A PROPOS OF PRESIDENT’S TRUMP EXECUTIVE ORDER DENYING FUNDING TO SANCTUARY CITIES

President Donald Trump recently signed an Executive Order denying federal funding to sanctuary cities – jurisdictions that choose not to cooperate with federal efforts to deport undocumented immigrants. The order states that sanctuary cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.”

What is a Sanctuary City?

Sanctuary city is a name given to a city in the United States that follows certain procedures that shelters undocumented persons and do not permit municipal funds or resources to be applied in furtherance of enforcement of federal immigration laws. These cities generally do not permit police or municipal employees to inquire about a person’s immigration status.

Most often, sanctuary policies prevent or otherwise limit state and local officers’ ability to cooperate with U.S. Immigration and Customs Enforcement (ICE) detainer requests. A detainer request asks for local law enforcement agencies to notify ICE prior to releasing an individual from local custody, and to hold him for up to 48h, excluding weekends and holidays, so that ICE can arrange to take over custody enforcement. Some sanctuary policies allow for notification to ICE about an individual charged or convicted of certain offences or is a sex or arson registrant.

The sanctuary movement started in the 1980’s when about a million Central Americans, mainly from El Salvador and Guatemala, crossed the U.S. border-seeking asylum from their repressive governments and seemingly never-ending civil wars. The Reagan administration was supporting these governments’ (especially the governments of El Salvador and Guatemala) attempts to fight communist rebels and therefore, the administration would only characterize Salvadorans and Guatemalans as “economic migrants, not eligible for asylum.” Hundreds of churches in the U.S. openly defied the U.S. government and its immigration policy by providing safe havens for Central Americans.  Influenced by the sanctuary movement, San Francisco passed the “City and County of Refuge” Ordinance in 1989, which barred city money from being used to enforce immigration law. Hundreds of U.S. cities and counties have followed suit and adopted similar “sanctuary” laws or policies.

The procedures that establish a sanctuary city can be by law or by action (de facto). A sanctuary city is created by law when there is a written policy enacted by a local government body in the form of a resolution, ordinance, or administrative action. San Francisco currently has one of the most detailed written policies regarding its status as a sanctuary city.

Are Sanctuary Cities in Compliance with the Law?

Sanctuary cities exemplify the principle of separation of powers between the federal and state governments stated in the Tenth Amendment to the US Constitution. The Tenth Amendment limits the power of Congress to regulate by directly compelling local jurisdictions to enact and enforce a federal regulatory program (New York v. United States (1992) 505 U.S. 144, at 161). Since the federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion, and deportation, Congress is prohibited by the Tenth Amendment from passing laws requiring states to administer civil immigration.

In 1996, the federal government enacted two pieces of legislation which prohibit state or local governments from restricting voluntary communication with the federal government regarding the immigration status of any individual: § 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, 8 U.S.C. § 1644) and § 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, 8 U.S.C. § 1373). Both pieces of legislation were designed to authorize communication by state and local law enforcement agencies with federal immigration authorities regarding the status and presence of undocumented immigrants, but they did not mandate communication or reporting.

The Supreme Court has held that states can enact laws that promote cooperation between local law enforcement and the federal government on immigration matters. In 2012, the United States Supreme Court in U.S. v. Arizona upheld state legislation that requires state and local law enforcement officers to make a reasonable attempt to ascertain the immigration status of persons involved in a lawful stop when officers have a reasonable suspicion that the person is unlawfully present. The Court found that the state provision did not conflict with federal law, but instead fostered the cooperation expressly encouraged in federal law between federal officials and state and local officials.

Thus, although states can choose to cooperate with the federal government on immigration matters, they are not required to do so, and sanctuary cities, insofar as they refuse to cooperate with ICE on immigration enforcement, are in their legal right to do so.

The Constitutionality of the recently signed Executive Order

The new Executive Order signed by President Trump specifically mandates that “the Attorney General and the [Homeland Security] Secretary, in their discretion and to the extent consistent with the law, shall ensure that jurisdictions (sanctuary cities) that willfully refuse to comply with 8 U.S.C. 1373 Communication between government agencies and the Immigration and Naturalization Service, are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 states that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

There are serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373, and in fact, unless interpreted very narrowly, the Executive Order might be unconstitutional. In the case of Pennhurst State Sch. & Hosp. v. Halderman, the Supreme Court held that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. That condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive is not permitted to, at any time, make up new conditions and impose them on state and local governments without prior notice. Doing so undermines two constitutional principles that are basic to the US system of government, the separation of powers and federalism.

