Tuesday, November 22, 2016
During the presidential campaign, Donald Trump promised to bring back waterboarding. Indeed, he promised to bring back much worse. In apparant disregard of the Convention Against Torture, Trump proclaimed "I would approve more than that. It works."
The G. W. Bush administration has a sordid history with waterboarding and other forms of torture. While the administration sought to distance itself from torture decisions, recent information reveals that Bush was more than aware of the waterboarding use.
According to an earlier report on NPR, the torture report points to a document prepared in September 2006, the same month Bush publicly acknowledged the U.S. was holding detainees in secret prisons. It was intended as a Q&A to help the National Security Council principals deal with fallout of public disclosure. One question asked, "What role did the president play... Was he briefed on the interrogation techniques, and if so when?"
The answer: "President was not of course involved in CIA's day to day operations — including who should be held by CIA and how they should be questioned — these decisions are made or overseen by CIA directors."
In his book Bush, Jean Edward Smith chillingly reports that not only was Bush aware of the use of waterboarding, he directly ordered its first use.
"Senator McCain, a victim of torture during his 5 ½ years as a prisoner of war in Vietnam, along with Senator Dianne Feinstein (D-CA) led a successful bipartisan landmark anti-torture legislation that reinforces the United States’ ban on the use of torture, including waterboarding and other so-called “enhanced interrogation techniques.” The legislation—which passed in a 78-21 vote in the Senate and was signed into law as part of the National Defense Authorization Act for the 2016 Fiscal Year—was an historic victory in the fight to reestablish a durable, bipartisan consensus against torture."
In a late breaking report, the New York Times reveals that Trump today claimed that Retired General Matis convinced Trump that water boarding is ineffective.
We will see if the new administration, as well as Congress, will leave the anti-torture provisions intact.
Thursday, May 12, 2016
by Margaret Drew
This post follows up both Risa Kaufman's earlier post on UN Special Procedures and the U.S. visit and Martha Davis' post on two writings that take a critical look at the use of Special Procedures. Earlier this week, I checked in with Rebecca Landy of the US Human Rights Network (USHRN). Rebecca is the organization's Human Rights Outreach and Advocacy Manager. The following reports our conversation:
Rebecca, would you tell us a bit about the UN process of reviewing US compliance and progress with the various UN conventions?
While most folks in the United States are focused on our presidential election process – there is another important process for our democracy that will happen on a similar cycle – the reviews of the US’ human rights records on the three core UN human rights treaties our government has ratified.
The most recent rounds of those periodic reviews under the UN International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Racial Discrimination (CERD), and Convention Against Torture and Other Cruel Inhuman Degrading Treatment or Punishment (CAT) took place in 2014-2015 with each treaty body Committee releasing a set of Concluding Observations (or Recommendations) for the U.S. government.
But in addition to those periodic reviews, there are also one year follow-up reviews to the Concluding Observations that take place for each of these treaty bodies. Two of those for the U.S. happen to be occurring this week at the UN in Geneva. The UN Office of the High Commissioner for Human Rights website explains that the purpose of these follow-up reviews is “To monitor more closely the implementation of some of their recommendations that they consider urgent, priority or protective, and implementable within one or two years.”
When will the reviews happen and what is their likely scope?
The consideration of the U.S. CAT follow-up report took place on Monday and the CERD follow-up is happening this Friday. Unfortunately neither of these reviews was live webcast or in public sessions, so we will have to wait for the official reports to be released to learn more. That said, we do have a general sense of what those reports will cover based on the designated issues for follow-up. For CAT there are five follow-up issues and for CERD there are three issues for follow-up.
What are the specific issues?
For CAT, the issues are 1. Inquiries into allegations of torture overseas; 2. Guantanamo Bay detention facilities; 3. Interrogation techniques; 4. Excessive use of force and police brutality; and 5. Passage of the ordinance entitled Reparations for the Chicago Police Torture Survivors.
For CERD, the issues are 1. (a) to investigate and prosecute excessive use of force and (b) prevent the excessive use of force; 2. Immigrants; 3. Guantanamo Bay- specifically for the US to provide updated information for closing within one year.
Is there any significance in the identification of these particular issues?
