[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.