Human Rights at Home Blog

Tear Gas at the Border

Jamil Dakwar, director of the ACLU's Human Rights program, has penned an important opinion piece for the Washington Post providing some perspective on the tear gas trained on migrants on the southern US border over the past weekend. 

After surveying the police use of tear gas against protesters in Ferguson and elsewhere, Dakwar writes,

"Not every use of tear gas by police is illegal. But it’s an indiscriminate weapon: Tear gas cannot distinguish between the young and the elderly, the healthy and the sick, the peaceful and the violent; it cannot tell whether a person is an unarmed rallygoer or a curious bystander. That is why it is rarely appropriate to use against protesters, and why its use should be regulated."

He continues, "The United States has no specific rules regarding tear gas and requires no particular training for its use. When law enforcement officers do use tear gas, they should give clear and easily audible warnings beforehand, ensure that anyone who is not violent is far enough away to be unaffected, and provide prompt medical attention to everyone — violent or not — who is affected."

Dakwar concludes that in this instance "the use of tear gas against unarmed people fleeing violence in one country — many of them seeking asylum — is cruel and inhumane; it violates U.S. international human rights obligations. By using tear gas against them, our government mocks our obligation to protect the world’s most vulnerable. But the United States needs to rethink how it deploys chemical weapons against its own people, too, especially those who are exercising their right to protest."

A link to the full op ed is here.

Harmonizing Religion and Human Rights

On December 5, the Carter Center will hold a public conversation on Harmonizing Religion and Human Rights.  Former President Jimmy Carter will be one of the participants.  According to the web announcement, to mark the occasion of Human Rights Day, December 10, "a panel of religious leaders will explore what the scriptures of some of the world’s major religions have to say about human rights. How can we align religious life with human rights? What role should spiritual leaders play in promoting human rights? And what can everyday people of faith do to defend human rights and encourage mutual respect between people of different religions?"

With families separated at the border and children tear-gassed, all in the name of preserving "American values," examining the religious roots of human rights and the American idea -- and encouraging religious leaders' engagement with these events -- can only be a good thing.  The event, which runs from 7 - 8:15 p.m. on December 5, will be live-streamed here.

US Human Rights Advocates: Need a Boost?

On November 16, an optimistic Michael Posner delivered the 2018 Horatio Ellsworth Kellar lecture at the University of Minnesota School of Law, celebrating the 30th anniversary of the law school's Human Rights Center.  We've accomplished a lot, he said, but "we must push back" against current efforts to marginalize human rights.  The current "America First" policies are "both misguided and wrong," he observed, and are counterproductive to American interests.  "We're fighting for the soul of American foreign and domestic policy," he concluded.  "It's a marathon, not a sprint."

 

Essential Reading(s)

The University of Pennsylvania Press has made a longtime commitment to human rights scholarship through its Studies in Human Rights Series, led by the wise and indefatigable editor Bert Lockwood.  Whether you are reading for personal enlightenment, purchasing for your library, putting together course readings, or thinking about gift-giving, we highlight the series' recent and forthcoming titles relevant to US human rights:

(1)  Human Rights Transformation in Practice, ed. Tine Destrooper and Sally Engle Merry (Oct. 2018).  "In Human Rights Transformation in Practice, editors Tine Destrooper and Sally Engle Merry collect various approaches to the questions of how human rights travel and how they are transformed, offering a corrective to those perspectives locating human rights only in formal institutions and laws. Contributors to the volume empirically examine several hypotheses about the factors that impact the vernacularization and localization of human rights: how human rights ideals become formalized in local legal systems, sometimes become customary norms, and, at other times, fail to take hold. Case studies explore the ways in which local struggles may inspire the further development of human rights norms at the transnational level."

(2) Beyond Virtue and Vice:  Rethinking Human Rights and Criminal Law, ed. Alice Miller and Mindy Jane Roseman (Jan, 2019).  "Beyond Virtue and Vice examines the ways in which recourse to the criminal law features in work by human rights advocates regarding sexuality, gender, and reproduction and presents a framework for considering if, when, and under what conditions, recourse to criminal law is compatible with human rights. Contributors from a wide range of disciplinary fields and geographic locations offer historical and contemporary perspectives, doctrinal cautionary tales, and close readings of advocacy campaigns on the use of criminal law in cases involving abortion and reproductive rights, HIV/AIDS, sex work and prostitution law, human trafficking, sexual violence across genders, child rights and adolescent sexuality, and LGBT issues.

