Human Rights at Home Blog

Challenging Trump’s Agenda, State and Local Style

Risa Kaufman & JoAnn Kamuf Ward, Columbia Law School Human Rights Institute

 

State and local officials can be a bulwark against the Trump administration’s efforts to undermine human rights. Their potential was on full display during Trump’s first weeks in office.

With immigrants as his prime target, President Trump signed a sweeping executive order temporarily suspending refugee admissions, indefinitely banning refugee admissions from Syria, and imposing severe restrictions for 90-days on immigration from seven Muslim-majority countries. Earlier, he issued an order to begin construction on a border wall between the U.S. and Mexico and ramp up immigration enforcement within the United States. For those “sanctuary jurisdictions” that resist this crack down on their residents by limiting cooperation with federal authorities on immigration enforcement, Trump ordered withholding of federal funding, thus carrying out a promise made on the campaign trail.

In the midst of these assaults on human rights, we’ve seen massive nation-wide organizing and public protests, remarkable collaboration to develop swift legal challenges, and courageous resistance and dissent from within the federal government. State and local officials from many jurisdictions are stepping in and stepping up, as well, vowing to protect local communities.

State and local efforts to protect human rights, particularly in the context of immigration, are not new. In recent years, sanctuary jurisdictions have emerged as a response to the over-enforcement of draconian federal immigration restrictions which separate families and disrupt lives and livelihoods. New York, Seattle, Boston, Los Angeles, Philadelphia, Chicago, and Washington, D.C. are among the 39 cities that have declared that they will not share information with federal authorities on immigration status or turn their citizens over to federal immigration authorities for minor infractions. Four states (California, Connecticut, Vermont, and Rhode Island) and hundreds of counties make up the ranks, as well. Jurisdictions take wide ranging and differing approaches to their sanctuary policies. What they share, however, is a principled commitment to keeping immigrant communities safe and to ensuring equal treatment of individuals.

In this new era, the stakes are increasingly high. Indeed, in the wake of the executive order threatening loss of funding, some sanctuary jurisdictions are rethinking their approach. Miami-Dade’s mayor ordered county jails to comply with federal immigration detention requests, citing the over 300 million dollars of federal funding at stake.

But others are standing firm. New York Mayor Bill De Blasio vowed to prioritize city policies that foster positive ties between law enforcement and immigrant communities. And he suggested that the City would sue the federal government if it withholds funding pursuant to the new executive order. Boston Mayor Marty Walsh said that Boston would not be intimidated by threatened federal cuts. New York State Attorney General Eric Schneiderman issued a guidance for local authorities on how to limit participation in immigration enforcement, and suggested model sanctuary provisions. California’s Governor Jerry Brown, too, has spoken out strongly about his state’s commitment to “defend everybody – every man, woman and child – who has come here for a better life and has contributed to the well-being of our state."

Other examples of state and local resistance to the Trump agenda have emerged. In response to the January 27^th executive order halting refugee admissions and imposing a 90-day ban on entry of immigrants from seven Muslim-majority countries, sixteen state Attorney’s General issued a joint statement condemning the order as "unconstitutional, un-American and unlawful," and vowing to challenge the order in court. As of this writing, the Governor and Attorney General of Washington announced plans to file broad-based litigation seeking to invalidate the order, and the Attorney General of Massachusetts announced the intention to join in litigation brought by the ACLU.  

The emergence of vocal state and local leaders, speaking out for foundational human rights principles of equality and non-discrimination, regardless of citizenship status, illustrates the critical role that state and local governments play in safeguarding human rights, particularly where the federal government fails to do so. Notably, a number of sanctuary jurisdictions have also made express commitments to promote and protect human rights. Boston and Seattle are among the eleven self-proclaimed “Human Rights Cities” in the United States – a number that continues to grow. Los Angeles and San Francisco have enacted ordinances based explicitly on international human rights treaties. Chicago has likewise committed to address domestic violence and children’s rights as human rights issues. Add to these examples innovative efforts by mayors, legislatures, and state and local agencies across the United States to incorporate human rights into local law and policy.

