A Human Rights Memorandum To President Bush Print E-mail

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A Human Rights Memorandum To President Bush

by US Human Rights Network; Human Rights Network; March 02, 2005

Every year, the US State Department releases its Country Reports on Human Rights Practices - reports drawn in large part on information gathered by human rights organizations based in those countries surveyed.

We welcome these reports, as under the Universal Declaration of Human Rights, all countries are asked to engage themselves in promoting human rights and denouncing violations wherever they occur. However, as an association of more than 160 US-based human rights organizations monitoring and promoting human rights in the US, we are concerned that these reports have been drained of moral value due to the level of human rights violations taking place under the watch of your administration, and it is for this reason that we are taking the unprecedented step of writing to you.

Our Network members - which include organizers, lawyers, policy groups, educators, researchers and scholars - have been monitoring a wide range of domestic human rights issues, and are concerned that under the watch of this administration and the full gaze of the rest of the world:

- The US military has systematically committed acts of torture and cruel, inhuman and degrading treatment in Iraq, Afghanistan and Guantánamo Bay. - Hundreds have been detained indefinitely, without trial, and often in secret.

- Criminal trials have been conducted in military tribunals that do not provide adequate transparency or due process protections.

- Foreign nationals have been deported to third countries where it was likely they would be tortured.

- Coercive and unreliable interrogation techniques that amount to torture and cruel, inhuman and degrading treatment have been defended and promoted.

- More than one thousand immigrants in the US were rounded-up immediately after September 11th in a manner that was arbitrary, discriminatory and violated basic human rights.

Furthermore, the US has still failed to ratify half of the major international human rights treaties, including:

- The Convention on the Rights of the Child (ratified by every other country in the world except Somalia).

- The Convention on the Elimination of All Forms of Discrimination Against Women (ratified by 177 countries -- over ninety percent of the members of the United Nations).

- The International Covenant on Economic, Social and Cultural Rights (ratified by 149 countries).

- The Rome Statute of the International Criminal Court (ratified by 97 countries).

In this memorandum, we outline several other areas of concern for human rights - primarily, although not exclusively, with respect to human rights practices affecting US citizens and residents.

The US played a pivotal role in creating the human rights system and drafting the Universal Declaration of Human Rights. We now fear that the current human rights situation, as detailed in the following pages, reflects a disrespect of human rights and human dignity that not only tarnishes the reputation of the US around the world, but also undermines the foundations of US democracy and freedom, and the wellbeing of its people.

With this memorandum and our forthcoming Human Rights Agenda for the Bush Administration, the US Human Rights Network provides a partial list of human rights situations of particular concern, along with initial recommendations on how they can best be addressed. We also offer a vision for the future of human rights in the US in which all people are afforded the full range of civil, political, economic, social and cultural rights. We urge this administration to join in that vision.

Civil and political rights

"The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights."
Preamble to the International Covenant on Civil and Political Rights (ICCPR) The human right to be free of arbitrary arrest or detention

The aforementioned ICCPR, ratified by the US on June 8, 1992, affords everyone the right to liberty and security of person. This necessarily includes a prohibition on arbitrary arrest or detention, the obligation to inform any arrested person promptly of the reasons for his/her arrest, and the duty to provide a trial within a reasonable time - or release. (Article 9)

Yet, thousands have been detained by the US based on government allegations that they pose a threat to security - many indefinitely and without access to counsel or even information about the charges being brought against them. A significant number have been arrested for no other reason than their ethnic background - reflecting a pattern of arrests that are not only arbitrary but also discriminatory. Some of these arrests have been carried out through the abuse of immigration laws meant to control borders - not criminalize people.

Human rights and national security are not at odds. They go hand in hand. The administration must review current arrest, prosecution and detention policies and practices - including those being implemented through immigration laws - with a view to bringing them in line with international human rights standards and standards of human decency. The administration must also review deportation practices to ensure that all actions respect the right to be free from discrimination and the right to liberty and security of the person. The human right to be free of discrimination The right to be free from discrimination is recognized in every major human rights instrument, including the Universal Declaration of Human Rights (Articles 2 and 7); the ICCPR (Article 2) and the International Covenant on Economic, Social and Cultural Rights (Article 2). Two major human rights treaties, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women were brought into force specifically to address profound and particularly troubling forms of discrimination. Non-discrimination is a fundamental and non-derogable right - meaning that even in a state of emergency, a government cannot violate guarantees to equal treatment and non-discrimination.

