Human Rights at Home Blog

U.S. Reengages with UN Human Rights Mechanisms

The United States was elected to the UN Human Rights Council on October 14, 2021, more than three years after the Trump administration withdrew from the Council.  On the campaign trail President Biden had promised that the United States would week election on the Council and the administration began to reengage with the Council earlier this year as an observer. 

Also noteworthy is that on September 24, 2021, the United States submitted its Sixth Periodic Report to the UN Committee Against Torture concerning the implementation of the United States’ obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in accordance with Article 19 of the Convention. The report covers both domestic and extra-territorial violations of the prohibition against torture, cruel, inhuman, degrading treatment or punishment. As reported by Jamil Dakwar, Director of the American Civil Liberties Union's Human Rights Program, the report was due in 2018 but the Trump administration failed to submit a reply to the Committee’s detailed questions. The organization of this report follows the general guidelines for the preparation of reports by Member States. The U.S. report will likely be reviewed by the U.N. Committee Against Torture in late 2022 or early 2023 depending on the backlog caused by COVID-19.  U.S. civil society organizations (including human rights clinics) may wish to submit shadow reports to the Committee in the coming year.

UN’s International Day in Support of Victims of Torture: North Carolina Citizens Call for Investigations and Reparations.

By Prof. Deborah Weissman 

The University of North Carolina School of Law’s Human Rights Policy Lab (HRPL) has sent a 35-page formal submission to 10 UN human rights experts who oversee treaty obligations.  The submission calls upon members of various rapporteurships and working groups to investigate both the CIA’s and Aero Contractors’ human rights violations in North Carolina and urges the United Nations to investigate North Carolina’s continued refusal to acknowledge and take responsibility for its role in the US government’s post-9/11 torture program.  The submission to the UN was prepared on behalf of the North Carolina Commission of Inquiry on Torture (NCCIT) and the advocacy organization North Carolina Stop Torture Now.  It was delivered on the eve of June 26, the UN’s International Day in Support of Victims of Torture.  The day was proclaimed in 1997 when the Convention Against Torture went into effect.  The UN calls June 26 an opportunity for member states, civil society and individuals to “unite in support of the hundreds of thousands of people around the world who have been victims of torture and those who are still tortured today.”

Simultaneously, the HRPL has just published a groundbreaking report on reparations owed by the State of North Carolina for its role in the renditions to torture of 49 survivors and victims of the US torture program.  The 45-page report was sent to human rights experts in the US and at the UN.

The UN receives the HRPL submission as it considers a complaint by the Center for Constitutional Rights about US interference with a proposed investigation by the International Criminal Court (ICC) of US violations including torture.  After the ICC decided under US pressure not to proceed with an investigation by its Chief Prosecutor, Fatou Bensouda, of US and Taliban war crimes in Afghanistan, Ms. Bensouda appealed that decision.  Some cases of rendition and torture discussed in the UNC documents and the 2018 report of the NCCIT bear on the ICC’s proposed investigation because they involve CIA “black sites” in Afghanistan.

The UN says that “torture seeks to annihilate the victim’s personality and denies the inherent dignity of the human being.” Yet North Carolina continues to host Aero Contractors, the CIA-affiliated aviation company, at the Johnston County Airport even though a non-governmental commission and international experts have reported that Aero has used that airport and the Global TransPark in Kinston for at least 69 renditions that in and of themselves amounted to torture.

“Reparations are key mechanisms, not only for healing at an individual or communal level but also for the maintenance of democratic societies,” the UNC reparations report.  “Eventually, the sun sets on democratic governments that operate with impunity to carry out human rights abuses."  

The UNC Law team is requesting that the 10 UN mandate-holders work directly with North Carolina’s state and local governments to achieve accountability, even without the agreement of the federal government.  As a model, the petition for UN intervention notes, the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, visited Los Angeles in 2017 to examine conditions on Skid Row.  Within a year, Los Angeles announced new funding to address the problems highlighted in his report.

The Suit Against the Torture Psychologists Survives

Earlier, this blog reported on a lawsuit filed against the two psychologists who were paid millions by the US government to develop torture techniques designed to elicit information from terrorists.  As reported, the research and techniques developed resulted in extraordinary human torture with no new significant information obtained from those who were tortured.  More importantly, the design created by the psychologists introduced a heightened level of cruelty into US custodial culture and provided no science-based evidence that the recommended torture techniques are effective.

The lawsuit, Salim v Mitchell, was brought by the ACLU.  Recently, the suit survived a motion to dismiss that was filed on behalf of the defendants.  The case will now proceed to discovery.  This is the first law-suit based on CIA torture that has survived in the courts; but this case names CIA contractors as defendants, and the government to date has not attempted to derail the case. According to the ACLU website, the government intends to cooperate with discovery, but will keep an eye on information it decides will create risks to CIA operatives.

The Plaintiffs have one month to present a discovery schedule to the court.

