The undersigned NGOs and individuals are pleased to see ...



Memorandum

To: Members of the U.N. Human Rights Committee

From: U.S. Civil Society Organizations and Advocates (See Attached List)

Re: List of concerns for the review of the U.S. Second and Third Periodic Report

Date: January 9, 2006

We would like to thank the Committee for its request to U.S. NGOs for information and suggested questions for the U.S. government in the upcoming review of its Second and Third Periodic Report. We are submitting this joint memo in order to assist the Committee in developing its list of issues to discuss with the United States government at the March 2006 session.

Per the Committee’s request, we have sought to draft this document collaboratively, incorporating contributions from many different organizations. It should be noted that all of the signatories to this submission strongly believe in the importance of adherence to the ICCPR and share strong concerns about the U.S. failure to comply fully with its international human rights obligations. The issues raised below constitute a compilation of the concerns of the various signatories, each of whom has a unique mandate and expertise that may not extend to every issue presented in the entire document.

Finally, it is important to note that the issues that we identify below are not exhaustive. In order to provide the Committee with our collective sense of priorities, we have limited our submission to include information and questions on only our top concerns under many of the Articles. We expect that our organizations will be providing additional information on these and other issues to the Committee prior to the formal review in July 2006.

Introduction (U.S. Obligations and Reservations)

A consistent theme throughout the “Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights” is U.S. exceptionalism in its implementation of the treaty’s obligations. In its tardy submission of this report and other reports to human rights treaty bodies, and in its frequent rejections of the Human Rights Committee’s previous recommendations (in its Concluding Observations adopted in 1995), the U.S. government has demonstrated its disdain for even the most basic obligations required of states parties to the treaty. Also of serious concern, the U.S. government’s stubborn claim on the limitations of the territorial scope of the treaty’s application has grave ramifications for the protection of human rights under U.S. power or effective control around the world. We would urge the Committee to issue specific guidance on the extraterritorial applications of the treaty, the conduct of officials of a State Party abroad, and its application to people under the power and effective control of a State Party but located outside its territory. We would also request that the Committee once again urge the formal withdrawal of existing U.S. reservations to the treaty.

Questions:

1. What is the U.S. doing to ensure that its domestic law and practice are consistent with the Covenant? What affirmative steps has the U.S. taken to enact legislation implementing the ICCPR? Has the U.S. considered withdrawing those reservations that are inconsistent with the treaty’s object and purpose, in particular, those to Article 6, para. 5 (in light of the recent U.S. Supreme Court decision overturning the juvenile death penalty), Article 7, and the non-self-executing declaration?

2. In light of the “federalism” understanding to the Covenant, please explain the types of matters for which state and local governments are obligated to implement the Covenant, and what authority the federal government has to ensure those obligations in the event state governments fail to act. What measures is the federal government taking to ensure that state and local authorities take appropriate measures for the fulfillment of the Covenant?

3. What affirmative steps has the U.S. taken to inform the legislative, executive and judicial branches of the federal and all state governments of their obligations under the ICCPR and to encourage them to enforce and implement the ICCPR?

Article 1 (Self-Determination)

Native Americans. Due to continuing interference with the property rights of Native Americans, the U.S. is in violation of Article 1 of the ICCPR. The U.S. continues to attack access to and ownership of traditional lands using methods ranging from “gradual encroachment” to harassment via fines and property confiscation. This interference with the self-determination rights of Native Americans constitutes both breaches of U.S.-Indian treaties as well as violations of U.S. property law.

The Western Shoshone Nation reported in their Second Request for Urgent Action to CERD that the U.S. has taken Western Shoshone land in violation of the Treaty of Ruby Valley.[1] The treaty, an agreement between the U.S. and the Western Shoshone Nation, gives the U.S. access to Shoshone lands in exchange for border recognition and fair compensation for land use. The Western Shoshone contend that the U.S. has taken and used Western Shoshone lands and property without fair and adequate compensation or effective Shoshone participation in violation of the treaty. The U.S.’s claim that it acts as a trustee of tribal land is based on the Doctrine of Discovery, which has been denounced by the international community as a remnant of colonialism.

Questions:

1. What is the status of the treaties with Indian Tribes in the U.S.? (i.e., what is their force of law?)

2. How does the U.S. justify continued reliance on the Doctrine of Discovery?

Article 2 (Equal Application of Rights/Effective Remedies for Violations)

Article 2(1) (Non-Discrimination)

Racial Profiling. The U.S. has yet to enact the End Racial Profiling Act, which would require documentation of traffic stops according to the race of the person stopped. A recent Bureau of Justice Statistics report shows that racial profiling by law enforcement officials continues to be a problem in the U.S., with drivers of color being searched, subjected to force or threat of force, and issued tickets at higher rates than white drivers.[2] Contrary to normal practice, the U.S. failed to issue a press release upon the report’s publication and demoted an official who complained about the failure to publicize the report.[3] Racial disparities in the frequency and nature of police contacts with individuals outside the traffic law enforcement context also continue to be reported, and racial disparities in arrest, conviction, and sentencing persist throughout the U.S. See Art. 26 for further discussion.

People with Disabilities. People with disabilities face direct, indirect and systemic discrimination in all aspects of life. The disability perspective should be taken into account when addressing the articles of the ICCPR, in accordance with Commission on Human Rights Resolution 2000/51, para. 11, which invites all human rights treaty monitoring bodies to monitor compliance under relevant human rights instruments to “ensure full enjoyment of those rights by persons with disabilities.”

Immigrants. The U.S. improperly denies or fails to ensure various ICCPR rights to immigrants in violation of Articles 2 and 26 of the ICCPR. In particular, the U.S. discriminatorily denies workers in irregular status freedom of association rights and effective access to the juridical process and to the courts in a number of circumstances. See Arts. 2(3), 14 & 22. The Inter-American Court of Human Rights has found a violation of Arts. 2 and 26 in its Advisory Opinion on the Juridical Condition and Rights of the Undocumented Migrants, OC-18, concerning the labor rights of irregular migrants.[4]

Questions:

1. What steps are being taken to reduce racial disparities evident at all stages of the U.S. criminal justice system, from initial contact with law enforcement officials through sentencing? What progress has been made toward uniform data collection at the federal, state, and local levels in order to monitor discriminatory patterns with respect to (1) police contacts with individuals and (2) use of force by law enforcement officers? Does data collection track use of excessive force by law enforcement officers by the race, age, location, disability, gender, gender identity, and sexual orientation of the individual whose rights have been violated?

2. What steps are being taken to eliminate discriminatory targeting by police, law enforcement and other national security agencies of individuals of Arab, Middle Eastern, or South Asian descent as part of U.S. anti-terrorism measures?

3. What is the U.S. doing to prevent discrimination concerning rights recognized in the ICCPR based on “other status,” such as disability or immigration status?

For additional questions see Art. 3 (concerning discrimination against women); Art. 6 (concerning the death penalty); Art. 17 (concerning abortion restrictions); Art. 24 (concerning school segregation and disproportionate suspension of children of color); Art. 25 (concerning voting rights); and Art. 26 (concerning disaster relief, criminal justice and environmental racism in Puerto Rico).

Art. 2(3) Effective Remedy

Individuals whose rights under the Covenant have been violated often do not have an effective remedy. Courts provide the primary mechanism for persons in the U.S. to raise violation of their rights, but the U.S. does not recognize an individual right of action for ICCPR violations. Individuals seeking redress for rights violations must rely upon domestic laws, which often do not fully protect Covenant rights. In addition, recent changes to U.S. law have resulted in the restriction of access to courts for particularly vulnerable populations and immunity for certain government officials.

Prisoners’ Rights. In 1996, the U.S. passed the Prison Law Reform Act (PLRA), which prohibits prisoners from bringing civil claims based on conditions of confinement unless they have exhausted administrative remedies. This often puts inmates in the position of complaining to the same officer who has beaten or sexually abused them, setting them up for possible retaliation. The PLRA also bars claims based on emotional and psychological mistreatment unless they are accompanied by physical injury. For example, a prisoner who is forced to parade around naked, ridiculed and taunted is denied access to courts under the PLRA.[5]

In 1996, the U.S. also passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which limits the ability of detained individuals to bring habeas corpus claims – challenging the constitutionality of their ongoing detention – in federal court.[6] The current Congress is considering legislation that would even further restrict habeas review in federal court.[7]

Immigrants’ Rights. Over the past ten years, the U.S. has similarly restricted judicial review of immigration decisions. In 2002, the U.S. drastically cut back the number of appeals allowed for individual non-citizens (including those lawfully present). As a result, a body known as the Board of Immigration Appeals (BIA) began summarily affirming deportation orders without written legal opinions at an unprecedented rate. In 2005, Congress passed the REAL ID Act, further curtailing judicial review of many issues relevant to deportation decisions. As a result of these changes, most immigrants challenging deportation now find appeal to a higher authority impossible to obtain, and those whose cases are reviewed are not sufficiently protected against illegal deportation. See Art. 13 for further discussion.

Undocumented Workers. The Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), has limited judicial remedies for undocumented workers who are illegally fired from their work for exercising freedom of association rights under Art. 22. The decision found that they are not entitled to compensation for lost wages, which is the only individual remedy for such violations. As a result of the Hoffman case, some state courts have refused to accord undocumented workers compensation for wages lost due to work-related injuries and on-the-job discrimination. The Inter-American Court of Human Rights has recently stated that irregular migrants “possess the same labor rights as those that correspond to other workers . . . and [the State] must take all necessary measures to ensure that such rights are recognized and guaranteed in practice. Workers, as possessors of labor rights, must have the appropriate means of exercising them.”[8]

Enemy Combatant Detainees. These restrictions on court access are mirrored by U.S. treatment of detained individuals in the “war on terror.” The Executive Branch of the U.S. government has consistently asserted that courts have no business hearing cases brought by detainees in Guantánamo or elsewhere, that it has the unconstrained authority to label any individual allegedly connected to the “war on terror” an “enemy combatant” and to detain this person indefinitely, and that it is justified in using laws meant to detain material witnesses to indefinitely detain, without meaningful court oversight, suspects in the “war on terror.”

