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HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF THE UNITED STATES
18 July 2006
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Human Rights Committee
18 July 2006
The Human Rights Committee has considered the combined second and third periodic report of the United States on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.
Warren Tichenor, Permanent Representative of the United States to the United Nations Office at Geneva, in introductory remarks, said that the United States Government strove mightily every day to uphold the cherished personal freedoms and rights upon which that nation had been founded and its people held so dearly today.
Matthew Waxman, Principal Deputy Assistant Secretary, Department of State, said that the attacks of 11 September 2001 had posed unprecedented challenges. The United States had overhauled its law enforcement efforts and Congress had revised many United States laws to ensure that they effectively addressed that new threat, and did so in a manner consistent with the Constitution and United States law, including its international treaty obligations. While aware of the views of members of the Committee, the United States had a principled and long-held view that the Covenant applied only to a State party’s territory.
Wan Kim, Assistant Attorney-General for Civil Rights of the Department of Justice, said that among significant civil rights accomplishments in the United States were the quadrupling of prosecutions for human trafficking offences; the tripling of the number of settlements negotiated by police departments in criminal civil rights violations cases; and the increase in cases being brought to challenge patterns of employment discrimination.
In preliminary concluding remarks, Christine Chanet, Committee Chairperson, thanked the delegation and the non-governmental organizations for their contribution to the discussion. Diverging positions had not made things easy, however, in particular, with regard to the issue of extraterritorial application of the Covenant. The International Court of Justice had held that the preparatory work of the Covenant had substantiated the Committee’s view of the extraterritorial nature of that instrument. It was difficult to have a multilateral treaty and a unilateral interpretation, in particular when there was a monitoring body in effect.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, land rights of Native Americans; the situation of indigenous Hawaiians; secret detention; Guantánamo and offshore detentions; the elimination of habeas corpus for detained foreign combatants; interrogation techniques; gender-based discrimination and the wage gap between men and women; and sexual preference, orientation or identity discrimination. In addition, a number of Experts raised the issue of United States reservations to Articles 6 and 7 of the Covenant, expressing the opinion that its Article 6 reservation was little more than a legal remnant and questioning the United States interpretation of the Covenant upon which its reservations to Article 7 were based.
The Committee will issue its formal, written concluding observations and recommendations on the report of the United States towards the end of its session, which will conclude on 28 July 2006. The consideration of the report was held over three meetings.
The United States delegation also included other representatives of the United States Department of State, as well as representatives from the Department of the Interior; the Department of Defense; the Department of Justice; and the Department of Homeland Security.
The United States is among the 156 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty.
When the Committee reconvenes in public on Wednesday, 19 July, at 3 p.m., it is scheduled to begin its consideration of the report of the United Nations Interim Administration Mission in Kosovo (CCPR/C/UNK/1).
Report of the United States
The combined second and third periodic report of the United States (CCPR/C/USA/3), with regard to the Committee’s recommendation that the United States ensure full judicial review in respect of determination of federal recognition of tribes and that the Self-Governance Demonstration Project and similar programmes should be strengthened, says that indigenous groups seeking federal recognition as tribes may submit an application to the Department of the Interior, or else be recognized through Congressional or other Executive Branch actions. Indigenous groups which are unsuccessful in this process may seek review of a recognition decision in a United States federal court. The United States also provides a diverse array of funding and training opportunities, as well as direct services, available to Native Americans and Alaska Natives, some of which promote home ownership and small business development, combat drug and alcohol abuse, promote health and healthy living, and equip and train law enforcement officials.
The report says that the USA Patriot Act has been the subject of a vigorous public debate. The Act authorizes multi-point wiretap surveillance in foreign intelligence investigations. This authority is directed to the problem of terrorists who seek to avoid surveillance by frequently changing telephones, and allows foreign intelligence investigators in certain specified circumstances to obtain from a federal court a wiretap order that permits surveillance of a specified person rather than a specific phone. This authority has been available in criminal investigations for years, but only became available in foreign intelligence investigations upon enactment of the USA Patriot Act. This authority has been an essential tool in conducting sensitive national security-related surveillance. The USA Patriot Act has helped to protect Americans from terrorist attacks while at the same time safeguarding their civil rights and civil liberties, such as by preserving the important role of judicial and congressional oversight. As extensive hearings and public debates have confirmed, there have been no verified abuses of the USA Patriot Act provisions.
Presentation of Report
WARREN TICHENOR, Permanent Representative of the United States to the United Nations Office at Geneva, in introductory remarks, said that the United States had a distinguished record and long history of support for the fundamental rights laid out in the International Covenant on Civil and Political Rights, both at home and around the globe. Thomas Jefferson wrote that the care of life and happiness, not their destruction, was the first and only object of good governance. More recently, President Bush had stated that, from the day of our founding, every man and woman had rights and dignity of matchless value. The Government of the United States strove mightily every day to meet the high standards set forth by Jefferson and President Bush, to uphold the cherished personal freedoms and rights upon which their nation had been founded and its people held so dearly today.
MATTHEW WAXMAN, Principal Deputy Assistant Secretary, Department of State, said that the seriousness with which the United States had approached its reporting obligations was reflected in its view that the Covenant was the most important human rights instrument adopted since the United Nations Charter and the Universal Declaration of Human Rights, as it set forth a comprehensive body of human rights protections. Indeed, there were many parallels between the rights and freedoms protected under the United States Constitution, including its Bill of Rights, and the human rights and fundamental freedoms protected under the Covenant.
Mr. Waxman said that the attacks of 11 September 2001 had posed unprecedented challenges for the United States, which had been forced to confront a new threat. The United States had overhauled its law enforcement efforts and had taken critical measures to secure its territory against further attacks. Congress had revised many United States laws to ensure that they effectively addressed that new threat, and did so in a manner consistent with the Constitution and United States law, including its international treaty obligations.
The United States believed that the law of armed conflict – international humanitarian law – provided the proper legal framework regarding some of the questions raised by the Committee, Mr. Waxman noted. The United States was aware of the views of members of the Committee regarding the extraterritorial application of the Covenant, including the Committee’s General Comment No. 31. The United States, however, had a principled and long-held view that the Covenant applied only to a State party’s territory. Article 2, paragraph 1, of the Covenant stated explicitly that States parties were required to respect and ensure the rights in the Covenant to all individuals “within its territory and subject to its jurisdiction”. That plain meaning of the treaty language was also confirmed by the Covenant’s own negotiating record. It was in light of its principled and longstanding view on the scope of the application of United States obligations under the Covenant, that the United States had not included in its formal response to the Committee’s written questions information regarding activities outside of its territory or governed by the law of armed conflict.
Mr. Waxman highlighted that, while it worked to implement the Covenant at home, the United States had continued its steadfast efforts to promote respect for human rights around the world. The United States devoted considerable resources to assistance to other nations in pursuit of those objectives. In 2006, for example, the United States Government was spending $ 1.4 billion on programmes and activities to advance democracy internationally.
WAN KIM, Assistant Attorney-General for Civil Rights of the Department of Justice, said that, as the first Korean-American to become an Assistant Attorney-General at the United States Department of Justice, and the first immigrant to head the Civil Rights Division, he was quite tangible proof that America’s promise of equal opportunity was real. Nearly 50 years after the inception of the Civil Rights Division, America was a very different place because of laws like the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. Among significant civil rights accomplishments were the increase this year in filing of cases to protect minority language voters’ rights; the quadrupling of prosecutions for human trafficking offences; the tripling of the number of settlements negotiated by police departments in criminal civil rights violations cases; the vigorous enforcement of the rights of institutionalised adults; the increase in cases being brought to challenge patterns of employment discrimination; and the doubling of the number of sexual harassment cases brought against landlords.
Questions by the Committee Experts
A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.
Right to Self-Determination and Rights of Persons Belonging to Minorities
As to whether the United States relied on the doctrine of discovery in its relationship with the native Indian tribes, the delegation observed that that doctrine originated with European potentates. The United States, in breaking away from England, inherited the rights England had with respect to lands in what was now the United States. Those included the exclusive right of purchase of lands held or occupied by Indian tribes.
The delegation observed that, although the last treaty dated to 1871, those treaties retained their full force and effect today. They were considered the equivalent of treaties with foreign Governments and had the force of federal law. Unlike treaties with foreign Governments, however, where a treaty with Indian tribes was ambiguous, courts interpreted it to favour the Indians, precisely because it had not been written by them or in their language.