As these actions by mayors, governors, and Attorneys Generals illustrate, human rights do, indeed, begin in small places, close to home. And state and local officials will have an increasingly vital role to play in ensuring that the United States protects and respects human rights in the age of Trump.

Happy Birthday, Fred Korematsu

Right about now in the spring semester, my Constitutional Law class reaches the case of Korematsu v. United States, 323 U.S. 214 (1944), in which the U.S. Supreme Court upheld the criminal conviction of Fred Korematsu, an American citizen who resisted relocation to an internment camp.  In reviewing the criminal law, a six-member majority of the Court found that strict scrutiny applied to its review, yet upheld the law.  According to the Court, "[p]ressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."  The Court concluded that these measures were not race-based, but necessitated by the dynamics of World War II.  This year, in particular, my students want to know, "is Korematsu still good law?"

The Korematsu case has never been reversed, but most scholars and judges consider it to be discredited -- part of the anti-canon, as Professor Noah Feldman put it in a recent New York Times op-ed.  No wonder, then, that alarm bells sounded when Trump acolytes began to invoke Korematsu as precedent that would support restrictions on Muslims and others based on race, religion and national origin.  

January 30 is Fred Korematsu's birthday.  Through the Korematsu Institute for Racial Justice, Social Equity and Human Rights, his family carries on his legacy as a brave individual citizen willing to speak truth to power.  If your day-to-day routine makes it hard to prioritize individual acts of resistance, think about purchasing the Institute's 2017 calendar.  It will provide a daily reminder of the importance of taking action to ensure that we do not go back to a time when the federal government and the Supreme Court could find that such race-based restrictions were constitutionally permissible.

In a 2014 speech to University of Hawaii Law Students, Justice Scalia responded to a question about the Korematsu case like the one posed by my own students:  is it good law?  "It was wrong," he opined, "but you're kidding yourself if you think the same thing will not happen again."

 

Beyond Borders: The Human Rights of Non-Citizens

Everyone who cares about human rights at home owes a debt of gratitude to the lawyers and law students who worked through the past weekend to provide assistance to the refugees and immigrants affected by the President's ill-conceived executive order.  The hard work will continue, the front lines are everywhere, and we all have roles to play: showing up to be counted; supporting organizations doing the legal, organizing and factual reporting work; providing places for continued dialogue; comforting and strategizing with those who are vulnerable; and ensuring, through our teaching and writing, that rolling back human rights and civil rights protections never becomes the "new normal."

This spring, the University of Connecticut will provide an important forum for discussing these issues.  The Senator Joseph Lieberman Spring conference on Human Rights, April 20-21, 2017 , is:  Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad.  Panelists will address issues of citizenship, membership and "othering" through an interdisciplinary lens.  For example, the April 21 morning panel titled "Rights Across Borders" is described as follows:

This session will explore the obligations that states have to non-citizens outside their borders, including obligations to receive refugees and to address the underlying factors contributing to flight. Panelists will address questions such as: Do international human rights obligations extend across borders? What obligations, if any, do states have to allow entry? Are state obligations more demanding if the conditions causing flight are linked to the state’s own actions? What have been the adverse human rights impacts of increased border controls and barriers to migration, and is there a human rights argument these should be lessened? Is current international law adequate to respond to new causes of displacement, such as climate change? To the growing crisis of statelessness? What are the gendered and racialized dimensions of international migration and immigration policies? Do states have obligations to address the underlying conditions that cause displacement and migration? Are international norms and institutions adequate to respond to the global crises of flight, migration, and statelessness?

More information on the conference is available here. 

In the ongoing struggle for human rights at home, timely gatherings like this one help provide the intellectual grounding for forward motion, even though it's hard to see that horizon in the moment as lawyers and activists work round-the-clock to protect their clients and maintain the status quo.   

