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Poland will be paying a quarter of a million dollars to two Guantánamo detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri. The payment arises in the context of the torture of the terror suspects at a CIA “black site” operating on Polish territory. Last July, the European Court of Human Rights handed down its much-awaited judgments in the cases of Abd al-Rahim al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland in relation to Poland’s involvement in the CIA rendition, detention and interrogation program. The Court ruled that Poland violated the substantive and procedural aspects of the detainees’ right to be free from torture or inhuman or degrading treatment or punishment (Article 3, European Convention on Human Rights). The Court also found violations of, among other rights, Articles 5 (liberty and security), 8 (private and family life), and 13 (effective remedy) of the ECHR. The Court ordered the Polish government to pay €130,000 to Zubaydah and €100,000 to al-Nashiri, within three months from when the judgments become final. Poland appealed the ruling, but the request was rejected by a Grand Chamber panel on February 16, making last weekend the deadline for the payments. The Polish Foreign Ministry said on Friday that it was processing the payments, AP’s Vanessa Gera reported.

Poland will be paying a quarter of a million dollars to two Guantánamo detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri. The payment arises in the context of the torture of the terror suspects at a CIA “black site” operating on Polish territory. Last July, the European Court of Human Rights handed down its much-awaited judgments in the cases of Abd al-Rahim al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland in relation to Poland’s involvement in the CIA rendition, detention and interrogation program. The Court ruled that Poland violated the substantive and procedural aspects of the detainees’ right to be free from torture or inhuman or degrading treatment or punishment (Article 3, European Convention on Human Rights). The Court also found violations of, among other rights, Articles 5 (liberty and security), 8 (private and family life), and 13 (effective remedy) of the ECHR. The Court ordered the Polish government to pay €130,000 to Zubaydah and €100,000 to al-Nashiri, within three months from when the judgments become final. Poland appealed the ruling, but the request was rejected by a Grand Chamber panel on February 16, making last weekend the deadline for the payments. The Polish Foreign Ministry said on Friday that it was processing the payments, AP’s Vanessa Gera reported.

But the Court took a different, more robust view and found significant responsibility on part of the Polish government. The Court held (my emphasis added): “517. … Notwithstanding the [Article 3] Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held above, on the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the [High-Value Detainees Program] Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.”

The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance. The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data. The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden. These have made it clear that by using mass surveillance techniques and programs such as Tempora government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications. Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.

The Bureau’s Christopher Hird says: “We understand why the government feels the need to have the power of interception. “But our concern is that the existing regulatory regime to control the interception of communications data – such as phone calls and emails – by organisations such as GCHQ does not provide sufficient safeguards to ensure the protection of journalists’ sources, and as a result is a restriction on the operation of a free press.” The collection of data by authorities is governed in the UK by the Regulation of Investigatory Powers Act, known as RIPA. This is primarily focused on internal communications. Many of the investigations undertaken by Bureau journalists involve foreign sources and stories, which are more vulnerable to interception as RIPA does not provide the same safeguards as it does for internal communications. The Bureau is working with lawyers from Doughty Street chambers and law firm Leigh Day, who have advised that there is little protection or rigorous scrutiny provided by current UK legislation for these “external” communications.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

In another important decision on European participation in the US war on terrorism, the European Court of Human Rights (ECtHR) issued a judgment late last month against Italy for its role in the extraordinary rendition of Egyptian cleric Osama Mustafa Hassan Nasr, better known as Abu Omar. (An English-language summary of ruling is here; the full decision, presently available only in French, is here.) The ruling not only represents a further contribution to the Strasbourg Court’s growing accountability jurisprudence, but also highlights the United States’ own failure to provide any redress to victims of the torture program that it primarily created and operated. The ECtHR’s decision in Nasr v. Italy concerns one of the most notorious instances of extraordinary rendition (i.e., the extrajudicial transfer of an individual to another country for purposes of abusive interrogation). In 2003, Nasr, who had been granted political asylum in Italy, was abducted in broad daylight from a street in Milan and taken to Aviano air base, which is operated by the US Air Force. Nasr was subsequently taken, by way of the US’s Ramstein air base in Germany, to Cairo where he was interrogated by Egyptian intelligence services. Egyptian authorities held Nasr in secret for more than a year and subjected him to repeated torture before releasing him in April 2004. Approximately 20 days after his release — and after submitting a statement to Milan’s public prosecutor describing his abuse — Nasr was rearrested and detained without charges. He was released in 2007, but prohibited from leaving Egypt.

