Michael Hayden, the former head of the CIA and National Security Agency, said last week that: “The United States does conduct espionage,” and the Fourth Amendment to the Constitution protecting the privacy of American citizens “is not an international treaty.”  On its face this statement is a correct interpretation of law as the Fourth Amendment as well as other Constitutional protections have been held not to extend beyond the borders of the US.

The allegations that have been leveled against the NSA by whistleblower Edward Snowden, outline a vast program of spying on a scale not previously seen. The amount of data collected by the federal agencies involved, if true, is staggering and conducted in an indiscriminate manner in order to mine as much data as possible. It would be naïve to think that the US is alone in spying on its citizens and others, but it would seem that the voracity and abilities employed by the US are unparalleled. Moreover, the US not only spied on its enemies but also seemed willing to conduct widespread data intercepts of its allies, something that is not sitting well in Europe and elsewhere.

As regards its international obligations, the US is a member of the international community and is thus bound by the treaties it enters into as well as customary international law. Although not a treaty, one of the most widely approved international documents is the UN Universal Declaration of Human Rights, to which the US is a signatory. Article 12 specifically states that:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

The information collected from sources such as the internet, emails, social media networks, internet service providers, search engines, etc., belonged to someone and it should be considered private personal data. The US neither asked for permission nor consent to collect the data.

Additionally, as regards spying on diplomatic missions, the US might be afoul of the Vienna Convention on Diplomatic Relations, which at Article 27, states as follows:

The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions…

Finally, the type of spying conducted by the US is likely violative of customary international law as defined in Article 38 of the Statute of the International Court of Justice.  This is generally determined through two primary factors: the general practice of states and what states have accepted as law. A very strong argument can be made that the protection of personal private data is customary international law as virtually every country on earth has some form of data protection law and is widely applied. In this regard, the US is on very shaky legal footing if its spying is as widespread and unfocused as has been reported. For the international community, to have the US government repeat as a mantra that the US has not violated the Fourth Amendment of the US Constitution because its spying did not target US citizens, is not just insufficient, but borderline offensive. Perhaps US citizens will believe that their government is not spying on them, or perhaps they will demand a better explanation and hold their government accountable for what amount to blatant violations of the right to privacy.


23 year old intelligence analyst Bradley Manning was arrested in May 2010 for allegedly handing hundreds of thousands of US diplomatic cables, Iraq and Afghanistan war logs and videos of helicopter attacks to the whistleblower website WikiLeaks. Manning is charged with disclosing classified information and the capital offense of “aiding the enemy,” for which the death penalty can be imposed. Military prosecutors are requesting life in prison. Manning’s attorney, David E. Coombs, has filed a motion to dismiss the case based on the government’s violation of his client’s rights under Article 13 of the Uniform Code of Military Justice. The case is currently scheduled to start trial in March 2013.

After his arrest, soldier Manning was held in a camp in Arifjan, Kuwait for three months and then moved to the Marine Corps base in Quantico, Virginia, where he was held in maximum security for approximately 8 months. The oppressive, borderline-torturous measures to which he was subjected during his imprisonment have been known for some time, but last week, as he testified about such treatment, we were able to hear some of the details.

According to the soldier’s account, for the first 4 months of his detention, he was in solitary confinement and only allowed to leave his cell for 20 minutes per day. He was made to stand for long periods of time, and forced to remove his underwear at night for fear that he would use his underpants to commit suicide. Since he was considered a possible risk of self-harm, he was under observation throughout the night, with a fluorescent light located right outside the cell blazing into his eyes. When he would try to cover his eyes with his suicide blanket, or turn on to his side away from the light, the guards would bang on his cell bars to wake him up so they could see his face.

A 14 month long formal UN investigation conducted by UN special rapporteur Juan Mendez, denounced those conditions as “cruel and inhuman.” In his report to the UN General Assembly he stated: “[i]mposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

President Obama’s state department spokesman, retired air force colonel PJ Crowley, resigned after publicly condemning Manning’s treatment. A prison psychologist testified this week that Manning’s conditions were more damaging than those found on death row, or at Guantánamo Bay.

Article 13 of the Uniform Code of Military Justice states that: “[n]o person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.”

Article 16 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which the United States ratified in 1994, states in part: “[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment […] when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Does the seriousness of the alleged crime committed by soldier Manning justify the treatment to which he was subjected during his detention?

How is the information about the conditions of soldier Manning’s detention as well as what transpired in Abu Ghraib affecting America’s image around the world?

Have United States officials acted in violation of International Law? What should be the United States government official position in this matter?