Guide my feet Lord on Torture

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Dear Colleagues,

Guide my feet Lord, while I run this race.

Guide my feet Lord, while I run this race.

Guide my feet Lord, while I run this race.

’cause I don’t want to run this race in vain. 

- Guide my feet Lord  (sung at Trinity Episcopal Church, Toledo, this morning) on youtube at

Please note the article below which describes the continuing mendacity in the military, intelligence, and White House with respect to compliance with US obligations under the UN Convention Against Torture about which Advocates for US Torture Prosecutions have made a shadow report to the UN Committee Against Torture, have spoken in the Civil Society delegation to the US Government on October 14, 2014, and will  speak on in several events during the UN Committee Against Torture review of the US periodic report about its compliance with these obligations during the week of November 11 in Geneva at the United Nations Palais des Nations and Palais Wilson.

I have no doubt that current and former military and intelligence senior officials who played key roles in enabling the torture are at the heart of this effort to backslide the United States.  They may think they are doing this in the best interest of the United States and in good faith, but let us not let even good intentions deter us.  I personally think it is nothing more than craven personal self-interest at work to try again – as they have done at every step of the process of getting accountability including in the still unreleased Senate Select Committee on Intelligence torture report – to deflect criticism from former President Bush and the senior leaders who authorized, aided and abetted, acquiesced in and facilitated torture in a program that spanned 54 countries.

I have sent before the Advocates for US Torture Prosecutions shadow report ( and and I send it again as we are gearing up our final effort to solicit signatures from people of goodwill to reinforce our efforts to make the absolute prohibition on torture absolute in words and deeds for the US Government no matter how high one is in the separation of powers or in our federalism.  It is time for the mighty to be laid low, for the sin of the emperor to be recognized not as a mistake but as the crime it is, and for the public trust the people place in those leaders to be respected.

If you would like to join the shadow report, I would be grateful if you would send a message to Deborah Popowski of the Harvard International Human Rights Clinic at

Thank you for your consideration of this message.



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ISIS, Latinos & the Brunt of Border Politics

isis-border3 by SpearIt

9/11 is the critical date in American Muslim history, and it may become increasingly important for Latinos as well. The word “critical” as used here aims to convey a sense of “crisis.” Arguably, the highpoint of crisis in modern Muslim history was the assassination of Malcolm X in 1965. This monument, however, hardly compares to the backlash against Muslims that followed 9/11.

With the country in shock and awe, the world watched with bated breath for news of the culprits. When the perpetrators were identified as extremist Muslims, African Americans breathed a sigh of relief. They fell under the assumption that respite was on the horizon after a three-decade-long onslaught by the justice system; for a moment it seemed that law and society were genuinely frightened by a new boogeyman.

Similar sighs of relief came from Latinos, who, like African Americans, sensed that the country had found a different object of wrath. Latinos had felt the harsh lash of the criminal justice system for several decades running, with imprisonment rates of Latinos ballooning. Mass imprisonment has been a major setback for underclass minority communities in states like California, Texas, Florida, and others holding large Latino populations. The bad luck of Muslims was seemingly good for Latinos like their African-American counterparts — it diverted fear and attention to a new scapegoat.

While they sighed, Muslims gasped, and rightfully so since Muslims would now be subject to policing and criminal justice like never before. Overnight, Muslims were tarred and blackened and were given a glimpse, if a privileged one, of the modern African-American experience. In essence, Muslims have been given a sense of the prejudice and violence that is norm to African Americans.

These perceptions among African Americans and Latinos, however, were short-lived: Latinos became quickly embroiled in border policing politics in Arizona and Texas, facing harsher scrutiny by law enforcement than the rest of the population. In New York, both groups were subject to mass stop and frisk campaigns, and more recently police killings of African-Americans have made it open season on black males, that is, made it business as usual.

For Latinos, the situation may become worse in the midst of claims that ISIS is operating in Mexico and entering the U.S. through the southern border. Although there has been pushback from Mexico and the Department of Homeland Security, therumors persist. If the American public believes that Mexico is indeed harboring ISIS, it would be a big boost for longstanding agendas of border reform. For proponents of beefed-up borders and stricter immigration policy, it would realize longstanding goals that have used vigilante border-patrols and stepped-up law enforcement to curb illegal immigration. These efforts subject Latinos to heightened scrutiny and law enforcement efforts. The more recent claims about ISIS will serve only to fuel the discrimination and oppression.

