Human Rights at Home Blog

The Ongoing Rollback of Human Rights For Women

The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.

In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy. 

The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control.  Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds.  This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle.  This latest assault particularly affects poor women.  In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.  

The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself.  Women of the 1% are unlikely to experience adverse consequences of this rollback.  While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices.  Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have.  The economic impact is significant.

While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ”  I get it.  We thought we had won this battle in the 70’s.   Mad Men is back.

Resources on Medical Neglect in Immigrant Detention

A growing body of data indicates that health care at immigration detention centers falls far below human rights standards.  In January 2017, the Health Justice program of the New York Lawyers for the Public Interest released Detained and Denied, a report chronicling the neglectful and dangerous treatment meted out to detained immigrants in the New York City area.  The NYLPI report was followed in May with a nationally-focused study issued by Human Rights Watch titled Systemic Indifference: Dangerous and Substandard Medical Care in US Immigration Detention.   HRW found that "unreasonable delays in care and unqualified medical staff [] are likely to expose a record number of people to dangerous conditions under President Donald Trump's ramped-upe deportation and detention plans."  A third report, Fatal Neglect, prepared by the ACLU Detention Watch and others, focuses on deaths in immigrant detention.  While immigration detention deaths and medical neglect also occurred under prior administrations, the concern is that these numbers will increase as detentions rise.  Indeed, the New York Times reported in April that the Administration's new contracts for jail space to house immigrant detainees will relax or eliminate requirements that immigrants' medical needs be addressed in a reasonable time.

The UN Working Group on Arbitrary Detention has called on the US to abolish mandatory detention of migrants.

Political Correctness v. Authenticity

Editors' Note: This is the second part of Professor Jeremiah Ho's three part series on Civility.

It’s been over a month since my last blog posting here—(see “Civility Matters”).  That posting was the first in a three-part installment on civil discourse in this seemingly new age of political and cultural rhetoric.  I say “seemingly” because this new age could all just be temporary—just a detour in our collective political consciousness.  Nevertheless, with this posting, I usher in the second installment on civility, which focuses on political correctness as a strawman for getting rid of civility in public discourse.

In a way, the phrase “political correctness” was created to represent a biased take on the practice of civility and has, since the early 1990s, been used repeatedly by some to displace civility in the sphere of public discourse.  Arguably as a product of post-modern rhetoric, the idea of “political correctness” has been expanded into a hyperbolic threat to free expression.  The treatment is post-modern in the sense that “political correctness” is one of those ideas that looks great from a distance, but the closer you get and the more obsessively you scrutinize it, the more unrealizable it gets.  The idea breaks apart.  So that now, eyes roll at the sound of the phrase.  It signals a mode of forced inauthenticity—that people must behave in a muted, less truthful way if they abide by the codes of political correctness, a way that is claimed to be stifling to individual thought.  As a result, the logic would be that we all must eschew political correctness.  We must put it in “air quotes” when we mention it aloud.  We must believe that it is an evil, rather than a good. 

Of course, to this end, it has been civility that has been eroded and displaced, as a result of eschewing “political correctness.”  The “authenticity” that was preserved has produced speech that is free but also has been revealed to be emotional and reactionary.  And what does it show when people who are trying to be “authentic” have to go through the trouble of reshaping the idea of civility into “political correctness” in order to say what they want to say?   This move itself is inauthentic.  

And there lies a solution to bringing ourselves back to civility.  We must start calling out that move.  I would harken that political correctness is a fiction with a dangerous purpose, a strawman set up to elude true and productive public discourse.  It’s time to pull down that charade. 

In this regard, there was an example of a missed opportunity a few weeks ago when Ann Coulter pulled herself out of a scheduled speaking engagement at U.C. Berkeley after protestors threatened violence on the campus.  In response, Coulter remarked that “it was a sad day for free speech.”  Coulter’s ideas generally abandons “political correctness”—calling her “politically incorrect” according to the standards of those problematic definitions of political correctness is likely not inaccurate.  But outraged protestors silenced her before she was even able to speak, allowing her the opportunity to wave a broken badge of free expression, which she did.  Instead, what could have occurred was the Coulter speech itself—perhaps incendiary to many on the left, including to yours truly—followed by reasoned opportunities for us all to investigate her views and ideas.  To let her speak and see if what she says pass muster.  If what she says do not pass muster, then her authenticity comes into question.  In other words, we allow truth to gauge our civil discourse.        

Our free speech rights are not absolute (remember fighting words?) and to believe that it gives us carte blanche to say whatever we may think without consequence is an outright abuse of that right.  I spent part of my childhood in a country that was then governed by martial law and I recall an incident when my parents admonished me for asking, “Why does the president looks so old and scary on television?,” because of fear that our neighbors in the next flat might have overheard and mistaken this as ridiculing the government.  Hateful speech may be permitted and there’s a lot of that these days, but what does that seek to accomplish except to delay actual purposeful discourse on the important issues in our present and future times.  Hateful, uncivil speech can and will incite high emotion.  But ideas also affect emotional behavior as well.  And the ideas that affect us politically and socially must be backed by truth and reason.  They must be authentic in that way.  