 

Academics Against the Executive Order

Over 7,000 academics from across the country have signed a letter urging the President to reconsider his  Executive Order restricting immigration rights. 

Here is the substance of the letter:

The Petition

"President Donald Trump has signed an Executive Order (EO) proposing a 90-day suspension of visas and other immigration benefits to all nationals of Iran, Iraq, Syria, Sudan, Yemen, Libya and Somalia. The unrealistic conditions required for discontinuing the suspension make it very likely that this EO will turn into a permanent ban. We, the undersigned academics and researchers from a variety of fields of study, backgrounds, and personal convictions, would like to voice our concern and strongly oppose this measure on three grounds:

1.    This Executive Order is discriminatory. The EO unfairly targets a large group of immigrants and non-immigrants on the basis of their countries of origin, all of which are nations with a majority Muslim population. This is a major step towards implementing the stringent racial and religious profiling promised on the campaign trail. The United States is a democratic nation, and ethnic and religious profiling are in stark contrast to the values and principles we hold.

2.    This Executive Order is detrimental to the national interests of the United States. The EO significantly damages American leadership in higher education and research. US research institutes host a significant number of researchers from the nations subjected to the upcoming restrictions. From Iran alone, more than 3000 students have received PhDs from American universities in the past 3 years. The proposed EO limits collaborations with researchers from these nations by restricting entry of these researchers to the US and can potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the US. We strongly believe the immediate and long term consequences of this EO do not serve our national interests.

3.    This Executive Order imposes undue burden on members of our community: The people whose status in the United States would be reconsidered under this EO are our students, friends, colleagues, and members of our communities. The implementation of this EO will necessarily tear families apart by restricting entry for family members who live outside of the US and limiting the ability to travel for those who reside and work in the US. These restrictions would be applied to nearly all individuals from these countries, regardless of their immigration status or any other circumstances. This measure is fatally disruptive to the lives of these immigrants, their families, and the communities of which they form an integral part. It is inhumane, ineffective, and un-American.

These bans, as proposed, have consequences that reach beyond the scope of national security. The unethical and discriminatory treatment of law-abiding, hard-working, and well-integrated immigrants fundamentally contravenes the founding principles of the United States.

We strongly denounce this ban and urge the President to reconsider going forward with this Executive Order."

If you are interested in signing on, you may do so here.

The Gag Rule And Rapid Response

Starting his first full week in the oval office, President Trump took the first step to end all federal funding for Planned Parenthood.

The executive order implements the Global Gag Rule.  Even though the US funding of international health care is not used for abortion, the administration has declared that any organization receiving US funds is prohibited from providing any abortion services, including from discussing abortion as an option for women's health or providing abortion referrals, even if none of the health care information is disseminated using US funds.  The rule, implemented in prior administrations, was not in effect during the Obama years. 

This is step number one in the movement to dismantle Planned Parenthood.  No federal money is used for abortion services in Planned Parenthood's budget.  Indeed, much of Planned Parenthood's work is the provision of non-abortion health services.  But we can look toward Congress to submit legislation that will demand a gag rule on Planned Parenthood, as well.

This will be the next big issue for women to challenge in an organized way.

One suggestion that came out of the marches is for protesters to create a rapid response as events unfold.  So here is one suggestion from my rapid response team: donate $5.00 to the only women's clinic in Mississippi that provides comprehensive reproductive health care.   

 

 

 

 

 

 

My Slant on Lee v Tam

by Jeremiah Ho

 

Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office.  (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.

Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.

What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.

Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “immoral, deceptive, or scandalous matter[,] or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.  

What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?        

Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)

Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.                

One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.

One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.

 

 

Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.

Thank You, President Trump

Over the past few decades, I wondered what it would take for women to mobilize.  Increasingly, we have been disrespected.  "Bitch" has come into conversational use.  Music is often disrespectful toward us and we continue to bear the brunt of familial care-giving and then penalized for it in the workplace.  Why were women being so passive?  We failed to pro-actively and collectively use our power.