The ECtHR ruling centers on Italy’s role in Nasr’s abduction in Milan, his rendition to Egypt where he faced a real risk of abuse, and its subsequent failure to conduct an effective domestic investigation or to provide any redress. The ECtHR found Italy liable for multiple violations of the European Convention on Human Rights (ECHR), including article 3 (the prohibition on inhuman or degrading treatment), article 5 (the right to liberty and security), and article 13 (the right to an adequate remedy). It ordered Italy to pay €70,000 to Nasr and €15,000 to his wife, Nabila Ghali, for the suffering and anguish caused by her husband’s enforced disappearance. The Milan public prosecutor had previously investigated and prosecuted 25 CIA officers, including the agency’s Milan station chief, Robert Seldon Lady, and seven Italian military intelligence officers, for aiding and abetting in Nasr’s abduction and rendition. The United States strenuously opposed the prosecution, warning that it would harm US-Italian relations, and the Italian government successfully challenged much of the evidence on the grounds it could jeopardize national security. The trial court convicted 22 CIA agents in absentia and gave them prison sentences of between six to nine years; a Milan appeals court upheld the convictions and overturned the acquittals of the other three US defendants. Italy’s highest court, however, overturned the conviction of five of the Italian military intelligence agents based on state secrecy grounds. The Italian government has refused to seek the extradition of the convicted US nationals. (For more details, Human Rights Watch has an excellent summary of the proceedings in Italy here.)

The ECtHR’s ruling in Nasr strengthens accountability by reinforcing state responsibility for participation in abuses committed during the war on terrorism. It builds on the Strasbourg Court’s prior decisions in El-Masri v. Macedonia and Al-Nashiri v. Poland/Husayn (Abu Zubaydah) v. Poland, which held Macedonia and Poland, respectively, liable for their role in CIA torture and rendition, including (in the case of Poland) for hosting a CIA black site. Nasr, together with El-Masri and al-Nashiri/Husayn, should help discourage a state’s future participation in cross-border counterterrorism operations conducted in flagrant violation of human rights guarantees. While the deterrent value of legal judgments may be uncertain, the recent line of Strasbourg Court decisions raises the costs of aiding and abetting illegal operations, even in the national security context.

37      It must be stated that the interference caused by Directive 2006/24 with the fundamental rights laid down in Articles 7 and 8 of the Charter is, as the Advocate General has also pointed out, in particular, in paragraphs 77 and 80 of his Opinion, wide-ranging, and it must be considered to be particularly serious. Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his Opinion, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.

43      In this respect, it is apparent from recital 7 in the preamble to Directive 2006/24 that, because of the significant growth in the possibilities afforded by electronic communications, the Justice and Home Affairs Council of 19 December 2002 concluded that data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised crime. 44      It must therefore be held that the retention of data for the purpose of allowing the competent national authorities to have possible access to those data, as required by Directive 2006/24, genuinely satisfies an objective of general interest.45      In those circumstances, it is necessary to verify the proportionality of the interference found to exist.46      In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect, Case C‑343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 74; Cases C‑581/10 and C‑629/10 Nelson and Others EU:C:2012:657, paragraph 71; Case C‑283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C‑101/12 Schaible EU:C:2013:661, paragraph 29).

67      Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive 2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not ensure that a particularly high level of protection and security is applied by those providers by means of technical and organisational measures, but permits those providers in particular to have regard to economic considerations when determining the level of security which they apply, as regards the costs of implementing security measures. In particular, Directive 2006/24 does not ensure the irreversible destruction of the data at the end of the data retention period.68      In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C‑614/10 Commission v Austria EU:C:2012:631, paragraph 37).69      Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.

GCHQ's mass surveillance spying programmes are probably illegal and have been signed off by ministers in breach of human rights and surveillance laws, according to a hard-hitting legal opinion that has been provided to MPs.The advice warns that Britain's principal surveillance law is too vague and is almost certainly being interpreted to allow the agency to conduct surveillance that flouts privacy safeguards set out in the European convention on human rights (ECHR).The inadequacies, it says, have created a situation where GCHQ staff are potentially able to rely "on the gaps in the current statutory framework to commit serious crime with impunity".

