra note 15, p. A1.

58 See, for example, Government of Canada, “The CanadianAdvance Passenger Information Program”, FAL/12-WP/38,11/12/03, Presented to the Twelfth Meeting of theFacilitation Division of the International Civil AviationOrganization, March 22-April 2, 2004, Cairo, Egypt, point 1.3.http://www.icao.int/icao/en/atb/fal/fal12/documentation/fal12wp038_en.pdf [November 25, 2004] [Canadian Submission onPNR to ICAO)]; Tonda MacCharles, “Air travellers facescreening; Canadian program aims at terrorist ‘risk scoring’system; Information would be shared with U.S., documentsshow”, Toronto Star, January 17. 2004. [Tonda McCharles].

59 Privacy International, First Report on Towards anInternational Infrastructure for Surveillance of Movement:Transferring Privacy: the Transfer of Passenger Records andthe Abdication of Privacy Protection, February 2004, p. 2.[Transferring Privacy]

60 See, for example, “Directive 95/46/EC of the EuropeanParliament and of the Council of 24 October 1995 on the pro-tection of individuals with regard to the processing of person-al data and on the free movement of such data”, OfficialJournal L 281, 23/11/1995, pp. 0031-0050. http://europa.eu.int/comm/internal_market/privacy/law_en.htm[December 13, 2004]; and the Canadian Personal InformationProtection and Electronic Documents Act, 2000.http://www.privcom.gc.ca/legislation/02_06_01_e.asp[November 25, 2004]. Habeas corpus laws in Latin Americacontain similar principles.

61 The Smart Border Declaration, December 12, 2001.h t t p : / / w w w. d f a i t - m a e c i . g c . c a / c a n - a m / m e n u -en.asp?act=v&mid=1&cat=10&did=1669 [November 30,2004]. Action Plan for Creating a Secure and Smart Border,h t t p : / / w w w. d f a i t - m a e c i . g c . c a / c a n - a m / m e n u -en.asp?act=v&mid=1&cat=10&did=1670 [November 30,2004].[Smart Border Action Plan]

62 An Act to amend the Aeronautics Act, 2001, c. 38, s. 1.http://laws.just. ice.gc.ca/en/2001/38/text.html [November 25,2004].

63 Transferring Privacy, supra note 59, p. i.

64 “E.U.-US PNR: Council to ignore parliament and go aheadwith “deal”, Statewatch News Online, April 2004.http://www.statewatch.org/news/2004/apr/13ep-vote-pnr-court.htm. [March 2005]. [Council to ignore parliament]

65 “All the national authorities competent for data protection inEurope have declared these transfers incompatible withEuropean privacy laws.” Letter from Graham Watson MEP,

Enrique Baron Crispo MEP, and Johanna Boogerd-QuaakMEP, rapporteur, to fellow Members of the EuropeanParliament, dated April, 2004 [MEP letter]. See alsoTransferring Privacy, supra note 59, p. 2.

66 Transferring Privacy, supra note 59, p. 5.

67 MEP letter, supra note 65.

68 Ibid.

69 In the current agreement, the retention period is 3.5 years.Transferring Privacy, supra note 59, p. 11.

70 Transferring Privacy, supra note 53, p. 10.

71 [Council to ignore parliament], supra note 64.

72 Ian Black, “E.U. hands over data on air travelers”, TheGuardian, May 18, 2004.

73 See Transferring Privacy, supra note 59, pp. 5-9; andPrivacy International, “Report on Transfers of Air PassengerData to the U.S. Department of Homeland Security”, MediaRelease, February 2, 2004.

74 See Statewatch, Observatory on E.U. PNR Scheme. http://www.statewatch.org./eu-pnrobservatory.htm [March 2005].

75 “In September 2003, the Commission decided to acceleratework on developing an international arrangement for PNR datatransfers within ICAO. The Commission services have pre-pared a working paper to this effect that will be submitted bythe Community and its Member States to ICAO shortly.”Commission of the European Communities, COMMUNICA-TION FROM THE COMMISSION TO THE COUNCIL ANDTHE PARLIAMENT: Transfer of Air Passenger Name Record(PNR) Data: A Global E.U. Approach, Brussels: EuropeanUnion, 2003,COM(2003) 826 final, December 16. EuropeanCommunity and its Member States, “An InternationalFramework for the Transfer of Passenger Name Record (PNR)Data”, FAL/12-WP/75, 15/3/04, Presented to the TwelfthMeeting of the Facilitation Division of the International CivilAviation Organization, March 22-April 2, 2004, Cairo, Egypt.http://www.icao.int/icao/en/atb/fal/fal12/documentation/fal12wp075_en.pdf [November 25, 2004]. [E.U. submission toICAO]

76 Ibid., point 1.1.

77 Canadian Submission on PNR to ICAO, supra note 58, point1.3. See also, Beth Gorham, “Domestic Passengers to bescreened: Ottawa looking at kinds of information that can becollected”, The Vancouver Sun, January 31, 2004, p. A9,reporting plans to expand the Canada Customs and RevenueAgency database on air passengers on incoming internationalflights to passengers arriving by bus, boat and train.

78 Under the Canadian Public Safety Act.

58


79 Spokeperson Suzanne Luber, said the new program replacingthe Computer Assisted Passenger Prescreening Systems(CAPPS II) will cover all passengers traveling to and from theUnited States and within the country. Tim Harper, “U.S. ditch-es travel surveillance plan”, The Toronto Star, July 16, 2004.

80 David Blunkett, U.K. Home Secretary, has pushed a bio-metric identifier for every individual in the U.K. that wouldbe linked to a national database, by saying it would allow theBritish “the freedom to do easily things like travel to Floridaon holiday.” But, of course, they could travel to Florida easi-ly before. Statewatch, “UK: “The Government intends tointroduce a national compulsory ID cards scheme using anindividual biometric identifier linked to a new national data-base” Statewatch News Online, April 2004. http://www.state-watch.org/news/2004/apr/18uk-id-cards.htm [December 21,2004].

81 John Lettice, “Got a ticket? Get a record. E.U.-US data han-dover deal leaks”, The Register, February 3, 2004.http://www.theregister.co.uk/2004/02/03/got_a_ticket_get/[December 21, 2004].

82 Three examples of such legislation are the USA PATRIOTACT, the Colombian Anti-terrorism Act, and the CanadianAnti-terrorism Act.

83 American Civil Liberties Union, The Surveillance-IndustrialComplex: How the American Government is ConscriptingBusinesses and Individuals in the Construction of aSurveillance Society, written by Jay Stanley (New York:ACLU, 2004), p. 14. http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=16226&c=207 [November 22, 2004].[ACLU, The Surveillance Industrial Complex]

84 ACLU, The Surveillance-Industrial Complex, supra note 83,p. 14.

85 Kevin Poulsen, “War of Words Rages over Internet Taps”,Security Focus, April 14, 2004. http://www.securityfocus.com/news/8454 [November 25, 2004]. [Kevin Poulsen]

86 United States, The National Strategy to Secure Cyberspace,February 2003. http://www.whitehouse.gov/pcipb/ [November25, 2004].

87 These included Albania, Armenia, Austria, Azerbaijan,Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus,Czech Republic, Denmark, Estonia, Finland, Georgia,Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,Liechtenstein, Lithuania, Luxembourg, Malta, Moldova,Monaco, Netherlands, Norway, Poland, Portugal, Romania,Russia, San Marino, Serbia and Montenegro, Slovakia,Slovenia, Spain, Sweden, Switzerland, the former YugoslavRepublic of Macedonia, Turkey, Ukraine and the UnitedKingdom.