Under the Constitution, the Congress, not state governments, had the authority to regulate Indian affairs, the delegation noted. Indians were citizens with the same constitutional protections as all other citizens. The tribes controlled entry into tribal lands by non-members. In addition, they managed ways and means for financing their autonomous functions. United States law also specifically provided numerous protections for the continued use and practice of Native American languages and religions.
Constitutional and Legal Framework within which the Covenant Was Implemented
The United States’ reservation to Article 6, paragraph 5, of the Covenant, which reserved the right, subject to Constitutional constraints, to impose capital punishment, remained in effect and the United States currently had no intention of withdrawing it. At the same time, the delegation noted that United States judicial decisions, independently, had recently tightened restrictions on the death penalty in the United States. In Roper v. Simmons, the Supreme Court had held in 2005 that imposition of the capital punishment on individuals who were under 18 years of age at the time of the offence violated the Constitution.
With regard to the United States reservation to Article 7, which established that the United States considered itself bound to Article 7 to the extent that cruel, inhuman or degrading treatment or punishment meant the cruel and unusual treatment or punishment prohibited in the United States Constitution, the United States did not currently intend to withdraw that reservation, the delegation said.
Concerning compatibility with the Covenant of definitions of terrorism in United States law and of the Congressional Authorization for Use of Military Force, the delegation said that, first, it was important to note that the Covenant did not address the question of how a State party defined the term terrorism under its domestic law. Within the United States there was no uniform definition of terrorism under its domestic law. Definitions in statutory law simply established the ways in which terrorist activity was distinguishable from other forms of violent and dangerous activity, the delegation said. They contained nothing that was incompatible with United States obligations under the Covenant.
Counter-Terrorism Measures and Respect of Covenant Guarantees
Turning to how United States counter-terrorism measures satisfied United States obligations under the International Covenant on Civil and Political Rights, the delegation said that its periodic reports described in great detail how the United States legal system enabled the United States to implement its obligations under the Covenant. Those mechanisms, including a well-ordered legal system governed under the rule of law and implemented, among others, by an independent judiciary, continued to apply fully to United States measures to combat terrorism.
The delegation then turned to the request for information on the USA Patriot Act and judicial oversight of the implementation of its provisions. The delegation stressed that the Act was not a change in practice. Rather, it codified already existing United States common law regarding delayed-notice search warrants, which had been available for decades. The Patriot Act simply created a nationally uniform process and standard for obtaining such search warrants, in which the judiciary continued to play an integral role. Delayed-notice warrants were issued by a federal judge only upon a showing that there was probable cause to believe that the property sought or seized constituted evidence of a criminal offence.
Second, Section 215 of the USA Patriot Act authorized federal prosecutors to issue subpoenas for records about an individual that were held by third parties. The Act had extended to investigators in international terrorism and espionage investigations an authority comparable to a grand jury subpoena power, with the exception that such orders required prior judicial approval. In addition, the Patriot Act specifically provided that recipients of a Section 215 order could consult an attorney and challenge it in court.
Third, Section 505 of the Act amended the procedures for the use of National Security Letters. It should be noted, the delegation said, that National Security Letters predated the Act. A National Security Letter allowed national security investigators to request certain types of information from specified entities, such as subscriber records from communications providers. They did not authorize searches. Recent legislation had clarified that recipients of National Security Letters could consult an attorney and challenge such a letter in court.
Finally, the USA Patriot Act allowed the Government, with extensive judicial supervision, to detain temporarily a narrow class of aliens until they were removed from the country. There had to be reasonable grounds to believe that the alien had entered the United States to violate espionage or sabotage laws or to oppose the Government by force; had engaged in terrorist activity; or endangered national security. Aliens were specifically granted the right to challenge their detention in court. Once the Government had taken such an alien into custody, it had seven days to initiate removal proceedings or file criminal charges. If it did neither, it had to release the alien. The United States had never used that authority to detain an alien. The delegation affirmed that those provisions were fully compatible with United States obligations under the Covenant.
Similarly, the Terrorist Surveillance Programme was consistent with Article 17 of the Covenant. Under the Programme, the National Security Agency targeted for inception communications between persons in and outside the United States, where there were reasonable grounds to believe that either party was a member of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to believe” standard was a “probable cause” standard of proof. That barred unreasonable searches, but did not require a court order or warrant in all instances. Indeed the Supreme Court had recognized that searches without a warrant were permissible for “special needs” and the Terrorist Surveillance Programme served such a need.
Non-Discrimination and Right of Equality before the Law and to the Equal Protection of the Law
Concerning the Committee’s request for information on measures taken by the United States to reduce de facto segregation in public schools, the delegation said that the Department of Justice was currently monitoring 300 cases of de jure segregation, or segregation caused by unintentional discriminatory action. Under United States law, however, authorities could not act to counter discrimination without an indication of discriminatory intent of state or local authorities.
Regarding racial profiling by law enforcement authorities, the delegation said that President Bush had directed the Attorney-General to review the use by federal law enforcement authorities of race as a factor in conducting stops, searches, and other law enforcement procedures, and the Attorney General had subsequently issued guidance which prohibited racial profiling.
Turning to Hurricane Katrina response, the delegation said that President Bush had acknowledged that the magnitude of destruction from Katrina had strained and initially even overwhelmed federal, state, and local capabilities to an extent never before seen during a domestic incident within the country. The federal government was aggressively moving forward with implementing lessons learned, including improving procedures to enhance the protection of, and assistance to, economically disadvantaged members of United States society. The delegation noted that the Federal Emergency Management Agency provided relief assistance to all disaster victims as soon as possible without discrimination. In addition to the protections and programmes offered by that Agency, the Department of Homeland Security maintained an Office of Civil Rights and Civil Liberties, which was responsible, in part, for ensuring non-discrimination in the provision of disaster relief with respect to persons with disabilities.
Oral Questions by Committee Experts
Committee Experts then asked various questions and made comments on a number of topics, including how it was that the land Indian tribes held under treaty could be confiscated by the United States Government without compensation; the situation of indigenous Hawaiians, many of whom remained socially marginalized; secret detention; Guantánamo, and what the reason for offshore detention and interrogation was; the elimination of habeas corpus for detained foreign combatants, and the substitution of a review by the United States Court of Appeals; the interrogation techniques used in detention centres; what was being done to address gender-based discrimination, in particular the wage gap between men and women; and the lack of mention in the report of issues related to sexual preference, orientation or identity discrimination, especially in view of reports that alleged higher rates of violence by law enforcement officials against gay or transgender persons.
With regard to the obstacles to the withdrawal of the United States reservations to Articles 6 and 7 of the Covenant, one Expert, whose views were echoed by others, observed that these appeared to him to be a legal remnant, in particular in view of the Supreme Court’s recent holding that for those who were under 18 when committing a crime, the death penalty might not apply.
An Expert regretted that the report focused on the federal situation and requested further details on what was being done at the state level to address the obligations of the Convention.
Many Experts continued to voice concerns over civil rights protections in relation to counter-terrorism measures. A particular issue was the lack of monitoring or verification of such measures, especially in situations of secret or offshore detention. Also, while the report indicated that those who were subject to certain types of counter-terrorism surveillance within the United States had the right to challenge that proceeding in a court, how was that possible if the person being observed did not know he was being monitored?
Regarding the response to Hurricane Katrina, an Expert asked if it was true that the original evacuation plan in place had focused on evacuation by car, and how such a discriminatory plan – which obviously did not account for the poorest and most vulnerable segment of society – had been allowed to slip through scrutiny. Also, what plans were being put in place to provide compensation to victims of Katrina and to those who had had their human rights violated in its aftermath?
One Expert noted that according to the report there were some 9 million illegal immigrants in the United States – a figure non-governmental organizations put at 12 million – and asked what measures were being taken to deal with that phenomenon, in particular in view of reports about groups of vigilantes linked to extremist groups attacking migrants in the border areas, resulting in numerous deaths.
Responses of Delegation to Oral Questions Posed by Experts
With regard to the war on terrorism and some of the activities of the United States in territories outside the United States, the delegation reiterated and stressed that the United States considered such activities to be outside the scope of the Covenant. The attacks by al Qaeda confronted the world with a new kind of threat, one that presented difficulties for all. Although it presented tough legal challenges, the United States position was that in combating it the United States had to uphold its laws, Constitution and international obligations.
Decisions about how to balance security and liberty were never easy, the delegation observed. On a legal level, the United States believed that it had been and continued to be engaged in an armed conflict with al Qaeda and its supporters. But even while engaged in an armed conflict, the Covenant continued to apply, in accordance with its terms. Applying the law of armed conflict was not used to allow the United States to commit acts of torture or mistreatment. The United States was bound by other commitments not to engage in such acts.