Last year, Hague told MPs: "It has been suggested GCHQ uses our partnership with the US to get around UK law, obtaining information that they cannot legally obtain in the UK. I wish to be absolutely clear that this accusation is baseless."However, the legal advice poses awkward new questions about the framework GCHQ operates within, the role of ministers and the legality of transferring bulk data to other spy agencies.The advice makes clear Ripa does not allow GCHQ to conduct mass surveillance on communications between people in the UK, even if the data has briefly left British shores because the call or email has travelled to an internet server overseas.

The legal advice has been sent to the 46 members of the all-party parliamentary group on drones, which is chaired by the Labour MP, Tom Watson.

Poland has asked the European Court of Human Rights to bar media and public presence during an upcoming hearing on Poland’s complicity with the CIA’s “extraordinary rendition” program that delivered terror suspects to secret prisons around the world. The public hearing in Strasbourg, France, scheduled for Dec. 3, will be the first arguments testing allegations that the Polish government allowed the CIA to operate a jail for supposed Al-Qaeda fighters in Poland. The request for a private hearing “will be examined by the court shortly,” a court spokesperson told Reuters. Poland cited national security concerns as to why it wants the hearing to remain confidential.

"We should have the right to review this case in public," said Adam Bodnar, vice president of the Warsaw-based Helsinki Foundation for Human Rights. "I do not see a reason for confidentiality of proceedings." Bodnar added that most of the evidence about the alleged CIA jail is already public, and keeping it secret is pointless now. His organization was instrumental in uncovering evidence of Poland’s cooperation with the agency.

The European Court of Human Rights (ECHR) case was brought by lawyers for Abu Zubaydah and Abd al-Rahim al-Nashiri, both now detainees waiting for charges at Guantanamo Bay.

Just as the Bush administration and the U.S. media re-labelled “torture” with the Orwellian euphemism “enhanced interrogation techniques” to make it more palatable, the governments and media of the Five Eyes surveillance alliance are now attempting to re-brand “mass surveillance” as “bulk collection” in order to make it less menacing (and less illegal). In the past several weeks, this is the clearly coordinated theme that has arisen in the U.S., UK, Canada, Australia and New Zealand as the last defense against the Snowden revelations, as those governments seek to further enhance their surveillance and detention powers under the guise of terrorism.

This manipulative language distortion can be seen perfectly in yesterday’s white-washing report of GCHQ mass surveillance from the servile rubber-stamp calling itself “The Intelligence and Security Committee of the UK Parliament (ISC)”(see this great Guardian Editorial this morning on what a “slumbering” joke that “oversight” body is). As Committee Member MP Hazel Blears explained yesterday (photo above), the Parliamentary Committee officially invoked this euphemism to justify the collection of billions of electronic communications events every day. The Committee actually acknowledged for the first time (which Snowden documents long ago proved) that GCHQ maintains what it calls “Bulk Personal Datasets” that contain “millions of records,” and even said about pro-privacy witnesses who testified before it: “we recognise their concerns as to the intrusive nature of bulk collection.” That is the very definition of “mass surveillance,” yet the Committee simply re-labelled it “bulk collection,” purported to distinguish it from “mass surveillance,” and thus insist that it was all perfectly legal.

This re-definition game goes as follows: yes, we vacuum up and store literally as much of the internet as we possibly can. Then we analyze all the data about what you’re doing, with whom you’re speaking, and who your network of associates is. Based on that analysis of all of you and your activities, we then read the communications that we want (with virtually no checks and concealing from you what percentage of it we’re reading), and store as much of the rest of it as technology permits for future trolling. But don’t worry: we’re only reading the Bad People’s emails. So run along then: no mass surveillance here. Just bulk collection! It’s not mass surveillance, but “enhanced collection techniques.”  One of the many facts that made the re-defining of “torture” so corrupt and indisputably invalid was that there was long-standing law making clear that exactly these interrogation techniques used by the U.S. government were torture and thus illegal. The same is true of this obscene attempt to re-define “mass surveillance” as nothing more than mere innocent “bulk collection.”