88 Council of Europe, Convention on Cybercrime (Budapest:2001), arts. 20 and 21. See also art.1 definitions of “computersystem” and “service provider”. http://conventions.coe.int/

Treaty/en/Treaties/Html/185.htm [November 25, 2004].[Convention on Cybercrime]

89 Ibid., arts. 16, 20 and 21.

90 Ibid., arts. 16 and 17.

91 Ibid., arts. 25(4) and (5), and 27.

92 See Kevin Poulsen, supra note 86 for a description of whatis happening in the U.S. In Canada, the federal governmentreleased a consultation document on “lawful access” in 2002which suggested that service providers would have to buildsurveillance capacity into their systems. Department of Justice,Industry Canada and Solicitor General Canada, “LawfulAccess – Consultation Document”, August 25, 2002.http://www.canada.justice.gc.ca/en/cons/la_al/consultation_index.html [November 25, 2004]. The Canadian government isplanning to table lawful access legislation in 2005.

93 See “Memorandum of Understanding concerning the lawfulinterception of telecommunications”, ENFOPOL 112,10037/95, Limite, Brussels, 25.11.95.

94 Convention on Cybercrime, supra note 88.

95 See Privacy International, “Privacy and Human Rights 2003,Executive Summary”, pps. 18 and 19. http://www.privacyin-ternational.org/survey/ phr2003/threats.htm [March 5, 2005].

96 Originating from a G8 ministerial sub-group.

97 This was among more than 40 demands. See Statewatch,“Text of U.S. Letter from Bush with Demands for E.U. forCooperation”, Statewatch News Online. http://www.state-watch.org/news/2001/nov/06uslet.htm [March 5, 2005].

98 See Statewatch, “Data retention comes to roost – telephoneand internet privacy to be abolished”, Statewatch News Online.http://www.statewatch.org/news/2004/apr/21dataretention.htm[March 5, 2005]. See also, “E.U.: data retention to be ‘com-pulsory’ for 12-24 months”, Statewatch News Online.http://www.statewatch.org/news/aug/o5datafd1.htm [February2005].

99 David Akin, “Arrests key win for NSA hackers”, The Globe& Mail, April 6, 2004.

100 ECHELON is a secret program but information about it hasbeen exposed in a 1996 book by Nicky Hager, called SecretPower: New Zealand’s role in the International Spy Network(Nelson, New Zealand: Craig Potton Publishing, 1996). Seealso European Parliament, Report on the existence of a globalsystem for the interception of private and commercial commu-nications (ECHELON interception system) 2001/2098(INI),Final A5-0264/2001 PAR 1, July 11, 2001.http://www.europarl.eu.int/tempcom/echelon/pdf/rapport_ech-elon_en.pdf [December 13, 2004].

101 United Nations Security Council, Resolution 1373 (2001),

59


S/RES/1373 (2001). http://www.un.org/Docs/sc/commit-tees/1373/resolutions.html [December 9, 2004].

102 The U.S. Money Laundering Strategy of 2003 deals exten-sively with terrorist financing. See http://www.treas.gov/offices/enforcement/publications/ ml2003.pdf. One of the ‘SixKey Objectives’ of the Strategy is “establishing and promotinginternational standards to be adopted by countries” and “ensur-ing that countries throughout the world consistently implementthese international standards”. See further, the work of theFinancial Action Task Force (FATF), the Egmont Group ofFinancial Intelligence Units, the G-20 and the InternationalFinancial Institutions, all of which provided a framework forcombating money laundering before 9/11. This framework hasbeen expanded to address terrorist financing and envisagessanctions for non-cooperating states.

103 See http://europa.eu.int/comm/external_relations/un/docs/eu1373.pdf [March 5, 2005]

104 Unless otherwise noted, dollar figures in this document arein U.S. dollars.

105 USA PATRIOT ACT, supra note 20, s. 365.


107 See further, 2002 FATF guidelines entitled “International BestPractices for Combating the Abuse of Non-Profit Organizations”.http://www1.oecd.org/fatf/pdf/SR8-NPO_en.pdf. [February2005]. See also, Statewatch “Charities and NGOs targeted in “waron terror”, Statewatch News Online, January2005.http://www.statewatch.org/news/2005/jan/08charities.htm[February 2005].

108 The Schengen Information System contains records on peo-ple wanted by the police or judicial authorities, people to berefused entry at external borders (mainly rejected asylumapplicants and people subject to deportation orders), people tobe placed under surveillance, and on stolen vehicles, docu-ments, works of art and other objects. As of 2004, there arealready some 15 million records in the SIS and 125,000 accesspoints.

109 Sources for MATRIX include records on property ownership,FAA pilot licenses and aircraft ownership, Coast Guard registeredvessels, sexual offenders lists, federal terrorist watch lists, corpo-ration filings, bankruptcy filings, Uniform Commercial Code fil-ings, and professional licenses. See Associated Press, “Earlydatabase project yielded 120,000 suspects; Scoring system citedfor Matrix project spurs privacy worries”, May 21, 2004.http://www.cnn.com/2004/LAW/05/20/terror.database.ap/[November 25, 2004].

110 Seisint Inc., “Matrix Michigan Briefing”, May 8, 2003, slideentitled “Seisint’s Core Capabilities” (document obtainedthrough open records request filed by ACLU), cited in ACLU,The Surveillance-Industrial Complex, supra note 83, p. 24.

111 Jim Bronskill, “Canada’s justice supercomputer plan hitssnag”, The Globe & Mail, April 19, 2004.

112 Statewatch, “Proposed exchange of personal data betweenEuropol and U.S.A. evades E.U. data protection rights and pro-tections”, Statewatch News Online, November 2002.http://www.statewatch.org/news/2002/nov/12eurousa.htm[December 13, 2004].

113 Statewatch, “E.U.: Council capitulates and releases draftE.U.-US agreements”, Statewatch News Online.http://www.statewatch.org/news/2003/may/06useu.htm.[February 2005]. On January 3, 2005 The Guardian newspaperreported that two organisations in the U.K. set up to help thePalestinian people had their bank accounts abruptly closedwithout explanation. Both groups claimed their targeting waspolitical. The Palestine Solidarity Campaign, a long estab-lished group, had its account closed by the Alliance &Leicester Bank in July 2004. Zoe Mars, the treasurer for thePSC, said that at the end of 2003 the group sent £750 to a med-ical charity in Palestine. Five months later it received a letterfrom its bank saying the transaction had been interrupted bythe US treasury, which wanted more information on the trans-fer. The money eventually went through, but the incident rais-es important questions about the surveillance of financial trans-actions by the U.S. government. See Faisal al Yafai,“Palestinian Aid Groups’ Accounts Closed”, The Guardian,January 3, 2005. http://www.guardian.co.uk/print/0%2C3858%2C5094894-103690%2C00.html [March 5,2005]; and Faisal al Yafai, “U-turn over Palestinian helpgroup”, The Guardian, January 10, 2005.http://www.guardian.co.uk/print/0%2C3858%2C5099255-103690%2C00.html [March 5, 2005].

114 Smart Border Action Plan, supra note 61. See also, Securingan Open Society: Canada’s National Security Policy, April2004.

115 Paul Weinberg, “Global agreements threaten media, priva-cy”, Rabble, October 19, 2004. http://www.rabble.ca/news_full_story.shtml?x=34664 [November 24, 2004]. Seealso John Lettice, “Servers Seized By FBI Returned – but whowanted what?”, The Register, October 14, 2004.h t t p : / / w w w . t h e r e g i s t e r . c o . u k / 2 0 0 4 / 1 0 / 1 4 /indymedia_servers_back/ [March 5, 2005]. See also, JohnLettice, “Home Office in frame over FBI’s London serverseizures”, The Register, October 11, 2004. http://www.thereg-ister.co.uk/2004/10/14/indymedia_servers_back/ [February 27,2005].