In response to an Expert’s suggestion that indefinite detention was inherently inhumane, the delegation pointed out that under the traditional rule of warfare, enemy fighters could be held until the end of the conflict. Having said that, the United States recognized that this was a unique war, and it did not want to be in the position of holding anyone longer than necessary. They were actively seeking to release or transfer detainees to their home countries when they could be assured of both adequate security and humane treatment upon return.
On the issue of dissemination of the Covenant, the delegation said that the Covenant was published on the State Department and other websites, and had been cited in numerous court decisions. The Covenant was included, as appropriate, in legal programmes that addressed United States treaty law.
Regarding the critique that the report had not included enough information on state level protections, the delegation said that it was aware of that. They had contacted numerous state actors to contribute to the report. That did not mean that efforts were not undertaken at the state level to fulfil the obligations of the Covenant. One real difficulty was the fact that there were 50 states, and the amount of information was simply too overwhelming. The delegation suggested that the Committee might wish to ask some targeted questions about specific state practice for the United States to report on.
Concerning the effect of the new Supreme Court decision regarding the prohibition of the juvenile death penalty, the delegation said that was only one of several issues within the scope of Article 7 of the Covenant, and it did not follow that the United States would then logically remove its reservation. In addition, under United States law it was very difficulty to remove reservations to treaties.
The non-refoulement requirement that the Committee expressed concern about, the delegation said, went far beyond either the plain language of Article 7 of the Covenant or Article 3 of the Convention against Torture. Moreover, the United States did not accept as a legal matter the novel proposition in treaty law that the obligation of a State party would be affected by non-binding general comments or individual complaint procedures that the United States had not accepted.
In response to a question on why the detainees were being held at Guantánamo, the delegation explained that combatants were held there to both remove them from the field of battle to a safe location and to keep them separated from the American public.
Regarding the reasonable availability of witnesses, which many of the detainees had requested, when such witnesses were located, they were allowed to provide information to the Combatant Status Review Tribunals. As a result of such contributions by witnesses, 38 detainees were designated as no longer enemy combatants and had been released or were in the process of being released.
In response to a Committee Expert who had asked about the availability of habeas corpus to Guantánamo detainees, the delegation clarified that the Supreme Court had held in Hamdan v. Rumsfeld that the Detainee Treatment Act did not affect habeas corpus jurisdiction over certain cases pending on the day the Act took effect. In fact, the Detainee Treatment Act provided judicial review by domestic courts over the detention of enemy combatants – a protection unprecedented in the history of war.
Under the Detainee Treatment Act the military and contractors were obliged by law to respect the interrogation techniques outlined in the Army Field Manual on Intelligence Interrogations, all of which were consistent with the Geneva Conventions. In addition, all United States citizens were prohibited from committing torture on any person anywhere, in conformity with the Convention against Torture and United States law.
The United States did not transport any individual to a third country to be tortured. However, the delegation would not discuss specific intelligence activities. Nevertheless, the United States and other countries had used renditions for decades to transport individuals from one country to another for law enforcement purposes. Renditions were vital in the context of the war on terror.
The Department of Justice had just completed the review of 42 prisons, jails and juveniles facilities to ensure that the detainees were treated in conformity with United States human rights obligations, the delegation said.
Regarding gender equality issues, and the specific concern of the Committee regarding equal pay for both sexes, the Equal Employment Opportunity Commission was responsible for enforcing gender equality in the workplace. In addition, equal pay for equal work was guaranteed by United States statutory law.
In response to the Expert who asked how an individual under surveillance could challenge such surveillance, the delegation assured the Committee of the legal safeguards, including approval by a federal judge, built into such procedures.
Regarding the case brought up by the Expert in which the United States had not compensated an Indian tribe for taking its land, that was a case in which the tribe had already been compensated for the land and only held occupancy rights, not title, to the land.
Concerning the rights of native Hawaiians, the delegation noted that the proposed Native Hawaiian Government Reorganization Act had recently been voted down by Congress because it had been found to be segregationist and to contain race-based requirements for public office.
With regard to protections for individuals regarding gender orientation and identity, the delegation said that 46 states, and the District of Columbia, all had hate crime statutes.
The federal government had undertaken a review of catastrophic evacuation planning in all 50 States, following the experience of Hurricane Katrina. Those plans did contain measures to protect vulnerable and low-income populations.
An Expert had asked whether the United States planned to expel the millions of illegal migrants in the United States. President Bush had resolutely rejected such an approach, the delegation confirmed. In response to the President’s strategy to reform the United States immigration system, Congress and civil society had engaged in an active discussion about the best way to reform the immigration system.
The National Guard assigned to border states assisted the Border Patrol by providing logistical and administrative support, but did not have direct contact with detainees. Moreover, as part of their deployment, the delegation specified that National Guard troops were provided preparatory training in areas including use of force and cultural awareness.
Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment
The delegation observed that, as the Committee knew, the United States took a reservation to the Covenant, permitting it to impose capital punishment within its own constitutional limits. Nevertheless, United States Constitutional restraints, federal and state laws, and governmental practices had limited the death penalty to the most serious offences and had prevented the racially discriminatory imposition of the death penalty. Federal laws providing for the death penalty involved serious crimes which resulted in death, such as murder committed during a drug-related shooting, civil rights offences resulting in murder, murder related to the sexual exploitation of children, murder related to a carjacking or kidnapping, and murder related to rape. Espionage, treason and the possession of very large quantities of drugs or drug receipts also constituted capital offences.
With regard to the use of electronic control equipment, such as stun guns and stun belts, by law enforcement officials, the delegation said that electro-muscular disruption devices had been in use by law enforcement agencies in the United States for many years. Such devices were considered “less lethal weapons” because they incapacitated without intending to kill the targeted individual. After the deployment of such devices, many jurisdictions had seen dramatic drops in injuries and deaths in suspects, officers, and bystanders involved in use-of-force incidents. The Government and others had conducted and continued to conduct extensive research into the safety and effectiveness of electro-muscular disruption devices.
Concerning measures to protect persons involved as subjects of research, the delegation said that the United States Government maintained extensive and longstanding programmes to protect the rights of welfare of humans involved as subjects in research. The national system oversaw all human subjects research conducted or supported by the federal Government, and all clinical investigations of health care products that required marketing approval by United States agencies. Moreover, all research conducted or supported by Health and Human Services/the Food and Drug Administration had to comply with regulations that provided additional protections for children.
The delegation said that regulations and policy also provided that the Institutional Review Board that conducted ethical review of all proposed research under the regulations had to find, among others, that when some or all of the subjects were likely to be vulnerable to coercion or undue influence – such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards had been included in the study to protect the rights and welfare of those subjects.
Treatment of Persons Deprived of Liberty
The delegation said that the federal maximum-security facility was located in Florence, Colorado. The Bureau of Prisons ensured that that facility was used for only those offenders who were hardened and dangerous criminals – less than one third of one per cent of the overall inmate population. Inmates had access to a broad range of classes, programmes and services, including General Equivalency Degree programmes to complete a secondary school diploma, or English as a Second Language programmes. Inmates received a minimum of five hours of out-of-cell recreation per week. Inmates had the opportunity to recreate in groups for longer periods of time depending on their compliance with facility regulations.
The delegation stressed that the rape of an inmate was a serious crime and was vigorously prosecuted. The United States had charged 44 people with acts of sexual misconduct against inmates since October 1999. Of those, 16 were prison officials and the vast majority of the remaining defendants were police officers. Those prosecutions had resulted in lengthy sentences for law enforcement officers and prison officials convicted of sexual assault, including a 20-year sentence for a Mississippi police officer convicted of raping a 19-year-old woman in custody.
Freedom of Association
United States law and practice imposed no restrictions on the right of individuals to form and join trade unions, including immigrant and undocumented workers, agricultural or domestic workers, and federal, state and local government workers. Immigrant employees, including undocumented workers, were protected by the National Labour Relations Act. Finally, the Committee had asked about the Supreme Court ruling in the 2002 Hoffman Plastic Compounds case. The delegation reported that that case did not alter, but rather confirmed, the principle that undocumented workers could form and join trade unions.
Protection of Children
The sentencing and treatment of juveniles in custody in the United States fully complied with the obligations of the United States under the Covenant. It was true, the delegation granted, that persons under the age of 18 in the United States could be sentenced to life in prison without the possibility of parole. In imposing such sentences, government entities had taken into account their age and the desirability of promoting their rehabilitation.
