Papers, Please – Page 17 – Papers, Please!

May 23 2014

TSA includes all air travelers in pre-crime profiling

Since late last year, we’ve gotten several inquires from readers wondering why they got a boarding pass marked “TSA Pre-Check” or were sent through the “Pre-Check” lane at a TSA checkpoint even though they hadn’t participated in the “TSA Pre-Check Application Program”.

The confusion stems from the TSA’s own misleading publicity about the program, which tries to persuade travelers “voluntarily” to provide additional information to be used by the TSA, in exchange for the hope of being subjected to slightly less intrusive searches at TSA checkpoints.

The logical (but wrong) inferences are that TSA Pre-Check is a members-only program, and that the Pre-Check lane at a TSA checkpoint is only for those travelers who have “applied” and been “accepted” into the program.

There are actually three distinct components to “TSA Pre-Check” as a pre-crime scheme:

“Voluntary” submission and collection of additional personal information about those travelers who chose to participate in the TSA Pre-Check Application Program.
Pre-crime profiling of all travelers and determination of a “risk assessment” score for each traveler, based on all information available to the TSA including the information, if any, submitted through the TSA Pre-Check Application Program.
Graduated treatment of travelers at TSA checkpoints, including searches of varied intrusiveness and potential total denial of passage, on the basis of these risk assessments and other secret algorithms.

Only the application component of the program — the submission of additional personal information by travelers to the TSA — is voluntary. The TSA obtains information from various sources about all travelers. All travelers are profiled. All travelers are assigned risk assessment (pre-crime) scores based on whatever information is available to the TSA. All travelers are subjected to a more or less intrusive search, and may or may not be allowed to pass through the checkpoint, on the basis of these scores and other secret factors.

Some travelers who are assigned sufficiently low risk assessment scores and meet other secret criteria are directed to the “Pre-Check” lane and subjected to slightly less intrusive searches, regardless of whether they participated in the TSA Pre-Check Application Program. The TSA calls this process “managed inclusion” in TSA Pre-Check.

A traveler whose risk assessment score is low enough, and who meets the other secret criteria (again, regardless of whether they participated in the TSA Pre-Check Application Program) can be selected for less intrusive search when she applies for a boarding pass. The TSA’s assignment of such a traveler to the Pre-Check lane is sent to the airline with, or as part of, the permission message or Boarding Pass Printing Result (BPPR) for that traveler sent to the airline by the TSA.

The TSA’s Pre-Check designation is printed on the boarding pass and included in a 2D bar code in IATA-standard format. “For flights originating in the USA, the digital signing of barcodes and the management of security certificates and key pairs is required by the TSA.”

The TSA also assigns some travelers to Pre-Check lanes on the spot at its checkpoints, using secret criteria and techniques including a randomizer app (like the magical Sorting Hat at Hogwarts) to determine how intrusively to search each person.

Through this process, the TSA chooses one of four basic levels of search and seizure for each traveler:

“TSA Pre-Check” (slightly less intrusive search)
“Standard screening” (including virtual strip-search or manual groping)
“Secondary screening” (more intrusive search including more thorough groping)
“No-fly” (denial of the right to travel by common carrier, possibly accompanied by other adverse actions)

There are refinements within these basic categories. In a document filed with the court following the trial of Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the no-fly list, the government disclosed that that each entry in the Terrorist Screening Database (which includes the no-fly list and the list of “selectees” for secondary screening) includes a “handling code” indicating what airline and checkpoint personnel should do if that person attempts to check in for a flight or pass though a TSA checkpoint.

We don’t know how many handling codes there are. But according to the government’s court filing:

[FBI Agent] Kelley designated Dr. Ibrahim as “handling code 3.” … [T]he majority of individuals in the TSDB were assigned handling codes 3 or 4…. Defendants state that the advantages of Handling Code 3 include allowing law enforcement officers to ask the individual probing but non-alerting questions, and searching the individual’s passport [REDACTED].”

Presumably, other handling codes include those that tell airline or checkpoint personnel to attempt to detain the traveler and contact local law enforcement agencies, the FBI, or the Terrorist Screening Center.

You can’t “opt out” of pre-crime profiling by choosing not to participate in the TSA Pre-Check Application Program. You will be profiled, on a per-flight basis, every time you try to fly.

“Anything you say may be used against you,” although the TSA doesn’t say this on the TSA Pre-Check application forms. If you participate in the Pre-Check Application Program, the additional information you provide will be added to the other inputs to the TSA’s black box. It might result in the TSA assigning you a lower risk score, and subjecting you to a less intrusive search. Or it might result in the TSA assigning you a higher score, and searching you more intrusively or preventing you from traveling by air.