In January 2006, President Bush signed legislation (the Graham-Levin amendment to the Defense Authorization legislation) that shields the treatment of detainees in Guantánamo Bay from judicial review. The legislation prohibits detainees in Guantánamo Bay from bringing habeas claims in federal court challenging the lawfulness of their ongoing detention or raising any other claim regarding the use of torture and/or other cruel, inhuman, and degrading treatment.[9] See Art. 9 for further discussion.

Civil Rights Claims. Recent Supreme Court cases have also limited the ability of individuals to sue for civil rights violations. The Supreme Court has held that the Constitution’s Eleventh Amendment immunity for states prohibits state employees from suing for age and disability discrimination.[10] The Court has also held that individuals have no right of action for violation of disparate impact regulations prohibiting federally funded entities from discriminating based on race, color or national origin.[11] With regard to violence against women, the Court struck down a civil remedy under the Violence Against Women Act, holding that Congress did not have the power to create the cause of action[12] and refused to apply the federal civil rights remedy to local officials who ignore a prior mandatory judicial protective order.[13]

Questions:

1. What, if any, effective judicial and other remedies are provided to certain individuals, including prisoners, immigrants and persons associated with the so-called “war on terror,” for violations of their rights and freedoms under the Covenant?

2. What is the position of the Executive and what has it done with regard to recent Supreme Court decisions limiting individuals’ ability to privately enforce rights guaranteed by federal civil and labor rights statutes and state court decisions limiting state labor law protections for immigrants?

3. What is the position of the Executive on the increasing limitations on the use of habeas corpus in U.S. courts, what measures has the U.S. taken to ensure that individuals and groups of individuals (including immigrants, prisoners and detainees in the “war on terror”) retain their right to challenge their detention and to seek an effective remedy in the courts?

For additional questions see Art. 3 (concerning the lack of federal remedies for gender-based violence and the failure of state actors to protect against such violence).

Article 3 (Equal Rights of Men and Women)

Abstinence-Only Education. The U.S. is in violation of Art. 3 because it funds and promotes sexual education programs that sanction abstinence as the sole method of pregnancy and disease prevention.[14] Abstinence-Only programs censor truthful and practical information about sexuality, contraception and abortion, thereby impeding a young person’s ability to protect against unintended pregnancy and sexually transmitted infections.[15] This censorship particularly harms girls and women by subjecting them to the risks of unintended pregnancy and disease, including HIV/AIDS. These programs overwhelmingly promote damaging sex stereotypes and severely restrict the use of more effective, less discriminatory programs that teach comprehensive sexuality education.

Violence Against Women. Although the right to protection from domestic and gender-based violence is not explicit in the Covenant, the Human Rights Committee has recognized since the early 1990s that the Covenant applies to and commits States Parties to ensure women’s and children’s right to protection from gender-based violence, including domestic violence, and to provide effective remedies for such violence committed by official and private actors.

While the federal Violence Against Women Act ("VAWA") (discussed in ¶¶ 81-86 and Annex II of the U.S. Government's Second and Third Periodic Report) reflects a serious effort to encourage, through offering grants, programs to prohibit gender violence and to protect as well as support the victims of private gender violence, it fails in some key respects to adequately address the several critical aspects of the problem.

As a result of two U.S. Supreme Court cases decided after VAWA was enacted, United States v. Morrison, 529 U.S. 598 (2000), and Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005), there is no federal civil remedy to compensate women (1) for violence by private actors or (2) for the failure of a state actor (such as the police) to protect women from and prevent domestic violence. Availability of state law remedies vary from state to state. Most state laws immunize state actors for failure to take protective action. Recognizing the heightened danger for immigrant battered women who depend upon spouses to gain legal status in the U.S., VAWA also provides for the possibility that these women can self-petition. This critical remedy is not being implemented properly; nor is it available to many immigrant battered women because it does not provide them with legal assistance or with materials in their languages. Moreover, there are no federal laws specifically prohibiting employment and housing discrimination against victims of domestic violence, thus forcing women to choose between their safety and their economic security. Because VAWA does not set and implement a national standard, existing protection for domestic violence victims is an uneven patchwork of state judicial decisions, state legislation, and municipal ordinances.

Questions:

1. What steps is the U.S. taking to ensure that any sexual education program it funds does not perpetuate sexual stereotypes or stigmatize sexual conduct outside of heterosexual marriage? How will the U.S. ensure that funded programs provide accurate information about condom effectiveness, abortion and other matters related to sexuality? What affirmative steps does the U.S. intend to take to promote funding programs which provide comprehensive information concerning sexuality, contraception and disease prevention?

2. In light of Morrison and Castle Rock, what steps has the U.S. taken, or will it take, to fulfill its obligations under the Covenant to provide victims of gender-based violence with effective federal civil remedies for domestic violence by private actors, and for the failure of non-federal officials to prevent such violence by enforcing orders of protection issued by courts? Why did the U.S. fail to enact federal legislation introduced in the U.S. Congress, most recently in 2005, specifically prohibiting employment and housing discrimination against domestic violence victims and providing them with unpaid employment leave?

For Additional Questions see Art. 7 (torture and inhuman treatment); Art. 8 (concerning trafficking in persons); Art. 17 (concerning abortion restrictions); and Art. 23 (concerning the promotion of marriage as a means of poverty prevention).

Article 6 (Right to Life)

Use of the Death Penalty. It is pleasing to see that moratoriums on the death penalty have been enacted in several states that previously had the death penalty.[16] However, there is also a concern that executions will increase in other states and that the federal government is expanding application of the death penalty by using the Racketeer Influenced and Corrupt Organizations (RICO) Act to charge persons with capital crimes based on conspiracy theories rather than on their own involvement with the alleged crime. Statistics also indicate that the death penalty is imposed disproportionately on minorities in the United States.[17]

Death Row Phenomenon. In many states the death penalty is imposed after lengthy prison sentences. In California for example, the latest executions have involved persons who had served at least nine years in prison and more than half of whom had served over 15 years in prison. These long sentences may result in the “death row phenomenon,” defined as a combination of circumstances to which a prisoner is exposed after being sentence to death and placed on death row,[18] which various international bodies have deemed to violate the prohibition against torture and cruel, inhuman or degrading treatment or punishment.

Questions:

1. What is the U.S. doing to ensure that the death penalty is only imposed for cases involving the most serious crimes and that it is not applied in an arbitrary manner?

2. What steps is the U.S. taking in order to ensure that Articles 2 and 26 are complied with in the application of the death penalty?

3. What steps has the U.S. taken to assess whether long sentences prior to the execution are resulting in a violation of Article 7?

4. Given that the death penalty for juveniles was found to be unconstitutional by the U.S. Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), (a decision in which the Court referenced international law), is the U.S. taking affirmative steps to withdraw its reservation to Article 6 in regard to the prohibition of the death penalty for minors?

For Additional Questions see Art. 17 (concerning abortion restrictions).

Article 7 (Freedom from Torture and CIDT)

Police Interrogations. According to the U.S., the prohibition of the use of coerced statements in criminal proceedings in the Fifth Amendment of the Constitution provides sufficient protection against the use of torture and brutality during police interrogations. However, in the State of Illinois, following systemic torture by Chicago Police officers under the direction of former Lt. Jon Burge, many men are still serving prison sentences for convictions based on confessions that likely were obtained through torture. Similar incidents have been reported in other jurisdictions, and have likewise not resulted in systemic redress.

Rape and Sexual Abuse. Rape, sexual abuse and sexual harassment have been repeatedly documented in U.S. and state prisons and jails, and authorities have committed, permitted and ignored the abuse at the same time that judicial and other remedies against abuse have been cut back. Persons who are perceived as lesbian, gay, transsexual, or transgender are at particular risk. It is accepted in international law that rape and various forms of sexual violence and abuse, as well as threats thereof, generally constitute torture. For example, according to the UN Special Rapporteur on Torture, “rape or other forms of sexual assault …in detention [are] a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constitute[ ] an act of torture.” (U.N. Commission on Human Rights, UN Doc. E/CN.4/1992/SR.21, 21 February 1992, par. 35.)

Sexual Misconduct of Police Officers. Credible evidence exists that rape, sexual assault, and sexual harassment of women, including transgender women, as well as of transgender and gender non-conforming individuals who do not identify as women, by on-duty law enforcement officers is a serious problem in the U.S. Sex workers, transgender women, and homeless people in particular report endemic extortion of sexual favors by police officers in exchange for leniency or to avoid routine police violence against them, as well as frequent rapes and sexual assaults by law enforcement officers. Sexual harassment and assault of women stopped by police for traffic infractions have also been reported in a number of jurisdictions. Latina immigrants, both documented and undocumented, report routine rapes and sexual assaults by local law enforcement and border patrol officers in the borderlands between Mexico and the U.S. While several high profile criminal prosecutions of officers charged with sexual assaults or rapes of women have taken place, individuals and advocates across the country report that such conduct is far more pervasive than the limited number of such prosecutions would suggest, and often takes place with impunity.

Use of Tasers. Tasers (dart-firing electro-shock weapons) are intended to be an alternative to the use of lethal force. In many cases, Tasers are used without lawful justification, and often lead to serious medical consequences, up to and including death. Their use against the elderly, women including pregnant women, individuals with mental health problems, and young children has been reported across the country. Amnesty International reports that more than 114 people have died shortly after Tasers were used on them in the U.S. and Canada since 2001. (See Amnesty International report at .) Because electro-shock weapons have the capacity to inflict severe pain without leaving substantial marks, they are particularly open to abuse.