At the federal level, the United States Government recognized that juveniles were a special population with special needs. No juvenile committed to the custody of the Attorney-General could be placed or retained in an adult jail or correctional institution in which he had regular contact with incarcerated adults. For less serious crimes, juveniles were usually committed to foster homes or community-based facilities located in or near the juvenile’s home community.
Although States were considering adjustments to the laws that disenfranchised convicted felons, the delegation said that felon disenfranchisement was not a violation of Article 25 of the Covenant. A distinction drawn on the basis of an individual’s commission of serious criminal acts was not a status of the sort listed in Article 2, and subsequently incorporated in Article 25, such as race, colour, sex, etc. The disqualification of the felons from the franchise was based on a characteristic wholly within the control of the individual, and hence could not be regarded as unreasonable.
Further Oral Questions by Committee Experts
Committee Members asked other questions and made comments on varied topics, including crimes against children; abstinence programmes for children, which studies had shown were linked to increased incidence of HIV infection and abortion; prolonged incommunicado detention; research programmes undertaken on prisoners; what efforts had been undertaken at the state level to prevent racial profiling by law enforcement officers; further details on the unaccompanied alien child protection act; and efforts undertaken to ensure that homelessness was not a racially discriminatory phenomenon, including to ensure housing.
Several Experts were not satisfied with the delegation’s interpretations of the Covenant, in particular with regard to its Article 7 reservations. One Expert hoped that the delegation would go home and rethink whether the extraterritorial application of the Covenant was indeed one that was so manifestly excluded.
An Expert was concerned to note that a 13-year-old under United States law could be judged competent to stand trial as an adult. That was doubly disturbing considering that 18-year-olds could be sentenced to life without parole, and that 50 per cent of those sentenced to life without parole were first offenders.
One Expert was concerned that, despite the Supreme Court’s judgement that mentally ill persons could not be executed, many such judicial executions of severely mentally persons continued in the State party. Also, did the United States intend to improve conditions for those prisoners on death row?
Response by Delegation
Responding to these and other questions, the delegation acknowledged that following the rule of law was a continuing process and did involve adjustments and amendments. For that reason, the United States welcomed the present process of dialogue with the Committee.
Regarding housing rights, the Housing and Urban Development Department had the mission to ensure housing for all. That said, it was not possible to house every single American, but, the delegation stressed, they were working towards that goal. In addition, Operation Home Sweet Home, a federal programme, had been designed to tackle discrimination in housing.
The death penalty was an important subject, but as a legal matter, the United States did have a reservation to the Covenant and therefore any discussion had no legal effect. Concerning death row, it was specifically the defendant legal protections that were responsible for such cases where prisoners sat for long periods on death row. Regarding the racial consequences of the death penalty, the delegation recalled that every single defendant was treated as an individual, had to be found guilty by 12 jurors, and that that decision had to be upheld through the appeals system.
Dignity in death was an important concept. There was an ongoing debate among the 50 states over what constituted dignity in death obligations.
Regarding media exploitation of persons in unfortunate circumstances, while the delegation believed that such exploitation was indeed deplorable, there were competing obligations to be observed. While there were many who would decry the burning of the American flag, it was a right that was guaranteed under the Constitution as freedom of speech.
On the issue of interpretation of treaties, the delegation said that the United States Government took a traditional approach to treaty practice. Under that approach it was for each Government to choose its treaty obligations, which it was then that State’s obligation to fulfil. The United States, in undertaking its treaty obligations, had to look at what obligations it could fulfil and then Congress had to approve a specific package of obligations. With great respect for the Committee, Article 40 did not give the Committee the power to change those obligations. There were opinions or jurisprudence developed by the Committee with which the United States did not agree. The Committee seemed to feel that the United States was in that way violating its obligations and that created a tension in their dialogue, as the United States was of the opinion that they were simply not bound by those obligations. It might be helpful for both sides if they recognized those differences. In that connection, the United States was prepared to have a dialogue with the Committee on issues to which it was not bound to do so by the Covenant, but which could be informed by it.
Addressing the issue of what was being done to provide legal counsel and other measures to help immigrants, the delegation said that the United States immigration authorities had implemented a new set of immigration standards in 1998, in response to a request from the American Bar Association. It allowed for access to counsel and appeals procedures for individuals to challenge immigration board decisions, as well as a legal orientation programme. There were pro bono legal services available for unaccompanied minor children. In the immigration context, the delegation noted that more than 3,000 individuals had been granted non-refoulement protection against removal.
Those who had suffered from Hurricane Katrina benefited from a substantial compensation fund to allow them to recover their losses, as well as to find present housing, the delegation said.
With respect to employment, the United States position was that aliens present illegally were not entitled to lawful employment. However, President Bush had specifically called for a new temporary worker programme that would provide avenues to legal stay in the country for migrants.
The delegation wished to make a few points about the issue of State practice with regard to Article 7 and extraterritoriality. The negotiating record of the Covenant confirmed the plain and ordinary meaning of the text. The countries that had opposed the United States proposal in negotiating that Article had done so only because they wanted it to cover their own citizens in a third country, no country had wanted it to cover non-citizens actions in a foreign country.
Regarding voting of persons who had been convicted of felonies, the issue under the Covenant was whether such a law would be a “reasonable restriction”. The delegation said that to hold that those who had committed felonies formed a group that was reasonably restricted was not something that itself was unreasonable. It was an issue that was open for debate. The problem was not to confuse obligations under the Covenant with matters of public policy or jurisprudence.
The National Commission on the Voting Rights Act undertook studies to find ways to make voting easier, more representative and more transparent. There were also two federal commissions, the Federal Election Commission and the Election Assistance Commission to monitor United States voting laws.
Electro-muscular disruption devices was under study and evaluation, both at the smaller state and local level, and on the federal level, the delegation said. There should be something between a fist and a baton on the one hand, and a gun on the other. It was still under consideration, however.
Concerning the comment on the high number of incarcerated persons in the United States, the delegation said that it could not be forgotten that that was the result of individual convictions and the protections of the justice system. It was worth noting, however, that over the past few years the United States had enjoyed the lowest violent crime rate since they had been keeping those statistics.
The results of the Prison Rape Elimination Act were still being compiled. A report would be put out in the coming months and years. In the meantime, the Commission that had been set up by that Act to monitor that situation was formulating policies and standards in that regard.
The delegation observed that there was a very low percentage of juvenile offenders serving within the federal justice system, and an even lower one serving sentences of life without parole. Those who were had been duly convicted following free and fair trials and having enjoyed the many protections that were afforded under the law.
Regarding the allegation that residents in New Orleans were prevented by law enforcement officers from crossing a bridge to leave their homes in the wake of Hurricane Katrina, the delegation noted that an inquiry into that incident was ongoing.
Many questions had been raised against the death penalty, but the Covenant itself noted the right of nations to have such a penalty. Concerning the execution of the mentally ill, the delegation noted that there was general prohibition against the execution of the mentally retarded. The mentally ill, however, were adjudicated on a case-by-case basis.
Preliminary Remarks
CHRISTINE CHANET, Chairperson of the Committee, in preliminary concluding remarks, said she wished to thank the delegation for its contributions. She also thanked the non-governmental organizations for their contribution to these meetings. In addition, she welcomed the United States understanding of the importance of that contribution from NGOs, the existence of which were indeed the hallmark of an open society.
Ms. Chanet said that the Covenant was an important instrument with a wide scope, so dialogue with States parties was essential. Indeed, it was the States themselves, under Article 40, who controlled the shape of those reviews and dialogues. The Committee was not just a chamber to register reports, it was a monitoring body to ensure the fulfilment of obligations under that treaty. The treaty bodies were competent to give their opinions on whether reservations were valid, and were also competent to formulate General Comments to the treaties.
Diverging positions had not made things easy, Ms. Chanet observed, in particular, with regard to the issue of extraterritorial application of the Covenant. She would note, however, that the International Court of Justice had held that the preparatory work of the Covenant had substantiated the Committee’s view of the extraterritorial nature of that instrument. What was bothersome in that opposing stance between the Committee and the United States was that it had impeded the written responses to a number of questions, which was regrettable. It was difficult to have a multilateral treaty and a unilateral interpretation, in particular when there was a monitoring body in effect. In the opinion of international jurists it was the monitoring body’s responsibility to interpret the treaty. The United States position also had a disturbing affect on other countries.
