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Restating the Law on the Investigation of Potentially Unlawful Death: The 2016 Minnesota Protocol

 

The Office of the United Nations High Commissioner for Human Rights in Geneva (OHCHR) on 24 May 2017 announced the release of the 2016 Minnesota Protocol on the Investigation of Potentially Unlawful Death on its website.

This document is an updated and revised version of the 1991 UN Manual on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions, which through common usage became known as the Minnesota Protocol. The new document is currently available in English, but will be translated into the other five official UN languages and others in due course.

The Minnesota Protocol sets out the international standards for the investigation of suspicious deaths, where States may in one way or another be considered responsible, because its agents may have caused such death, or because the State has failed to exercise due diligence in protecting the victim/s. It also applies to enforced disappearances.

The right to life, as protected for example by article 6 of the International Covenant on Civil and Political Rights, has two components: the prohibition of arbitrary deprivation of life, and accountability where that occurs. Investigations play a central role in securing accountability. As such, the Protocol can be seen as a restatement of a central part of the protection of the right to life, often described as the “supreme right.”

The Protocol is aimed at informing and guiding the actions of crime scene investigators, medical practitioners, lawyers, commissions of inquiry and others involved in investigating suspicious deaths. The Minnesota Protocol plays a similar role in the context of the right to life to that of the Istanbul Protocol to in the context of torture.

The 2016 revision of the Protocol was undertaken by a group of legal and forensic experts over a period of two years under the auspices of the Special Rapporteur on extrajudicial, summary or arbitrary executions (a position the current author held at the time) and the OHCHR.

A scoping exercise before the revision showed that the original Minnesota Protocol was regarded as the gold standard in the area of forensic investigations by medical practitioners, and in this context had been relied upon by several international and national tribunals. At the same time, it had to some extent become outdated in the 25 years since it was first adopted, in that new medical developments, such as DNA evidence, were not reflected. The legal section was also underdeveloped in the original version. The revised text seeks to provide a stronger basis for the protection of the right to life by ensuring the Protocol sets out both the state of international law and best forensic practice in the investigation of suspicious deaths.

The new version of the Protocol, like the original one, is an expert document whose legitimacy resides in the wide acceptance of the Protocol since its inception, and the level of expertise reflected in its contents. Several states were among those who submitted comments during the various rounds of public consultation conducted during the revision.

The Protocol sets guidelines for the procedures to be followed during death investigations from the outset to the conclusion. On the question when an investigation must be undertaken, the Protocol (in para 15) provides that: Continue Reading »

Can Flynn Assert a Fifth Amendment Privilege to Withhold Documents?

 

The news that retired Lt. Gen. Michael Flynn, Trump’s former national security advisor and campaign aide, has refused to comply with a Senate Intelligence Committee subpoena for documents raises the question of when witnesses may lawfully resist subpoenas for testimony or documents based on Fifth Amendment grounds, which is the basis cited by Flynn’s lawyer. The answer is it depends on what you’re trying to avoid doing.  It is fairly straightforward to rely on the privilege against self-incrimination to refuse to provide testimony, but much more difficult when the subpoena is for documents. Continue Reading »

The Early Edition: May 24, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP-RUSSIA INVESTIGATION

U.S. intelligence officials discovered contacts between Donald Trump’s campaign and Russia last year, sparking concerns that Moscow could attempt to foster Trump’s associates, former C.I.A. director John Brennan testified before the House Intelligence Committee yesterday, shedding further light on why federal agents decided to launch a full investigation last year. Byron Tau and Joshua Jamerson report at the Wall Street Journal.

Brennan did not know if the Trump campaign colluded with Russia and the contacts between them may have been benign, he said yesterday, the New York Times Matt Apuzzo reporting.

President Trump has retained the services of long-time personal lawyer Marc E. Kasowitz to help him navigate the Trump-Russia investigations, John Wagner and Ashley Parker report at the Washington Post.

Former national security adviser Michael Flynn is being served with two further subpoenas to oblige him to hand over documents related to his contacts with Russian officials, Senate Intelligence Committee leaders said yesterday after Flynn invoked his Fifth Amendment rights in response to a previous subpoena. Austin Wright and Burgess Everett report at POLITICO.

