Our Rights, Our Future

What’s in the Best Interest of the Child? The Role of the Courts When Bias Gets in the Way.

In 2004, the state of Florida took custody of two young boys, brothers ages 4 years and 4 months, whose parents were seriously neglecting them. While the four-year-old had taught himself to feed his baby brother and to change diapers, both boys were sorely in need of loving, capable adults to care for and guide them. They found this care in Martin Gill and his long-term domestic partner, who took the boys in as foster children.

The boys flourished socially and otherwise during two years they lived with Gill as a family, and Gill sought to adopt them. He could not do so, however, because the state of Florida does not allow people who are gay or lesbian to adopt children. In 1977, the state passed a law banning adoption by gays and lesbians, which has yet to be repealed.

According to federal statistics, there are currently 123,000 children in foster care in the United States, in temporary placements, waiting to be adopted. Doesn’t every child deserve a permanent home?  And isn’t it the role of courts in this country to ensure that prejudice doesn’t bias our laws and cause harm to our citizens?

Gill could not bear the thought that the boys might be separated and taken from the only home they had ever known, and so he challenged the adoption ban in court. In 2008, a Miami circuit court ruled that the ban was unconstitutional. The state’s appeal is still pending, however. The boys, now 5 and 9 years old, do not fully understand what adoption means -- but they eagerly await the day they can share a last name with their doting father.

For years, courts across the nation have decided custody issues in terms of the “best interest of the child.” The courts have a role to play in adoption cases as well, to ensure that no child is deprived of a family and permanent home because of prejudice and baseless myths about gay people.

Florida families such as Martin Gill’s are not the only ones whose rights are at risk. In Arkansas, a law was passed by referendum in 2008 that bans all unmarried people living with an unmarried partner from adopting or fostering children. A challenge to that law, Cole v. Arkansas, expected to go to trial in May 2010, was brought on behalf of “20 individuals from nine different families, including a lesbian who lives with her partner of nine years and is the only relative able and willing to adopt her grandchild who is now in Arkansas state care, several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years.”

The battle to ensure the rights of LGBT individuals has been labeled by many as “the civil rights struggle of our generation.”  As the Gill family’s story shows, discrimination against LGBT people has collateral consequences for others, including vulnerable children.  Let’s hope, over the years to come, that the courts help to dismantle all manner of institutionalized discrimination and to protect the civil and human rights of all people -- especially our nation’s children.

(Photo by twodolla.)

Protect the Victim, Not the Aggressor

In 2002, the CIA came to suspect 39-year-old Canadian telecommunications engineer Maher Arar of having ties to Al-Qaeda. The CIA convinced the Canadian government to share information on Arar's whereabouts. While Arar was returning home to Canada from a vacation in Tunisia, transferring planes at Kennedy airport, he was taken into custody and held in New York for two weeks before being ushered off to a prison in Syria.  He was tortured and otherwise subjected to inhumane conditions for a year, and then released.

After returning to his home in Ottawa, Arar sought justice. He filed near-identical lawsuits in both Canada and the United States. In Canada, after an investigation, a judge confirmed that Arar had undergone intensive torture while in Syria.  It was also found that the initial allegation that Mr. Arar was a probable al-Qaeda terrorist had no substance. The judiciary also found that Canadian officials were 'unintentionally complicit' in overseas torture. A mediation was held with federal government officials and a near-record $10.5-million in damages was awarded to Arar and his family.

Despite the fact that both the Canadian and U.S. lawsuits were essentially the same -- and that the U.S. was actually responsible for Arar’s extraordinary rendition -- the lawsuit played out very differently in the U.S. courts. Firstly, a federal judge dismissed Arar’s U.S. suit in 2006, a decision that was affirmed in 2008 by a three-judge appeals panel. Then, in a surprising move, the full bench of judges on the Second Circuit Court of Appeals decided to hear the case. The 59-page ruling, released last week, concluded that Arar could not sue the officials involved in his rendition, namely former Attorney General John Ashcroft. The Second Circuit said that if a civil damages remedy were to be created, Congress would have to do it.

In the majority opinion, Judge Jacobs wrote that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from officials for a constitutional violation.  Funny, that sounds exactly like what the judiciary should be doing.