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For use of the information media; not an official record
18 July 2006
The Human Rights Committee has considered the combined second and third periodic report of the United States on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.
Warren Tichenor, Permanent Representative of the United States to the United Nations Office at Geneva, in introductory remarks, said that the United States Government strove mightily every day to uphold the cherished personal freedoms and rights upon which that nation had been founded and its people held so dearly today.
Matthew Waxman, Principal Deputy Assistant Secretary, Department of State, said that the attacks of 11 September 2001 had posed unprecedented challenges. The United States had overhauled its law enforcement efforts and Congress had revised many United States laws to ensure that they effectively addressed that new threat, and did so in a manner consistent with the Constitution and United States law, including its international treaty obligations. While aware of the views of members of the Committee, the United States had a principled and long-held view that the Covenant applied only to a State party’s territory.
Wan Kim, Assistant Attorney-General for Civil Rights of the Department of Justice, said that among significant civil rights accomplishments in the United States were the quadrupling of prosecutions for human trafficking offences; the tripling of the number of settlements negotiated by police departments in criminal civil rights violations cases; and the increase in cases being brought to challenge patterns of employment discrimination.
In preliminary concluding remarks, Christine Chanet, Committee Chairperson, thanked the delegation and the non-governmental organizations for their contribution to the discussion. Diverging positions had not made things easy, however, in particular, with regard to the issue of extraterritorial application of the Covenant. The International Court of Justice had held that the preparatory work of the Covenant had substantiated the Committee’s view of the extraterritorial nature of that instrument. It was difficult to have a multilateral treaty and a unilateral interpretation, in particular when there was a monitoring body in effect.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, land rights of Native Americans; the situation of indigenous Hawaiians; secret detention; Guantánamo and offshore detentions; the elimination of habeas corpus for detained foreign combatants; interrogation techniques; gender-based discrimination and the wage gap between men and women; and sexual preference, orientation or identity discrimination. In addition, a number of Experts raised the issue of United States reservations to Articles 6 and 7 of the Covenant, expressing the opinion that its Article 6 reservation was little more than a legal remnant and questioning the United States interpretation of the Covenant upon which its reservations to Article 7 were based.
The Committee will issue its formal, written concluding observations and recommendations on the report of the United States towards the end of its session, which will conclude on 28 July 2006. The consideration of the report was held over three meetings.
The United States delegation also included other representatives of the United States Department of State, as well as representatives from the Department of the Interior; the Department of Defense; the Department of Justice; and the Department of Homeland Security.
The United States is among the 156 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty.
When the Committee reconvenes in public on Wednesday, 19 July, at 3 p.m., it is scheduled to begin its consideration of the report of the United Nations Interim Administration Mission in Kosovo (CCPR/C/UNK/1).
Report of the United States
The combined second and third periodic report of the United States (CCPR/C/USA/3), with regard to the Committee’s recommendation that the United States ensure full judicial review in respect of determination of federal recognition of tribes and that the Self-Governance Demonstration Project and similar programmes should be strengthened, says that indigenous groups seeking federal recognition as tribes may submit an application to the Department of the Interior, or else be recognized through Congressional or other Executive Branch actions. Indigenous groups which are unsuccessful in this process may seek review of a recognition decision in a United States federal court. The United States also provides a diverse array of funding and training opportunities, as well as direct services, available to Native Americans and Alaska Natives, some of which promote home ownership and small business development, combat drug and alcohol abuse, promote health and healthy living, and equip and train law enforcement officials.
The report says that the USA Patriot Act has been the subject of a vigorous public debate. The Act authorizes multi-point wiretap surveillance in foreign intelligence investigations. This authority is directed to the problem of terrorists who seek to avoid surveillance by frequently changing telephones, and allows foreign intelligence investigators in certain specified circumstances to obtain from a federal court a wiretap order that permits surveillance of a specified person rather than a specific phone. This authority has been available in criminal investigations for years, but only became available in foreign intelligence investigations upon enactment of the USA Patriot Act. This authority has been an essential tool in conducting sensitive national security-related surveillance. The USA Patriot Act has helped to protect Americans from terrorist attacks while at the same time safeguarding their civil rights and civil liberties, such as by preserving the important role of judicial and congressional oversight. As extensive hearings and public debates have confirmed, there have been no verified abuses of the USA Patriot Act provisions.
Presentation of Report
WARREN TICHENOR, Permanent Representative of the United States to the United Nations Office at Geneva, in introductory remarks, said that the United States had a distinguished record and long history of support for the fundamental rights laid out in the International Covenant on Civil and Political Rights, both at home and around the globe. Thomas Jefferson wrote that the care of life and happiness, not their destruction, was the first and only object of good governance. More recently, President Bush had stated that, from the day of our founding, every man and woman had rights and dignity of matchless value. The Government of the United States strove mightily every day to meet the high standards set forth by Jefferson and President Bush, to uphold the cherished personal freedoms and rights upon which their nation had been founded and its people held so dearly today.
MATTHEW WAXMAN, Principal Deputy Assistant Secretary, Department of State, said that the seriousness with which the United States had approached its reporting obligations was reflected in its view that the Covenant was the most important human rights instrument adopted since the United Nations Charter and the Universal Declaration of Human Rights, as it set forth a comprehensive body of human rights protections. Indeed, there were many parallels between the rights and freedoms protected under the United States Constitution, including its Bill of Rights, and the human rights and fundamental freedoms protected under the Covenant.
Mr. Waxman said that the attacks of 11 September 2001 had posed unprecedented challenges for the United States, which had been forced to confront a new threat. The United States had overhauled its law enforcement efforts and had taken critical measures to secure its territory against further attacks. Congress had revised many United States laws to ensure that they effectively addressed that new threat, and did so in a manner consistent with the Constitution and United States law, including its international treaty obligations.
The United States believed that the law of armed conflict – international humanitarian law – provided the proper legal framework regarding some of the questions raised by the Committee, Mr. Waxman noted. The United States was aware of the views of members of the Committee regarding the extraterritorial application of the Covenant, including the Committee’s General Comment No. 31. The United States, however, had a principled and long-held view that the Covenant applied only to a State party’s territory. Article 2, paragraph 1, of the Covenant stated explicitly that States parties were required to respect and ensure the rights in the Covenant to all individuals “within its territory and subject to its jurisdiction”. That plain meaning of the treaty language was also confirmed by the Covenant’s own negotiating record. It was in light of its principled and longstanding view on the scope of the application of United States obligations under the Covenant, that the United States had not included in its formal response to the Committee’s written questions information regarding activities outside of its territory or governed by the law of armed conflict.
Mr. Waxman highlighted that, while it worked to implement the Covenant at home, the United States had continued its steadfast efforts to promote respect for human rights around the world. The United States devoted considerable resources to assistance to other nations in pursuit of those objectives. In 2006, for example, the United States Government was spending $ 1.4 billion on programmes and activities to advance democracy internationally.
WAN KIM, Assistant Attorney-General for Civil Rights of the Department of Justice, said that, as the first Korean-American to become an Assistant Attorney-General at the United States Department of Justice, and the first immigrant to head the Civil Rights Division, he was quite tangible proof that America’s promise of equal opportunity was real. Nearly 50 years after the inception of the Civil Rights Division, America was a very different place because of laws like the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. Among significant civil rights accomplishments were the increase this year in filing of cases to protect minority language voters’ rights; the quadrupling of prosecutions for human trafficking offences; the tripling of the number of settlements negotiated by police departments in criminal civil rights violations cases; the vigorous enforcement of the rights of institutionalised adults; the increase in cases being brought to challenge patterns of employment discrimination; and the doubling of the number of sexual harassment cases brought against landlords.
Questions by the Committee Experts
A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.
Right to Self-Determination and Rights of Persons Belonging to Minorities
As to whether the United States relied on the doctrine of discovery in its relationship with the native Indian tribes, the delegation observed that that doctrine originated with European potentates. The United States, in breaking away from England, inherited the rights England had with respect to lands in what was now the United States. Those included the exclusive right of purchase of lands held or occupied by Indian tribes.
The delegation observed that, although the last treaty dated to 1871, those treaties retained their full force and effect today. They were considered the equivalent of treaties with foreign Governments and had the force of federal law. Unlike treaties with foreign Governments, however, where a treaty with Indian tribes was ambiguous, courts interpreted it to favour the Indians, precisely because it had not been written by them or in their language.