More critically, the Department of Justice has recently announced a pilot program to counter violent extremism. The plan has been critiqued, most notably because Muslims will be subject to greater scrutiny than other populations, and in particular, the Christian communities of domestic extremists. The claims that ISIS is in Mexico, then, effectively cast Latinos as potential communities for engagement.

However, there is little evidence or intelligence to support the idea that ISIS is actually operating in Mexico or that loyalists are infiltrating the southern border. More likely, statistically speaking, if ISIS is successful in entering the U.S., it will come through international air travel, not through the U.S.-Mexico border; and let us not forget the vast border to the north that affords a number of entry points.

Ultimately, if the American public buys into these claims, it will only add to the discrimination of Latinos. It will tie the plight of Muslims to Mexicans, and categorically implicate Latinos in the War on Terror; it will also become a license for greater brutality at the border. If the story is bought, regardless of its truth, Latinos will face increasing entanglement in the criminal justice system and increasing status as second-class citizens.

This article was first published in Huffington Post on 10/10/14.  Read it here.



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White House Announces Countering Violent Extremism Program: Is It Pretext for Spying on Muslims?

Unknown By Sahar Aziz

The Islamic State of Iraq and the Levant (ISIL) has captured international attention as the world witnesses in horror its brutality. Notwithstanding that most of ISIL’s victims are Muslim, its atrocities are reinforcing false stereotypes that something is inherently violent about Islam. As a result, the Obama administration is under pressure to scrutinize Muslim communities across the country. Hence the DOJ’s recent announcement of a pilot program to counter violent extremists (CVE) may be the latest effort at targeted surveillance and counterterrorism enforcement of Muslim Americans.

ISIL arose out of the political chaos that ensued after the U.S. invaded Iraq with no cogent exit strategy or understanding of the complex ethnic and religious tensions in Iraq. Indeed, ISIL fighters are primarily disgruntled Iraqi Sunnis abused by U.S.-supported former Prime Minister Nuri al-Maliki’s sectarian politics. Some fighters, the precise number is unknown, hold Western passports and use their English fluency to recruit Muslims living in the West. This phenomenon has understandably rattled the American government as it scrambles to identify who is susceptible to ISIL recruitment and whether those individuals will return to the U.S. to engage in terrorism.

To address these concerns, the U.S. Department of Justice’s CVE program purports to bring together community representatives, public safety officials, religious leaders, and U.S. Attorneys to improve local engagement and counter violent extremism. The stated objective is to keep the nation safe by developing more effective and inclusive ways to build a more just, secure, and free society for all Americans.

Notwithstanding the lofty rhetoric and neutral language, America’s CVE strategy is flawed for four reasons. First, it racially and religiously profiles Muslims. Indeed, most if not all of the governments “community engagement” CVE activities target Arab and South Asian Muslim communities. This is despite recent cases of terrorist groups in the Middle East recruiting individuals from various racial and ethnic backgrounds to avoid scrutiny by Western governments who profile Muslims in counterterrorism. Meanwhile, domestic right wing extremist groups are excluded altogether from such programs.

Second, CVE policies punish law abiding citizens and residents who openly and legally express their political oppositional views against American hegemony or orthodox religious practices by making them targets of surveillance, investigation, and prosecution. Muslim communities, therefore, suspect CVE programs are not so much about public safety as they are about religious and racial profiling. In turn, members of these communities become less willing to cooperate with law enforcement because they view CVE as merely political scapegoating at the expense of their liberty and livelihoods. When contextualized with America’s aggressive police tactics in the 1960s and 1970s against civil rights, Black Nationalist, and anti-war groups and the disproportionate focus on African Americans in the War on Drugs, such suspicions are not far-fetched.