Involuntary Psychiatric Interventions. Involuntary psychiatric interventions with mind-altering drugs and procedures such as electroshock can cause profound suffering and increased disability, and disrupt the individual's personality and identity. Such interventions appear to violate the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. Aversive interventions that restrict liberty, such as physical and chemical restraints, raise similar concerns. For more information, see and p.60, Section IV Inhuman and degrading treatment, part B Applications, 4. Protection from coerced treatment.

Violations of “Non-Refoulement.” The U.S. has stated that it is negotiating agreements with ten countries to which Guantánamo detainees would be transferred. At least three countries to which the majority of the detainees would be transferred (Saudi Arabia, Yemen, and Afghanistan) have deplorable human rights records. In addition to the Guantánamo detainees, there has also been ample documentation of other individuals detained as part of the U.S. campaign against terrorism, frequently after being abducted in foreign countries, and then rendered to countries in which the U.S. government has itself documented the practice of torture in interrogations or detention. It is not publicly known how many people the Government has “rendered” to be tortured, although estimates range from 150 to the thousands.[19] While the U.S. has stated that it does not render suspects to third countries without “diplomatic assurances” that they will not undergo torture, more and more documented cases are emerging which show that these diplomatic assurances are meaningless when they come from countries with well-documented practices of abusive interrogation. Such assurances are also unenforceable and the situation of detainees is not monitored by the U.S. once the transfer is made.

Additionally, U.S. guidelines which define torture as requiring official custody of the victim and limit the legitimate scope of acquiescence under Art. 1 make it nearly impossible for women fleeing gender-based and domestic violence successfully to petition for non-refoulement.

Effects of Prolonged Indefinite Detention on Guantánamo Detainees and Treatment During Hunger Strike. The Guantánamo detainees have suffered debilitating psychological effects due to their indefinite detention which has lasted longer than four years. Physicians for Human Rights has documented these effects, often referred to as post-traumatic stress disorder, which include “depression, thoughts of suicide and nightmares, memory loss, emotional problems” and “incoherent speech, disorientation, hallucination, irritability, anger, delusions, and sometimes paranoia.”[20] To protest their indefinite detention and mistreatment, several Guantánamo detainees have engaged in hunger strikes. The U.S. has responded by often violently force-feeding the detainees through nasal tubes, using dirty equipment in an unsterile environment, and has refused to notify families or consulates regarding the detainees’ health status or to provide prisoners with access to their families or religious counselors.  The U.S. has also refused to allow independent medical professionals, other than the ICRC, to have direct access to hunger striking prisoners.

Failure to Investigate Abuses and Hold Perpetrators Accountable for Torture. U.S. failure to prosecute the high level military and civilian officials responsible for authorizing torture and/or creating the climate in which torture has occurred, or is occurring, and its failure to take effective steps to stop torture when informed thereof violate Article 7. Official government reports have documented ongoing horrific abuses inflicted on detainees in U.S. custody from Abu Ghraib prison to Afghanistan to Guantánamo. (See torturefoia). However, despite over 300 official investigations, criminal, military and administrative in nature, no independent commission or investigation into the use of torture has yet taken place, and only low level military personnel have been subject to military prosecution. (See Human Rights First’s report, Getting to Ground Truth: Investigating U.S. Abuses in the “War on Terror,” available at ). The recent legislative amendment (introduced by Senator McCain) banning torture and CIDT is a welcome affirmation of the U.S.’s obligations under the ICCPR and the CAT. However, the President’s “signing statement” reserves to himself a right to violate the statute, and the Graham-Levin Amendment to the same bill denies detainees in Guantánamo Bay the ability to bring legal action seeking relief from the use of torture or cruel and inhumane treatment. And it implicitly authorizes the Department of Defense to consider evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guantánamo Bay.

Questions:

1. Please detail all federal reports and investigations of federal, local and state law enforcement agencies' use of brutality during police interrogations and outline available reporting mechanisms for such brutality. What measures is the U.S. taking to promulgate videotaping and audio taping of questioning of all criminal suspects - including those charged with "terrorism related" offenses - in order to prevent the use of torture or CIDT to elicit confessions?

2. What standard does the U.S. use to define what constitutes torture or CIDT involving, for example, rape, sexual assault and abuse, forced nudity, invasive searches of persons, and coerced performance of sexualized acts? Does the U.S. definition of torture and CIDT extend to rape, sexual assault and abuse committed by federal, state, and local law enforcement officers acting in their official capacity with respect to all detainees and prisoners, including women and lesbian, gay, transgender and transsexual people in their custody as well as by U.S. military personnel, the CIA, and private contractors? What measures has the U.S. undertaken to prevent and punish such conduct in the different contexts identified above?

3. What measures is the U.S. taking to monitor, document, and address sexual assault and rape of women and transgender individuals in police custody by law enforcement officers while policing communities and in police controlled short term detention facilities? Does the U.S. have the capacity to disaggregate data by gender, gender identity, sexual orientation, age and race in monitoring these concerns? Please provide a disaggregated list of reported events and the victims’ status to the extent the information is available.

4. What steps has the U.S. taken to ensure that federal, state and local law enforcement agencies adopt strict guidelines, reporting and discipline with respect to the use or display of Tasers? Are departments required to document the circumstances under which Tasers are used, including the gender/gender identity, race, age, mental and physical condition, and location of the individual against whom it was used? Is this data regularly monitored and available to the public? Does the federal government require federal, state and local law enforcement authorities to conduct rigorous, independent and impartial inquiries into the use of Tasers and other electro-shock weapons?

5. What steps is the United States taking to abolish practices that violate the mental and bodily integrity of people with psychiatric disabilities?

6. What procedures are in place to ensure that the U.S. upholds its non-refoulement obligations when conducting transfers of detainees under its jurisdiction, power or effective control to sites outside the United States? What actions have been taken to investigate the actions of U.S. officials or U.S. contractors in cases of “extraordinary rendition” that may amount to conspiracy in, or aiding and abetting of, torture? Please inform the Committee of the steps taken by U.S. authorities to monitor the conditions of confinement and interrogation of individuals it transfers, and whether the standards for non-refoulement clearly include women seeking protection from gender and domestic violence where the foreign state is unable or unwilling to protect.

7. What information does the U.S. have regarding the psychological effects of the indefinite detention of the Guantánamo detainees, and what steps have been taken to address, prevent, minimize, or treat such effects? How does the U.S. justify denying the Guantánamo detainees access to culturally-appropriate religious, psychiatric, and psychological professional assistance?

8. How does the U.S. justify denying hunger-striking prisoners timely phone or personal contact with their family members when prisoners are deciding whether or not to refuse food, or prohibiting independent medical professionals from the U.S. to meet with and evaluate the physical and mental health of the hunger-striking prisoners?

9. How will the U.S. ensure that torture and CIDT is prosecuted and does not occur in any location under its jurisdiction, power or effective control? How does the U.S. propose to give effective remedy to those who have been subject to torture or CIDT domestically and internationally?

For Additional Questions see Art. 6 (concerning Death Row Phenomenon).

Article 8 (Prohibition of Slavery and Forced Labor)

Each year, the U.S. government deports hundreds of thousands of migrants from U.S. borders and U.S. detention facilities.  Among those deportees certainly are migrants who have been trafficked and for whom deportation means return into the hands of their traffickers to be retrafficked.  The U.S. government estimates that between 14-17,000 persons are trafficked into the United States each year.  This number does not include the number of people who are deported annually prior to being identified as potential victims.  The Victims of Trafficking and Violence Protection Act (TVPA) of 2000 and its reauthorization acts of 2003 and 2005 were adopted to provide assistance and immigration status for trafficking victims.  Those who are certified by a federal law enforcement agency as being potentially integral to the prosecution of traffickers or the breaking up of a trafficking syndicate may obtain “continued presence” status, which allows victims to remain in the U.S. during the investigation and trial of traffickers and to receive refugee benefits. Victims may also petition for a T-visa, which allows them to stay in the U.S. for three years and potentially to adjust their status to permanent resident; to obtain a T-visa, they must either be certified by a law enforcement agency as a victim of a “severe form of trafficking” or successfully demonstrate with compelling evidence that (s)he has been a victim of a severe form of trafficking.  Certification is at the discretion of the law enforcement agency.  Since the passage of the legislation, fewer than 1,000 victims have been located and assisted annually.  For example, in 2004, the Department of Homeland Security approved only 124 T-visas and granted only 484 continued presence requests.

Question:

1. What concrete actions are responsible federal agencies taking to identify possible victims of trafficking, including migrant domestic workers and those forced into sex work, prior to deporting undocumented migrants? Please provide a list of continued presence requests and visas sought and their status and prosecutions undertaken, disaggregated by type of labor for which the person is trafficked, sex, nationality, race or ethnicity, and age.

Article 9 (Right to Liberty and Security of Person)

CSRT Reviews and Military Commissions at Guantánamo Bay. Combatant Status Review Tribunals provide detainees with a one-time administrative determination as to whether they are "enemy combatants", the supposed basis for their detention. Instituted in response to Supreme Court rulings and challenges that the detainees at Guantánamo Bay were entitled to have the legality of their detentions reviewed, CSRTs are inadequate both in terms of the procedures provided and the substantive laws applied during the hearings. In terms of procedure, according to the Department of Defense (DOD), CSRTs as they currently stand do not constitute legal proceedings-even though they determine whether a detainee will remain incarcerated or not. Deemed outside the rubric of "legal proceedings" the DOD has decided to deny the right to assistance of legal counsel, limit the detainees' access to relevant information, deny the detainees the opportunity to rebut determinations made outside the process by agencies such as the C.I.A., and pre-judge detainees as "enemy combatants.” See Human Rights Watch, Making Sense of the Guantánamo Bay Tribunals, August 14, 2004, a Human Rights Watch Backgrounder, . In addition, the U.S. has referred individuals detained at Guantánamo for prosecution by military commission. The proposed military commission procedures pose serious due process concerns. See generally, “Briefing on U.S. Military Commissions,” a Human Rights Watch Backgrounder, .