“All options should be on the table” if Flynn refuses to comply with the additional subpoenas, member of the Senate Intelligence Committee Sen. Marco Rubio (R-Fla.) warned the former national security adviser via Twitter yesterday.

It is “not appropriate” to talk about his conversations with President Trump about the Russia probe, the Director of National Intelligence Daniel Coats told a Senate Armed Services Committee hearing yesterday after he was asked about reports that the White house tried to recruit Coats and Director of the National Security Agency Michael Rogers to help with pushing back on the F.B.I.’s investigation into Trump-Russia ties. Madeline Conway reports at POLITICO.

Coats would be willing to disclose the details of his conversations with President Trump to the Senate Intelligence Committee, he said after the hearing, Martin Matishak and Austin Wright extracting five takeaways from the intelligence leaders’ Trump testimony yesterday at POLITICO.

Coats has “not discussed” the issue of President Trump’s reported disclosure of highly classified intelligence to Russian officials during an Oval Office meeting earlier this month, he told the Senate Armed Services Committee yesterday, Morgan Chalfant reporting at the Hill.

The issue of leaks to the media was given a serious response from both current and former administration officials at Trump-Russia probe panel hearings yesterday, despite Democratic criticism of the G.O.P. focus on leaks as a partisan attempt to protect the president, Katie Bo Williams and Morgan Chalfant reporting on this and four other takeaways from a day of Russia probe hearings before various panels at the Hill.

“If the president crosses a line, he knows what he’s doing.” Ignorance is no longer an excuse for President Trump’s repeated attempts to subvert the proper boundaries between himself and government agencies investigating possible Trump-Russia collusion now that he has been widely rebuked for firing former F.B.I. director James Comey, writes the Washington Post editorial board.

Brilliant legal strategy – or just brilliantly stupid. Was White House Press Secretary Sean Spicer laying the groundwork for a “foreign policy defense” to potential charges of obstruction of justice over the firing of Comey with his explanation that Comey’s firing was necessary because he was making it difficult for the president to “engage and negotiate with Russia” as was suggested by former Acting Solicitor General Neal Katyal? Asha Rangappa considers the feasibility of such a defense at POLITICO MAGAZINE.

TRUMP VISITS ISRAEL

Israeli and Palestinian leaders are ready to reach a peace agreement, President Trump declared at the end of his three-day tour of the Middle East yesterday, without revealing how he intended to work with both sides toward that goal, Ian Fisher, Peter Baker and Isabel Kershner write at the New York Times.

The obstacles that have stood in the way of outside brokers of Israeli-Palestinian peace for decades have not been removed as a result of Trump’s trip to the region, where he outlined a “detail-free” strategy involving ignoring the key sticking points that have hindered talks in the past. Dan Perry takes a look at where things stand following Trump’s trip at the Washington Post. Continue Reading »

Preview: Senate Judiciary Committee Hearing (5/24) on Cross-Border Access to Data

 

Tomorrow, the Senate Judiciary Subcommittee on Terrorism and Crime, spearheaded by Senators Lindsey Graham (R-SC) and Sheldon Whitehouse (D-RI), will be holding a hearing on a topic of increasing importance to law enforcement’s ability to effectively detect and prosecute crime, the future of privacy rights, and the economic interests of the tech sector. The topic — Law Enforcement Access to Data Stored Across Borders: Facilitating Cooperation and Protecting Rights. According to the UK Embassy, this will be the first time ever a sitting UK government official has testified in Congress. And not just any official, but the UK Deputy National Security Advisor, Mr. Paddy McGuinness. If this doesn’t highlight the significance of the issue (at least to one of the nation’s key allies), I don’t know what does.

The hearing will primarily focus on two distinct, but interrelated issues:

First, the reach of US warrant authority pursuant to the Electronic Communications Privacy Act (ECPA) to access stored communications content, an issue I have previously addressed here and here.  This is a weighty issue in the wake of the Second Circuit’s decision in Microsoft Ireland case, which held that the U.S. warrant authority extends only to data that is physically located within the territorial boundaries of the United States. As I explain in my testimony, it is a decision that is concerning on almost every relevant axis — with negative consequences for our security, our privacy, and our economy.  In fact, just about everyone, including even the judge who wrote the Microsoft Ireland opinion, agrees that the current state of affairs is troubling, and that Congress should step in to fix it.

