PDF Version (large file)
Questions for the Record
S. Hrg. 111-576
THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
DECEMBER 16, 2009
----------
Serial No. J-111-68
----------
Printed for the use of the Committee on the Judiciary
S. Hrg. 111-576
THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
DECEMBER 16, 2009
__________
Serial No. J-111-68
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
57-909 PDF WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
Subcommittee on Human Rights and the Law
RICHARD J. DURBIN, Illinois, Chairman
RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
Joseph Zogby, Chief Counsel
Brooke Bacak, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma,
prepared statement............................................. 167
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
prapred statement............................................ 180
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 344
WITNESSES
Henderson, Wade, President and Chief Executive Officer,
Leadership Conference on Civil Rights, Washington, DC.......... 20
Massimino, Elisa, President and Chief Executive Officer, Human
Rights First, Washington, DC................................... 18
Perez, Thomas E., Assistant Attorney General, Civil Rights
Division, Department of Justice, Washington, DC................ 5
Posner, Michael H., Assistant Secretary for Democracy, Human
Rights and Labor, Department of State, Washington, DC.......... 3
QUESTIONS AND ANSWERS
Responses of Thomas E. Perez to questions submitted by Senator
Coburn......................................................... 79
Responses of Michael H. Posner and Thomas E. Perez to questions
submitted by Senators Coburn, Durbin and Feingold.............. 30
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Jamil Dakwar, Director, and
Michael W. Macleod-Ball, Acting Director, New York, New York,
joint statement................................................ 89
Advocates for Human Rights, Minneapolis, Minnesota, statement.... 99
Amnesty International, London, United Kingdom, statement......... 105
Armenian Assembly of America, Bryan Ardouny, Executive Director,
Washington, DC, statement...................................... 113
Campaign for a New Domestic Human Rights Agenda, Atlanta,
Georgia, statement............................................. 116
Campaign for the Fair Sentencing of Youth, Jody Kent, National
Coordinator, Washington, DC, statement......................... 122
Center for Justice and International Law, Vivana Krsticevic,
Executive Director, and Michael J. Camilleri, Senior Staff
Attorney, Washington, DC, joint statement...................... 124
Center for Reproductive Rights, New York, New York, statement.... 133
Center for the Human Rights of Users and Survivors to Psychiatry,
Chestertown, New York, statement............................... 138
Civil and Human Rights and Justice Organizations, joint letter... 142
Clinton, Hon. Hillary Rodham, Secretary of State, State
Department, Washington, DC, statement.......................... 144
Cohn, Marjorie, Professor, Thomas Jefferson School of Law and
Director, U.S. Human Rights Network, Atlanta, Georgia,
statement...................................................... 163
Columbia Law School, Human Rights Institute, New York, New York,
statement...................................................... 168
Council for Global Equality, Human Rights Campaign, Washington,
DC, statement.................................................. 177
Everson, Mary Lynn, Heartland Alliance Marjorie Kovler Center,
Chicago Illinois, statement.................................... 183
Foscarinis, Maria, Executive Director, National Law Center on
Homelessness & Poverty, Washington, DC, statement.............. 187
Friends Committee on National Legislation, Washington, DC,
statement...................................................... 193
Ginger, Ann Fagan, Executive Director, Meiklejohn Civil Liberties
Institute, Berkeley, California, statement..................... 198
Hamilton, Lee H., letter......................................... 202
Henderson, Wade, President and Chief Executive Officer,
Leadership Conference on Civil Rights, Washington, DC,
statement...................................................... 205
Heartland Alliance National Immigrant Justice Center, Mary Meg
McCarthy, Executive Director, Chicago, Illinois, statement and
attachment..................................................... 215
Heritage Foundation, Washington, DC:
Steven Groves, publication no. 2168, August 7, 2008.......... 226
Brett D. Schaefer and Steven Groves, publication no. 2339,
November 9, 2009........................................... 236
Human Rights USA, Washington, DC, statement...................... 245
Illinois Coalition for the Fair Sentencing of Children and Family
Justice Center, Shobha L. Mahaev, Chicago, Illinois, statement. 250
Indian Law Resource Center, Washington, DC, statement............ 256
International Commission for Labor Rights, Jeanne Mirer, Zaid
Hydari, and Kae D'Adamo, New York, New York, joint statement... 265
International Indian Treaty Council, Andrea Carmen, Executive
Director, San Francisco, California, letter.................... 269
Jacob Blaustein Institute for the Advancement of Human Rights of
the American Jewish Committee, Washington, DC, statement....... 275
Jenkins, Alan, Executive Director, the Opportunity Agenda, New
York, New York, statement...................................... 277
Jewish Council on Urban Affairs, Chicago, Illinois, report....... 284
Johnson, Douglas A., Executive Director, Center for Victims of
Torture, Minneapolis, Minnesota, statement..................... 289
Just Detention International, Washington, DC, statement.......... 300
Justice Now, Oakland, California, statement...................... 307
Keller, Allen S., Associate Professor of Medicine, New York
University, New York, New York, statement...................... 310
Latino Justice PRLDEF, Cear A. Perales, President & General
Counsel, New York, New York, statement......................... 324
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
statement...................................................... 326
Leahy, Hon. Patrick J., Senators Feingold, Franken, Kerry and
Cardin, Washington, DC, joint letter........................... 339
Lyon, Beth, Associate Professor of Law, Villanova University
School of Law, Villanova, Pennsylvania, letter and chart....... 341
Massimino, Elisa, President and Chief Executive Officer, Human
Rights First, Washington, DC:
statement.................................................... 349
Appendix to the testimony.................................... 357
Midwest Coalition for Human Rights, Minneapolis, Minnesota,
statement...................................................... 368
Minnesota Tenants Union, Minneapolis, Minnesota, statement....... 374
McFarland, Maria, Washington, Advocacy Deputy Director, Human
Rights Watch, Washington, DC, statement........................ 381
Nahapetian, Kate, Goverment Affairs Director, Armenian National
Committee of America, Washington, DC, statement................ 396
National Alliance of HUD Tenants, Boston, Massachusetts,
statement...................................................... 400
National Association of Criminal Defense Lawyers and The
Sentencing Project, Washington, DC, joint statement............ 406
National Association of Social Workers, Washington, DC, statement 419
National Lawyers Guild, New York, New York, statement............ 423
Northeastern University School of Law, Boston, Massachusetts,
statement...................................................... 427
Northwestern University School of Law, Director, Center for
International Human Rights David Scheffer, Mayer Brown/Robert
A. Helman, Professor of Law.................................... 436
Open Society Institute, New York, New York, statement............ 441
Perez, Thomas E., Assistant Attorney General, Civil Rights
Division, Department of Justice, Washington, DC, statement..... 447
Physicians for Human Rights, A. Frank Donaghue, Chief Executive
Officer, Washington, DC, statement............................. 453
Pollack, Wendy, Director, Women's Law and Policy Project, Sargent
Shriver National Center on Poverty Law, Chicago, Illinois,
statement...................................................... 462
Posner, Michael H., Assistant Secretary for Democracy, Human
Rights and Labor, Department of State, Washington, DC,
statement...................................................... 471
Poverty & Race Research Action Council, Washington, DC,
statemenet..................................................... 476
Price, Mary, Vice President and General Counsel, Families Against
Mandatory Minimums, Washington, DC, statement.................. 485
Randall, Vernellia R., University of Dayton School of Law,
Dayton, Ohio, statement........................................ 492
Rights Working Group, Washington, DC, statement.................. 496
Ryan, Liz, President and CEO, Campaign for Youth Justice,
Washington, DC, statement...................................... 502
Schulz, William F., Senior Fellow for Human Rights Policy, Center
for American Progress, Washington, DC, statement............... 515
Sklar, Morton, Founding Executive Director Emeritus, World
Organization for Human Rights USA, Washington, DC, statement... 520
Soler, Mark, Executive Director, Center for Children's Law and
Policy, Washington, DC, statement.............................. 526
Smith, Chad, Principal Chief, Cherokee Nation, Tahlequah,
Oklahoma, statement............................................ 535
Taifa, Nkechi, Senior Policy Analyst, Open Society Institute,
Washington, DC, statement...................................... 540
Todres, Jonathan, Professor, Associate Professor of Law, Georgia
State University College of Law, Atlanta, Georgia and Carol
Smolenski, Exeutive Director, ECPAT-USA, Brooklyn, New York on
behalf of ECPAT-USA, statement................................. 556
United States Council for International Business, Peter M.
Robinson, President & Chief Executive Officer, New York, New
York, statement................................................ 562
United States Department of State, Diplomacy in Action,
Washington, DC, statement...................................... 564
Urban Justice, Ejim Dike, New York, New York, statement.......... 565
U.S. Human Rights Network, Atlanta, Georgia, statement........... 571
University of San Francisco, Center for Law and Global Justice,
School of Law, San Fransisco, California, statement............ 588
Venetis, Penny M., Rutgers School of Law, University of New
Jersey, Newark, New Jersey, statement.......................... 590
THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES
----------
WEDNESDAY, DECEMBER 16, 2009
U.S. Senate,
Subcommittee on Human Rights and the Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:34 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Feingold, Cardin, and Franken.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Chairman Durbin. Welcome, everyone. This hearing of the
Human Rights and the Law Subcommittee will come to order. The
title of today's hearing is ``The Law of the Land: U.S.
Implementation of Human Rights Treaties.'' This is the first
ever congressional hearing on U.S. compliance with our human
rights treaty obligations.