It’s time to redirect toward civility.  At a mildly dangerous effect, the hateful speech of our current political climate extends the emotional dwelling of an isolated, left-behind sensibility, but at its most dangerous, it encourages fake news, nationalism, unethical behavior, hypocrisy, subordination, and violence.  It makes us an immoral society unable to respect each other’s dignity.  On issues of political and cultural importance—e.g., immigration, human rights, economic inequality, health care, etc.—if being uncivil is the mode, than we are not just in political gridlock but a cultural one.  We will be unable to take human beings (and human rights) seriously.  We will not function as a healthy democratic society. 

Menstrual Health, Human Rights & Gender Equality

By Inga Winkler, Institute for the Study of Human Rights, Columbia University, Guest contributor

Have you recently heard someone speak about menstruation or menstrual health? As in speaking about menstruation publicly, not a whisper asking a friend for a tampon? The chances are better than ever. Cosmopolitan labelled 2015 as the year in which the period went public. And Newsweek proclaimed in 2016 that the fight to end period shaming is going mainstream. More and more people feel comfortable speaking about menstruation thanks to advocates such as Jennifer Weiss-Wolf bringing the issue to the forefront,

Today, on May 28, is as good as ever to do so. It is Menstrual Hygiene Day, a global day for awareness raising and advocacy. Menstrual health is fundamentally about (sexual) health and gender equality, and has close links to education, work and a host of other human rights. Recognizing the importance of this fundamental, everyday, but previously largely invisible issue, countries all over the world are making progress on menstrual health, and so is the United States.

In most states in the US, feminine hygiene products are subject to standard sales tax rather than being exempt as many other items that cover basic daily necessities such as many groceries. During an interview with Ingrid Nilsen, former President Barack Obama explained that he does not understand why states tax sanitary products as luxury items and continued: “I suspect it’s because men were making the laws when those taxes were passed.”

Assembly members in several states have started to address the tampon tax. "Basically we are being taxed for being women. […] You can't just ignore your period, it's not like you can just ignore the constant flow," Cristina Garcia, an assemblywoman in California, explained.  While the efforts in California have not (yet) been successful, New York , Connecticut and Illinois recently de-taxed menstrual products and similar efforts are underway in many other states.

However, putting an end to the tampon tax is just the tip of the iceberg. It is an important step that states can (and should) take which ensures great visibility. Still, de-taxing menstrual products does not ensure that they are affordable to all. And a human rights perspective on menstrual health goes far beyond this. One advantage of the human rights framework is that it draws attention to intersectional discrimination based on gender, race, ethnicity, disability, socio-economic status and other factors. Homeless women face particular challenges on the days they menstruate, experiencing difficulties in ensuring hygiene often due to a lack of menstrual products in shelters. Women in detention face a scarcity of menstrual products, in many instances having to request products which often results in humiliation. Transgender men, intersex and gender non-conforming persons are often overlooked in the discussion on menstrual equity.

New York City recently passed a package of legislation spearheaded by Julissa Ferreras-Copeland that seeks to guarantee access to menstrual products to all female inmates, all persons residing in city shelters and all students in public schools. Mayor de Blasio stated: “There should be no stigma around something as fundamental as menstruation. […] Students should be able to concentrate on their studies, New Yorkers in shelter should be able to focus on rebuilding their lives, and women in our Correction Department should be able to work toward rehabilitation and release without the indignity of inadequate access to tampons and pads. As a father, husband and feminist, I am proud to sign these bills into law.”

While a lot remains to be done, these measures are promising steps in the right direction to ensure menstrual health and dignity for every person who menstruates.

 

CERD Demands Info on Trump's Wall

Editors' Note:  Guest blogger Prof. Ariel Dulitzsy and graduate fellow Scott Squires describe their successful efforts to request that CERD investigate the impact of the proposed border wall on indigenous people.

In a letter issued May 17, the UN Committee on the Elimination of Racial Discrimination asked that the U.S. Government provide information on the Trump administration’s expansion of the border wall and its effects on indigenous peoples living along the U.S.-Mexico border.

Under its early warning and urgent action procedure, CERD requested that the U.S. provide the information to address concerns that the expansion of the wall—as outlined in the Trump Administration’s executive order issued January 25^th —will discriminate against indigenous groups living in the border region.

Specifically, the letter asked that the U.S. Government provide information regarding the impact of the executive order on indigenous peoples’ rights to access their land and resources, ways in which the government plans to limit the adverse effects of the wall on those people’s rights, and measures taken by the U.S. Government to ensure the free prior and informed consent of those peoples in decisions affecting them.

