Secretary Clinton Ordered Spying on U.N. Officials: Did Harold Koh Approve?

by Julian Ku

Peter’s posts on how Wikileaks actually makes the US and its diplomatic service look fairly good are spot on.  The Foreign Service looks a lot more interesting now that I know I get to spy for the U.S., too!  But as this article from Slate notes, Secretary Hillary Clinton made it official State Department policy (“The “National Human Intelligence Directive on the United Nations“) to secretly gather “biometric” and other information on foreign and U.N. diplomats.  This is very cool and I am glad to hear that she ordered this, but it is…umm… almost certainly a violation of U.S. obligations under international law. As the Guardian quotes a U.N. spokesman,

Within hours of the release of America’s “National Human Intelligence Directive on the United Nations“, Farhan Haq, the UN secretary general’s acting deputy spokesman, issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution’s inviolability.

“The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation,” he said. “The UN relies on the adherence by member states to these various undertakings.”

He noted a clause in the 1946 convention which states: “The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.”

Interestingly, the Headquarters Agreement was also adopted by joint resolution of congress, so it is binding law.  The argument from the U.S. side, if any litigation ever ensued domestically, would have to be that the Agreement is non-self-executing because it calls for arbitration in the event of any disputes between the U.S. and U.N.  But I would be curious to see if there was a legal memo somewhere justifying the legality of the Clinton directive here. And I would love to know how my old lawprof Harold Koh, now the State Department’s Legal Advisor, finessed this issue.  Or perhaps it is better to avoid giving these actions the taint of legality?

5 Responses

  1. The cable content supposedly originated at the CIA, so it’s quite possible he wasn’t consulted.

  2. The cable is from April of 2009. Koh was confirmed in June of 2009.

  3. What would the US potentially be inviolation of – collecting biometric data – much of which is probably available on the net anyway! biometric data is anything that measures identification unique to an individual so that they are specifically recognizable such as facial features, retina, iris and voice measurements, fingerprint data, features auch as tatoos or scars can be included in this. The FBI already has the largest biometrics database in the world – IAFIS Integrated Automated Fingerprint Identification System – which i think is mainly national in scope.  With the UN HQ in NY, i’m sure there is a recognition system used for security purposes based on some sort of biometrics – the questions really is why would Sec Clinton ask for this seemingly innocent information (havne’t read the wikileaks data) … very strange …  when she can probably access much of it fairly easily – supposedly you can get unique iris data just from a photo (NPR 11/30/2010) – but is it worth the hoopla?  dont’ really see the illegality here … is it a privacy concern – we know that’s out the window post 9/11 – imagine the biometrics data that will compile with the new scanners at the airports – though the TSA is saying they won’t keep the data… if you’re in london, you’re watched all the time! lots of biometric data not only being gathered but analyzed without any probably cause … we’re living in a hyper paranoid society – and Sec Clinton as always doesn’t want to be left behind and is probably just being herself ; ) one thing for sure will be the negative effect on the diplomatic realtionships of the diplomats, the impression of the US, the impression of Sec Clinton and their social dealing with them in the future.  No one is going to want to go their house for dinner … 

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    I agree with you Misbah. Although Hilary is clearly pushing the boundary of violating the 1946 UN convention – privileges and immunities clause, it seems the information she was going after is likely already in the American Biometic databases. I do not know too much about Biometic data, but from what I have read it seems to include, fingerprints and iris recognition. And from a CNN article I read it stated she also wanted to get credit card numbers, and frequent flier numbers as well. This to me seems like information that our government can obtain easily without having to send spies. It seems like such a risky stance for such limited information. Now the US is going to have even more problems trying to build trust in the International Community – and as may news articles have reported, it seems only a matter of time before international leaders begin calling for Clinton to resign.

  5. The frightening, and concerning issue is that the current administration has appointed such naifs that they needed to be told to collect such data on other governments……

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