The Bureau of Investigative Journalism has made an application to the European Court of Human Rights asking the court to rule on whether UK legislation adequately protects journalistic communications from government mass surveillance programs.  The case was filed in the court on September 12 2014. Lawyers working on the case include Gavin Millar QC at Doughty Street Chambers, Conor McCarthy at Monckton chambers and Rosa Curling at Leigh Day solicitors. The Bureau will publish all documents related to this case in due course. Below is the summary of the case:

The British government has admitted that its practice of spying on confidential communications between lawyers and their clients was a breach of the European Convention on Human Rights (ECHR). Details of the controversial snooping emerged in November: lawyers suing Blighty over its rendition of two Libyan families to be tortured by the late and unlamented Gaddafi regime claimed Her Majesty's own lawyers seemed to have access to the defense team's emails. The families' briefs asked for a probe by the secretive Investigatory Powers Tribunal (IPT), a move that led to Wednesday's admission. "The concession the government has made today relates to the agencies' policies and procedures governing the handling of legally privileged communications and whether they are compatible with the ECHR," a government spokesman said in a statement to the media, via the Press Association. "In view of recent IPT judgments, we acknowledge that the policies applied since 2010 have not fully met the requirements of the ECHR, specifically Article 8. This includes a requirement that safeguards are made sufficiently public."

The guidelines revealed by the investigation showed that MI5 – which handles the UK's domestic security – had free reign to spy on highly private and sensitive lawyer-client conversations between April 2011 and January 2014. MI6, which handles foreign intelligence, had no rules on the matter either until 2011, and even those were considered void if "extremists" were involved. Britain's answer to the NSA, GCHQ, had rules against such spying, but they too were relaxed in 2011. "By allowing the intelligence agencies free rein to spy on communications between lawyers and their clients, the Government has endangered the fundamental British right to a fair trial," said Cori Crider, a director at the non-profit Reprieve and one of the lawyers for the Libyan families. "For too long, the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so, they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years."

Crider said it now seemed probable that UK snoopers had been listening in on the communications over the Libyan case. The British government hasn't admitted guilt, but it has at least acknowledged that it was doing something wrong – sort of. "It does not mean that there was any deliberate wrongdoing on the part of the security and intelligence agencies, which have always taken their obligation to protect legally privileged material extremely seriously," the government spokesman said. "Nor does it mean that any of the agencies' activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings. The agencies will now work with the independent Interception of Communications Commissioner to ensure their policies satisfy all of the UK's human rights obligations." So that's all right, then.

The European Parliament today voted to investigate the extent of the CIA’s detention, torture and rendition programme in EU countries. The decision comes two months after the US Senate intelligence committee published a redacted summary of its six year investigation into the CIA’s detention and interrogation programme. The European Parliament’s committees on civil liberties, foreign affairs and human rights previously investigated the CIA’s programme in 2006, and they will now resume their inquiry with new details from the Senate’s report. Passing today’s resolution, MEPs said the summary “reveals new facts that reinforce allegations that a number of EU member states… were complicit in the CIA’s secret detention and extraordinary rendition programme, sometimes through corrupt means based on substantial amounts of money provided by the CIA in exchange for their cooperation”. Romania, Poland and Lithuania are widely known to have hosted CIA black sites, along with those in Afghanistan, Thailand and Guantánamo Bay.

In the first case of its kind last July, the European Court of Human Rights considered whether Poland had been complicit in the detention and transport of two CIA detainees, Abu Zubaydah andAbd al-Rahim al-Nashiri.

The motion passed today also encouraged the release of the report in full, without “excessive and unnecessary” redactions. References to individual countries were redacted in the summary on grounds of national security. Today’s resolution was approved by 363 votes to 290, with 48 abstentions.

A series of public inquests should be held into the deaths of civilians who are alleged to have been killed unlawfully by the British military following the 2003 invasion of Iraq, the high court has ruled.In a ground-breaking judgment that could have an impact on how the British military is able to conduct operations among civilians in the future, the court ruled on Friday that up to 161 deaths should be the subject of hearings modelled upon coroners' inquests.In practice, a series of hearings – possibly amounting to more than 100 – are likely to be held as a result of the judgment, which follows a three-year legal battle on behalf of the Iraqis' families.

Each hearing must involve a "full, fair and fearless investigation accessible to the victim's families and to the public", the court ruled, and should examine not only the immediate circumstances but other issues surrounding each death.As a first step, the court ordered Philip Hammond, the defence secretary, to announce within six weeks whether any of the deaths are to result in prosecutions, or to explain any further delays over prosecuting decisions.After years of judicial review proceedings, and in the face of determined opposition from the Ministry of Defence, which appeared anxious to maintain control over any investigative process, the court concluded that hearings modelled upon coroners' inquests were the best way for the British authorities to meet their obligations under article 2 of the European convention on human rights (ECHR), which protects the right to life.