(3) Joyful Human Rights, William Paul Simmons and Semere Keseste (Jan. 2019).  "​A pioneering work that thoughtfully explores human rights in the context of the most joyful of human experiences, Joyful Human Rights disrupts current human rights thinking and practice and leads us to challenge the foundations of human rights afresh.  The term “human rights” is now almost always discussed in relation to its opposite, “human rights abuses.” Syllabi, textbooks, and academic articles focus largely on abuses, victimization, and trauma with nary a mention of joy or other positive emotions. 
Focusing on joy shifts the way we view victims, perpetrators, activists, and martyrs. Importantly, focusing on joy mitigates our propensity to express paternalistic or salvatory attitudes toward human rights victims."  More information is available here.

 In addition to these titles, the Penn Series includes many other recent books, focusing on topics ranging from Argentina to Thailand.  Check out the entire list here.

Human Right To Adequate Housing

In October the UN Rapporteur on Adequate Housing visted New York to discuss her thematic report on Informal Settlements.  Leilani Farha is the UN Rapporteur and her report covers  a wide range of human rights approaches in addressing the many problems faced by those who live in informal settlements, which is the preferred term for what many refer to as slums.

The problems are complex and require not only thoughtful intervention but sensitivity to the needs and preferences of those living in informal settlements.  For example, forced relocation is not endorsed but for those who wish to relocate, finding improved and adequate housing is essential.  

The right to adequate housing is "increasingly viewed as a commodity.  Housing is most importantly a human right.  Under international law, to be adequately housed means having secure tenure - not having to worry about eviction or having your home or lands taken away.  It means living somewhere that is in keeping with your culture, and having access to appropriate services, schools, and employment."

A right to tenancy and lack of formal eviction processes are concepts that can be difficult ones for many living in America.  Our focus is on landlord property rights.  Given the economic and human costs of eviction, the less formal route of discussion and negotiation may at some point become a preferable alternative.

In the meantime, the report comments on Farah's visiting housing in appalling conditions, while other parts of the municipality provides luxury housing.  The gap between rich and poor is universal.   As the report states, we must begin by refusing to accept the unacceptable. 

 

Resources on Special Procedures

Looking for a one-stop site to check on the activities of UN Special Procedures?  The ILGA's got you covered.  For the past year+, they have published a monthly update of calls for input, upcoming country visits and other activities.   While the ILGA's primary focus is sexual orientation and gender identity issues, their update takes a broad view and includes Special Procedure activities addressing race, the environment, human rights defenders and many other issues.  Check out the November issue of the ILGA Info Note here.

Happy Thanksgiving To Our Readers

Wishing you peace and happiness this Thanksgiving.

 

The UN Warns of Human Rights Impact of the Digital Welfare State

Technology has its own biases.

US scholars are raising concerns regarding lack of cultural competency and other biases that are built into technological tools used to obtain information from those seeking to access public benefits.  These concerns were recently reiterated by the UN Rapporteur for Extreme Policy who raised concerns about the UK's move to digitize the delivery of public services.  

Philip Alston warned that   "A major issue with the development of new technologies is lack of transparency.  Evidence shows that the human rights of the poorest and most vulnerable are especially at risk in such contexts."

Digital tools used in the US as well as the UK do not account for those whose primary language is not English.  Sherley Cruz, who studies the lack of cultural competency in most digital tools, notes that the tools do not account for those who have limited or no experience with digital tools  let alone those who are illiterate or who do not understand any complexity in the wording used by the tool.  And there is no transparency in how the tools are configured or how responses are assessed.  Prof. Cruz' article is forthcoming in the University of Tennessee Law Review.

The Special Rapporteur's full statement may be viewed here.

 

Universal Children’s Day: An Opportunity for Common Ground

Jonathan Todres, Professor of Law, Georgia State University

All parents share one thing in common. Whatever our differences – across race, religion, socio-economic status, political beliefs, and more – every parent wants the best for their children. We disagree on a lot these days, but I haven’t heard a single parent wish that their children will do worse than they did.