 

(In)justice for Migrant Children

Editors' Note:  Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School

A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9^th Circuit to do the same.

The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.

Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.

Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.

Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.

Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.

Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.

There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.

Accountability for Torture

 by Deborah Weissman

The UNC School of Law Human Rights Policy Lab is pleased to release its report, Assessing Recent Developments: Achieving Accountability for Torture

Following September 2001, the United States government declared a ‘war on terror’ and embarked upon a program of extraordinary rendition and unlawful prisoner transfers, interrogation by torture, and a global system of detention outside the law. Since that time, there has been a concerted and global effort to bring about accountability for the U.S. rendition and torture program.

This policy report reviews new developments to obtain compliance with U.S. human rights obligations and relief for victims of torture, including U.S. commitments made to the UN Committee Against Torture and the UN Human Rights Council, the release of the Senate Select Committee on Intelligence Report on Torture, decisions by international and foreign courts, reports by journalists who continue to expose and educate the public about the U.S. Rendition and Interrogation Program, as well as the ongoing advocacy of committed human rights organizations.

These efforts have served to encourage accountability. While the U.S. government continues to refuse to “look back” and prevents torture victims from advancing their claims, it is nonetheless crucial to take stock of changed circumstances and determine how they may best serve ongoing advocacy efforts on behalf of torture victims. We believe that the task of advocates is to press into service the recent U.S. commitments, disclosures, judicial theories, advocacy strategies, and the global concerns that point to accountability and remedy for torture.

A Long View of the Torture Memos

I had some misgivings as my trip to Trondheim, Norway approached.  I was scheduled to speak to students and faculty at the Norwegian University of Science and Technology about the Torture Memos and detainee treatment at Guantanamo -- not comfortable topics for an American abroad.   How I would have preferred to discuss some of the other, more positive topics covered in this blog -- how US mayors are stepping up to implement human rights norms locally, or how the social movement for marriage equality succeeded in changing the law and lives.  But the Norwegian students had just read Guantanamo Diary, and they were anxious to talk with an American lawyer about the range of issues raised by that book -- torture, indefinite detention, censorship and so on.

I touched on all of those topics, but framed my remarks around the legal ethics issues that I'm most familiar with, and argued that on top of everything else, the organized bar failed to adequately respond to the Torture Memos.  The audience was knowledgeable and tough, and asked more than once why there was so little accountability for the torture policies at the highest levels of US government.

The day after my talk, I had the opportunity to visit the Falstad Memorial and Human Rights Centre about an hour's train ride outside of Trondheim.  Falstad was built as a special school for delinquent boys but starting in 1941, it served as the Falstad SS prison camp during the German occupation of Norway.  Political prisoners en route to concentration camps, Jews headed for Auschwitz and others passed through the camp.  Not everyone left.  Some were tortured.  Hundreds of prisoners were shot point blank and buried in unmarked, mass graves in the stately pine forest nearby.

The Falstad Centre is open about its history.  Its original function, our guide told us, could be characterized as a work house for low income children.  When it became an SS camp, it was not only occupying Germans who carried out the barbaric acts there; some of the guards and collaborators were local Norwegians.  And of course, on a national scale, the Norwegian puppet government provided cover for German policies during the war.

When the Falstad Centre formally opened in 2006, the foreign Minister of Norway suggested that Falstad could served as a counterweight to the already internationally notorious US torture and detention policies.  The Falstad Centre, he argued, by marking the graves and naming those who passed through the camp, attempts to restore the identity and humanity of the otherwise faceless victims.  It shows, he said, why no individual or government should be excused from honoring basic human rights and permitted to torture or suspend the Geneva Conventions.

While I certainly agree, I took a slightly different lesson from my visit -- and that is, the importance of speaking out about human rights violations, even when it is uncomfortable to do so.  The Falstad Centre's impact is all the more powerful because it confronts the reality of Norwegian collaboration and collective responsibility, as well as the humanity of the occupying forces, though it cannot be a popular to do so -- and indeed, the Falstad exhibit has provoked a wide-ranging debate in Norway.  Though I had mixed feelings about hosting a frank conversation about the Torture Memos in Trondheim, I came away from Falstad feeling that holding such uncomfortable conversations in all quarters is an important aspect of addressing human rights abuses and, in the long run, finally relegating the violations of the Torture Memos and Guantanamo detentions to history.

 

"In Our Name": An Unexpected Intervention to End Torture

As law professors, we often repeat the same strategies again and again in our efforts to promote human rights dialogue and education: we write law review articles, blogs, op eds, amicus briefs, textbooks and sign-on letters; we organize and attend conferences; we raise issues in our teaching.  

Professor Michael Meltsner of Northeastern Law School, however, did something different.  In 2011, he wrote a play: In Our Name:  A Play of the Torture Years.   As described by the author, the play "depicts how and why the nation found itself brutally treating the men it detained—some with good reason, some with stunning caprice—after 9/11.  The play confronts the government rationalizations, the bizarre military hearings, and the willful blindness of the public to what was happening behind barbed wire."