116 George Orwell, Nineteen Eighty-Four, 1949 (London,Penguin Classics: 2000), p. 5.

117 Reg Whitaker, supra note 1, p. 25. Quotes are given inreverse order.

118 Ibid., p. 26, citing Owen Lattimore, Ordeal by Slander(Boston: Little, Brown, 1950).

119 Ibid., p. 26.

60


120 Michael Sniffen, “Controversial Terror Research Lives On”,Washington Post, February 23, 2004. http://www.washington-post .com/wp-dyn/ar t ic les /A63582-2004Feb23.html[November 26, 2004]. [Michael Sniffen]

121 Ibid.

122 Ibid.

123 Ibid.

124 ACLU, The Surveillance-Industrial Complex, supra note 83,p. 24. See also Shannon R. Anderson, “Total InformationAwareness and Beyond: The Dangers of Using Data MiningTechnology to Prevent Terrorism”, Bill of Rights DefenseCommittee, July 2004. http://www.bordc.org/ [November 26,2004]; and Associated Press, “Congress hides parts of U.S.spying project in other government agencies”, The Daily News(Kamloops), September 26, 2003.

125 Michael Sniffen, supra note 115.

126 United States General Accounting Office, Data Mining:Federal Efforts Cover a Wide Range of Uses, GAO-04-548,May 2004. http://www.gao.gov/new.items/d04548.pdf. Citedin ACLU, The Surveillance-Industrial Complex, supra note 83,p. 24. The CIA and NSA did not participate in the GOA survey.


128 Electronic Privacy Information Center, “PassengerProfiling: Overview”, 2004. http://www.epic.org/privacy/air-travel/profiling.html [March 5, 2005].

129 Sara Kehaulani Goo, “U.S. to Push Airlines for PassengerRecords”, The Washington Post, January 12, 2004, p. A01.

130 Tim Harper, supra note 79.

131 United States General Accounting Office, ComputerAssisted Passenger Prescreening System Faces SignificantImplementation Challenges, GAO-04-385, February 2004.http://www.gao.gov/cgi-bin/getrpt?GAO-04-385 [November26, 2004].

132 Mimi Hall and Barbara DeLollis, “Plan to collect flier datacanceled”, USA TODAY, July 14, 2004.

133 Sara Kehaulani Goo and Robert O’Harrow Jr., “New AirlineScreening System Postponed; Controversy Over Privacy Leadsto CAPPS II Paring, Delay Until After the Election”, TheWashington Post, July 16, 2004, p. A02. http://www.washing-tonpost.com/wp-dyn/articles/A53320-2004Jul15.html[December 24, 2004]. [Goo and O’Harrow]

134 Tim Harper, supra note 79.

135 See Matthew L. Wald, “U. S. Wants Air Traveler Files forSecurity Test”, The New York Times, September 22, 2004; and

U.S. Department of Homeland Security, TransportationSecurity Administration, “TSA To Test New Passenger Pre-Screening System”, Press Release, August 26, 2004.ht tp: / /www.tsa.gov/publ ic/display?theme=44&con-tent=09000519800c6c77 [December 9, 2004].

136 Ryan Singel, “Secure Flight gets wary welcome”. WiredNews, August 27, 2004. http://www.wired.com/news/priva-cy/0,1848,64748,00.html [March 6, 2005].

137 Tonda MacCharles, “Air travellers face screening: Canadianprogram aims at terrorist ‘risk scoring’ system”, supra note 54.Under the Passenger Information (Customs) Regulations[SOR/2003-219] of the Customs Act, Canada is collecting pas-senger information for incoming flights, and storing this infor-mation for analysis for six years. The Public Safety Act, 2002[2004, c. 15], allows the collection of passenger informationfor outgoing and domestic flights, as well as for incomingflights. The Canadian Risk Assessment Centre has access to theformer and the latter. Beth Gorman, “Domestic passengers tobe screened: Ottawa looking at kinds of information that can becollected”, Vancouver Sun, January 31, 2004.

138 Tonda MacCharles, supra note 58.

139 Statewatch, “GERMANY: Police “trawling” for suspect for-eigners”, Statewatch Bulletin, vol. 12, no. 1 (Jan-Feb 2002), p6.

140 Goo and O’Harrow, supra note 133.

141 Letter from Joseph Lieberman and Susan Collins of the U.S.Senate to The Honorable Asa Hutchinson, Under Secretary forBorder and Transportation Security, U.S. Department ofHomeland Security, dated April 14, 2004. The text of this let-ter is included in a press release of the Senate Committee onGovernmental Affairs. http://govt-aff.senate.gov/index.cfm?FuseAction=PressReleases.Detail&Affiliation=C& PressRelease_id=709&Month=4&Year=2004[November 26, 2004].

142 In 2002 the E.U. drew-up recommendations to the Councilon the use of “terrorist profiling”… “putting together a set ofphysical, psychological or behavioural variables, which havebeen identified as typical of persons involved in terrorist activ-ities and which may have some predictive value in thatrespect”. See E.U. Council doc.: 11858/3/02 REV 3, 18.12.02.http://register.consilium.eu.int/pdf/en/02/st11/11858-r3en2.pdf. The UK and Germany are among a number of coun-tries participating in an expert group on “terrorist profiling”with Europol . See E.U. Council doc.: 7846/04, 30.3.04.http://register.consilium.eu.int/pdf/en/04/st07/st07846.en04.pdf [February, 2005]. The E.U. is also apparently running a secretprogramme on “radicalism and recruitment”, targeting Muslimcommunities’ places of education and worship. The E.U.Network of Independent Experts in Fundamental Rights hasserious concerns about the development of terrorist profiles. Itargued that profiling by police or immigration authorities ofpotential terrorists on the basis of characteristics such as psy-cho-sociological features, nationality or birthplace “presents a

61


major risk of discrimination”. It further argued that in order forprofiling to be acceptable, a statistical link would have to beproven between the defined characteristics and the risk of ter-rorism, a link which at present has yet to be demonstrated. SeeE.U. Network of Independent Experts in Fundamental Rightsthematic report 2003. http://www.statewatch.org/news/2003/apr/CFR-CDF.ThemComment1.pdf [December 2004].

143 For Arar’s story see Canadian Broadcasting Corporation,“Maher Arar: Statement”, CBC News Online, November 4, 2003.http://www.cbc.ca/news/background/arar/arar_statement.html[March 5, 2005]. See also, pleadings in Arar v. Ashcroft et al..http://64.233.167.104/search?q=cache:Kf5nduLfN4sJ:www.ccr-n y . o r g / v 2 / l e g a l / s e p t e m b e r _ 1 1 t h / d o c s /ArarComplaint.pdf+Center+for+constitutional+rights+arar&hl=en [March 5, 2005].

144 Solidarity Network, ATT0013.

145 It was the same incident. See Testimony before theCommission of Inquiry into the Actions of Canadian Officialsin Relation to Maher Arar, Public Hearing, July 5, 2004.http://www.ararcommission.ca/eng/11e.htm [March 5, 2005].Kate Jaimet, “Ottawa man left in legal limbo in Syria”, OttawaCitizen, July 10, 2004; Kate Jaimet, “The two worlds ofAbdullah Almalki”, Ottawa Citizen, July 10, 2004.

146 Audrey Gillan, “Keep detainee in jail, appeal told”, TheGuardian, March 18, 2004. http://www.guardian.co.uk/terror-ism/story/0,12780,1171876,00.html [December 9, 2004].

147 Smart Border Declaration, supra note 61.

148 Smart Border Action Plan, supra note 61, art. 25.

149 Testimony of Garry James Loeppky before the Commissionof Inquiry into the Actions of Canadian Officials in Relation toMaher Arar, Public Hearing, June 30, 2004, pp. 807, 851, 885,896-7. http://www.ararcommission.ca/eng/11e.htm [November30, 2004].

150 Testimony of Ward Elcock before the Commission ofInquiry into the Actions of Canadian Officials in Relation toMaher Arar, Public Hearing, June 21, 2004, pp. 161, 251.http://www.ararcommission.ca/eng/11e.htm [November 30,2004].

151 CTV.ca News Staff, “Maher Arar suspects he’s still beingspied on”, CTV.ca, September 9, 2004.http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1094738251010_90147450?s_name=&no_ads= [December 14,2004].

152 CBC News Online staff, “Man interrogated by CSIS, RCMPsuing to clear his name”, CBC News Online, October 3, 2004.http://www.cbc.ca/story/canada/national/2004/09/20/mohamed040920.html [December 14, 2004].