CERD submitted the letter after the University of Texas at Austin School of Law’s Human Rights Clinic requested last February that the Committee re-consider the situation of indigenous and poor Latino communities along the US-Mexico border in light of the executive order. The Clinic, Dr. Margo Tamez (Lipan Apache Band of Texas) and the Lipan Apache Women Defense, an Indigenous Peoples’ Organization  initially submitted a complaint to CERD in 2013 alleging the discriminatory impacts that wall would have on the Kikapoo, Ysleta del Sur Pueblo and Lipan Apache communities living along Texas’ border with Mexico. CERD, at that time, was concerned that the border wall has been constructed without the free, prior and informed consent of the affected communities.

The wall’s discriminatory effects on those groups have not been remediated, according to the Committee. And because Trump’s executive order intends to expand the wall along the entirety of the U.S.-Mexico border, CERD is now concerned that the construction of the wall will more broadly “hinder the full enjoyment” of the rights of indigenous peoples living in the border region.

The U.S. Government has until July 17, 2017 to respond to the request.

A Literal Attack on the Press

The assault on the press continues.  Last week we posted about a reporter in North Carolina who was arrested after persistently asking  questions about health care to Health Secretary Tom Price.  

Health care seems to be a sensitive topic. On Wednesday, a Guardian reporter was body slammed by a Montana congressional candidate on the eve of the election.  Ben Jacobs reported that having asked the candidate about the Congressional Budget Office's estimates of over twenty million people who would lack health insurance under Trumpcare, candidate Greg Gianforte  slammed the reporter to the floor, breaking his glasses and injuring one of the reporter's elbows.

The lid is off of civil behavior.  The press, those charged with the responsibility to seek truth, are one of the first public casualties.  The Sheriff's office is investigating. The special election is happening now.

Warning:  Reporting can be dangerous to your health.

UPDATE:  On election morning Mr. Gianforte was charged with assault.  Fox News reporters corroborated Mr. Jacob's account of events.  

 

The Yogyakarta Principles and HIV Human Rights Advocacy

The Yogyakarta Principles for eliminating sexual identity and gender discrimination were written in 2006.  In 2010, an Activists Guide to the principles was published. The target audience for the guide is LBGTQ activists, with a secondary audience being academics and others interested in human rights implementation.  The principles themselves are directed toward the state, and in particular those creating and implementing policy.

Recently a global conference was held in Bangkok to discuss updating the principles by addressing any existing gaps.

Stephen Leonelli of the Men Who Have Sex with Men Global Forum, seeks to bring more awareness of HIV to the principles. At present, there are only two references to HIV contained in the principles.  Leonelli, who was a representative at the Bangkok meeting,  has written a critique of the principles from the perspective of what changes might be made in order to appropriately address HIV/AIDS. 

One of Leonelli's goals is to bring awareness to the collateral consequences of having HIV.  Often acknowledged are the public health concerns HIV raises.  But less appreciated are the impacts of criminalization, discrimination, violence and stigma.  To read more on Leonelli's suggestions for advancing HIV awareness through the Yogyakarta Principles, click here.

The revisions are scheduled to be completed this fall.

Coming this Fall: Human Rights Officials and Advocates Meet in Seattle

So much is happening to promote and protect human rights at the local, county and state levels!  You can get a front line perspective this September 24-28, in Seattle, Washington, at the annual conference of the International Association of Official Human Rights Agencies (IOAHRA). 

IOAHRA's mission is: "to provide opportunities and forums for the exchange of ideas and information among member agencies and other human rights advocates."   It does this through targeted programs addressing illegal discrimination and by serving as a "clearinghouse for information exchange between human rights agencies around the world."  Confirmed speakers at the conference include:  Walter Echo-Hawk, Author and Native American Advocate; Leon Russell, National Chair, NAACP; and Julie Nelson, Senior Vice President, Center for Social Inclusion.

Mark your own calendars and then get the word out by forwarding this information to your own local, county or state human rights agency!

 

 

Forced Marriage of Minors in the US - A Human Rights Issue

During a recent Boston demonstration against forced marriage of minors, word came that Governor Christie vetoed a bill overwhelmingly passed by the New Jersey legislature that would restrict marriage to those who are age 18 and older - no exceptions.  Among the reasons Christie cited for his veto was that the bill was contrary to some "religious customs".  Those religious customs are part of the silencing of females and undermining their autonomy. 

Forced marriage is something Americans associate with foreign countries.  And when the topic is raised in the US, citizens associate the practice with some immigrant cultures.  While the practice may be more common with certain cultural and religious groups, forced marriage of children is not limited to those born outside of the United States.  "Shotgun" weddings have a long history in US Christian tradition and  resulted in no fewer forced marriages than other religions and cultures.