Last Thursday, December 10th, was the 61st anniversary of
the Universal Declaration of Human Rights. Eleanor Roosevelt,
the architect of the Universal declaration, once said, ``Where,
after all, do universal human rights begin? In small places,
close to home. . . . Unless these rights have meaning there,
they have little meaning anywhere.''
The United States has played a leading role in drafting and
ratifying landmark human rights treaties. Congress has passed
important legislation to implement these treaties. Just last
year, this Subcommittee produced the Child Soldiers
Accountability Act, which makes it a Federal crime and
immigration violation to recruit or use child soldiers. This
implements part of our obligations under the Optional Protocol
on the Involvement of Children in Armed Conflict.
Democrats and Republicans alike agree that we must make
every effort to comply with the legal obligations we undertake
when we ratify a human rights treaty. Indeed, under our
Constitution, these treaties are part of the supreme law of our
land.
Democratic and Republican administrations alike monitor and
report on U.S. compliance with our human rights treaty
obligations. In fact, it was the Bush administration that
brought the United States up to date with our human rights
treaty reporting requirements for the first time and began
preparations for the first ever Universal Periodic Review of
the United States, which will take place next year.
The Obama administration is building on this record, and I
look forward to hearing more about their plans today. But
reporting alone is not enough.
We have to look at ourselves in the mirror and ask the
difficult questions. Let us take one example. Today in the
United States of America, more than 2.3 million people are
imprisoned. This is, by far, more prisoners than any country in
the world and, by far, the highest per capita rate of
incarceration in the world. African-Americans are incarcerated
at nearly six times the rate of white Americans. There are
human rights issues behind these numbers that we must look at
honestly.
I also want to acknowledge our shortcomings in Congress. We
have not held a single hearing on U.S. compliance with the
human rights treaties that we have ratified. Hopefully today we
will take a small step in the right direction.
Why is it important to comply with human rights treaties?
It is not because we fear the judgment of the United Nations.
Democrats and Republicans alike agree that some U.N. criticisms
may go too far from time to time.
We take our treaty obligations seriously because it is who
we are. The United States is a government of laws, and not
people.
Complying with our treaty obligations also enhances our
efforts to advocate for human rights around the world. When the
United States leads by example, we can help make universal
human rights a reality, both close to home and around the
world.
I note that Senator Coburn has not arrived. I do want to
note for the record that, though we disagree on so many things,
we have been able to find such valuable common ground in this
Subcommittee. He is a great ally and partner in our efforts on
human rights, and I am going to, of course, defer to him when
he arrives.
Unless my colleagues Senator Cardin or Senator Franken have
an opening statement, I am going to recognize the first panel.
Our first panel includes the top human rights official and the
top civil rights official in the Obama administration. Their
presence here today speaks volumes about the administration's
commitment to implementing human rights treaty obligations.
Each witness will have 5 minutes for an opening statement and
their complete statements will be made part of the record. I
would like to ask the witnesses to please stand and, in the
custom of the Committee, be sworn.
Do you affirm or swear the testimony you are about to give
is the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Posner. I do.
Mr. Perez. I do.
Chairman Durbin. Thank you. Let the record reflect that
both witnesses answered in the affirmative.
Our first witness, Michael Posner, is the Assistant
Secretary of State for Democracy, Human Rights, and Labor.
Previously the founding Executive Director and President of
Human Rights First, which he headed for 30 years, Mr. Posner is
one of our Nation's most prominent human rights advocates.
Among other accomplishments, he led the effort to enact the
first law providing for political asylum. He also helped found
the Global Network Initiative, a code of conduct for Internet
companies, that this Subcommittee held a hearing on last year.
He has a bachelor's degree from the University of Michigan and
a law degree from the University of California at Berkeley.
Mr. Posner, thank you for being here today. The floor is
yours.
STATEMENT OF MICHAEL H. POSNER, ASSISTANT SECRETARY FOR
DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEPARTMENT OF STATE,
WASHINGTON, DC
Mr. Posner. Thank you, Chairman Durbin and members of the
Committee, for holding this important hearing and for the work
of this Subcommittee. I have submitted written testimony that I
ask be made part of the record, and I am going to try to
summarize it now.
I would also ask that the text of Secretary Clinton's
speech on human rights earlier this week at Georgetown be made
part of the record.
Chairman Durbin. Without objection.
[The speech follows:]
Mr. Posner. Chairman Durbin, I first want to thank you for
your leadership in creating this important Subcommittee and the
leadership you have demonstrated on issues like child soldiers,
genocide accountability, Internet freedom, mental health issues
in prisons, and today on U.S. implementation of international
treaty obligations. We really appreciate your leadership.
I want to set the context for this discussion by noting the
Obama administration's commitment to advancing human rights in
the international community as guided by a commitment to
principled engagement; a determination to apply human rights
standards to every government, including our own; and a belief
that sustainable change in any society, including in this
country, must be rooted from within and, therefore, involve
civil society and other internal agents of change.
Drawing from these broad principles, I want to focus this
morning on three points, the first of which is this notion of
principled engagement.
As President Obama made clear in his speech at the General
Assembly and again last week in Oslo, and as Secretary Clinton
spelled out earlier this week, this administration is committed
both in word and deed to a new era of principled engagement
with the world. Our decision to join the U.N. Human Rights
Council earlier this year is one element, but we fully realize
the challenges we face in engaging with the U.N. on human
rights issues. All too often, the U.N. has been a venue for
government to play politics and exploit grievances. In deciding
to join the Human Rights Council, our intention is to challenge
these practices and to make the council a venue for advancing
the interests of vulnerable people around the world.
Second, our engagement at the U.N. and elsewhere is guided
by our own history and a bipartisan commitment to the human
rights agenda. The Founders of this country drafted a
Constitution that was predicated on our commitment to human
rights and fundamental freedoms, and in my written testimony I
spell out a range of historic landmarks, including the Four
Freedoms speech that President Roosevelt gave in 1941; Eleanor
Roosevelt's leadership, which you referenced in your opening
comments; and a range of comments also by Democratic and
Republican leaders, including President Reagan.
The third element that is essential here today is that we
apply the same international law principles to ourselves. That
is the purpose of this hearing, and as President Obama has
stated repeatedly, this must be a cornerstone of our human
rights policy. We can and we should lead by example, meeting
our own obligations under both domestic and international law
and not shying away from self-reflection and debate about our
own record. As Secretary Clinton again reaffirmed this week,
holding ourselves accountable does not make us weaker but,
instead, reaffirms the strength of our principles and our
institutions.
I want to just summarize where we are on the treaty
process. The United States has ratified, as you know, a range
of human rights treaties, including the Covenant on Civil and
Political Rights, the Convention Against Torture, the
Convention Against All Forms of Racial Discrimination, and
Optional Protocols to the Convention on the Rights of the
Child, as well as the Convention on the Punishment of the Crime
of Genocide.
These treaties require all parties to write periodic
reports, and we have done so since the mid-1990s, and we will
continue to do so, including reports on the Optional Protocols
on the Convention on Child Soldiers, which will come out in
January; on the Civil and Political Covenant, which we will
submit next September; and, importantly, as part of the Human
Rights Council, the Universal Periodic Review process, which is
a new process. We are taking it seriously. We are committed to
making sure that the United States engages in this process in a
way that involves not only different agencies of the Federal
Government, but that we also take it to the States, and we are
an involved civil society. We had a meeting last month with a
range of organizations, including the two that are testifying
in the second panel, about how we can engage civil rights,
human rights groups in this society in helping to make our
answers stronger.
So this is for us a fundamental piece of what we are trying
to do and build a human rights policy. I am excited about the
prospect of being involved in it, and I welcome your questions.
Thank you very much.
[The prepared statement of Mr. Posner appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Mr. Posner.
Our next witness is Thomas Perez. He is the Assistant
Attorney General for the Civil Rights Division at the Justice
Department. He has had quite an illustrious career in public
service. He previously served as the Secretary of Maryland's
Department of Labor, Licensing and Regulation. Prior to that,
he was a member of the Montgomery County Council, including a
stint as council president. Earlier in his career, he served as
Director of the Office of Civil Rights in the U.S. Department
of Health and Human Services, and as Deputy Assistant Attorney
General for Civil Rights. He also was a staffer to Senator Ted
Kennedy, and we all know Senator Kennedy's reputation when it
came to advocacy for human rights. Mr. Perez has a bachelor's
degree from Brown University; a master's in public policy from
the JFK School of Government and a law degree from Harvard Law
School.
Mr. Perez, thank you for joining us, and please proceed.
STATEMENT OF THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Perez. Thank you, Mr. Chairman. It is always a pleasure
to be back in front of this Committee, and it is a particular
honor to be in front of you and in front of my home Senator,
and Senator Kennedy's spirit endures in this hearing because I
am quite confident that this was an issue of great passion,
among many passions in his life. So it is a pleasure and an
honor to be here.
It is also a pleasure to be here with my friend and
colleague, Assistant Secretary Posner. We are working very
closely with the State Department, with other agency
colleagues, with other NGOs to ensure that civil rights and
human rights are understood as being inextricably intertwined.
From the time of our Nation's founding, in every generation
there are Americans who have sought and struggled to realize
the promise of our Constitution to ensure equality, equal
opportunity, and fundamental fairness for all people,
regardless of race, national origin, ancestry, gender,
religion, or disability. And in recent years, as we remarked
when we had the hearing in the Senate HELP Committee, Americans
have worked in earnest to combat discrimination against
individuals based on sexual orientation or gender identity. All
of this ongoing work--our civil rights work--is firmly rooted
in the human rights movement of the 1940s and 1950s. In fact,
our civil rights movement began as a human rights movement,
with giants such as W.E.B. Du Bois testifying, in 1947, before
the U.N. General Assembly on the denial of the right to vote
for African Americans, the continued pervasive discrimination
in educational opportunity, and the need for recognition of
human rights for African Americans. The Universal Declaration
of Human Rights, which was adopted in December 1948, recognizes
that domestic civil rights protections are integral to human
rights.