Under the Constitution, the Congress, not state governments, had the authority to regulate Indian affairs, the delegation noted. Indians were citizens with the same constitutional protections as all other citizens. The tribes controlled entry into tribal lands by non-members. In addition, they managed ways and means for financing their autonomous functions. United States law also specifically provided numerous protections for the continued use and practice of Native American languages and religions.
Constitutional and Legal Framework within which the Covenant Was Implemented
The United States’ reservation to Article 6, paragraph 5, of the Covenant, which reserved the right, subject to Constitutional constraints, to impose capital punishment, remained in effect and the United States currently had no intention of withdrawing it. At the same time, the delegation noted that United States judicial decisions, independently, had recently tightened restrictions on the death penalty in the United States. In Roper v. Simmons, the Supreme Court had held in 2005 that imposition of the capital punishment on individuals who were under 18 years of age at the time of the offence violated the Constitution.
With regard to the United States reservation to Article 7, which established that the United States considered itself bound to Article 7 to the extent that cruel, inhuman or degrading treatment or punishment meant the cruel and unusual treatment or punishment prohibited in the United States Constitution, the United States did not currently intend to withdraw that reservation, the delegation said.
Concerning compatibility with the Covenant of definitions of terrorism in United States law and of the Congressional Authorization for Use of Military Force, the delegation said that, first, it was important to note that the Covenant did not address the question of how a State party defined the term terrorism under its domestic law. Within the United States there was no uniform definition of terrorism under its domestic law. Definitions in statutory law simply established the ways in which terrorist activity was distinguishable from other forms of violent and dangerous activity, the delegation said. They contained nothing that was incompatible with United States obligations under the Covenant.
Counter-Terrorism Measures and Respect of Covenant Guarantees
Turning to how United States counter-terrorism measures satisfied United States obligations under the International Covenant on Civil and Political Rights, the delegation said that its periodic reports described in great detail how the United States legal system enabled the United States to implement its obligations under the Covenant. Those mechanisms, including a well-ordered legal system governed under the rule of law and implemented, among others, by an independent judiciary, continued to apply fully to United States measures to combat terrorism.
The delegation then turned to the request for information on the USA Patriot Act and judicial oversight of the implementation of its provisions. The delegation stressed that the Act was not a change in practice. Rather, it codified already existing United States common law regarding delayed-notice search warrants, which had been available for decades. The Patriot Act simply created a nationally uniform process and standard for obtaining such search warrants, in which the judiciary continued to play an integral role. Delayed-notice warrants were issued by a federal judge only upon a showing that there was probable cause to believe that the property sought or seized constituted evidence of a criminal offence.
Second, Section 215 of the USA Patriot Act authorized federal prosecutors to issue subpoenas for records about an individual that were held by third parties. The Act had extended to investigators in international terrorism and espionage investigations an authority comparable to a grand jury subpoena power, with the exception that such orders required prior judicial approval. In addition, the Patriot Act specifically provided that recipients of a Section 215 order could consult an attorney and challenge it in court.
Third, Section 505 of the Act amended the procedures for the use of National Security Letters. It should be noted, the delegation said, that National Security Letters predated the Act. A National Security Letter allowed national security investigators to request certain types of information from specified entities, such as subscriber records from communications providers. They did not authorize searches. Recent legislation had clarified that recipients of National Security Letters could consult an attorney and challenge such a letter in court.
Finally, the USA Patriot Act allowed the Government, with extensive judicial supervision, to detain temporarily a narrow class of aliens until they were removed from the country. There had to be reasonable grounds to believe that the alien had entered the United States to violate espionage or sabotage laws or to oppose the Government by force; had engaged in terrorist activity; or endangered national security. Aliens were specifically granted the right to challenge their detention in court. Once the Government had taken such an alien into custody, it had seven days to initiate removal proceedings or file criminal charges. If it did neither, it had to release the alien. The United States had never used that authority to detain an alien. The delegation affirmed that those provisions were fully compatible with United States obligations under the Covenant.
Similarly, the Terrorist Surveillance Programme was consistent with Article 17 of the Covenant. Under the Programme, the National Security Agency targeted for inception communications between persons in and outside the United States, where there were reasonable grounds to believe that either party was a member of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to believe” standard was a “probable cause” standard of proof. That barred unreasonable searches, but did not require a court order or warrant in all instances. Indeed the Supreme Court had recognized that searches without a warrant were permissible for “special needs” and the Terrorist Surveillance Programme served such a need.
Non-Discrimination and Right of Equality before the Law and to the Equal Protection of the Law
Concerning the Committee’s request for information on measures taken by the United States to reduce de facto segregation in public schools, the delegation said that the Department of Justice was currently monitoring 300 cases of de jure segregation, or segregation caused by unintentional discriminatory action. Under United States law, however, authorities could not act to counter discrimination without an indication of discriminatory intent of state or local authorities.
Regarding racial profiling by law enforcement authorities, the delegation said that President Bush had directed the Attorney-General to review the use by federal law enforcement authorities of race as a factor in conducting stops, searches, and other law enforcement procedures, and the Attorney General had subsequently issued guidance which prohibited racial profiling.
Turning to Hurricane Katrina response, the delegation said that President Bush had acknowledged that the magnitude of destruction from Katrina had strained and initially even overwhelmed federal, state, and local capabilities to an extent never before seen during a domestic incident within the country. The federal government was aggressively moving forward with implementing lessons learned, including improving procedures to enhance the protection of, and assistance to, economically disadvantaged members of United States society. The delegation noted that the Federal Emergency Management Agency provided relief assistance to all disaster victims as soon as possible without discrimination. In addition to the protections and programmes offered by that Agency, the Department of Homeland Security maintained an Office of Civil Rights and Civil Liberties, which was responsible, in part, for ensuring non-discrimination in the provision of disaster relief with respect to persons with disabilities.
Oral Questions by Committee Experts
Committee Experts then asked various questions and made comments on a number of topics, including how it was that the land Indian tribes held under treaty could be confiscated by the United States Government without compensation; the situation of indigenous Hawaiians, many of whom remained socially marginalized; secret detention; Guantánamo, and what the reason for offshore detention and interrogation was; the elimination of habeas corpus for detained foreign combatants, and the substitution of a review by the United States Court of Appeals; the interrogation techniques used in detention centres; what was being done to address gender-based discrimination, in particular the wage gap between men and women; and the lack of mention in the report of issues related to sexual preference, orientation or identity discrimination, especially in view of reports that alleged higher rates of violence by law enforcement officials against gay or transgender persons.
With regard to the obstacles to the withdrawal of the United States reservations to Articles 6 and 7 of the Covenant, one Expert, whose views were echoed by others, observed that these appeared to him to be a legal remnant, in particular in view of the Supreme Court’s recent holding that for those who were under 18 when committing a crime, the death penalty might not apply.
An Expert regretted that the report focused on the federal situation and requested further details on what was being done at the state level to address the obligations of the Convention.
Many Experts continued to voice concerns over civil rights protections in relation to counter-terrorism measures. A particular issue was the lack of monitoring or verification of such measures, especially in situations of secret or offshore detention. Also, while the report indicated that those who were subject to certain types of counter-terrorism surveillance within the United States had the right to challenge that proceeding in a court, how was that possible if the person being observed did not know he was being monitored?
Regarding the response to Hurricane Katrina, an Expert asked if it was true that the original evacuation plan in place had focused on evacuation by car, and how such a discriminatory plan – which obviously did not account for the poorest and most vulnerable segment of society – had been allowed to slip through scrutiny. Also, what plans were being put in place to provide compensation to victims of Katrina and to those who had had their human rights violated in its aftermath?
One Expert noted that according to the report there were some 9 million illegal immigrants in the United States – a figure non-governmental organizations put at 12 million – and asked what measures were being taken to deal with that phenomenon, in particular in view of reports about groups of vigilantes linked to extremist groups attacking migrants in the border areas, resulting in numerous deaths.
Responses of Delegation to Oral Questions Posed by Experts
With regard to the war on terrorism and some of the activities of the United States in territories outside the United States, the delegation reiterated and stressed that the United States considered such activities to be outside the scope of the Covenant. The attacks by al Qaeda confronted the world with a new kind of threat, one that presented difficulties for all. Although it presented tough legal challenges, the United States position was that in combating it the United States had to uphold its laws, Constitution and international obligations.
Decisions about how to balance security and liberty were never easy, the delegation observed. On a legal level, the United States believed that it had been and continued to be engaged in an armed conflict with al Qaeda and its supporters. But even while engaged in an armed conflict, the Covenant continued to apply, in accordance with its terms. Applying the law of armed conflict was not used to allow the United States to commit acts of torture or mistreatment. The United States was bound by other commitments not to engage in such acts.