That said, a simple legislative reversal of the opinion is not a satisfactory answer.  It fails to take into account the sometimes legitimate countervailing interests of foreign governments in limiting access to their citizens and residents data — something that the United States would and should want foreign governments to respect when seeking access to U.S. citizen and resident data.  A simple legislative reversal also fails to grapple with the importance of perceptions.   Rightly or wrongly, foreign customers of major U.S. tech companies are increasingly concerned about what they see as overbroad surveillance by the U.S. government; failure to address these concerns will have negative consequences for the competitiveness of a key sector of the U.S. economy.

In my testimony, I suggest concrete ways in which Congress can address these concerns, while also ensuring that law enforcement can, pursuant to a warrant based on probable cause, access data needed for legitimate investigations regardless of where the data happens to be at a particular point in time.  Continue Reading »

Fourth Circuit Holds Wikimedia Has Standing to Challenge Upstream Surveillance

In a major ruling handed down this morning, the Fourth Circuit has reversed a district court ruling from last year and held that Wikimedia has Article III standing, at least at the motion to dismiss stage, to challenge “upstream” collection under section 702 of the Foreign Intelligence Surveillance Act. Judge Diaz wrote the 39-page majority opinion (which also affirms that the other plaintiffs lack standing); Judge Davis concurred, but wrote separately to suggest that the other organizational plaintiffs have also alleged enough to establish Article III standing.

I hope to have more to say later about the analysis and its implications, but this is a big deal–and, at first blush, the right result, methinks. If left intact, this means we’ll finally have meaningful adversarial litigation (outside the context of a motion to suppress in a criminal case) over the legality and constitutionality of “upstream” collection.

The Drip, Drip of Obstruction News

 

The news yesterday that Donald Trump asked the Director of National Intelligence, Daniel Coats, and the director of the National Security Agency, Adm. Michael Rogers, to publicly deny the existence of any evidence of collusion between the Russians and the Trump campaign to influence the presidential election may, or may not, contribute to the overall emerging picture of obstruction of justice by the president. This revelation underscores several important points about the investigation.

First, as is so often the case in criminal investigations, the devil is in the details. That is particularly true in this case, because the investigation will likely focus on Trump’s intent, that is, whether he “corruptly” attempted to interfere with or impede the FBI investigation, meaning with an improper purpose. Assessing intent requires a close examination of direct evidence (like Trump’s own statements about his intent), and circumstantial evidence (including Trump’s actions and words before, during, and after the alleged acts of obstruction).

On the face of it, it’s not evident that Trump’s request to Coats and Rogers to comment publicly on the state of the evidence amounts to obstruction. However, according to the Washington Post article, several officials interpreted Trump’s request as an attempt to interfere with the investigation. (That said, NBC News is reporting from a single source that “a former official told NBC News that Coats and Rogers did not believe they were being asked to do something illegal. It was more of a public relations request.”) Determining what Trump intended will require establishing and closely analyzing what precisely he said, and the context of his words. Was he clumsily trying to get information out to the public, or was he trying to put pressure on the FBI’s investigation? How others understood Trump’s words at the time will often be powerful evidence of how they were intended, but not always determinative.  Continue Reading »

A Proposal for Space, Not Time, to Negotiate Peace in the Middle East

 

President Donald Trump was in Israel this week to reboot peace talks between the Jewish state and the Palestinians. Many believe this is premature, pointing to the litany of past failures and continued mistrust between the two sides.

However, one path the new U.S. administration should consider is counteracting the orthodoxy of low expectations by drawing from the path taken last year by the Colombian government and the FARC guerilla rebels to end the 50-year war between them, another of the world’s longest standing conflicts. In that situation, the resulting peace came not because the government’s chief negotiator Sergio Jaramillo spent years waiting for the right moment, but because he never expected that right moment would come.

