In the last decade, Americans have witnessed serious setbacks in the protection of civil and political rights in the United States. The most vulnerable groups in society have suffered the brunt of these trends – minorities, immigrants and non-citizens, women, children, and the accused. The country has experienced a backlash against immigrants who are determined to defend their fundamental human rights, and the government has singled out Arabs, Muslims and South Asians for unfair targeting and treatment. Rights of privacy and free speech – once the hallmarks of American democracy – are under attack.
Women continue to face unequal treatment in the criminal justice system, and female victims of domestic violence remain unprotected against discrimination in housing and employment. Low – wage migrant women workers are economically and sexually exploited, and female domestic workers are sometimes held in indentured servitude.
Racial inequality and discrimination remains ongoing and pervasive in America, and the U.S. government has not done enough to end it. Hurricane Katrina exposed grave and persistent economic and social disparities in American society. Minorities are unfairly targeted through “racial profiling,” a practice used by law enforcement to target individuals for suspicion of crime based on race, ethnicity, religion or national origin. In the criminal justice system, minorities are selectively targeted, and disproportionately arrested, charged, indicted, prosecuted and sentenced. Detractors of remedial affirmative action programs are waging a frontal assault on programs seeking to remedy racial imbalances and historical racial inequalities in higher education, and in state and local governments.
Immigrants have become scapegoats of the generalized fear-mongering that is prevalent in today’s post-9/11 America. The government has sharply limited the right of immigrants to challenge the bases for their detention in the courts, unfairly discriminates against them in prisons, detains them for longer periods, and provides them no right to counsel in civil or criminal cases.
The right to counsel in criminal cases has become illusory for poor people, with indigent defense systems woefully inadequate and under-funded in many parts of the country. And contrary to both the Covenant and U.S. history, secrecy has become the hallmark of the government’s conduct in the criminal justice arena. The government routinely relies on secrecy to dismiss lawsuits and escape accountability for human rights abuses such as unlawful rendition, torture, and illegal electronic surveillance. At the government’s request, courts conduct judicial proceedings behind closed doors.
The U.S. government has violated bedrock principles and subjected detainees in its “war on terror” to torture, indefinite arbitrary detention and abuse. Additionally, the Central Intelligence Agency has transported suspects to countries where torture is routine and established secret prisons with “ghost” detainees overseas.
Inhuman and cruel conditions of confinement in various U.S. prisons and jails remain pervasive, and law enforcement officials and correctional authorities continue to use restraint chairs and electro-shock weapons, including Taser guns which have claimed many human lives.
The U.S. government has seriously eroded the right to privacy by expanding its surveillance of ordinary Americans in name of protecting national security. The National Security Agency is conducting massive wiretapping and data-mining of phone calls and emails, and the FBI is spying on peaceful political and religious groups and demanding personal records without court approval or probable cause. Dissent is now treated as unpatriotic.
Even children’s rights are not sacrosanct. The government continues to detain disproportionate numbers of minorities in juvenile detention, and fails to meet the unique needs of girls in detention, whose ranks grow steadily. Over 2,500 juvenile offenders sentenced as adults for crimes committed under the age of 18 are serving a life sentence without the possibility of parole. And the disturbing national trend of the “school to prison pipeline” is causing many of the most vulnerable students to be funneled out of public schools directly into the juvenile and criminal justice systems.
Regarding the cherished right to vote, America is far out of step with the world on felony disfranchisement, shutting 5.3 million American citizens out of the process. Congress is debating reauthorization of the expiring provisions of the federal Voting Rights Act, which is the major safeguard against the constant assaults on the voting rights of minorities.
Since September 11, Arabs, Muslims and South Asians have become targets of overt and covert government activity. They have been arbitrarily detained and abused, misused as material witnesses, denied visas to enter the U.S. if the government finds the content of their speech objectionable, racially profiled, discriminated against for the peaceful practice of their religion, and subjected to unlawful monitoring and surveillance without any suspicion of criminal activity.