The U.S. asserts that a plain reading of Article 2(1) precludes an obligation to apply the terms of the treaty to individuals detained outside the geographic limits of U.S. territory. However, detainees held by the U.S. at Guantánamo and other locations outside U.S. territory as described below are wholly within the power and effective control of U.S. forces, which obligates the U.S. to respect and ensure the rights laid down in the Covenant. (See Human Rights Committee General Comment 31 (2004).)

Habeas Relief for Guantánamo Bay Detainees. The U.S. Supreme Court’s June 2004 decision in Rasul v. Bush confirmed that Guantánamo detainees can bring habeas corpus petitions to challenge the legal and factual basis for their detentions in U.S. courts. In September 2005, the United States Court of Appeals for the D.C. Circuit heard argument regarding whether the Guantánamo detainees have any further substantive rights, domestic or international, to be enforced through the habeas petitions. In January 2006, President Bush signed legislation passed by Congress to eliminate the ability of Guantánamo detainees to file habeas petitions in federal courts.[21] The legislation also purports to prohibit Guantánamo detainees from challenging the facts behind their designation as an “enemy combatant,” even if new evidence comes to light; any mistreatment in detention or during interrogation; or rendition to a third country where they might be subjected to torture or other forms of cruel, inhuman, and degrading treatment. In addition, it fails to clearly prohibit the Department of Defense from considering evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guantánamo Bay. See Art. 2(3) for further discussion.

Habeas Relief for Non-Citizens. The U.S. Government has recently imposed severe restrictions on the availability of habeas corpus remedies in cases involving refugees and immigrants under the REAL ID Act. Restriction or elimination of the habeas corpus remedy removes one of the most effective methods for challenging the legality of government action in the courts, and for preventing arbitrary detentions and removals. See Art. 2(3) for further discussion.

Concern for Release of Cleared Guantánamo Detainees. The U.S. continues to hold exonerated detainees at Guantánamo. The U.S. has stated that 15 Uighurs and 2 Uzbeks held at Guantánamo who had been cleared by the military’s own CSRT proceedings could not be returned to their home countries because of fears of torture and must stay imprisoned at Guantánamo until it can find a third country to accept them. On December 22, 2005, a District Court Judge found that the continued detention of two of the Uighur detainees who have been detained nine months after they were found to be “no longer enemy combatants” is unlawful, but that a federal court has no relief to offer.[22]

Secret Prisons around the World. The U.S. is holding an unknown number of terrorism suspects in other secret overseas locations and is refusing either to acknowledge the detentions or to give information on the fate or the whereabouts of these detainees. Some are reported to have been tortured in custody.[23] See above under CSRT Reviews and Military Commissions at Guantánamo Bay for a description of the U.S. assertion regarding the geographic limitations of the Covenant.

Post 9/11 Detention of Muslim Non-Citizens of Arab or South Asian Descent. Immediately following September 11, 2001, hundreds of Muslim non-citizens of Arab or South Asian descent were rounded up and detained through the arbitrary enforcement of minor immigration laws. Many of them were then labeled as of “special interest” to the September 11 criminal investigation, detained until cleared of any connection to terrorism, often long after the expiration of any legitimate immigration purpose, and then deported. They were denied the due process rights they would have been entitled to had they been accused of crimes. Many were held in extremely restrictive confinement and subjected to systematic verbal and physical abuse.[24]

Use of “Material Witness” Law to Detain Individuals without Charge. Following the September 11 attacks, the Department of Justice detained 70 men—all but one Muslim—under a narrow federal law that permits the arrest and brief detention of “material witnesses” who have important information about a crime, if they might otherwise flee to avoid testifying before a grand jury or in court. Almost half of the witnesses were never brought before a grand jury or court to testify, and only a few were ever charged with crimes related to terrorism. The U.S. has apologized to 13 of these men for wrongfully detaining them.[25]

Questions:

1. Please provide detailed information regarding the incorporation of Article 9 into U.S. law and its implications for U.S. policy in the following areas: (a) designation and detention of “enemy combatants” by the United States; (b) detention of individuals under “material witness warrants”; (c) detention for immigration violations. What procedural safeguards govern these processes to ensure that any person deprived of his liberty by arrest or detention can take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention, and order release if the detention is not lawful?

2. How can the curtailment or elimination of habeas corpus relief for detainees held at Guantánamo and for refugees and immigrants within the territorial United States be reconciled with obligations regarding individuals’ right not to be subjected to arbitrary or unlawful detention?

3. What efforts is the U.S. making to release and relocate cleared Guantánamo detainees, including granting them entry into the U.S. and/or finding countries that will accept them?

4. How is the U.S. government complying with its fair trial obligations under Article 9 with regard to persons held by the U.S. at Guantánamo and in secret locations overseas? What measures has the U.S. taken to afford other nations the de facto and de jure opportunity to ensure protection and respect for the rights described in Article 9 for detainees under the power or effective control of U.S. forces outside the geographic territory of the United States?

5. Please provide information regarding the numbers, identities, and basis for detention of all persons detained pursuant to “material witness warrants” since 9-11, as “special interest” detainees held on immigration charges in the aftermath of 9-11, and as “enemy combatants” or terrorism suspects at Guantánamo or other U.S.-run detention facilities.

Article 10 (Treatment of Individuals Deprived of their Liberty)

Immigration Detainees. Political asylum seekers who are awaiting adjudication of their applications for asylum and immigrants who are in civil deportation proceedings are often held in state and county prisons and jails, where they are subjected to harsh detention conditions. They are often co-mingled with the criminal population. This practice is in clear violation of Article 10 and the U.N. Standard Minimum Rules for the Treatment of Prisoners.

“Supermax” Prisons. Supermaximum security prisons (supermaxes) and control units that keep prisoners in conditions of extreme isolation and sensory deprivation house a much higher proportion of prisoners in the U.S. than in other nations. Once these expensive beds, which have been described as high-tech dungeons, have been built, corrections departments feel pressure to keep them filled.

Prisoners with Mental Health Problems. It is estimated that at least one in six U.S. prisoners experiences mental health problems, including schizophrenia, bipolar disorder, and major depression. Almost one quarter of women in prison and local jails has been identified as having mental health problems. There are three times as many men and women with mental health problems in U.S. prisons as in psychiatric hospitals.[26]

Transgender Prisoners. Transgender people are generally classified according to their genital status for purposes of prison housing, regardless of how long they may have lived as a member of the other gender, and regardless of their gender identity - a situation which puts transgender women in particular at great risk of sexual violence. Sometimes transgender women at risk of violence in male prisons are put into "administrative segregation." While this is believed to provide increased safety (but may have the opposite effect due to inmate isolation and attendant vulnerability to attack by correctional officials and other inmates) it also results in significant deprivation of rights, for example through exclusion from recreation, educational and occupational opportunities, and associational rights.

Questions:

1. What measures is the U.S. taking to ensure that individuals in immigration proceedings are treated with humanity and respect and in accordance with their status as civil detainees?

2. Given the extreme conditions in supermaximum security prisons where prisoners are intentionally dehumanized and no opportunities for rehabilitation are offered, what standards are used for determining who is sent to these facilities and what review procedures are in place to determine whether their use is limited to individuals who cannot be housed within traditional high security units?

3. Are there national training standards for prison staff to deal with the problems of people experiencing mental health problems and to ensure that adequate and appropriate services and support are provided? Given the well-documented adverse mental health effects of solitary confinement, how many prisoners with diagnosed mental health problems are currently held in solitary confinement and what measures are being taken to monitor, address and protect prisoners in long term isolation from mental health problems?

4. What steps has the U.S. taken to prevent isolation and psychological torture of transgender and intersex people in federal and state prisons resulting from the prison systems’ inability to classify intersex prisoners as either male or female and unwillingness to classify transgender prisoners based on their gender identity? What steps has the U.S. taken to develop model policies and best practices regarding classification and housing of transgender and intersex people in federal and state prison that uphold their right to be treated with respect for their inherent dignity?

For Additional Questions see Art. 7 (concerning custodial rape and sexual abuse, involuntary psychiatric interventions, and treatment of “enemy combatant” detainees); Art. 24 (concerning the transfer of children into adult criminal proceedings).

Article 13 (Expulsion of Aliens)

Expedited Removal. Section 1225 of the United States Code establishes the Expedited Removal system, including the creation of the credible fear screening process for asylum-seekers. The U.S. Commission on International Religious Freedom, charged by the U.S. Congress with assessing the Expedited Removal system’s impact on asylum-seekers, concluded in their 2005 Annual Report, “…serious problems were identified which place some asylum seekers at risk of improper return (refoulement).” The Commission also found that most asylum seekers in Expedited Removal are detained under conditions which may be suitable in the criminal justice system, but are entirely inappropriate for asylum seekers fleeing persecution.”[27]

Board of Immigration Appeals Streamlining. The Board of Immigration Appeals (BIA) implemented its current “affirmance without opinion” regulations in August 2002.[28] Since that time, thousands of summary decisions have been issued by the BIA. In October 2003, the law firm of Dorsey & Whitney, LLP conducted a study for the American Bar Association on the Board of Immigration Appeals. They noted, “In many instances the federal courts are finding Immigration Judge opinions that are ‘sheer speculation,’ or ‘based upon a fundamental misunderstanding of the law,’ or ‘arbitrary and capricious,’ or ‘clear error.’” The U.S. Commission on International Religious Freedom, in its report assessing the Expedited Removal process and its impact on asylum-seekers, found that prior to the BIA streamlining regulations the BIA sustained 24% of appeals of immigration judge denial of asylum, but following the regulatory changes only 2-4% of appeals have been granted.[29] On December 26, 2005 The New York Times reported that, “Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.”[30]

Asylum Seeking Children and Access to Counsel. Unaccompanied minors suspected of being present in the United States without immigration authorization, like adults, are subject to removal from the United States. The U.S. has made significant improvements in the system of providing shelter care to unaccompanied alien children, transferring responsibility for the physical custody of such children from the Department of Homeland Security to the Department of Health and Human Services. This development is welcome. Nonetheless, U.S. immigration law makes no provision for the representation of unaccompanied juveniles in removal proceedings, either through a guardian ad litem system or through the provision of legal counsel by the United States. Like adults, children, regardless of age, must locate and retain private representation in removal proceedings or speak for themselves. While some charitable organizations attempt to provide free legal counsel to alien children in removal proceedings, not all children have access to attorneys.