May 22 2014

Albuquerque Journal investigates DHS “Mission Creep”

For many years after 9/11, the Department of Homeland Security got a “free pass” from most mainstream media. This has been especially true of the largely unreported negative impact of the DHS and the homeland security industrial complex at the state and local level.

We’re pleased to call the attention of our readers to one of the most notable exceptions to date: a recent series of articles by Michael Coleman, Washington correspondent for the Albuquerque Journal, on what the DHS and its contractors and state and local accomplices are actually doing “on the ground” in New Mexico:

Homeland Security a ‘runaway train’ (April 27, 2014)
NM footprint grows: ‘We’ve up-armored’ (April 28, 2014)
Feds help militarize police agencies (April 29, 2014)
Editorial: Homeland’s ‘mission creep’ works on 3 levels (May 4, 2014)
Follow-up: New DHS head says agency needs change (May 4, 2014)

We’ve been paying particular attention to events in Albuquerque, of course, as part of our work with Phil Mocek, whose lawsuit against DHS and Albuquerque police personnel is currently on appeal from the US District Court for the District of New Mexico to the Court of Appeals for the 10th Circuit.

But we suspect that what the Albuquerque Journal uncovered in New Mexico is a typical case study that could usefully be repeated in any other state or metropolitan area. We hope that national and other local journalists are inspired by this example to look into DHS activities throughout the country.

Apr 19 2014

Lawyers for Dr. Ibrahim say government acted in bad faith in “no-fly” case

Did government lawyers lie to the judge and the plaintiff in the first “no-fly” case to go to trial?

As first noted yesterday by the Courthouse News Service, lawyers for Dr. Rahinah Ibrahim have renewed their allegation that the government acted in “bad faith” before, during, and after the trial.

Since the government chose not to appeal the decision by District Judge William Alsup, the only remaining issues are:

Whether the government defendants should be required to pay Dr. Ibrahim’s legal fees and costs.
Whether the government has complied with Judge Alsup’s judgment and order, which requires the government to (a) inform Dr. Ibrahim of her status on the no-fly list and (b) expunge, correct, and prevent andy future adverse consequences for Dr. Ibrahim form the FBI agent’s mistake in checking the wrong box on a form to put her on the “no-fly” list despite the fact that she posed and poses no threat.

This week, as we noted earlier, Judge Alsup ruled that, because many of the government’s legal arguments and tactics were “unreasonable”, the government must pay some but not all of Dr. Ibrahim’s legal fees and costs. But Judge Alsup also found that the government has not acted in “bad faith”, and therefore that Dr. Ibrahim’s lawyers were entitled only to government-standard rates that are a fraction of their usual rates.

The next day, the government submitted a set of declarations purporting to show that the defendants have complied with Judge Alsup’s orders.

The day after that, Dr. Ibrahim’s lawyers filed a motion for reconsideration of Judge Alsup’s decision with respect to legal fees and costs, on the basis of the government’s new declarations as new evidence of government “bad faith” justifying assessment of legal fees at full market rates.

The new declarations show that Dr. Ibrahim was on many watchlists, blacklists, and databases that the government previously failed to disclose, even in response to Judge Alsup’s previous orders granting motions to compel responses to an interrogatory to “identify any other lists or government databases into which plaintiff’s name has been placed.”

The new declarations show that, despite a letter sent to Dr. Ibrahim that “Where it has been determined that a correction to records is warranted, these records have been modified,” this had not in fact been done.

And the new declarations reveal that the government denied Dr. Ibrahim’s latest visa application, purportedly on the basis of a threat of terrorism, despite having admitted in court that it does not in fact believe that she poses any such threat, and despite Judge Alsup having found it uncontested that she poses no such threat.

There’s also more in the motion for reconsideration about the injustice and bad faith implicit in the newly-revealed but still classified and “state secret” (“state secret” like the fact that the FBI agent had checked the wrong box on the form was a “state secret”) exception to the non-binding “standards” for no-fly decisions that the government claims allows it to put people on the no-fly list and deny their right to travel even if it admits there is no reasonable basis to suspect them of anything illegal.

Apr 16 2014

Decision in first “no-fly” trial finally unsealed

The complete unredacted decision in favor of Dr.. Rahinah Ibrahim issued by U.S. District Judge William Alsup in January, following the first trial in any case challenging a US government “no-fly” order, was finally made public today by order of the court. (Unredacted version as unsealed; version with previously redacted portions highlighted.) The deadline for any appeal has passed, and this order is now final.