To avoid blatant violations of the Covenant by the U.S. in Iraq, Afghanistan, Guantánamo Bay and secret detention facilities outside the U.S., the government continues to maintain that the ICCPR does not apply to its actions outside the United States. The position is consistent with a disturbing trend that threatens to undermine the rule of law in America – the assumption that the Executive has unchecked authority to ignore the law. To regain its position as a beacon of freedom throughout the world, the United States must honor and protect the fundamental freedoms and rights enshrined in the U.S. Constitution and the ICCPR.
Although the ICCPR covers a broad spectrum of civil and political rights, this shadow report does not address all of them, but rather focuses on five substantive areas: national security, immigrant’s rights, racial justice, women’s rights and religious freedom. There are many areas of ACLU work not covered by this report, and issues within the areas addressed that are only partially covered. The full breadth of the ACLU’s relevant work encompasses broader sets of rights covered by the ICCPR and can be seen on our web site, at www.aclu.org.
A. Equal Application Of Rights/Effective Remedies For Violations (Article 2)
Over the last decade, there has been a serious erosion in the ability of immigrants, prisoners and detainees in the “war on terror” to use the writ of habeas corpus in U.S. courts to challenge the constitutionality of their ongoing detention, significantly circumscribing the availability of a vital remedy. Recent U.S. Supreme Court cases have also sharply limited the ability of individuals to sue for civil rights violations. Rights available to women have been similarly curtailed, with the Court striking down a civil remedy under the Violence Against Women Act and refusing to apply the federal civil rights remedy to local officials who ignore a prior mandatory judicial protective order. Accordingly, the government is failing to ensure the enjoyment of rights to all individuals under its jurisdiction, in contravention of Article 2.
B. Equal Rights For Men and Women (Article 3)
While the U.S. government has made some efforts toward eliminating practices that “impair the equal enjoyment of rights” women in the criminal justice system, female victims of domestic violence, and low – wage migrant women workers still suffer from unequal and discriminatory treatment.
C. Freedom From Torture and Cruel, Inhuman or Degrading Treatment or Punishment (Article 7)
Evidence from a range of sources, including over 100,000 government documents produced to the ACLU through Freedom of Information Act (“FOIA”) litigation, show a systemic pattern of torture and abuse of detainees in U.S. custody in Iraq, Afghanistan and Guantánamo Bay, Cuba. This abuse was the direct result of policies promulgated from high – level civilian and military leaders and the failure of these leaders to prevent torture and other cruel, inhuman or degrading treatment by subordinates.
Despite the widespread and systemic nature of the torture and abuse, including over 120 reported deaths in custody, the United States has refused to authorize any independent investigation into the abuses and the government continues to assert that the abuse was simply the actions of a few rogue soldiers. The U.S. government has taken very limited measures to hold perpetrators accountable and to provide redress to victims of torture and abuse. Also in violation of the Covenant, the U.S. continues to engage in unlawful renditions in which the CIA kidnaps individuals and transfers them to countries known for their routine use of torture. Other detainees have been “disappeared” to secret detention facilities overseas.
U.S. violations of the prohibition against torture and other forms of abuse are not limited to actions by military personnel overseas in the “war on terror,” but in fact are far too ubiquitous at home. Prisoners and detainees inside the U.S. are subjected to conditions and brutal practices chillingly similar to those experienced by detainees abroad—prolonged solitary confinement, extreme temperatures, intimidation by dogs, painful restraints and electro-stun devices.
D. Prohibition Of Slavery & Forced Labor (Article 8)
Migrant women workers in the U.S., particularly domestic workers, are held in conditions of servitude or forced labor in the U.S. The U.S. Report emphasizes abuse of those trafficked for sex work, and fails to recognize and address the serious abuses suffered by domestic workers. These workers remain highly vulnerable because they lack legal protections and because of the exploitative labor conditions to which they are subjected.