153 Stephen Grey, “America’s Gulag”, New Statesman, Vol. 17,Issue 807, May 17, 2004. [Stephen Grey]

154 “United Kingdom: Highest court to rule on indefinite deten-tion”, Human Rights Watch Press Release, October 1, 2004.http://www.hrea.org/lists/hr-headlines/markup/maillist.php[October 2004].

155 Erich Lichtblau, “U.S. Opens 2 Inquiries Into Arrest ofMuslim Lawyer in Oregon”, Newsweek U.S. Edition, June 7,2004.

156 Andre Murr, “The Wrong Man; Brandon Mayfield speaksout on a badly botched arrest”, New York Times, June 4, 2004.[Andre Murr]

157 Al Goodman, “Spain hunts ‘detonator bag’ man”, CNN.com,May 28, 2004.http://edition.cnn.com/2004/WORLD/europe/05/28/spain.war-rant/ [December 14, 2004].

158 Andre Murr, supra note 156.

159 Ibid.

160 International Covenant on Civil and Political Rights, 999U.N.T.S. 171, art. 4. The ICCPR entered into force in the U.S.on September 8, 1992.

161 8 CFR 287, INS No. 2171-01, September 20, 2001.

162 U.S. CONST., Amends. V and XIV. See also, ICCPR, art. 9.

163 County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

164 Human Rights Watch Report, Presumption of Guilt: HumanRights Abuses of Post-September 11 Detainees, August 2002.http://www.hrw.org/reports/2002/us911/USA0802-05.htm[December 2004]. [HRW, Presumption of Guilt]

165 David Cole, “Enemy Aliens and American Freedoms”, TheNation, September 23, 2002. http://www.thenation.com/doc.mhtml?i=20020923&s=cole [December 30, 2004]. [DavidCole].

166 Cam Simpson, “U.S. Attorney General Won’t Apologize forTreatment of Detained Foreigners”, Knight-Ridder Tribune,June 6, 2003.

167 Ibid.

168 David Cole, supra note 165.

169 Office of the Inspector General Report on Detainees, supranote 7. See also, HRW, Presumption of Guilt, supra note 158.

170 Center for National Security Studies v. U.S. Department ofJustice, 2002 U.S. District Court, Lexis 14168 (D.D.C., August2, 2002), p. 28.

171 Hamdi v. Rumsfeld, U.S. S. Ct. 03-6696, in which the courtheld the Executive has authority to detain Hamdi pursuant to aCongressional resolution authorizing the President to “use all

62


necessary and appropriate force against those nations, organi-zations, or persons he determines planned, authorized, com-mitted, or aided the terrorist attacks” or “harbored such organ-izations or persons, in order to prevent any future acts of inter-national terrorism against the United States by such nations,organizations or persons.” Authorization for Use of MilitaryForce (“the AUMF”), 115 Stat. 224.

172 Mark Sherman, “U.S. told to charge or free suspect: Bush-appointed judge says government can’t keep holding terrorsuspect after 2 ? years”, Associated Press, March 1, 2005.

173 Human Rights Watch, “UK: Freedom in the Balance –Britain’s Highest Court to Rule on Indefinite Detention”,Press Release, London, October 1, 2004. http://hrw.org/eng-lish/docs/2004/10/01/uk9421.htm [November 30, 2004].

174 CBC News Online staff, “Security certificates constitution-al: court”, CBC.ca News, December 10, 2004.http://www.cbc.ca/story/canada/national/2004/12/10/security-certificate-041210.html [December 18, 2004].

175 Anti-Terrorism Act, 2001, c.41, s. 83.3(4).

176 Jake Rupert, “Government pays off victim of smear”,Ottawa Citizen, October 2, 2003.

177 Ibid.

178 Ibid.

179 See Statewatch, “No charges against Swedish Young Leftdonation to PLFP”, Statewatch News Online, October, 2004.http://www.statewatch.org/news/2002/oct/11sweden.html[March 5, 2005]. [Swedish Young Left]

180 American Civil Liberties Union, Freedom Under Fire:Dissent in Post-9/11 America (New York: ACLU, May 2003).http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12581&c=206 [December 18, 2004]. [ACLU, Freedom Under Fire].

181 Randolph Bourne, “War is the Health of the State”, from thefirst draft of an essay, “The State”, which was unfinished at thetime of Bourne’s death in 1918.http://www.bigeye.com/warstate.htm [December 18, 2004].

182 Frans Shor ,“The Crisis of Public Dissent”, CounterpunchOnline, September 9, 2004.http://www.counterpunch.org/shor09092004.html [December18, 2004].

183 Ian Hoffman, Sean Holstege and Josh Richman, “State mon-itored war protestors”, Oakland Tribune, June 1, 2003.http://www.oaklandtribune.com/Stories/0,1413,82~1865~1400012,00.html [December 18, 2004].

184 Ryan J. Foley, “Feds win Rights to War Protesters’ Records”,Associated Press, February 8, 2004.

185 ACLU, Freedom Under Fire, supra note 180, p. 2.

186 ACLU, Freedom Under Fire, supra note 180, pp. 5-6.

187 Jeanne Meserve and Phil Hirschkom, “ACLU sues U.S. over‘no fly’ list”, CNN.com, April 6, 2004.http://www.cnn.com/2004/LAW/04/06/no.fly.lawsuit/[December 14, 2004].

188 Michelle Shephard, “How did this man land on a ‘no-fly’list?; Air Canada ‘flags’ Toronto-born cartoonist; Airline hasyet to address why it wouldn’t sell ticket”, The Toronto Star,June 15, 2004.

189 CBS/AP, “Ted Kennedy’s Airport Adventure”,CBSNEWS.com, August 19, 2004. http://www.cbsnews.com/stories/2004/04/06/terror/main610466.shtml [December 14,2004].

190 Araminta Wordsworth, “If you’re a David Nelson, you’re aterrorism suspect”, The National Post, June 23, 2003.

191 Alexander Panetta and Jim Bronskill, “Legal concerns delayCanadian version of U.S.-style terror list for air passengers”,The Canadian Press, distributed Oct. 31, 2004.http://www.cp.org/english/online/full/elxn_en/041031/p103104A.html [December 3, 2004].

192 Ignacio Ramonet, “Terror Tactics”, Le Monde Diplomatique,March 2004, referring to a report by PEN International,Antiterrorism, writers and freedom of expression, London,November 2003.

193 Mark Bixler, “Carter Chides U.S. on Rights”, The AtlantaJournal-Constitution, November 12, 2003.

194 Amnesty International, “Colombia”, Amnesty Magazine.http://www.amnestyusa.org/magazine/war_terrorism.html[March 6, 2005].

195 Reid Morden, “Spies, not Soothsayers: Canadian Intelligenceafter 9/11”, CSIS Commentary, No. 85, November 26, 2003.http://www.csis-scrs.gc.ca/eng/comment/com85_e.html[December 18, 2004].

196 Available on the U.S. Department of Defense website, athttp://www.defenselink.mil/news/Aug2004/commissions_instructions.html [March 6, 2005].

197 Associated Press, “Anti-terror ‘watchlists’ merge to speed upaccess”, The Toronto Star, September 17, 2004. See also doc-uments obtained by the Electronic Privacy Information Centerthrough a Freedom of Information Act request:http://www.epic.org/privacy/airtravel/foia/watchlist_foia_analysis.html [December 18, 2004]. See also the testimony of FBIofficial Steve McCraw in “Can the Use of Factual DataAnalysis Strengthen National Security? Part One”, Hearingbefore the Subcommittee on Technology, Information Policy,Intergovernmental Relations and the Census of the HouseCommittee on Government Reform, 108th Cong., May 6, 2003,Serial No. 108-72, p. 30. http://www.gpoaccess.gov/chear-ings/108hcat2.html [December 18, 2004].

63


198 BBC News, “France ‘confirms’ fighter escorts”, January 2,2004. http://news.bbc.co.uk/1/hi/world/europe/3363291.stm[December 23, 2004].)