Resolution Sanctuary Status for Undocumented Immigrants in Brookline, MA

 

See full text: TownMeeting-Warrant-111406_201407011408347932

“RESOLUTION Reaffirming Sanctuary Status for Undocumented Immigrants:”
“WHEREAS: The Town of Brookline has been built and enriched by generations of”
“immigrants, and has a proud history since November, 1985, as a Sanctuary for refugees from El Salvador, Guatemala, and Haiti;”
“WHEREAS: There are now approximately 12 million undocumented immigrants in the USA who have been systematically denied the opportunity enjoyed by past generations of immigrants to become legal permanent residents or citizens of this country; over the past two decades, immigration policy has become even more restrictive and punitive and closed off avenues previously available for immigrants to obtain legal permanent residency, while the US-Mexico border has been further militarized;”
“WHEREAS: While borders have been closed off to people over the past two decades, they have been simultaneously opened up to trade and capital; these same “free trade” economic policies have increased poverty and decreased opportunities for people to make a dignified living and support their families;”
“WHEREAS: In 2005, record numbers of migrants seeking to support their families, with no means to migrate safely into the USA, perished in the desert along the US- Mexico border, while countless others died in the journey; and the migration experience has adverse emotional and psychological effects on families, kept apart for many years due to unjust immigration policies and backlogs in visa applications; and undocumented immigrants are especially vulnerable to workplace abuses and housing discrimination;”
“WHEREAS: Current US immigration policy does not reflect the standards of Brookline residents regarding what is just, humane and moral; and both undocumented and”

A RESOLUTION FOR THE NEW YEAR TO STOP HOME GROWN TERRORISM

 

“Today there were terror attacks in Turkey, Switzerland and Germany – and it is only getting worse. The civilized world must change thinking!”

Donald Trump (Dec. 20, 2016)

“We will find the strength for the life that we want to live in Germany, free, with one another, and open.”

Angela Merkel (Dec. 20, 2016)

Earlier in the week, a terrorist attack carried out using a tractor-trailer to plow through a crowded Christmas market in central Berlin, left 12 people dead and injured 48 others. ISIS (or Da’ish) has claimed responsibility. After the various attacks recently perpetrated—in Orlando, Istanbul, Dhaka, Baghdad, Nice, Paris and now Berlin— there is still no effective international strategy to deal with terrorist attacks by ISIS, and with the support it receives, often by nationals of the countries where those attacks take place. To be clear, the vast majority of the world’s Muslims do not support ISIS, but there are enough who do—including citizens of France, Britain, Germany and the United States—so, we need to start thinking of viable strategies to fight terrorism at an international level that also addresses the problem at “home.” The strategies used so far are not working.

Governments have a number of possible responses to terrorist attacks, beyond the perfunctory initial show of solidarity, some might involve curtailing civil liberties in what is often interpreted as a benign exchange of personal freedoms for security. Other strategies might be more geared to attempting to give Muslim citizens everywhere a greater stake in the peace and prosperity of the countries in which they live, so that they do not feel like outsiders, and are able to develop lasting bonds with members of the community. These personal connections with our community are what make the fabric of a peaceful society, when those connections are made, there is little room for murderer terrorist plots to fester undetected.

In the United States, historically, repression has been the government’s reaction to threats to security. In 1798, in response to concerns about survival of the country, Congress enacted the Alien and Sedition Acts, which made it a federal crime to make false criticisms of the government or its officials. Likewise, during the Civil War, President Abraham Lincoln’s dissidents were imprisoned for criticizing the way the government was handling the war, and the writ of habeas corpus was suspended. During World War II, 110,000 Japanese Americans were forcibly shamefully interned in

concentration camps. The McCarthy era ushered in a witch-hunt that resulted in the persecution of those suspected or merely accused of being communists. Even in more recent history, after 9/11, citizens of the United States suffered a substantial loss of their civil liberties with unprecedented claims of authority to detain American citizens, unprecedented secrecy, and unparalleled invasions of privacy. The Bush Administration established a system of military tribunals for Guantanamo detainees, bypassing Article III courts, which was struck down by the Supreme Court as a violation of the Uniform Code of Military Justice (“UCMJ”).

Europe also has had significant experience with terrorism, and in those situations, European governments have also gone too far in curtailing human rights and personal freedoms. In the United Kingdom, terrorist attacks have been going on since about 1969 with the actions of the IRA which killed over 1,600 soldiers and civilians since the inception of hostilities. The conflict with Northern Ireland grew to its greatest heights between 1970 and the early 1980’s. As a result, the United Kingdom passed various legislative measures aimed at combating terrorism including internment.  The Detention of Terrorists Order of 1972 allowed anyone “suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organization or training of persons for the purpose of terrorism” to be detained for twenty-eight days. After twenty-eight days, the detainee was released or referred to a commissioner, someone appointed by the Secretary of State. The commissioner would hear the case, but the hearing was primarily an executive procedure and not a judicial one. For example, the detainee could be excluded from the proceeding if national security was at stake, the hearing could be based on hearsay, and the accused did not have the right to call witnesses. In 1980, public criticism of the procedures resulted in the act being repealed.

In Spain, the Basque separatist organization Euskadi ta Askatasuna (ETA) fought for an independent homeland for Basques in four northern Spanish provinces since the 1960s, and their violent acts killed over 1000 people since 1968. Under the dictatorship of General Francisco Franco, authoritarian measures were used to suppress Basque dissidents, who were considered military enemies. To streamline prosecutions against the separatists, the crime of military rebellion was extended to political offenses, banditry, and other acts unrelated to the military to address the actions of dissidents through the use of military trials with significantly fewer procedural safeguards than regular courts. During the final decade of the Franco regime, a secret tribunal known as the “Tribunal del Orden Publico” was instituted to try in secret, and without counsel, those who opposed the regime and who were considered terrorists by the government. After Franco’s death in 1975, Spain transitioned to a democracy and people demanded an abandonment of such coercive practices.