E. Right To Liberty and Security Of Person, Rights Of the Accused To Humane Treatment, and Expulsion Of Aliens Without Due Process (Articles 9, 10 & 13)
Since 1996, the U.S. government has dramatically scaled back the rights and remedies of aliens in removal proceedings, increasingly relying on harsh detention policies and creating new “expedited removal” proceedings that lack the most basic due process protections. In addition, in the aftermath of the September 11 terrorist attacks, the government embarked on a number of policies that systematically deprived aliens, particularly those from Muslim-identified countries, of their due process rights, and encouraged increased local enforcement of immigration law, thereby fueling anti-immigrant sentiment. These policies are particularly disturbing in light of the growing number of immigrants being detained – currently nearly 23,000 – a number that has doubled over the last ten years. Recent legislation would create a total of 60,000 detention beds for immigrants by 2010. Indeed, immigration detention now represents the fastest growing federal detention population in the country. National detention standards are routinely ignored and other abuses are widespread.
F. Rights Of the Criminally Accused/Fair Trial (Article 14)
Fundamental to a criminal justice system that is fair to all is the right of a person accused of a crime to be assisted by competent counsel. Yet, this right to counsel for the indigent accused, for both juveniles and adults, is fast becoming illusory in many U.S. states, in both nature and extent, and the brunt is often borne by the racial minorities who are confined at disproportionate rates. The U.S. Report refers to these indigent defense protections but fails to mention that today, many states are failing to adequately fund and supervise their indigent defense systems.
G. Right To Privacy (Article 17)
The U.S. government has seriously eroded the right to privacy by expanding its surveillance of ordinary Americans in the name of protecting national security. The USA Patriot Act authorizes the FBI to demand the personal records of people without probable cause or prior judicial approval. Documents show that the FBI has been monitoring and infiltrating peaceful political and religious groups. And most recently, the public learned that President Bush has authorized the National Security Agency to conduct intrusive electronic surveillance of Americans with no check whatsoever against abuse.
H. Freedom Of Thought, Conscience & Religion (Article 18)
Although the U.S. has become increasingly pluralistic with regard to religion, and its laws do not on their face discriminate against others, Muslims have become targets of discrimination based on religion. Charitable funds are sequestered without publicly verifiable evidence of suspicious activity, and the government is not adequately promoting tolerance or enforcing anti-hate crimes laws to protect Muslims and also Jews.
I. Freedom Of Expression & Right Of Peaceful Assembly (Articles 19 & 21)
Historically the U.S. has been a staunch defender of freedom of expression. Since 9/11, however, the U.S. has engaged in policies that seriously threaten free expression rights and have a concrete chilling effect on the right of association. The U.S. government is denying visas to foreign scholars whose political views it disfavors pursuant to an “ideological exclusion” provision of the Patriot Act. The U.S. government has also been gathering intelligence information that is not connected to specific criminal activity, which has chilled lawful dissent In another manifestation of this trend, the U.S. government has begun to take a highly restrictive interpretation of the federal open records request law, the Freedom of Information Act, and has refused to disclose a range of documents about its national security policies and practices.
J. Freedom Of Association (Article 22, & Articles 17, 18 and 19)
Because of the U.S. government’s overbroad and unlawful monitoring and surveillance policies, and infiltration of groups without any suspicion of criminal activity, particularly of Arabs, Muslims and South Asians, these groups are now fearful of congregating as they used to do. This is in direct violation of the Article 22 mandate that “Everyone shall have the right to freedom of association with others … “
K. Rights Of the Child (Article 24 (& Articles 2 & 26: Non – Discrimination In the Enjoyment Of Rights))
The most vulnerable children are provided unequal education based on race; juvenile detention centers are warehouses of problem children rather than centers of rehabilitation, and poor children are barred – through no fault of their own – from certain state and federal welfare benefits. If children, whatever their beginnings, are to become good, productive citizens, these problems must be remedied, in accord with the Covenant rule that “Every child shall have without discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor,” an individual right that exists in addition to a child’s rights to all the civil rights enunciated in the Covenant.
L. Right To Vote & Political Participation (Article 25)
The U.S. maintains in its Report that “[t]he U.S. political system is open to all adult citizens without distinction as to gender, race, color, ethnicity, wealth or property.” While the government professes to equally enforce all laws, the hollowness of this claim becomes readily apparent when the U.S. has repeatedly failed to protect the voting rights of people with felony convictions, of marginalized communities and the millions of voters who continue to be disfranchised in large part because of their race, ethnicity or economic conditions making it more difficult for people to participate in the political process.