Unchained At Last was founded by Fraidy Reiss, herself a survivor of forced marriage.  Hers 
was arranged in a conservative religious community and, like the majority of teen marriages, was to an older man who abused her.   After several years, Fraidy was able to escape the abusive marriage with her children.  She attended Rutgers University against her husband's demands and became an investigative journalist.   Fraidy graduated first in her class.  She recognizes that most women are limited in their ability to escape abusive forced marriages due to lack of "finances,  religious law and social customs."  She founded Unchained at Last to assist women in escaping from and resisting forced marriages.  Unchained is leading forced marriage prevention legislation demonstrations across the county

Representative Kay Khan and Senator Harriet Chandler filed a Massachusetts bill that would restrict marriage to those age 18 and older, without exception.  Parents would no longer have the ability to assent to a minor's marriage, judges would have no ability to waive the age requirement and pregnancy would no longer provide justification for underage marriage.  Currently in Massachusetts, there is no minimum age for children to marry with judicial and parental consent.  

Microsoft Steps Up on Human Rights, Plus Bonus Track: Ted Piccone on the Future of the UN

The United Nations reported earlier this week on a new partnership with Microsoft to develop more sophisticated technologies to track and report on human rights abuses. For the most part, this is exciting news that promises some important breakthroughs, as Microsoft contributes $5 million to the effort over the next 5 years.  The UN has already taken steps to engage business in achieving the Sustainable Development Goals and it's certainly clear that many aspects of the international human rights agenda cannot be fully achieved without private involvement and even leadership.  Indeed, many UN agencies have been financially stretched to the breaking point by the international refugee crisis and other challenges of the 21st century.   And this private contribution comes at a time when the U.S. has indicated that it may substantially cut its own contributions to the UN.   Still, while  UN human rights leaders will no doubt put Microsoft's funds to good use, it's hard not to bemoan the fact that the UN must depend on the largesse of business to sustain its basic human rights operations. 

Bonus track:  for a broader perspective on challenges facing the UN and the impact of American First policies, check out the podcast interview of Ted Piccone at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law. 

 

A (Tepid) Implementation of Process

Attorney General Sessions recused himself from investigating the Trump - Russia relationships during the presidential campaign.  That left any decision to appoint a special counsel up to Deputy Attorney General Rosenstein.   Rosenstein was flooded with advocates' demands for appointment of special counsel.  Today he appointed Robert Mueller to the position.

Rosenstein took a step toward discerning the truth, but the scope of Mueller's investigation is narrow.  Rosenstein limited Mueller's investigation to Russia's interference with the 2016 presidential election.  While such interference is significant on its own, there are other issues hovering around the edge of election tampering that need investigation.  The president's comment, some say threat, to Comey about the existence of tape recordings is worth of investigation, particularly when combined with reports of the President's  attempted interference with Comey's Flynn investigation.  

Muller's first act might be to seek enlargement of the scope of his investigation.   

Should We Be Scared?

The firing of FBI Director James Comey has placed us in political and perhaps constitutional crisis.  President Trump fundamentally does not believe in political process and constitutional protections. 

Human rights, and more specifically US civil rights, are threatened.  Expectations of presidential incompetence and buffoonery were widespread on inauguration day.  But the worst fears were that the dangerous behaviors exhibited by prior extreme narcissistic leaders would surface, evidenced by disregard of democratic process and by impulsive, maniacal acts.  The firing of James Comey is the triggering act of disregard for independence that see Americans struggling to preserve human rights.  In addition to human rights conveyed at birth, our civil rights were empowered through the Bill of Rights and constitutional amendments.

The anti-democracy demon is loose.

The excuse for the firing was clever.  Comey’s mishandling of the Clinton email issue was deliberate interference with free elections.  Comey himself ignored protocol and three times made announcements that placed Secretary of State Clinton in a position of being damned if she protested Comey’s behavior and damned by letting the information sit in the public consciousness. 

Comey, for his part, failed to disclose the summer investigation of Trump – Russia connections.  His focusing on misuse of a personal email server, which has had no proven detrimental impact on our country’s safety or political health, smelled of misogyny and election tampering particularly when coupled with his withholding of information that might prove treasonous.  While Comey may have conducted an “independent” Clinton investigation, his use of the information was not neutral.

So yes – firing Comey based upon the Clinton email investigation could be justified. 

The problem is that the firing did not happen on January 21.   

But firing Comey now over the email investigation is pretext and will not save the president from exposure.  Whether the President’s narcissism at being publicly challenged by Comey by continuing the Russia investigation triggered the Comey firing or it was the knowledge that treasonous acts are about to be exposed is almost irrelevant. 

Fully exposed is this:  What our president most fears is truth.  And he is willing to use extreme measures to prevent challenge and exposure.  He is willing to undermine, if not destroy, established democratic processes in order to preserve his self-image. 

Case in point: almost lost in the shadow of the Comey firing was the arrest of reporter who repeatedly asked Health and Human Services Secretary Tom Price if domestic violence would be a pre-existing condition under Trumpcare. The reporter was arraigned and released only after posting $5,000.00 in bail.  First amendment freedoms are threatened.   