The court also ruled that this should be just the start of the process by which public hearings will examine the alleged misconduct of some members of the British armed forces who served in Iraq.Following the completion of the Article 2 hearings – into allegedly unlawful killings – further hearings should be established in order to meet the UK's obligations under Article 3 of the ECHR, the court said. These will inquire into allegations of torture and lesser mistreatment of individuals detained by British troops in Iraq, focusing on a sample of the most serious of the 700-plus cases in which such allegations have been made.In December last year the MoD said it had paid out £14m in compensation and costs to 205 Iraqis who alleged unlawful imprisonment and mistreatment, and that it was negotiating a further 196 payments. Several hundred more claims were expected to be lodged.

End Torture, Shut Down the CIA! Written by Ron Paul Sunday July 27, 2014

Remember back in April, 2007, when then-CIA director George Tenet appeared on 60 Minutes, angrily telling the program host, “we don’t torture people”? Remember a few months later, in October, President George W. Bush saying, “this government does not torture people”? We knew then it was not true because we had already seen the photos of Iraqis tortured at Abu Ghraib prison four years earlier.   Still the US administration denied that torture was torture, preferring to call it “enhanced interrogation” and claiming that it had disrupted so many terrorist plots. Of course, we later found out that the CIA had not only lied about the torture of large numbers of people after 9/11, but it had vastly exaggerated any valuable information that came from such practices. However secret rendition of prisoners to other places was ongoing.

The US not only tortured people in its own custody, however. Last week the European Court of Human Rights found that the US government transferred individuals to secret detention centers in Poland (and likely elsewhere) where they were tortured away from public scrutiny. The government of Poland was ordered to pay hundreds of thousands of dollars in damages to two victims for doing nothing to stop their torture on Polish soil.

Senior Whitehall figures are drawing up controversial plans to ensure that Britain’s armed forces will no longer be subject to legal claims by their enemies over human rights violations.Guaranteed to have Brits in Middle England choking on their morning croissants, Saturday’s claims from right-wing mouthpiece, The Telegraph, insisted that taxpayers are facing a bill of £150 million to defend British soldiers being sued by “enemy fighters” for breaching their human rights. The Telegraph claimed that over 2,000 compensation claims and judicial reviews are being prepared by lawyers in the aftermath of the wars in Afghanistan and Iraq as part of a growing litigation culture that is encroaching on the ability of the armed forces to do their jobs.So far, 500 judicial review applications have been lodged, with 1,200 claims for compensation against the Ministry of Defense for alleged abuse, unlawful detention, and unlawful killing in Iraq.Further, an estimated 800 compensation cases from Afghanistan could follow.

Defence secretary Michael Fallon is so dismayed at what he calls the “increasing encroachment of human rights law into the battlefield,” that he is determined to take steps to stem the tide of legal action.Some of the planned fightback by ministers should concern everyone:Pulling out of the European Convention: Ministers could declare a temporary withdrawal from the European Convention on Human Rights (ECHR) before sending British forces into action in future.Taking legal action against law firms that have brought “bogus” cases against the Armed Forces: This includes referring lawyers to legal watchdogs and bringing fraud prosecutions against firms found to have made false allegations.A time limit on legal action to stop compensation claims being made years after incidents occur: Further reforms would end legal aid for claimants who are living outside the U.K.Planned new laws would also allow the government to recover the costs of “bogus judicial reviews,”  but one proposal is the most worrying of all:

A new Bill of Rights: Michael Gove is working on a British Bill of Rights to replace the Human Rights Act, according to ministers. It will reportedly include safeguards for the Armed Forces to protect them from being sued.In contrast to Michael Fallon’s indignation, a report by Stop The War claims “The long history of British abuse and torture in Kenya, Malaya, Aden, Cyprus, Northern Ireland and Afghanistan cannot be explained as the work of a few ‘bad apples.’”.BottomResponsiveBanner{width:300px;height:250px}@media (min-width:420px){.BottomResponsiveBanner{width:336px;height:280px}}@media (min-width:1300px){.BottomResponsiveBanner{width:728px;height:90px}} The report lists abuses committed by British forces and also references the “loss of the moral compass evident in the behaviour of British forces in Iraq and Afghanistan.”Some might say that by scrapping the Human Rights Act, the government fears being challenged and wants to take away the public’s ability to contest decisions and policies. One thing is for sure: without it, the British government will be allowed to act with almost complete impunity.