Third, no law prohibits CVE meetings from serving as intelligence gathering operations for law enforcement to identify potential informants, target individuals for FBI voluntary interviews, and catalogue who’s who in Muslim communities. Nor are there any policies or oversight mechanisms ensuring the government delivers on its promises to reform rights-infringing policies. Indeed, tangible policy reforms arising from the community engagements are the anomaly rather than the norm.

Finally, CVE programs that purport to empower communities as stakeholders may perpetuate existing gender and class hierarchies within Muslim communities. The experiences of new immigrants are starkly different than third or fourth generation Americans notwithstanding a shared religious or ethnic background. Because many Muslim communities are lead by males, insensitivity to these circumstances risks making the government an unwitting enabler of gender bias, intra-community ethnic conflicts, and political disputes.

While the threat of ISIL is real, Muslims in America should not collectively pay the price every time an individual or group engages in political violence in the name of Islam. At a time when racialized over-policing of African Americans has gained national attention, overtly targeting Muslims only corroborates what many Americans have suspected for decades — systemic bias against minorities infects law enforcement.

Absent meaningful reforms, the latest round of CVE programs is likely to be no more than pretext for invidious discrimination to scapegoat politically vulnerable minorities for the failings of the state to protect the nation from the real terrorists.

This article was originally published in the Huffington Post on 10/1/14.  Read it here.

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“I’m Just a Kid”: Tariq’s Ordeal

By Marjorie Cohn

Last summer, Tariq Khdeir, a 15-year-old American citizen from Baltimore, accompanied his parents to the East Jerusalem neighborhood of Shuafat for a six-week visit with relatives. The first friend Tariq made when he arrived was his cousin, Muhammad Abu Khdeir, whom Tariq had not seen since he was four years old. “We had so much fun,” Tariq told a gathering at the national conference of the U.S. Campaign to End the Israeli Occupation in San Diego on September 19, 2014.

One night while he was in Jerusalem, Tariq saw some police with Muhammad. Tariq thought they had kidnapped Muhammad. Tariq wondered, “Is he gonna come back? Is he gonna come back alive”? But Muhammad did not come back alive.  In retaliation for the deaths of three Israeli teenagers, Muhammad was beaten and burnt alive by three Jewish extremists.

After Muhammad’s murder, people took to the streets in protest. Israeli Defense Force soldiers began firing rubber bullets at them. Incredulous, Tariq thought, “Is this really happening in front of me”? Then Israeli soldiers began to run after Tariq. Panicked, Tariq ran.

“There was a 10-foot drop in front of me. Everyone jumped, but they tackled me, zip-tied me, and punched me in the face,” Tariq said. “I was like a punching bag until I became unconscious.” The image of Tariq’s badly swollen, deformed face appeared on media reports throughout the world last July.

When Tariq awoke, his face felt “like a bubble, it hurt so much.” He wondered, “Are they gonna kill me”? After six hours in jail, Tariq was finally taken to the hospital. His father and his uncle told him he might come home or go to jail. Tariq thought, “How could I go to jail? They beat me up.” Tariq told the group, “I’m just a kid.”

Tariq was taken back to jail after he left the hospital. He had to remove the hospital gown and put on his bloody clothes. There were nine people in a tiny cell; it was impossible to sit down. Two days later, Tariq was released. He thought, “I’m finally going home.” But he was placed on house arrest. No charges were ever filed against him. “That’s what they do to all the Palestinians,” Tariq said.

“They took my cousins, and they’re still in jail, because they’re not American and they didn’t have a video that showed the brutality of the Israelis,” Tariq reported. “It’s inhumane.”

Tariq’s mother, Suha, said, “I cannot begin to describe the pain of seeing my dear son in prison after his viscous beating.” When she first saw Tariq, unconscious, with his swollen face in the hospital, “I didn’t recognize him; I didn’t know if he was alive. I didn’t know if he would survive.” Tariq was handcuffed to the hospital bed. Suha worried whether they would give him his antibiotics, whether they would take care of her son while he was in their custody. “The same people that beat him were now caring for him,” she said. “They told us 300 Palestinian teenagers would be killed for the three Israeli teens.”

Suha noted, “None of this would have happened if Israelis valued the lives of Palestinian Muslims and Christians as much as Israeli Jews.”