As a former Israel Government Fellow, a program of Masa Israel Journey, based in the Ministry of Foreign Affairs’ International Organizations Department, I had the opportunity to meet with veteran peace negotiators and scrutinize Israel’s successful and enduring peace agreements with other countries, like Egypt. Following that experience, I spent three years at the Israeli Consulate in San Francisco, speaking on a daily basis with Israel’s staunchest supporters and its harshest detractors. During that time, I became accustomed to the prevailing thinking – that a new peace agreement is not on the horizon, that the timing isn’t right.

Yet, through my current work with Rotary International’s Peace Center initiatives, I recently met the architect of Colombia’s peace with the FARC rebels, and I was struck by the parallels between what led to his success in Colombia and what is taking place in Israel today.  Continue Reading »

Trump’s Disclosure Did Not Break the Law

Since the Washington Post revealed that President Trump had provided “classified” information to Russian diplomats, there have been three rounds of reactions.

The first comments suggested that the President had broken the law. Then others quickly pointed out that no law had been broken. In response, Just Security published two posts (here and here) suggesting that perhaps the law had been violated. I am writing to respond to those posts.

Certainly, if President Trump is a conscious agent of the Russian government and provided the information as part of an on-going conspiracy, he could be impeached and perhaps then indicted, and this act could be used as evidence of this conspiracy. Even short of that, the act might be viewed as so reckless as to constitute grounds for impeachment regardless of the president’s motives.

But there is no basis for suggesting that the act by itself was illegal.

First, the executive order (EO) on classification simply has no relevance to whether the president violated the criminal law. The president did not make the information public. The EO does not purport to deal with decisions by senior government officials to provide information in confidence to other governments. It does not provide criteria for such decisions and no government official thinks it governs such decisions that are made daily.

Moreover, it is not a crime to transfer information in violation of the provisions of the EO. Of course, in every administration, officials claim that it is a crime. But it simply is not. There is no such statute. Period. Continue Reading »

The Early Edition: May 23, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP-RUSSIA INVESTIGATION

President Trump asked the director of national intelligence Daniel Coats and the director of the N.S.A. Adm. Michael Rogers to push back against an F.B.I. investigation into possible Trump campaign-Russia ties, a request both Coats and Rogers refused, according to former and current officials. Adam Entous and Ellen Nakashima report at the Washington Post.

Former national security adviser Michael Flynn refused to comply with a subpoena from the Senate Intelligence Committee as the top Democrat on the House Oversight Committee Rep. Elijah Cummings (Md.) wrote a letter to committee chairman Jason Chaffetz (R-Utah) referring to a previously undisclosed document alleging Flynn had “lied” to security-clearance investigators about payments he received “directly” from Russia in relation to a Dec. 2015 gala he attended, Karoun Demirjian reporting at the Washington Post that members of the Senate Intelligence Committee must now vote to decide whether to hold Flynn in contempt or accept his invocation of his Fifth Amendment right against self-incrimination.

The Senate Intelligence Committee has “plenty” of options to respond to Flynn’s refusal to honor a subpoena for a list of his communications with Russian officials during the presidential campaign, contempt among them, chairman Richard Burr said last night, calling Flynn’s denial of the request nonsensical. Austin Wright and Burgess Everett report at POLITICO.

The Senate Intelligence Committee will “vigorously pursue” Flynn’s testimony and his production of any and all relevant materials, Burr said yesterday, Jordain Carney reporting at the Hill.

Former F.B.I. director James Comey will not appear before any congressional committees this week as Comey wants to speak to special counsel Robert Mueller before testifying publicly, House Oversight Committee Chairman Jason Chaffetz confirmed yesterday, Cristina Marcos reporting at the Hill.

Newly appointed special counsel in the Russia investigation Robert Mueller has been briefed on the memos James Comey used to document his interactions with President Trump, Pamela Brown and Shimon Prokupecz report at CNN.

Former Trump campaigner Paul Manafort and unofficial Trump adviser Roger Stone handed over documents requested by the Senate Intelligence Committee as part of its probe into Russian election interference, NBC News’ Ken Dilanian reports.