Donald Trump's election as president mobilized women in a way unseen in the history of this country, if not all of the world?  Did the election of a sexual predator clarify women's vision of the future for us and our planet?  We were able to mobilize to protect the next and future generations of daughters and sons.   Because the next generation is in danger of living in a regressive and more repressive culture, women rose.  

Solidarity among sisters world wide informs us of the power of women.  Women are out of the closet in a way unseen in America.  Never before has the international sisterhood organized so effectively.  

Trump is not the only one threatening our rights.  Government supports institutional oppression while the media mostly portrays women in ways that diminish their autonomy and existence, whether you are a presidential candidate or a single mom trying to make it through the day.  

Our obligation to future generations and to the planet is to keep our power in play for good.  The out of sync patriarchal world has resulted in violence, corruption and spiritual decline.  The time is now for women to restore the world to balance, not eliminate the masculine, but bring the masculine and feminine into balance.

None of this would have happened but for the actions of Mr. Trump.    

 

 

January 21: The View from Copenhagen

by Nancy Dowd, guest contributor, Professor, University of Florida College of Law, Visiting Distinguished Professor at the Raoul Wallenberg Institute, Lund, Sweden. 

 

I was in Copenhagen for the day, invited by the director of the Raoul Wallenberg Institute and his wife for lunch and a walk around their part of the city (a very cool and unique area called Christiana), and went with another visiting professor, Anne Orford, and her family.

At the end of the day, about 6pm here, we walked back to the metro, and took that to the airport, where you have to pass through customs, this all to prevent immigrants from coming into Sweden illegally. As I went through the process, the agent asked me "how was your day yesterday?" I thought it was a trick question or something and got a little worried. I responded "fine" and took a step or two. Then it dawned on me, he was asking about the inauguration...."It was awful!" I said to him, "But today is beautiful!" On the way on the metro I turned on my phone and had gotten the live coverage of the Women's March, and was absolutely blown away. So this was about 11 am EST.

Then as we stood on the subway, I suddenly noticed the back of the jacket of the young woman in front of me. It had a statement taped on it about why she was standing/demonstrating for equality, justice and human rights and against the kind of man who in word and deed stands for none of that. Then the door opened and she was gone; I wished later I had said something to her--thank you, for standing with us, and standing for you.

 

As we rode back to Sweden, Anne and I shared what we were seeing on the live feeds, and also the shots from Twitter--of the amazing, funny, uplifting, incredible signs and the people. The wonderfully diverse people in that crowd. The crowds in other, less expected places. Texas!!! And late last night I heard about the march in St Augustine. Unity and solidarity unimagined. And I suspect that although the march was predominantly women, it's wonderful to imagine the sons, husbands, lovers, friends, all male, who are attached to that immense crowd of women.

THE SIZE OF IT WAS MIND BLOWING. UPLIFTING. I HAVE HOPE NOW.

 

The energy was palpable here. So my thanks to you who marched or supported the march. I was proud to be an American; and also proud to see that the link between women, around the world, is strong, bridging differences. One of the most important things about this moment for me is that the leadership and the goals were multiracial and intersectional. That is a gigantic step forward for women.  Affirmative, for the good.

Pussy Hats and Protest

At first I thought that pussy hats were only the project of well-off white women and one more symbol of liberal futility.  But as March preparations moved ahead, I appreciated the brilliance of the project.  Women of all colors and religions embraced the project creating a sea of bright color that could not deny whose march this was.  I regret that my camera was not easily available in the metro when I spotted three Muslim women studying a large metro map with their backs to travelers, their brilliant pink scarves covering their heads.  A moment lost for posterity but one that will be in whatever part of my brain stores beauty, strength  and pleasure.  Nor will I forget the moment when I left the metro and locked eyes with a young woman of color and we smiled, enjoying the solidarity that our hats symbolized.