In response to an Expert’s suggestion that indefinite detention was inherently inhumane, the delegation pointed out that under the traditional rule of warfare, enemy fighters could be held until the end of the conflict. Having said that, the United States recognized that this was a unique war, and it did not want to be in the position of holding anyone longer than necessary. They were actively seeking to release or transfer detainees to their home countries when they could be assured of both adequate security and humane treatment upon return.
On the issue of dissemination of the Covenant, the delegation said that the Covenant was published on the State Department and other websites, and had been cited in numerous court decisions. The Covenant was included, as appropriate, in legal programmes that addressed United States treaty law.
Regarding the critique that the report had not included enough information on state level protections, the delegation said that it was aware of that. They had contacted numerous state actors to contribute to the report. That did not mean that efforts were not undertaken at the state level to fulfil the obligations of the Covenant. One real difficulty was the fact that there were 50 states, and the amount of information was simply too overwhelming. The delegation suggested that the Committee might wish to ask some targeted questions about specific state practice for the United States to report on.
Concerning the effect of the new Supreme Court decision regarding the prohibition of the juvenile death penalty, the delegation said that was only one of several issues within the scope of Article 7 of the Covenant, and it did not follow that the United States would then logically remove its reservation. In addition, under United States law it was very difficulty to remove reservations to treaties.
The non-refoulement requirement that the Committee expressed concern about, the delegation said, went far beyond either the plain language of Article 7 of the Covenant or Article 3 of the Convention against Torture. Moreover, the United States did not accept as a legal matter the novel proposition in treaty law that the obligation of a State party would be affected by non-binding general comments or individual complaint procedures that the United States had not accepted.
In response to a question on why the detainees were being held at Guantánamo, the delegation explained that combatants were held there to both remove them from the field of battle to a safe location and to keep them separated from the American public.
Regarding the reasonable availability of witnesses, which many of the detainees had requested, when such witnesses were located, they were allowed to provide information to the Combatant Status Review Tribunals. As a result of such contributions by witnesses, 38 detainees were designated as no longer enemy combatants and had been released or were in the process of being released.
In response to a Committee Expert who had asked about the availability of habeas corpus to Guantánamo detainees, the delegation clarified that the Supreme Court had held in Hamdan v. Rumsfeld that the Detainee Treatment Act did not affect habeas corpus jurisdiction over certain cases pending on the day the Act took effect. In fact, the Detainee Treatment Act provided judicial review by domestic courts over the detention of enemy combatants – a protection unprecedented in the history of war.
Under the Detainee Treatment Act the military and contractors were obliged by law to respect the interrogation techniques outlined in the Army Field Manual on Intelligence Interrogations, all of which were consistent with the Geneva Conventions. In addition, all United States citizens were prohibited from committing torture on any person anywhere, in conformity with the Convention against Torture and United States law.
The United States did not transport any individual to a third country to be tortured. However, the delegation would not discuss specific intelligence activities. Nevertheless, the United States and other countries had used renditions for decades to transport individuals from one country to another for law enforcement purposes. Renditions were vital in the context of the war on terror.
The Department of Justice had just completed the review of 42 prisons, jails and juveniles facilities to ensure that the detainees were treated in conformity with United States human rights obligations, the delegation said.
Regarding gender equality issues, and the specific concern of the Committee regarding equal pay for both sexes, the Equal Employment Opportunity Commission was responsible for enforcing gender equality in the workplace. In addition, equal pay for equal work was guaranteed by United States statutory law.
In response to the Expert who asked how an individual under surveillance could challenge such surveillance, the delegation assured the Committee of the legal safeguards, including approval by a federal judge, built into such procedures.
Regarding the case brought up by the Expert in which the United States had not compensated an Indian tribe for taking its land, that was a case in which the tribe had already been compensated for the land and only held occupancy rights, not title, to the land.
Concerning the rights of native Hawaiians, the delegation noted that the proposed Native Hawaiian Government Reorganization Act had recently been voted down by Congress because it had been found to be segregationist and to contain race-based requirements for public office.
With regard to protections for individuals regarding gender orientation and identity, the delegation said that 46 states, and the District of Columbia, all had hate crime statutes.
The federal government had undertaken a review of catastrophic evacuation planning in all 50 States, following the experience of Hurricane Katrina. Those plans did contain measures to protect vulnerable and low-income populations.
An Expert had asked whether the United States planned to expel the millions of illegal migrants in the United States. President Bush had resolutely rejected such an approach, the delegation confirmed. In response to the President’s strategy to reform the United States immigration system, Congress and civil society had engaged in an active discussion about the best way to reform the immigration system.
The National Guard assigned to border states assisted the Border Patrol by providing logistical and administrative support, but did not have direct contact with detainees. Moreover, as part of their deployment, the delegation specified that National Guard troops were provided preparatory training in areas including use of force and cultural awareness.
Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment
The delegation observed that, as the Committee knew, the United States took a reservation to the Covenant, permitting it to impose capital punishment within its own constitutional limits. Nevertheless, United States Constitutional restraints, federal and state laws, and governmental practices had limited the death penalty to the most serious offences and had prevented the racially discriminatory imposition of the death penalty. Federal laws providing for the death penalty involved serious crimes which resulted in death, such as murder committed during a drug-related shooting, civil rights offences resulting in murder, murder related to the sexual exploitation of children, murder related to a carjacking or kidnapping, and murder related to rape. Espionage, treason and the possession of very large quantities of drugs or drug receipts also constituted capital offences.
With regard to the use of electronic control equipment, such as stun guns and stun belts, by law enforcement officials, the delegation said that electro-muscular disruption devices had been in use by law enforcement agencies in the United States for many years. Such devices were considered “less lethal weapons” because they incapacitated without intending to kill the targeted individual. After the deployment of such devices, many jurisdictions had seen dramatic drops in injuries and deaths in suspects, officers, and bystanders involved in use-of-force incidents. The Government and others had conducted and continued to conduct extensive research into the safety and effectiveness of electro-muscular disruption devices.
Concerning measures to protect persons involved as subjects of research, the delegation said that the United States Government maintained extensive and longstanding programmes to protect the rights of welfare of humans involved as subjects in research. The national system oversaw all human subjects research conducted or supported by the federal Government, and all clinical investigations of health care products that required marketing approval by United States agencies. Moreover, all research conducted or supported by Health and Human Services/the Food and Drug Administration had to comply with regulations that provided additional protections for children.
The delegation said that regulations and policy also provided that the Institutional Review Board that conducted ethical review of all proposed research under the regulations had to find, among others, that when some or all of the subjects were likely to be vulnerable to coercion or undue influence – such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards had been included in the study to protect the rights and welfare of those subjects.
Treatment of Persons Deprived of Liberty
The delegation said that the federal maximum-security facility was located in Florence, Colorado. The Bureau of Prisons ensured that that facility was used for only those offenders who were hardened and dangerous criminals – less than one third of one per cent of the overall inmate population. Inmates had access to a broad range of classes, programmes and services, including General Equivalency Degree programmes to complete a secondary school diploma, or English as a Second Language programmes. Inmates received a minimum of five hours of out-of-cell recreation per week. Inmates had the opportunity to recreate in groups for longer periods of time depending on their compliance with facility regulations.
The delegation stressed that the rape of an inmate was a serious crime and was vigorously prosecuted. The United States had charged 44 people with acts of sexual misconduct against inmates since October 1999. Of those, 16 were prison officials and the vast majority of the remaining defendants were police officers. Those prosecutions had resulted in lengthy sentences for law enforcement officers and prison officials convicted of sexual assault, including a 20-year sentence for a Mississippi police officer convicted of raping a 19-year-old woman in custody.
Freedom of Association
United States law and practice imposed no restrictions on the right of individuals to form and join trade unions, including immigrant and undocumented workers, agricultural or domestic workers, and federal, state and local government workers. Immigrant employees, including undocumented workers, were protected by the National Labour Relations Act. Finally, the Committee had asked about the Supreme Court ruling in the 2002 Hoffman Plastic Compounds case. The delegation reported that that case did not alter, but rather confirmed, the principle that undocumented workers could form and join trade unions.
Protection of Children
The sentencing and treatment of juveniles in custody in the United States fully complied with the obligations of the United States under the Covenant. It was true, the delegation granted, that persons under the age of 18 in the United States could be sentenced to life in prison without the possibility of parole. In imposing such sentences, government entities had taken into account their age and the desirability of promoting their rehabilitation.