Judge Jacobs defended the court’s stance by saying that allowing suits against policymakers in rendition cases would “affect diplomacy, foreign policy and the security of the nation.” Is no one concerned with the integrity of our nation? Finally, Justice Jacobs said that administrations had practiced rendition since at least 1995, and judicial review would “offend the separation of powers.” Again, judicial review is supposed to provide the separation of powers, and should not offend it in any way.

The four judges who disagreed with the ruling were not shy about expressing their disappointment. Judge Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” He asserted that the majority opinion had gone astray in its “utter subservience to the executive branch.” Judge Calabresi further expressed his “conviction that in calmer times, wise people will ask themselves: How could such able and worthy judges have done that?” The American public should be asking that question now.

The Center for Constitutional Rights, which has spearheaded Arar’s case, issued the following statement on Arar’s behalf:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately… the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

There is a good chance that Arar and his lawyers will appeal the decision to the Supreme Court; let’s keep our fingers crossed that our nation’s highest court will decide to protect the victim, not the aggressor.

(Photo by erokCom.)

NCRCR Interview Series: Nelson v. Norris

Tricia Perry of the National Campaign to Restore Civil Rights spoke with ACLU attorneys Elizabeth Alexander and Amy Fettig about the recent ruling in the Nelson v. Norris Supreme Court case. Listen in as Alexander and Fettig discuss the fight to end the practice of shackling imprisoned women during childbirth.

Halliburton/KBR Employee Still Has No Access to the Courts

In light of the Franken Amendment currently pending in Congress, we thought it timely to re-post our earlier commentary on Jamie Leigh Jones' lack of access to the justice system. When first accepting employment with KBR/Halliburton, Jones had been forced to sign a mandatory arbitration clause which has now left her unable to pursue accountability for having been raped on the job.

Read Halliburton/KBR Employee Has No Access to the Courts.

Are Torturers Above the Law? Or Can They Be Sued?

By Brendon Fleming

Nearly 20 years ago, Ali Samantar left his native Somalia, then a country tumbling deeper and deeper into chaos. After years as a general in the Somali army, as defense minister, and finally as prime minister, Samantar fled Somalia and eventually settled in Virginia. His past, however, eventually found him in the United States.

In 2004, a group of Somalis sued Samantar in federal court in Virginia, alleging that Somali agents under Samantar’s control had tortured them and committed other human rights abuses against them in the 1980s and early 1990s, before Samantar fled the country. Those suing wanted to see Samantar held responsible for the torture and abuses, asking he pay them monetary damages.

After five years winding its way through the federal courts, the U.S. Supreme Court will now hear the case. At the core of Samantar v. Yousuf, is the issue whether or not Samantar is immune, as a former official of a foreign government, from being sued in the United States for alleged human rights abuses that occurred on his watch in Somalia in the 1980s. The suit claims Samantar and those in his command were responsible for killings, rapes, and torture - including waterboarding.

The plaintiffs, five Somali survivors of torture, sued Samantar under the Alien Tort Statute and the Torture Victim Protection Act. The Alien Tort Statute (ATS), a federal law that has been on the books since 1789, allows non-citizens to sue their abusers in federal court for human rights abuses that violate international law. The Torture Victim Protection Act of 1991(TVPA) allows victims of torture carried out by agents of a non-U.S. government to sue their torturers for monetary damages in federal court. The ATS and the TVPA are doors into U.S. courts for victims of torture and human rights abuses suffered abroad, at the hands of despots and tyrants. The laws allow a day in court for victims who might otherwise never have one in the United States, in their home countries, or anywhere else.

But the Supreme Court could close those doors, at least to some plaintiffs, with this case, depending on its reading of the Foreign Sovereign Immunities Act (FSIA). The FSIA is a law that governs when and how foreign countries may be sued in American courts. FSIA makes foreign countries immune from certain lawsuits. In this case, the Court will decide whether the ATS or TVPA allow lawsuits against foreign officials—individuals with state power, rather than merely a state itself—for alleged human rights abuses committed in their official capacity. Put another way, the Court will decide whether FSIA immunity extends to individuals acting as officials for foreign governments, including former officials, or whether it only immunizes foreign states themselves and their government agencies.
   
The Supreme Court must decide which is right: allowing the case against Samantar to proceed under the ATS and TVPA, thereby giving the victims of alleged torture their day in court, or using a federal law that was designed to facilitate diplomacy by protecting foreign governments instead to protect an alleged torturer and perpetrator of vast human rights abuses.

