Mar 28 2014

UN Human Rights Committee calls on US to effectuate the ICCPR

Following two days of face-to-face public questioning (Day 1, Day 2) of a US government delegation earlier this month, the UN Human Rights Committee (UNHRC) has published its concluding observations on US implementation of the International Covenant on Civil and Political Rights (ICCPR).

The UNHRC’s concluding observations include a strong endorsement of our call for Congress to enact legislation to “effectuate” the ICCPR by making the treaty enforceable by US courts, particularly where violations of the ICCPR do not constitute violations of any other US law.  As one of its key recommendations, the UNHRC says that:

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

At the end of a press conference announcing the UNHRC’s concluding observations concerning the US, UNHRC Chairperson Nigel Rodley had this to say about the need for judicial enforcement and accountability for human rights violations:

Of course they [the US government’s representatives] stressed the improvements they’ve made, so that people wouldn’t be doing the same things in the future. But absolutely not — there was no suggestion that any of those responsible for any of the past criminal violations of our Covenant [i.e. the ICCPR] would be brought to justice or that its victims would have access to their day in court.

The UNHRC’s concluding observations recommend that, “The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.”

We won’t hold our breath for Congress to act, but we hope that this recommendation from the only independent body officially empowered to review the state of human rights treaty compliance by the US will prompt members of Congress to consider sponsoring legislation to create a cause of action for violations of the ICCPR and give US courts jurisdiction to hear such complaints.

The UNHRC also criticized US mass surveillance, but mentioned only communication surveillance and metadata and not the closely related issue of NSA and DHS mass surveillance of travel metadata.

Mar 14 2014

UN Human Rights Committee review of US implementation of the ICCPR: Day 2

US government delegation listens to questions from the UN Human Rights Committee. (Click image for larger version.) At the head table, left to right: Scott Shuchart (Senior Adviser, Office of Civil Rights & Civil Liberties, DHS), Megan Mack (Officer for Civil Rights & Civil Liberties, DHS), Bruce Swartz (Deputy Assistant Attorney General, DOJ), Roy Austin, Jr. (Deputy Assistant Attorney General, Civil Rights Division, DOJ), Mary McLeod (head of the US delegation and Principal Deputy Legal Adviser, Department of State). US Army Brigadier General Richard Gross (Legal Counsel to the Chairman of the Joint Chiefs of Staff, Department of Defense) in profile at left in front of Ms. Mack.

Questioning of a US government delegation by the UN Human Rights Committee (UNHRC) concerning US implementation of the International Covenant on Civil and Political Rights (ICCPR) continued today in Geneva.

Many of the same issues as were raised in yesterday’s first round of questions from members of the Human Rights Committee continued to be pursued in today’s follow-up questioning, along with other concerns including NSA surveillance and collection of communications metadata.

But as the day went on, there was an increasing focus on the “meta-issues” of applicability, enforceability, and remedies and redress for violations of the rights guaranteed by the ICCPR:

  • Does the US accept that everyone subject to US jurisdiction is entitled to human rights, as the Human Rights Committee and almost every other party to the ICCPR (except Israel) interprets the treaty to mean?  Or does the treaty only apply to US actions within its borders, allowing the US to violate human rights abroad with impunity?
  • In light of the US interpretation of the ICCPR as not being “self-executing”, and the failure of Congress to enact effectuating legislation to enable the treaty to be invoked in US courts, what “effective” means of judicial redress (as required by the ICCPR itself) are available to those whose human rights are violated, especially if those violations of the ICCPR don’t also constitute violations of domestic US law?

This latter point, raised today by at least four members of the UNHRC, was one that we had taken the lead in asking the UNHRC to address, through both an initial and a supplemental submission to the UNHRC in advance of this week’s session.

The head of the US government delegation, Mary McLeod of the State Department, responded to these questions today by telling the UNHRC that the US “sees no need” to allow the ICCPR to be invoked in US courts.