Now consider this ambitious vision proclaimed almost thirty years ago: Every child in the world “should grow up in a family environment, in an atmosphere of happiness, love and understanding” and be raised “in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.” This ideal reflects what all of us would want for our children, for all children. After all, no parent hopes their children will suffer misery, war, and inequality.

This grand vision was announced in the UN Convention on the Rights of the Child (CRC). Adopted in 1989, the CRC was the first comprehensive human rights treaty on children. It established a holistic framework for ensuring the rights and well-being of all children. The CRC covers both civil and political rights (such as freedom from cruel, inhuman and degrading treatment) and economic, social, and cultural rights (such as the right to education). It also includes rights unique to children (such as the right to know and be cared for by one’s parents).

Given the universal appeal of its goals, it won’t be surprising to hear that it’s the most widely-accepted human rights treaty in history. Every country in the world has ratified the CRC, except the United States.

In the United States, the CRC has become a victim of much broader political and ideological battles, a phenomenon that too often tragically happens to children themselves. Highly charged rhetoric masks the reality of the CRC and children’s rights more broadly—that is, the fulfillment of children’s rights is consistent with what the vast majority of parents want for their kids. They want their children to have access to health care and education, to be free to observe their faith without government interference, to live without discrimination, and to grow up without suffering violence or exploitation.

Despite the major role the U.S. government played in drafting the CRC and the numerous similarities between U.S. law and the treaty, the U.S. government isn’t likely to ratify the CRC anytime soon.

But given the shared values in what parents dream of and what the CRC mandates for children, the idea of children’s rights remains relevant in the United States. We don’t have to wait passively for government to act; we can take action, guided by children’s rights values.

So, for Universal Children's Day (November 20) or any day thereafter, here are three steps each of us can take to forge common ground and improve the lives of children:

         1.  Read the CRC. Whether it is the CRC’s declaration that the family is “the fundamental group of society,” the  19  provisions of the CRC that recognize the vital role of parents              and the family in the lives of children, the treaty’s  support for education, its prohibition on torturing children, or something else, find an element of the CRC that             resonates with your values as a parent, family member, American, or human being.

        2.  Find and support (financially or as a volunteer) an organization in your community that advances an aspect of the  CRC that you support.

        3.  Vote for kids. And not just on election day. Make your voice heard often, by urging your representatives to support initiatives that help secure the rights and well-being of             children.

 If we all can do that, then this Universal Children’s Day can be a turning point, a day when we found common ground on which to build a world where every child can develop to its full potential.

 

 

International Observers Report on US Midterms

As previously reported here, the OSCE conducted election observations of the most recent midterm elections on November 6.  On November 7, the observation team issued a preliminary report, available here. 

Among other things, the OSCE noted that the disenfranchisement of convicted felons in some states violates US international commitments.

Further, the report noted that some states refused to cooperate with election observers.  According to the report:

"Election observation is regulated by states. Restrictions on election day observation by international observers were in place in 12 states. While federal government departments and agencies supported and facilitated the work of the [monitoring team], political and electoral authorities in several states declined to meet with . . . observers, and in one state prevented observation altogether. Such restrictions on international election observers are not in line with OSCE commitments undertaken by the US
Government."

The OSCE observation team also noted that the election was "marked by frequently divisive and intolerant rhetoric, including several incidents with xenophobic and anti-Semitic connotations."

In general, while the OSCE team concluded that the elections were generally carried out in an orderly and professional way, there were a number of significant deficiencies.    

For more information, and to view the OSCE press conference on November 7, click here.

Lawyers Needed: Survivors of California Fires Need Lawyers From Across The Country

Prof. Jeff Baker of Pepperdine Law School made a national request for help from lawyers.   The area residents are in need of legal help as a result of the recent (and ongoing) fires.  After lawyers are trained by FEMA and are comfortable with the processes, they will be eligible to take a case even if not licensed in California.

Here is Jeff's message:

We need your help. Today, I am officially launching the Disaster Relief Clinic to serve Malibu, the Santa Monica Mountains, and the Conejo Valley here in Southern California where the Woolsey Fire is still burning. 

 

Pepperdine students are displaced and scattered, and we are closed through Thanksgiving, when we are embarking on a massively ambitious, dense final week of school and finals, all while we try to be compassionate to the students. I do not want to put volunteering on their plate until we can launch the clinic course in January. 