Like the march itself, the hats were bold.  The shame that can be projected upon women for being female discarded by wearing our vaginas on our heads. 

If nothing else, the world-wide women's marches have taught us that we cannot and should not rely upon men to secure our power for us.   Our power is unleashed only when we are free to be ourselves.  The women marchers were organized, purposeful, kind, peaceful, happy!  Gracious and generous in that special female way.  Women realize that it is their opinion of themselves that matters.  Women's strength comes from other women. It always has.

So pull out your pussy hat and wear it unabashedly.  My hat-making is on back order, but here is the pattern.

 

We Must March

The Women's Rights Marches scheduled in every state in the country on January 21, are not just domestic phenomena, nor are they narrowly limited to women's rights.  Rather, the organizers remind us, women's rights are human rights -- they affect everyone -- and human rights are for all. 

The energy around these marches is palpable.  In California alone, almost 50 separate marches are scheduled throughout the state.  Press reports indicate that another 26 marches will be held in Canada, 15 in Mexico, and even one in the Cayman Islands.  According to the D.C. March organizers, 57 countries will also be holding marches on January 21, "with the goal of promoting a platform of progressive values, and with particular emphasis on women's LBTQ, and immigrant rights."  For a map of the scheduled marches, click here.

And what will happen on January 22, and 23, and on after that?  The Global March organizers have set out a platform with the acronym "HERS":  Health, Economic Security, Representation, and Safety.  As we march in solidarity around the world, the struggle to secure these basic human rights will reach a high point on January 21.  While one march may not change the world, our participation can help ensure that this activism is broad and deep, and will continue to gain power and momentum into the future.  

 

A Human Rights Response to Hacking

Human rights seem to have moved to the back burner, or even off the stove entirely, during the months since the election.  Human rights has barely registered in the debate over repeal of the Affordable Care Act.  President-elect Trump has suggested that he intends to keep Guantanamo open with no mention of the human rights issues that it raises.  While many of his nominees publicly disagree, President-elect Trump has also indicated that he intends to bring back torture in an ill-advised effort to keep America safe, with no indication that he appreciates the human rights violations that such a move would portend.

Yet there seems to be one thing that both Trump and his critics agree on:  Russia should not be targeting the US with cyberattacks.  Why is this such an uncontroversial principle?  Well, President-elect Trump may not realize it, but it's at least in part because of human rights.

Access Now, which works to defend digital rights around the world, recently published A Human Rights Response to Hacking.  With the new revelations from the US intelligence community about Russian activity leading up to the US election, the Access Now analysis is even more timely and pertinent.  According to the report summary:

"When governments engage in hacking it creates significant risks for human rights. However, there has yet to be an international public conversation on the scope, impact, or human rights safeguards for government hacking. This paper raises the question of how human rights apply in the context of government hacking targeted at non-government and private sector actors. Based upon international law and the broad human rights impacts, we conclude that there should be a presumptive prohibition on all government hacking."

Russia Moves to De-Criminalize Much of Family Violence

Russia has taken the first step to de-criminalize much of domestic violence.  The pending bill would de-criminalize acts of abuse that do not result in "serious injury" and would apply not only to intimate partners but to children.  Such matters will be treated administratively for first offenses.  

The bill was introduced by attorney and member of parliament Yelena Mizulina who in the past has 
sponsored anti-gay legislation and other legislation preserving "traditional" family norms.  Traditional, of course, should be interpreted as anti-human rights.  

While there is no central data base in Russia tracking domestic violence, one source estimates that domestic violence happens in 40% of Russian households with 36,000 women beaten daily by intimate partners.  12,000 Russian women die from domestic violence each year.  

Women in the US are experiencing more than a backlash.  Women report dramatically increased sexual harassment and sexual assaults post election. This is not a climate where women can expect legal protections to be either maintained or enforced.    The incoming U.S. government has expressed admiration for Russia.  Will this include promoting and mimicking the pending Russian anti-female legislation? You know how friends can influence friends. 