The passage of anti-terrorist legislation affecting civil liberties following 9/11 was not limited to the United States. British anti-terror legislation allowed the government to detain without charge any terror suspect for a period of up to twenty-eight days. In addition to the 9/11 terrorist events in the United States, investigation into the bombings in the United Kingdom on July 7, 2005, the further attempted bombings in the same month, and in August 2006, and the Birmingham beheading plot in January 2007, were considered to justify the use of anti terrorist legislation to stop and search large numbers of people living in Britain. Between April 1, 2001 and March 31, 2005, the police and security services stopped and searched 111,900 of whom approximately 1.4% were subsequently arrested.

Fear and anger about terrorist attacks affect financial markets, consumer spending, air travel, and public opinion toward government. In France, Front National Leader Marine Le Pen was quick to exploit the wave of anger directed towards President Francois Hollande over his handling of the terror threat in last July’s attack at Saint-Etienne-du Rouvray. After the attack, she accused the entire French establishment, both Left and Right, of sharing “immense responsibility” for creating the circumstances in which Islamist terrorists can operate in France. She received a great deal of support following those comments. In times of crisis, people want their leaders to provide protection, thus, whomever articulates the strongest laws and measures that appear to offer safety and security, will receive public support as measured in opinion polls. Unfortunately, the measures often advocated by governments in times of crisis tend to inevitably result in the infringement of personal rights and freedoms without tackling the root problems of disaffection and disconnectedness. Thus, despite all the promises by new leaders, governments change and terrorist attacks continue.

At this juncture, and considering that a new year is about to start, perhaps we ought to consider new strategies to combat ISIS. It is important to keep in mind that despite the history of government’s invasions of liberty and curtailment of personal freedoms in those critical times, there is no evidence that society, as a result, has become any safer. And yet, we still have governments advocating for stricter measures of surveillance, detention, curtailing of immigration, etc.  Now, as the world faces a different threat created by a new generation of Islamist-inspired terrorists, with home-grown terrorists, our leaders must show intelligence and resolve if they are not to fall into ISIS’s trap of allowing the current wave of terror attacks to bring about a true political crisis worldwide. Further reflection and discourse is needed as to the best course of action and on the effect that excessively curtailing civil liberties has on society. If we learn from history, we would understand that a balance between security and respect for human rights and diversity, is necessary to achieve lasting security and long-term peace. Maybe the recognition of this fact could be a universal resolution for the new year: that merely building walls and ghettos will not solve the problem posed by terrorism.

 

WHILE WE ARE BUSY DISCUSSING POLITICS….

Last Thursday, the latest Living Planet Report from the World Wildlife Fund revealed that if action is not taken soon, more than two thirds of the world’s wildlife could be gone by the end of the decade (see report at: https://www.wnf.nl/custom/LPR_2016_fullreport/) According to the report, since 1970, there has been a 58% overall decline in the numbers of fish, mammals, birds and reptiles worldwide, which means that wildlife across the globe is vanishing at a rate of 2% a year. If this trend continued, there would be an extinction of wild animals on Earth by the middle of this century.

The World Wide Fund is an international non-governmental organization founded in 1961, working in the field of wilderness preservation, and the reduction of humanity’s footprint on the environment. The Living Planet Report, published 11 times since 1998, analyzes data on the number of fish, birds, non-human mammals, amphibians and reptiles all over the world. The latest report was compiled by monitoring trends in 14,152 populations of 3,706 different species of vertebrates, including fish, mammals and birds, across the world.

In the report, the rapid extinction is blamed on habitat loss, over exploitation of resources, pollution, and climate change. In the last century, the population has grown from about 1.6 billion people to more than 7 billion, and it is expected to exceed 9 billion by mid-century. Thus, many of the problems facing wildlife involve being overfished or hunted for food and losing their habitat as more and more land is cleared for agriculture. The World Wide Fund estimates that farmland occupies more than one third of the planet’s surface. Other growing threats to wildlife include pollution and climate change, which can vary the temperature and precipitation patterns that animals have evolved to tolerate, strain their food resources, and force entire populations to migrate or face extinction.

Despite agreeing with its overall findings, some conservationists have criticized the report’s results, saying they could be misleading because while referring to the overall 58% decline in wildlife populations, the report mixes ocean life with land life. Additionally, the report does not account for how future conservation projects will help the problem. However, all experts agree that the world is losing individuals of species and geographic ranges at a very rapid rate, and that there is reason to be alarmed.

The deaths of animals and fish across the globe, in addition to being a threat to biodiversity, could also see humanity threatened. The report points out that healthy and intact ecosystems “provide us with food, fresh water, clean air, energy, medicine, and recreation. In addition, humans depend upon healthy and diverse natural systems for the regulation and purification of water and air, climatic conditions, pollination and seed dispersal, and control of pests and diseases.” Thus, some argue that it is imperative that governments act in concert to avoid the extinction of a large number of animal species, in order to preserve humanity.

Recently, on October 5, 2016, the threshold for entry into force of the Paris Agreement was achieved and the agreement will enter into force on 4 November 2016. The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gases emissions mitigation, adaptation and finance. It sets out a global action plan to put the world on track to avoid dangerous climate change by limiting global warming to well below 2°C., but perhaps more specific measures need to be taken to protect wildlife.

In order to avoid the dramatic losses projected by this year’s World Wildlife Fund report, the authors recommend a variety of prevention tactics, including increasing the number of protected areas on Earth and committing to more sustainable energy and food systems. The alternative, the report suggests, is a world in which unsustainable activities eventually exceed the planet’s ability to support both the natural and human systems it houses.