That civil rights are part and parcel of human rights was
underscored for me on a very personal level when I had my work-
study job in college, working at the Rhode Island Commission
for human rights. This was one of the oldest anti-
discrimination law enforcement agencies in the country. It was
established in 1949, the same period when the Universal
Declaration of Human Rights was adopted. The Commission had
then and has now responsibility for adjudicating domestic civil
rights complaints arising in Rhode Island, but like so many
other State and local human rights agencies, it is known as a
Commission for human rights, recognizing the inextricable
intertwinedness--if that is a word--between civil rights and
human rights.
At the Federal level, the Civil Rights Division has, since
its founding 1957, served as a primary force for realizing the
promise of the Universal Declaration, having the responsibility
to fully and fairly enforce the laws within its jurisdiction
and to coordinate domestic civil rights enforcement across the
Federal Government. Our national commitment to meeting our
international human rights obligations is manifested by our
enforcement of the Nation's civil rights laws and by our
recognition that civil rights, nondiscrimination, and equal
opportunity are indeed human rights.
As President Obama has so eloquently made clear on many
occasions, the only way we can promote our values across the
globe is by living them at home.
Today, the United States is party to three critical human
rights treaties whose subject matters coincide with the work of
the Civil Rights Division authorized under the Constitution and
U.S. laws. They include the International Covenant on Civil and
Political Rights; the International Convention on the
Elimination of All Forms of Racial Discrimination, which is
known as the CERD; and the Convention Against Torture and other
Cruel, Inhuman, or Degrading Treatment or Punishment.
Under the President's leadership, we are working closely
with our colleagues at the State Department and elsewhere in
the Federal Government to ensure that the reports required
under these treaties are done in a timely and thorough fashion
and that they accurately reflect both the strengths and areas
of improvement in our civil and human rights enforcement
program. We are actively participating in the newly revitalized
interagency policy Committee led by the National Security
Council to explore ways in which we can enhance our compliance
with and implementation of those human rights norms by which we
are bound. And we are committed to the continuing with, in
close partnership with the State Department in carrying out the
Government's first ever participation in the U.N.'s Universal
Periodic Review process. This effort, which is led by the State
Department, will include surveying human rights in the United
States, holding listening sessions across the country, and
compiling our findings into a report that will provide a useful
snapshot of where we are and where we need to go to meet our
constitutional and international obligations.
At the same time that we are working to meet our
international obligations, the Civil Rights Division at the
Department of Justice is committed to pursuing our agenda of
restoration and transformation, and one of the most important
things that we can accomplish in the Civil Rights Division to
meet our obligations under these treaties is to ensure that we
are fully and effectively and impartially enforcing all of the
civil rights laws that are on the books.
We recognize that as this Nation's leading civil rights
enforcement agencies, we cannot pick and choose which laws to
enforce, but we must be meaningfully and vigorously engaged
across the board. Our aggressive program of restoration and
transformation, therefore, spans the breadth of our authority
and includes a host of areas--voting, religious liberty,
nondiscrimination in employment, and the like. It also includes
prosecuting hate crimes, official misconduct by law enforcement
officers, and human trafficking. It includes renewed
enforcement of our laws ensuring equal access to housing,
nondiscriminatory lending and credit, and equal opportunities,
to name a few more--equal educational opportunities, I should
say, to name a few more.
Finally, it includes addressed the pressing civil rights
challenges of the 21st century, including, for example,
expanding Federal protection for LGBT communities in employment
and the successfully enacted hate crimes law, which I was proud
to be at the signing of roughly a month ago.
I also note that within the Department of Justice the
Criminal Division and the National Security Division share the
commitment of the Civil Rights Division to conduct our
activities in a manner that is consistent with the human rights
treaties outlined above.
Mr. Chairman, I look forward to working with you and other
members of this Committee on all of these issues, and I thank
you for your time and attention this morning.
[The prepared statement of Mr. Perez appears as a
submission for the record.]
Chairman Durbin. Thank you very much for your testimony.
It was about a week ago when Senator Boxer invited me and
Senator Lautenberg, Senator Wyden, and Senator Merkley to come
by her home and have dinner and then watch a documentary film
entitled ``Playground.'' It was a film that has not been
released yet, but it was produced by a young woman named Libby
Spears. She had begun this documentary in Asia on the issue of
child trafficking and child prostitution and at one point was
invited to meet with a person--I wish I remembered his name--in
the United States who said to her, ``Why are you going to Asia?
The country with the most child trafficking in the world in the
United States of America.'' Unfortunately, there are certain
places within our country where it is notorious, primarily the
Northwestern part of the United States.
The documentary focused on the trafficking of children for
prostitution and sexual exploitation between the United States
and Canada and other countries. It was, as you can imagine, a
gripping and sad documentary, which led me to tell my staff to
followup on this.
Well, let us put this topic in the context of today's
hearing. Shortly, you are going to be submitting a report on
our implementation of the Optional Protocol on Child
Prostitution. As you do that, as you reflect on this in terms
of not only the clear violation of American law, but our clear
treaty obligations here, can you put this in context as to what
that treaty does to either enlarge our responsibility or create
an added reporting requirement?
Mr. Perez. The factual circumstances that you describe
shock the conscience, and I had the privilege, Senator, Mr.
Chairman, of working in my previous iteration in the Justice
Department on a number of cases involving human trafficking,
sometimes of adults, sometimes of children. And those cases--so
many cases that came to our attention shocked the conscience,
but those cases were the ones that really kept you up at night
because you would see the exploitation of some of our most
vulnerable people in this country.
The Criminal Division, under the very able stewardship of
Lanny Breuer, is taking the lead in the issue of the child
prostitution rings that you discussed. We work very closely
with them because we also enforce the human-trafficking laws,
including the laws that were passed in 2000 and reauthorized a
number of times since then. And so it is a joint venture led by
the Criminal Division but assisted by the Civil Rights
Division.
And certainly the laws that are on the books give us a
remarkable set of tools at our disposal to move forward, and in
enforcing those laws, I think we are giving meaning to a lot of
the treaty obligations that you so correctly referred to, and I
think----
Chairman Durbin. Can I zero in on one in particular?
Mr. Perez. Sure.
Chairman Durbin. In 2008, the U.N. Committee on the Rights
of the Child criticized us for not having better data
collection in the United States regarding the number of child
prostitution victims. Are you familiar with that?
Mr. Perez. I have not seen that particular report, but one
of the things we talk about repeatedly in the context of
trafficking is the data collection challenges, whether it is in
the child prostitution context or the human-trafficking
context. Collecting data has been something that we have
strived to do. It is very, very difficult for a number of
reasons, but it is one of those job one's. If you cannot
collect the data, just like in the hate crimes context, the
Hate Crime Statistics Act, data collection informs your
prosecutive judgments and your investigative strategies. And
so----
Chairman Durbin. Are we doing something about that data
collection?
Mr. Perez. Yes, the Criminal Division is spearheading this
effort, and we are certainly assisting in that enterprise.
Chairman Durbin. Now, recently the State of New York passed
a safe harbor law. Are you familiar with this?
Mr. Perez. No.
Chairman Durbin. This law shielded sexually exploited
children from being charged with prostitution. The law diverts
child prostitution victims into counseling and treatment rather
than into juvenile detention. The New York law appears to be
the first such law in the land.
Are we contemplating similar action either at the Federal
level or do you know of other action at the State level that
would move us closer to our treaty obligations being fulfilled?
Mr. Perez. I am not familiar with the New York law to which
you reference, but I will certainly go back to the Criminal
Division and bring that to their attention and report back to
you on their analysis of the New York law and how it could
affect potential efforts in the Federal regard.
Chairman Durbin. Mr. Posner.
Mr. Posner. Yes, if I could just add, there is another
dimension of this which is the State Department Office on
Trafficking in Persons has for the last number of years done an
annual report that looks at the whole world but the United
States. And Secretary Clinton announce earlier this year that
the next report, which is 2010, will also include a chapter on
the United States. So that will help, I think, us as well do
some of the--compel some of the reporting and gathering of
statistics that you talk about. That is the first piece.
Then I think with that treaty and others, or with that
report and others, we ought to be looking at laws and
implementation, and we ought to take a broader policy look to
say, as we find problems, as we identify them in this kind of a
comprehensive report, what are the policies at a State and
Federal level that we can take to address the problem?
Chairman Durbin. I always thought this annual report from
the State Department with our human rights report card on the
world was an interesting, some would say audacious position we
are taking, that we are going to stand in judgment of others.
If I understand you now, we are going to add the United States
into this calculation in terms of our human rights record, at
least with respect to the treaty obligations we have accepted.
Mr. Posner. At this point it is with regard to traffic in
particular, trafficking, but we are also going to do the period
review which is going to take the whole look at everything in
2010, and then we will go from there.
Chairman Durbin. Mr. Posner, I also note that there were
some positive comments recently by the U.N. Special
Representative on Children in Armed Conflict about two bills
that we passed out of this Committee. That is good to know that
people notice our efforts in that regard.
What is the State Department doing to implement the Child
Soldier Prevention Act?