After successful productions in Boston and New York, Professor Meltsner's work will be performed once again at 4 p.m., March 19, 2015, at Northeastern's Blackman Auditorium.  A panel discussion of the ethics of torture will follow the performance.

As an alternative to professors' "business as usual," theatre has much to recommend it.  "New Tactics for Human Rights," a program of the Center for Victims of Torture, reports that "by working through theatre, both performers and spectators can engage difficult questions in a safe space. Theatre is also an ideal instrument to give witness to human rights violations. It is also an excellent tool for education and awareness raising. Lastly, these insights can be used to advocate for policy and legislative changes."

Such creative efforts to perpetuate the dialogue about human rights and torture are particularly important given the continued detentions at Guantanamo and media blackout on conditions there. Recent reports indicate that the requests of Juan Mendez, the UN Special Rapporteur on Torture, to interview detainees have been denied.  And the U.S. government has discontinued reporting on hunger strikes and forced feedings at the facility.  Without new "news," there's a danger that indefinite detentions and the abuses that go along with them, will become simply part of everyday background noise.    

In Our Name has sparked, well yes, more law review articles.  But more importantly, by employing an unexpected strategy, it breathes new life into the movement to end these abuses.    

 

 

A Message on Torture from the U.S. Senate

by Professor Michael Meltsner, Northeastern University School of Law, Guest Editor

By this time readers of the Human Rights at Home Blog are generally familiar with the appalling details revealed by the Report of the Senate Select Committee on Intelligence. That the United States has engaged, to quote the text, in the “use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values” is hardly news to those who have followed the nation’s reaction to 9/11, the terms of the Patriot Act, the creation of a prison at Guantanamo, the Abu Ghraib photographs, the John Yoo definition of torture, Vice President Cheney “Dark Side” comments, Defense Secretary Rumsfeld beliefs about forced standing, and the reports of a cadre of intrepid and courageous journalists, writers and pro bono lawyers, Jane Mayer and Stephen Oleskey to name just two of many,  as well as a few whistleblowers, who have documented the C.I.A.s and the military’s activities at Guantanamo, so called Black Sites around the world and countries used for their friendly surrogate security services by means of international rendition. Indeed, we engaged in what the Report calls “improper action” throughout “the war on terror” at least until President Obama issued an executive order on his second day in office (and for all we know we still do).  

 Of course, the remarkable research delivered in the 499 page “Executive Summary” (of a supposed 6,000 page document) provides enough provocative detail that (despite redactions) well justifies a careful reading (Warning: not for the faint of heart.) The media has largely focused on the question of whether torture (or whatever euphemism comes to mind) produces “actionable intelligence,” whether the C.I.A. lied to higher ups and Congress, and whether the Report will lead to some form of accountability. 

 Each of these, plus a number other issues that leap out from the Report’s conclusions are obviously worthy of serious debate, especially the way in which dubious legal interpretations were consistently employed to justify whatever horrific treatment was on the Agency’s agenda. But the big news for me in the long awaited and oft disputed publication of the Report is political. Just how will a nation that is split ideologically and pragmatically over most everything that matters in public policy react to official revelations that we crossed a moral threshold? Republicans, with the exception of John McCain and a few allies, seem to find release of the information worse than the conduct of the interrogators.  The former Bush officials and C.I.A. operatives who have chimed in to criticize have so far been short on facts, perhaps because Senate staffers craftily used the very language of Agency officers to make their case.  Senate Democrats rely on what the New York Times correctly calls the “meticulous detail” of the Report’s findings to convey its credibility but they have to deal with a President whose cautious response must reflect a government dependent on C.I.A. national security calculations.

 The key I think is not so much the next moves of government players but what happens in the country at large. So far the Jack Bauer narrative and “24” has made more of an impact on the nation than “Do onto others” or “what does becoming a torturer do to us?”   But the Report is bound to stimulate public debate and ultimately should reveal the extent to which Americans believe the end of a reduction in the fear of an enemy justifies means that are not only illegal but plainly lead to swelling the ranks of the enemy. The same inability to think about proportion that characterizes our (world leading) mass incarceration penal system has so far been evident. Does a felt necessity excuse behavior that in other circumstances would be condemned? If torture “works” does that make it ok? And what is the definition of what “works”? Perhaps we will find out. Perhaps not. The United States today is a nation without consensus on major issues and if the public does not demand limits in the long run there will be few remaining. Unless the nation can be read to support an end to the culture of torture, history suggests the C.I.A. or some other aspect of power will let the dust settle and then get on with it again. If you doubt me take a look at the Church Report or the story of Guatemala in the 1950s or the fate of Salvador Allende. Without a committed public, expediency rules. 

 

Michael Meltsner is the author of In Our Name: A Play of the Torture Years and The Making of a Civil Rights Lawyer. He is the Matthews Distinguished University Professor of Law at Northeastern University in Boston.