Keynote speaker Ali Abunimah followed Tariq and Suha at the conference. He mentioned that of the more than 2,100 Palestinians the Israelis killed in Gaza last summer, 521 were children. Most of the fatalities were civilians. More than one of every 1,000 Gazans were killed, and one percent of the entire population of Gaza were killed or injured.

Most of the weapons the Israelis employed in Gaza were artillery shells, which were used in unprecedented quantities. They are very inaccurate.

In response to Israeli demands that the Palestinians surrender their weapons, Abunimah asked, “Why talk about demilitarizing the oppressed? Let’s talk about demilitarizing the oppressor.”

After Mummahad was killed, the Israelis called it an “honor killing.” Muhammad’s father said, “they’ve killed my son twice.”

Two hundred Palestinian children are still in jail. Abunimah cited the “racist mentality” of many Israelis who chant, “Death to the Arabs.” Abunimah recalled President Barack Obama’s remark about “the shared values of the United States and Israel.”

Do those shared values include slaughtering civilians, torturing children, and holding people in custody indefinitely without charges?

Tariq did come back alive – but only because his beating was caught on tape and because he was a U.S. citizen.

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(Update 9/29) Reminder: sign-on Possibility for the UN Committee Against Torture Shadow Report of Advocates for US Torture Prosecutions

Benjamin G. Davis, Associate Prodessor of Law, University of Toledo College of Law

Dear Colleagues,

(Update sent to the Volokh Conspiracy, Lawfareblog, Just Security,,, and War is a – Volokh declined as they do not generally put these things up. So made a comment there and at Lawfareblog.Com on the Holder thread. War is a Crime put it up right away and sent it out).

This is just a reminder that the UN Committee Against Torture will be reviewing the U.S. Periodic report in November and the State Department will be meeting with Civil Society in October to evaluate the U.S. compliance with its international obligations under the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment.

This is the first such periodic review since 2006.

Advocates for US Torture Prosecutions has prepared a shadow report available at

and we are inviting persons and organizations who believe in maintaining the absolute prohibition on torture to sign on.

Persons interested should contact Deborah Popowski at of the Harvard International Human Rights Clinic on or before this Monday, September 29, 2014 if they wish to sign on.

Please consider passing this information also to organizations and interested persons so they are aware of this opportunity.

Thank you for considering this matter.


Sent from my iPhone

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Paid Law School Externships Will Ruin the Experience


By Olympia Duhart

As the American Bar Association considers lifting the ban on paid externships, a simple truth bears repeating: Money changes everything. Under the current standards, law students cannot be compensated for work they do for school credit. This policy should remain in place because separating compensation and “study outside the classroom” is a crucial step toward safeguarding the academic integrity of the externship.

Yes, law students need money. They also need experience. Rolling back the prohibition on allowing students to receive pay and credit for the same work is an “easy fix” that ignores some key realities.

First, it will limit the ability of government and nonprofit institutions to attract students. Next, it will tempt employers to exploit the students under their supervision. Further, it will impair the educational objectives of the externship. It shifts the externship focus from things that are in the best interest of the students to tasks that are in the best interest of the employer. Driven by a need to maximize profits, some of the employers will engage inexperienced student workers in tasks that have little educational value. For example, inviting a student to reflect on a courtroom observation has an incredibly high instructive value; however, that same experience is not likely to be billable to a client. Profit and pedagogy do not always align.

What’s more, revoking the standard also collides with other important objectives for legal education. The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law. Even the most conscientious employer – pulled in different directions by clients and practice demands – may not be able to effectively pursue these goals. As they gain new experience, law students need mentors and educators. At the very least, the current standard incentivizes education, not making money.

But the truth is that something has to be done.

Given the alarming rate of tuition increases, law schools must finally take responsibility for the rising cost of legal education. A small paycheck will not do much to defray the high debt load most students must absorb to become lawyers. Instead, we need to dig deeper to make law school more affordable for students, especially those students interested in public interest work.

Allowing students to earn nominal pay from an externship simply is not the answer. They won’t earn much money, and they may not gain the type of experience that meaningfully contributes to their legal careers. Shifting the focus from academic study to earning pay will significantly transform the externship experience — and not for the better.

This article was originally published by New York Times on 9/18/14.  Read it here.

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Obama Declares Perpetual War

By Marjorie Cohn

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to “degrade and ultimately destroy” the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct “a systematic campaign of airstrikes” in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating “We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven.”

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The only problem is, Obama admitted, “We have not yet detected specific plotting against our homeland.” Citing only the vague possibility of future “deadly attacks,” Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter’s prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks’ time to “mobilize the international community.” But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama’s war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama’s war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which again, has not occurred. Third, when there is “specific statutory authorization.” Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, “I have the authority to address the threat from ISIL.” He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that “planned, authorized, committed or aided” the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda’s leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Moreover, in the National Defense Authorization Act of 2012, Congress specified, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF].”

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein’s weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF “is no longer used for any US government activities.” That means Obama’s current war is not simply a continuation of Bush’s Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching “hostilities,” or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, “The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Earlier this year, Obama said, “no country can maintain its freedom in the face of continual war.” Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush’s Afghanistan and Iraq wars, and Obama’s killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the New Syrian Army, which according to The New York Times, “went on to behead six [captured] ISIS fighters.”

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama’s war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

This article was originally published in Truthout on 9/15/14.  Read it here.


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(Updated 9/13) Nothing new under the sun with Obama and Cheney: This 9/11 as a day to reread Rudyard Kipling and think about proportionality

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

With Cheney – key architect of the torture – speaking yesterday about Obama recognizing the “ pacific role of American power” and President Obama laying out the plans for addressing the problem of ISIS a couple of conversations today drew me to a couple of things that are most appropriate for this day of remembrance.

I. Rudyard Kipling

Cheney and Obama harken back to the British during its period of empire.  And no one put it better then Rudyard Kipling.  I may be called a racist as a black man being willing to go there, but reading again Rudyard Kipling’s White Man’s Burden was stinging for me today.  It might be worthwhile to read and reflect on it in international law and national security law classes today.

Here is the poem in its entirety. (hat tip:

“The White Man’s Burden”: Kipling’s Hymn to U.S. Imperialism

In February 1899, British novelist and poet Rudyard Kipling wrote a poem entitled “The White Man’s Burden: The United States and The Philippine Islands.” In this poem, Kipling urged the U.S. to take up the “burden” of empire, as had Britain and other European nations. Published in the February, 1899 issue of McClure’s Magazine, the poem coincided with the beginning of the Philippine-American War and U.S. Senate ratification of the treaty that placed Puerto Rico, Guam, Cuba, and the Philippines under American control. Theodore Roosevelt, soon to become vice-president and then president, copied the poem and sent it to his friend, Senator Henry Cabot Lodge, commenting that it was “rather poor poetry, but good sense from the expansion point of view.” Not everyone was as favorably impressed as Roosevelt. The racialized notion of the “White Man’s burden” became a euphemism for imperialism, and many anti-imperialists couched their opposition in reaction to the phrase.

Take up the White Man’s burden—

Send forth the best ye breed—

Go send your sons to exile

To serve your captives’ need

To wait in heavy harness

On fluttered folk and wild—

Your new-caught, sullen peoples,

Half devil and half child

Take up the White Man’s burden

In patience to abide

To veil the threat of terror

And check the show of pride;

By open speech and simple

An hundred times made plain

To seek another’s profit

And work another’s gain

Take up the White Man’s burden—

And reap his old reward:

The blame of those ye better

The hate of those ye guard—

The cry of hosts ye humour

(Ah slowly) to the light:

“Why brought ye us from bondage,

“Our loved Egyptian night?”

Take up the White Man’s burden-

Have done with childish days-

The lightly proffered laurel,

The easy, ungrudged praise.

Comes now, to search your manhood

Through all the thankless years,

Cold-edged with dear-bought wisdom,

The judgment of your peers!

Source: Rudyard Kipling, “The White Man’s Burden: The United States & The Philippine Islands, 1899.” Rudyard Kipling’s Verse: Definitive Edition (Garden City, New York: Doubleday, 1929).

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US Slammed for Failure to Fulfill Legal Obligation to Eliminate All Forms of Race Discrimination

imgres.jpg By Marjorie Cohn

Three weeks after the shooting of Michael Brown in Ferguson, the United Nations Committee on the Elimination of Racial Discrimination (CERD) published a report detailing how the United States has failed to fulfill its legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention).

The CERD report was scathing in its criticism of the United States for not complying with the convention’s mandates. Since the United States ratified this treaty, thereby becoming a state party, it is part of US law under the Supremacy Clause of the Constitution.

States parties must comply with the obligations under the convention, including submitting periodic reports to CERD regarding their progress in fulfilling their obligations. CERD is the body that monitors compliance of states parties with the convention.  After reviewing the most recent US report, CERD responded with its concluding observations as follows:

CERD urged the United States to prohibit racial discrimination in all its forms, including indirect discrimination. (The United States currently prohibits only intentional discrimination, but not legislation and programs that are discriminatory in effect).

CERD urged the United States to comply with the convention’s mandate that states parties adopt special measures to eliminate persistent disparities based on race or ethnic origin. (The US Supreme Court has narrowed the use of affirmative action in education).

CERD urged the United States to specifically outlaw racial profiling. (The FBI, TSA, border enforcement officials and local police engage in racial profiling).

CERD urged the United States to clean up radioactive and toxic waste, particularly in areas inhabited by racial and ethnic minorities and indigenous peoples. CERD also urged the United States to prevent US-registered transnational corporations from adversely affecting, in particular, minorities and indigenous peoples. (Racial and ethnic minorities, and indigenous peoples are disproportionately affected by negative health impacts of pollution caused by extractive and manufacturing industries).

CERD urged the United States to adopt legislation to prevent implementation of voting regulations with discriminatory impact. (The US Supreme Court invalidated procedural safeguards in the Voting Rights Act aimed at preventing the implementation of voting regulations that may have discriminatory effect). CERD also urged the United States and all states to reinstate voting rights to persons convicted of felonies who have served their sentences.

CERD urged the United States to abolish laws and policies making homelessness a crime. (A high number of homeless persons are disproportionately from racial and ethnic minorities, and homelessness is criminalized by loitering statutes).

CERD urged the United States to intensify efforts to eliminate racial discrimination in access to housing and ensure affordable and adequate housing for all. (There is persistent racial discrimination in housing and a high degree of segregation and concentrated poverty).

CERD urged the United States to develop a concrete plan to address racial segregation in schools and increase federal funds for such programs. (Students from racial and ethnic minorities attend segregated schools with unequal facilities).

CERD urged the United States to ensure that all, particularly racial and ethnic minorities, who reside in states that have opted out of Medicaid expansion under the Affordable Care Act (ACA) and undocumented immigrants and their families living in the United States for less than five years have effective access to affordable and adequate health care. (The US Supreme Court allows states to opt out of Medicaid expansion, and undocumented immigrants and their children are excluded from coverage under the ACA).

CERD urged the United States to fulfill its obligation to protect the right to life and reduce gun violence by adopting legislation expanding background checks and prohibiting the practice of carrying concealed handguns in public. CERD also urged the United States to review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to necessity and proportionality when deadly force is used in self-defense. (There is a high number of gun-related deaths and injuries, and Stand Your Ground laws are used to circumvent the limits of legitimate self-defense).

CERD urged the prompt and effective investigation of each allegation of excessive force by law enforcement officials; prosecution of alleged perpetrators and effective sanctions for those convicted; reopening of investigations when new evidence becomes available; and adequate compensation for victims and their families. (Brutality and excessive force by law enforcement officials against racial and ethnic minorities has a disparate impact on African Americans and undocumented migrants crossing the US-Mexico border; US Customs and Border Protection (CBP) agents enjoy impunity for abuses committed against Hispanic/Latino Americans and undocumented migrants).

CERD urged legal protection for the rights of noncitizens, including protection of migrants from exploitative and abusive working conditions; dealing with breaches of immigration law through civil, rather than criminal immigration system procedures; guaranteeing legal representation in all immigration matters; and raising the minimum age for agricultural field work. (Immigration enforcement is increasingly militarized, leading to excessive and lethal force by CBP personnel; local law enforcement increasingly uses racial profiling to determine immigration status; immigrants are detained for prolonged periods of time; and undocumented immigrants are deported without access to justice).