 

EXTRADITION OF FETHULLAH GULEN – A MATTER OF NATIONAL SECURITY?

A delegation with the US Department of Justice arrived yesterday in Ankara to hold talks over Turkey’s request for the extradition of a Muslim cleric accused of masterminding a coup attempt against President Recep Tayyip Erdoğan last month. Shortly after the failed coup attempt that claimed 270 lives and left 1,440 wounded, Turkey accused U.S. based cleric Fethullah Gülen of orchestrating the violent events. Gulen, who has lived in the Pennsylvania for the past 17 years as a Resident Alien (“Green Card holder”), has denied any connection to the coup attempt.

Turkey and the United States have an extradition agreement, and Turkish officials have insisted that action on their request should not be delayed, but the US Justice Department has requested additional evidence of Gülen’s involvement, and has indicated that the regular extradition process must take its course. Turkey insists that they have provided sufficient evidence to US officials to prove Gülen’s involvement; however, Gülen’s extradition is still on hold.

In the normal extradition process, once a person is located outside the country wherein the criminal conduct has allegedly occurred, that person is handed over by the “arresting” government to the “requesting” government for trial and/or punishment. Extradition normally requires the existence of a treaty between the arresting country and the requesting country to which extradition is sought. Generally, an extradition treaty specifies who can be extradited, under what circumstances, for which crimes, etc. The U.S. has roughly 107 extradition treaties in place, including one with Turkey.

Extradition is different from deportation/expulsion wherein a person present in a foreign country is sent back to his country of origin (or the country he or she came from). This can happen for a variety of reasons defined by the local law of the foreign country, including invalid travel documents or being a risk to public safety. It is typically a more flexible and discretionary alternative to extradition, assuming the foreign country’s laws allow for it. For instance, government officials might revoke the passport of a fugitive named in a warrant, which might result in loss of the fugitive’s lawful residence status, thereby provoking his or her deportation.

There are currently five court cases open against Gülen in Turkey with charges that include attempting to stage a coup, leaking of classified information, forgery and organizing an armed terrorist group. In May 2015, Turkey declared FETÖ, also known as the Gülen Movement, as a terror threat, adding it to the list of terror groups including the PKK and DAESH, which are listed as terrorist organizations by the U.S. and the EU. Thus, Turkey considers Gülan the leader of a terrorist group. In televised comments last Sunday, President Erdoğan stated that the U.S. position on Gülen is “overshadowing our strategic partnership,” explaining further that “Turkey has never asked from America to provide documents or proof on criminals that they’ve wanted us to extradite, “we’ve given them the terrorists they wanted,” he said.

Prime Minister Binali Yildirim has warned that the Gülen issue was “destroying” bilateral ties with its NATO ally, as Turkish officials seek to increase the pressure ahead of Vice President Biden’s visit to Turkey this week. However, President Barack Obama’s administration remains steadfast in the belief that clear evidence of criminal activity is needed to satisfy U.S. due-process requirements as well as provisions of the U.S.-Turkey extradition treaty.

Some argue that the speedy extradition of Gülan is of upmost importance to continue friendly U.S. relations with Turkey. Additionally, in order for the U.S. to have its own requests for extradition honored by other governments, it must reciprocate when asked to do so as in the case of Gülan. Others argue that the U.S. has to act in accordance with certain constitutional legal requirements before an individual is extradited. The U.S. must balance basic due process rights of an accused, versus the harm that not honoring an extradition request by a friendly government may cause to US national security.

THE UNITED NATIONS, HUMAN RIGHTS, AND THE POLITICS OF IT ALL

The United Nations Secretary General’s office, headed by Secretary General Ban Ki-moon, publishes an annual report about the condition of children in war-torn areas. The 2015 report, released last week, revealed that during that year 1,953 children were either killed or injured as a result of armed conflict. This figure is six times higher than it was in 2014, with 60% of these casualties caused by coalition groups led by Saudi Arabia in the multisided war in Yemen. The report also stated that the same coalition was responsible for 48% of all of the attacks on schools and hospitals -with the UN establishing 101 such attacks – twice the number that what was reported in 2014.

Based on its leadership role of the Yemen coalition, Saudi Arabia appeared on the U.N.-”blacklist” of violators of children’s human rights released last week. However, shortly thereafter, Saudi Arabia was removed from the list. Ban Ki-moon’s sudden change of heart has resulted in a massive outcry from human rights groups who have accused Ban Ki-moon of letting political pressure affect his judgment. In response, UN spokesman Stephane Dujarric stated that Secretary-General Ban Ki-moon took the decision pending a joint review of cases with Saudi Arabia. Dujarric did not specify whether the Saudi Arabia Coalition in Yemen would be added to the blacklist if the review endorsed the findings in the original report. However, Saudi Arabia’s UN Ambassador Abdallah al-Mouallimi said they were wrongly placed on the list, and that “this removal is final.”