Mr. Posner. Well, again, one of the pieces now that the
laws in place--and we regard those bills as a very good policy
tool. We are beginning, as the laws require for us, to report
on this. And so the trafficking report and the human rights
report now are going to incorporate going forward those issues
into what we do as a starting point. And we are beginning to
work on a bilateral basis with governments to encourage similar
legislation and similar attention to these issues. That is
really critical as a part of our foreign policymaking.
Chairman Durbin. We examined the child soldier issue. We
identified countries that organizations have said have been
involved in this, which we would generally characterize as our
allies, some of whom we provide foreign aid to. And now we
asked that this be part of the calculation of our future
relationship with these countries. Is that going to be done?
Mr. Posner. Well, as a first step, we are going to do the
reporting, and then coming out of that, we are going to take a
look at what it means in terms of our relation and our aid
program, yes.
Chairman Durbin. I might add that we tried, rather than to
be punitive, to be constructive in terms of making certain that
resources would be dedicated to repatriating these child
soldiers and giving them the help that they need to come back
to a normal life. So it is not just a matter of saying we will
cut you off, but hoping that we can use some of the resources
to stop the practice and to deal with those who have been
victimized by it.
Mr. Posner. We agree. This is a high priority for us, and
both elements are right. We need to put pressure on governments
to stop the practice, and we need to recognize that the victims
need to be rehabilitated and need support. And there are
various programs that my bureau is involved in in a number of
places trying to do that.
Chairman Durbin. Thank you.
Senator Cardin.
Senator Cardin. Well, Mr. Chairman, let me first point out
that there would not be a Subcommittee on Human Rights and the
Law but for the leadership of Senator Durbin, and I personally
want to thank you for your commitment to put a focus in the
U.S. Senate on human rights and the compliance by the United
States on our human rights obligations, not just our treaty
obligations but our obligations to what this Nation stands for.
This is a historic moment that we are having this hearing,
and I just really want to first thank you for doing this.
Chairman Durbin knows of my interest and his interest in
the Helsinki Commission and the process of the Helsinki
Commission where we look at human rights and we put a spotlight
on problems around the world. Our Commission has also put a
spotlight on the United States because we do need to make
advancements. We are not doing everything right. We can do a
better job, and it is important that the international
community understand that it is not only our interest in what
is happening globally, but what is happening in the United
States. So thank you for holding this hearing and thank you for
your efforts that we have a Subcommittee that can focus on this
issue.
I first also want to applaud the Obama administration. I
think the actions taken by the President shortly after he took
the oath of office to make it clear that the United States
would deal with issues such as torture, making it clear that we
would not tolerate torture in the United States under any
circumstances, that we were going to comply with our
international obligations and our domestic laws, Attorney
General Holder's actions early in making clear that prior
opinions of counsel would no longer be applicable. Declaring
the intent to close Guantanamo Bay was a clear message to the
international community. And Secretary Clinton's comments this
past week about the importance of human rights was a welcome
message. So I applaud the administration.
Now, let me get to some of the specifics. I think the point
that Chairman Durbin made about these reviews that are required
by law--and trafficking is an area where the United States has
taken a major leadership role internationally and has changed
the attitude internationally on trafficking, and we now have an
action plan in many countries around the world. We know that
there are countries that are the source of trafficking, and
then it will not take place unless there is a destination
country. And you have to have actions at both places.
We do require by law that there be a report by the State
Department on the actions of all countries in dealing with
trafficking, and we appreciate that that review now will take
place as to our current laws in the United States and the
actions taking place in the United States.
We do by law require you to do human rights evaluations of
all countries. We do not have that by law required for the
United States. And I think one of the things, Mr. Chairman, we
might want to take a look at is whether we should not as a
Congress institutionalize a review of our own actions and
meeting standards on human rights as well as the trafficking
issue. And I would welcome thoughts as to whether we can do
this administratively, whether Congress should weigh in so we
institutionalize. But these reviews need to be given more
attention, more attention in the United States and more
attention internationally. And I am afraid that we have not
used the reviews generally on human rights as effectively as we
could.
A lot of work goes into it, but I think we need to have a
more effective use of these reviews. And it would certainly
have more credibility if the United States was part--if we
reviewed actions in our own country with the same standards we
use in the international community.
Let me just question you on some of the statements that you
have first, Mr. Posner. The Convention on the Elimination of
All Forms of Racial Discrimination, I appreciate the fact that
you said that we will communicate on a regular basis as
required by the Convention and give thorough reports, but that
has not been the case in the past. The United States has been
tardy in submitting its reports, and it certainly has not
provided detailed information.
There have been criticisms of the U.S. compliance with the
treaty obligations in racial profiling and the manner in which
we treat juveniles. These issues have been raised in the past
along with how Katrina was handled internationally,
perceptions--not only perceptions, but reality.
Can you just elaborate a little bit more on our commitment
to comply with this treaty as far as listening to the concerns
that are being raised and giving a more timely and detailed
response to the reporting?
Mr. Posner. Yes, Senator. Thank you for asking the
question. I think there are different approaches to how you
look at these treaties and our reporting. One approach is to
say this is something that is required by the U.N. or somebody
and let us do it de minimis. Let us tell them what we need to
tell them and tell them what the laws are, et cetera, but it is
really not about us.
And there is another approach which is the approach that I
favor and this administration, the President has articulated,
which is to say let us actually take a look at the underlying
issues and figure out how we can use the reporting process to
improve our own record.
This is a great country, and we have a great democratic
constitutional system, but there is always room for
improvement. And we ought to use these reporting
opportunities--and view them as opportunities--to take a look
at our own performance and say where there are shortcomings and
how do we address them at a Federal and at a State level. It is
easier to say that than to do it, but beginning with the
Periodic Review this year and the review of the Civil and
Political Covenant, and then in subsequent years we are going
to come back to the Convention on Racial Discrimination, the
Convention on Torture, and we are going to look to see how do
we both engage various Federal agencies that need to be part of
this, how do we engage the States, and how do we take advantage
of expertise of groups like the Leadership Conference on Civil
Rights to figure out--and Wade Henderson's testimony lists a
number of things that I think we need to be looking at when we
come back to the review of the racial discrimination treaty.
So I do not have the particulars now of what we are going
to do, but I can assure you that our intention is to be
forthcoming, honest in our evaluation, to be inclusive in the
approach, and to use it as an opportunity to figure out what we
need to change.
Senator Cardin. Thank you.
Mr. Perez, in your written comments--you were unable
because of the clock to give all of your statement. I just want
to underscore two points and then ask a very quick question,
and I know the Chairman is going to be a little lenient on me
because I spent my first minute complimenting him. I am sure I
can get an extra----
[Laughter.]
Chairman Durbin. Take your time.
Senator Cardin. But I really want to compliment you for
taking this opportunity to continue your commitment in the
Civil Rights Division and the Department of Justice is
committed to pursuing a more robust approach to civil rights
enforcement and accomplishment, that you are committed to
ensuring full political participation by qualified voters in
our democratic process through enforcement of our voting rights
laws, and engage in affirmative programs to reinvigorate our
enforcement of Title VI of the Civil Rights Act of 1964. That
is in your written statement, and I just really want to put a
spotlight on that because you and I have talked about this, and
we are very much supportive of the Department of Justice and
the Civil Rights Division doing its traditional role in these
very important areas.
I have one specific question which deals with the torture
treaty. When the Senate ratified that, they referenced
amendments to our Constitution 5, 8, and 14 as saying that it
is how we interpret the Convention Against Torture. That seemed
to be adequate at the time, but now that I look how the Bush
administration tried to justify torture, which I think was
against our Constitution and our laws, but clearly against the
Convention, do we need to take a better look at the treaty to
make sure that it is clear that we are in compliance with the
international agreements? And, second, does the statute of
limitations--that is not mentioned here--cause any concern as
to whether we would be restricted in a 5-year statute of
limitations, which is generally used? And do we need to take
further action in order to make it clear that torture is not
going to be permitted?
Mr. Perez. Thank you for your questions, and thank you for
your longstanding leadership, not only for the Nation but also
in the State of Maryland on civil rights issues, Senator.
The torture issues are very, very critical, and what we
have observed most recently, for instance--and this was a
Criminal Division prosecution in the Southern District of
Florida of Chuckie Taylor, the son of Charles Taylor of
Liberia, under the Federal statutes that you enacted. In that
particular context, actually in the briefs there was reference
to the treaty that you just referred to, and so I think it was
an example of where Federal law was informed by our treaty
obligations and actually resulted in a very successful
prosecution of an individual who had engaged in heinous acts.
And so that was, I think, a very good example of the interplay
between our treaty obligations and Federal laws that were
enacted that really reflect those values embodied in those
treaty obligations.
As it relates to the statute of limitations question, I
would need to study that further because I have not really
studied that in any detail, and I am reluctant to give what
prove to be uninformed answers. But I am very committed to
getting back to you on that.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Chairman Durbin. Thank you.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I have been here
a while now. I did not know this rule. How many seconds extra
do I get for every second I compliment you?
Chairman Durbin. Two. It is a bonus.
Senator Franken. OK. Well, in that case, thank you, Mr.
Chairman, for your leadership and for calling this
exceptionally important hearing. This is the first hearing in
the Senate on our compliance with human rights treaties, and so
I am proud to be a Senator on this day, and I am proud to be a
Senator from Minnesota. My State has a long history in the
fight for human rights. We are the first State in the Nation to
have a center for the rehabilitation of victims of torture, and
we consistently welcome more refugees to our State than any
other State per capita, I think the second most in the Nation.
