New UN Report Denounces America's Human Rights Record

On May 26, the UN Human Rights Council issued a report titled "Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development - Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions."

Alston was damning in his criticism regarding "three areas in which significant improvement is necessary if the US Government is to match its actions to its stated commitment to human rights and the rule of law:"

(1) Its imposition of the death penalty under which innocent people are executed. Alston was shocked about "glaring criminal justice system flaws," citing Texas and Alabama as examples, but many other states are as derelict. He criticized politicized judges and recommended that Congress "should enact legislation permitting federal court habeas review of state and federal death penalty cases on their merits."

He condemned the 2006 Military Commissions Act and its provisions that violate international human rights and humanitarian law with regard to due process and fairness.

(2) America needs "greater transparency into law enforcement, military, and intelligence operations that result in unlawful deaths." Domestically, it provides inadequate information about deaths of immigrants and other detainees, but the worst failures are in international military and intelligence operations. 

(3) The government fails to "provide greater accountability for potentially unlawful deaths in its international operations." It ignores civilian casualties, both their number and conditions under which they occur, and fails to provide ordinary people, including US citizens, with basic information regarding investigations and prosecutions when laws were violated. It fails to assure safeguards are in place to prevent so-called collateral damage - that is, civilians wrongfully (and at times willfully) targeted and killed.

Overall, "there have been chronic and deplorable accountability failures with respect to policies, practices and conduct that (cause) alleged unlawful killings - including possible war crimes - in the United States' international operations." Effective investigations have been lacking and guilty parties, throughout the chain of command, haven't been punished. Even worse, private contractors and civilian intelligence personnel have been granted "a zone of impunity" because of failures to hold them accountable. Alston recommends a national "commission of inquiry" and a special prosecutor to conduct thorough investigations "independent of the pressure on the political branches of Government."

More on this below.

In June 2008, Alston spent two week in America meeting with federal and state officials, judges and civil society groups, as well as victims and witnesses in five US cities. As a signatory to international human rights laws, including the four Geneva Conventions, the International Covenant on Civil and Political Rights, and Convention against Torture, the US is bound by their provisions and required to hold its civilians and military personnel accountable when they violate them.

Domestic Issues

The federal government, 35 states, and US military impose death penalties, often executing innocent people for failing to assure proper due process and fairness. Alston addressed the federal death penalty and its application in Texas and Alabama, the former for its largest number of US executions, the latter for having the nation's highest per capita rate of them.

Yet since 1973, 130 death row inmates nationwide were exonerated, and their numbers keep growing. Since 1977, 13 in Illinois were also declared innocent and freed, a state where governor George Ryan took unprecedented steps:

He also says foreign nationals denied the right to consular notification were unfairly treated and should be provided review and reconsideration.

Judicial Independence

Texas, Alabama, and other states "have partisan elections for judges." However, "as research and practice show," this system "jeopardizes the right of capital defendants to a fair trial and appeal." Also, there's a direct correlation between public support for the death penalty and decisions made to impose it. "There is no such correlation in non-elective states." State officials told Alston that getting re-elected depends on supporting the death penalty and imposing it from the bench - even at times by overriding jury decisions for life in prison.

Right to Counsel

The right is fundamental but not applied if counsel quality is poor, as so often is the case when court-appointed or low-income defendants can't afford better representation. State funding to provide it is inadequate, and one Texas official told Alston that defense counsel competency in the state is "abysmal." Major reforms are needed to repair a broken system, in Texas and nationwide.

Racial Disparities

Persons of color in America are most vulnerable to receive death sentences in capital cases - especially if victims are white. Yet federal and state officials are indifferent to the problem or deny one exists. When confronted with evidence from various studies, they claim they were conducted by anti-death penalty advocates and dismiss the results. It's never been a good time to be poor, black, or Latino in America, especially when confronted by a hostile criminal justice system claiming to be impartial.

Systematic Evaluation of the Criminal Justice System

Far too little is done at the state or federal levels to ensure wrongful death penalties aren't imposed. Their frequency demands serious redress - firm measures to halt injustices this grave.

Federal Habeas Corpus Review

Habeas suits can be filed in federal courts to challenge death penalty convictions, but not easily. The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) denies them on many grounds, imposes a six-month statute of limitation for filing, and restricts access to federal evidentiary hearings. Other problems also exist that limit defendants' rights even when wrongfully convicted - such as emphasizing  "finality" over the right of due process and fairness. Serious reform measures are needed to redress this.

Most Serious Crimes

The definition is vague and applies to an intention to kill resulting in the loss of life as determined by a judge and jury. However, capital punishment may be imposed for crimes like running large illegal drug operations according to the 1994 Federal Death Penalty Act. Other crimes as well, including treason, terrorism, rape, kidnapping, and in the military for desertion or mutiny.

Consular Notification

America is party to the Vienna Convention on Consular Relations (VCCR). It grants foreign nationals the right to contact their consulates for help, but too often they're prevented from doing it - in Texas, for example, where the state legislature failed to authorize its courts to provide this review. At the federal level as well by Congress not doing it. Alston says VCCR is "a bedrock principle of international law" affecting not just foreign nationals on death row in US states, but "equally to any American who travels to another country." It's up to Congress to fix this.

Deaths in Immigration Detention

In June 2008, the federal government acknowledged at least 74 immigrant detention deaths since 2003. Newspaper reports suggest far higher numbers. They result from various causes, including denying medical care, poor quality or delayed care, and "inappropriate medication." Overall, the treatment of immigrants in detention is deplorable with little attention paid to basic needs along with abusive treatment by authorities.

Killings by Law Enforcement Officials

The Department of Justice (DOJ) Bureau of Justice Statistics (BJS) compiles data covering homicides (usually by other inmates but also by guards), suicides, "arrest-related killings," and other judicially related deaths. 

Statistics on resulting prosecutions and convictions aren't available, but it's "clear that (their) number....is small...." It means serious offenses are committed against numerous people trapped in the criminal justice system that too often affords little of it to the most vulnerable.

International Operations - The Death Penalty Under the Military Commissions Act

From the time of their arrest and internment, Guantanamo detainees were denied any measure of due process and fairness. Five are charged with capital offenses under the Military Commissions Act (MCA), and others also may face the death penalty under this travesty of a law. Although Obama ordered a stay of Commission proceedings to decide on procedures to follow, he left open the likelihood that prosecutions will proceed under MCA provisions, and if done, they'll violate US obligations under international humanitarian law.

MCA "utterly fail(s) to meet basic due process standards." Several of its most egregious flaws include: