Wednesday, April 28, 2010

How Do We Secure Communities?

By William Fisher

Three civil rights organizations are suing the government to obtain records related to a little-known program known as “Secure Communities” program that further involves local and state police in federal immigration enforcement.

The National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR), and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law filed the lawsuit. The filing came as the groups launched “Uncovering the Truth,” a weeklong national campaign of coordinated actions and advocacy in more than ten cities to end ICE-police collaboration.

“The passage of S.B. 1070 in Arizona should be proof enough of the dangerous and disastrous nature of ICE-police collaboration programs like the so-called Secure Communities program,” said Pablo Alvarado, NDLON Executive Director. “The President should heed his own advice and act responsibly by reclaiming the federal government’s exclusive authority over the nation’s immigration laws. By terminating all police and ICE partnerships, the President can help restore community safety and protect civil rights and due process for all.”

“At a time when police and ICE partnerships have clearly failed, ICE is moving swiftly to implement the Secure Communities program in every U.S. jail by 2013,” said CCR attorney Sunita Patel. “Contrary to its name, this latest ICE program makes the public less safe. There is no doubt that the program has and will continue to deepen fear and mistrust of the police in our communities.”

Relatively little is known about Secure Communities program. Groups opposing it say it requires local and state police to run individuals’ fingerprints through multiple databases upon arrest, even if no charges are brought and regardless of how minor the charges are.

Advocates and attorneys say that, in addition to concerns presented by relying on potentially inaccurate and erroneous information in those databases, the program functions as little more than a racial profiling dragnet to funnel even more people into the overburdened and mismanaged ICE detention and removal system.

Secure Communities is currently operating in 168 jurisdictions in 20 states with more agreements anticipated in the next few days.

“This is a massive, invasive and untested federal immigration enforcement program that ICE has been deceptive and secretive about from the start,” said Bridget Kessler, Clinical Teaching Fellow at the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law. “Without more information, we cannot allow for the spread of this dangerous ICE program.”

The plaintiffs seek the materials necessary to provide the public with comprehensive information on the Secure Communities program, including policies, procedures and objectives; fiscal impact; data and statistical information; individual records; communications; and assessment records. Plaintiffs filed a Freedom of Information Act (FOIA) request in February 2010 seeking these materials. Despite ICE’s rapid expansion of the program, government agencies have not yet released the requested records.

In a related development, Secretary of Homeland Security Janet Napolitano told the Senate Judiciary Committee yesterday that the Department of Justice (DOJ) will review the recently passed Arizona anti-immigrant law to determine its Constitutionality. She said she was unsure of the law’s legality, but suggested that it might be made acceptable if a Federal law enforcement officer was always present when local police were arresting someone for immigration violations.

The problem with that solution, she added, is that there are not enough Federal officers.

Napolitano said that Immigration and Customs Enforcement (ICE) has deep concerns with the law’s effects and that such broad immigration enforcement may detract and siphon resources away from ICE’s priority of focusing on the most serious criminals.

President Barack Obama has characterized the new law as “misguided” and threatening to “undermine basic notions of fairness.”

Under criticism by civil liberties advocates, Napolitano defended her department’s 287(g) program, which authorizes local law police and sheriff’s departments to enforce Federal immigration laws.

“The 287(g) program can be useful,” she asserted, in “focusing on serious crimes.” Her remarks drew enthusiastic support from the senior Republican on the committee, Sen. Jeff Sessions, a conservative from Alabama.

Sessions said (287(g) “represents a great opportunity to send a message to would-be immigrants that the door is no longer open. If you enter this country illegally, you won’t get a job. Instead you’ll get deported.

The 287(g) program has been heavily criticized by civil rights groups and, recently, by the Homeland Security department’s own Inspector General. Those who oppose the program say that local law enforcement officials are not properly trained to interpret complex immigration laws. They also contend that the program has failed to focus on serious crimes, citing the large number of immigrants in detention for minor infractions. Finally, with agreement from numerous law enforcement organizations, critics claim that 287(g) siphons off scarce resources away from protecting local communities.

Sen. John McCain, the Arizona Republican who was previously a major advocate of comprehensive immigration reform, defended Arizona’s action. He told the Committee that his state was “frustrated waiting for the Federal Government to do something to secure our borders.”

Another committee member, Sen. Lindsey Graham, a conservative Republican from South Carolina, told the committee that “in the current environment, comprehensive immigration reform could not pass the Congress.”

Meanwhile, the act recently signed into law by the governor of Arizona continued to draw the ire of lawmakers and civil libertarians across the country.

In Washington, members of Congress will host a press conference at the U.S. Capitol to denounce what they call “the harshest immigration enforcement state law in the country.” Elected leaders will discuss why the Arizona immigration law creates a moral and political imperative for the federal government to act swiftly on comprehensive immigration reform.”

Omar Jadwat, a staff attorney with the ACLU Immigrants’ Rights Project, called the Arizona law “the most extreme anti-immigrant law in the country.”

And Rinku Sen, executive director of the Applied Research Center (ARC), a not-for-profit advocacy group, said the new law “exchanges the security of Arizona’s communities of color to buy false comfort for a state on the brink of economic collapse. What about the right of communities of color to live without fear of random detention or their ability to report crimes without reprisal?”

Sunday, April 25, 2010

Welcome to Arizona!

By William Fisher

Immigration experts, law enforcement officials and religious leaders are hitting back at the draconian legislation signed into law in Arizona last week, charging it will subject the State to “staggering potential costs” and vowing to have the law declared unconstitutional in the courts.

In one Arizona county alone, Yuma County, the sheriff estimates that law-enforcement agencies would spend between $775,880 and $1,163,820 in processing expenses; Jail costs between $21,195,600 and $96,086,720; and
attorney and staff fees between $810,067-$1,620,134.

The estimates by Yuma County Sheriff Ralph E. Ogden were produced because there is no state-wide fiscal data yet available on the cost of the legislation’s implementation. Sheriff Ogden’s estimates were prepared for inclusion in a fact sheet produced in response to similar legislation in 2006. Yuma County is one of Arizona's 15 counties, with a population of about 200,000. The Sheriff's fact sheet also shows that additional detention facilities would have to be built at unknown costs.

These costs do not account for lost revenue such as tax contributions and consumer purchasing, as well as the potentially expensive lawsuits that will likely ensue.

Republican Governor Jan Brewer signed the legislation after a week of protests by anti- and pro-immigration groups. The new law makes Arizona the first state in the nation to consider it a crime for a person to be an undocumented immigrant.

Several legal challenges to keep the legislation from taking effect are already in the works by the Mexican American Legal and Educational Fund (MALDEF), the American Civil Liberties Union (ACLU) and the National Day Laborer Organizing Network (NDLON).

“Arizona would have the same place in history as South Africa,” said Salvador Reza, organizer for the PUENTE movement, which advocates for human rights, comparing the new law to apartheid.

But the passage of the Arizona law may also have ignited new energy and resolve from the pro-immigration reform movement. President Barack Obama has criticized the Arizona bill, saying it threatens to “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact comprehensive immigration reform.

Sen. John McCain, a Republican of Arizona, has in the past been one of the champions of comprehensive immigration reform. Today, locked in a tight primary challenge from his right wing to win his party’s nomination for another term, he has endorsed the new law. Arizona’s other senator, Republican John Kyl, has done likewise.

Known as the “Support Our Law Enforcement and Safe Neighborhood Act,” the law would allow police officers to arrest a person based on “reasonable suspicion ” that he or she is an undocumented immigrant. Police departments could face lawsuits by individuals who believe they are not enforcing the law.

A coalition of businesses and religious leaders has warned that the impact of the new measure could severely damage the Arizona economy.

The new law “is tearing our state into two. It humiliates us into the eyes of America and threatens our economic recovery,” said Phoenix Mayor Phil Gordon.

State Sen. Russell Pearce, a Republican from Mesa, the author of the bill, said the legislation would have the opposite effect. He believes the new legislation will lead immigrants to leave Arizona, causing the state to save money in services it currently provides to the children of undocumented immigrants at schools and hospitals. He has said that states have to take the matter into their own hands in absence of federal enforcement.

The recent death of a rancher on the border connected to violence in the area gave momentum to passage of the new law.

As the Arizona Governor signed the bill into law, the national and Arizona faith community condemned it as “an affront to moral conscience that will divide families and communities. The inhumane legislation demonstrates the urgent need for national political leadership to pass comprehensive immigration reform,” said a coalition of a dozen s leaders from evangelical, mainline Protestant, Catholic, and Jewish religions representing millions of Americans.

Rev. Jim Wallis, President and CEO of The Sojourners, said, “The law signed today by Arizona Gov. Brewer is a social and racial sin, and should be denounced as such by people of faith and conscience across the nation. It is not just about Arizona, but about all of us, and about what kind of country we want to be. It is not only mean-spirited – it will be ineffective and will only serve to further divide communities in Arizona, making everyone more fearful and less safe.”

He said the legislation “crosses many moral and legal lines, is a clear demonstration of the fundamental mistake of separating enforcement from comprehensive immigration reform. Enforcement without reform of the system is merely cruel. Enforcement without compassion is immoral. Enforcement that breaks up families is unacceptable. This law will make it illegal to love your neighbor in Arizona, and will force us to disobey Jesus and his gospel. We will not comply.”

And Rev. Jan Flaaten, Executive Director of the Arizona Ecumenical Council, said, "All the religious leaders of Arizona know and understand that this law will not solve the issue of crime along the border or in our state, but it will demonize anyone who looks suspiciously like an undocumented person leading to inevitable racial profiling. Our religious traditions ask us to treat people with dignity and respect, and we look for a more enlightened and hopeful way of working with the undocumented people who live along side us."

The legislation was also condemned by the American-Arab Anti-Discrimination Committee (ADC). The group said in a statement, “The measure allows law enforcement agencies to detain anybody if there is reason to suspect they are illegal immigrants, and requires legal immigrants to carry paperwork proving their status at all times. There is a profound fear in the civil rights community that the new measure will permit the practice of racial profiling by Arizona law enforcement personnel.”

Abed Ayoub, ADC Legal Director, said, "To allow the use of racial profiling in law enforcement practices is both dangerous and unconstitutional. The measure signed into law by Gov. Brewer has a profound impact on not only the Latino community of Arizona, but on all individuals living in the state. This law also illustrates the pressing need for Congress, and the Obama Administration to pass comprehensive immigration reform."

The Invasion of the Body Scanners

By William Fisher

More than thirty privacy and civil liberties organizations have filed a formal petition with the Department of Homeland Security (DHS), urging the federal agency to shut down the use of ‘full body scanners’ (FBS) at the nation’s airports.

At a press conference, Marc Rotenberg, President of the Electronic Privacy Information Center (EPIC), one of the signatories to the petition, said, "There is no question that the body scanner program should be shut down. This is a government boondoggle -- expensive, ineffective, and offensive to Constitutional rights and deeply held religious beliefs."

Last year, the groups asked DHS Secretary Janet Napolitano to give the public an opportunity to comment on the proposal to expand the body scanner program. She rejected the request. Since that time, the groups charge that evidence has emerged that “the privacy safeguards do not work and that the devices are not very effective.”

The petition states that the body scanners are not effective and are not designed to detect the type of powdered explosive that was involved in the December 25 “underwear bomber” incident. The petition also states that the privacy safeguards do not work and that the body scanners violate religious beliefs, principally among Muslims.

Despite concerns over costs and benefits, privacy, reliability and safety of airport body scanners, the federal government plans to deploy 500 advanced imaging technology units this ear, roll out 500 more in 2011 and operate a total of 1,800 units by 2014, according to recent testimony last to the House Transportation Security and Infrastructure subcommittee.

The plan represents a "more than two-fold increase from the initial planned buy of 878 units," noted the Government Accountability Office's Steve Lord, director for Homeland Security and Justice issues. "Second, the Transportation Security Administration now plans to use this technology as a primary rather than secondary screening measure."

A signatory to the petition, Chip Pitts, president of the Bill of Rights Protection Committee, told IPS, “The full body scanners fall into the same misleading ‘techno-utopian’ mindset that focuses on the symptoms rather than the causes of terrorism and assumes that some new surveillance technology will somehow eliminate all risk of terrorist incidents.”

He explained: “What happens instead is that companies push for and the government buys technology that merely fights the last war, produces new intrusions to fundamental freedoms like privacy, the presumption of innocence, and freedom from religious or other discrimination, while yielding only faux security instead of the genuine security promised. In the meantime, as Huxley warned in Brave New World, the population becomes used to the new surveillance methods (such as these digital strip searches) that normalize invasions of dignity and serve mainly to enhance government control of the citizenry.”

Pitts adds, “These body scanners weren’t designed for nor will they pick up powdered explosives of the sort used by the underwear bomber, but the misleading illusion that they work will distract us from following genuine leads and damage the genuine human security that comes only from respecting rights and meeting the main security challenge: changing the policies that are the root causes of terrorism.”

The “underwear bomber” is a young Nigerian who attempted to blow up a Northwest Airlines flight as it was descending into Detroit from Amsterstam on Christmas Day last year, concealing an explosive device in his under shorts.

The signatories to the petition describe body scanner systems as "uniquely intrusive, subjecting all travelers to an unreasonable search in violation of the Fourth Amendment.” They also say that the DHS “failed to comply with the Privacy Act when it did not inform the public about this new system that would collect personal information.” And they charge that the DHS Chief Privacy Officer violated the law when she approved the program.”

The group also contends that documents obtained by EPIC under the Freedom of Information Act “also appear to refute the agency's claims that the devices do not store and record images and that the public does not object to the program.”

The group cited a number of comments from unidentified passengers. “One traveler commented, ‘I am outraged and angry that what was supposed to be a ‘pilot’ for the millimeter scan machines has now become MANDATORY. Other fliers described the devices as ‘a disgusting violation of civil liberties and privacy,’ ‘for a bunch of peeping toms,’ ‘unconstitutional,’ ‘intrusive and ridiculous’ and ‘a joke.’ ”

The organizations signing the body scanner petition include the Electronic Privacy Information Center (EPIC), the Asian American Legal Defense and Education Fund (AALDEF), the Bill of Rights Defense Committee (BORDC), the Council on Islamic-American Relations (CAIR), the Center for the Study of Responsive Law (CSRL), the Liberty Coalition, and Public Citizen.

The petitioners charge that “Deployment of Full Body Scanners in US airports, as currently proposed, violates the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), the Privacy Act of 1974 (Privacy Act), and the Administrative Procedures Act (APA).”

The petition says, “The FBS program effectively subjects all air travelers to unconstitutionally intrusive searches that are disproportionate and for which the TSA lacks any suspicion of wrongdoing. The FBS Program also violates the RFRA because it requires those of sincerely held religious beliefs to be subject to offensive intrusions by government officials. The program violates the Privacy Act because the system gathers personally identifiable information—a detailed and unique image of the human body easily associated with a particular airline ticket—yet the TSA failed to publish a System of Records Notice. The TSA Chief Privacy Office violated its statutory obligations to ensure that new technologies ‘sustain and do not erode’ the privacy of Americans when it effectively approved the program.”

EPIC’s Rotenberg said at the press conference that he would consider FBSs for secondary, but not primary, screening.

An Anonymous Jury?

By William Fisher

Department of Justice lawyers yesterday petitioned a Federal court to begin a controversial terror-related trial in New York City with an “anonymous jury” in order to protect the jurors, the audience in the courtroom, the prosecutors and defense counsel, the judge, and the criminal justice process.

The motion asks that the jurors hearing the case of American citizen Syed Fahad Hashmi for conspiracy to provide material support to Al Qaeda should not be required to disclose their names, addresses or places of employment, and that they be kept under the watchful eyes of the U.S. Marshal Service, which will provide extra security services.

Anonymous juries have been used in three terror-related cases in this same court, including the conviction of lawyer Lynn Stewart for passing a message from her terror-suspect client to his colleagues.

If Judge Loretta Preska grants the motion, jury selection would proceed under a process known as voir dire, referring to giving a true verdict.

The voir dire process in the U.S. is controversial. The amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of "impartial jury". Some question whether the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. Proponents argue that this method gives both sides more confidence in the verdict.

But one of Hashmi’s most ardent defenders – Dr. Jeanne Theoharis, Hashmi’s teacher at Brooklyn College – terms the government’s action “egregious.”

“There's so many ways this is egregious -- not the least of which is that
it speaks to how the US Attorney's office views Muslims in the
audience and countenances racist speculation,” she says,

Theoharis references the U.S. Attorney, who writes, “It is likely that the jurors will see in the gallery of the courtroom a significant number of the
defendant’s supporters, naturally leading to juror speculation that at
least some of these spectators might share the defendant’s violent
radical Islamic leanings.”

But Theoharis says there are no demonstrations planned for the first day of trial. “The plan is to pack the courtroom with a possible press
conference with human rights groups on the courthouse steps or in the
park across the street for the first day,” she explains, adding:

“This is just about ratcheting up the fear of the jurors. (Hashmi’s lawyers) will obviously contest the government's motion saying that in a democracy people are allowed to come and watch court. But of course the judge is very sympathetic to the government and will likely agree to do so.”

Clearly, she says, “this is proof that our organizing is getting to them--but
also that, in this climate, they will try to use that to increase the fear (and secrecy) of the jury. They are using this activism -- and people exercising
their right to watch the process -- to make the jury scared and gain a

Theoharis is not without allies in her support of Hashmi. In response to the government’s anonymous jury motion, the Center for Constitutional Rights (CCR) said, “The case against Fahad Hashmi in itself raises many red flags related to the violation of his rights, prosecutorial overreach under the material support statute, and the unduly punitive and restrictive special administrative measures under which he has been kept without trial for nearly three years.”

CCR said “The government’s call for the jurors at his trial…to be anonymous and kept under extra security because of the attention and political activism these issues have drawn to the case is a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty.”

“The government is manipulating the fact that many individuals and human rights organizations are supporting Mr. Hashmi and raising important criticisms of his treatment in detention in order to gain a conviction. This is deplorable,“ the group said.

He has been held in New York since the Memorial Day weekend, 2007.

In the Metropolitan Detention Center in New York, Hashmi, a Muslim, is not allowed to pray with others of his faith. He is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. Visits are through a thick glass. No touching or hugging is permissible or possible.

Hashmi is permitted to write one letter a week to a single member of his family, but cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to talk to guards or other inmates.

Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.

He is also under 24-hour electronic monitoring inside and outside his cell.
He is allowed one hour of recreation every day -- which is periodically denied. He is not given fresh air but must exercise alone inside a cage.

Prof. Theoharis, who has attended the hearings in his case, told us that Hashmi's "mental health appears to be deteriorating."