 

 

Standing Rock and the Right to a Fair Trial

Editors' Note:  The HRAH Blog welcomes Lauren Carasik, Director of the International Human Rights Clinic at Western New England School of Law. Lauren, who works with the Water Protector's Legal Collective, writes this report.

by Lauren Carasik

The Standing Rock Sioux Tribe and its supporters have largely faded from view since the Department of the Army declined to issue the easement for the Dakota Access Pipeline (DAPL) to drill under the Missouri River on December 4. The agency said it would prepare an Environmental Impact Statement (EIS) to evaluate alternative routes for the pipeline, assess the pipeline’s environmental and cultural impacts, and, notably, include an analysis of the Standing Rock Sioux Tribe’s treaty rights. Yet more than a month later, the Army Corps has not published a Notice of Intent to Prepare an EIS, prompting advocates to call on the Corps to begin the process without delay. The sense of urgency is motivated by the expectation that the incoming administration will act quickly to remove impediments to the pipeline’s completion. President-elect Donald Trump has indicated his support for the DAPL and other energy infrastructure projects, including the Keystone XL Pipeline. Rick Perry, Trump’s choice to lead the Department of Energy, recently resigned his position on the board of the DAPL’s developer, Energy Transfer Partners, and Scott Pruitt, tapped to lead the Environmental Protection Agency, is a leading opponent of environmental regulations. Adding to the dismay, the Senate recently elected John Hoeven, (R-ND), a pipeline supporter, as chair of the Indian Affairs Committee. Fearing a government hostile to the interests of DAPL opponents, activists have redoubled efforts pressuring the project’s financiers to divest.

Meanwhile, as the New Yorker notes, the criminal cases against nearly 600 water protectors arrested in connection with the protests are becoming increasingly contentious, at a time when many defendants whose cases are moving forward are still unrepresented by a lawyer.   The shortage of defense attorneys admitted to practice in North Dakota prompted the Water Protectors Legal Collective (WPLC), to submit a petition in December asking the North Dakota Supreme Court to temporarily ease the rules for admission to practice law in the state. Currently, out-of-state lawyers must either apply to be admitted to the North Dakota bar pro hac vice or apply for reciprocity, both of which still require the continued participation of in-state counsel. Among those submitting comments in support of the petition were nearly 200 law professors, who wrote that “We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld.  The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process and equal protection that constitute the cornerstones of the rule of law.”

Compounding concern about fair trials, Acting Morton County State’s Attorney Ladd Erickson has evinced his hostility to the arrestees, including by resisting discovery requests and filing a motion to require public defenders to keep track of costs and expenses so that the state can seek reimbursement from defendants, suggesting that their right to counsel is contingent on the nature of and motivation for the crimes for which they are charged. Erikson argued that “Each protester attack on our police officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally money – all to be focused on multiple issues of national discontent… Most protest criminal defendants are simply props for videos of staged events.” He further said that “Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab.” Erickson’s argument apparently persuaded Judge Bruce A. Romanick, who presided over the first criminal trial: he ordered the two water protectors convicted in December to repay $500 in costs.

WPLC president Brandy Toelupe called Erickson’s characterizations inflammatory, and “intended to poison local jury pools to prevent fair trials and to provide cover for his mass overcharging and false charging of arrestees, dearth of evidence, and refusal to comply with local and Constitutional requirements for producing required discovery in these cases.”

Reed Brody and Juan Mendez appointed to join the International Commission of Jurists

By Lauren E. Bartlett 

This week the International Commission of Jurists announced the election of five new commissioners, including Reed Brody and Juan Mendez. The International Commission of Jurists is made up of 60 judges and lawyers from across the globe and “promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems.”  The International Commission of Jurists is one of the oldest human rights and rule of law-related NGOs and has been key in the drafting and adoption of many international human rights instruments,  including the U.N. Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights, and more.