Of note is that there is overlap in the issues these two treaty bodies considered “urgent, priority or protective, and implementable.” That designation means that we can exert extra pressure on the U.S. government to hold them accountable to these recommendations. Both include follow-up recommendations on excessive use of force and Guantanamo Bay (an issue also in the ICCPR follow-up last summer). While we wait to learn whether the UN experts determine if the U.S. has made progress on these issues - you can read the CAT civil society follow-up shadow reports and government report here and the CERD civil society follow-up shadow reports and government report here.
Do you have any expectations for the substance of the reports?
According to the Guardian, the total number of people killed by U.S. police officers in 2015 shows that the rate of death for young black men was five times higher than white men of the same age and the situation for immigrant communities being targeted by police is no better. Also,President Obama has yet to keep his promise of closing Guantánamo, including ending indefinite detention without trial. Given that, the follow-up reports by both Committees will not be encouraging. If so, we can take these reports to help push the government to action and advance a people-centered human rights movement at home. And we can be sure that any progress that is recognized in these reports happened because civil society, including grassroots communities, kept organizing!
What significance does the election have on this process and the substantive issues reviewed?
With the Obama Administration soon coming to an end, U.S. advocates hope the human rights legacy for this administration includes progress on these issue areas as well as the establishment of a long-term infrastructure and institutionalization to improve and ensure domestic implementation of international human rights treaties and recommendations.
Editors' notes: You may join USHRN’s CAT and CERD Listervs to keep posted and receive the reports once they become available. Also, USHRN organized many of the shadow reports submitted as part of the reviews. Though not covering the substance of the reports, the press release from the UN CAT session noted the impressive number of U.S. civil society shadow reports “the Committee had received 22 alternative reports for follow-up, 12 of which related to the follow-up of the United States” – showing a level of engagement by U.S. civil society that was coordinated and powerful.
Wednesday, March 16, 2016
Editors' Note: Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch
A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9th Circuit to do the same.
The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.
Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.
Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.
Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.
Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.
Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.
There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.
Thursday, March 19, 2015
As law professors, we often repeat the same strategies again and again in our efforts to promote human rights dialogue and education: we write law review articles, blogs, op eds, amicus briefs, textbooks and sign-on letters; we organize and attend conferences; we raise issues in our teaching.
Professor Michael Meltsner of Northeastern Law School, however, did something different. In 2011, he wrote a play: In Our Name: A Play of the Torture Years. As described by the author, the play "depicts how and why the nation found itself brutally treating the men it detained—some with good reason, some with stunning caprice—after 9/11. The play confronts the government rationalizations, the bizarre military hearings, and the willful blindness of the public to what was happening behind barbed wire."
After successful productions in Boston and New York, Professor Meltsner's work will be performed once again at 4 p.m., March 19, 2015, at Northeastern's Blackman Auditorium. A panel discussion of the ethics of torture will follow the performance.
As an alternative to professors' "business as usual," theatre has much to recommend it. "New Tactics for Human Rights," a program of the Center for Victims of Torture, reports that "by working through theatre, both performers and spectators can engage difficult questions in a safe space. Theatre is also an ideal instrument to give witness to human rights violations. It is also an excellent tool for education and awareness raising. Lastly, these insights can be used to advocate for policy and legislative changes."
Such creative efforts to perpetuate the dialogue about human rights and torture are particularly important given the continued detentions at Guantanamo and media blackout on conditions there. Recent reports indicate that the requests of Juan Mendez, the UN Special Rapporteur on Torture, to interview detainees have been denied. And the U.S. government has discontinued reporting on hunger strikes and forced feedings at the facility. Without new "news," there's a danger that indefinite detentions and the abuses that go along with them, will become simply part of everyday background noise.
In Our Name has sparked, well yes, more law review articles. But more importantly, by employing an unexpected strategy, it breathes new life into the movement to end these abuses.