While this is a time when Americans should be afraid, this is not the time to engage fear based responses.  Americans have shown recent resistance through organized and spontaneous activism.  Human rights activists within and without our borders have proven to be skilled strategists.  Goal number one must be development of a global plan to contain Trump. 

Chipping Away at the Foundation of Human Rights

by JoAnn Kamuf Ward, Columbia Law School Human Rights Institute

In the wake of the U.S. failure to appear at the Inter-American hearings on the U.S. in March, human rights advocates, scholars, and a number of journalists tried to read the tea leaves to determine the significance of this move for U.S. human rights engagement globally and regionally.  Of course, the implications of the United States’ direct engagement with human rights institutions (or lack thereof), can’t be viewed in isolation from whether and how U.S. dollars flow towards these institutions, or divorced from how U.S. foreign policy prerogatives impact human rights globally.  But U.S. engagement and public positions offer important starting points for advocacy to strengthen human rights protections. 

As Louis Henkin aptly noted in 1979, the United States has historically been “more like a flying buttress than a pillar” in the cathedral of human rights.  Yet, these days, the U.S. appears to be chipping away at the foundation. 

Of course, even when past Administrations articulated human rights as a foundation of U.S. policy, the reality at home and abroad has often significantly deviated from the rhetoric employed.  U.S. human rights advocates have been among the chorus of voices consistently urging the United States to prioritize human rights in global engagement and domestic policymaking.  Under the Obama Administration, progress was made in strengthening engagement with the United Nations and the Inter-American Commission, premised on the belief that representative democracies, along with “respect for human rights and civil society, and independent judiciaries and the rule of law,” are important foundations for human progress, and principles to which the United States was committed, at home and abroad.

While they have certainly been imperfect and under-realized, past presidential administrations’ commitments to human rights have provided an important grounding for advocacy.  These commitments signaled that human rights were priorities to be advanced consistently and progressively over time.  Such commitments also provided a starting point to hold the U.S. accountable to the ideals it espoused, and indicated dedication to the institutions that monitor and implement human rights.  They offered a common language and opened up spaces for civil society dialogue.

But today, the common ground of human rights has all but disappeared.  Even a veneer that human rights matter seems to have fallen away.  This should not be surprising given the egregious policies this Administration has rolled out at home.  Communities of color have been targeted with particular vehemence, but the safeguards in place to preserve the environment, meet fundamental needs like health and housing, and protect the basic civil rights of all of us are under assault.  The Administration’s frontal attacks on human rights domestically, as well as beyond our borders are being tracked here in real time.

In this moment, we must continue to fight against efforts to sideline and ignore human rights. We must ensure that this Administration, the State Department, the White House, federal agencies, and Congress understand their human rights obligations, and we must demand that human rights are put into practice.

In one step in this direction, 50 U.S. human and civil rights organizations and individuals sent a letter to Secretary Tillerson last week, calling on the United States to prioritize U.S. leadership on human rights in its engagement with Inter-American Human Rights System and the OAS.  Responding to the U.S. failure to appear at the March hearings, the letter emphasizes that leadership requires constructive U.S. participation in Inter-American proceedings, with the ultimate aim of bringing U.S. policies in line with international and regional human rights commitments.   It highlights, as well, the need for ongoing U.S. resources and support for the Inter-American Commission and the OAS.

The upcoming June OAS General Assembly and the forthcoming IACHR periods of sessions are opportunities for the U.S. to demonstrate, and commit to, human rights.  The world will be watching.

Haitians On Edge As The Trump Administration Considers Their Fate

by Lauren Carasik   

 

Some 50,000 Haitians are twisting in the wind as the Trump administration deliberates about whether to extend the Temporary Protected Status (TPS) that has shielded them from deportation.  Unable to return home safely, they have been living in the U.S. since January 12, 2011, a year after the devastating 2010 earthquake that killed more than 300,000 people and displaced more than a million. The administration has until May 23 to decide whether to extend the special immigration program that protects those who cannot be safely repatriated due to armed conflict, environmental disaster or other extraordinary and temporary conditions in their home countries. The current status is set to expire on July 22.  Amid a roiling debate on immigration, the decision is being closely watched as a harbinger of whether the administration can elevate compassion over politics.

Haiti, the most impoverished country in the Western Hemisphere, is still reeling from the earthquake, a cholera epidemic that has killed thousands, sickened hundreds of thousands more and is estimated to infect another 30,000 people this year, and Hurricane Matthew last October, that caused $2.8 million in damages and a legacy of displacement and intensified food insecurity that continues today. Those disasters are compounded by political and economic instability, rendering the country ill-equipped to absorb those who would face deportation.  Yet James McCament, the acting director of U.S. Citizenship and Immigration Services (USCIS), argued against an extension in an April memo, finding that “conditions have significantly improved since the earthquake,” recommending instead a grace period until January 2018. 