200 James Gordon Meek, “13 Million on Terror Watch List”,New York Daily News, April 8, 2003; Tom Godfrey, “5 millionon [U.S.] terrorism list”, Toronto Sun, January 20, 2004.

201 ACLU, The Surveillance-Industrial Complex, supra note 83,p. 20-21.



204 See Brian Braiker, “The ‘Patriot’ Search”, NewsweekOnline, June 3, 2004, and correction. http://msnbc.msn.com/id/5131685/site/newsweek [December 18,2004].

205 The works of Czech writer Franz Kafka, published after hisdeath in 1924, are notable for the recurrence of paradoxes orencounters with absurdity, and nightmarish predicaments. InThe Trial, a man awakens one morning and, for reasons that arenever clear, is arrested and subjected to the rigours of a mysti-fying judicial system for an unspecified crime. In The Castle, aland surveyor tries vainly to gain recognition from officials ata castle that dominates the life of a village. The word“Kafkaesque” has come to be used to describe situations char-acterized by surreal distortion, senselessness and often menac-ing complexity.

206 Thomas Mathiesen, On Globalistion of Control: Towards anIntegrated Surveillance System in Europe, supra note 5, p. 29.

207 Canadian Foreign Affairs Minister Bill Graham met withU.S. ambassador Paul Celluci on October 15, 2002. CanadianPress, “Graham protests U.S. deportation of Canadian”,October 17, 2002. http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1034846322080_44?s_name=&no_ads=[December 18, 2004]. Graham also raised Arar’s case withU.S. Secretary of State Colin Powell in a meeting onNovember 14, 2002. Jeff Sallot, “PM trying to repatriatealleged al-Qaeda terrorist”, The Globe & Mail, June 26, 2003.Prime Minister Jean Chrétien wrote to Syrian President BasharAssad in July 2003 requesting Arar’s release; the letter washand-delivered to President Assad by Senator Pierre de Bané.Colin Freeze, “Arar freed after appeal from Chrétien: FormerPM wrote letter to Syrian leader”, The Globe & Mail,November 10, 2004. http://www.theglobeandmail.com/servlet/story/RTGAM.20041110.ARAR10_COPY/BNStory[December 19, 2004].

208 See Swedish Young Left, supra note 179.

209 When the European Commission finalized the deal amidstcontroversy, it “…argued that the alternative would have beenchaos, with airlines facing fines and the loss of landing rightsin the U.S., as well as trouble from E.U. data protection author-ities.” Ian Black, “E.U. hands over data on air travelers”, TheGuardian, May 18, 2004.

210 Canada Department of Foreign Affairs and InternationalTrade, Fifth Annual Report on Canada’s State of Trade, TradeUpdate: March 2004 (Minister of Public Works andGovernment Services Canada, 2004), pp. 3-4.http://www.dfait-maeci.gc.ca/eet/trade/state-of-trade-en.asp[December 19, 2004].

211 Maude Barlow, The Canada We Want – A Citizens’Alternative to Deep Integration (Ottawa: Council ofCanadians, n.d.). http://www.canadians.org/documents/TCWW_eng.pdf [December 19, 2004].

212 Yap Swee Seng, SUARAM and the Asian People’s SecurityNetwork, “Impacts on the South: The Case of Malaysia”, Anti-Terrorism and the Security Agenda: Impacts on Rights,Freedoms and Democracy, Report and Recommendations forPolicy Direction of a Public Forum organized by theInternational Civil Liberties Monitoring Group (Ottawa:February 17, 2004), pp. 59-60. http://www.statewatch.org/observatory2ab.htm (Analysis No. 26) [December 15, 2004].

213 Walden Bello, International Civil Liberties MonitoringGroup International Conference held in Ottawa, February 17,2004. [Walden Bello].

214 Get cites see roch’s email in South file with hyper links

215 Walden Bello, supra note 213.

216 Farewell Radio and Television Address to the AmericanPeople by President Dwight D. Eisenhower, January 17, 1961.Available online at the site of the Dwight D. EisenhowerLibrary and Museum, http://www.eisenhower.utexas.edu/farewell.htm [December 3, 2004]

217 Bob Davis, “Massive Federal R&D Initiative To Fight TerrorIs Under Way,” The Wall Street Journal, November 25, 2002,cited in ACLU, The Surveillance-Industrial Complex, supranote 77, p. 119.

218 Statewatch, “E.U.: Security research programme to look atcreating ‘smart’ biometric documents which will ‘locate, iden-tify and follow the movement of persons’ through “automaticchips with positioning”, Statewatch News online, February2004. http://www.statewatch.org/news/2004/feb/23Aeu-plan-security.htm [December 23, 2004].

219 For the full list of companies in the Group of Personalities,see “The Experts Looking Out for Europe’s Security”,Intelligence Online, No. 468. http://www.intelligenceonline.com/NETWORKS/FILES/468/468.asp?rub=networks[December 23, 2004].

64


220 Commission of the European Communities, SecurityResearch: The Next Steps, Communication from theCommission to the Council, the European Parliament, theEuropean Economic and Social Committee and the Committeeof the Regions, COM (2004) 590 (Brussels: COEC, September7, 2004), p. 10. http://europa.eu.int/eur-lex/en/com/cnc/2004/com2004_0590en01.pdf [December 23, 2004].

221 Department of Finance Canada, Enhancing Security forCanadians: Budget 2001, http://www.fin.gc.ca/budget01/booklets/bksece.htm [December 23, 2004].

222 ACLU, The Surveillance-Industrial Complex, supra note 77,pp. 26-28.

223 Adam Mayle and Alex Knott, Outsourcing Big Brother:Office of Total Information Awareness Relies on Private Sectorto Track Americans, Special report of the Center for PublicIntegrity, December 17, 2002. http://www.public-i.org/dtaweb/report.asp?ReportID=484 [December 19, 2004].

224 Associated Press, “States build terror database resemblingcontroversial federal project”, SiliconValley.com, Sept. 23,2003. http://www.siliconvalley.com/mld/siliconvalley/news/editorial/6841676.htm [December 19, 2004].

225 Brian Bergstein, “U.S. Database Contractor GaveAuthorities Names of 120,000 ‘Likely Terrorists’”, AssociatedPress, May 20, 2004. http://cnews.canoe.ca/CNEWS/World/WarOnTerrorism/2004/05/20/467061-ap.html[December 19, 2004]. Public relations for Seisint have beenhandled by Qorvis Communications, which has received fre-quent media attention for representing Saudi Arabia. SeeCenter for Media and Democracy, quoting “What Is theMatrix?”, O’Dwyer’s PR Daily, September 29, 2003.http://www.prwatch.org/node/2204 [December 19, 2004].

226 CBS/AP, “U.S. Begins Tracking Foreigners”, CBS News,January 5, 2004. http://www.cbsnews.com/sto-ries/2004/01/05/terror/main591355.shtml [December 19,2004].

227 Lichtblau and Markoff, supra note 17.

228 Greta Wodele, “Accenture Wins $10 Billion US VISITContract”, National Journal’s Technology Daily, June 1, 2004.http://www.govexec.com/dailyfed/0604/0604104tdpm1.htm[December 23, 2004].


230 Goo and O’Harrow , supra note 133.

231 Richard Behar, “Never Heard of Acxiom? Chances Are It’sHeard of You”, Fortune, February 23, 2004. http://www.for-tune.com/fortune/technology/articles/0,15114,588752,00.html[December 20, 2004].

232 Ibid.

233 European Commission, “Sweden to start issuing biometricpassports and e-ID cards in 2005”, eGovernment News,September 2, 2004. http://europa.eu.int/ida/en/docu-ment/3247/355 [December 24, 2004].

234 European Commission, “Danish Government to start issuingbiometric passports by the end of 2004”, eGovernment News,February 18, 2004. http://europa.eu.int/ida/en/docu-ment/2164/333 [December 24, 2004].