Wednesday, March 18, 2015
Last week, Juan E. Méndez, U.N. Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, released an important thematic report on children deprived of their liberty. The Special Rapporteur concludes in his report that children deprived of their liberty are at a heightened risk of torture and ill-treatment due to their unique vulnerability and needs. He finds that healthy development in children can be derailed by excessive or prolonged activation of stress response systems in the body, with damaging long-term effects on learning, behavior and health. Moreover, the report finds that detention of children is inextricably linked—in fact if not in law—with the ill-treatment of children, due to the particularly vulnerable situation in which they have been placed, exposing them to numerous types and situations of risk. The report also provides an overview of the international legal framework and standards protecting children deprived of their liberty from being subjected to torture and other ill-treatment.
Some of the Special Rapporteur’s key recommendations and conclusions in his report on children deprived of liberty include:
• Detention of children should be used only for the shortest possible period of time, only if it is in the best interest of the child, and limited to exceptional cases.
• States should adopt alternatives to detention for children whenever possible.
• Minimum age of criminal responsibility should be no lower than 12 years old.
• No life sentences without parole for children (and even lengthy sentences can be grossly disproportionate and amount to ill-treatment).
• No use of restraints for children deprived of their liberty under any circumstance.
• No solitary confinement for children deprived of their liberty.
• No death penalty for children deprived of their liberty.
• No corporal punishment for children deprived of their liberty.
• No immigration detention (detention of children based on migration status is never in the best interests of child, is grossly disproportionate, and constitutes ill-treatment).
• Special attention should be paid to children deprived of their liberty in health- and social-care institutions, including in private settings.
For U.S. juvenile justice and immigration advocates, these may seem like almost revolutionary recommendations—no immigration detention, no criminal responsibility for children 12 years old and lower, no restraints. The report also points out that the “United States of America is the only State in the world that still sentences children to life imprisonment without the opportunity for parole for the crime of homicide.” Yet, many of the conclusions in the report have already been covered by other international bodies and special rapporteurs. This is the first time these recommendations have been put forth in the anti-torture context, however, which makes this report distinctive and important. Unfortunately, the U.S. has so far ignored the Special Rapporteur’s report and recommendations, as was highlighted by the ACLU.
The Special Rapporteur on Torture’s team at the Anti-Torture Initiative (ATI) has released a brief video on the report, and initiated a #StopChildTorture social media campaign, including a Thunderclap (join the #StopChildTorture campaign here). The Special Rapporteur also continues to actively work with colleagues and States to figure out the best ways to support implementation of his conclusions and recommendations. His team welcomes suggestions and you can get in touch with the new ATI Assistant Project Director Andra Nicolescu at firstname.lastname@example.org.
Tuesday, February 10, 2015
Building upon Cindy Soohoo's post from yesterday, The George Washington University School of Law Associate Professorial Lecturer in Law Robin Runge reflects upon U.S. policy toward women and workplace equity.
Prof. Runge writes:
The concept of using employment laws to promote specific societal behaviors and values is one that has been considerably explored in U.S. legal scholarship. For example, Title VII of the Civil Rights Act in 1964, prohibiting discrimination in employment based on race, ethnicity, color, religion, and sex is frequently described as a law intended to more broadly increase economic opportunity and promote equality for populations that had historically experienced extensive societal discrimination. The passage of the Family and Medical Leave Act in 1993 has been described as a reflection of U.S. society valuing a specific set of family and caregiving responsibilities over others by mandating employers provide unpaid, job guaranteed leave to employees for limited medical or caregiving reasons. I, among others, have criticized the FMLA for promoting behaviors that reflect the needs and experience of middle and upper class “ideal families,” to the exclusion of low income women who cannot afford to take unpaid leave and often don’t qualify for the job guarantee leave provided by the FMLA because they need to take leave for family-related reasons that don’t meet the requirements. See Robin R. Runge, Redefining Leave From Work, 19 Geo. J. on Poverty L. & Pol’y 445 (2012). Finally, recent amendments to the Fair Labor Standards Act are intended to promote breastfeeding among low income working women and help them maintain employment by requiring employers to provide break time and a private location to express milk at work. However, as Young v. UPS, currently pending before the U.S. Supreme Court demonstrates, pregnant women are still fighting for basic rights in the workplace.