M. Equality Before the Law (Article 26)
As evidenced by the images that flashed across the world in the wake of Hurricane Katrina, many parts of the U.S. remain severely segregated by race. Communities of color receive grossly unequal attention by federal, state and private entities compared to their white counterparts. The disparate treatment of minorities is also evidenced by the persistence of racial profiling, a practice law enforcement officials use to target individuals for suspicion of crime based on race, ethnicity, religion or national origin. While profiling practices were traditionally aimed primarily at African-Americans and Latinos, after the tragic events of September 11, their targets now also include Arabs, Muslims and South Asians. Selective prosecution of the drug laws and the use of mandatory minimum sentences in sentencing also persist in many parts of the U.S., and their brunt disproportionately continues to be borne by minorities.
N. Protection Of Minority Rights (Article 27)
The Human Rights Committee has indicated that affirmative action may be “require[d]” when States Parties’ failure to take such affirmative steps would perpetuate discrimination. Thus, carefully crafted race-based affirmative action programs to ensure equal enjoyment of rights by all racial groups are plainly permissible, and in some circumstances may be required, under the ICCPR. Just such programs are under legislative assault in the U.S. and the U.S. Supreme Court has taken a narrow view of what is permissible affirmative action.
O. Reservations, Declarations and Understandings Of the United States To the ICCPR
Contrary to this Committee’s mandates, the U.S. government, in its latest report, refuses to reconsider in whole or in part any of its reservations, understandings and declarations to the Covenant. The U.S. government’s failure to reconsider its positions together with the grossly inadequate domestic implementation of the ICCPR renders significant protections therein meaningless. Also significant, the U.S. continues to hew to its firmly held view that the Covenant does not apply to its actions outside the territory of the United States, thus claiming immunity for treaty violations by the U.S. military and the CIA in territories under U.S. control such as Iraq, Afghanistan and Guantánamo Bay. This position is inconsistent with the terms and purpose of the ICCPR and violates core principles such as the absolute prohibition on torture and other cruel, inhuman or degrading treatment or punishment.
RECOMMENDATIONS TO THE UNITED STATES
Respect and Ensure Covenant Rights To All
- Ensure that federal judicial remedies, supplementing state jurisdiction, be available to redress discrimination and denial of constitutional and related statutory rights of persons detained in the “war on terror”, immigrants, minorities, women and undocumented persons.
- Undertake meaningful outreach to educate the federal, state and local judiciaries, as well as all levels of the American public, about U.S. government obligations under the Covenant.
- Take all necessary and reasonable measures to ensure the obligations of the Covenant apply throughout the territory subject to its jurisdiction and effective control.
Afford Equal Rights To Men and Women
- Revise federal sentencing guidelines and policies to reflect women’s actual culpability with respect to drug crimes.
- Ensure that female prisoners are given training and educational opportunities equal to those given to male prisoners.
- Amend Violence Against Women Act to allow an individual to be able to seek redress, include economic security protections, and rescind the exception to the one-strike policy.
- Encourage the expansion of federal and state laws that protect domestic violence victims from housing and employment discrimination.
Conduct Independent and Prompt Investigations Of Allegations Of Torture and Abuse
- Thoroughly and promptly investigate all allegations of torture and abuse in United States’ prisons, jails and other detention facilities, including all facilities under the effective control of the United States.
- Establish independent oversight bodies to investigate complaints of torture and abuse by law enforcement and correctional officers and to monitor conditions in all prisons, jails, and detention centers in the United States.
- Hold accountable all individuals, including government officials, members of the armed forces, intelligence personnel, correctional officers, police, prison guards, medical personnel, and private government contractors and interpreters who have authorized, condoned or committed torture or cruel, inhuman or degrading treatment or punishment.
End Practice Of Unlawful Renditions and Secret Detentions
- Immediately end practice of rendering individuals to secret detention facilities or to countries where torture is a serious human rights problem.