235 Canada News-Wire, Canadian Air Transport SecurityAuthority Pilot Project Includes Bioscrypt Technology,February 23, 2004. http://www.newswire.ca/en/releases/archive/February2004/23/c2728.html [December 20,2004].

236 “Smart cards make inroads in Asia”, supra note 38.

237 Oki Electric Industry Co., Ltd., “Iris Recognition System isSelected for Border Control at Frankfurt/Main Airport by theGerman Federal Ministry of the Interior”, Press Release,February 13, 2004. http://www.oki.com/en/press/2004/z03084e.html [December 24, 2004].

238 BioDentity Systems Corporation website homepage,http://www.biodentity.com/ [December 24, 2004].

239 Canada News-Wire, Bahrain Enhances Border Security AndTakes The Lead With E-Visas Using SITA Technology, May 25,2004. http://www.newswire.ca/en/releases/archive/May2004/25/c6965.html [December 20, 2004].

240 Siemens Business Services, Integrated ID Solutions.http://www.siemens.nl/sbs/getfile.asp?id=97 [December 24,2004].

241 Thales Secure Operations, People’s Republic of China UsesSecure Identification Technology for Smart Card Based IDCard. http://security.thalesgroup.com/case_study/case15.htm[December 24, 2004].

242 Geoffrey York, “Rights Group Questions Trade Mission toChina”, The Globe and Mail, September 21, 2004.

243 Barnaby J. Feder and Tom Zeller Jr., “Identity Badge WornUnder Skin Approved for Use in Health Care”, The New YorkTimes, October 14, 2004.

244 Steven Lee Myers, “Opponents Call Putin’s Overhaul Plan aStep Back”, The New York Times, September 14, 2004.

245 Jeremy Bentham, The Panopticon Writings, Miran Bozovic,ed.(London:Verso,1995) p. 29-95.

246 Michel Foucault, Discipline and Punishment: The Birth ofthe Prison, Allan Sheridan, trans. (New York: Random House,1995) at 261.

247 Giorgio Agamben, Letter to the Editor [translation], LeMonde, January 11, 2004.

65


248 Stephen Grey, supra note 153.

249 See Anne Applebaum, Gulag: A History (New York: Anchorbooks, 2003).

250 Stephen Grey, supra note 153; Estanislao Oziewicz, supranote 4. With respect to the CIA center in Jordan, see AssociatedPress, “Dozens of secret jails run by U.S., reprt says”, TorontoStar, June 18, 2004. [“Dozens of secret jails”]. With respect tothe CIA center in Qatar, see Jane Mayer, “OutsourcingTorture”, The New Yorker, February 14, 2005. [OutsourcingTorture]

251 Stephen Grey, supra note 153. See also U.S. StateDepartment country reports.



254 Estanislao Oziewicz, supra note 4. Another source put thenumber at 15,000 as of January 2004. Louise Christian,“Guantanamo: a global experiment in inhumanity”, TheGuardian, January 9, 2004. J. Cofer Black, former head of theCIA’s Counterterrorist Center, testified in late 2002 that therewere at least 3,000 terrorist prisoners being held worldwide.The Sudanese intelligence service alone claimed to have turnedover more than 200 captives in the two years followingSeptember 11, 2001. Stephen Grey, supra note 153.

255 Dana Priest, “Memo Okd Secret transfer of detaines: Expertssay U.S. violated Geneva Conventions”, The Washington Post,October 24, 2004.

256 Association of the Bar of the City of New York and Centerfor Human Rights and Global Justice, Torture by Proxy:International and Domestic Law Applicable to “ExtraordinaryRenditions” (New York: ABCNY & NYU School of Law,2004), p. 15. www.nyuhr.org/docs/TortureByProxy.pdf[December 20, 2004].

257 Douglas Jehl, “Rule Change Lets C.I.A. Freely SendSuspects Abroad to Jails” New York Times, March 6, 2005.[Jehl, “Rule Change”] http://query.nytimes.com/search/query?ppds=bylL&v1=DOUGLAS [March 6, 2005]. TheDirective is still classified.

258 Ibid.

259 Outsourcing Torture, supra note 250.

260 According to officials, the CIA is authorized to do this underthe new Directive. Jehl, “Rule Change”, supra note 257.

261 Kareem Fahim, “The Invisible Men”, The Village Voice,March 30, 2004. http://www.villagevoice.com/issues/0413/fahim.php [December 20, 2004].

262 Stephen Grey, supra note 153. See also, Christopher Bollyn,“The Pentagon’s Ghost Planes and Enforced Disappearances”,

American Free Press, January 17, 2005. [Christopher Bollyn]referring to articles written in the Sunday Times, WashingtonPost, Boston Globe and Chicago Tribune trying to piecetogether facts about the fleet and its current operations.


264 Third Geneva Convention, art. 122; Fourth GenevaConvention, art. 136.

265 Art. 2(i).

266 James Risen, David Johnston and Neil A. Lewis, “HarshCIA Methods Cited in Top Qaeda Interrogaton”, The New YorkTimes, May 13, 2004.


268 Human Rights Watch Briefing Paper, The United States’“Disappeared”: The CIA’s Long-Term “Ghost Detainees”,October 2004, p. 8. [Ghost Detainees] “Army General PaulKern told Congress that the C.I.A. may have hidden up to ahundred detainees.” Outsourcing Torture, supra note 250.

269 Ghost Detainees, supra note 268.

270 Jonathan Steele, “Bush is now thinking of building jailsabroad to hold suspects for life: a global gulag to hide theworld’s secrets”, The Guardian, January 14, 2005. [JonathanSteele]

271 Rasul v. Bush USSCt No. 03—334. Decided June 28, 2004

272 See, for example, David Rose, “How I entered the hellishworld of Guantanamo Bay”, The Observer, February 6, 2005.[David Rose]

273 Testimony of Cofer Black, Hearing Before the JointInvestigation of the House and Senate IntelligenceCommittees, 107th Cong., Sept. 26, 2002.http://intelligence.senate.gov/0209hrg/020926/witness.htm[December 20, 2004].

274 The U.S. has maintained that American constitutional guar-antees for criminal process do not apply to the detainees therebecause they are aliens in foreign territory.

275 The Bush Administration has alternately said that GenevaConventions protections did not apply because the detaineeswere “unlawful combatants”, that the Geneva Conventions didnot apply to a war on terrorism, and that the GenevaConventions did not apply because the Taliban was not the rec-ognized government of Afghanistan and so not a party to theConventions. See, Human Rights Watch, Background Paper onGeneva Conventions and Persons Held by U.S. Forces, HumanRights Watch Press Backgrounder, January 29, 2002.http://www.hrw.org/backgrounder/use/pow-bck.htm, referringto a statement made by Donald Rumsfeld on January 11, 2002.See also, Human Rights Watch, Bush Errs in GenevaConvention Rules, Fails to Grant POW Status to Detainees,

66


February 7, 2002. http://hrw.org/press/2002/02/geneva0207.htm;and Amnesty.International Report, Human DignityDenied:Torture and Accountability in the ‘war on terror’, October27, 2004. http://web.amnesty.org/library/Index/ENGAMR511452004 [March 7, 2005]. [Amnesty Human Dignity Denied][March 7, 2005]. Finally, see New York Times, “A Guide to theMemos on Torture”, The New York Times. Http://www.nytimes.com/ref/international/24MEMO-GUIDE.html[March 7, 2005]. [A Guide to the Memos on Torture]. In particu-lar, see descriptions of John C. Yoo’s series of memorandumsfrom January 2002 providing legal arguments to support theadministration’s assertions that the Geneva Conventions did notapply to detainees from the war in Afghanistan.

276 A Guide to the Memos on Torture, supra note 275. In par-ticular, see descriptions of a March 2003 memorandum declar-ing that President Bush was not bound by either internationaltreaty prohibitions regarding the treatment of prisoners or by afederal anti torture law because he had authority as command-er-in-chief to approve any technique to protect the nation’ssecurity; and letter to the ICRC from Brig. Gen. Janis, assert-ing that prisoners held as security risks could legally be treat-ed differently from prisoners of war or ordinary criminals.Having taken prisoners to Guantanamo Bay from the theatre ofwar in Afghanistan and elsewhere, the U.S. has also main-tained that, although it is a signatory to the InternationalCovenant on Civil and Political Rights, the Covenant does notapply there because Guantanamo Bay is not U.S territory, butonly leased by the U.S.

