'The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism' by Peter Margulies in
Fordham Law Review comments
NSA surveillance abroad has spurred fresh debate about extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), which in Article 17 bars “arbitrary or unlawful interference” with individual privacy. The U.S. asserts that the ICCPR does not apply extraterritorially. To support this position, the U.S. relies on the language of Article 2(1) limiting a state’s duty to individuals “within its territory and subject to its jurisdiction.” Many international tribunals and scholars reject the U.S. stance, opting instead for a sweeping view of the ICCPR’s reach that requires a state to “respect” and “ensure” rights within its territory and anywhere it has “effective control” of either territory or persons. President Obama’s speech proclaiming that “all persons should be treated with dignity and respect” and enjoy “legitimate privacy interests in the handling of their personal information” has raised the stakes in the surveillance debate.
This Article takes a middle way: while the U.S. has an extraterritorial duty to “respect” ICCPR rights, the tailored surveillance engaged in by the U.S. pursuant to judicial authorization and congressional oversight does not violate Article 17’s prohibition on arbitrary interference. Despite differences in tone and emphasis, decisions of the European Court of Human Rights (ECHR) like Weber v. Germany do not diverge significantly from U.S. law, holding that statutes citing national security as a basis for surveillance have adequately informed the public and recognizing that notifying targets of surveillance would undermine government efforts. Where Europe and the U.S. part ways, the complementarity principle provides a measure of deference to the U.S., bolstered by the law of armed conflict and Security Council resolutions that require global cooperation against terrorism. The deference prompted by complementarity allows states to practice what I call procedural pluralism: flexibility in the procedural safeguards the state chooses, as long as those safeguards provide meaningful constraints on government.
Although U.S. surveillance abroad complies with Article 17 of the ICCPR, reforms beyond those specifically suggested by President Obama would seal the deal. An institutional public advocate to counter government arguments in court would enhance the legitimacy of U.S. surveillance, even more than the panel of lawyers recommended by the President. Minimization of irrelevant communications by non-U.S. persons after less than five years would also reinforce the United States’ case for compliance with Article 17. These reforms, like the candor in President Obama’s speech, would allow the U.S. to pivot from following to leading international law.