Every person is guaranteed the right to be free from discrimination regardless of race, gender, birth status, ethnicity or any other status, and that right extends to protection against policies that have a discriminatory impact regardless of intent.

Although every country has the right to control its borders, and may deport non-nationals without legitimate claims to legal status, no government may impose immigration laws that discriminate against a particular class of immigrants. Governments also cannot discriminate against immigrants (including undocumented immigrants) in the exercise of their human rights (such as the right to a fair trial, to unionize and to be free from arbitrary arrest).

Although it has now been ten years since the US ratified the Convention on the Elimination of All Forms of Racial Discrimination - thereby committing itself to work against racial discrimination, including its effects in the criminal justice system - glaring racial disparities also continue to persist in the US criminal justice system, with approximately one-half of those incarcerated being African American. In fact, two-thirds of the adult prison population is Latino and African American - even though these two groups constitute only 25 percent of the overall population in the US combined. In the face of falling crime rates, people imprisoned in the US constitute 23 percent of the total number of people imprisoned in the world (despite the fact that the US only represents five percent of the world population).

Despite these facts, this administration has put forward no policies to address the systemic discrimination experienced by communities of color within the criminal justice system. Similarly, no effective policies have been developed by this administration to address the continuing exclusions and discrimination faced by immigrants, communities of color, Native Americans, people with disabilities, women, gay men, lesbians, bisexuals, and transgendered people in the workplace, in schools, and in other public places. Finally, this administration has supported corrupting the US Constitution with an amendment that legalizes discrimination in the exercise of the fundamental right to marry based on sexual orientation.

Furthermore, discriminatory policies and practices - including racial profiling -have been in evidence during the conduct of the "war on terror." Arabs and other Muslims have borne the brunt of these policies. This includes the signing of a military order by President Bush authorizing the trial of foreign nationals by military commission, which has the power to consider coerced evidence and hand down death sentences with no right of appeal to any court. These military commissions apply only to foreign nationals - not US citizens - clearly violating international law by allowing for the discriminatory application of the right to a fair trial on the basis of nationality.

The administration must review immigration and security measures to ensure they do not discriminate against any class of people. It must also accept its obligations to address long-standing issues of discrimination, including systemic and institutionalized racism, and engage in public education efforts to promote tolerance and respect for the rule of law, which protects the rights of all people. Furthermore, the administration must ensure that any law enforcement activities conducted in the context of the "war on terror" are in accordance with international principles, and do not employ or encourage discriminatory practices. The government must also make public regularly updated lists of detainees in US custody specifying their identity, nationality and place of detention, including the agency under which each person is being held.

The human right of the child to liberty and to fair and humane treatment

The Convention on the Rights of the Child (CRC), signed by the US and ratified by every country in the world except the US and Somalia, requires that the "arrest, detention, or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time." (Article 37) The CRC also prohibits placing children in detention facilities with adults, unless the government can demonstrate that such a placement is in the child's best interest. Furthermore, the ICCPR requires the US to ensure that "juvenile offenders [are] segregated from adults and accorded treatment appropriate to their age and legal status." (Article 10)

Despite these obligations, the US is among a dwindling number of jurisdictions in the world where child offenders can be sentenced to life in prison without possibility of parole. It is estimated that the number of child offenders serving such sentences is in the thousands. In many jurisdictions, children are detained alongside adults to serve their sentence. Furthermore, when the US ratified the ICCPR, it reserved the right to execute children.

The administration must call on all states to protect children against these human rights abuses, and also call for federal legislation to provide for such protections, in order to meet US obligations under the ICCPR. The administration should also support and facilitate the ratification of the CRC without reservation, and remove its reservation to the ICCPR regarding the execution of children. The right of imprisoned people to humane and dignified treatment

The ICCPR requires that "all persons deprived of their liberty... be treated with humanity and with respect for the inherent dignity of the person." (Article 10) However, many men and women imprisoned in the US face violence on a daily basis - including sexual assault by other inmates and prison guards. Furthermore, those in prison are often exposed to diseases - including tuberculosis, HIV/AIDS and hepatitis - due to overcrowding and unsanitary and inhuman conditions. These diseases often go untreated due to inadequate medical care. At the same time, the federal and many state governments have outsourced the running of prison facilities to private, for-profit companies making oversight and accountability more difficult to ensure.