277 Military Order of November 13, 2001, “Detention,Treatment and Trial of Certain Non-Citizens in the War againstTerrorism” 66 F.R. 57833 (November 16, 2001); Departmentof Defense Military Commission Order No. 1, released March21, 2002 and No. 2 released April 30, 2002; Department ofDefense Military Instructions Nos. 1-8, released April 30,2002.

278 See United States v. Verdugo-Urquidez, 494 U.S. 259(1990).

279 In the 1949 Geneva Conventions, there are no categoriesother than civilians and combatants in the law. The ThirdGeneva Convention covers combatants in international hostili-ties and divides them into various subclasses.

280 The Human Rights Committee has for some time held theview that a state bears obligations under the Covenant wherev-er it has jurisdiction, reading disjunctively the second “and” inArticle 2 of the Covenant which provides, “Each State Party …undertakes to respect and to ensure to all individuals within itsterritory and subject to its jurisdiction the rights recognized inthe present Covenant…”.

281 Art. 2.

282 See in this regard Filartiga v. Pena-Irala, 630 F.2d 876 (2dCir. 1980); Rodriguez Fernandez v. Wilkinson, 505 F. Supp.787 (1980), aff'd on other grounds, 654 F. Supp. 1382 (10thCir. 1981).

283 John Barry, Michael Hirsh and Michael Isikoff, “The Rootsof Torture”, Newsweek, May 24, 2004.http://msnbc.msn.com/id/4989422/site/newsweek/ [December20, 2004].

284 Ibid.


286 Ibid. See also, A Guide to the Torture Memos, supra note275.

287 Jonathan Steele, supra note 270.

288 Human Rights Watch, Summary of Internatinal and U.S.Law Prohibiting Torutre and Other Ill-Treatement of Persons inCustody, May 24, 2004. http://hrw.org/english/docs/2004/05/24/usint8614_txt.htm [March 20, 2005].See also, Amnesty, Human Dignity Denied, supra note ???

289 David Johnston and Neil A. Lewis, “Bush's Counsel SoughtRuling About Torture”, New York Times, January 5, 2005.[Johnston and Lewis]

290 A Guide to the Memos on Torture, supra note 275.

291 Ibid.

292 Art. 2.



295 Human Rights Watch, “U.S.: Did President Bush OrderTorture?: White House Must Explain “Executive Order” Citedin FBI E-Mail”, December 21, 2004. http://hrw.org/english/docs/2004/12/21/usint9925_txt.htm[December 2004]. [HRW, Did President Bush Order?]

296 Johnston and Lewis, supra note 289.


298 Art. 3.

299 Dana Priest and Charles Babington, “Plan Would Let U.S.Deport Suspects to Nations That Might Torture Them”, TheWashington Post, September 30, 2004, p. A01.

300 Estanislao Oziewicz, supra note 4.

301 Estanislao Oziewicz, supra note 4. See also, Douglas Jehl,Steven Lee Meyers, and Eric Schmitt, “Abuse of CaptivesMore Widespread, Says Army Survey”, The New York Times,May 26, 2004, p. A1, citing American Army summary ofdeaths and mistreatment of prisoners in American custody inIraq and Afghanistan; [Jehl, Meyers and Schmitt] Dana Priestand Barton Gellman, “U.S. Decries Abuse but DefendsInterrogations”, The Washington Post, December 26, 2002, p.

67


A01. [Priest and Gellman]. See also, Dozens of Secret Jails,supra note 250 which describes the case of a C.I.A. contractorwho is accused of beating a detainee to death using his hands,feet and a flashlight.

302 In December 2002, The Washington Post interviewedAmerican national security officials who suggested that painkillers had been given selectively to Abu Zubaida, one of thetop Al Qaeda leaders, who was shot in the groin during capture.See Priest and Gellman, supra note 301.

303 Priest and Gellman, supra note 301. See also, Tim Goldenand Eric Schmitt, General took Guantanamo rules to Iraq forHandling of Prisoners”, The New York Times, May 13, 2004.[Golden and Schmitt]

304 Priest and Gellman, supra note 301. See also, Golden andSchmitt, supra note 303.

305 Priest and Gellman, supra note 301.

306 Associated Press, “37 deaths of detainees in Iraq,Afghanistan probed”, Sunday Observer Online, May 23, 2004.

307 Dan Eggen and R. Jeffrey Smith, “F.B.I. agents allege abuseof detainees at Guantanomo Bay”, The Washington Post,December 21, 2004.

308 As of May, 2004, the Army had closed two homicide cases.One involved an Iraqi detainee who had been shot for throw-ing rocks at guards. Jehl, Meyers and Schmitt, supra note 301.

309 Neil A. Lewis, “Broad Use of Harsh Tactics”, The New YorkTimes, October 17, 2004.

310 Jehl, Meyers, and Schmitt, supra note 301.

311 Associated Free Press, “C.I.A. renditions of suspects are 'outof control'”, The Nation on web, 2004.

312 David Rose, supra note 272.

313 HRW, Did President Bush Order?, supra at note 295.

314 Ibid. A Guide to the Memos on Torture, supra note 275.


316 Scott Highman and Joe Stephens, “New Details on Scale ofIraq Prison Abuse”, The Washington Post, May 21, 2004.

317 Carl Huse and Sheryl Gay Stolberg, “Lawmakers ViewImages from Iraq” The New York Times, May 13, 2005.

318 Ibid.

319 Ibid.

320 Eric Schmitt, “Rumsfeld and a General Clash on Abuse”,The New York Times, May 12, 2004.

321 Kate Zernike, “Accused Soldier Paints Scene of EagerMayhem at Iraqui Prison”, The New York Times, May 14,2004.

322 Jehl, Myers and Schmitt, supra note 301.

323 Associated Press, “39 have died in U.S. hands: misconductcondoned, report says”, The Toronto Star, July 23, 2004.


325 Jonathan Steele, supra note 270.

326 Ibid.

327 Ibid.

328 Ibid.

329 Douglas Jehl, Pentagon Seeks to Transfer More Detaineesfrom Base in Cuba, The New York Times, March 11, 2005. Seealso, Dawn, “Life Imprisonment without trial condemned”,January 3, 2005. http://www.dawn.com/2005/01/03/int1.htm[March 20, 2005].

330 Tony Johansson, “A Scandal in Sweden”, Z-Net, May 25,2004.

331 Stephen Grey, “U.S. agents 'kidnapped militant' for torturein Egypt”, Timesonline, February 6, 2005.

332 James Meek, “They beat me from all sides”, The Guardian,January 14, 2005. See also, James Gordon, “German's tale eeri-ly similar to Arar's: Man said he was abducted, flown to Kabulwhere he claims U.S. officials tortured him.”, Ottawa Citizen,January 12, 2005.

333 Human Rights Watch, Empty Promises: DiplomaticAssurances No Safeguard against Torture, April 2004.http://hrw.org/reports/2004/un0404/ [March 31, 2005].

334 Human Rights Watch Briefing Paper for the 59th Session ofthe United Nations Commission on Human Rights, In theName of Counter-Terrorism: Human Rights AbusesWorldwide, March 25, 2003. http://hrw.org/un/chr59 [March31, 2005]. [HRW, In the Name of Counter-Terrorism]

335 Ibid.

336 Ibid.

337 Ibid.

338 Ibid.

339 Human Rights Watch, “Malaysia: Detainees Abused UnderSecurity Law”, Press Release, May 25, 2005.

340 Human Rights Watch, In the Name of Security: Counter-ter-rorism and Human Rights Abuses Under Malaysia's Internal

68


Security Act, May 2004, Vol. 16, No. 7 (C), p. 44.