Gender-Based Asylum. The entitlement of women fleeing persecution based on domestic or other gender-based violence where the state of origin is not willing or able to protect them is in limbo, pending issuance of guidelines by the Justice Department. As a consequence, decisions on such claims vary throughout the country and women are being returned to extremely dangerous conditions. Again, indigent asylum petitioners do not have a right to free legal counsel and many do not have access to charitable services.

Questions:

1. How does the United States ensure that obligations under the ICCPR are met to protect asylum-seekers against violation of non-refoulement? How do the United States’ various summary procedures, including expedited removal procedures, fulfill the United States’ obligations to ensure that aliens be allowed to submit the reasons against expulsion and to have their cases reviewed by, and be represented for the purpose before, the competent authority? What access to representation are asylum-seekers afforded throughout the entire expedited removal process, including interrogations at the port-of-entry?

2. How does the United States ensure that obligations under the ICCPR are met when the judicial review process is curtailed? How does the streamlined administrative immigration appeals process fulfill the United States obligations under the Convention?

3. How does the United States ensure that obligations under the ICCPR are met while aliens are being expelled, particularly in the case of unaccompanied juveniles and women fleeing domestic or gender-based violence?

For additional questions, see Art. 23 (concerning mandatory deportations separating families).

Article 14 (Equality Before the Courts)

Immigrant Access to Courts. Following the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, undocumented workers who are illegally fired from their work for exercising freedom of association rights are not entitled to compensation for lost wages, a practice that directly violates Art. 22 of the ICCPR (see below). Moreover, as a result of the Hoffman case, some state courts have refused to accord undocumented workers compensation for wages lost due to work-related injuries and on-the-job discrimination. Further, U.S. law against citizenship discrimination does not protect these workers.

Migrant workers in irregular status and certain guestworkers are refused access to attorneys under federally-funded legal services programs, in violation of Art. 14 and of the Inter-American Court of Human Rights Advisory Opinion on the Juridical Condition and Rights of the Undocumented Migrants, OC-18, ¶¶ 121, 160. Further, no nationwide policy protects these migrants in irregular status who are victims of labor law violations from disclosure of their status and deportation as a consequence of their involvement in judicial proceedings.

Access to Counsel in Criminal Proceedings. Article 14 requires that all persons are treated equally under the law, including that any person facing criminal charges have the assistance of competent counsel available at the initiation of criminal proceedings. The United States federal and state governments are in violation of Art. 14 because of a failure to guarantee effective assistance of counsel, which jeopardizes the integrity of the criminal court process.

Continued Incarceration of COINTELPRO Targets. Currently, 108 individuals, who were targeted by the FBI’s COINTELPRO program remain in prison. From 1956-71, COINTELPRO targeted domestic dissident groups. Following exposure of the program through an FBI leak, a Congressional Select Committee to Study Governmental Operations With Respect to Intelligence Activities (the “Church Committee”) concluded that the FBI had “conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association (…).” As part of COINTELPRO’s activities, COINTELPRO targets maintain that they were arrested, tried on fabricated charges and dispensed disproportionately long sentences for the crimes charged. These targets were the subject of detailed government files on their private and public lives and their political beliefs, and their political activities were central themes to their trials. Concerned that COINTELPRO’s activities undermined the fairness of trials involving members of the Black Panther Party and the American Indian Movement, in 1981, Amnesty International called for a commission of inquiry and for the retrial of an individual who was targeted for “neutralization” by COINTELPRO. See (footnote 8). Among improprieties alleged in the criminal trials of COINTELPRO targets are: withholding of exculpatory evidence, conduct of trials in a highly prejudicial atmosphere, which vilified the defendants, and torture and cruel and degrading punishment, including beatings, to obtain confessions. These individuals have also been subject to long periods of solitary confinement, disproportionately lengthy sentences and consistent denial of parole.

Questions:

1. What is the U.S. doing to ensure that immigrants in irregular status and certain guestworkers have equal and effective access to the courts and access to remedies for violation of labor rights?

2. What procedures are in place to ensure the provision of adequate counsel for indigent criminal defendants? Does standardized protocol exist that jurisdictions can use as a framework for establishing public defense systems? If so, what are the minimum requirements for establishing effective assistance of counsel and what enforcement mechanisms are in place? What efforts are being made to ensure that sufficient funds are appropriated for indigent defense programs?

3. What is the U.S. doing to guarantee the rights of fair trial and prevent politically motivated arrest, trial and incarceration? What is the U.S. doing to ensure that individuals targeted by COINTELPRO were not improperly convicted and had fair trials?

For Additional Questions see Art. 3 (concerning access by victim of private violence and state failure to protect); Art. 24 (concerning juveniles and the criminal justice system).

Article 17 (Freedom from Arbitrary Interference with Privacy, Family, Home)

Warrantless Communications Monitoring. Recent reports have disclosed that the National Security Agency (NSA) has monitored phone, email, and fax communications of individuals both within and outside the U.S., without any judicial oversight.[31] The Administration has defended the NSA activities as justified by congressional approval of the war on al Qaeda in a Justice Department memo similar to the now-discredited memo justifying the use of torture. However, the U.S. has not derogated from its obligations under Art. 17. See also Art. 19 concerning monitoring by other government agencies.

Abusive Searches. Individuals and advocates report that searches of persons, and particularly of women and transgender individuals, by law enforcement officials are frequently conducted under conditions violating their right to privacy. Such procedures include strip searches conducted on the street in full public view or in police precincts in view of other detainees and officers, often by officers of a different gender than the person being searched; searches conducted in a violent or abusive fashion; and invasive strip searches or body cavity searches performed under circumstances that do not warrant a search under U.S. or international law (for example searches conducted solely for the purpose of degrading and embarrassing the individual). The Human Rights Committee has stated that to ensure the protection of the dignity of a person who is being searched by a state official, a body search should be conducted only by someone of the “same sex.”

Abortion Restrictions. The U.S. is in violation of Articles 2, 6, 17 and 24 because restrictions on abortion services and funding for abortion make the procedure inaccessible for some women, causing women and adolescent girls to resort to unsafe abortions.[32] The Human Rights Committee has found that state denial of abortion services are a violation of articles 2, 7, 17 and 24 of the Covenant.[33] In General Comment 28 of the Human Rights Committee on Equal Rights of Men and Women (issued 2000), the Committee requests that, when reporting under Article 6, States should give information on measures taken to ensure that women do not have to undertake unsafe, clandestine abortions.

Questions:

1. Does the U.S. recognize that its plan derogates from its obligations under Article 17 with regard to domestic spying activities? If so, what steps does the U.S. intend to take to ensure proper judicial and public oversight over communications monitoring by government agencies such that the right to privacy will not be arbitrarily infringed?

2. What policies and practices does the U.S. promulgate and monitor with respect to searches of persons, body cavity searches, and conditions of detention of women and transgender individuals in the custody of federal, state, and local law enforcement officers and agencies in order to respect and protect individuals’ right to privacy?

3. What steps have been taken to address incidences of unsafe abortion among adolescents, as have been documented in the states of Michigan and Texas, where pregnant adolescent girls’ partners physically assaulted them—at the girls’ requests—in order to cause miscarriages?

For additional questions, see Art. 23 (concerning mandatory deportations separating families).

Article 19 (Freedom of Expression)

Criminalization of Dissent. Since 9/11, the Federal Bureau of Investigation (FBI) has been given increased authority to monitor public events and political activity. Activists who are critical of the current administration (including anti-war protestors) have been investigated by the FBI, interrogated, and/or arrested without legal basis. The Department of Defense has also been clandestinely monitoring domestic anti-war and anti-military-recruiting groups.[34] The Department of Justice’s Office of Legal Counsel has issued a five-page legal memorandum, encouraging local police to report suspicious activity at political and anti-war demonstrations to counterterrorism squads. The FBI has set up over 100 Joint Terrorist Task Forces (JTTFs) staffed with FBI agents as well as detectives from local law enforcement agencies who are assigned to work full-time with the FBI. The FBI’s JTTFs have been collecting information about non-terrorist activity, including recording names and license plate numbers of peaceful protesters with no connection to criminal activity and intercepting emails from animal rights, environmental rights and anti-globalization groups.[35]

In August 2004, the Republican National Convention (RNC) prompted hundreds of thousands of people to participate in lawful demonstrations in New York City. Despite the overwhelmingly peaceful nature of the gatherings, New York police arrested more than 1,800 people, most for minor offenses such as disorderly conduct and parading without a permit. Because the police deployed mass-arrest tactics—such as mesh nets to trap groups of people on sidewalks—they ended up arresting many bystanders and individuals engaged in lawful protest activity and then held hundreds of people for more than 24 hours. Many of the people arrested were fingerprinted, with their identifying details being added to government databases in spite of their subsequent court-ordered release.[36]

The Global Gag Rule. The U.S. is in violation of Article 19 because the Global Gag Rule (or Mexico City Policy) restricts the speech of non-governmental organizations. The Global Gag Rule, reinstated by executive order in 2001, conditions United States Agency for International Development (USAID) family planning funding on foreign non-governmental organizations’ agreements that, with their own non-USAID funds, they will not provide referrals for abortion or lobby their government to make abortion laws less restrictive.[37]

The ICCPR applies to non-U.S. citizens living outside the U.S. in the context of the Global Gag Rule. Individuals are subject to the jurisdiction of a state under the ICCPR where a state party has power or effective control of that individual with regard to the substantive rights of the covenant.[38] Many reproductive health organizations are subject to the effective control of USAID. USAID provides such a large proportion of reproductive health funding in the Global South that many organizations must comply with USAID policy to receive the resources needed for their survival.