His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.

Hashmi's friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence.

If Hashmi is convicted, he could be facing up to 70 years behind bars.

Colorado Sheriff Sued. A Buddy for Arpaio?

William Fisher

"Without any legal authority whatsoever, Sheriff Ted Mink imprisoned our client and kept him in legal limbo for 47 days with no charges pending, no opportunity to see a judge and no opportunity to post bail,” the American Civil Liberties Union (ACLU) charged as it filed a lawsuit against the Jefferson County, Colorado, lawman.

The ACLU and the ACLU of Colorado said Luis Quezada was detained simply because federal immigration officers suspected that the man was in the US in violation of federal immigration laws.

Mark Silverstein, Legal Director of the ACLU of Colorado said, "Our fundamental constitutional values prohibit depriving any person of liberty without due process of law."

Quezada was arrested and taken to the Jefferson County Jail where he was held for three days in May 2009 for failing to appear in court on a traffic charge. He promptly resolved the traffic charge, and the county court judge ordered him released.

But he was not released, because Immigration and Customs Enforcement (ICE) – part of the Department of Homeland Security (DHS) -- sent the jail an immigration detainer advising that it was investigating whether Quezada was violating immigration laws.
Omar Jadwat, an attorney with the ACLU immigrants’ project, told IPS, "Immigration detainers are inherently flawed. It is outrageous that someone could spend six weeks in jail because of nothing more than an ICE form saying that the agency wanted to investigate him."

An immigration detainer instructs a jail or prison to hold a particular detainee an additional 48 hours (excluding weekends and holidays) after the detainee's release date. The detainer states that its purpose is to provide adequate time for ICE agents to determine whether to take the detainee into federal custody and begin formal deportation proceedings. Yet after the 48 hour detainer expired, the Jefferson County sheriff continued to unlawfully hold Quezada for an additional 47 days.

When ICE finally took Quezada into custody in mid-July 2009, the agency immediately allowed him to be released on bond while he defended himself in immigration court.

The ACLU of Colorado says it has received multiple complaints of similar cases in which Colorado jails held suspected immigration violators without legal authority. To address the recurring issue, the ACLU of Colorado wrote to all Colorado sheriffs in the fall of 2008, advising that any legal authority of an immigration detainer expires after 48 hours. The ACLU also asked Colorado sheriffs for copies of any written policies instructing jail deputies on how to proceed when the jail receives immigration detainers. The Jefferson County attorney responded that the sheriff's office had no applicable written policies.

ICE routinely issues immigration detainers to law enforcement agencies around the country as part of part of ICE enforcement initiatives involving state and local police such as the 287(g) program, Secure Communities and the Criminal Alien Program. In addition to causing racial profiling and harming public safety, those initiatives raise the risk that agencies and officers will face increased claims for damages as a result of cases like Quezada's.

"ICE is issuing detainers by the thousands in an attempt to use state and local police and sheriffs as adjunct federal immigration officers," said Omar Jadwat, a staff attorney with the ACLU Immigrants' Rights Project. "However, police officers and jailers are always required to obey the Constitution and simply cannot imprison a person in this way, even if an immigration detainer exists. States and municipalities open themselves to liability when they treat ICE detainers as if they were sentences imposed by a court."

The 287(g) program has recently come under severe criticism from the Inspector General of the Department of Homeland Security, who said the program cannot be evaluated properly because its goals, mission and management are confused and substandard.

This program has also come under continuing criticism from local law enforcement officials and groups. They charge that local police officers and sheriff’s deputies are not trained in the complexities of immigration law, that
They are invoking immigration laws in inappropriate ways, and that the program is diverting limited local law enforcement resources away from the main mission, which is protecting the public from criminal behavior.

Sheriff Mink is far from the first local law enforcement officer to be taken to court for allegedly violating immigration laws, which are civil, not criminal. There are hundreds of citizen suits pending against Sheriff Joe Arpaio of Maricopa County (Pheonix) Arizona. Many have already been settled with cash judgments to the plaintiffs.

The Department of Justice is currently investigating a civil rights complaint against Arpaio, and the DHS has recently curtailed his participation in the 287(g) program.

Friday, April 23, 2010

Is This an Exercise in Futility?

By William Fisher

Human Rights organizations are telling the United Nations that the United States is failing to hold corporations, including private government contractors, accountable for human rights abuses ranging from human trafficking to murder.

These and a plethora of other charges have been triggered by the UN’s formal process known as the Universal Periodic Review (UPR) for reviewing the human rights records of 192 UN member states by the UN Human Rights Council, scheduled for November, when the US human rights performance will be reviewed for the first time.

The UPR was established when the Human Rights Council was created in 2006 by the UN General Assembly. Numerous human rights groups have responded to the US State Department’s invitation to members of the US public to present their concerns about human rights in America.

Chip Pitts, president of the Bill of Rights Defense Committee, has attended the predecessor UN Commission on Human Rights and now the Council for more than two decades, as a delegate of the US government, Amnesty International, or other NGOs.

He told IPS, “The Universal Periodic Review process is a welcome step forward, in that it subjects all states to regular review of their human rights records, in addition to the work done by other mechanisms such as the treaty bodies and special rapporteurs as well as the Council’s own retained ability to make recommendations regarding acute situations of gross and systematic violations.”

But the problem, he said, is that “the process is far too slow, too limited in scope and authority, and still suffers from the inevitable politics that must be diminished if human rights implementation on the ground is to advance. The US government, in particular, should be the first to offer leadership and ensure authentic and full compliance with human rights law. But instead of setting this example, the United States all too often continues to seek refuge for itself and its allies in double standards.”

Jamil Dakwar, Director of the Human Rights Program of the American Civil Liberties Union (ACLU), struck a more hopeful note, telling IPS, “We hope this process will help bring US policies in line with international human rights standards by shining a light on domestic human rights issues and holding state, local and federal government accountable to our human rights obligations.”

Specifically, the ACLU is urging President Obama to “issue a new executive order to revitalize the Inter-Agency Working Group on Human Rights, to coordinate the efforts of federal agencies and departments to respect and implement human rights obligations as U.S. domestic policy.”

He said other important steps are necessary including “the creation of a national human rights institution in the form of an expanded US Civil and Human Rights Commission, and effective coordination between federal bodies and existing state and local agencies charged with monitoring and enforcing civil and human rights laws.”

One coalition of groups includes The Center for Constitutional Rights (CCR), Earth Rights International (ERI), the International Network for Economic, Social and Cultural Rights (ESCR-Net) and the Western Shoshone Defense Project (WSDP).

These organizations cite numerous examples where private companies have been alleged to be responsible for serious human rights abuses, including human trafficking of Nepali laborers by Kellogg Brown & Root; nonconsensual medical experimentation by Pfizer; extrajudicial killings and torture committed by private military contractors in Iraq and Afghanistan; complicity in war crimes by Chiquita; and violations of the indigenous peoples’ rights to health, land, and culture by private mining companies in Nevada.

The Federation of American Scientists asked the State Department to turn its attention to those cases where a resolution of alleged human rights violations has been barred by the government's use of the state secrets privilege.

Steven Aftergood, director of the Government Secrecy Project of the American Federal of Scientists, told IPS, "There are innocent individuals who have been swept up in US Government counterterrorism operations, wrongly detained, 'rendered' surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged."

He added, "In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the Government's invocation of the state secrets privilege. As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole."

"If the judicial process in such cases is foreclosed by the state secrets privilege, then an alternate procedure should be created to rectify the wrongs that may have been committed," he suggested.

Another prominent human rights advocacy group, Human Rights First (HRF), focused its report on refugee protection and immigration detention, counter-terrorism policies, and hate crimes and discrimination.

The group said, “Despite its leadership in protecting victims of persecution around the world, the US has fallen short on its commitment to treat refugees who seek asylum in the United States in accordance with the1967 Protocol Relating to the Status of Refugees and the International Covenant on Civil and Political Rights (ICCPR).

It said, “The US should change its laws and regulations to provide asylum seekers who are detained on arrival with prompt immigration court custody hearings, eliminate the one-year asylum filing deadline, and ensure refugees are not improperly excluded from protection or returned to persecution after interdiction at sea.”

Regarding counterterrorism policies, the group notes that the US continues to hold more than 800 detainees in military facilities at Guantanamo Bay and in Afghanistan without charge or trial.

“Due to the government’s overly broad definition of armed conflict and belligerency, many of these detainees are being held in violation of international law. Some are slated for trial in military commissions which do not comport with international due process standards. The government has also failed to provide adequate information about detainees reportedly abused in a “black site” in Afghanistan, the group said.

“Bias-motivated violence continues to be a serious problem in the US,” the report says. “Official response is not uniform across the country, and vulnerable groups continue to be subjected to violent acts motivated by racism, bigotry and intolerance.”

Thursday, April 22, 2010

Life After Fifty? Listen Up Ladies!

William Fisher Reviews “In The Fullness of Time: 32 Women on Life After Fifty.” Edited by Emily W. Upham and Linda Gravenson. ATRIA paperback.

I have to admit, this is not my usual book. Generally I’m more comfortable with Sy Hersh or Jane Mayer or Tom Ricks or a history of the Supreme Court.

But this little volume turned up on my living room coffee table and I was drawn to it not by its title – which may be the least descriptive title in the history of book publishing -- but by its subtitle: 32 Women on Life After Fifty.

This is a book about what each of these people has lost and how each has adjusted her life to go on living. I found it a book that’s often amusing, always inspiring, and definitely worth reading.