Her implicit message, and that of the other members of the US delegation in their responses to questions about specific issues, was that internal administrative measures provide an adequate substitute for judicial oversight or enforcement of human rights obligations.

But many of those claims about administrative “remedies” rang hollow:

  • DHS Officer for Civil Rights & Civil Liberties Megan Mack, who has been officially designated as responsible for implementation of the ICCPR by the DHS, said that her office “enforces” DHS administrative standards for use of deadly force by US Customs and Border Protection officers.  But she didn’t mention that her office is purely advisory, and has no authority to order any sanctions against CBP officers or any other DHS employees or contractors.
  • Ms. Mack told the UNHRC that her office “receives complaints” of violations of the ICCPR by DHS components, which is true. But she didn’t tell the UNHRC that  some of those  complaints, including some of ours, have been pending with her office for years without any response.  Nor did she mention that her office has claimed that violations of the ICCPR were “authorized” by US law, suggesting a profoundly mistaken belief that the US can derogate from its treaty obligations by enacting domestic statutes.
  • Roy Austin, Jr., Deputy Assistant Attorney General and head of the Civil Rights Division of the Department of Justice, told the UNHRC how important it is to ensure that people who believe their human rights have been violated have a place to complain, and receive a response to their complaint.  But he didn’t disclose to the UNHRC that — as we learned in response to one of our FOIA requests — his Department has no record of ever having designated a point of contact for such complaints, or of ever having responded to any of them.
  • Deputy Assistant Attorney General Bruce Swartz talked about Attorney General Holder’s policy that his “Department will not defend an invocation of the [state secrets] privilege to conceal … administrative error”, but didn’t mention that A.G. Holder personally signed a sworn declaration to the court in the first “no-fly” trial, explicitly quoting that policy while invoking the state secrets privilege to try to prevent the plaintiff, who the government admitted posed no danger, from learning or obtaining redress for her having been placed on the “no-fly” list as a result of what the government admits was a mistake by an FBI agent who checked the boxes on a form he was supposed to un-check and un-chekked the boxes he was supposed to check.

Throughout the day, there was much talk of “guidelines” and “policies”, but little talk of laws or of whether practices conform to aspirational administrative “guidance”.

The UNHRC is expected to issue its report on US implementation of the ICCPR , in the form of “concluding observations” from its review, on March 27th.

Mar 13 2014

UN Human Rights Committee review of US implementation of the ICCPR: Day 1

Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.

The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.

With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the  the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.

Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”.  Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.

The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.

The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination  about its human rights record.

For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.

But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end. Read More

Mar 13 2014

Public questioning of US government on human rights

Today and tomorrow in Geneva (early Thursday and  Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).

Here’s the schedule of the webcast public questioning:

  • Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
  • Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
  • tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)

This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.

We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:

Updates:

Mar 04 2014

How CBP abuses US citizens at (and near) borders

NPR’s “On The Media” has been reporting on a variety of abuses of US citizens by U.S. Customs and Border Protection, “one of the least transparent federal agencies.” This week’s show, “Secrecy At The Border,” is a particularly moving hour-long compilation of personal stories from the CBP’s victims and their families.

You should listen to these interviews if you think you have nothing to fear from the CBP because:

  1. “I’m a US citizen.” Everyone interviewed on the show is a US citizen.
  2. “I’m not doing anything wrong.” None of those interviewed was charged with any violation of the law.
  3. “I don’t travel abroad, and I’m not trying to cross the US border.” Those interviewed include people detained while traveling within the US, up to 100 miles away form any border or coastline, and families of US citizens killed by CBP on the US side of the border.

The litany of CBP abuses includes warrantless hours-long detention and interrogation (if anything like this has happened to you, here’s how to request CBP’s files about your international travel and border crossings), intrusive searches of electronic devices and data, forcible body-cavity searches amounting to rape, and use of deadly force. A members of Congress who tried to find out when CBP claims the authority to kill US citizens on US soil describes being told that if there are any CBP guidelines for use of deadly force against citizens, they are a secret that the agency won’t divulge even to Congress.