Questions:

1. What is the U.S. government doing to investigate and punish officials in the FBI, the DOD, as well as in local police departments, for unlawfully monitoring activist organizations and individuals who are engaged in legal and peaceful protest against government actions? How will the government prevent future violations?

2. What has the U.S. government done to investigate police misconduct during the August 2004 protests in New York City?  What policies has the federal government promulgated to ensure that local and state police departments are not violating international legal obligations to protect the rights to freedom of expression and assembly?

3. Please explain how the Mexico City Policy, which prohibits foreign non-governmental organizations dependent on U.S. Agency for International Development family planning funding from expressing a viewpoint supportive of access to safe abortion, is compatible with Article 19 of the Covenant?

Article 20 (Prohibition of Propaganda or Incitement to Discrimination)

Propaganda for War. In Comment 11, the Committee has expressed its concern that states have not implemented appropriate sanctions against propaganda for war, understood as “all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations,” but not including “advocacy of the sovereign right of self-defence . . . in accordance with the Charter of the United Nations.”[39] In the lead-up to the U.S. war against Iraq, Executive Branch propaganda, apparently based on careless, distorted and/or deceptive use of intelligence information regarding Iraq’s purported possession of weapons of mass destruction, including imminent nuclear capability, significantly contributed to building popular and Congressional support as well as some international support for the invasion of Iraq which was illegal under international law and contravened the Security Council’s refusal to sanction such an attack under the Charter.

Incitement to Discrimination. Since September 11, 2001, members of South Asian, Muslim and Arab communities have reported that investigations of hate crimes committed against them have been ineffective. A recent report issued by Amnesty International documents systemic failures on the part of local and federal law enforcement in the investigation and prevention of hate crimes against lesbian, gay, bisexual and transgender individuals, particularly where multiple biases may be at work.[40] It is clear that the existence of federal, state, and local legislation prohibiting bias-motivated crimes is not sufficient to secure individuals’ rights to be free from such violence in the absence of effective enforcement mechanisms.

Questions:

1. What steps is the U.S. taking to fully investigate the issue of negligence or deception in the use of intelligence information purporting to justify the invasion of Iraq, to hold those responsible, including high level officials, and to implement safeguards against such occurrence in the future?

2. What measures is the federal government implementing to ensure consistent, respectful, and effective prevention, investigation and documentation of hate crimes?

Article 22 (Freedom of Association)

Excluded Categories of Workers. The National Labor Relations Act, the federal statute which protects workers’ right to organize, excludes several categories of workers including: agricultural workers, domestic employees, and “independent” contractors. In the public sector, many states deny state and local employees the right to bargain collectively.[41] Despite the U.S.’s contention that workers have the right to organize without interference from federal or state governments, the administration prohibited federal baggage screeners from organizing, eliminated collective bargaining rights for several thousand federal employees, and is considering overturning long standing precedent regarding voluntary recognition of unions by private employers.

Immigrant Workers in Irregular Status. The U.S. is in violation of Articles 2, 22 and 26 of the ICCPR in that it denies immigrant workers in irregular status the same judicial remedies as other workers for violations of their associational and labor rights. The U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB held that undocumented workers who are illegally fired from their work for exercising freedom of association rights are not entitled to compensation for lost wages. Since this compensation is the only individual remedy for such violations, the deprivation of this remedy effectively denies these workers their rights to freedom of association. The International Labor Organization and the Inter-American Court of Human Rights have each condemned this practice. See ILO decision number 2227 and OC-18, cited above in comments on Article 2.

Question:

1. What actions has the U.S. taken to ensure that federal, state and municipal workers can exercise their basic right to freedom of association and the corresponding right to bargain collectively?

2. What steps has the U.S. taken to ensure that the right to freely associate is protected for all workers, including agricultural workers, domestic workers, “independent contractors,” and state and local government employees, graduate research and teaching assistants and workers with disabilities who received rehabilitative services from their employers?

3. What steps has the U.S. taken to comply with international law following the ILO’s and Inter-American Court of Human Rights’ declarations that the Supreme Court ruling in Hoffman Plastic Compounds v. NLRB, violates the labor rights of immigrant workers in irregular status?

Article 23 (Family Life)

Separation of Indigent Families. The U.S. is in violation of Art. 23 because it permits the separation of families based on poverty. In several states in the U.S., children are removed from their parents based on the parents’ homelessness, despite the fact that it requires more resources to take a child into the foster care system than to provide housing for the family.

Promotion of Marriage. The U.S. is in violation of Art. 23(3) and (4) through its practice of funding and maintaining programs that promote marriage as the solution to the poverty often experienced by unmarried women who have children. These programs ignore the various forms of family, such as unmarried couples and their children or single parents and their children, recognized by General Comment 19 on Article 23, and there is no evidence of their effectiveness as a means of poverty prevention. In violation of Article 23(3), these programs impede full and free consent by stigmatizing non-marital families. Marriage promotion programs disproportionately impact the two million women who receive welfare funds—Temporary Assistance to Needy Families Act funds—although the affected population is even larger. Low-income women have a very high incidence of experiencing domestic violence, creating a significant risk that a victim of domestic violence could be encouraged or coerced to marry, or remain married to, an abusive partner. Furthermore, in violation of Article 23(4), these programs perpetuate harmful sex stereotypes by explicitly endorsing the detrimental message that women should rely on men, not themselves, for economic security. (For federal purposes, the definition of marriage is strictly limited to the union of a man and a woman.)

Mandatory Deportations Separating Families. Recent changes to immigration law require that individuals convicted of criminal conduct be deported without any consideration of the effect that the deportation may have on the deportee’s family, including minor children. See 8 U.S.C. § 1182(h). The Human Rights Committee has examined the implications of deportation on the right to family life in several cases involving individual communications and has found that a State must make a reasonable determination whether the interference with family life is proportionate to the State’s interests in removing a specific individual.[42] Deportation without any opportunity for consideration of the impact on the right to family life violates the Covenant.

Questions:

1. What steps is the U.S. taking to ensure that poor families facing the risk of homelessness are protected and can remain intact? What outreach efforts is the federal government undertaking to educate the states on their obligation to protect the family?

2. What is the U.S. doing to guard against coercing women, particularly welfare recipients, to participate in marriage promotion activities, or to ensure that women, particularly those in violent relationships, are not coerced into marrying, or staying married to, abusive partners?

3. Given Art. 23’s recognition of the right to family life, the right of the child to special protection under Art. 24, and Article 17’s prohibition on arbitrary interference with family, what is the justification for mandatory deportation of individuals convicted of criminal conduct without any individualized balancing of state interests versus the resultant harm to the individuals and their families?

Article 24 (Special Protection of Children)

De Facto School Segregation. The U.S. is in violation of Articles 24, 2 and 26 because it fails to guarantee an equal opportunity to quality education for minority children. General Comment 17 makes clear that children are entitled to non-discrimination and to a “level of education that will enable them to enjoy the rights recognized in the Covenant.” The U.S. report cites numerous statutes that supposedly promote educational equity (see U.S. Report, paras. 48, 367), but government programs enabling residential segregation (see report by David Lyons, at ) coupled with Supreme Court decisions preventing inter-district desegregation, Milliken v. Bradley, 418 U.S. 717 (1974), and condoning inequitable funding systems, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 65 (1973), have left de facto segregated schools with urban minority students receiving far fewer resources than their white suburban counterparts.[43]

Depletion of Resources for Public Schools. In para. 57, the U.S. cites the District of Columbia school voucher program as an example of U.S. support for “equal protection of rights,” but each student who uses a voucher to leave the public schools takes resources from the remaining students in an already under-funded school system.[44]

Disproportionate Suspension of Children of Color. In response to both violence and less serious behavioral issues, public schools across the U.S. have turned to strict zero-tolerance discipline policies, law enforcement personnel and jail-like security conditions. Children of color in particular are targeted by these policies and are disproportionately suspended, expelled and arrested at higher rates, denying them access to educational services and pushing them into the juvenile justice system.[45]

Transfer of Juveniles into the Adult Criminal System. The U.S. is in violation of Articles 24, 10, and 14(4) because of its practice of waiving juveniles into the adult criminal system. Over the past decade, there has been a rise in states adopting mandatory statutory exclusion protocols, “once an adult/always an adult” policies, and mandatory waiver systems. These changes have greatly increased the range of situations in which juveniles are eligible to be prosecuted in criminal court and, consequently, receive diminished provision of the required protections. Children tried as adults lack the cognitive ability to understand and meaningfully participate in adult criminal trials and are subject to punishments that take no account of their physical and emotional needs. Most egregiously, there are at least 2,225 child offenders serving sentences of life without the possibility of parole sentences in U.S prisons for crimes committed before they were 18. Sixteen percent were between 13 and 15 years old at the time they committed their crimes. An estimated 59 percent were sentenced to life without parole for their first-ever criminal conviction. Forty-two states currently have laws allowing children to receive life without parole sentences.[46]