Unlike Prof. Soohoo’s description of countries in East Asia, the U.S. is not facing a significant drop in birth rates or considerable concerns about a shrinking labor pool. I do not think, however, this is because our workplaces are models of equality for women. Quite the opposite. Women make up almost half the workforce, and a high percentage of mothers are working. Moreover, 40% of American mothers are the primary breadwinners for their families. So, women seem to be able to make it work in spite of a lack of pay equity, paid family leave, workplace flexibility, and rampant violence against women in some workplaces, even though the Pregnancy Discrimination Act was passed in 1978.
The employment and labor laws of the U.S. have created workplace structures and cultures that make women vulnerable to exploitation and discourage mothers from working. Just this week a headline in an article asked “When we will stop punishing women for having babies at the peak of their careers? Others have attributed a recent decrease in women in the workforce to U.S. employment policies that make it nearly impossible to have a child and maintain employment.
The Administration and several members of Congress have recently and consistently argued that passage of legislation mandating paid family leave and raising the minimum wage (women are the majority of minimum wage-earners) would promote women’s equality and economic opportunity with the Women’s Economic Agenda: When Women Succeed, America Succeeds: An Economic Agenda for Women and Families. However, this effort does not seem to be effective in getting the legislation passed.
Maybe if the U.S. did face a crisis in our birth rate, or a need to increase women’s participation in the workforce, that would result in legislation that makes our workplaces more equitable for women. Or maybe, whether there is a connection between increasing economic equality for women and government policy depends on where a woman lives, China or the U.S.
Tuesday, January 13, 2015
Ms. Guffy writes:
The United States finds itself on the sidelines as the world celebrates the 25th anniversary of the Convention on the Rights of the Child (“CRC”). The U.S. is one of only three nations that hasn’t ratified the CRC. Opponents to the treaty claim that the U.S. doesn’t need to ratify the treaty because our laws sufficiently protect children. A recent review of the U.S. by the UN Committee Against Torture highlighting the treatment of children in adult jails and prisons, however, proves this assumption to be tragically inaccurate.
In November, the United States told the U.N. Committee Against Torture that 7,400 children under 18 are currently incarcerated in adult jails and prisons. As detailed in a report submitted to the Committee by the International Women’s Human Rights Clinic at CUNY Law School, children incarcerated in adult facilities experience multiple human rights violations. Among the most gut-wrenching consequences of locking children up in adult facilities are staggeringly high levels of physical and sexual abuse. In a survey conducted by IWHR and the Michigan ACLU, more than a third of children in Michigan prisons reported sexual assault by staff, other prisoners, or both. A recent DOJ report investigating conditions at New York’s Riker’s Island jail exposed systematic abuse and extremely high levels of staff violence against incarcerated 16-18 years olds. The report noted that correctional officials purposely beat youth "off camera" and that civilian teachers contribute to the culture of violence by “looking the other way” so as to not witness the violence they know is happening. Because youth are often smaller and more vulnerable and less likely to report abuse, they are at greater risk of being victims of violence in adult facilities.
In response, the Committee released recommendations that address the most egregious rights violations that occur when children are funneled into a system designed to punish adults. The Committee recommended that the U.S. end life without parole sentences and the use of solitary confinement for children, adopt standards prohibiting the use of tasers on children and separate children from adult prisoners.
The Committee also recommended that the U.S. implement international minimum standards for juvenile justice and the protection of juveniles deprived of liberty. These standards acknowledge that because of their age and vulnerability, children experience deprivation of liberty acutely. They emphasize that incarceration should be a last resort and that rehabilitative alternatives should be explored. When children are incarcerated they are entitled to special protection that includes an absolute prohibition of incarceration with adults but also requires that facilities and staff be appropriate for children. The standards also recognize that children are still growing and have an incredible capacity for change. They emphasize the need for educational and other programming as well as the need to help children maintain their contacts with their families and communities. Simply put the standards recognize that children are not adults and subjecting them to adult criminal punishment violates their rights.
Adopting the international standard minimum rules to safeguard children in conflict with the law would go a long way to end the most egregious abuses in the criminal justice system. But there are deeper issues at play when a nation’s treatment of its children becomes an issue addressed by the U.N. Committee Against Torture. If children’s rights were truly embraced by the U.S., children would not be funneled into adult penal systems in the first place where traumatizing acts of violence and deprivation occur. The treatment of children in conflict with the law in the U.S. reveals deep flaws in our understanding of children’s rights and the retroactive protections afforded by the Committee are insufficient to address the roots of this injustice.