And who are the authors? They are 32 extremely gifted American writers and artists. And they share the further common identity: Baby Boomers. As Emily Upham writes in her foreword, “the baby boomers had arrived at the second half of life…this half would be laden with loss.”

She goes on to describe this cohort as “the mapless generation.” We “came of age at a fleeting moment in history when all traditional expectations were tossed aside and torn up like confetti. Our womanhood was forged at a time when birth control was easy, abortion was easy, pursuing a career was easy, when there were no rules, no boundaries, no directions other than our own inner ones…As we age and begin to suffer the losses common to all women, our landscape is a very different from that of the women who came before and after us.”

The essays in this book were written for this book; there’s no boilerplate here. The authors range in age from fifty-five to a hundred and one. They are all “immersed in, or have emerged from, maelstroms of change.”

But this book is not only about the more predictable kinds of losses that face us as we age, for example, the loss of spouses and lifelong friends. Among my favorites:

Gail Godwin, who falls into a deep depression after being turned down for a home care insurance policy;

Katherine B. Weissman, who as an archetypal feminist “learned to assert my rights, own my successes, get angry and not apologize so damned much,” and is suddenly forced to confront her naked 63-year-old body;

Erica Jong ruminating about death, “The lucky ones die in restaurants after a good dinner. Or die in their sleep in bed during an erotic dream about a lover long since passed to the other side;”

Claire Bloom, reflecting on living a relationship-free life, with the help of Buddha – “I’ve been free to travel to be with my daughter, to be with my friends, in a way that I wasn’t when I was in a relationship.”

As co-editor Linda Gravenson writes of these 32 women, “These are the women I’d want in my lifeboat.”

Gravenson is also the author of one of the book’s moving essays. In it she recollects her totally crazy and confusing childhood-to-adulthood relationship with her debilitatingly dangerous mentally ill mother, and her feelings after this unfortunate creature had passed.

She writes: “My relationship with my mother keeps getting better and better. I can approach her now and take from the family album what I need. I can even return to the mischievous little girl who runs wildly around the garden as her mother holds out a sweater, insisting on protection from the evening chill. I am shrieking with glee as I skip just ahead of her, proud of my speed, and happy to be fooling around with my mom.”

One further observation about the dilemmas that face aging women. On many levels, they don’t really seem all that different from the dilemmas facing aging men.

Wednesday, April 21, 2010

A Conversation with Dr. Jeanne Theoharis

For the past almost three years, an American citizen, Syed Fahad Hashmi, has been held in isolation in a federal detention center in New York City.
He is suspected of conspiring to provide “material support” to Al Qaeda. The government’s evidence is a suitcase full of raingear left by a visitor to his London apartment; the government charges that the raingear was for delivery to al Qaeda operatives, and that Hashmi let his visitor use his cellphone. Hashmi is under 24-hour video and audio surveillance, even when he uses the toilet. He eats all his meals in his small cell. He is not allowed to communicate with other prisoners. He is a Muslim but is not allowed to participate in group prayer .

The month-old newspapers he receives have whole sections cut out of them by the government. Contact with the media is forbidden. For one hour every other week, one member of his family can “visit” through a heavy screen. No touching or hugging is allowed or possible. Sometimes the government takes away his family visits as punishment; in 2008, he lost his visits for three months and has not had family visits since December. Sometimes the government does not allow his family to see him when they arrive at the prison because the FBI translator is not there.

Hashmi’s trial is finally scheduled for April 28, and the government’s star witness against him is the man who left the raingear in Hashmi’s London apartment, and who has already been sentenced to a long prison term but is using his testimony to work off his sentence.

Here, IPS correspondent William Fisher discusses the case with Dr. Jeanne Theoharis, the Brooklyn College professor who was Hashmi’s teacher in 2002, and is one of those most outraged by Hashmi’s treatment.

IPS: How do you remember Hashmi as one of your students?

JT: He was a student of mine in 2002. He took the senior capstone seminar in political science with me--that year, the course I taught was on post-civil rights racial politics, which focused on civil rights from the 1960s to the present. He loved to talk and debate other students—and seemed to have a rather optimistic view of the power of debate to change people’s minds. It is a small course where students are required to do a research paper. He did his on the treatment of Muslim groups in the United States post-9/11 and -- ironically or perhaps not -- described the violations of civil liberties that Muslim groups of various political positions were facing. Now that paper he did with me is being lived out in lower Manhattan -- and it is his rights that have been violated.

IPS: Did you encourage him to seek a Masters degree ?

JT: He came to see me about his desire to go to graduate school, which made sense, given his scholarly interests and we talked through his plans. Also, as part of a class assignment for another course where students had to interview someone who had the job that they wanted, he came and talked with me about being a professor.

I wrote him a letter of recommendation for a number of graduate schools and, like many students, sent him on his way. Next I heard about him, he'd been arrested and we were being instructed by Brooklyn College not to have any comment to the media.

IPS: The next time you saw him he was in custody and there was a court hearing. How did he seem to you?

JT: Over the course of the past two years seeing him at these court hearings, his mental health appears to have declined. He now appears considerably less focused and more jittery. He used to pay attention to everything happening in court, constantly talking to his lawyer and for the brief moments entering and leaving court, making eye contact and smiling at people in the audience. He now seems much more withdrawn, sometimes just keeping his head down the whole time. This certainly corresponds to the research on the effects of prolonged solitary confinement, which documents this kind of degradation of people's mental health.

IPS: Did his lawyer put up a robust defense against the imposition of the SAMs?

JT: Yes, his defense has challenged the SAMs on multiple occasions --including introducing medical and scholarly evidence of the damage that prolonged solitary confinement has on a person. The judge was unconcerned and ruled against every defense motion seeking to address the SAMs. She has refused even to make modest changes. She has determined the SAMs to be "administrative and not punitive" and thus constitutional. Judges -- and particularly this judge, Loretta Preska -- seem to be allowing the government wide latitude in imposing these inhumane measures.

These SAMs are legalized torture. The levels of isolation and sensory deprivation are dehumanizing. They go against international standards and have been shown in medical and scholarly research to have a severe impact on a person's mental health and stability. And they severely impact the ability of a person to participate effectively in his or her own defense.

IPS: Do you think Hashmi will get a fair trial?

JT: No, his right to a fair trial has already been severely compromised by the SAMs, and also by the use of "classified" evidence legalized through the Classified Information Procedures Act. As a US citizen, Hashmi has not been allowed to review all the evidence against him. We are hoping to salvage justice in his case. But three years of solitary confinement and severe isolation have made a fair trial impossible.

We have begun to have a public conversation in this country about torture but not addressed this crucial aspect of it happening right here in the federal system, and, in Hashmi's case, right here in New York City. While there has been public attention to the use of torture for intelligence gathering, we have missed the use of torture to gain convictions -- as a way for the government’s lawyers to demonstrate the success of U.S. law enforcement and federal prosecution in the War on Terror.

A Talk With Mary Giovagnoli

The Immigration and Customs Enforcement agency (ICE), part of the Department of Homeland Security (DHS, ) has come under increasing criticism because of its poor treatment of would-be immigrants held in detention – including a number of unreported deaths – lack of medical facilities, administrative bungling resulting in loss of records, and absence of due process for detainees at ICE detention centers.

A recent report by the DHS Inspector General excoriated ICE for substandard management of the 287(g) program, in which local police and sheriffs are given authority to enforce immigration laws. The program has been attacked for encouraging racial and ethnic profiling, using untrained police officers to enforce the highly complex immigration laws, and diverting local law enforcement authorities from the work they traditionally perform.

Mary Giovagnoli, director of the Immigration Policy Center, the research and policy arm of the American Immigration Council, believes that ICE could substantially improve its performance by appointing an Ombudsman “to serve as an internal conscience, taking in reports on individual cases, making sure that policy is followed and serving as an internal watchdog.”

Giovagnoli has a long history of service with government immigration agencies. She served with ICE’s predecessor, the Immigration and Naturalization Service (INS) for almost seven years, and then with U.S. Citizenship and Immigration Services (USCIS) after INS was dissolved in 2003 and its responsibilities transferred to DHS.

IPS correspondent William Fisher interviewed Ms. Giovagnoli.

Q. Isn’t the DHS Inspector General and the Office for Civil Rights and Civil Liberties designed to fulfill the Ombudsman function by investigating allegations of civil rights violations across the Department and attempting to educate Department personnel about proper procedures?

A. These offices are crucial to keeping all of DHS honest, but the problems in ICE require more specialized and ongoing attention. The Office for Civil Rights and Civil Liberties is small and tasked with an incredible number of responsibilities for protecting civil rights across all of DHS. The Office of Inspector General also has competing priorities and therefore must limit its investigations to the most egregious problems throughout DHS. ICE also has an Office of Professional Responsibility that looks at particular allegations against individual officers. But often, these kinds of offices can't focus on the individual run of the mill case where policies and procedures cause the problem rather than any particular wrongdoing on the part of an officer. Because ICE is a law enforcement agency, but one that enforces a wide range of civil laws, its relationship to the community is, I think, unique and complex.”

Q. What specifically would the Ombudsman do?

A. An ombudsman would serve as an internal conscience, taking in reports on individual cases, investigating them, making sure that policy is followed and serving as an internal watchdog. When Congress established DHS, there was considerable concern that the former INS wasn't responsive to the numerous complaints it received. Originally, the ombudsman’s office was intended to cover all immigration matters, but the final legislation only included authorization for oversight of USCIS.