My predecessor, Paul Wellstone, was a consistent and
unabashed advocate for human rights, authoring and passing, for
example, the Trafficking Victims Protection Act in 2000. This
has been bipartisan from Senators from our State, and I hope to
keep that tradition alive.
Let me ask a few questions first of Mr. Posner. Last week,
in a hearing I asked Secretary Napolitano about the detention
of asylum seekers, and I know you know a lot about refugees
seeking asylum. Now, this issue is very relevant at this
hearing. Let me explain. You can be a human rights activist who
was jailed and tortured in another country, get a visa to come
to the United States, enter the country legally, and ask for
asylum the second you arrive here, step off the plane, and you
will be mandatorily detained. In fact, even after you have
convinced two Government officials, the customs agent and
asylum officer, that you have a credible fear of returning
home, the Government can continue to detain you. This happened
to thousands of asylum seekers in this country.
I know that you are scheduled to report on the United
States compliance with the International Covenant on Civil and
Political Rights. Do you think that these practices are
consistent with Article 9, Section 1 of the International
Covenant on Civil and Political Rights, which this Congress
ratified in 1992 and which prohibits arbitrary detention?
Mr. Posner. This is, Senator, as you know, something that
in my previous life I worked on quite a bit, and I do still--
this is not the focal point of what I am doing in the State
Department, but it is something that I think we as a Government
need to take a very close look at. We will take a look at it
both in the context of reviewing the Civil and Political
Covenant, but also in this Periodic Review.
One of the things we are going to do--and I think it
mentioned it in the opening statement--is to have a series of
consultations around the country starting next month in New
Orleans looking at some of the Katrina issues. And others are
going to be set in different parts of the country. At least one
of those reviews will be designed to look at a range of
immigration and refugee issues in particular, and this is
something that is very close to my heart.
Senator Franken. I know that.
Mr. Posner. And I can assure you we are going to look at
it.
Senator Franken. Then another point on that. Once an asylum
seeker is detained and the Department of Homeland Security
decides to keep him in detention, that asylum seeker cannot
appeal his detention to an immigration court. That is an
unappealable decision. I do not think that is consistent with
Article 9, Section 4 of that treaty, the requirement that
anyone detained be afforded access to a court to challenge his
or her detention.
Could you look at that as you conduct these hearings and as
you think more about this issue?
Mr. Posner. We certainly will, and I would say just
generally I am not up to speed on all of the details of this
right now.
Senator Franken. Sure.
Mr. Posner. But I would say in general one of the things I
certainly noticed, we noticed over the last 8 years, 9 years,
is that refugee issues became very much part of a national
security debate, and in that context, there was a lot of
overreaching. And I think part of our challenge as an
administration coming in is to take a fresh look at all those
things. So that is what we will do.
Senator Franken. Thank you.
Mr. Perez, first of all, ``intertwinedness'' is not a word.
[Laughter.]
Mr. Perez. OK. Thank you. I looked at you when I said that,
Senator.
Senator Franken. I know.
Mr. Perez. I do not know why I looked at you when I said
that.
Senator Franken. I got to ``interconnectivity.''
Mr. Perez. That works.
Senator Franken. You referred to the HELP Committee hearing
where you very rightly supported the Employment
Nondiscrimination Act, at least in my mind, which would
prohibit discrimination on the basis of sexual orientation and
gender identity. Do you have a position on the ratification of
the Convention on the Elimination of All Forms of
Discrimination Against Women? You did not mention CEDAW in your
testimony, but I believe that we are one of just a handful of
nations that have refused to ratify the Convention, and on this
point we are really in the same league as Sudan and Iran. Do
you have a position on that? Does the administration have a
position on that?
Mr. Posner. Maybe I can answer that. There are several
human rights treaties that we have signed, the U.S. has signed
but not ratified, and I think the Commission Clinton has made
it clear that this treaty, CEDAW, the Convention on Elimination
of Discrimination Against Women, is a priority--in fact, the
first priority. So one of the challenges we have is coming up
here and finding 67 of you to support it, but we are committed
to doing it, and we are in the process of reviewing how we are
going to go about coming up here and asking for it. But it is
something that the Secretary is very, very committed to, as am
I.
Senator Franken. Very good. Thank you.
Chairman Durbin. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Two months ago, Senators Leahy, Cardin, Franken, Kerry, and
myself asked your respective Departments for recommendations on
how to bring the United States back into compliance with the
Vienna Convention on Consular Relations. The U.S. Supreme Court
in Medillin v. Texas determined that the Congress must act to
address the fact that the United States is currently out of
compliance with its Vienna Convention obligations, as found by
the International Court of Justice in the 2004 Avena case. In a
recent letter, the United States Council for International
Business explained the dangers of the situation and said, ``The
security of Americans doing business abroad is clearly and
directly at risk by U.S. noncompliance with its obligations
under the Vienna Convention. Overseas employees of the U.S.
business community as well as other Americans traveling or
living abroad need this vital safety net.'' And John Bellinger,
the legal adviser to the State Department under Secretary Rice,
made the same point in a recent New York Times op-ed piece. I
would ask first, Mr. Chairman, that various materials relevant
to this issue be placed in the record.
Chairman Durbin. Without objection.
[The information referred to appears as a submission for
the record.]
Senator Feingold. So given that background, do you agree
that addressing this issue is critically important to the
protection of Americans abroad? And when can we expect a
response to our letter asking for your Departments' input on
how to bring the United States back into compliance with the
Vienna Convention?
Mr. Perez. I absolutely agree that it is a critically
important question because it implicates foreign nationals here
and Americans abroad, and I appreciate your leadership in this
issue. I have reviewed your letter and consulted with others in
the Department.
As you well know, it is a very complex question because it
implicates both what we do at the Federal level and then what
States do, and the reason for the delay--and I apologize for
that--is simply the complexity of the issue, because as you
know the Medillin case basically stood for the proposition that
there are limits to what the Federal Government can say to a
sovereign state. And so we are attempting to move forward,
recognizing those complexities, to come up with a series of
solutions that will address the issues that, you correctly
point, ensure the security of Americans abroad and ensure our
compliance with our treaty obligations here at home. I am
continuing to consult with our colleagues at the Department,
and we hope to get a response to you at the earliest
possibility opportunity. And I can assure you that there is
robust discussion underway within the various relevant
components of the Department and our sister agencies as we
address how best to address the myriad of complexities in this.
Senator Feingold. What kind of timeframe are you suggesting
for a response to the letter?
Mr. Perez. I will consult with my colleagues and attempt to
get you an answer within the next few days about when that
timeframe would be.
Senator Feingold. That is good.
Assistant Secretary Posner, according to an Executive order
issued by President Obama in January, the U.S. Government must
``provide the International Committee of the Red Cross with
notification of and timely access to any individual detained in
any armed conflict'' and in U.S. custody. The New York Times
recently published a story alleging that there is a secret
detention facility in Afghanistan to which the ICRC does not
have access and where detainees allege that they have witnessed
abuse as recently as this year. So let me ask you: Does the
ICRC have access to all U.S. detention facilities in
Afghanistan? And what does it mean to provide timely access to
the ICRC?
Mr. Posner. Senator, I have seen those articles, and I am
going to have to refer back and give you a written answer to
that. I am not the person who has the most timely information
on that.
Senator Feingold. When can we expect that answer?
Mr. Posner. Soon. I will push hard to get that answer to
you in the next few weeks.
Senator Feingold. OK. Assistant Secretary Posner, again, as
you know, 21 years ago the United States became a party to the
Convention on the Prevention and Punishment of the Crime of
Genocide, and you actually mentioned that treaty in your
statement. The ratification of the treaty was obviously a
momentous occasion, not just because it was the first human
rights treaty passed by the U.N. General Assembly, but also
because it was a signal to the world that the United States
would never again sit back and watch as genocide took place.
And I believe that when the United States ratified this treaty,
it agreed to take decisive action to help prevent and punish
genocide. I am raising this with you, perhaps obviously,
because in 2004 the Bush administration made a determination
that genocide had been committed in the Darfur region of Sudan
and stated at the time that genocide could still be occurring.
So after making that determination, what obligation do you
believe the United States has to attempt to halt the genocide?
And do you believe that the United States has fulfilled its
legal commitment in this instance?
Mr. Posner. Senator, we have, obviously, in the last
several years watched painfully as hundreds of thousands of
people have been killed in Darfur and several million have been
exiled or internally displaced. I do not think any of us are
satisfied with the way in which it has unfolded or believe that
there cannot be more done.
I do not view this so much as a legal obligation, but I
think it is an absolute obligation of leadership in the world
for us to do everything possible to address the genocide that
occurred in Darfur and the continuing suffering. It is a tragic
situation and one that in some ways continues to deteriorate.
So we are committed to trying to find the right answer
there. The alternatives are tough, and there is also a growing
concern--and I think this has been part of the challenge
recently--in a disintegration of the country between north and
south and General Gration is preoccupied, understandably, with
trying to hold the country together. But my view would be--and
I think it is the administration's view--that we have to do
both. We have to be engaged in trying to hold the country
together and prevent a further erosion of peace in the south,
but at the same time continue to focus on the genocide and
violence----
Senator Feingold. Of course, I am aware of and deeply
involved in all those policy arguments, but my question to you
had to do with our legal obligation under the Genocide
Convention. It is a narrower and important question. What are
the ramifications of the position we have taken vis-a-vis the
Genocide Convention in Sudan, particularly if we believe the
genocide is still happening in Darfur?
Mr. Posner. I think the legal obligation is that we have to
respond to end the genocide. How you do it and what that means
in practical terms I think is harder.