 

So now, we need volunteer lawyers and clinical law profs. We're going to run an emergency, triaged VLP.  I need lawyers and law profs to take cases by referral.  I hope that you can recruit students at your schools and clinics to work under your supervision to handle cases and questions as they arise. (I have no capacity to supervise other people's students; I'm sure you understand). 

 

Here is the page to register:   https://law.pepperdine.edu/experiential-learning/clinical-education/clinics/disaster-relief-clinic/

 

Spread it far and wide. 

 

I will provide some training on FEMA matters soon, and I have some excellent, ready resources for fire responses in California for everyone who volunteers, thanks to FEMA, MoFo and Horwitz & Levy.  

 

Write me directly with questions, but please volunteer quickly. 

 

Thank you all, 

 

JRB

 

Jeffrey R. Baker

Associate Clinical Professor of Law

Director of Clinical Education

Pepperdine University School of Law

Malibu, California

(310) 506-6350

 

 

 

"US Cities in Pursuit of Viable Futures": Do Human Rights Have a Role?

On November 29, from 2-3:30 p.m., the Brookings Institution in Washington, D.C., will host a program titled "US Cities in Pursuit of Viable Futures: Taking on the Sustainable Development Goals."  More information and registration is available here.

Some cities have begun exploring the synergies between human rights norms and the SDGs, and the ways in which these frameworks can be mutually reinforcing and beneficial.  Will the topic of human rights be on the table at the Brookings discussion?  It should be!

The program description is here:

"With political divisions on the rise and global cooperation imperiled, city officials worldwide are stepping up to lead, solving local problems while sharing solutions and innovations across borders. Making cities such as New York, Pittsburgh, and Los Angeles inclusive, safe, and sustainable is vital to the future of the United States—and the globe. Driven by the need to act locally while thinking globally, a growing number of metro areas are adapting the Sustainable Development Goals (SDGs) as a blueprint for progress.

On November 29, 2018, the Global Economy and Development Program at Brookings and Carnegie Mellon University’s Heinz College of Information Systems and Public Policy will co-host an event with city officials and development experts to explore the value proposition of the SDGs for U.S. cities. Experts will explore how the 17 SDGs can help cities tackle local economic, political, and environmental challenges vital to the health and wellbeing of their residents. They will debate how U.S. cities can lead and reach the global goals by 2030.

New York City and Los Angeles are publicly promoting and implementing the SDGs, while cities such as Pittsburgh are leading on innovation and sustainability but have not yet connected their strategies to the SDGs. Panelists will also explore how technology can help integrate the SDGs into city strategies and accelerate development gains."

The Gender Policy Report: Human Rights, Development & Security, and More

Today, we're writing to highlight a wonderful resource from the University of Minnesota: the Gender Policy Report.   According to the report editors,  the GPR "is a non-partisan, multi-disciplinary effort to produce and disseminate timely, gender-focused analyses of emerging U.S. federal policy proposals and developments."  The report entries, typically authored by scholars, are evidence-based but written for the general audience.  Recent posts provide insight into the Rainbow Wave by examining voting in Minnesota, and take a look at gender issues  in the Midterms.  A special section of the GPR focuses on human rights, development, and security, featuring a recent post on counting women and girls in development initiatives.  Another GPR section focused on immigration has a recent post identifying gender violence as one driver of the immigrant caravan that has received so much play on the national stage.

The GPR is an impressive initiative to counter baseless "fake news" claims with real facts, and dig below the surface to get to the essence of the issues.  Kudos to the editors and curators for this work!

 

The Ethics of Re-presenting Mass Violence in Research: Call for Abstracts

STUDYING WAR CRIMES:

 When do descriptions of harm become academic sensationalism rather than re-presentations of violent materialities? Can academic interest and engagement in mass harm ever avoid voyeurism? How can sensational violence be ethically re-presented in research? Across disciplines theorizing mass harm, a consensus is emerging cautioning against sensationalism in re-presentations of perpetrators, victims, crimes, and sufferings, seeing detailed descriptions of violence as academic voyeurism. Yet, how comfortable a read can research that has violent profusion at its core become, before the distance created by language becomes an ethical – and analytical – challenge in its own right?