The ATS and the TVPA are important because they are an acknowledgment by the United States of the existence and enforceability of international human rights law. They recognize that some abuses are so flagrant that they violate the norms and rules accepted by the international community as the law of nations—international law. Allowing a suit such as this one, against Samantar, would be a significant step forward for the international rule of law—a resounding statement that individuals who torture for their governments or take official action that violates international human rights norms cannot hide behind their government’s immunity.

If the Supreme Court allows the case to proceed, a lower federal court could then determine that Samantar is liable for the alleged abuses, an outcome that the plaintiffs and many Somalis would no doubt applaud. But a court could instead, based on testimony and evidence, find him not liable, which would likely disappoint many who already believe Samantar is responsible for the abuses. As important as the outcome of the case is, it is equally important to allow the court to hear the case through to completion, without cloaking it with official immunity and stopping it in its tracks.

Somalia has been without a stable functioning government since 1991, when its government collapsed and Samantar fled. Regardless, U.S. courts can and should still provide a day in court for these Somali survivors.

Brendon Fleming, of Rochester, N.Y., recently graduated from Columbia Law School, where he was Executive Editor of the Columbia Journal of European Law. He blogs from time to time at Big Signs.

(Photo by Javier Kohen.)

U.S. Joins the International Community on Disability Rights

Last week, the United States joined over 140 countries in signing the UN Convention on the Rights of Persons with Disabilities (CRPD). This move marks a significant shift in American foreign policy, the CRPD is the first international treaty that the US has been party to in nearly a decade.

The CRPD was adopted by the UN General Assembly in 2006. However, the U.S. did not sign the treaty at that time due to the Bush administration’s insistence that an international treaty would damage protections provided by the Americans with Disabilities Act (ADA). In contrast, the Obama administration used the 19th anniversary of the ADA to endorse the CRPD. "I'm proud of the progress we've made," Obama said. "But I'm not satisfied." The next stop for the CRPD is the US Senate, which will have to ratify the convention in order to make it binding US law.

Currently more than 650 million people worldwide, including 54 million Americans, live with a disability.  Disability is not a partisan issue - it touches the lives of all people, regardless or race, age or gender. It is crucial that the United States Senate stand with the rest of the world to ensure the rights of all people are protected.

For more information on the CRPD, click here. For more information on disability rights in the U.S., click here.

Australia Leads U.S In Ratification 'Race': Six Toothless Tigers To Three

Australia has unfortunately been known in recent times as the United State’s shadow, or my personal favorite; ‘Bush’s pocket warmer’, thus while I’m on board with the National Campaign to Restore Civil Rights as an intern from Australia, I’m taking it upon myself to restore some dignity to the Australian image.

The most recent, glaring example of the sheep-shepherd relationship between Australia and the United States (respectively) was Australia’s entry into the Iraq War on the coattails of the Bush administration. The reasons for such vary according to which authority you approach, however there is at least one area in which Australia has undertaken a leadership role; the ratification of human rights treaties. This is especially true in regards to the seven core human rights treaties which are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant for Economic Social and Cultural  Rights (ICESCR), the Convention on the Elimination of all forms of Racial Discrimination (CERD), the Convention Against Torture (CAT), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Protection of the Rights of Migrant Workers and Members of Their Families.

U.N. Rapporteur Declares U.S. Death Penalty "Highly Problematic"

Philip Alston, the U.N. special rapporteur on, among other things, arbitrary executions, recently chastised Alabama and Texas for being "strikingly indifferent" to executing the innocent.

U.N. Rapporteur Visits America To Investigates Claims Of Racism

A U.N. representative recently concluded a three-week, eight-city tour of the United State to investigate claims of racial discrimination. The U.S. is a signatory of the Convention on the Elimination of Racial Disparity, an international treaty that protects citizens from all forms of racial discrimination. The Campaign recently testified before the U.N. and issued a shadow report highlighting our government’s failure to comply with its treaty obligations, and criticizing the continued rollback of civil rights.

The U.N. dispatched an emissary, Doudou Diène—who has one of the best civil service titles, the U.N. Special Rapporteur on Contemporary Forms of Racism, Race Discrimination, Xenophobia, and Related Intolerance—to check out our allegations.