Access to Health Insurance. In the U.S., indigent children under the age of 19[47] are entitled to health care coverage under Medicaid and the State Children’s Health Insurance Program (SCHIP). However, program gaps and inadequate implementation and promotion have resulted in the lack of health care coverage for millions of children. In 2002, 7.8 million children in the U.S. were uninsured, even though more than half of those children were eligible for Medicaid and SCHIP.[48] Many other uninsured children live with poor families unable to qualify for these programs. Because state governments share the cost of Medicaid SCHIP with the federal government, they have little incentive to increase the number of enrollees when facing their own budget shortfalls and are not aggressively informing their uninsured eligible populations about the programs. As a result, a 2002 National Survey of America’s Families found that uninsured children are missing out on medical treatments they could receive if they were enrolled in Medicaid or SCHIP.[49]

Further, many children enrolled in Medicaid are not receiving essential medical services. Children enrolled in Medicaid are eligible to receive Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services, which are preventive, primary and specialty services designed to early detect illnesses and conditions and to provide comprehensive care. Although Congress has said that states should take “aggressive action” to inform all Medicaid-eligible children and their families of the availability of EPSDT,[50] studies show too often, children enrolled in Medicaid are not receiving entitled services.[51]

Despite the critical role of Medicaid, the U.S. has now targeted Medicaid for severe budget cuts, cutting $16 billion over the next 10 years.[52] In order to make up for the budget cuts, states are likely to seek ways to limit enrollment and restrict program benefits, resulting in the loss of health care coverage for children and families and limited access to vital services. Under a budget proposal now being considered for final passage in the U.S. Congress, the Medicaid cuts would also result in drastic cost-sharing increases for six million children on Medicaid and other low-income beneficiaries that currently are not allowable under the law.[53] In addition, as a capped program, SCHIP will not be able to make up the difference of children losing their Medicaid coverage.

Questions:

1. To what extent does the persistence of segregated schools under Milliken violate the U.S.’s obligations under the ICCPR to provide a remedy for discrimination and violation of the right to special protection? How has the U.S. addressed de facto school segregation and inequitable and inadequate resources for urban minority students resulting from residential segregation? What effect would the establishment of metropolitan area school systems in the U.S. have upon racial desegregation in both schools and residential neighborhoods?

2. How is the U.S. ensuring that students who do not receive vouchers receive an adequate education in Washington D.C.’s public schools?

3. What is the U.S. doing to reverse and prevent the disproportionate suspension, expulsion and arrest of children of color in schools and to curb the use of zero-tolerance policies that deny children access to education?

4. What procedures have been implemented to ensure the special protection of children tried in adult criminal courts and the promotion of their rehabilitation? Has the U.S. documented the number of children waived into adult criminal court on an annual basis? Is there an oversight/enforcement process to ensure that state law and state court practice are in line with the requirements of Articles 24, 10 (requiring segregation from adults and treatment appropriate to their age and legal status) and 14 (requiring that criminal justice procedures take into account juvenile’s age and desirability of promoting rehabilitation)?

5. How does the U.S. reconcile mandatory sentences of life without the possibility of parole with the right to special protection under Article 24 and Article 14 (4)’s requirement that justice system procedures take account of juveniles’ age and the desirability of promoting their rehabilitation? Does the U.S. monitor the number of children being sentenced to life imprisonment without the possibility of parole?

6. What aggressive action has the U.S. taken to ensure that all children, especially minority children, children living in poverty and children whose families do not speak English are receiving necessary and adequate health care coverage?

For additional questions, see Art. 13 (concerning asylum seeking children and women and access to counsel), Art. 17 (concerning abortion restrictions), and Art. 23 (concerning mandatory deportations separating families).

Article 25 (Right to Political Participation)

 

Felony disenfranchisement. In the United States today, nearly five million American citizens cannot vote due to a felony conviction.  Under the U.S. legal system, it is state law that governs the removal of the right to vote for those who have criminal convictions.  Therefore, the practice of felony disenfranchisement varies significantly between the states, denying the fundamental right to vote in some parts of the country while not in others.  Today, in eleven of the states, people with felony convictions can permanently lose the right to vote, and in thirty-six other states persons on probation and on parole are also denied the vote.  Only two states and Puerto Rico allow prisoners to vote while incarcerated.

 

The racial implications of this practice are significant: under the current rates of incarceration, three in ten of the next generation of African-American men can expect to be disenfranchised at some point in their lives.  This discriminatory impact can be directly attributed to documented biases in policing practices and the court system.  There has been extensive research both by government agencies and non-governmental organizations on racial profiling by law enforcement officers and racial discrimination in prosecution and sentencing decisions.  Because of the systemic discrimination targeting black men, the denial of voting rights to those convicted of felonies is an “unreasonable” restriction of their rights.

 

Under Article 25 of the ICCPR, every citizen has the right to vote and that right may not be subject to discrimination on the basis of race, sex, religion and other enumerated categories or to “unreasonable restrictions” as elaborated upon by General Comment 25.  In the consideration of reports from other countries, the Committee has consistently tried to limit the reach of criminal disenfranchisement laws.  As a party to the ICCPR, the United States has accepted its provisions as binding on both federal and state governments.  Also, the racially disproportionate impact of disenfranchisement laws in the U.S. raises concerns about the reasonableness of the restriction.

Lack of protection of voting rights.  With respect to federal oversight of local elections, the U.S. Department of Justice has limited enforcement power to remedy unconstitutional deprivations of the right to vote by state and local governments, and recent media disclosures suggest that political concerns in the Department of Justice are trumping proper enforcement of voting laws.  The Department of Justice has not brought any cases protecting the rights of African American voters in over four years.  Recent Supreme Court decisions have limited the Department of Justice’s discretion to find discrimination under the Voting Rights Act (“VRA”), which allows racial and ethnic minorities to vote free from discrimination.  Key provisions of the Act are scheduled to expire in 2007 and, even as Congress takes up the reauthorization of the VRA, some of its members have introduced legislation repealing provisions protecting minority language voters. 

 

Election problems. Although the U.S. Report attempts to minimize voting irregularities in 2000 and 2004, its assertions are belied by numerous independent reports and data that reveal systemic disenfranchisement and election administration failures at the state and local level during recent elections. (See 2001 Report of the U.S. Commission on Civil Rights (finding “widespread voter disenfranchisement” in Florida in November 2000); Caltech/MIT Study on the 2000 Presidential Elections (finding that 4 to 6 million votes were lost during the 2000 election process due to various problems); The Conyers Report: What Went Wrong in Ohio (Status Report of the House Judiciary Committee Democratic Staff report chronicling unprecedented long lines and other irregularities that disenfranchised thousands of Ohio voters in November 2004);  League of Women Voters v. Blackwell, et al. (N.D. Ohio), a pending lawsuit brought by the Lawyers’ Committee for Civil Rights Under Law and other groups challenging the constitutionality of voting system in Ohio on Equal Protection and Due Process grounds; and Shattering the Myth, a report of the non-partisan Election Protection program detailing voter disenfranchisement in the 2004 election.)

 

Questions:

 

1.         What steps is the U.S. government taking to restore the voting rights of U.S. citizens who have been denied their rights under the state felony disenfranchisement laws?

 

2.         What oversight mechanisms are available to ensure that states are enforcing existing laws regarding the process for restoring voting rights to formerly incarcerated individuals?  What steps exist to notify persons released from supervision of their right to vote and the necessary steps for registration or restoration?  What safeguards are in place to ensure that purging procedures (i.e. removal of individuals from voting lists) are accurately conducted and how does the government verify the accuracy of the list of persons removed from a voter database?

 

3.         What steps is the U.S. government taking to ensure that voters are not disenfranchised by systemic and structural voting system failures that deprive individuals of the fundamental right to vote?  In particular, what is the U.S. government doing to ensure that racial and ethnic minority voters can vote free from discrimination?

 

4.         What steps is the U.S. government taking to ensure that voting rights enforcement is not influenced and compromised by political concerns?

Article 26 (Equal Protection)

Disaster Relief. The U.S. is in violation of Article 26 because it has failed to guarantee equal and effective protection against racial discrimination in the context of disaster rescue, relief and reconstructions efforts. In the immediate aftermath of Hurricane Katrina, there was no rescue plan in place that would meet the needs of poor residents who did not own automobiles. This failure had a disproportionate impact on the African-American community. African Americans, who were the vast majority of those left behind, faced severe risks to life and health. Similarly, during disaster relief and the reconstruction there has been a failure to ensure the basic rights of the African-American community, which has disproportionately faced extended homelessness, loss of property, inadequate access to healthcare, and loss of educational opportunities. In addition, U.S. federal regulations have limited emergency assistance based on the legal status of survivors which has had an adverse impact on documented and undocumented immigrants.

Criminal Justice. Article 26 requires equal protection under the law regardless of race or ethnicity. Despite this international proclamation, as well as the protections of the United States Constitution and a number of federal and state statutes, there remains consistent documentation of racial and ethnic disparities in sentencing processes and outcomes in the American criminal justice system. Discrimination in law enforcement and prosecutorial charging patterns is exacerbated in federal and state sentencing systems when institutionalized in a criminal code that operates under the faulty presumption that the criminal justice system functions absent racial disparity.

Puerto Rico.  Since the Spanish-American War of 1898, Puerto Rico has been under U.S. control.  As a result of this control Puerto Ricans have suffered many injustices, including the use of Vieques by U.S. naval and military forces as a bombing and practice range.  For analysis of the environmental racism against the people of Vieques and its impact on their communities, go to or .

Questions:

1. What steps is the U.S. taking to ensure that racial minorities are not disproportionately affected by natural disasters, in particular with regards to the right to life, health, education, housing and property? What steps is the U.S. taking following recent natural disasters such as Hurricane Katrina to ensure that resources are equitably distributed to racial minorities?