This edited volume invites experienced scholars to address thoroughly the ethics of doing research on mass harm in general, and of re-presenting and describing mass violence, harmdoing, trauma, and suffering in their own research in particular. Drawing on a range of methodological approaches and empirical cases, the book will address how mass violence and war crimes are brought into research – both as an ethical, a sensational, and an analytical matter.

We ask contributors to reflect on their re-presentations of mass crimes, violence and justice, seeing re-presentations both as an issue to do with individual and disciplinary research ethics but also as a matter to do with power and material structures of academic knowledge production. The purpose is to encourage active engagement with a research ethics that goes beyond ‘procedural ethic;’ to expand the discussion on responsibility for the stories we hear, read, analyze, and re-tell; and to address in-depth the ethics of listening, seeing, and telling in research on mass violence and war crimes.

The book will be relevant for all researchers who wish to engage ethically with the study of mass violence and war crimes.

We invite abstracts that explore the ethics of re-presenting mass violence in research.

Abstracts may also cater specifically to:

• The ethics of caring, seeing, listening and re-presenting
• Selection and exclusion: whose stories are told?
• Understanding harm/understanding as harm
• “Thick descriptions” and sensationalism
• Breaking the silence vs silence as choice
• Emotions, positionality, and reflexivity

Submission guidelines:

Abstract of no more than 500 words to be submitted by November 30th, 2018 to editors at [email protected]. We only accept original contributions and the abstract needs to clearly demonstrate the chapter’s contribution to the volume.

Please include a 150-200 word bio highlighting your affiliation, work experience and credentials in the field of war and mass violence research.

Further process:

After an initial screening and by December 15^th, 2018, editors will invite 8 contributors to develop their abstract into a full chapter (5-7000 words) to be submitted by April 15^th2019. We will apply for funding for a lunch-to-lunch workshop for contributors in May 2019. The final submission date for full chapters will be in August, 2019.

Routledge (Taylor&Francis Group) initiated our work with this collection, and has expressed a strong interest in publishing the book.

Thanks to IntLaw Grrls

Trans Rights Are Human Rights

In the recent voting, Massachusetts heartily defeated a referendum that would have rolled back transgender protections. In 2016, Massachusetts established non-discrimination protections for transgender  individuals.  Those protections included use of bathrooms and locker rooms that align with gender identity.  A referendum sought to repeal the protections but that movement was roundly defeated by 70% of voters. 

This follows the administration's rollback of protections for the trans community.  These include removing student rights to use the bathroom that conforms with their gender identity and seeking to roll back trans individuals from serving in the military. 

The United Nations Foundation has noted the need for the US to protect all human rights.  "This discouraging news runs counter to American values and hurts the country's ability to champion human rights around the world. For the United States to be credible in advancing human rights and combating discrimination on the international stage, it needs to also set an example right at home."  

 

 

 

Now Is The Moment

 

Guest Blogger Rebecca Bratspies, Professor of Law at CUNY School of Law and the founding director of the Center for Urban Environmental Reform, contributes this post which was originally published on the Environmental Law Profs Blog.

 

Now is the moment!

The choreographer George Balanchine is famous for telling his dancers

“why are you holding back? What are you saving for—for another time?  There are no other times. There is only now. Right now.”

While dance and environmental law are generally not considered the most closely aligned fields, I have been thinking about Balanchine’s word’s lately as I try to respond to the current administration’s approach to climate change, and to environmental law more generally.

On October 6, 2018, the Intergovernmental Panel on Climate Change issued a report titled Global Warming of 1.5°C. This report underscores the vital importance of ‘now” that Balanchine was trying to convey to his dancers. The report emphasized that the world is not yet committed to catastrophe—it is still possible to keep anthropogenic climate change below 1.5°C of warming. However, there is only a small window of time in which we can change our trajectory and limit the damages of climate change.  Thus, the IPCC unambiguously states that the need for immediate action is urgent and that averting catastrophe will require “rapid and far-reaching transitions” that “are unprecedented in terms of scale.” There are no other times.  There is only now.  Right now!