The CRC, however, explicitly articulates that deprivation the liberty of a child should be the last resort and provides measures for protecting the rights of children in detention. The holistic and comprehensive approach to children’s rights embodied by the CRC would require the United States to deeply examine its treatment of children in a way that brings compassion and accountability to the conversation. It’s time for the United States to commit to building a brighter future for our children by ratifying the Convention on the Rights of the Child.
Thursday, December 11, 2014
by Professor Michael Meltsner, Northeastern University School of Law, Guest Editor
By this time readers of the Human Rights at Home Blog are generally familiar with the appalling details revealed by the Report of the Senate Select Committee on Intelligence. That the United States has engaged, to quote the text, in the “use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values” is hardly news to those who have followed the nation’s reaction to 9/11, the terms of the Patriot Act, the creation of a prison at Guantanamo, the Abu Ghraib photographs, the John Yoo definition of torture, Vice President Cheney “Dark Side” comments, Defense Secretary Rumsfeld beliefs about forced standing, and the reports of a cadre of intrepid and courageous journalists, writers and pro bono lawyers, Jane Mayer and Stephen Oleskey to name just two of many, as well as a few whistleblowers, who have documented the C.I.A.s and the military’s activities at Guantanamo, so called Black Sites around the world and countries used for their friendly surrogate security services by means of international rendition. Indeed, we engaged in what the Report calls “improper action” throughout “the war on terror” at least until President Obama issued an executive order on his second day in office (and for all we know we still do).
Of course, the remarkable research delivered in the 499 page “Executive Summary” (of a supposed 6,000 page document) provides enough provocative detail that (despite redactions) well justifies a careful reading (Warning: not for the faint of heart.) The media has largely focused on the question of whether torture (or whatever euphemism comes to mind) produces “actionable intelligence,” whether the C.I.A. lied to higher ups and Congress, and whether the Report will lead to some form of accountability.
Each of these, plus a number other issues that leap out from the Report’s conclusions are obviously worthy of serious debate, especially the way in which dubious legal interpretations were consistently employed to justify whatever horrific treatment was on the Agency’s agenda. But the big news for me in the long awaited and oft disputed publication of the Report is political. Just how will a nation that is split ideologically and pragmatically over most everything that matters in public policy react to official revelations that we crossed a moral threshold? Republicans, with the exception of John McCain and a few allies, seem to find release of the information worse than the conduct of the interrogators. The former Bush officials and C.I.A. operatives who have chimed in to criticize have so far been short on facts, perhaps because Senate staffers craftily used the very language of Agency officers to make their case. Senate Democrats rely on what the New York Times correctly calls the “meticulous detail” of the Report’s findings to convey its credibility but they have to deal with a President whose cautious response must reflect a government dependent on C.I.A. national security calculations.
The key I think is not so much the next moves of government players but what happens in the country at large. So far the Jack Bauer narrative and “24” has made more of an impact on the nation than “Do onto others” or “what does becoming a torturer do to us?” But the Report is bound to stimulate public debate and ultimately should reveal the extent to which Americans believe the end of a reduction in the fear of an enemy justifies means that are not only illegal but plainly lead to swelling the ranks of the enemy. The same inability to think about proportion that characterizes our (world leading) mass incarceration penal system has so far been evident. Does a felt necessity excuse behavior that in other circumstances would be condemned? If torture “works” does that make it ok? And what is the definition of what “works”? Perhaps we will find out. Perhaps not. The United States today is a nation without consensus on major issues and if the public does not demand limits in the long run there will be few remaining. Unless the nation can be read to support an end to the culture of torture, history suggests the C.I.A. or some other aspect of power will let the dust settle and then get on with it again. If you doubt me take a look at the Church Report or the story of Guatemala in the 1950s or the fate of Salvador Allende. Without a committed public, expediency rules.
Michael Meltsner is the author of In Our Name: A Play of the Torture Years and The Making of a Civil Rights Lawyer. He is the Matthews Distinguished University Professor of Law at Northeastern University in Boston.