You know, there has been a discussion, as you know and have
been involved in for a long time, about what are the military
options, what are other options in terms of sanctions. All of
those things are still being discussed and on the table.
Senator Feingold. Does this administration continue to
believe this is genocide occurring under the Genocide
Convention?
Mr. Posner. I would have to get back to you on that. There
is no question and various administration officials have said
that genocide occurred in Darfur and there are continuing gross
violations occurring to this day. I do not think the
determination of whether the word still applies is really the
key thing. It is an unacceptable situation now, and we need to
be operating with all of our energies to prevent the continued
violence and killing and disappearance and rape that
characterizes Darfur today.
Senator Feingold. Thank you.
Chairman Durbin. Thank you, Senator Feingold.
I want to thank this panel. This is not the last time we
will probably call on you, because I think that we feel--and I
think you share this feeling in the administration--that as
painful as some of these questions may be, it is appropriate
that we ask them and establish that we are trying our best to
live up to the very standards that we have agreed to and that
we suggest the rest of the world should abide by. So thank you
very much for your service.
Mr. Posner. I agree.
Mr. Perez. Thank you for your time, Mr. Chairman.
Chairman Durbin. We are honored to welcome on our next
panel two of our Nation's leading human rights and civil rights
advocates. I am going to introduce them as they are sitting
down in the interest of time.
The first one who will testify is Elisa Massimino. She is
the President and CEO of Human Rights First, one of the
country's most prominent and well-respected human rights
organizations. Ms. Massimino joined Human Rights First in 1991
and was previously the organization's Washington Director. Ms.
Massimino is also an adjunct professor at the highly regarded
Georgetown University Law Center. She holds a bachelor's degree
from Trinity University in San Antonio, Texas, a master's
degree in philosophy from Johns Hopkins University, and a law
degree from the University of Michigan. I want to especially
note that Ms. Massimino has been very supportive of our
Subcommittee efforts since it was created in 2007. Although we
work very closely with Ms. Massimino, this is her first
appearance before the Subcommittee.
I will introduce the next witness and then ask that they
both take the oath.
A personal friend and a real leader, I am just honored that
he is here today. Wade Henderson is President and Chief
Executive Officer of the Leadership Conference on Civil Rights;
the largest and oldest civil rights coalition in America. Mr.
Henderson is also a law professor at the University of the
District of Columbia. Previously, he was the Washington Bureau
Director of the NAACP and Associate Director of the ACLU's
Washington office. He has a bachelor's degree from Howard
University and a law degree from Rutgers University School of
Law.
If I could ask you both to stand for the oath, please. Do
you affirm that the testimony you are about to give is the
truth, the whole truth, and nothing but the truth, so help you
God?
Ms. Massimino. I do.
Mr. Henderson. I do.
Chairman Durbin. Thank you. Let the record reflect that
both witnesses answered in the affirmative.
Ms. Massimino, please proceed.
STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC
Ms. Massimino. Thank you, Mr. Chairman, and I thank the
Committee for holding this important hearing. We are just
profoundly grateful to you, Senator Durbin, for your leadership
on so many human rights issues and, in particular, for the
central role that you played in creating this Subcommittee. We
think the Subcommittee's work signals a new approach and
thinking about human rights in this country and that it will
help educate Americans about their human rights and ensure that
the U.S. Government views its human rights treaty requirements
as a part of its domestic law. This is what the Constitution
requires, so it is particularly fitting that the Judiciary
Committee now formally can look at these issues explicitly. In
the many years since the United States first started ratifying
human rights treaties, I think this is the first hearing that I
can remember ever explicitly addressing these issues, and we
hope it is the first of many.
I also want to welcome the attention of the Government
witnesses to these issues. I really do not Congress could have
any two better partners in this effort than Tom Perez and Mike
Posner, both of whom really deeply understand the importance of
implementation of human rights commitments. So we look forward
to working with them and with you to further this.
You mentioned the Eleanor Roosevelt quote about human
rights beginning close to home, and it is particularly fitting.
It should be on this Committee wall somewhere because the human
rights treaties are intended to protect people close to home
against government abuses of their rights. They are the supreme
law of the land under our Constitution, but most Americans have
never heard of them, and most government agencies who have the
jurisdiction over the subject matter that is covered in those
treaties have never heard of them either.
Historically, the U.S. Government has kept the examination
of human rights treaties behind a fence at the State
Department, where they have been treated primarily as a matter
of foreign policy. And for many years, Congress took the same
approach, limiting jurisdiction over these issues--as human
rights issues--to the committees that oversee the State
Department and foreign relations.
But that approach misses Eleanor Roosevelt's point. The
U.S. Government has to understand that human rights laws are
part of our domestic law, and Congress and the executive branch
need to work together to bring these obligations into the
mainstream of the domestic agencies with primary jurisdiction
over their subject matter.
Last week, we celebrated the 61st anniversary of the
Universal Declaration of Human Rights, which is our foundation
document setting out the principles that the human rights
treaties are intended to operationalize as standards by which
to judge all governments. And as an organization based in the
United States, my organization, Human Rights First, has focused
particular attention on making sure that the U.S. lives up to
those obligations. Ensuring compliance with human rights treaty
obligations strengthens the U.S. effort to advance human rights
abroad. And as Secretary Clinton said in her speech on Monday,
we have to lead by example. There is just no substitute for
U.S. global leadership on human rights. Without it, the agenda
crumble and repressive governments operate with greater
impunity, and really the very fabric of the norms that are
enshrined in the Universal Declaration starts to fray. When the
U.S. itself violates these norms--or sets them aside for
expediency's sake--the global consensus erodes. And as
President Obama said in Oslo last week, ``we honor those ideals
by upholding them not when it's easy, but when it is hard.''
We can have many hearings--and I hope we will--about the
distance, the gap between our obligations and ideals and the
current reality in the United States, but my testimony, which I
hope you will accept in full in the record, outlines a strategy
going forward to create a structure to ensure greater fidelity
to those ideals and obligations in the future. And that is
based on three components which I will just summarize briefly.
First is the executive branch structure to enhance
compliance, and you have heard about the Interagency Task Force
on Treaty Implementation. I remember when the Interagency Task
Force was formed, and we had high hopes for an expansive agenda
for that Interagency Task Force. To my knowledge, it focused
primarily on reporting externally to U.N. bodies and inquiries
abroad about how we were complying with our treaty obligations,
and that is very important. And as you mentioned, under
President Bush we got current on our treaty reporting
requirements. It is very important.
But, really, for there to be a revolution in how we think
about human rights in the United States, there has to be a lot
more, and we would propose that the executive branch create a
structure that will do a few important things: ensure that the
legislation that is promoted by the administration or on which
the administration is taking a position is vetted for
conformity with treaty obligations; educate State and local
governments and the broader public about their rights and
responsibilities under human rights treaties; develop and
execute a plan to monitor law, policy, and practice at the
State level to assess conformity with human rights obligations;
conduct an annual review of the reservations, understandings,
and declarations to the treaties; and ensure that domestic
agencies with the jurisdiction over this subject matter really
have content experts who understand that this human rights law
is part of their obligation.
I see my time is already up, so I am going to leave the
rest of the discussion about what Congress can do for the
questions and answers. Thanks.
[The prepared statement of Ms. Massimino appears as a
submission for the record.]
Chairman Durbin. Thank you.
Mr. Henderson.
STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, WASHINGTON, DC
Mr. Henderson. Thank you, Mr. Chairman, for this really
important hearing, and thank you for having me here today on
behalf of the Leadership Conference on Civil and Human Rights,
a coalition of over 200 national organizations committed to
building an America that is as good as its ideals. I appreciate
your including the formal written statement in the record
today, so thank you for that as well.
We believe that human rights instruments, like the
Universal Declaration of Human Rights and the Convention on the
Elimination of All Forms of Racial Discrimination, are not
merely aspirational statements but effective tools for
illuminating inequities here at home and abroad. Indeed, as Tom
Perez noted in the previous panel, while it may have gone by a
slightly different name, our Nation's modern civil rights
movement was very much at its heart a human rights movement.
The Leadership Conference itself was founded at the dawn of
this movement, just 2 years after the adoption of the Universal
Declaration and only 5 years after the Holocaust and the
internment of Japanese Americans on U.S. soil. Our leaders were
motivated not only by the standards articulated in our Nation's
founding documents, but those in the Universal Declaration as
well.
Now, with that in mind, and with our 60th anniversary
approaching, we have chosen to honor the legacy and the
foresight of our Founders by fully incorporating the term
``human rights'' into our name. In January of 2010, we will
officially become the Leadership Conference on Civil and Human
Rights. Civil rights are human rights, but we also know that
the concept of human rights extends beyond those personal
rights guaranteed by the U.S. Constitution, to include
protections such as the National Right to Education for All.
Moving more directly to today's subject, I want to thank
you for this hearing again and for your efforts in general to
step up Congress' oversight of our domestic human rights
obligations. The fact that this Subcommittee did not even exist
prior to 2007 points to a troubling fact. Congress has not done
enough to ensure that the United States lives up to its treaty
obligations, which represent not just mere ideals but the law
of the land. Today's hearing represents an encouraging turning
point.
We are also encouraged that the United States has been
working to reclaim the leadership on international human rights
matters by joining the UN's Human Rights Council, signing the
Convention on the Rights of Persons with Disabilities, and by
the effort of U.S. NGOs to support the Senate's ratification of
the Convention on the Elimination on All Forms of
Discrimination Against Women.