The Saudi Arabian Coalition in Yemen

The Saudi Arabian-led intervention in Yemen began in 2015 with the intention of influencing the outcome of the Yemeni Civil War. Saudi Arabia headed a coalition of nine Arab states, which carried out a series of air strikes in Yemen, and also imposed an aerial and naval blockade. The intervention resulted in a dramatic worsening effect on the humanitarian situation in the region, reaching the level of a humanitarian tragedy. After the Saudi-led coalition declared the entire Saada Governorate a military target, the UN Humanitarian Coordinator for Yemen said that air strikes by the Saudi-led coalition on Saada city in Yemen were in breach of international law.

A report by the United Nations High Commissioner for Human Rights (OHCHR) concluded that from March until June 2015, almost two-thirds of civilians killed in the Yemeni conflict had died as a result of the air strikes carried out by the Saudi-led coalition. The actions of the coalition resulted in over 60 percent of child deaths in Yemen, with 510 deaths and 667 children seriously injured. The report stated that the coalition had carried out half the attacks on schools and hospitals. On July 2015, the UN declared Yemen a “level-three” human rights emergency – the highest UN emergency level.

In addition to the deaths of children directly caused by the armed conflict, the war in Yemen has resulted in nearly 10,000 children under the age of five to die from preventable diseases, because of lack of access to essential health services, like vaccination and antibiotics. According to a report released by UNICEF in March 2016, nearly 320,000 children in Yemen were at risk for “acute malnutrition,” with further millions of kids at risk of respiratory infections, diarrheal diseases and measles.

The Effect of Political Pressure

After it became public that the UN had placed Saudi Arabia on the UN blacklist of children’s human rights violators, Saudi Arabia responded by threatening to break relations with the United Nations and cut hundreds of millions of dollars in assistance to its humanitarian relief and counterterrorism programs. Ban Ki-moon told reporters that he had been threatened with the loss of financing for humanitarian operations in the Palestinian territories, South Sudan, and Syria, if he did not temporarily delete the Saudi-led coalition from the list. The threat worked, with the UN subsequently dropping the Saudis from the list of the world’s worst violators of children’s rights in conflict zones.

Unfortunately, this is not the first time the UN gives in to political pressure. Last year, the United States warned that Congress might cut off funding to the UN if it included Israel on the same blacklist of armed entities that killed or injured children in conflict. In that case, the Secretary General removed Israel from a draft blacklist before it was made public. Pushing for the delisting of Saudi Arabia, Abdallah al-Mouallimi, Saudi Arabia’s U.N. ambassador, stated that it was unfair for Israel to be quietly let off the hook, while the Kingdom was not.

On another occasion, in 2014, Ban Ki-moon invited Iran to United Nations-brokered political negotiations over Syria. After he was advised by American officials to rescind the invitation, he appeared before reporters and stated that Iran could not attend. The State Department had demanded that prior to attending the negotiations, Iran accept certain conditions that it knew Tehran would find unacceptable. The result was that Iran did not attend the negotiations. Again, the political pressure exerted by the US worked to change the Secretary General’s original position.

Although it might be unrealistic to expect the UN to be completely unaffected by political pressures, the office of the Secretary General of the UN should be expected to carry out its mandate and its responsibilities without being concerned about funds being withdrawn by countries that disagree with its decisions. Every time the Secretary General gives in to political pressure, the UN loses credibility in its alleged efforts to eradicate human rights violations. Whether the answer is to change the UN model to decentralize power and give more autonomy to the office of the Secretary General, or to force countries to commit funds for use by the UN without the ability to withdraw such funding regardless of the UN’s decisions, it is important to recognize the need for change. For the UN to maintain its authority as a supranational organization to be accorded respect by all nations, its fairness, integrity and trustworthiness must never be in doubt.

 

 

IN THE PRIVACY OF THE BATHROOM

By Ivan Mercado

Last week, North Carolina’s Governor, Pat McCrory, signed a controversial bill blocking cities from allowing transgender individuals to use public bathrooms for the sex they identify as, as well as restricting cities from passing broader nondiscrimination laws. During recent discussions about the so-called North Carolina “bathroom law”, many, including Governor McCrory have argued that the law was in large measure an attempt to protect privacy rights. Protecting privacy in bathrooms is something that I am sure we can all stand behind. However, it is important to take a closer look into this position and see who’s privacy we are protecting and why.

On March 23, North Carolina’s General Assembly proposed and passed House Bill 2 (HB2) — or the “bathroom bill”— and Gov. McCrory signed the legislation that same evening. This dramatic action was motivated by an effort to effectively repeal an ordinance that had been passed by the City of Charlotte. On February 22, 2016, the Charlotte City Council had approved amendments to the city’s Non-Discrimination Ordinances which prohibited discrimination based on race, color, religion, and national origin. These amendments added marital and familial status, sexual orientation, gender expression and gender identity to the list of protected characteristics. However, the ordinance also contained a provision that would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify, and not necessarily the gender stated on their birth certificate.

As a direct response to the Charlotte ordinance, the Republican led North Carolina Legislature set in motion the process for the immediate passage of HB2.  HB2 establishes that the state’s law on antidiscrimination preempts any local action on the same issues, making it impossible for cities and local governments to expand protections in “employment” or “public accommodations” beyond those set forth by the state. As to bathrooms, HB2 sets forth that:

“…Local boards of education shall establish single-sex multiple occupancy bathroom and changing facilities….” [And use of those facilities shall be limited by,] “[b]iological sex. – The physical condition of being male or female, which is stated on a person’s birth certificate.”