President Trump is close to appointing outside counsel to see him through the investigations into Russian interference in the presidential election, Robert Costa and Ashley Parker report at the Washington Post.

Former acting attorney general Sally Yates warned the White House about former national security adviser Michael Flynn so that the Trump administration could “act,” she said in an interview with The New Yorker’s Ryan Lizza.

The White House may be preparing to claim that special counsel Robert Mueller has conflicts of interest that stop him from assuming his role – a claim that does not hold up, explain Richard Painter and Norman Eisen at the Washington Post.

TRUMP VISITS ISRAEL

“I never mentioned the word or the name ‘Israel.’” Donald Trump denied specifically divulging that Israel was the source of the highly classified intelligence he reportedly shared with Russian officials earlier this month as he stood beside Israeli Prime Minister Benjamin Netanyahu yesterday, Nolan D. McCaskill pointing out that Trump was never accused of explicitly telling the Russians that the intelligence came through Israel at POLITICO.

In insisting he had not named Israel Trump seemed to confirm reports that Israel was the source of the classified intelligence he revealed to Russian officials, writes The Daily Beast.

Intelligence cooperation between the U.S. and Israel is “terrific,” Netanyahu told reporters, Philip Rucker reporting at the Washington Post.

President Trump said he will “do everything” to assist Israel and Palestine in achieving peace at talks with the President of the Palestinian Authority Mahmoud Abbas in Bethlehem this morning, the BBC reports.

President Trump and Sunni Arab nations see peace with Palestine as an integral part of the new regional alignment Netanyahu has wanted for years, Trump indicated yesterday at the start of his two-day visit to Israel, Peter Baker and Ian Fisher reporting at the New York Times.

“The United States and Israel can declare with one voice that Iran must never be allowed to possess a nuclear weapon … and must cease its deadly funding training and equipping of terrorists and militias.” President Trump expanded on his anti-Iran theme of Sunday’s speech in Saudi Arabia in a meeting with Israeli President Reuven Rivlin yesterday, and then later at a press conference with Israeli Prime Minister Benjamin Netanyahu, the Guardian’s Peter Beaumont and Saeed Kamali Dehghan report.

President Trump is encouraging Israel and its Arab neighbors to unite around the “common cause” of their deep distrust of Iran, highlighting the extent to which opposition to Iran is an organizing principle of the president’s attempts to remake the U.S.’ relationship with the Middle East, writes Julie Pace at the AP. Continue Reading »

National Security-Related Congressional Hearings, May 22-26

Tuesday, May 23

9:30am – Senate Armed Services Committee – Worldwide Threats (here)

2:00pm – House Committee on Homeland Security– Visa Overstays: A Gap in the Nation’s Border Security (here)

2:15pm – Senate Committee on Intelligence – Intelligence Matters (Closed) (here)

2:30pm – Senate Judiciary Committee –Building America’s Trust Through Border Security: Progress on the Southern Border (here)

2:30pm – Senate Armed Services Committee – Cyber Posture of the Services (here)

2:30pm – Senate Armed Services Committee – Navy Readiness Challenges, Emerging Threats, and the Requirements Underpinning the 355 Ship Force Structure Objective (Closed(here)

3:30pm – House Armed Services Committee – Fiscal Year 2018 Budget Request for U.S. Cyber Command (here)

Wednesday, May 24

9:30am – Senate Armed Services Committee – Industry Perspectives on Options and Considerations for Achieving a 355 Ship Navy (here)

9:30am – House Committee on Oversight and Government Reform – Oversight of the FBI’s Independence (here)

10:00am – House Intelligence Committee – Open and Closed Hearings for Russia Investigation Task Force (here)

10:00am – Senate Judiciary Committee – Nominations (Intellectual Property Enforcement Coordinator, Executive Office Of The President: Assistant Attorney General For Legislative Affairs; Director Of United States Citizenship And Immigration Services, Department Of Homeland Security) (here)

10:00am – Senate Committee on Homeland Security– Border Insecurity: The Rise of MS-13 and Other Transnational Criminal Organizations (here) Continue Reading »