Among those urging the administration to extend TPS are an expanding bipartisan group of legislators, non-governmental organizations, more than 400 faith-based organizations and leaders, and a growing chorus of major newspaper editorials.  As members of the Congressional Black Caucus said in a letter to DHS Secretary John Kelly, “failing to reissue TPS at this critical juncture would be a grave mistake that would mean sending tens of thousands of Haitians back to a country that is struggling with disease, nutritional insecurity, and possible natural disaster. Instead of undertaking this drastic and irreversible action, we call upon you to show compassion for this struggling community and allow them to remain here for an additional 18 months as Haiti continues to rebuild.”

As the decision looms, an Associated Press report revealing that USCIS is seeking information about crimes committed by Haitians has stoked fury.  The agency requested “any reports of criminal activity by any individual with TPS. Even though it’s only a snapshot and not representative of the entire situation, we need more than ‘Haiti is really poor’ stories.”  USCIS is also gathering information on whether Haitians here under TPS are receiving public benefits. As the New York Daily News argues, “The Department of Homeland Security, pushing back against evidence of real-world despair in Haiti, is prepared to gum up the works by smearing Haitians living here as lawbreakers.”  Members of the Congressional Black Caucus also denounced the move, saying that “Reports that USCIS is collecting crime statistics to justify the denial of TPS re-designation for Haiti defies both the letter and spirit of the law, while corroding the values of our nation of immigrants.” 

Many of those facing deportation, who have built lives in the U.S., make significant economic and social contributions to their local communities, as well as national coffers, paying billions in social security benefits. They also provide critical support to at least a half a million people in Haiti through remittances.

As Tom Jawetz, vice president for immigration policy at the Center for American Progress, told the Miami Herald, the decision is the “first test of this administration’s commitment to handle TPS determinations in an apolitical manner that respects human rights and the letter of the law.”  Advocates fear that a decision to end TPS for Haitians would augur ill for several hundred thousand Central Americans whose TPS status is up for renewal next year and who would also be endangered by forcible repatriation.

During a campaign stop in Miami’s Little Haiti neighborhood last September, Trump promised to champion the interests of Haitians.  Declining to extend TPS defies that assurance and imperils the communities he vowed to protect.

In Memoriam: Benjamin Barber

On April 24, author, academician and public intellectual Benjamin Barber passed away of pancreatic cancer.  In a career full of milestones and impact, Barber was just coming off of a groundbreaking initiative, the Global Parliament of Mayors, which he first envisioned then brought to reality with a convening in late 2016.  Professor Barber's strong conviction was that cities should "rule the world," and that they are positioned to solve problems that are beyond the capacities of dysfunctional nation states to address.  In the days after the US election, Barber averred that US cities would lead the opposition to an isolationist, regressive national agenda.  Indeed, Barber had already laid the groundwork with his new posthumously published book Cool Cities, describing cities' leadership in addressing climate change.  Further, Barber's work provides scholarly support for the emergent "safe cities movement" nationwide, opening cities to refugees and ensuring recognition of basic human rights.   These were issues that he worked on, and inspired work on, up to the very end of his life.  Many around the world will carry on his legacy.

Human Rights at Home...at Columbia

 

On May 19th, Columbia Law School will host a CLE on state and local human rights implementation.

 

"Localizing Human Rights in the New Era, Strategies for State and Local Implementation of Human Rights in the United States" is sponsored by Columbia's Human Rights Institute and Northeastern's Program on Human Rights and the Global Economy.  After a day of timely topics and expert panelists, The Honorable William Bell, mayor of Birmingham Alabama, will give closing remarks. Click here for more information.

 

News Flash to the GOP Senate Healthcare Working Group: Diverse Teams Make Better Decisions

by Martha F. Davis, Northeastern University School of Law     

      With the House of Representatives’ vote on the American Health Care Act came another in the series of increasingly familiar photos of overwhelmingly white, male Congressmen celebrating their achievements.  In fact, these images are so pervasive that in February, a Swedish Deputy Prime Minister staged her own parody with a collection of approving women – no men in sight -- gathered around to observe her signing a bill on climate change.

            Unfortunately, these images coming out of Washington seem anything but inadvertent.  In photo after photo, from the selfie of Paul Ryan and the Republican congressional interns to the photo ops of last week, the apparent lack of race and/or sex diversity among policymakers is so striking that it must be intentional.  Indeed, some pundits speculate that these photos are designed to send a message to President Trump’s electoral base, presumably those supporters who do not want women or racial minorities anywhere near the table in the halls of power.  

            Yet the joke is on the Administration as their band of homogeneous brothers puts together one half-baked initiative after another.  The much-ballyhooed travel ban has yet to take effect, caught up in legal red tape.  The sanctuary cities order has been enjoined in federal court.  The House Obamacare repeal is widely criticized by conservatives and liberals alike as poor policy that will harm millions.  