Despite the government’s claims that the redactions were of vital “state secrets”, the formerly-redacted portions of the decision, and the declarations filed yesterday by the government, shed relatively little new light on what happened to Dr. Ibrahim and her family. They do, however, contain a previously-redacted chronicle of her having been placed on and off various “watchlists” (de facto blacklists) while her lawsuit was pending, and of a previously unmentioned exception to the nonbinding “standards” for watchlisting:

45. To repeat, government counsel have conceded at trial and this order finds that Dr. Ibrahim is not a threat to the national security of the United States. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.

46. In March 2005, Dr. Ibrahim filed a Passenger Identity Verification Form (PIVF) (TX 76). [This was a predecessor to the DHS-TRIP form.]

47. In December 2005, Dr. Ibrahim was removed from the selectee list. Around this time, however, she was added to TACTICS (used by Australia) and TUSCAN (used by Canada). No reason was provided for this at trial.

48. On January 27, 2006, this action was filed.

49. In a form dated February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be “Remove[d] From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)” (TX 10). For the question “Is the individual qualified for placement on the no fly list,” the “No” box was checked. For the question, “If no, is the individual qualified for placement on the selectee list,” the “No” box was checked.

50. In 2006, the government determined that Dr. Ibrahim did not meet the reasonable suspicion standard. On September 18, 2006, Dr. Ibrahim was removed from the TSDB. The trial record, however, does not show whether she was removed from all of the customer watchlists subscribing to the TSDB.

51. In a letter dated March 1, 2006, the TSA responded to Dr. Ibrahim’s PIVF submission… The response did not indicate Dr. Ibrahim’s status with respect to the TSDB and no-fly and selectee lists.

52. One year later, on March 2, 2007, Dr. Ibrahim was placed back in the TSDB. The trial record does not show why or which customer watchlists were to be notified.

53. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from the TSDB. The trial record does not show the extent to which Dr. Ibrahim’s name was then removed from the customer watchlists, nor the reason for the removal.

54. Dr. Ibrahim did not apply for a new visa from 2005 to 2009. In 2009, however, she applied for a visa to attend proceedings in this action. On September 29, 2009, Dr. Ibrahim was interviewed at the American Embassy in Kuala Lumpur for her visa application.

55. On October 20, 2009, Dr. Ibrahim was nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard. The nature of the exception and the reasons for the nomination are claimed to be state secrets. In Dr. Ibrahim’s circumstance, the effect of the nomination was that Dr. Ibrahim’s information was exported solely to the Department of State’s CLASS database and the United States Customs and Border Patrol’s TECS database.

56. From October 2009 to present, Dr. Ibrahim has been included in the TSDB, CLASS, and TECS. She has been off the no-fly and selectee lists….

60. On December 14, 2009, Dr. Ibrahim’s visa application was denied….

64. The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB. She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the Executive Branch.

65. In September 2013, Dr. Ibrahim submitted a visa application so that she could attend the trial on this matter…. Trial in this action began on December 2 and ended on December 6. As of December 6, Dr. Ibrahim had not received a response to her visa application. At trial, however, government counsel stated verbally that the visa had been denied. Plaintiff’s counsel said that they had not been so aware and that Dr. Ibrahim had not been so notified….

70. Since 2005, Dr. Ibrahim has never been permitted to enter the United States.

The other most significant remaining questions concern Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

According to a section of Judge Alsup’s decision (pp. 24-25) about Ms. Mustafa Kamal that was previously redacted in its entirety:

On December 1 [2013], the National Targeting Center (“NTC”) within the Department of Homeland Security began vetting passengers for the Philippine Airlines flight. NTC officers determined that Ms. Kamal was matched to a record that was listed in the TSDB in a category which notifies the Department of State and Department of Homeland Security that other government agencies may be in possession of substantive “derogatory” information about the individual that may be relevant to an admissibility determination under the Immigration and Nationality Act. United States citizens, of course, are not subject to the admissibility provisions of the Immigration and Nationality Act….

On December 2, Ms. Kamal’s records were updated in the TSDB to reflect that she was a United States citizen. The request for additional screening was rescinded and it was requested that Ms. Kamal be allowed to board without delay.

Since Ms, Mustafa Kamal was not a party to her mother’s case (although the government had been notified that she was a potential witness), the issues related to her were not pursued or resolved in that case.

So we still don’t know what “derogatory” information would be relevant to the “admissibility” to the US of a US citizen, or why DHS is keeping records of such information or “watchlisting” such individuals.