- Ensure effective judicial review of all transfers of persons between the U.S. and other countries, and end reliance on diplomatic assurance to facilitate the transfer of detainees to countries if there are substantial grounds for believing that such persons might be subjected to torture or cruel, inhuman or degrading treatment or punishment.
- Cease all secret detentions, including in all detention facilities under the effective control of the United States. Hold all detainees only in officially recognized detention facilities and grant all detainees and prisoners the right to promptly challenge their detention and access to legal counsel and independent doctors.
Prohibit Slavery & Forced Labor
- Urge the UN to adopt codes of conduct regulating the treatment and protection of migrant domestic workers and require their staff to abide by that code, taking disciplinary action in the event of violations.
Restore Due Process Rights Of All Aliens and Rights and Remedies Of Aliens In Removal Proceedings
- Discontinue use of arbitrary and pretextual detentions.
- Reform immigration policy immediately and ensure its compliance with human rights standards.
- Ensure that any border protection activities are conducted in a manner consistent with the Covenant and other human rights standards.
- Decriminalize violations of immigration laws.
- Order states to refrain from enforcing immigration laws.
- Prohibit “indefinite” and “mandatory” detention of individuals who pose no security or safety risks.
- Ensure meaningful judicial review of removal orders and detention.
- Discontinue the use of “expedited removal” proceedings.
- Reduce the de jure and de facto discrimination faced by non – citizens in federal prisons.
Respect the Rights Of the Criminally Accused
- Require states to properly fund and supervise their indigent defense systems.
- Curtail the excessive secrecy in the administration of justice.
- End the disproportionate confinement of people of color in prisons, jails and juvenile detention facilities.
Restore the Right To Privacy
- Cease and desist domestic surveillance of Americans without probable cause and prior judicial approval.
- Turn over documents related to unlawful spying on peaceful political and religious groups and individuals.
- Repeal or seriously modify the REAL ID Act, so that sensitive personal information will not find itself in the hands of data brokers and identity thieves.
- Base air traffic-related searches of individuals on suspicion, and conduct them within appropriate parameters.
Ensure Freedom Of Thought, Conscience & Religion
- Cease sequestering Muslim charities’ funds unless there is publicly verifiable evidence of suspicious activity.
- Public officials should engage in increased efforts to promote tolerance and enforce the law with regard to hate crimes that disproportionately target Muslims and Jews.
Honor the Obligation To Allow Free Expression & Peaceful Assembly
- Cease using the Patriot Act’s Ideological Exclusion provision to exclude those whose views the government disfavors.
- Cease unlawful monitoring of political and religious groups.
- Revert to original standards concerning requests for information under the FOIA.
Guarantee Children’s Rights
- Reduce minority over-representation in juvenile detention systems.
- Develop policies and practices for girls in juvenile detention that acknowledge their unique needs.
- Require schools to develop adequate disciplinary criteria and referral procedures, explain racial disparities in disciplinary referrals, maintain accurate discipline records, and report all incidents of racial harassment.
Expand the Right To Vote, Renew the Voting Rights Act, and Improve Implementation Of Voter Access Laws
- Allow all citizens, regardless of their criminal history, to vote. In the alternative, require all states to restore voting rights upon completion of a criminal sentence.
- Urge the U.S. Congress to renew the expiring provisions of the Voting Rights Act in order to protect the voting rights of all Americans.
- Improve voter access by enforcing the Help America Vote Act and National Voter Registration Act.
Guarantee Equality Before the Law
- Effectively plan for crises such as Hurricane Katrina, including by seeking meaningful participation from the community at all stages.
- Eradicate the racial disparities and persistent poverty in the Katrina region.
- Ban all continuing racial profiling practices by state law enforcement officers and ensure that states comply with bans already in place.
- Urge U.S. Congress to pass the End Racial Profiling Act of 2005.
- Urge repeal of state “three strikes” law.
Protect Minority Rights
- Promote affirmative policies that seek to remedy past discrimination for minorities and women.
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