The ombudsman monitors USCIS performance and advocates for change with a direct reporting requirement to Congress regarding different legislative proposals and recommendations. Although this model is written in the law, there is no reason to believe that the Secretary couldn't establish a similar mechanism for monitoring ICE, at least in terms of investigating complaints and making recommendations.

Q. What is required for the Ombudsman idea to proceed?

A. There are several pieces of legislation proposing an ombudsman within the detention context, but we don’t need to wait for legislation. Better oversight should start happening right now. DHS should gather input from affected communities to create a system that will make ICE more responsive.

There are particular concerns in implementing the Ombudsman idea for ICE. You need a structure that is in tune with how the agency works. You have to have a chain of command structure that is respected by the officers -- an ombudsman needs to have sufficient authority to report to someone outside ICE but at the same time be seen as working within and through ICE to solve problems. So access, authority, and ability to make changes is critical.

Then, an ombudsman needs representatives in the field -- ideally, you would have someone responsible for individual districts that would take complaints, gather information, and investigate concerns.

Finally an ombudsman needs a support system from within the community. Ideally, the ombudsman might be the central figure in a range of community oversight boards with the ability to advise and make recommendations to individual offices and to the national office about improved performance and working with the community.”

Q. How would an Ombudsman work with the larger community?

A. We have to change the model of immigration enforcement to reflect community needs and interests. There has been a lot of great thinking along the border about what that might look like in border communities, but we need to expand that thinking to all communities where ICE operates. An ombudsman who spearheaded a group of local community advisory boards would be in a position to speak for all the people who right now find their complaints unanswered whose issues are probably not big enough to get to the level of an IG report.

In Search of Stevens

Analysis by William Fisher

With the resignation of Supreme Court Justice John Paul Stevens, U.S. President Barack Obama faces an opportunity that may become a migraine – or vice versa.

All presidents welcomes vacancies on the high court; each one gives them another chance to leave their mark on the American political landscape. The resignation this Summer of Justice Stevens, who is approaching 90 years of age, after 34 years on the court, is no different.

With partisan acrimony at the most intense pitch in recent memory, President Obama faces a dilemma. Does he choose someone uncontroversial – more conservative -- who is likely to be confirmed by the Senate with relatively little opposition, or does he nominate someone in the Stevens mold?

Stevens, though a Republican selected by a Republican president, Gerald R. Ford, has since his appointment in 1975, gradually become the voice of the “progressive wing” of the court as the full court has moved relentlessly toward the right.

Today, there are four justices who represent a reliably predictable conservative vote – Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Justice Anthony Kennedy, considered the “swing vote,” often joins the conservatives to give them a majority of five.

Many of Stevens’ decisions have angered those on the political right, including decisions that limit executive branch power and expand legal rights for Guantanamo detainees.

Some of his dissents may in time also prove to be as important as the Court’s majority opinions; for example, his recent impassioned opposition to the majority in the Citizens United v. Federal Election Commission case which ruled that corporations have the same First Amendment rights as humans and therefore can spend unlimited amounts of money in political campaigns for or against candidates.

Some observers of the Washington scene believe Obama will opt for a “safer” nominee to avoid alienating Senate Republicans, whose support he is still seeking for passage of his legislative agenda. Others contend that Obama, now emboldened politically by passage of his historic health care legislation and a new nuclear weapons accord with the Russians, will challenge conservative Republicans to a knock-down drag-out fight in the Senate.

Conventional wisdom suggests that those reportedly on the shortlist of nominees include several who were considered before President Obama named his first Supreme Court Justice, Judge Sonia Sotomayor. They include the current Solicitor General, Elena Kagan, formerly dean of the Harvard law school; federal judges Diane Wood and Merrick Garland; and Homeland Security Secretary Janet Napolitano.

Judge Wood is arguably the most liberal of these possible nominees. Some disqualify Garland because they believe Obama wants to choose another woman – there are currently two on the court. Kagan is generally well regarded by conservatives and has many supporters on the right, although she favored a ban on military recruitment on the Harvard campus. As Solicitor General, she plays a major role in choosing court cases the government will bring or defend. In a large number of these, her choices have channeled those of the George W. Bush Administration.

Napolitano, former governor of a border state, Arizona, has been tough on illegal immigration, a position that has strengthened her hand among conservatives. The two appeals court judges both have long judicial paper trails, generally thought to be an impediment to speedy confirmation. Judge Wood in particular has written a number of opinions in abortion cases that conservatives would find objectionable.

While other names – including Secretary of State Hillary Clinton -- have also been mentioned, the truth is that only Obama and his most senior advisors know who is being seriously considered.

Meanwhile, legal experts have begun to assess the legacy of Justice Stevens.

Prof. Peter Shane of the Ohio State University law school told IPS, “The phrase you will see a million times in upcoming summaries of Justice Stevens' career is independent-minded. He is truly a calls-it-as-he-sees-it kind of judge, devoted as much as any judge can be to the nontendentious, dispassionate, principled development of the law.”

He continued, “The fact that he is now widely regarded as so liberal is chiefly a reflection of his fidelity to the primary trajectory of 20th Century constitutional development, which was, over time, more and more protective of individual rights, social inclusion, and the authority of the federal government to address all national problems.”

In recent years, Shane says, Stevens “has become an anguished truth-teller, pointing out both in Citizens United and in Parents Involved (the Seattle voluntary school desegregation case) the untethered radicalism of Roberts-Alito-Scalia-Thomas jurisprudence. What the Court needs now, in my judgment, is a justice with both the intellectual heft and personal disposition to weigh in effectively against the tide of right-wing jurisprudence. Justices Marshall and Brennan spring most obviously to mind as role models.”

Col. Morris D. Davis (US Air Force Ret.), former chief prosecutor of the Military Commission trials at Guantanamo Bay, Cuba, told IPS, “My concern as the Obama administration weighs a replacement is what the Court will lose when Justice Stevens departs. He alone brings three perspectives to the bench that will likely be lost: he's the lone military veteran, the lone Protestant, and the lone non-Ivy leaguer.”

He explained: “I suppose I'm biased as I share those three characteristics with Justice Stevens and I believe those are important perspectives that should be reflected on the Court for it to have the benefits of a range of experiences to draw upon in making decisions that impact us all. A Court composed entirely of Catholics and Jews, all with Ivy League educations, and none with a day of military service does not come close to mirroring the diversity of the nation.”

And Prof. Francis Boyle of the University of Illinois law school appears to have lost confidence that Obama can nominate anyone who will stop the Court’s drift to the right. He told IPS, “So far University of Chicago Constitutional Law Teacher President Barack Obama has failed and refused to deconstruct and dismantle [the Bush Administration’s] totalitarian handiwork. To the contrary, the Obama administration has defended and justified in court almost every hideous atrocity that the Bush Jr. administration perpetrated on international law, human rights, civil rights, civil liberties, the U.S. Constitution, and the Bill of Rights.”

Thursday, April 15, 2010

ICE Needs an Ombudsman

By William Fisher

One of the nation’s senior immigration authorities is recommending that the U.S. Immigration and Customs Enforcement agency (ICE) could substantially improve its performance by appointing an Ombudsman “to serve as an internal conscience, taking in reports on individual cases, checking them out, making sure that policy is followed and serving as an internal watchdog.”

The Ombudsman proposal was made by Mary Giovagnoli, director of the Immigration Policy Center, the research and policy arm of the American Immigration Council, in an exclusive interview with IPS.

Giovagnoli has a long history of service with government immigration agencies. She served with ICE’s predecessor, the Immigration and Naturalization Service (INS) for almost seven years, and then with U.S. Citizenship and Immigration Services (USCIS) when INS was broken up in 2003 with the creation of the Department of Homeland Security (DHS).

ICE has come under increasing pressure because of its poor treatment of would-be immigrants held in detention – including a number of unreported deaths – lack of medical facilities, administrative bungling resulting in loss of records, and absence of due process for detainees at ICE detention centers.

Giovagnoli says, “It can be argued that the DHS Office of Civil Liberties and Civil Rights is designed to play that function because it investigates allegations of civil rights violations across the Department and attempts to educate Department personnel about proper procedures.”

So why isn’t this sufficient?

Giovagnoli says that the office is small and “tasked with an incredible number of responsibilities. Similarly, the Office of Inspector General clearly has the ability and authority to investigate and monitor abuses within ICE. ICE also has some kind of Office of Professional Responsibility that looks at particular allegations against individual officers.”

“Often, these kinds of offices can't focus on the individual run of the mill case where policies and procedures cause the problem rather than any particular wrongdoing on the part of an officer. Because ICE is a law enforcement agency, but one that enforces a wide range of civil laws, its relationship to the community is, I think, unique and complex,” she says, adding:

“An ombudsman would serve as an internal conscience, taking in reports on individual cases, checking them out, making sure that policy is followed and serving as an internal watchdog.”

“When Congress established DHS, there was considerable concern that the former INS wasn't responsive to the numerous complaints on the services side and this led to the creation of an ombudsman's office as a separate entity within DHS. The ombudsman was supposed to monitor USCIS performance and advocate for change with a direct reporting requirement to Congress regarding different legislative proposals and recommendations. Although this model is statutory, there is no reason to believe that the Secretary couldn't establish a similar mechanism for monitoring ICE, at least in terms of investigating complaints and making recommendations,” she says.