CERD urged the United States to intensify efforts to prevent and combat violence against women, particularly against American Indian and Alaska native women, and ensure all cases of violence against women are effectively investigated, prosecuted and sanctioned, and that victims are provided appropriate remedies. (A disproportionate number of women from racial and ethnic minorities continue to besubjected to violence, including rape and sexual violence).

CERD urged the United States to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system. CERD also urged the United States to impose, at the federal level, a moratorium on the death penalty with a view to abolishing the death penalty. (Members of racial and ethnic minorities are disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole (LWOP) and the death penalty).

CERD urged the United States to intensify efforts to address racial disparities in disciplinary measures, as well as the “school-to-prison pipeline”; and ensure juveniles are not transferred to adult courts and are separated from adults in custody. CERD also urged the United States to abolish LWOP for those younger than 18 at the time of their crime and the commutation of sentences for those already serving LWOP. (Youth from racial and ethnic minorities are disproportionately arrested at school and referred to the criminal justice system, prosecuted as adults, incarcerated in adult prison and sentenced to LWOP).

CERD urged the United States to end administrative detention without charge or trial at Guantanamo and the closure of the prison facility there without further delay. CERD also urged the United States to guarantee the right to a fair trial, in compliance with international human rights standards, and to ensure that any detainee not charged and tried is released immediately. (Noncitizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system, and are at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment).

CERD urged the United States to adopt necessary measures to eliminate the disproportionate impact of inadequate criminal defense programs on racial and ethnic minorities, by improving the quality of legal representation and adequately funding legal aid. (There is no right to counsel in civil proceedings, which disproportionately affects indigent racial and ethnic minorities seeking effective remedies for evictions, foreclosures, domestic violence, employment discrimination, termination of subsistence income or medical assistance, loss of child custody and deportation).

CERD urged the United States to guarantee the right of indigenous peoples to effective participation in decisions affecting them, eliminate undue obstacles to recognition of tribes, protect sacred sites and halt the removal of indigenous children from their families and communities. (There are a lack of concrete progress in guaranteeing informed consent of indigenous peoples in decisions that affect them; burdensome obstacles to tribal recognition; insufficient protection of sacred sites; and continued removal of indigenous children from families and communities through the US child welfare system).

CERD also urged the adoption of a National Action Plan to combat structural racial discrimination and ensure that school curricula, textbooks and teaching materials address human rights themes and promote understanding among racial and ethnic minority groups.

CERD urged the United States to recognize the competence of CERD to hear individual complaints. CERD also urged the United States to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of the Their Families; the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance.

Finally, CERD urged the United States to widely publicize CERD’s recommendations. When the United States ratifies a treaty, the legal obligations it assumes apply at the federal, state and local levels. And although, by ratifying a treaty the United States undertakes an obligation to publicize the terms of the treaty, the US government has not taken this responsibility seriously.

This article was originally published by Truthout on 9/5/14.  Read it here.


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Of the Human Dignity of Michael Brown: An Old School Take on Ferguson

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Leaving the dead body shot by the police of an unarmed young black man (in this case Michael Brown)  for four hours in the middle of the street in a former sundown town in a border state is an old American image that I have not seen the media addresses adequately in its coverage.  I have seen various commentators consider it shameful and be saddened by it, but I have not seen the kind of visceral understanding of the meaning of a dead black man’s body being left in the middle of the street for all to see for hours.  Whatever the officer in question is guilty of, the leaving of the unarmed black man’s dead body in the middle of the street by the powers that be in that town is worth a meditation on its own.

That meditation would be on the nature of human dignity – and in this case – the human dignity of a young black man.  As we know in many religions, the dead are to be buried within a day.  The body of the corpse is to be washed and wrapped in linens of some kind as part of the respect for the body.