But as our Nation takes on these new commitments, we cannot
lose sight of those that we have already made. As we reclaim
our leadership on human rights, our shortcomings at home are
not only harmful, they also undermine our credibility with
other nations, and as they have in the past, they also serve as
easy fodder for opponents who want to divert attention from
even worse wrongdoings of their own.
With that in mind, we would strongly encourage Congress to
look at the following issues through a lens of our
international treaty obligations:
One issue that clearly implicates our international treaty
obligations is that of racial disparities in our criminal
justice system, particularly the one in sentencing for crack
and powder cocaine, which has had a disproportionate effect on
African-Americans and has helped give the United States the
largest prison population in the world.
To be sure, the sale of any cocaine product should be
punished, but I think we can all agree that it should not be
done in a disproportionately harsh and discriminatory manner,
and that is the one area where the U.S. Sentencing Commission
and the international community clearly agree.
A second area is with respect to D.C. residents who
currently face taxation without representation and lack a vote
in our National legislature in violation of the most important
right that citizens have in a democracy. International human
rights bodies have taken notice, and the disenfranchisement of
D.C. residents continues to undermine our efforts to promote
democracy elsewhere.
Third, the United States clearly needs a truly independent,
bipartisan, national civil and human rights institution. For
many years, we had one in the form of the U.S. Commission on
Civil Rights, but the Commission has been weakened by political
partisanship and is now a hollow shell of its former self. It
is in dire need of overhaul.
Fourth, both international human rights standards and our
Nation's civil rights movement have long recognized that the
right to form unions plays a critical role in ensuring
equality. As A. Philip Randolph, one of our founders, once
said, ``The two tickets to a better life are a voter
registration card and a union card.'' But as workplaces change
and as our Nation's policies fail to keep up, it is becoming
harder and harder for all workers to organize, in violation of
our obligations under the Universal Declaration, among other
instruments.
Finally, and sadly, the United States has clearly not taken
seriously its human rights obligations toward the indigenous
peoples of this country, the first Americans, in clear
contradiction of well-established human rights principles and
despite repeated condemnations by international human rights
bodies.
We strongly believe that civil and human rights must be
measured by a yardstick both at home and abroad. On issues such
as these, Congress must step in and make sure that our country
is living up to the standards that we are trying to establish
throughout the rest of the world.
Thank you, Mr. Chairman, and I look forward to the
questions.
[The prepared statement of Mr. Henderson appears as a
submission for the record.]
Chairman Durbin. Thank you both. Mr. Henderson, thank
goodness for your voice. The fact that you are here so
frequently and the message that you bring is an important part
of this democratic process. I do not know what we would do
without you, and I am glad you are here today.
Ms. Massimino, will you follow up on that? Mr. Henderson
has been rather specific. Could you put it in this context? I
am sure that, with your background in human rights and meetings
with others from around the world, occasionally you will get
into this exchange about how before the United States judges
anyone else, why don't you take care of your own situation? You
have heard Mr. Henderson's list. What would you add to it?
Ms. Massimino. Well, I think we are in the context of the
fight with al Qaeda in the last 8 years, I mean, this has been
one of the biggest set-backs to U.S. global leadership, are the
steps that the United States took to diverge from the Geneva
Conventions, from the Convention Against Torture.
You know, shortly after 9/11, when these measures started
to come to light internationally, I was at a meeting with many
of my counterparts from all around the world--Asia, Africa, the
Middle East--all of whom are on the front lines of the struggle
for human rights and democracy in their own countries. And when
I asked them then what can we do to help you, they all to a
person said, ``You have got to get the United States back on
track, get your own house in order, because we need the United
States to be a strong global leader on human rights.'' Without
it, as I said, the consensus erodes and the norms become less
than universal.
I was just at a conference last week in London with human
rights activists and government leaders from around the world,
and the topic was: Are universal human rights really universal
anymore? And I really do not believe we would have had that
conversation before the missteps of our own country with
respect to torture and abuse of prisoners and the Geneva
Convention problems, the divergence from the Geneva Conventions
that we had.
So we still have work to do there, and the announcement
yesterday with moves to close Guantanamo is a welcome step. But
as you know, the devil is in the details, and the world is
watching how we resolve these problems from accountability to
prolonged, indefinite detention without charge. So we have to
be vigilant.
Chairman Durbin. Are there any other areas? Not that I want
to diminish that, but there are so many different fronts that
we can discuss. I spoke earlier about child trafficking. I am
really asking you if your list would go to include any other
topics that Mr. Henderson did not touch.
Ms. Massimino. Oh, it is a very long list and I----
Chairman Durbin. It sure is.
Ms. Massimino. In fact, I think it was a wonderful
opportunity that you provided to the public to solicit
testimony from so many groups who are focused on this issue,
and I have begun to look at all of the submissions. My own
organization, as you know, we touched on this earlier--I think
Senator Franken raised it--about the discrepancy between our
obligations under the Refugee Convention and the protocol that
the U.S. is a party to and how we treat refugees and asylum
seekers in this country. Next year will be the 30th anniversary
of the Refugee Act, and I think it would be a particularly
appropriate time for this Subcommittee to look at the specifics
of our obligations under that treaty and whether or not we are
living up to them under our own domestic legislation.
There are many, many other areas that we could talk about,
and I think I would--as a proud member of the Leadership
Conference on Civil and Human Rights, Wade and I work closely
together on a whole range of these issues.
One on which I think we ought to--that this Committee could
focus particular attention on which has the added benefit of
enabling us to--the State Department and the Justice Department
to join together and share our wisdom about how we are dealing
with these issues with other countries is on bias-motivated
violence and hate crimes. We obviously have taken a step
forward there with our laws recently with the Matthew Shepard
Act, but now we need to implement that, collect the data and
demonstrate that it makes a difference on the ground.
Those mechanisms and structures that we develop in
Government to do that can be shared with other nations who also
are facing in many places a disturbing rise in bias-motivated
violence. So I would add that to the list as well.
Chairman Durbin. Mr. Henderson, before I rechaired this
Committee, I for a brief time was the Chairman of the Crime
Subcommittee, which Senator Specter now chairs, of the
Judiciary Committee. To demonstrate a certain
``intertwinedness'' between that Subcommittee and this
Subcommittee----
[Laughter.]
Chairman Durbin. One of the early hearings we had was on
the crack/powder cocaine disparity. The administration has come
out against the disparity and called for a 1:1 sentencing
guideline. I have introduced legislation along that line, and
it now is pending before the Committee, and we are working with
the other side to see if we can find any common ground so that
this can move in a fairly quick fashion.
But can I step back for a second from that and say that,
even before that disparity, we could see racial disparities
within our system of justice. As bad as this is, as much as it
has aggravated the situation--and I plead guilty as one of
those who voted for it along with many others in the House who
thought this was the right thing to do at the time, and I now
realize how wrong we were. But this is the thing that you
headlined as the first on your list and one that I have often
asked of people aspiring to the bench and other law enforcement
positions in our Government, to try to explain for a moment
what this country is all about, where 12 or 13 percent of the
population is African-American and it turns out that the
numbers are just out of line in terms of those arrested,
convicted, and incarcerated, as I said here 6:1.
Can you step back for a moment, and be reflective and say
what more can we do? I mean, we have made--for the record, we
have made substantial progress.
Mr. Henderson. Absolutely.
Chairman Durbin. Witness my former colleague in the Senate.
But can you tell me what more you think we can or should do?
Mr. Henderson. Mr. Chairman, thank you for your question,
but thank you for your incredible leadership on this really
extraordinary issue. The fact that you have introduced a bill
to address the crack/powder cocaine disparity, a bill in the
Senate that is now the pending business of the Judiciary
Committee, is extraordinary.
You know, this disparity is one of our Nation's most
glaring examples of injustice in the criminal justice system.
It is one of the most fundamentally challenging civil and human
rights issues facing the Nation today. The truth is that racial
disparities and racial discrimination in our criminal justice
system is a stain on American democracy, and it undermines the
principle of equal justice under law. It undermines the
confidence really that all Americans have in the fundamental
fairness of our system. And it holds us up to ridicule abroad
because we are challenged on the hypocrisy and the gap between
what we say our principles are and what we do in practice.
Now, you talked about the existence of racial
discrimination within the criminal justice system, and indeed,
it traces its legacy back to the period of slavery in American
life. Yes, we have made as a country extraordinary progress in
helping to reconcile that difference between America's ideals
and American reality. But we still have a long way to go.
Structural inequality and racial discrimination of the kind
that the crack/powder cocaine disparity reflects in my view
cannot be entirely excised even with the passage of your
extraordinarily important legislation, because the numbers that
you allude to are as much a reflection of the problems at every
step of the criminal justice system. Who is arrested, who is
prosecuted, and, ultimately, how those individuals are
sentenced upon conviction is often a reflection of inherent
bias in the system that can only be addressed by bringing it to
the surface, making it an open issue in which the country
discussed and seeks remedy. And we need to do so.
Hence, this problem of racial profiling, which we also know
exists, contributes to the very problem that you have talked
about with the crack/powder disparity, because the truth is
statistics of the U.S. Sentencing Commission and other bodies--
human rights organizations and internationally recognized
bodies--shows that the distribution of those who use these
products is far closer to and equal a system than the
prosecution and conviction rate would suggest.