Giovagnoli says there are particular concerns in implementing the Ombudsman idea for ICE. “You need a structure that is in tune with how the agency works. Thus, you have to have a chain of command structure that is respected by the officers -- an ombudsman needs to have sufficient authority to report to someone outside ICE but at the same time be seen as working within and through ICE to solve problems. So access, authority, and ability to make changes is critical.

“Then, an ombudsman needs representatives in the field -- ideally, you would have someone responsible for individual districts who would take complaints, gather information, and investigate concerns.

Finally, “an ombudsman needs a support system from within the community. Ideally, the ombudsman might be the central figure in a range of community oversight boards with the ability to advise and make recommendations to individual offices and to the national office about improved performance and working with the community.”

She added, “I think we see from the 287(g) report that the expectations for advisory committees (which appear to be just made up of ICE and local law enforcement people) were never met, but I question whether you can have successful oversight committees that don't involve average citizens.”

Giovagnoli was referring to a recent report by the DHS Inspector General (IG) that was highly critical of a program known as 278(g), in which local police and sheriffs are given authority to enforce immigration laws. The program has been attacked for encouraging racial and ethnic profiling, using untrained police officers to enforce the highly complex immigration laws, and diverting local law enforcement authorities from the work which they traditional perform,

Giovagnoli told IPS, “We have to change the model of immigration enforcement to reflect community needs and interests. There has been a lot of great thinking along the border about what that might look like in border communities, but we need to expand that thinking to all communities where ICE operates. An ombudsman who spearheaded a group of local community advisory boards would be in a position to speak for all the people who right now find their complaints unanswered whose issues are probably not big enough to get to the level of an IG report.”

Writer Jeffrey Lubbers points out that ombudsmen are not a new concept both in government and the private sector. About 20 years ago, ombudsman offices began to spread to state and local governments, prisons, universities, newspapers, and corporations. Now federal agencies are jumping on the bandwagon by creating such offices -- in some cases with Congressional blessing or mandates.

Lubbers says, “The ombudsman's role in federal agencies clearly is becoming better known. And there seems to be a fair amount of bi-partisan support for the concept in Congress.”

He adds, “With staff reductions in many agencies, the need for problem resolution between regulators and the regulated (or affected third parties) is becoming more acute. Ombudsmen will have an increasingly important role to play in and for agencies in the years to come.”

Ombudsman is a Swedish word meaning "agent" or "representative," and its Scandinavian origins have been traced to 1274. The first national Ombudsman was established in Sweden in 1809.

Monday, April 12, 2010


By William Fisher

After nine years in captivity, a federal court has ordered the release of a Guantanamo prisoner once described as the "highest-value detainee at the facility " –and set off a firestorm of protest from Republican lawmakers.

Federal District Judge James Robertson ruled in Washington, D.C. that the U.S. could not continue to detain Mohamedou Ould Salahi (sometimes spelled “Slahi”), a Mauritanian citizen who has been in U.S. custody since 2001. Judge Robertson’s opinion, providing the reasons for the granting of Salahi’s habeas corpus petition, was released last week after undergoing a classification review; some portions were withheld as classified.

The American Civil Liberties Union (ACLU) and private attorneys challenged Salahi’s detention, arguing that the government had no reliable evidence that he was part of al-Qaeda when he was seized in 2001.

Salahi became the 34th GITMO detainee whose imprisonment has been declared illegal.

The Department of Justice said it would appeal Judge Robertson’s decision. However, even if the government’s appeal is unsuccessful it is unclear that Salahi could be released until another country offers to take him in.

Jonathan Hafetz, staff attorney with the ACLU National Security Project, told IPS, “Salahi's case is a national disgrace -- rendition, brutal torture, and eight years of arbitrary detention without charge or any reliable or credible evidence. Regrettably, rather than ending this shameful episode that flouts the rule of law, and repatriating Salahi, the government is seeking to prolong his illegal imprisonment."

“Salahi's illegal detention for more than eight years without charge or trial embodies the most egregious abuses of Guantánamo,” he said. “The district court’s decision invalidating that detention and ordering Salahi’s release is an important step towards restoring the rule of law,” he added.

After Salahi was arrested in Mauritania on suspicion of ties to al-Qaeda, the U.S. government illegally rendered him to Jordan, where he was detained, interrogated and abused for eight months. He was then rendered to Bagram, Afghanistan and finally to Guantánamo, where he has been held in U.S. custody since August 2002.

While at Guantánamo, Salahi was held in total isolation for months, kept in a freezing cold cell, shackled to the floor, deprived of food, made to drink salt water, forced to stand in a room with strobe lights and heavy metal music for hours at a time, threatened with harm to his family, forbidden from praying, beaten and subjected to the “frequent flyer” program, during which he was awakened every few hours to deprive him of sleep. The government falsely told him that his mother had been arrested and was being sent to Guantánamo.

Salahi’s abuse was documented in a 2009 report by the Senate Armed Services Committee.

Marine Corps Lt. Col. Stuart Couch, the military lawyer originally assigned to prosecute the case against Salahi in the military commissions, determined that Salahi’s self-incriminating statements were so tainted by torture that they couldn’t ethically be used against him. Couch told his supervisors that he was “morally opposed” to Salahi’s treatment and refused to participate in the prosecution.

In his decision, Judge Robertson wrote that there is “ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantánamo.”
Congressional Republicans expressed outrage over the decision. The Hill newspaper reported that Sen. Kit Bond of Missouri, the ranking member of the Intelligence Committee, stated, "While (Attorney General Eric) Holder's Justice Department should appeal this outrageous decision, I'm not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong."

The Hill also reported that Rep. Lamar Smith, a Texas Republican, sent a letter to Holder asking him to appeal the ruling, in which he wrote, "It is certainly possible, if not likely, that Mr. Salahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand."

Salahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. "My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States," he said in his combatant status review tribunal at Guantánamo in 2004.

Salahi was transferred by the US from Mauritania to Jordan. According to historian Andy Worthington, he was one of at least 15 prisoners rendered to Jordan by the U.S. Central Intelligence Agency (CIA) between 2001 and 2004. He was held there for eight months and said what happened to him was "beyond description." He was tortured "maybe twice a week, a couple times, sometimes more." He was then transferred to the U.S. prison at Bagram airbase in Afghanistan for two weeks and arrived in Guantánamo on August 4, 2002.

Worthington reports that, “as the highest-value detainee at Guantánamo - in the days before Khalid Sheikh Mohammed and 13 other high-value detainees were flown in from secret CIA prisons in September 2006 - Salahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats and threats that his mother would be brought to Guantánamo and gang-raped.”

This program, he says, was implemented in May 2003 and augmented with further "enhanced interrogation techniques" authorized by Defense Secretary Donald Rumsfeld. It culminated in August 2003 in an incident when Salahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was "about to be executed and made to disappear." As the German magazine Der Spiegel explained in an article in 2008, "He was so terrified that he urinated in his pants."

Thursday, April 08, 2010

Corporate Social Responsibility: Wisdom or Window-Dressing?

The scary economic developments of the past two years are contributing to a renaissance of discussion about “Corporate Social Responsibility,” and how it might have helped head off Wall Street’s precipitous failure. To explore that question, Truthout contributor William Fisher talked with Chip Pitts, one of the world’s leading authorities on the subject. In this interview, Prof. Pitts answers key questions. He believes that CSR, if “properly implemented, would have prevented the crisis.”

Former Chief Legal Officer of Nokia, Inc. and former Chair of Amnesty International USA, Prof. Pitts currently serves as President of the Bill of Rights Defense Committee and lectures on CSR and business/human rights at Stanford Law School and Oxford University. He is Advisor to the UN Global Compact and the Business and Human Rights Resource Center and has also advised the successful Business Leaders Initiative for Human Rights, among other global CSR initiatives. He is co-author and editor of the first systematic legal treatise on the subject, Corporate Social Responsibility: A Legal Analysis (the royalties for which all go to sustainability and human rights charities).

1.What is CSR? Is it more than charitable giving through the company foundation?

Believe it or not, CSR does not stand for “Corporate Scandal Response,” but for “Corporate Social Responsibility.” And, suspicions to the contrary notwithstanding, neither CSR nor “business ethics” is the oxymoron it may seem to be at first glance. There was a false suggestion (reaching its high point in a 2001 European Union “Green Paper”) that CSR was merely voluntary and thus “optional,” but this is now widely and rightly seen as a misleading diversion orchestrated by corporate lobbyists.

No corporation can be responsible without complying with law, so at a minimum, CSR of course begins with mandatory legal compliance: not just with local law, but (especially in developing countries where local law may be absent or unenforced) global human rights and environmental laws. But beyond that, CSR requires compliance with the highest global ethical standards, meaning that corporations must not only “do no harm,” but also “do what good they can.” This does not mean mere philanthropy -- charitable giving of some small percent of profits back to the community -- although a philanthropic impulse and philanthropy remains a (relatively minor) part of CSR.

CSR is responding to major structural drivers and expectations of investors, employees, NGOs, global media, governments, and society at large – stakeholders who will reward companies that “get it right” and punish those who get it wrong. As a result, CSR requires accountable and long-term sustainability: deeply integrated decision making that manages risk, seizes brand and employee recruitment and retention benefits, and drives the “triple bottom line” (people and the planet as well as profits) throughout the core business, so that corporations are not part of the problems experienced today (social and environmental externalities like climate change, pollution, human rights abuse, conflict and war) but instead are aligned with society and the expectations of all stakeholders to contribute to much-needed solutions.