At the federal level, the United States Government recognized that juveniles were a special population with special needs. No juvenile committed to the custody of the Attorney-General could be placed or retained in an adult jail or correctional institution in which he had regular contact with incarcerated adults. For less serious crimes, juveniles were usually committed to foster homes or community-based facilities located in or near the juvenile’s home community.
Although States were considering adjustments to the laws that disenfranchised convicted felons, the delegation said that felon disenfranchisement was not a violation of Article 25 of the Covenant. A distinction drawn on the basis of an individual’s commission of serious criminal acts was not a status of the sort listed in Article 2, and subsequently incorporated in Article 25, such as race, colour, sex, etc. The disqualification of the felons from the franchise was based on a characteristic wholly within the control of the individual, and hence could not be regarded as unreasonable.
Further Oral Questions by Committee Experts
Committee Members asked other questions and made comments on varied topics, including crimes against children; abstinence programmes for children, which studies had shown were linked to increased incidence of HIV infection and abortion; prolonged incommunicado detention; research programmes undertaken on prisoners; what efforts had been undertaken at the state level to prevent racial profiling by law enforcement officers; further details on the unaccompanied alien child protection act; and efforts undertaken to ensure that homelessness was not a racially discriminatory phenomenon, including to ensure housing.
Several Experts were not satisfied with the delegation’s interpretations of the Covenant, in particular with regard to its Article 7 reservations. One Expert hoped that the delegation would go home and rethink whether the extraterritorial application of the Covenant was indeed one that was so manifestly excluded.
An Expert was concerned to note that a 13-year-old under United States law could be judged competent to stand trial as an adult. That was doubly disturbing considering that 18-year-olds could be sentenced to life without parole, and that 50 per cent of those sentenced to life without parole were first offenders.
One Expert was concerned that, despite the Supreme Court’s judgement that mentally ill persons could not be executed, many such judicial executions of severely mentally persons continued in the State party. Also, did the United States intend to improve conditions for those prisoners on death row?
Response by Delegation
Responding to these and other questions, the delegation acknowledged that following the rule of law was a continuing process and did involve adjustments and amendments. For that reason, the United States welcomed the present process of dialogue with the Committee.
Regarding housing rights, the Housing and Urban Development Department had the mission to ensure housing for all. That said, it was not possible to house every single American, but, the delegation stressed, they were working towards that goal. In addition, Operation Home Sweet Home, a federal programme, had been designed to tackle discrimination in housing.
The death penalty was an important subject, but as a legal matter, the United States did have a reservation to the Covenant and therefore any discussion had no legal effect. Concerning death row, it was specifically the defendant legal protections that were responsible for such cases where prisoners sat for long periods on death row. Regarding the racial consequences of the death penalty, the delegation recalled that every single defendant was treated as an individual, had to be found guilty by 12 jurors, and that that decision had to be upheld through the appeals system.
Dignity in death was an important concept. There was an ongoing debate among the 50 states over what constituted dignity in death obligations.
Regarding media exploitation of persons in unfortunate circumstances, while the delegation believed that such exploitation was indeed deplorable, there were competing obligations to be observed. While there were many who would decry the burning of the American flag, it was a right that was guaranteed under the Constitution as freedom of speech.
On the issue of interpretation of treaties, the delegation said that the United States Government took a traditional approach to treaty practice. Under that approach it was for each Government to choose its treaty obligations, which it was then that State’s obligation to fulfil. The United States, in undertaking its treaty obligations, had to look at what obligations it could fulfil and then Congress had to approve a specific package of obligations. With great respect for the Committee, Article 40 did not give the Committee the power to change those obligations. There were opinions or jurisprudence developed by the Committee with which the United States did not agree. The Committee seemed to feel that the United States was in that way violating its obligations and that created a tension in their dialogue, as the United States was of the opinion that they were simply not bound by those obligations. It might be helpful for both sides if they recognized those differences. In that connection, the United States was prepared to have a dialogue with the Committee on issues to which it was not bound to do so by the Covenant, but which could be informed by it.
Addressing the issue of what was being done to provide legal counsel and other measures to help immigrants, the delegation said that the United States immigration authorities had implemented a new set of immigration standards in 1998, in response to a request from the American Bar Association. It allowed for access to counsel and appeals procedures for individuals to challenge immigration board decisions, as well as a legal orientation programme. There were pro bono legal services available for unaccompanied minor children. In the immigration context, the delegation noted that more than 3,000 individuals had been granted non-refoulement protection against removal.
Those who had suffered from Hurricane Katrina benefited from a substantial compensation fund to allow them to recover their losses, as well as to find present housing, the delegation said.
With respect to employment, the United States position was that aliens present illegally were not entitled to lawful employment. However, President Bush had specifically called for a new temporary worker programme that would provide avenues to legal stay in the country for migrants.
The delegation wished to make a few points about the issue of State practice with regard to Article 7 and extraterritoriality. The negotiating record of the Covenant confirmed the plain and ordinary meaning of the text. The countries that had opposed the United States proposal in negotiating that Article had done so only because they wanted it to cover their own citizens in a third country, no country had wanted it to cover non-citizens actions in a foreign country.
Regarding voting of persons who had been convicted of felonies, the issue under the Covenant was whether such a law would be a “reasonable restriction”. The delegation said that to hold that those who had committed felonies formed a group that was reasonably restricted was not something that itself was unreasonable. It was an issue that was open for debate. The problem was not to confuse obligations under the Covenant with matters of public policy or jurisprudence.
The National Commission on the Voting Rights Act undertook studies to find ways to make voting easier, more representative and more transparent. There were also two federal commissions, the Federal Election Commission and the Election Assistance Commission to monitor United States voting laws.
Electro-muscular disruption devices was under study and evaluation, both at the smaller state and local level, and on the federal level, the delegation said. There should be something between a fist and a baton on the one hand, and a gun on the other. It was still under consideration, however.
Concerning the comment on the high number of incarcerated persons in the United States, the delegation said that it could not be forgotten that that was the result of individual convictions and the protections of the justice system. It was worth noting, however, that over the past few years the United States had enjoyed the lowest violent crime rate since they had been keeping those statistics.
The results of the Prison Rape Elimination Act were still being compiled. A report would be put out in the coming months and years. In the meantime, the Commission that had been set up by that Act to monitor that situation was formulating policies and standards in that regard.
The delegation observed that there was a very low percentage of juvenile offenders serving within the federal justice system, and an even lower one serving sentences of life without parole. Those who were had been duly convicted following free and fair trials and having enjoyed the many protections that were afforded under the law.
Regarding the allegation that residents in New Orleans were prevented by law enforcement officers from crossing a bridge to leave their homes in the wake of Hurricane Katrina, the delegation noted that an inquiry into that incident was ongoing.
Many questions had been raised against the death penalty, but the Covenant itself noted the right of nations to have such a penalty. Concerning the execution of the mentally ill, the delegation noted that there was general prohibition against the execution of the mentally retarded. The mentally ill, however, were adjudicated on a case-by-case basis.
Preliminary Remarks
CHRISTINE CHANET, Chairperson of the Committee, in preliminary concluding remarks, said she wished to thank the delegation for its contributions. She also thanked the non-governmental organizations for their contribution to these meetings. In addition, she welcomed the United States understanding of the importance of that contribution from NGOs, the existence of which were indeed the hallmark of an open society.
Ms. Chanet said that the Covenant was an important instrument with a wide scope, so dialogue with States parties was essential. Indeed, it was the States themselves, under Article 40, who controlled the shape of those reviews and dialogues. The Committee was not just a chamber to register reports, it was a monitoring body to ensure the fulfilment of obligations under that treaty. The treaty bodies were competent to give their opinions on whether reservations were valid, and were also competent to formulate General Comments to the treaties.
Diverging positions had not made things easy, Ms. Chanet observed, in particular, with regard to the issue of extraterritorial application of the Covenant. She would note, however, that the International Court of Justice had held that the preparatory work of the Covenant had substantiated the Committee’s view of the extraterritorial nature of that instrument. What was bothersome in that opposing stance between the Committee and the United States was that it had impeded the written responses to a number of questions, which was regrettable. It was difficult to have a multilateral treaty and a unilateral interpretation, in particular when there was a monitoring body in effect. In the opinion of international jurists it was the monitoring body’s responsibility to interpret the treaty. The United States position also had a disturbing affect on other countries.
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For use of the information media; not an official record
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