            And no wonder so many of these policy initiatives are floundering.  This is an Administration packed with business leaders, yet it is ignoring one of the great workplace lessons of recent years: diverse groups make better decisions.  Scores of academic studies of problem-solving have driven this point home.  As early as 2003, more than sixty large corporations, from 3M to Xerox went before the U.S. Supreme Court to stave off a challenge to the University of Michigan’s affirmative action policy.  They argued that diversity in educational settings was critical to American success in business, because “a diverse group of individuals educated in a cross-cultural environment has the ability to facilitate unique and creative approaches to problem-solving arising from the integration of different perspectives.”

            More recent studies provide an interesting explanation for this widely replicated phenomenon.  According to empirical research conducted by Katherine Phillips and Adam Galinsky of Columbia University, the introduction of diversity into a group forces group members to justify their positions and think harder about their conclusions.  As a result, in these experiments, diverse groups solved problems with far greater accuracy than homogeneous groups, even though the homogeneous groups had greater confidence in their conclusions.

            So, back to those photo ops coming out of Washington these days.  Yes, the smiling men in these photos are comfortable and happy, standing with their trusted peers, and they may feel very confident in their conclusions.  But that’s the problem.  In the echo chamber of the current Administration, they don’t know what they don’t know.

The Soering Case is Back in the News

by Rick Wilson, guest contributor

Emeritus Professor of Law, American University, Washington College of Law

A few days ago, a name in the local section of the Washington Post jumped out at me. Deep in the back pages of the Metro section was a headline that read “Sheriff: Soering Should be Pardoned.”  Upon closer reading, I confirmed that the Soering referred to in the article was Jens Soering, a German national in prison in Virginia, given two life sentences for the double murder of his girlfriend’s parents. I paused because the decision that led to Soering’s transfer from Europe to the United States to face those charges in a Virginia state court was one of the most significant and controversial cases in the extraterritorial application of international human rights law against the United States. I read on.

It seems that Soering was in the news this time because J.E. “Chip” Harding, the sheriff of Albemarle County, Virginia, whose principal city is Charlottesville, had written a 19-page letter to Virginia’s governor in support of a plea for a pardon for Soering based on lack of sufficient evidence. (The letter can be found in full here). The Roanoke newspaper called the sheriff’s action “the first time in Virginia’s history that an active Sheriff has written such a letter of support to a Pardon request.” The sheriff’s intervention seemed all the more unusual because the Virginia Parole Board had rejected Soering’s request for parole in March. Nonetheless, the sheriff’s detailed analysis included personal interviews with Soering and more than 200 hours reviewing court records and books about the case. The case is now under review in the governor’s office.

The newspaper coverage this time around didn’t review the original decision of the European Court of Human Rights, back in 1989, in part because it’s old news and in part because it’s complicated, even for lawyers. The case arose in England, where Soering was being held in prison pending extradition to the United States to face the double murder charges in Virginia mentioned above. After protracted domestic and international proceedings, the European Court of Human Rights decided, in July of 1989, that extradition to Virginia on capital charges would subject Soering to what the court called “the death row phenomenon,” which the court based on a combination of general factors governing the application of the death penalty in Virginia and specific factors in Soering’s case, such as his age (18 at the time of the alleged offenses) and his mental stability. The more general factors included, most significantly, the risk of a prolonged and psychologically traumatizing wait for execution (the court noted delays of six to eight years between conviction and execution) and the harsh conditions at the Mecklenburg Correctional Center, where Virginia’s death row is located. Taken together, the risk that young Soering would face the death row phenomenon gave rise to a violation of Article 3 of the Convention, which prevents “cruel, inhuman or degrading treatment.” What was most remarkable about the Court’s decision was their necessary speculation that Soering could face the death penalty, and that he could face the death row phenomenon, whether those events came to pass or not. As a result of the ECHR decision, Virginia authorities agreed to withdraw capital charges and try Soering only for double homicide with life imprisonment as the maximum penalty. Pursuant to that agreement, Soering was extradited, tried, convicted and sentenced to two life sentences.

The European Court’s Soering precedent has had multiple impacts on other U.S. cases, some helpful to defendants and some not. First, a number of cases that have reached the United States Supreme Court have made the argument that undue delays in execution can give rise to the death row phenomenon, and that the resulting ill effects on the defendant should give rise to a violation of the Eighth Amendment’s cruel and unusual punishment language. In 2015, Justice Breyer, joined by Justice Ginsburg, cited to Soering in his broad-ranging dissent in Glossip v. Gross, in which he cataloged the multiple failures of the death penalty, including undue delays in execution. He concluded that the death penalty itself is a violation of the Eighth Amendment. Notably, Richard Glossip, whose case remains under a stay in Oklahoma, has been on death row there for 20 years. When presented to the court as a standalone issue, however, the death row phenomenon has never managed to marshal enough votes for review. See, for example, Elledge v. Florida, 119 S. Ct. 66 (1998) (Breyer, J., dissents from denial of review of inmate on death row for 23 years). And in a 2012 case at the European Court, defense lawyers attempted to extend to Soering principle to potential detention of terrorism suspects in solitary confinement in the ADX “supermax” prison in Florence, Colorado. Babar Ahmad and Others v. United Kingdom.  They did not prevail.