2. What efforts have been undertaken to identify the sources of disproportionalities in the criminal justice system? What steps have been taken to document disparities regarding: plea and charge bargaining; bail setting; imposition of mandatory sentencing; criminal history sentencing enhancements; and, access to alternatives to incarceration? What solutions have been devised to safeguard the rights of racial and ethnic minorities and protect against systemic discrimination at the local, state, and federal level? Is the U.S. collecting data to document and study the impact of race and ethnicity, relative to other variables, in shaping the outcome of criminal court proceedings?

3. Will the United States make reparations to Puerto Rico for environmental pollution caused by the military practices in Vieques?

For additional questions see Art. 2(1) (concerning racial disparities in the criminal justice system, discriminatory targeting of individuals of Arabs, Middle Eastern or South Asian descent and discrimination against people with disabilities and immigrants); Arts. 2(1) & 2(3) (concerning immigrants’ rights to freely associate and access to courts); Art. 3 (concerning discrimination against women); Art. 6 (concerning the death penalty); Art. 24 (concerning school segregation and disproportionate suspension of children of color); Art. 25 (concerning voting rights).

-----------------------

[1] Second Request for Urgent Action under Early Warning Procedure to the Committee on the Elimination of Racial Discrimination of the United Nations, July 29, 2005, available at .

[2] Contacts between Police and the Public: Findings from the 2002 National Survey, Bureau of Justice Statistics, Apr. 2005, available at .

[3] Eric Lichtblau, Profiling Report Leads to a Demotion, N.Y. Times, Aug. 24, 2005, available at

[4] Advisory Opinion on the Juridical Condition and Rights of the Undocumented Migrants, OC-18. OC-18 explicitly covers all OAS Member States that have ratified the ICCPR and is based upon the fundamental principle of equality and non-discrimination found in the ICCPR as well as other international and regional human rights instruments. See ¶ 60 of the Opinion.

[5] 42 U.S.C. § 1997e(e).

[6] .

[7] S. 1088 and H.R. 3035, the Streamlined Procedures Act of 2005.

[8] Advisory Opinion on the Juridical Condition and Rights of the Undocumented Migrants, OC-18, para. 160.

[9] As of the effective date of the legislation, no Guantánamo detainee will be permitted access to U.S. courts – unless he has already been found to be either (1) an “enemy combatant” at a Combatant Status Review Tribunal (“CSRT”), or (2) guilty of a crime as determined by a “Military Commission”. Neither the CSRT proceedings nor the Military Commission proceedings provide a meaningful opportunity for the detainee to challenge the factual or legal basis for his detention. In fact, the detainee does not even have the right to be informed of the “classified evidence” upon which he may be convicted. Moreover, even in the narrow circumstances in which a detainee is permitted to appeal a decision of the CSRT or Military Commission, the appellate court cannot examine the facts of individual detainee cases. Therefore, the effect of the new legislation is to deprive any individual detained at Guantánamo of a right to a fair trial or hearing that comports with minimum standards of due process. The relevant text of the legislation is Sec. 1005 of the “Detainee Treatment Act of 2005”, and is available at

[10] Garrett v. Board of Trustees of the Univ. of Alabama, 531 U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).

[11] Alexander v. Sandoval, 532 U.S. 275 (2001).

[12] United States v. Morrison, 529 U.S. 598 (2000).

[13] Town of Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005).

[14] The federal statute authorizing funding requires a recipient program to be one which “has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity; . . . teaches that a mutually faithful monogamous relationship in [the] context of marriage is the expected standard of human sexual activity; [and] teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects.” 42 U.S.C. § 710(b)(2).

[15] See The Content of Federally Funded Abstinence-Only Education Programs, H.R. Rep., Minority Staff, Special Investigations Division of H.R. Comm. on Gov’t Reform, Dec. 2004, available at .

[16] Facts About the Death Penalty, Death Penalty Information Center, December 2005, available at .

[17] United States of America: Death by Discrimination - The Continuing Role of Race in Capital Cases, Amnesty International, April 2003, available at .

[18] Soering v. United Kingdom, 161 Euro Ct. H.R. (Ser A) para. 81 (1989).

[19] Jane Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program, The New Yorker (Feb. 14, 2005), available at printables/fact/050214fa_fact6; Jane Mayer, Panel discussion, “Transferring Terrorist Suspects to Other Countries: Legal and Policy Implications of Extraordinary Rendition”, Constitution Project, Wash. D.C. (Apr. 20, 2005).

[20] Break Them Down: Systematic Use of Psychological Torture, Physicians for Human Rights Report, 48, May 2005. Available at: .

[21] The relevant text of the legislation is Sec. 1005 of the “Detainee Treatment Act of 2005”, and is available at . Under this legislation, detainees could only access a court for a very narrow set of claims after the initial designation as an “enemy combatant” by a Combatant Status Review Tribunal or after conviction by a military commission. Despite the fact that the statute did not take effect until December 30, 2005, and a presumption in U.S. law against retroactivity in statutes divesting petitioners from substantive rights, the Bush Administration has filed notice that it will seek have over 180 pending cases dismissed.

[22] See Judge Robertson’s memorandum in Qassim v. Bush (D.C.D., No. 05-0497), Dec. 22, 2005, available at .

[23] See “U.S. Holding at Least Twenty-Six “Ghost Detainees”: List of Detainees Published by Human Rights Watch,” Human Rights Watch, press release, Dec. 1, 2005, available at ; Richard Esposito and Brian Ross, Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons, ABC News, Dec. 5, 2005; Dana Priest, CIA Holds Terror Suspects in Secret Prisons; Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11, Washington Post, Nov. 2, 2005.

[24] See The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, Office of the Inspector General of the U.S. Department of Justice, June 2003, available at ; Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York, Office of the Inspector General, Dec. 2003, available at .

[25] See generally, “Witness to Abuse Human Rights Abuses under the Material Witness Law since September 11,” Human Rights Watch, Vol. 17, No. 2 (G), June 2005, available at .

[26] See Ill-Equipped: U.S. Prisons and Offenders with Mental Illness, Human Rights Watch, Sept. 2003, available at .

[27] U.S. Commission on International Religious Freedom, U.S. Commission on International Freedom 2005 Annual Report, available at .

[28] Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26, 2002).

[29] U.S. Commission on International Religious Freedom, “Asylum Seekers in Expedited Removal: A Study Authorized by Section 605 of the International Religious Freedom Act of 1998,” available at .

[30] Adam Liptak, Courts Criticize Judges’ Handling of Asylum Cases, N.Y. Times, Dec. 26, 2005,

available at

[31] See Dan Eggen, Bush Authorized Domestic Spying: Post-9/11 Order Bypassed Special Court, Washington Post, Dec. 16, 2005, at A1, available at .

[32] See Sara Packer, Danger Ahead: How Restricting Teens’ Access to Safe Abortion Threatens Their Lives and Health, Ipas Policy Briefing Paper, at 6, available at .

[33] See Karen Noelia Llantoy Huamán v. Peru, UN Doc. CCPR/C/85/D/1153/2003 (2005).

[34] See Eric Lichtblau, F.B.I. Watched Activist Groups, New Files Show, N.Y. Times, Dec. 20, 2005.

[35] See Spy Files Documents Reveal Political Spying by FBI’s Joint Terrorism Task Force, ACLU of Colorado, available at ).

[36]See NYCLU Brings Lawsuit Challenging RNC-Week Police Practices, available at .

[37] See Breaking the Silence: The Global Gag Rule’s Impact on Unsafe Abortion, Center for Reproductive Rights, Oct. 2003, available at ; Access Denied: U.S. Restrictions on International Family Planning, available at .

[38] See Ibrahim Gueye et. al. v. France, HRC 6 April 1989; see also Martin Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, pp. 73-81, in Fons Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004).

[39] General Comment No. 11: Prohibition of propaganda for war and inciting national, racial or religious hatred (Art. 20). 29/07/83. ICCPR General Comment No. 11. (General Comments), paras. 1 & 2.

[40] Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and Transgender People in the United States, Amnesty International, Sept. 2005, available at .

[41] See Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards, Human Rights Watch, Aug. 2000, available at .

[42] See, e.g., Winata v. Australia, Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001); Aumeeruddy-Cziffra et al v. Mauritius, Communication No. 35/1978, U.N. Doc. CCPR/C/12/D/35/1978 (1981).

[43] See report by the Harvard Civil Rights Project at .

[44] See Separate and Unequal: The State of the District of Columbia Public Schools Fifty Years After Brown and Bolling, Mar. 2005, available at ; Flaws and Failings: A Preliminary Look at the Problems Already Encountered in the Implemented of the District of Columbia’s New Federally Mandated School Voucher Program, People for the American Way, Feb. 2005, available at .

[45] See Education on Lockdown: The Schoolhouse to Jailhouse Track, Advancement Project, Mar. 2005, available at .

[46] See The Rest of Their Lives: Life Without Parole for Child Offenders in the United States, Amnesty International/Human Rights Watch, 2005, available at .

[47] If the reconciliation bill goes into effect, EPSDT will only apply to children under the age of 19 instead of the current coverage provided to children under the age of 21.

[48] Id.

[49] See

[50] 135 Cong. Rec. S 13234 (Oct. 12, 1989). See 42 U.S.C. § 1396a(a)(43)(A).

[51] In 1989, Congress amended the Medicaid Act to enhance the EPSDT requirements precisely because screening rates were low. See Joseph Tiang-Yau Liu, Increasing the Proportion of Children Receiving EPSDT Benefits, A South Carolina Case Study, C.D.F. Reports at 2 (July 1990) (reporting less than 33 percent of eligible children screened in 1988).

[52] See

[53] Id.

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