“Sustainability doesn’t refer merely to profit-making sustainability, although some business executives have unfortunately started to use it perversely in that narrow sense, and doesn’t refer merely to environmental sustainability, but includes long-term, future-oriented social sustainability as well – of the systems that support all of us. An exciting CSR trend is thus corporate deployment of their core competencies – strategic thinking, marketing, logistics, inventory control, etc – in innovative public-private partnerships aimed at fighting HIV/AIDs, preserving scarce water resources, combating poverty, and achieving other public goods.

This “business case” for CSR is why it has held up so well during the financial and economic crisis of the last several years, as assessed by various independent sources. And this integration of CSR into the core business, and not unlimited campaign spending by fictional corporate persons granted “free speech rights” under the recent US Supreme Court Citizens United decision, is the true meaning of corporate citizenship (which properly understood and implemented should be synonymous with CSR).

2.Who uses CSR?

CSR is relevant to businesses of all sorts and sizes, although global corporations subject to tremendous stakeholder scrutiny and pressure (by NGOs such as Greenpeace and Amnesty International, governments, the global media, international organizations, and unions) have taken it up to a greater extent either as a result of various scandals or in order to achieve the various business benefits and proactively maintain their “social license to operate.” Small and medium enterprises (SMEs), though, have a tremendous economic impact, and form part of the supply chains of the larger global corporations – tens of thousands in Wal-Mart’s supply chain alone – and so can and must also implement CSR within their own spheres of influence.

People are also trying to enhance attention to core CSR concepts even within the informal or black-market sector (again, as ironic as that may seem), given its persistent importance especially in developing countries. Governments and international development and aid agencies are looking to forms of CSR in which companies join multi-stakeholder initiatives to help solve some of the world’s most significant problems. (This is the impetus behind the UN Global Compact, for example, or the International Labor Organization’s Better Work initiative). More broadly, CSR includes the increasingly convergent global norms of human rights and sustainable development – such as the human rights, environmental, and anti-corruption principles of the UN Global Compact -- that form the framework for our continued peaceful existence on the planet, so it is incumbent on all of us to support greater CSR, whether as employees of corporations, or consumers needing to make more ethical (e.g. fair trade) purchasing decisions. So if the question is “who uses it,” the answer should be: YOU – and all of us!

3.Do any companies have long histories and demonstrable achievements from their use of CSR?

The roots of CSR are deep in societies around the world, drawing on longstanding universal ethical norms such as the Golden Rule, and common sense notions of preserving the natural and other resources that sustain all of us (as well as the companies). Moreover, notions of CSR were “present at the inception” of the corporation. From the very inception of bodies corporate, such as the Roman societates, through medieval bodies corporate (universities, cities, guilds), and even chartered companies of the age of exploration, and the colonial companies and corporate churches, utilities, and charitable entities involved at the founding of the United States of America, corporations have generally had public as well as private purposes (although companies like the British and Dutch East Indies companies also caused great harm).

Modern corporations, too, which achieved key attributes of their current form (such as limited liability) in the 19th century, were often conceived with social purposes as well as private profit in mind. Thus, companies in England like Unilever (founded by Lord Leverhulme) and Cadbury chocolate company (conceived of by George Cadbury as having humanitarian purposes) have long-standing CSR traditions and demonstrable achievements that continue today – consider Unilever Hindustan’s Shakti program empowering female entrepreneurs – although these companies like other companies also have had CSR problems including serious issues pertaining to the labor conditions under which their products are manufactured.

In India, Tata similarly has a long tradition of investing in communities as well as occasional scandals, and in the United States the same could be said of companies such as Sears, whose founder Julius Rosenwald helped create 4-H programs and train farmers in agricultural techniques, and J.C. Penney, whose founding executives famously embraced positive values in ways that have been emulated by many companies today including Hewlett-Packard and Nokia. Ford is another example: it is prominent in environmental efforts today and was the birthplace of the doctrine of Fordism, whereby workers get paid enough to buy the products they make . . . but the company also has a dark history of complicity with forced labor in Nazi Germany and apartheid in South Africa, as well as with violent repression of unionists and political dissenters in Latin America. So even leading companies like Ford often have mixed records, at best, of compliance with CSR principles.

4.How about companies in the financial services sector? Any users here?

The financial sector is actually a place of great CSR activity in recent years, as initiatives like the United Nations Principles for Responsible Investment and the Equator Principles now cover trillions of dollars in investment money committed to take environmental and social factors into account in investment activities. The Equator Principles now cover the vast majority of project finance in the world, in yet another demonstration of how the most sophisticated investors now understand that so-called “non-financial” risks (relating to the environment or human rights) can have a tremendous impact in terms of the financial bottom line and so must be the subject of enhanced monitoring and reporting.

5.Could CSR have impacted the behavior of the “too big to fail” institutions that brought us to the brink of financial disaster?

Properly implemented, CSR indeed would have prevented the crisis, which at core was about the opposite of each of the seven principles in my most recent CSR book.

Instead of integrated decision-making that recognizes longer-term duties to the system – to society and the planet as well as for short-term profit -- we saw utter neglect of those duties. Instead of adequate attention to all stakeholders, we saw myopic and greedy focus on returns only to top executives, managers, and shareholders. Instead of transparency, we saw manipulation of corporate forms and opaque financial instruments such as derivatives and credit default swaps. Instead of consistent best practices and compliance with the highest global legal and ethical standards, we again saw evasive manipulation of loopholes. Instead of precautionary risk management, we saw systemic moral hazard. Instead of accountability, we saw offloading risk and responsibility onto a stream of other actors. And instead of attention to and investment in the community, we saw rapacious inattention to and plundering of communities.

The ultimate cause of the crisis was the ideological embrace of Milton Friedman’s warped but still dominant view that “the only social responsibility of business is to make a profit for its shareholders,” and until that socially and economically counterproductive -- and empirically, legally and ethically inaccurate -- view is corrected, we will continue to have the increasing and more intense crises of global capitalism that we have seen recur with ever greater frequency over the past forty years.

Sadly but clearly, the lessons have still not been learned. The crisis was not just a crisis of the financial sector, but one arising from an ill-informed and erroneous mindset that still infects businesses in general and requires correction.

6.Is CSR a top-down or a bottom-up practice?

CSR is both top-down and bottom-up. Premised on engagement with all stakeholders instead of only shareholders, CSR requires broad dialogue with workers, community members, and other elements of society in order to align the company with society. It also requires transparency so that investors, communities, and other stakeholders can hold companies accountable. But without commitment and “tone at the top” – with the CEO, board members, and top managers leading by example – CSR will not succeed.

7.How is CSR organized?
CSR starts with a commitment to “integrated decision-making” i.e. systemic thinking that sees the interrelationships between top global issues, stakeholders, corporate departments, and previously segregated roles of individuals (e.g. applying different principles in their corporate life than they do in their personal or spiritual lives). By obliterating prior boundaries that blocked alignment with society, CSR can expand corporate vision, transform the corporate mission, inform strategy, and motivate employees and all stakeholders to take the enterprise to the next level in ways that sustain resources for present and future generations. Stakeholder engagement is a key procedural plank for CSR, with greater transparency within the corporation and outwards toward society driving progress, enhanced risk management, and accountability for results.

8.How is CSR managed?

Sometimes companies segregate the CSR or Sustainability or Corporate Citizenship function in a separate department and expect that department to handle CSR issues in isolation – a recipe for CSR failure and enhanced rather than reduced risk. Other companies still consider CSR mainly a “public relations” exercise and relegate it to the PR or Communications function – also a red flag that the company may not truly understand CSR.

Indeed, while reaping brand benefits is a major driver for CSR, and critics are wrong to say that CSR is “merely” PR, overemphasizing PR above substance remains one of the common traps to be avoided by companies attempting to implement CSR. Real CSR has resulted in tangible benefits in terms of enhanced attention to human rights by extractive industries and reduced instances of child and forced labor in supply chains, but those achievements take hard work and not glossy brochures.

Because of the broad purview and authority of the legal function in many leading global businesses, and the fact that CSR begins with legal compliance, the Legal Department is often the focal point for CSR in many companies, working to ensure an integrated CSR approach. At other times, there is a dedicated CSR function with a Senior VP in charge who works closely with Legal and other business functions. But whether tied to Legal, or Public Affairs, or another function, and even if there are senior executives and dedicated CSR staff, the best companies realize that to be successful CSR must truly be integrated into the company’s vision, mission, strategy, and core business.

Otherwise you may have the CSR or PR department saying one thing, for example, while procurement does the opposite or a business unit leader creates pressures for human rights violations or environmental degradation in the supply chain by establishing targets at odds with responsible action. Performance incentives must be aligned with CSR commitments and metrics, so that executives and employees alike are evaluated in part on CSR targets and values as well as more traditional revenue and profit targets, reaping rewards for successful achievements and risking penalties up to and including termination for violation of CSR and ethical commitments.

A variety of new management tools ranging from online guides to human rights impact assessments (complementing the more traditional environmental risk assessments) now exist to help manage CSR in a responsible fashion and ensure it is not treated as a mere “add on.”