Last week’s post by Megan Graham is certainly a welcome contribution in explaining the implications of the Max Schrems case by the European Union Court of Justice, and specifically how it relates to the Safe Harbor arrangement between the US and the EU. Let me add a different perspective: Irrespective of its consequences for Safe Harbor, last week’s ruling is hugely important on a more general level, namely for the understanding of what the right to privacy entails in Europe and what this means for mass surveillance. Through its ruling in Max Schrems the EU’s highest court has established that: Mere access by public authorities to confidential or group-specific communications data constitutes an intrusion into the right to privacy, even without any further processing of that data; and While indiscriminate intrusion into “metadata” may constitute a particularly serious intrusion into the right to privacy, access to “content” data will affect the essence of the right to privacy.

These findings were made under Article 7 of the EU Charter of Fundamental Rights, a broad provision on the right to respect for one’s private life. This provision of the EU Charter, which is a part of the foundational treaty framework of the European Union, is almost identical to Article 8 of the European Convention on Human Rights, a treaty legally binding for broader Europe and routinely a part of domestic legal orders. It remains to be seen whether the guardian of the latter framework, the European Court of Human Rights, will also be courageous enough to determine that indiscriminate mass surveillance that provides access to “content” data breaches the essential core of the right to privacy. The highest EU court already took that bold step. One of the most important implications of identifying government access to content as breaching the essence of the right to privacy, is that it negates the need for a proportionality assessment. Measures that compromise the essence of privacy have already crossed a red line, and there is no need for any further “balancing” between privacy and security. Therefore, the Max Schrems ruling is a huge blow to many of the current methods of electronic mass surveillance, including those practiced by the US and several European countries (including the United Kingdom).

Several additional points from my earlier post in Verfassungsblog about this case are also worth noting. First, the EU court did not really dwell on the separate Article 8 provision of the EU Charter on Fundamental Rights, concerning the right to the protection of personal data. This was perhaps because that provision is triggered by the “processing” of data, while the general privacy (Article 7) impact comes into play through mere “access.” Another point is that while it was easy to establish the jurisdiction of the EU court over data transfers from Europe to Facebook’s servers in the US, it may be much harder to bring a case before that court concerning “upstream” methods of mass surveillance, such as the NSA’s tapping of transatlantic fiber optic telecommunications cables. Perhaps most importantly, the substantive ruling in the Schrems case is formulated in a way that it would apply to any method of mass surveillance that gives public authorities access to the content of ordinary people’s private communications, including communications intended for a group of people but not for the authorities. Hence, the ruling is a major contribution as to what the right to privacy substantively means in Europe.

The European Parliament on Wednesday condemned the “apathy shown by member states and EU institutions” over torture in secret CIA prisons in Europe. A non-binding resolution, which passed 329-299, urged member states to “investigate, insuring full transparency, the allegations that there were secret prisons on their territory in which people were held under the CIA programme.” It also called on the European Union to undertake fact-finding missions into countries that were known to house American black sites. The resolution named Lithuania, Poland, Italy, and the United Kingdom as countries complicit in CIA operations. The Parliament also expressed “regret” that none of the architects of the U.S. torture program faced criminal charges, and that the U.S. has failed to cooperate with European criminal probes.

Despite banning torture when he came into office, President Obama has fought all attempts to hold Bush administration officials accountable, including by invoking the state secrets privilege to block lawsuits and delaying the release of the Senate Torture Report. When it was made public in 2014, the executive summary of the 6,000-page report confirmed that Poland’s former president, Aleksander Kwasniewski, signed off on the use of a CIA black site in the country, though he denied knowledge of torture. The European Court of Human Rights later issued an unprecedented ruling requiring Poland to pay $262,000 in reparations to two Guantánamo inmates who were tortured in Poland. While Obama continues to “look forward, not back,” victims of U.S. torture are increasingly looking to international courts for justice.

The European Parliament’s resolution requested that the European Commission and European Council produce a report on member states’ investigations and prosecutions by the end of June. In April, a federal judge ruled that survivors of CIA torture could sue the two psychologists who designed the CIA’s torture techniques. The case marks the first time a torture-related lawsuit against CIA employees will go to trial.

Three of Britain’s most prominent campaign groups have today announced the launch of a legal challenge against the actions of GCHQ, alleging it has illegally intruded on the privacy of millions of British and European citizens. Big Brother Watch, the Open Rights Group and English PEN, together with German internet activist Constanze Kurz, have filed papers at the European Court of Human Rights bringing an action against the UK Government.