341 Ibid., p. 43.

342 Ibid., p. 45.

343 Ibid., p. 44.

344 Ibid.

345 Ibid.

346 Ibid., p. 43.

347 Christopher Bollyn, supra note 262.


349 Christopher Bollyn, supra note 262.

350 Jim Lobe, “U.S. Militarizing Latin America”, OneWorld.net,October 6, 2004.

351 Jack Epstein, “General Seeks Boost for Latin AmericanArmies”, San Francisco Chronicle, April 30, 2004.

352 HRW, In the Name of Counter-Terrorism, p. 12.

353 David Corn, “The 9/11 Investigation”, The Nation, August4, 2003. http://www.thenation.com/doc.mhtml%3Fi=20030804&s=dcorn [December 21, 2004].

354 Mark Trevelyan, “Head of Interpol highlights abuses in waron terror”, Statewatch News online, October 2, 2003.http://www.statewatch.org/news/2003/oct/05interpol.htm[December 21, 2004].

355 Joint Inquiry Into Intelligence Community Activities Beforeand After the Terrorist Attacks of September 11, 2001, Reportof the U.S. Senate Select Committee on Intelligence and U.S.House Permanent Select Committee on Intelligence TogetherWith Additional Views, December 2002. http://www.gpoac-cess.gov/serialset/creports/911.html [December 21, 2004].[Joint Inquiry Report].The Joint Inquiry referred to a long listof intelligence findings, which indicated that Al Qaeda waseager to attack the United States and that terrorists were inter-ested in using airplanes as weapons. These included an intelli-gence briefing, prepared in July 2001, that said that bin Ladenwas looking to pull off a “spectacular” attack against theUnited States designed to inflict “mass casualties” and that“[a]ttack preparations had been made”. A summer 1998 intelli-gence report suggested bin Laden was planning attacks in NewYork and Washington, and in September 1998, the head of theC.I.A. briefed Congress and noted that the F.B.I. was followingthree or four bin Laden operatives in the U.S. In December1998 an intelligence source reported that an Al Qaeda memberwas planning operations against U.S. targets: “Plans to hijackUS aircraft proceeding well. Two individuals … had success-fully evaded checkpoints in a dry run at a NY airport”. InDecember 1999, the C.I.A.'s Counter-terrorism Center con-

cluded that bin Laden wanted to inflict maximum casualties,cause massive panic and score a psychological victory. To doso, it said, he might attack between five and 15 targets on theMillennium, including several in the United States. In 2000,the C.I.A. had information that two of the 9/11 hijackers whohad already been linked to terrorism were, or might be in theUnited States. In April 2001, an intelligence report said that AlQaeda was in the throes of advanced preparation for a majorattack, probably against an American or Israeli target. InAugust 2001, the F.B.I. began to try to locate the two hijackersmentioned above.

356 Ibid., p. 7.

357 Ibid., pp. 7, 33.

358 Ibid. One intelligence source informed the Joint Inquiry that“a closely held intelligence report” for “senior governmentofficials” in August 2001 stated that bin Laden was seeking toconduct attacks in the U.S., that Al Qaeda maintained a supportstructure there, and that information obtained in May 2001indicated that a group of bin Laden supporters were planningattacks in the United States with explosives. (p. 9). The JointInquiry's report also notes that in May 2001, “the U.S.Government became aware that an individual in Saudi Arabiawas in contact with a senior al-Qa'ida operative and was mostlikely aware of an upcoming al-Qa'ida operation.” (p. 111)

359 David Corn, supra note 353.

360 Richard Ford, “Safeguards promised after Big Brother warn-ing by watchdog”, The Times, August 16, 20. http://www.timesonline.co.uk/article/0,,2-1219015,00.html

361 See GILC website, http://www.gilc.org/index.html.

362 See EDRi website, http://www.edri.org/.

363 Privacy International, Invasive, Illusory, Illegal andIllegitimate: Privacy International and EDRi's Response to theConsultation on a Framework Decision on Data Retention,September 15, 2004. http://www.statewatch.org/news/2004/sep/data-retention.htm [March 5, 2005}.

364 Ibid.

365 Open Letter to ICAO, supra note 38; Transferring Privacy,supra note 55.

366 See for example, U.K. No2Id Campaign,http://www.no2id.org/ [March 6, 2005].

367 Joint Declaration on the Need for an InternationalMechanism to Monitor Human Rights and Counter-Terrorism,signed by the Coalition of International Non-GovernmentalOrganizations against Torture.http://www.geneva.quno.info/pdf/CounterTerrorismDecl.pdf[March 1. 2005].

368 See http://www.aclu.org/privacy.

69


369 See http://www.aclu.org/Privacy/Privacy.cfm?ID=14729&c=130 [March 6, 2005].

370 See http://www.aclu.org/matrix [March 6, 2005].

371 See http://www.aclu.org/capps [March 6, 2005].

372 See http://aclu.org/SafeandFree/SafeandFree.cfm?ID-15422&c=206 [August, 2004].

373 See ACLU, Bigger Monster, Weaker Chains: The Growth ofan American Surveillance Society. http://aclu.org/monster[March 6, 2004]; Unpatriotic Acts:The FBI's Power to RifleThrough Your Records and Personal Belongings WithoutTellling You http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13246&c=206 [August 2004].

374 Statewatch, “International Conference of Data Protection andPrivacy Commissioners adopt series of resolutions calling forglobal standards” Statewatch News Online, September 2003.http://www.statewatch.org/news/2003/sep/12audata.htm.

375 Hana Stepankova, “Czech Office for Personal DataProtection, on handing over personal passenger data to theUSA”, Prague Post, November 12, 2003.

376 See note 126 and 131.

377 See note 7.

378 Bill of Rights Defense Committee, “372 Civil Liberties SafeZones!”. http://www.bordc.org/ [March 6, 2005].

379 Agence France-Presse, “L'Inde abrogera une loi anti terror-iste”, Le Monde, 27 mai 2004. http://www.cyberpresse.ca/monde/article/1,151,1063,052004,693484.shtml[March 6, 2005].

380 A(FC) and others (FC) v. Secretary of State for the HomeDepartment; X(FC)) and another (FC) v. Secretary of State forthe Home Department, [2004] UKHL 56 (December 16, 2004

381 Ibid., para. 74.

382 Ibid., paras. 96 and 97.

383 (03-334). “Since the Supreme Court ruling, the governmenthas begun holding 'combatant status review tribunals'atGuantanamo Bay for each detainee to determine whether heshould continue to be held. The detainees do not have legalrepresentation at those hearings. So far, 317 hearings have beenheld and 131 cases have been adjudicated, all but one in favourof continued detention.”

384 See also, Neil A. Lewis, “Judge Says Terror Suspect Can't beheld as an Enemy Combatant”, New York Times, March 1, 2005.

385 Carol D. Leonnig and John Mintz, “Judge Says Detainees'Trials are Unlawful”, The Wahsington Post, November 9,2004.

386 Doe and ACLU v. Ashcroft et al., No. 04-CIV-2614 (DistrictCourt, 2d Cir.). See also, Dan Eggen, “Key part of PATRIOTACT ruled unconstitutional”, The Washington Post,September 29, 2004.

387 For a list of these, see International Commission of Jurists,E-BULLETIN ON COUNTER-TERRORISM & HUMANRIGHTS, No. 2, September 2004, p.2. http://www.icj.org/IMG/pdf/E-bulletinSept.pdf [March 5, 2005].

388 Dan Eaton and Muklis Ali, “Indonesian anti terror lawdeclared invalid, Reuters, July 23, 2004.

389 Christian Schröder and Cédric Laurant, “Austrian FederalConstitutional Court, VfGH G37/02 ua, February 27, 2003 -Outline”, Electronic Privacy Information Center.http://www.epic.org/privacy/intl/austrian_vfgh-022703.html[March 6, 2005].

390 EDRi, “Change in Germany's position on data retention”,October 6, 2004. http://www.edri.org/edrigram/number2.19/retention

70

71