Following the signing of H2B,  Governor Pat McCrory released a statement:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman’s bathroom, shower or locker room.
 Emphasis added

McCrory again repeated, and clarified his stance, by adding that the privacy concerned was that of the young children of North Carolina who might have to share a bathroom with a transgendered individual.

While the protection of privacy is a laudable goal, Governor McCrory’s mention of privacy in this context is disingenuous. Admittedly, privacy is a term very difficult to define, but the privacy of children who are in a bathroom stall or shielded in a urinal, while they go to the bathroom, would hardly seem encroached by another child going into the next bathroom stall—regardless of sexual identification. The rights being trampled upon by H2B are those of transgender individuals who presumably could be forced to produce a birth certificate in order to use a bathroom of their choice to ensure that it is consistent with their birth gender.  The use of the right to privacy to support the type of law signed by Governor McCrory is contrary to the concept of privacy itself and privacy advocates are dismayed by the obvious distortion of how and why we should seek to protect Privacy Rights.

In a letter to North Carolina officials, the Justice Department responded to the new state law stating that House Bill 2, violated the rights of transgender people by requiring them to use the bathroom corresponding to the sex on their birth certificate. The Gay, Lesbian, and Straight Education Network said in a press release that because of H2B, transgendered people “will continue to be denied the dignity of accessing restrooms that correspond with their gender identity.” Governor McCrory needs to be honest about H2B and recognize that this is not an issue regarding the right to privacy of those using the public bathrooms, but rather a frontal assault on the rights and dignity of transgender people.

The Panama Papers reveal a problem, but not just about Panama

For the last couple of weeks, it has been impossible to turn on the TV and not hear the name of another President, Monarch or Prime Minister related to the recently leaked offshore holdings documents dubbed the “Panama papers.” The Panama Papers are the 11.5 million documents from the Panamanian law firm Mossack Fonseca that were released by a massive global reporting partnership of over 100 publications led by the International Consortium of Investigative Journalists (ICIJ). These documents identify about 215,000 offshore shell companies and 14,153 clients tied to Mossack Fonseca and linked to the use of tax havens to shield vast wealth.

While names of the like of Putin, Cameron, Almodóvar, and even Messi keep being named as shareholders, directors and beneficiaries of offshore companies, it is interesting to note that so far only a very small number of American names have surfaced. However, that in no way means that American citizens are refraining from such practices. Wealthy individuals and businesses that want to mask their ownership can conveniently do so in the United States. Delaware allows companies to shift royalties and similar revenues where they actually do business to holding companies in Delaware, where they are not taxed.

Panama’s president claims the massive data leak, “wrongly called the ‘Panama papers’ is not a problem of our country, but of many countries of the world.” He is right, to be clear, Panama is one of many jurisdictions where shell companies can be created for the purpose of tax evasion. A tax haven has been described a place that: (1) has no income tax or a very low-rate income tax; (2) it has bank secrecy laws; and (3) it has a history of non-cooperation with other countries on exchanging information about tax matters. Many states in the US have those characteristics.

Those seeking to veil their assets and shield some of their income from taxation can establish a shell corporation in Wyoming, Nevada or Delaware with very little effort. Constituting a company is a simple process (most states allow for online filing) and can be done cheaply. The fee payable to the Secretary of State for the filing is somewhere between $300 and $500, depending on the state where the company is created. There are online services that charge an additional couple of hundred dollars, in addition to the fee, for constituting a company. Constituting a company in most states requires no identification whatsoever from the organizer, the board of directors, or its shareholders.

In 2010, the United States passed the Foreign Account Tax Compliance Act, which requires financial firms in other countries to disclose details about American clients with offshore accounts. However, the United States is one of the few countries that has refused to sign new international standards for exchanging similar financial information with other countries. Thus, it is not surprising that other nations often fail to cooperate with the US in regards to financial disclosure.

In sum, the Panama Papers reveal many problems, including the evident lack of cooperation between countries in regards to financial information. That translates into tax havens where the rich can hold their money and avoid paying their share of taxes. In 2012, Tax Justice Network estimated that somewhere between $21 trillion to $32 trillion is hidden away by the super-rich in offshore entities. However, we would be mistaken to think that the problem is limited to Panama. In fact, the fundamental problem is the failure of nations to require more transparency in financial transactions that could reveal financial fraud, tax evasion or other crimes. While the Panama Papers reveal serious problems with the international tax system, the key to a more equitable future for all is more effective global governance.

 

 

 

 

FOR PRIVACY’S SAKE, IS APPLE IN THE RIGHT?

On December 2, 2015, 14 people were killed and 22 were seriously injured in a terrorist attack at the Inland Regional Center in San Bernardino, California, which consisted of a mass shooting and an attempted bombing. The perpetrators, Syed Rizwan Farook and Tashfeen Malik, a couple living in the city of Redlands, targeted a training event and holiday party organized by the San Bernardino County Department of Public Health. About 80 employees had attended the event. Farook was an American-born U.S. citizen of Pakistani descent, who worked as a health department employee. Malik was a Pakistani-born lawful permanent resident of the United States. It was later discovered that both Farook and Malik supported ISIS’s ideology and had been radicalized.