 They allege that by collecting vast amounts of data leaving or entering the UK, including the content of emails and social media messages, the UK’s spy agency has acted illegally. When details recently emerged in the media about the Prism and Tempora programmes, codenames for previously secret online surveillance operations, it was revealed that GCHQ has the capacity to collect more than 21 petabytes of data a day – equivalent to sending all the information in all the books in the British Library 192 times every 24 hours. The disclosures have raised serious parliamentary concerns both in Britain and at the EU level. Deighton Pierce Glynn solicitors represent the applicants, instructing Helen Mountfield QC of Matrix Chambers and Tom Hickman and Ravi Mehta of Blackstone Chambers. The legal action will be funded through donations at www.privacynotprism.org.uk

Just last week we wrote about the growing number of legal challenges to GCHQ spying. Now here's another one, from The Bureau of Investigative Journalism, which is concerned about how blanket surveillance threatens the workings of a free press: The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists' sources and communications from government scrutiny and mass surveillance.

The NSA and Britain's GCHQ hacked the world's biggest SIM card maker to harvest the encryption keys needed to silently and effortlessly eavesdrop on potentially millions of people. That's according to documents obtained by surveillance whistleblower Edward Snowden and leaked to the web on Thursday. "Wow. This is huge – it's one of the most significant findings of the Snowden files so far," computer security guru Bruce Schneier told The Register this afternoon. "We always knew that they would occasionally steal SIM keys. But all of them? The odds that they just attacked this one firm are extraordinarily low and we know the NSA does like to steal keys where it can." The damning slides, published by Snowden's chums at The Intercept, detail the activities of the as-yet unheard-of Mobile Handset Exploitation Team (MHET), run by the US and UK. The group targeted Gemalto, which churns out about two billion SIM cards each year for use around the world, and targeted it in an operation dubbed DAPINO GAMMA.

Gemalto's hacking may also bring into question some of its other security products as well. The company supplies chips for electronic passports issued by the US, Singapore, India, and many European states, and is also involved in the NFC and mobile banking sector. It's important to note that this is useful for tracking the phone activity of a target, but the mobile user can still use encryption on the handset itself to ensure that some communications remain private. "Ironically one of your best defenses against a hijacked SIM is to use software encryption," Jon Callas, CTO of encrypted chat biz Silent Circle told The Register. "In our case there's a TCP/IP cloud between Alice and Bob and that can deal with compromised routers along the path as well as SIM issues, and the same applies to similar mobile software."

On Wednesday the UK government admitted that its intelligence agencies had in fact broken the ECHR when spying on communications between lawyers and those suing the British state, so GCHQ might want to reconsider that statement.

Thousands of people are signing up to join an unprecedented legal campaign against the United Kingdom’s leading electronic surveillance agency. On Monday, London-based human rights group Privacy International launched an initiative enabling anyone across the world to challenge covert spying operations involving Government Communications Headquarters, or GCHQ, the National Security Agency’s British counterpart. The campaign was made possible following a historic court ruling earlier this month that deemed intelligence sharing between GCHQ and the NSA to have been unlawful because of the extreme secrecy shrouding it.

Consequently, members of the public now have a rare opportunity to take part in a lawsuit against the spying in the Investigatory Powers Tribunal, a special British court that handles complaints about surveillance operations conducted by law enforcement and intelligence agencies. Privacy International is allowing anyone who wants to participate to submit their name, email address and phone number through a page on its website. The group plans to use the details to lodge a case with GCHQ and the court that will seek to discover whether each participant’s emails or phone calls have been covertly obtained by the agency in violation of the privacy and freedom of expression provisions of the European Convention on Human Rights. If it is established that any of the communications have been unlawfully collected, the court could force GCHQ to delete them from its vast repositories of intercepted data.

By Tuesday evening, more than 10,000 people had already signed up to the campaign, a spokesman for Privacy International told The Intercept. In a statement announcing the campaign on Monday, Eric King, deputy director of Privacy International, said: “The public have a right to know if they were illegally spied on, and GCHQ must come clean on whose records they hold that they should never have had in the first place. “We have known for some time that the NSA and GCHQ have been engaged in mass surveillance, but never before could anyone explicitly find out if their phone calls, emails, or location histories were unlawfully shared between the U.S. and U.K. “There are few chances that people have to directly challenge the seemingly unrestrained surveillance state, but individuals now have a historic opportunity finally hold GCHQ accountable for their unlawful actions.”