The administration must use all monitoring and accountability mechanisms at its disposal to guarantee humane and dignified conditions and treatment in US prisons. In the federal system, it should prohibit outsourcing to private for-profit companies, unless such outsourcing is accompanied by a detailed and enforceable accountability plan. The administration should also create incentives for states to comply with human rights standards aimed at protecting those in prison.

The death penalty

The ICCPR states that "every human being has the inherent right to life ... No one shall be arbitrarily deprived of his life." (Article 6) While the ICCPR, which came into force in 1976, does not absolutely prohibit the use of the death penalty in all cases, international human rights law has moved swiftly in the direction of abolition. This is most evident with the entry into force of the Second Optional Protocol to the ICCPR

 Aiming at the Abolition of the Death Penalty.

The vast majority of countries in the world today does not allow for the death penalty or does not enforce it. On average, four countries per year have abolished the death penalty since 1987. Only the US, Iran and China are known to allow the death penalty for child offenders.

Although there have been some recent welcome developments toward reigning in the application of the death penalty in the US - such as the 2002 US Supreme Court decision that the execution of mentally ill and mentally retarded persons is unconstitutional, in line with international law - over 3,400 men and women and children remain on death row in the US.

Since 1976, 118 people have been released from death row due to evidence of their innocence. Of those still on death row, approximately 54 percent are racial minorities. Ninety percent of those for whom the federal government seeks the death penalty are racial minorities, while together African Americans and Latinos comprise only 25 percent of the overall population in the US. In the face of these profound concerns, and to bring the US in line with international standards and practices, this administration must introduce legislation that repeals the federal death penalty, remove the reservation from the ICCPR regarding the prohibition on imposing the death penalty on children, and sign and send to the US Senate for its advice and consent the Second Optional Protocol to the ICCPR.

Once this is ratified, the government should introduce implementing legislation that would make the death penalty illegal across the US.

The right to freedom of association and to form unions

The ICCPR recognizes the right of everyone to "freedom of association with others, including the right to form and join trade unions for the protection of his interests." This right is also protected by a range of covenants of the International Labour Organization. Yet, in 2000 Human Rights Watch issued a report, "Unfair Advantage" stating that "unfair labor practice charges against employers increased by 750 percent between 1957 and 1980, while the number of National Labor Relations Board (NLRB) elections (a measure of workers' organizing activity) increased by less than 50 percent." The report goes on to note that, "by the 1990s . . . one of every eighteen employees involved in union election campaigns was subjected to discharge or other discrimination to discourage union representation."

Experts in the field, according to the report, have concluded that "the intensity of opposition to unionization which is exhibited by American employers has no parallel in the Western industrial world." Finally, the report references a 1997 study by the Secretariat of the North American Commission for Labor Cooperation under NAFTA's labor side accord which finds "that employers threaten to close the workplace in half of the organizing campaigns undertaken by workers in the United States, but rarely in Canada or Mexico." Studies also report that "53 percent of managers said they would oppose any unionization effort in their workplace."

It is manifestly clear that existing labor protections to form unions are not adequately enforced. Moreover, certain categories of workers, such as agricultural workers and domestic workers, are not even afforded basic protections to unionize. In light of this inexcusable failure to protect the right to association of workers, the administration must ensure that all existing protections are vigorously enforced and that all workers are afforded these necessary protections.

Economic, Social and Cultural Rights

"...the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights..."
International Covenant on Economic, Social and Cultural Rights (ICESCR)

The human right to health

The right to health is enshrined in the Universal Declaration of Human Rights (Article 25); the International Covenant on Economic, Social and Cultural Rights (Article 12); the Convention on the Rights of the Child (Article 24); the Convention on the Elimination of all Forms of Racial Discrimination (Article 5); the Convention on the Elimination of all Forms of Discrimination against Women (Articles 12 and 14); and the American Declaration on the Rights and Duties of Man (Article 11). Together, these instruments guarantee the .right to the enjoyment of a variety of facilities, goods, services and conditions. necessary for the right to health. At a minimum, this includes:

"[the right to] timely and appropriate healthcare.[and] also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health." (General Comment 14 of the ESCR Committee)

Governments must ensure the right to health without discrimination on any basis, including class, race, age, language, disability, or health status (such as HIV/AIDS). This prohibition on discrimination applies with special force to vulnerable groups such as prisoners and undocumented immigrants, who must have access to adequate healthcare.