Mr. Brody is Counsel and Spokesperson for Human Rights Watch, and Mr. Mendez recently wrapped up his second term as the U.N. Special Rapporteur on Torture. Both Mr. Brody and Mr. Mendez have long histories of promoting human rights in the U.S. and many successes to celebrate, including helping to pressure the U.S. to change its policies regarding prisoner abuse. Please join me in congratulating Mr. Brody and Mr. Mendez and anticipating future terrific U.S. human rights advocacy.

Geneva Summit for Human Rights and Democracy

Next month the Geneva Summit for Human Rights and Democracy will assemble human rights activists from all over the world.  Each year the summit is held on the eve of the UN's Human Rights Council's annual session.

The conference website says the meeting will bring together "hundreds of courageous dissidents and human rights victims, activists, diplomats, journalists and student leaders to shine a spotlight on urgent human rights situations that require global attention."

Registration is free. More information may be found here.

 

 

 

The Death of Treaty Supremacy

In an insightful new blog posting, Professor David Sloss describes the historical context for the current crabbed interpretation of the Supremacy Clause's role in incorporating international law into US jurisprudence, and challenges us to think about how things could be different -- if not under the incoming administration, then in the future.  Sloss explores the issue in greater depth in his new book with Oxford University Press, titled The Death of Treaty Supremacy.  According to the publisher's blurb, the book:

Provides the first detailed history of the Constitution's treaty supremacy rule and describes a process of invisible constitutional change;

Analyzes the implications of U.S. ratification of the UN Charter, which obligates nations to promote human rights "for all without distinction as to race";

Discusses the implications of the de facto Bricker Amendment for contemporary constitutional theory; and

Discusses contemporary, doctrinal controversies related to self-execution and treaty supremacy.

Why Human Rights Matter to Anti-Trafficking Efforts

 

Jonathan Todres

January is National Slavery and Human Trafficking Prevention Month.  Despite the tireless efforts of many, as President Obama stated  in his recent Presidential Proclamation, “the injustice of modern slavery and human trafficking still tears at our social fabric.” This month provides an opportunity to both raise awareness about the problem and galvanize support for action that can reduce the prevalence of human trafficking.

There is a growing body of law at the international, national, and state levels addressing human trafficking specifically.  Although those represent important developments, there has been limited progress on the root causes of human trafficking. That’s where human rights come in. Human trafficking thrives because there is demand for the good and services produced by exploited individuals and because there are millions of vulnerable adults and children.

The foundational principle of the Universal Declaration of Human Rights – “All human beings are born free and equal in dignity and rights” – is a direct challenge to the devaluation of human lives that is embedded in the demand side of human trafficking. Human rights education  fosters tolerance and reduces disregard for others’ rights.  And, when realized, human rights – including the rights to birth registration, health care, education, and housing; labor rights; and the principle of nondiscrimination, to name a few – can reduce the vulnerability of marginalized populations so that they are not pushed into human trafficking settings.

The challenges we face today as human rights advocates are seemingly endless. It’s often difficult simply drawing sufficient attention to rights violations. Human trafficking is one area where everyone from policymakers to parents wants action.  Demonstrating the value of human rights to human trafficking can help advance anti-trafficking efforts and serve as a model for applying human rights approaches to other pressing issues.

Solitary Confinement: Support for Massachusetts Reforms

As the Massachusetts legislature considers a bill that would restrict use of solitary confinement to 30 days, with hearings every 15 days and a bar on solitary for pregnant, deaf, and blind prisoners, the Boston Globe has come out in support of the pending legislation.  The Globe's editorial ran January 6, under the headline: Mass. Prisons Call it Solitary.  The UN Calls it Torture.  Kudos to the Globe editorial board for weighing in on this issue, and for driving home the U.S.'s status as an international outlier.