Also today, Judge Alsup ruled that the government must pay some, but not all, of Dr. Ibrahim’s legal fees and costs. The exact amount remains to be determined by a special master. Judge Alsup found that the government had been “unreasonable” in many of its actions and arguments, but had not been shown to have acted in bad faith.

As we’ve previously reported, other no-fly cases are moving forward, with that of Gulet Mohamed (currently in the early stages of discovery in Disctrict Court on remand following denial by the 4th Circuit Court of Appeals of the government’s motions to dismiss) likely next in line for trial.

Apr 16 2014

FBI tells Dr. Ibrahim she’s not on the “no-fly” list

Yesterday, in response to a court order, the FBI — the nominal “owner” of the US government’s “no-fly” list — sent the letter above to Dr. Rahinah Ibrahim, informing her that she isn’t on that list.

This is the first time the US government has ever officially disclosed to an individual whether they are on the “no-fly” list, although of course — as the judge noted during the trial in Dr. Ibrahim’s lawsuit challenging her placement on the “no-fly” list — anyone can tell that they are on the list if they are prevented from flying despite having a valid ticket and all other required documents and complying with all of the rules the airline’s tariff.

Attorney General Eric Holder and Director of National Intelligence James Clapper personally signed declarations under penalty of perjury that to disclose exactly this information, to Dr. Ibrahim specifically, would harm national security, and that this information was therefore a “state secret”.

Needless to say, the sky didn’t fall yesterday when the FBI told Dr. Ibrahim the “state secret” that she is not on the “no-fly” list.

The letter from the FBI to Dr. Ibrahim was included in a set of declarations from officials of Orwellian US government organizations like the “Directorate of Terrorist Identities” which were filed with the court by the government yesterday to show that it had complied with the order by U.S. District Judge William Alsup.

These declarations give interesting insights into the structure of the various interlocking databases, but say nothing about the criteria for “no-fly” and other blacklisting and watchlisting decision.

Despite Dr. Ibrahim not being on the “no-fly” list, and despite testimony at the trial that she poses no threat, she has repeatedly been denied a visa to return to the US on the grounds that she “has engaged in terrorist activity” and is the spouse or child (presumably this allegation relates to her husband) of a person who is similarly inadmissible to the US, pursuant to 8 U.S. Code §1182(a)(3)(B)(i)(I) and §1182(a)(3)(B)(i)(IX). Her latest visa application was refused on these grounds just this Monday, April 14, 2014, at the US Embassy in Kuala Lumpur.

The declarations filed by the government say nothing about what happened to Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

In accordance with Judge Alsup’s orders, and the government’s decision not to appeal, the unredacted version of Judge Alsup’s findings (including several pages of sealed findings concerning what happened to Ms. Mustafa Kamal) was scheduled to be unsealed yesterday. The decision is now officially “unsealed”, but is still being processed by the court clerk’s office. We’ll publish it as soon as we receive it.

Apr 04 2014

District Court dismisses complaint in Mocek v. Albuquerque

Judge James O. Browning of the U.S. District Court for the District of New Mexico has dismissed Phillip Mocek’s complaints against the city of Albuquerque, the Albuquerque Police Department, and the individual Albuquerque police officers who falsely arrested him (at the behest of the TSA) in 2009 at a TSA checkpoint at the Albuquerque Sunport, improperly seized and tried to delete his digital recordings that provided the best evidence of their misconduct, and filed false reports about what had happened.

Mr. Mocek had arrived at the airport with a valid ticket but without any government-issued ID credentials. He was trying to exercise his right to travel through a public facility and by common carrier, and to document the process of flying without showing government-issued ID credentials. (More about Mocek v. Albuquerque et al.)

Mr. Mocek has until April 29, 2014, to decide whether to appeal any or all of the District Court’s rulings to the U.S. Court of Appeals for the 10th Circuit.

We’ll have more to say about the District Court’s latest decision once Mr. Mocek decides whether to appeal.

Apr 02 2014

Interpol renews push for worldwide ID-based travel controls

Despite admitting that it was “too soon to speculate about any connection between these stolen passports and the missing plane,” Interpol officials did not hesitate to use the fact that two passengers on the missing Malaysian Airlines flight used stolen passports as the opportunity to step up its longstanding campaign for a global travel control system in which all travelers worldwide will be required to: (a) show standardized government-issued travel credentials, and (b) have those credentials “vetted” against a global blacklist maintained by Interpol, before being given permission to buy an airline ticket or “open a bank account, rent a car or check into a hotel”.

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 request s — 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 →

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