Yet, 45 million US citizens - most of them working people - are denied the possibility of affordable health insurance and access to care. Rural areas and poor and minority communities suffer severe shortages of health care workers. Drug costs continue to rise far above what many sick and needy people are able to pay. Immigrant and low-income communities now have even less access to health care as result of recent changes in the Medicaid eligibility rules and a lack of employer-based health insurance plans in industries that employ the majority of immigrants. Restrictions on funding and services in the area of reproductive health threaten the health status of countless women.

Unlike in other parts of the world, these systemic failures to protect health are not due to resource constraints. The US spends more per capita on health than any other industrialized country. However, these expenditures are not distributed equally across society. In fact, the US health system ranks only 55th in the world in terms of fairness in the distribution of resources.

A human rights approach treats health care as a public good - not a private gain. The administration must develop a national plan of action to ensure universal access to comprehensive and affordable health care for all. This requires an equitable distribution of health care resources that are adequate, accessible and affordable. Human rights standards also require that private actors, such as insurance companies, pharmaceutical companies and hospitals be held accountable for fulfilling their appropriate roles in ensuring the right to healthcare. Consequently, this administration must also develop policies that hold these private actors accountable for actions affecting the right to healthcare.

The human right to housing

The right to housing, intended to ensure access to a safe, secure, habitable, and affordable home with freedom from forced eviction, is enshrined in several international and regional human rights instruments including: the Universal Declaration of Human Rights (Article 25); the International Covenant on Economic, Social and Cultural Rights (Article 11); the Convention on the Rights of the Child (Article 27); the Convention on the Elimination of All Forms of Racial Discrimination (Article 5); the Convention on the Elimination of All Forms of Discrimination Against Women (Article 14); and the American Declaration on the Rights and Duties of Man (Article 11).

Yet, at least 840,000 people are homeless on any given day within the US. Up to 3.5 million people are affected by homelessness within a given year . 1.35 million of whom are children. It is estimated that 12 million people - 6.5 percent of the population - will experience homelessness at some point in their lives. A quarter of those homeless are children. Families with children make up 37 percent of the homeless. According to a federal government survey, 44 percent of homeless people report that they work full- or part-time, yet cannot afford housing.

While millions are affected by homelessness, even more are at risk because of the lack of affordable housing. There are 4.7 million more poor households in need of rental housing than there are available affordable units. Some 14.3 million households, representing almost one in seven households, are severely burdened by the cost of housing and 38 percent of elderly renters are severely cost burdened. Of these, some 12.5 million are at grave risk of becoming homeless, because wage levels, particularly for those working at minimum wage, are woefully insufficient to meet the rising costs of housing. Furthermore, an estimated 600,000 people released from prisons, and 10 million released from jails each year face exclusions based on federal law from many federal housing programs, worsening this human rights crisis. In light of this crisis, the administration must not support or permit any cuts to the housing budget for people in the US. The administration must propose increasing housing assistance funding, support proposals to end criminalization of the homeless, and support creative solutions that encourage, through zoning or other laws and programs, the development of affordable housing.

The human right to education

The right to education is both a fundamental right in itself, and an essential enabler of other fundamental rights -- such as the right to participation in a democratic society, the right to decent work under reasonable conditions, the right to health, and many other rights. The ICESCR recognizes "the right of everyone to education...directed to the full development of the human personality and the sense of its dignity, [that] shall strengthen the respect for human rights and fundamental freedoms...[and] shall [also] enable all persons to participate effectively in a free society..." (Article 13) Moreover, the right to education is enshrined in nearly every international and regional human rights instrument, including: the UDHR (Article 26); the ICESCR (Articles 13 and 14); the CRC (Articles 28, 29 and 40); the CERD (Article 5); the CEDAW (Articles 10 and 14); and the American Declaration on the Rights and Duties of Man (Article 12).