During its investigation of the San Bernardino mass shooting, the FBI collected the shooter’s iPhone, which is locked down so securely that the Bureau cannot get access in to see what is inside. Since the owner is dead, the government has requested Apple to open the device. In essence, the government wants Apple to build a backdoor to the iPhone. Specifically, the FBI wants Apple to make a new version of the iPhone’s operating system, circumventing several important security features, and install it on an iPhone recovered during the San Bernardino investigation. The software that Apple is being asked to create does not exist today, but in the wrong hands it would have the potential to unlock any iPhone in someone’s physical possession. Apple is refusing to create the software to open the phone stating that doing so would compromise the security of every iPhone everywhere.

The All Writs Act of 1789

The Government is using a 226-year-old law to order Apple to create the software. Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority. The Act states in part that: “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

A Writ is a Court Order. The Act gives courts the authority to issue orders compelling individuals to do things, so long as it is for a legal and necessary reason. However, the All Writs Act, while very broad, is not all-powerful. The very ruling that orders Apple to help the FBI has a caveat of “unreasonable burden” that is part of the All Writs Act. In fact, to the extent that Apple believes that compliance with this Order would be unreasonably burdensome, it may make an application to the Court for relief. That is, Apple can petition the Court not to be compelled to produce the key to open the phone if it can show that doing so would be “unreasonably burdensome.”

Additionally, Apple’s will argue that if the government is utilizing the All Writs Act to make it easier to unlock the iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept people’s messages, access health records or financial data, track locations, or even access people’s phone’s microphone or camera without their knowledge. Google, Facebook, Snapchat, Amazon, Microsoft and Twitter have all signed on to legal briefs supporting Apple in its court case.

History Repeats Itself

Post-9/11 domestic measures implemented in the name of national security included: restrictions on speech and assembly; increased government surveillance; diminished administrative and judicial oversight; new registration requirements and ongoing monitoring of non-citizens that could lead to arrest, detainment, loss of legal immigrant status, criminal charges, and deportation for failures to register; attempts to deport or hold indefinitely non-citizens for minor or nonexistent immigration violations;   secrecy about the names of people detained;   use of asset forfeiture and other expanded governmental powers to obtain information, arrest, detain, and indict individuals for broadly defined terrorism-related activities. In the immediate aftermath of September 11, the United States government arrested and held over 1,000 individuals without filing formal criminal charges against them.

In mid-December 2005, an article appeared on the front page of the New York Times chronicling widespread monitoring of telephonic and Internet communications by the National Security Agency (NSA). These intercepts, according to the authors of the article, occurred with the direct authorization of the President of the United States George H. Bush, and were undertaken without approval or oversight by the judiciary, beginning shortly after the September 11 terrorist attacks. This wide-ranging program targeted interception of email and telephone calls with the number of those targeted ranging from the hundreds to possibly thousands. On December 19, 2005, President George W. Bush confirmed that the government had secretly and purposefully launched a massive electronic surveillance and communications interception program.

It was subsequently revealed that the national Security Agency had conducted warrantless electronic surveillance before obtaining authorization or consent from the President and that domestic communications had also been intercepted without the usual legal safeguards. Moreover, the NSA did not act alone, it sought and obtained the assistance of various private communications companies, who permitted the NSA to directly access their systems to collect information. Finally, the NSA was discovered to have shared the information that it “illegally” obtained with other investigative agencies. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from “everyone in the country.” The NSA’s wiretap program was ultimately found to be illegal and NSA surveillance has been since brought within the relevant laws.

In May 2004, the graphic display of photographs of abuse at the Abu Ghraib prison in Iraq after the United States’ invasion shocked the world. One observer noted, “[i]t was Saddam’s torture chamber, and now it’s ours.” The Abu Ghraib scandal was the last straw. Critics began more vociferous in their concerns about other measures that had been adopted post 9/11 that severely curtailed civil liberties such as the indefinite detention of aliens. In a decision that was seen as a victory for champions of civil liberties, the Supreme Court spoke in the case of Hamdan v. Rumsfeld, and struck down the system of military tribunals for Guantanamo detainees established by the Bush Administration.

After 9/11 people’s outrage about the terrorist attacks fueled their willingness to give up many of their civil liberties in exchange for gaining some sense of personal security. Eventually, the infringement on civil liberties by the governments was such that an adjustment became necessary. The adjustment came mostly as a result of public outcry and people’s realization that despite the importance of personal security, a balance between waving their civil liberties and ensuring their safety was necessary.

Privacy and Security

A respect for the right to privacy and personal security are not mutually exclusive. With the appearance of new technologies that could potentially eliminate individual privacy, society is prompted to question whether privacy is such an essential human need as to make it sacred ground where governments are not allowed to enter unless we allow them to do so. The government’s flawed arguments positing that the only way to offer protection is to infringe in our right to privacy have proven not been successful in the long term. In fact, the NSA surveillance program did not prevent later terrorist attacks in the US and elsewhere. The idea that there must be a tradeoff between privacy and security is false. Our willingness to sacrifice our privacy for our security has been short-lived and eventually, the tide has turned back by demand of the people.

With the Apple controversy, we as individuals must decide what matters most to us, to know that there are some areas in our lives that we can keep private, or to allow our government access to the key to intrude whenever they choose in our private lives? Zeid Raad al-Hussein, the U.N. human rights chief has stated that U.S. authorities “risk unlocking a Pandora’s Box” in their efforts to force Apple to create software to crack the security features on its phones. He has warned about the potential for “extremely damaging implications” on human rights, journalists, whistle-blowers, political dissidents and others.