Our Right to Vote for Public Officials & Access to Material Information

By Guest Blogger Professor Christyne Vachon, UMass Law

I am a professor of business organizations.  I teach students about business law – how businesses are formed, governed and closed down.   Part of that instruction includes, necessarily, an explanation of how owners of a corporation, shareholders, vote to appoint directors to the board to govern the company.  Often have I heard the question, “Is this like how we vote for the president or our congressional representatives?”  For many business law professors, they may cringe to think that the possible answer may be “Kind of” or “In a way.”  But for those students who have never heard of a “shareholder” or “director” before they stepped into my classroom, the analogy may be a helpful starting point.  So, mea culpa, I have said on a rare occasion, “in a limited way, yes”.

In light of our recent presidential election, however, I keep coming back to this premise in my mind.  I wonder if, in fact, the governance processes to ensure proper election of directors to the board (and recourse, if not) may be stronger protection for shareholders than we have in place for voters in a presidential election.  Directors hold a fiduciary obligation to the company and the shareholders.  Where is that in our presidential election?  Why vote for someone who is intentionally withholding key material information that relates to your rights and laws applicable to you?

In a simplistic explanation, the law applicable to shareholders’ decisions, including voting and whether to buy/keep the company shares, requires directors’ disclosure of all material information that a reasonable investor would think important in making the decision.  The relevant information varies from circumstance to circumstance.  But it most definitely includes disclosure of any conflicts.  Directors should disclose conflicts and seek waiver of the conflict from the shareholder(s).  If the information is not disclosed or is inaccurate, the shareholders have recourse.  In some cases, the vote may be unwound.  This may, actually, include unwinding a merger of one company into another.  This is no small thing.

Voting is one of those essential rights granted to us.  Voters would be interested to know if that right is compromised by, for instance, lack of material information.  As with a vote for directors to the board of a company, information provide to the voters from potential candidates should be all relevant, accurate information that a reasonable voter would want to know.  This includes conflicts.  For instance, if a candidate or, say, a president has done his taxes in a certain way, shouldn’t the voters be entitled to know?  Since, among other things, the president will be able to greatly influence our tax laws and policies and may have conflicts weighing in favor of or against certain tax decisions that may not align with the majority of the population, let alone those who voted for him.    Why isn’t it required that the candidate for public office disclose all materially relevant information?  Given the option to choose not to buy shares in a company that didn’t provide adequate information, shareholders still bought shares.  This is why the regulations for full disclosure have been created.  Why shouldn’t we protect voters for their fundamental right the way market regulators protect investors?

And why shouldn’t the default approach be to unwind a vote, like appointment of a director or a merger, when the voters weren’t provided all the materially relevant information?

Are there more legal protections for our rights as investors in companies than those upheld for proper election of public officials?  Certainly, we have seen a public official or two at some point in their private capacities assert their rights as investors for breach of duties owed to them. 

Mark Your Calendars

The Human Rights Watch Film Festival is coming to New York on June 9-18.  A number of the featured films focus on US human rights issues.  In particular, Home Truth, screened on June 11 and June 12, follows Jessica Lenahan in her remarkable campaign to end domestic violence in the wake of her own tragic experiences as a survivor.  Both screenings will be followed by a discussion with filmmakers April Hayes and Katia Maguire, film subject Jessica Lenahan, Carrie Bettinger-Lopez, former White House Advisor on Violence Against Women, and Lenora Lapidus, Director, ACLU Women’s Rights Project.  Tickets go on sale May 18. 

Meanwhile, human rights at home took a blow today when a bare majority of the House of Representatives voted to replace the Affordable Care Act with a hastily assembled law that promises to strip millions of insurance.  Back in April, when the Republican effort had temporarily lagged, Ben Palmquist of the National Economic and Social Rights Initiative wrote an article for  The Progressive that urged us to pay more attention to activism in the states around the human right to health.  As the Senate moves to consider this deeply flawed legislation, continued activism on all levels is more important than ever.  Many Senators will be back in their home districts during the coming weekend -- the Senate does not reconvene until Monday afternoon. Take the opportunity to let the Senators and their local staffs know your views. After all, the UN has weighed in and warned that repeal without an adequate replacement will violate international human rights obligations.  Time to make clear that local constituents have the same serious concerns.  To find a "town hall" meeting near you, click here.