The United States national government seems set on preventing any such transition. Announcing with great fanfare that the United States would withdraw from the Paris Agreement, the Trump Administration is on the wrong side of history.  Climate deniers occupy key executive branch positions. As a result, the government alternates between bolstering the coal industry, undoing laws preventing methane and HFC emissions, and reducing fuel efficiency standards. Indeed, the Trump administration recently used the prediction that disastrous warming was inevitable as a reason to allow increased carbon emissions from vehicles. Noting that the proposed rollback was “projected to result in only very minor increases in global CO2 concentrations and associated impacts”the administration rationalized that any such restrictions were too small to matter because climate change is a global issue. This was, of course, precisely the argument rejected in Massachusetts v. EPA. In that case, EPA had argued that because greenhouse gas emissions caused widespread harm, there was no “realistic possibility. .  .that the relief petitioners seek would mitigate global climate change and remedy their injuries.”  The US Supreme Court flatly rejected this contention noting that “the United states transportation sector emits an enormous quality of carbon dioxide” and that restricting these emissions would be an incremental step that might reduce the risk to some extent.

Yet, even as the federal government backslides, large portions of the country are forging ahead. All eyes are on the cities, states, businesses and other organs of civil society that have pledged to take action on their own. The 3600 member strong “We’re Still In” coalition, for example, has taken up the task of achieving with the United States’ Nationally-Determined Commitment to the Paris Agreement without federal leadership. Hundreds of subnational and private actors have submitted pledged to reduce their carbon emissions. These commitments put us on track to come close to achieving our Paris obligations. And, technology is rapidly leaving carbon behind.  Even in the US, renewables and electric cars are burgeoning, prompting the Climate Action Tracker to revise the United States’ projected emissions downward despite federal intransigence. “There are no other times.  There is only now.  Right now!”

Moreover, the rest of the world seems committed to a greener future. A Dutch appeals court just ordered the Netherlands to rachet up its climate ambitions. A host of similar lawsuits around the globe are pushing other countries to do the same. These lawsuits are changing the public narrative. Together with the IPCC report emphasizing that we are not yet committed to 1.5 C, the message is being heard: “There are no other times.  There is only now.  Right now!”

Perhaps the greatest signal that we may be experiencing a sea change is the emerging consensus on the human right to a healthy environment. On October 25, 2018, the UN Special Rapporteur for Human Rights and the Environment addressed the United Nations General Assembly for the first time. While the United States did not attend, many other countries did. Costa Rica, Switzerland, and Slovenia spoke strongly in favor of officially recognizing a human right to a healthy environment. Russia prefaced its remarks by stating that the Russian Federation recognized the right to a healthy environment. France has proposed its Global Compact for the Environment, which it describes as a “common road map for transforming our world.”

Together these developments suggest that there is a moment open for action. The United States midterm elections may give us a hint of how the federal government will move forward from here. Yet, regardless of federal action or inaction, we can seize the chance, we can remake our world. Now is the time to think big, to think beyond the narrowing limits of existing environmental law to what a truly sustainable society would entail. There are no other times.  There is only now.  Right now!

Celebrating a Decade as a Human Rights City: Washington, D.C.

On December 10th, 2008, Washington, D.C. became the first city in the United States to be designated a Human Rights City, marking the 60th anniversary of the adoption by the United Nations of the Universal Declaration of Human Rights (UDHR). Washington, D.C. joined a successful worldwide movement that includes dozens of cities around the world, from York, England, to Gwangju, Korea.  In the U.S., cities that embrace a human rights perspective include Pittsburgh, Eugene, Oregon, and San Francisco.

 

On December 14, gather in Washington, D.C. for an open house and public program sponsored by the American Friends Service Committee’s DC Peace and Economic Justice Program and ONE DC to celebrate Washington, D.C.’s 10 years as a Human Rights City, and demand a renewed commitment to protecting human rights. Presenters will include AFSC General Secretary Joyce Ajlouny, ONE DC’s Maurice Cook and D.C. Councilmember Mary Cheh.  

 

Event information:

When:
December 14, 2018, 6:00-8:00 PM

Where:
ONE DC Black Workers & Wellness Center (BWWC)
2500 Martin Luther King Jr. Ave. SE, Washington, DC 20020

ICE Raises the Same Old "Consent" Defense to Claim of Sexual Assaults of Detainees

Sexual abuse of those detained in ICE centers is no secret.  Statistics show that there were 1448 complaints of sexual assault in just over five years with 237 assaults in 2017 alone.  Some of the assaults were on children.  Several employees have been arrested.  This with only 40% of sexual assaults in detention centers being reported by administrators.