Environmental tools have been around quite awhile, but for the last several years there has also been a new UN Framework for Business and Human Rights that emphasizes the corporate responsibility to respect all human rights, starting with having an explicit policy to that effect but backed up with a variety of “due diligence” procedures ensuring integration, risk management, evaluation, and existence of effective remedies and grievance procedures. The UN Framework as well as many new tools to assist are catalogued by the London-based Business and Human Rights Resource Center ( These range from the Guide for Integrating Human Rights Into Business Management created by the Business Leaders Initiative for Human Rights in conjunction with the UN Global Compact and the Office of the High Commissioner for Human Rights, to various other management approaches to CSR issues, most of which revolve around traditional notions of planning, taking action, and checking on results as a feedback loop into renewed planning and action.

9.How is CSR evaluated?

CSR is evaluated both via internal audit and review mechanisms and a variety of external review, audit, and verification mechanisms, some of which are within the ambit of company influence and some of which are less subject to company control.

As an example of internal mechanisms, one leading company, General Electric, has a world-class internal audit team which goes far beyond the “green eyeshades” implication that the word “audit” suggests; the audit function there has historically served as a source for future corporate leaders as well as a critical check to ensure compliance with the spirit as well as the letter of the corporate code of conduct. GE also embeds CSR into its rigorous operational reviews. But in addition to such internal mechanisms, GE also participates in sustainability stock indexes such as the Dow Jones Sustainability Index, and is subject to other external review by various stakeholders. Of course, companies that do not adhere to CSR are also now subject to various sorts of market and legal pressures, ranging from protests and boycotts, to adverse media coverage, to enforcement actions by government agencies and litigation.

10.What are the roles of Chair, Board, CEO, CFO, shareholders, employees, etc. in making CSR a company-wide practice?

The balance to be struck here is between an unmistakably honest and strong commitment and accountability “from the top” – the CEO and board and other “C-suite” executives – and the distributed leadership necessary for CSR to truly permeate the enterprise.

While the CEO is and should be ultimately accountable, and it usually makes sense to have rigorous supporting mechanisms such as a top executive specifically charged and focused on CSR issues, as well as a board-level committee dealing with matters of CSR, business ethics, and risk management, this should not be an excuse for avoiding similarly accountable leadership by other core business functions including the heads of business units and country leaders and the heads of critical functions such as manufacturing, procurement, logistics, quality control, legal, human resources, finance, and the like. Indeed, within their own “spheres of influence and activity” each employee and each participant in the enterprise’s extended value chain should know and be accountable for their CSR obligations. One fascinating development in recent years is how large companies like Wal-Mart or the major apparel brands are dramatically influencing behavior throughout their supply chains by requiring CSR compliance as a condition of being a supplier.

11. How do you make CSR part of the corporate culture?

As with the question of human rights and environmental compliance in society at large, this is in fact the most critical question. The law and market incentives are inherently limited – they can only go so far without risking counterproductive legal, practical, or market failures. So even though (as discussed above) CSR involves compliance with law and is also “enforced” through both positive and negative incentives, both practical experience and academic research indicate that it can all be fruitless unless the culture and values of the company support CSR and accountable results.

To hear some business leaders or business school academics discuss the subject, you may come away with the impression that virtually any values are acceptable and that a “values-based” company is simply one that has values – even if those values merely relate to short-term shareholder and management wealth maximization. This is wrong. Genuine leadership is inherently moral. So the values chosen matter tremendously, and they must be values aligned with society (including the most universal statement of human values in history, the Universal Declaration of Human Rights, as well as clear values of sustainability evidenced in global declarations like the Stockholm and Rio Declarations). Objective analysis of the corporate values and culture – both stated/explicit and tacit/actual – is thus crucial, and can be accomplished by a variety of techniques including employee and stakeholder surveys and interviews.

My Stanford Law School students are working with the UN Global Compact to survey corporate values and consider means of promoting the uptake of appropriate world-class CSR values (which takes on even greater importance as China and the other “BRIC” countries come online). Already, it is clear that one thing you don’t want to do is simply consider CSR to be a narrow “check the box” compliance function, which is calculated to miss issues, create rather than appropriately manage risks, and undermine the authentic CSR culture that derives from the right values implemented in the right fashion.

Instead, the best companies are increasingly having recourse to innovative techniques based on the latest scientific understandings of human nature and learning, including scenario planning and proactive brainstorming, experiential methods, multimedia, literature/stories, and even theater, all of which can be excellent ways to enhance employee abilities to truly listen to, understand, and respond to stakeholder perceptions, and even create new products, services, business models, and entirely new market opportunities as a result.

This article originally appeared in

Pat Leahy’s Refugee Bill

By William Fisher

Immigrants-rights activists are virtually unanimous in their endorsement of proposed legislation that would change decades of U.S. asylum practices. But proponents of the legislation fear it may never find its way out of the U.S. Senate to the President’s desk.

Senator Patrick Leahy introduced the Refugee Protection Act of 2010 (S.3113) back in March. The objective of the bill is to “affirm the U.S. commitment to provide refuge to individuals fleeing persecution in their homelands.”

It helps restore protection to deserving individuals fleeing persecution and torture, who have been denied refuge under increasingly restrictive immigration laws and court decisions. The bill protects women and girls fleeing gender-based harms -- such as forced marriage, female genital cutting, honor killings, and domestic violence -- children seeking asylum on their own, traumatized or isolated refugees who are unable to file an application for asylum within one year of arrival to the U.S., and other vulnerable victims of persecution.

But Congress-watchers point out that “historically, major refugee and immigration reform bills have not moved through Congress the same year that they were introduced. In addition, the Senate calendar has been so choked with health care legislation and other “must pass” bill that the House of Representatives is now referring to the upper body as “the place where bills go to die.”

Finally, the status of the Leahy bill could change if The White House decides to introduce comprehensive immigration legislation during the current session of Congress.

Meanwhile, pro-immigration groups are lobbying senators to obtain more co-sponsors. Thus far, all are Democrats; getting two or three Republicans is one of the objectives of the White House, but immigration is one of the most predictable third rails of American politics, especially in a mid-term election year.

But if grassroots support were ever enough to get a bill through the Senate, Leahy’s legislation would have smooth sailing. It has been lavishly endorsed by more than 25 of the country’s leading immigration organizations.

One of the most respected, The Center for Gender and Refugee Studies at the University of California Hastings, said the legislation “makes critical reforms to our asylum laws and procedures, and helps bring the U.S. in line with its treaty obligations.”

Bill Frelick, director of Human Rights Watch's refugee policy program, told IPS, “The bill identifies the serious gaps and overly restrictive provisions in the US refugee and asylum system—the overly broad definition of terrorist activities for inadmissibility; the one-year filing deadline for asylum claims; disparate treatment of different nationality groups interdicted at sea; the lack of legal assistance for particularly vulnerable asylum seekers; the one-year delay in allowing refugees and asylees to adjust to lawful permanent resident status.”

In addition, he added, the legislation “confirms reforms that the Obama Administration appears to be trying to implement administratively, such as paroling from detention asylum seekers who establish a credible fear of persecution and promulgating regulations governing conditions of detention.”

The American Civil Liberties Union (ACLU) called on the Senate to swiftly pass the bill. “The Refugee Protection Act is a crucial step towards removing some of the obstacles that have prevented victims of persecution from obtaining refugee protection in the U.S.,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “The Senate should take Senator Leahy’s lead and pass this bill as soon as possible.”

Amnesty International USA applauded Senator Leahy’s efforts, which it said would “reposition the US as a champion of refugee rights in the 21st century.”

"Thirty years ago this week, Congress passed landmark legislation that created important standards for America's response to refugees seeking our protection," said Human Rights First's Eleanor Acer. "In the decades since then, America has faltered in its commitment to the persecuted. Today, Senators Leahy and Levin have introduced legislation that will put our nation back on track and strengthen U.S. refugee protection laws so that they can once again reflect our values and commitments."

Leahy’s legislation includes provisions that would eliminate the one year asylum filing deadline that bars refugees with well-founded fears of persecution from asylum; remove barriers that prevent some asylum seekers from receiving prompt review by the immigration courts of detention decisions so that these asylum seekers are not subject to prolonged and arbitrary detention; clarify the "particular social group" basis and "nexus" requirements for asylum so that the asylum requests of vulnerable individuals, including women fleeing gender-based persecution and refugees persecuted for their sexual orientation, are adjudicated fairly and consistently; and protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that our immigration laws target actual terrorists, as opposed to hurting thousands of legitimate refugees who are not guilty of any wrongdoing and pose no threat to American security.

The legislation has won the endorsement of the nation’s leading immigration advocates, including the U.S. Conference of Catholic Bishops, the International Rescue Committee, the National Immigration Forum, the American Immigration Association, the American Bar Association, and the U.S. Commission on International Religious Freedom.

The legislation would make several critical reforms to U.S. asylum laws. Notably, the bill clarifies definitions of what actions constitute “material support” to ensure that the innocent acts of asylum-seekers are not mislabeled as terrorist activities. The bill promotes efficient immigration proceedings by allowing the Attorney General to appoint immigration counsel where fair resolution or effective adjudication of proceedings would be served by appointment of counsel.

The bill also establishes a nationwide, secure “alternatives to detention” program, and institutes detention reforms to ensure access to counsel, medical care, religious practice and family contact visits. Finally, the bill restores judicial review to a fair and reasonable standard consistent with administrative law principles.

One of the cruelest ironies for people seeking protection in the US – many of whom have been detained and tortured at home – is that they are subject to mandatory detention as soon as they request “safety” here. Despite the fact that this law is in direct violation of obligations under the Refugee Convention, the US continues to use detention as a means to deter refugees from seeking asylum or to encourage them to abandon their asylum applications.