We all remember the sense of barbarism felt when four military contractors in Iraq were ambushed and killed by a crowd and their bodies defiled.  We all remember the soldiers not seeking revenge by starting to shoot up the people, but asking the elders to provide the bodies so that we could bury the dead.  We all remember the scenes in Mogadishu when soldiers were killed by the warlord Aidid’s people and the bodies of the soldiers were dragged through the streets and defiled.  We all remember the soldiers who received punishment for peeing on the bodies of dead Taliban killed in the War in Afghanistan.

We all recognize that the treatment of the dead is one of the hallmarks of civilization.  Our images of how the dead have been treated in mass graves – such as recently in Texas for dead illegal immigrants buried in a mass grave in trash bags and little care for their bodies – remain burned in our memories as we think of this person as someone’s father, mother, sister, or brother.  Or, in the case of Michael Brown, someone’s son.

When I thought about Michael Brown’s dead body laying out in the sun for four hours – ostensibly so that the police investigation could be done – I was drawn back to some images that are old in American history.  Am I the only one who remembers bodies of black men hanging in trees and burned, with their families steeling away to take them down after the lynching was finished to bury them with some semblance of respect for the dignity of their loved one?  Am I the only one who saw 12 years a slave and the scene of the protagonist strung up and barely able to stand on the ground without choking in front of all the slaves for hours and hours?  Am I the only one who felt a very light rub of an old ante-bellum wound in seeing Michael Brown’s innate body lying in the middle of the street for four hours like roadkill?

If I have caused something to resonate in the reader by taking us to this part of our history, then it has been worth writing this short post.  For the essence of what I am speaking to is the concept of human dignity, and in particular the human dignity of this young black man.  For me, the four hours in the sun that he spent as a corpse on a street was a form of psychological terrorism by the powers that be that had the power to take him away.  We saw the image of a family member rushing to him to cover him, and the police officer pushing that member away.  Overtly or subliminally, we understand that his body laying in the sun was a warning to every black person around there to submit to authority, to be subservient, to go along to get along, to not make waves, and – in essence – to not assert the plenitude of one’s civil, political, and human rights.  The state would not recognize those rights of citizenship or residence was the message. So be forewarned.

This reminded me of the conversations I had on several occasions with visiting Americans in Paris when I lived there.  Inevitably, particularly by white Americans, the question would be asked as to whether I missed being home.  Their look would be a furtive one of hoping that I would say something in the affirmative rather than make some type of condemnation of what it was to be black in America.  What I tended to say after a while was the following.

In Paris, I know that I am not French and so, for the French, I am not civilized because I am not French.  However, in Paris, I know that for the French I am human – uncivilized because I am not French (which is not my fault) but still human.  In the United States, there have been a number of occasions in which I have wondered whether the people I was dealing with thought I was human.  In France, I am considered human.  In the United States, there are times when I have wondered whether the people I am dealing with think I am human.

The humanity issue of course goes back to slavery in the collective American unconsciousness.  I remember that the slave was an asset with the cow, the sheep, and the pig in the ledgers of the master of the plantation.  I have learned recently about slave babies being used as gator bait in Florida as an example of the vision of slaves as animals.  I have learned of the use of the ice bucket of the ALS challenge as a punishment for slaves back in the ante-bellum period.  These are wounds of memory.

The wound of memory being lightly rubbed is the same wound I felt when I watched those people in New Orleans after Katrina desperate at the Convention Center.  Their plight reminded me of the plight of blacks in the Great Flood of 1927 when a riverboat came along and took the whites away and left blacks stranded with water all around them.  The white folks on the riverboat sang songs as they floated away leaving those blacks to the terrible destiny that awaited them at the hands of Mother Nature at her cruelest.

We have to recognize and understand the public and private social violence that is countenanced against young black men – made apparent in that dead body laying in the sun for four hours without his dignity in death being recognized.

It is an old wound, and it seems to me that the inability for the commentators to speak to that old wound is the problem of our collective unconsciousness and our inability to own the history that pervades our lives today, rather than the kind of denial we try to live.  It is painful history to confront, terribly painful, yet its weight remains. A son of the South said it best (for all of us both North and South) when he wrote:

“The past is never dead.  It’s not even past.” William Faulkner, Requiem for A Nun

Michael Brown is just the most recent iteration of our what the French call “refoulement” of that history.  We are sick.

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