Gender Equality and Mr. Trump

Martha Davis reported recently on a meeting between Donald Trump and the new UN- Secretary General, Antonio Guterres.  Part of Guterres' agenda is to support gender equality.  Only a few weeks ago, the Trump transition team requested that the State Department provide information on "gender-related staffing, programming, and funding."  The memo that was sent to State specified areas of inquiry, which included efforts to end gender-based violence as well as efforts to promote women's participation in political and economic spheres. 

This request raises concerns about what motivated the inquiry.  Are these global programs likely to be eliminated in the coming years- or maybe months?  The only other agency of which the new administration made a similar inquiry was seeking the names of those at the Energy Department who support measures to halt climate changes.  Energy refused to release the names.

Senator Jean Shaheen of New Hampshire, responded "I pledge to work with the incoming administration to advance policies that support and protect women and girls world wide, but I can promise that if the next administration intends to role back programs designed to lift women up, it will very quickly meet stiff opposition in the Senate."

Much will be revealed when we know how then President Trump responds  to the Women's March on Washington.

 

Can Senator Sessions be entrusted to protect human rights?

by Risa E. Kaufman, Columbia Law School Human Rights Institute

Is Senator Jeff Sessions qualified to enforce the nation’s civil rights laws and ensure that the U.S. protects and respects human rights at home and abroad? This question must drive the Senate Judiciary Committee’s hearing on Sessions’ nomination to be U.S. Attorney General. The hearing is set for January 10th.

Civil and human rights organizations have denounced President-elect Trump’s nomination of Senator Sessions, noting that, throughout his career, Sessions has expressed views and taken actions that are anathema to human rights, including the rights of racial and ethnic minorities, women, immigrants, and lesbian, gay, bisexual, and transgender people. He voted against the 2013 reauthorization of the Violence Against Women Act, has taken a hard line against immigration reform, questioned the necessity of the Voting Rights Act, supported a federal constitutional amendment to ban same-sex marriage, opposed a bill to grant workplace discrimination protections to LGBT people, and voted against a measure reaffirming the prohibition against torture. He has disturbing ties to anti-immigrant and anti-Muslim groups and a close relationship with Breitbart News. The Senate rejected his nomination for a federal judgeship in 1986, based in part on testimony that he made racist statements and called the NAACP and ACLU “un-American.”

 

Compounding his alarming record on civil and human rights, Senator Sessions has failed to provide the Senate Judiciary Committee with complete information upon which to consider his nomination to be the federal government’s chief law enforcement officer. In advance of this week’s confirmation hearing, Sessions provided an incomplete response to the Senate Judiciary Questionnaire, leaving out key documents from his time as U.S. Attorney for the Southern District of Alabama, Alabama Attorney General, and in the U.S. Senate. A supplement to his original response continued to omit relevant press releases, op-eds, media interviews, and speeches. Last week, Senator Patrick Leahy, the outgoing ranking member of the Senate Judiciary Committee, expressed concern over Sessions’ failure to fully disclose materials relevant to his nomination.

 

There have been remarkable acts of protest in the lead-up to the confirmation hearings. The NAACP held a sit-in at Senator Sessions’ Alabama offices, resulting in the arrest of the national NAACP president and others. A Moral Monday March to the Capitol is planned for January 9th. The Leadership Conference on Civil and Human Rights organized a Congressional sign-on letter of over 140 national organizations opposing Sessions’ nomination. And over one thousand law professors have urged members of Congress to reject the nomination.

 

As these and other actions underscore, a full and open hearing to examine Senator Sessions’ fitness to be Attorney General requires comprehensive documentation of his public writing, speeches, and interviews, tough questioning by the Senate Judiciary Committee, and continued vigilance on the part of human rights advocates. His record must be assessed by the light of the civil and human rights that the office of Attorney General is charged with protecting. Close scrutiny of the incoming Trump administration, and accountability for its actions, start now.