Despite human rights standards requiring that governments guarantee the right to education to everyone, there are deep inequities in the US educational system, with some receiving a high level of quality education and others barely being afforded basic literacy skills. Nonetheless, there have been promising advances in securing the right to education. In state after state across the US, courts are finding that local systems of funding for education are inequitable, fail to provide a basic sound education and are in violation of their respective state constitutional right to education. The outcomes of these court victories have yet to be seen, but they provide a necessary foundation for addressing existing inequities. However, despite these advances, localities continue to allow mistreatment of children in poor and minority schools, including the imposition of zero tolerance policies that primarily serve to push children out of the educational system.

Federal policy is also still deeply flawed and inadequate to protect the right to education. Though the "No Child Left Behind Act" has created accountability for children and schools, it does not reflect the accountability of the government to those children to provide the resources they need to be successful. The human right to education reflects this notion of reciprocal accountability - of the students and schools to succeed, and of the state to provide them with the means to do so.

Furthermore, in contravention of international human rights law, tens of thousands of young people are being prevented from pursuing a college education because they have no immigration papers, almost no access to financial aid, and no right to work to support themselves if they attend a university or college.

The administration must refrain from any cuts in the education budget, support equitable distribution of existing resources, develop programs to support the rights of parents and communities to participate in ensuring the right education in their local schools, and create federal programs to develop a cadre of highly trained teachers and principals for low performing schools. The administration must also support legislation to ensure equal access by immigrant students to higher education.

The Right to Work for Fair Wages and Under Safe and Reasonable Conditions

 The right to decent work is recognized by a wide range of major human rights instruments, including the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the American Declaration on the Rights and Duties of Man, and by the various covenants of the International Labour Organization. The International Covenant on Economic, Social and Cultural Rights specifically guarantees the .right of everyone to the enjoyment of just and favourable conditions of work which ensure . remuneration . provid[ing] all workers . with: (i) Fair wages . (ii) A decent living for themselves and their families . [and] safe and healthy working conditions. (Article 7) 

The right to work has suffered grave deterioration in the US. People in the US now work more hours than workers in any other industrialized country (including Japan), and many of these additional work hours are mandatory. According to the International Labour Organization, just and favourable conditions of work require affording workers a 40-hour work week at a living wage (40-Hour Week Convention, 1935). This understanding is reflected in our national laws requiring extra payment for hours worked above this amount for hourly workers in most sectors.

Despite these hard and long work hours, many in the US still cannot afford to meet their basic needs. One in four workers, constituting 30 million people, survives on poverty wages. The minimum wage has dropped approximately 40 percent in real value since 1968. Indeed most families that lack health insurance have one or two workers, and many people facing homelessness or overcrowding are working full-time at salary levels that do not cover basic housing costs in their areas. This violates the right to fair wages providing a decent living.

Long hours and low pay also put great strains on families, including the ability of parents to care for their children - undermining the fundamental right to family, also protected by human rights instruments (Article VI, American Declaration on Rights and Duties of Man).

US workers also face extreme job insecurity, as most employment situations are "at will," meaning that employers may fire workers without cause so long as it does not constitute race, sex or age discrimination.

Finally, five million workers suffer injuries on the job each year and then face a decrepit worker's compensation system that does not provide adequate benefits, routinely denies legitimate claims, and denies needed medical care. The Occupational Safety and Health Administration (OSHA) has a history of not responding adequately to workplace injuries. Over the last 20 years, for example, in more than 1000 workplace deaths resulting from injury due to willful employer violations, OSHA referred less than seven percent to the Justice Department for prosecution.

This administration must address the economic rights of workers in the US by raising the minimum wage at least 40 percent to its past value, providing the necessary social support that workers cannot afford on their current wages (such as health care and housing), ensuring that all workers are adequately included under OSHA protections, and vigorously enforcing and monitoring OSHA standards.

Conclusion

The human rights situation within the US calls for serious self-assessment and reflection. Recent trends and events have raised significant doubts about this administration's commitment to human rights and have put the US at grave risk of becoming a place where human dignity and freedom are routinely denied. In order to emerge from the human rights crisis that we have begun to outline above, this administration must begin to put into practice its stated commitment to fundamental freedoms and human dignity by rectifying its abject failure to protect human rights both at home and abroad.

We hope that this memorandum and the recommendations contained therein will help to set the administration on a path in the right direction. We will be following up this memorandum with a more detailed Human Rights Agenda for the Bush Administration and welcome engagement with the administration regarding ways in which we can bring US policy and practice in line with international human rights norms and standards.