Yet in a civil suit filed on behalf of assault victims, ICE  has raised the centuries old defense that the detainee, who was assaulted when detained with her three year old son, consented to the assault.  In this context, however, consent (even if it did exist) is irrelevant because in the detention setting, any sexual contact between an employee ad a detainee is a criminal offense. 

In E.D. v. Sharkey a detainee filed suit because she was assaulted while detained with her three year old son.  Among the defendants are those employees who stood by while the assault occurred and failed to protect E.D. The institutional defendant claims that it should not be liable to the Plaintiff because they are a detention center and not a prison or jail and therefore should not be accountable under the Prison Rape Elimination Act.  

The ACLU has filed an Amicus brief in support of E. D.

 

Government Abuse of Power

by Prof. Dina Haynes, New England School of Law

In October of 2018, the Department of Homeland Security sent a “subpoena/summons” to an immigration attorney. The document stated: “You are requested not to disclose the existence of this summons for an indefinite period of time. The government works for, and at the behest of, the people.” The “subpoena/summons” requested the private attorney to supply “All information related to the Immigration and Customs Enforcement (ICE) memorandum with the subject title of “Litigating Domestic Violence-Based Persecution Claims Following Matter of a A-B-“ dated July 11, 2018; including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.” The document was sent by the Special Agent in Charge within the Office of Professional Responsibility at DHS. The Summons cited 19 U.S.C. § 1509, which is a section of the US Code giving authority to Customs Agents to seek records pertaining to improper import or export of goods to or from the United States. The attorney so summoned also happens to be the private attorney who has for decades compiled the daily deluge of laws, cases, regulations, memos and practice changes within government necessary for immigration lawyers to review to stay current on immigration law and policy. He is a lawyer and a journalist.

DHS appeared to be attempting to use authority conferred to it for the purpose of preventing smuggled, untaxed or counterfeit goods into the United States, to force a private attorney, who also happens to be a journalist, to provide information they sought on an internal “leak.”

Every person in the United States should take heed. This blatant misuse of the law, abuse of a position of authority, warrantless subpoenas and use of administrative “summons” to threaten private attorneys is authoritarian in nature and warns of worse erosion of rights to come. How does the Special Agent in Charge of Professional Responsibility within DHS not know that his fishing attempt vastly exceeds his authority? How does he not know that this warrantless “summons” is being gravely misused as applied?   The answer is that he does know, and he doesn’t care. His superiors have consistently demonstrated growing disregard for the rule of law, and for private immigration attorneys.   The Attorney General of the United States has called immigration lawyers “dirty” and stated that we work to undermine the law, when speaking before federal employees; his subordinates.

This culture of impunity, this emboldening of federal employees to make hash of the rule of law, is exceedingly troubling.  

When officers of the federal government feel unfettered by constitutional restrictions placed upon them, we all lose. When lawyers are collectively maligned and undermined and threatened and called names by the “highest lawyer in the land,” the very foundations of the rule of law are destabilized. When individual lawyers are threatened with malicious prosecution or fake subpoenas by federal employees, the will of all lawyers to continue to fight on behalf of the rights of others is diminished. We are being threatened so that we will exercise prior restraint on ourselves. Our speech is being chilled. The Founding Fathers understood that those two principles were central to the effectiveness of constitutional democracy, free from the tyranny of the majority. If we continue to sit back and let federal employees act in this disgraceful manner, we will have no rule of law left when we need it the most.

 

 

Children's Climate Change Lawsuit Proceeds: For Now, Per SCOTUS

Children and teens in Oregon filed suit in federal court in Oregon asking the court to develop a national plan to eliminate the use of fossil fuels.  The government, who had sought relief in asking the court to stop the case from going to trial.  SCOTUS refused to block the suit from proceeding but in the meantime informed the government that they may receive relief from the 9th Circuit Court of Appeals.

The lawsuit, Juliana v. US, framed in human rights terminology, survived a Motion to Dismiss.  In its ruling, the Court said “The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs' analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short-term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”

According to Plaintiff's counsel, there is little discovery left to do and the case is ready to proceed with trial.  The Plaintiffs will proceed on the Public Trust Doctrine.  The Doctrine asserts that the government is a trustee of the natural resources that its residents depend on for life, liberty and the pursuit of happiness.