So, you know, we thank you for your leadership in this
area. It is important. Your effort to bring bipartisan support
to this issue is extremely important. We were pleased at the
Justice Sotomayor confirmation hearing that the Ranking Member
of the Judiciary Committee, Senator Jeff Sessions, lifted up
the issue of crack/powder cocaine with which he shares concern
as a former U.S. Attorney. But, ultimately, the issue is how do
we come together to make a decision about how to equalize these
penalties in a way that makes sense given that the two products
are pharmacologically so similar that the disparity both in
sentencing and penalty obviously should not exist.
So thank you for your effort to push this legislation,
thanks for trying to make it a bipartisan issue, as it should
be, because these kinds of disparities are not partisan issues.
They are really national issues. And until we step back and
really reflect on that and fashion solutions to the problem, we
will not be able to make progress. But I think your leadership
is really contributing to it, so thank you.
Chairman Durbin. Thank you.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman, and once again I
would like to compliment you on your comically ironic use of
``intertwinedness.'' That was very good.
Mr. Henderson, your discussion of the disparities in
sentencing and the prison populations reminds me of Richard
Pryor's discussion of justice, when he said that he visited a
prison and it was ``Just us.''
Let me turn to the Convention on Torture, if I might. In
1994, the U.S. Congress ratified the Convention Against
Torture, and the treaty prohibits countries from returning or
deporting anyone to a country ``where there are substantial
grounds for believing that he would be in danger of being
subjected to torture.'' That is the quote from the treat.
But our implementing regulations actually require someone
claiming protection under the Convention to actually show ``it
is more than likely that he would be tortured.''
So, Ms. Massimino, doesn't our standard seem higher than
the Convention's standard? And doesn't that create a problem?
Ms. Massimino. Yes. But there are many problems I actually
think that are even worse than the standard of proof about
whether it is more likely than not or substantial likelihood,
actually. What we have seen over the years since the treaty was
formally ratified is a real erosion of the whole concept of a
responsibility not to send people to torture and, in fact,
efforts to get around that, to reduce the opportunity for
people who are in U.S. custody, whether they are in U.S.
custody abroad--this is another issue that we have to pay close
attention to. The United States has asserted at times that the
obligation not to return people to face torture does not apply
if the person is outside the United States but in the custody
of the United States.
So you cannot have an adjudication about whether or not a
person has a substantial--that there is a substantial
likelihood that they would face torture unless that person has
an opportunity to raise that claim in either a removal
proceeding or any other kind of proceeding. Even in extradition
proceedings, what we have found is that there is an inadequate
level of protection, due process protection, for people to
raise these claims, and it comes down to the discretion of the
Secretary of State whether or not the person can be extradited,
even if there is a magistrate finding that there is a more
likely than not chance that the person will be tortured.
Now, you know, the United States has cited this obligation
in its refraining from sending the Uyghurs at Guantanamo back
to China, and that is very welcome. But this is an issue that
really needs a very close look at our--both in the extradition
area and removal area to make sure that we have got sufficient
procedures in place that will allow people to even raise these
claims.
In the context of refugee cases and asylum cases, often it
is protection under the Convention Against Torture that is the
most appropriate protection, and yet for many years our
immigration judges did not even have the opportunity to make a
judgment about that claim.
So I think it would be very important for us to have a look
at across the board, both when the U.S. acts internationally
but also in removal proceedings. This was a problem in the Arar
case, as you probably know, which people do not think of
necessarily as an immigration case, but it was the failure to
really have an opportunity--he raised a fear of torture when
the United States said that it was not going to let him go back
to his home country of Canada. And yet there was no procedure
by which that could be adjudicated by an independent person.
So you are right very much to focus on it, and I think when
the United States reports on its compliance with the Convention
Against Torture, we need to take very seriously the
recommendations to reform our procedures.
Senator Franken. So when we have in the past--and I hope
not now, but when we have engaged in rendition, you are saying
that one of the issues has been just due process, the ability
of the person being sent to another country being able to have
this adjudicated in a proper court.
Ms. Massimino. Absolutely, and I would not--I am not at all
convinced that the executive branch has set aside assertions of
the authority to conduct renditions. I think that as I
understand it from the President's Executive orders, that was
not definitively set aside by any stretch. And I think we need
to make sure if there is going to--anytime that there is a
transfer--that is why we have extradition treaties and removal
proceedings, because anytime there is a transfer of a person
from the custody of one government to the custody of another
government, that person's life, liberty is, you know, in
question. And so we have to have protections. And so anytime
that it goes outside those processes, we need to make sure that
there is a real reason for doing it and, second, that there is
a kind of a process where that can be raised and adjudicated
independently.
Senator Franken. Thank you.
Mr. Henderson, my first cosponsorship in this body was of
the Employment Free Choice Act, and I was heartened that the
Leadership Conference views passage of EFCA as necessary for
fulfillment of our obligations under the Universal Declaration
of Human Rights and the Convention on the Elimination of All
Forms of Racial Discrimination.
Can you tell us a little bit more about the provisions of
these treaties that require passage of EFCA?
Mr. Henderson. Yes, sir. First of all, thank you for
raising the question, Senator Franken.
You know, when we talk about civil rights in our country, I
often find that those who are not as familiar with our
constitutional obligations and international treaty obligations
are frequently surprised to hear that a right to education on
behalf of all children in our country is not recognized by our
Supreme Court as a fundamental right. It is not. The case of
San Antonio v. Rodriguez is a case which held the principle
that education is not a fundamentally protected constitutional
right in this country.
So, too, is the issue of the right to organize. I think
Eleanor Roosevelt and those who helped fashion the Universal
Declaration of Human Rights understood the seminal importance
of allowing individuals to organize to protect their interests
in the workplace: the 40-hour work week, the weekend that we
now enjoy, the protections that workers who had high school
diplomas but who were able by virtue of their hard work in the
manufacturing context to create the middle class that we
celebrate.
Walter Reuther of the United Auto Workers was one of our
founding members of the Leadership Conference, and it was
because of the UAW that there were adequate resources to bring
individuals to Washington. They paid for the buses, for
example, for the march on Washington. They helped provide the
resources that were really necessary to help advance the causes
that many of us support and celebrate today. And yet the
interests of workers are largely ignored.
We find in many instances that employers have become
increasingly sophisticated about misclassifying workers,
calling them independent contractors, which strips them of
their protections in the workplace, takes away their protection
under many civil rights laws, does not allow them to petition
for protection, to be an example of what we think is a real
problem--worker misclassification. Or forcing workers into
circumstances where they waive their constitutionally protected
rights to challenge discriminatory practices in the workplace
through processes of mandatory arbitration. We think that is a
horrendous problem, and, you know, individuals have addressed
that, including, Senator, your own efforts.
So there are indeed examples, concrete examples of how
workers today are not adequately protected, and that is why the
Employee Free Choice Act is such a fundamentally important
piece of legislation and one that the Leadership Conference
wholeheartedly supports.
I should also say, just as an addendum to my friend Elisa
Massimino's response, the nongovernmental organizations, the
civil and human rights groups of this country, there is a
groundswell emerging, as Elisa knows and is leading helping to
develop, to protect and enforce our treaty obligations
internationally. There is a clear recognition of that.
I am privileged that the Leadership Conference works with a
group called the Campaign for a New Domestic Human Rights
Agenda, which is about 50 national and grassroots organizations
that have come together to really support the full enforcement
of our existing international obligations, and they are making
a significant difference both here in Washington and in
communities all over the country.
So these issues that you and Chairman Durbin are bringing
to the fore today are critically important. There is a base of
support to implement these treaties effectively, and we are
looking for ways to assist in the coordination of that effort.
Senator Franken. Thank you so much, and, Mr. Chairman, I am
sorry I have gone over my time and not done the requisite
complimenting of you. I will just throw it back to you, but
thank you so much for chairing this important hearing and
calling it and for your leadership.
Chairman Durbin. And if you want to add the compliment as
part of the record, written record at a later date, we will
keep the record open.
[Laughter.]
Senator Franken. Oh, I can make up for the lack of
compliments in the written record. Good.
Chairman Durbin. Thank you, Senator Franken.
Thanks to everybody for being here. We asked a lot of
organizations that did not have a chance to testify what they
thought we should be focusing on. We had an amazing outpouring
of response, 41 different organizations, and we are in the
process, the staff has notified me, of going through their
recommendations and finding a way to post them on a website,
making them part of the congressional record, which we hope to
continue to do on a regular basis.
There have been so many great organizations that have
stepped forward, including the American Civil Liberties Union,
Amnesty International, Center for American Progress, Human
Rights Watch, the Lawyers Committee for Civil Rights under the
Law, Open Society Policy Center, Rights Working Group, and all
of those, without objection, will be included in the record.
[The information referred to appears as a submission for
the record.]
Chairman Durbin. I am going to bring this hearing to a
close, and the hearing record will remain open--for a variety
of reasons--over the next week for additional materials.
I want to make it clear for the record that this self-
criticism does not overlook the fact that our Nation has been a
leader in the world in championing civil rights and human
rights, and I want to say with great pride that a lot of people
who came before us took this very seriously. I hope that this
effort will give us even more credibility and will also lead to
a better country that we live in, which at the end of the day
is what we are all here working toward.
We have concerns around the world. I could list all the
different varieties of venues that have been discussed today.
But as was said by President Obama just recently in his Nobel
Peace Prize acceptance speech, ``America cannot insist that
others follow the rules of the road if we refuse to follow them
ourselves.'' I learned yesterday that our President did an all-
nighter on that speech, if you thought that Presidents did not
do those sorts of things. When we are honest about our own
shortcomings and work to address them, we will be more
effective at protecting human rights close to home and around
the world.
The hearing stands adjourned.
Mr. Henderson. Thank you.
Ms. Massimino. Thank you.
[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]