Should Apple create a key to open the terrorist’s phone, do we trust the government to only use the software this one time? Did we learn anything from the NSA scandal? Do we not remember about the NSA’s indiscriminate domestic surveillance of regular citizens? The answers to these questions will determine the future of the right to privacy. The choice to open Pandora’s Box is ours.

 

 

 

 

 

WHERE WE STAND ON FEMALE GENITAL MUTILATION

Gambia’s parliament recently approved a bill banning female genital mutilation (FGM) and setting high penalties of imprisonment and fines for offenders. The passage of the law came shortly after Gambian President Yahya Jammeh had condemned the practice for not being commanded in the Quran. According to a 2010 report, 63 percent of Gambian woman and children aged from 14 to 49 have been subject to FGM.

FGM was defined in 1997 by the WHO, UNICEF and UNFPA as the “partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.” Procedures for circumcision differ according to the ethnic group, but they include removal of the clitoral hood and clitoral glands, removal of the inner labia, and in the most severe form (known as infibulation) removal of the inner and outer labia and closure of the vulva. In this last procedure, a small opening is left for the passage of urine and menstrual fluid; the vagina is opened for intercourse and opened further for childbirth. FGM is conducted from days after birth to puberty and beyond.

FGM is prevalent in 29 African countries, Yemen, Iraqi Kurdistan, and elsewhere in Asia, the Middle East, and other scattered communities around the world. However, of the more than 125 million girls and women alive today who have undergone the procedure, one in four live in Egypt. That is more than any other country in the world. According to a government report released in May 2015, 92% percent of married Egyptian women aged 15 to 49 have been subjected to FGM. This figure is down from 97% in 2010, probably because FGM has been illegal in Egypt since 2008. However, the practice remains woven into the very fabric of Egyptian society, where many see cutting as a way to “purify” a girl and to show she is ready for marriage.

The practice of FGM has been the subject of international concern and is considered to be a global health issue. FGM has no medical benefits and can cause lifelong physical and emotional trauma for the women who have undergone the procedure. The UN has consistently campaigned for an end to FGM, labeling the practice, among other things, gender-based discrimination, torture, an affront to human dignity and an irreparable, irreversible abuse of the human rights of women and girls. However, FGM has proven to be difficult to eradicate.

Experts that have studied the issue point out that part of the difficulty in the campaigns attempting to eliminate the practice is the common misconceptions around FGM. One misconception is that it is men that force FGM on women. In fact, elderly women often do the most to perpetuate the custom. Many women undergo circumcision voluntarily, and joyfully partake in the ritual. For young girls circumcision becomes a way to prove that they are worthy of the challenge of being a woman. Female circumcision is part of demarcating insider and outsider status. By being circumcised girls become members of a group of elder women who have more power in their community. So, even though the argument is being made that FGM is about the control of women and their sexuality and sexual pleasure, data shows that across Africa, the support for the practice is stronger among women than among men. Women who support the practice justify its perpetuation by saying that FCM is women’s business. As in, it is for women to decide this. In the U.S., adult women are capable of giving consent for surgical procedures, some of which are arguably similar in nature as FGM, consider for instance, a breast reduction, a surgical procedure common in the US and other Western countries. The issue is one of free will. What would it take to get a woman in an African country to be in the same position of being able to give consent? Social pressures in the nations that practice FGM are so strong that no woman could ever opt out. Thus, women who undergo the procedure, even those who seem willing and even proud to participate, might not be doing it really because they want to, but because they feel that to be respected members of the community they have to comply with this custom.

The argument about the lack of free will of those being circumcised is even more powerful in cases where children are forced to have the procedure. In half the countries for which national figures are available, most girls are cut before the age of five. Arguing against suggested similarities between FGM and body shaping in Western countries, philosopher Martha Nussbaum has stated that a key difference is that FGM is often conducted on children using physical force.

It is important to note that FGM is not an individual behavior, such as it could be the decision to undergo a certain surgical procedure for cosmetic reasons. Deciding not to circumcise a daughter is not an individual behavior. That decision would have to be explained to the immediate family (husband, siblings, etc.), to the extended family (the in-laws), and the in-laws would have to answer to their friends throughout the community, which makes the decision particularly difficult to make given the societal pressure.

Perhaps the best strategy to eliminate FGM is to warn about the negative health consequences to the women who undergo the procedure. The dangers and lifelong health problems that women experience after the procedure are particularly serious in communities where the traditional way of circumcision does not include sterilized instruments, antibiotics, and other measures to minimize health complications. So far, it appears that these are the arguments that are most effective in persuading those who believe in tradition that there are some traditions that must be ended, and there has been some progress in the drive to end FGM.

So far, 24 of the 29 countries where FGM is concentrated have enacted legislation against FGM. In the countries were FGM is a common practice, the percentage of girls aged 15 to 17 that have had the procedure has dropped from 74.4% in 2008, to 56% in 2015. In May 2015, as one of his final acts as president, Goodluck Jonathan banned the procedure in Nigeria. Somalia recently announced that it will introduce a law that will ban FGM, as well. This is a significant step in the right direction as Somalia has one of the highest rates of female genital mutilation in the world. Egypt has announced a plan to reduce FGM by 10-15% in the next five years. If it works, it will mean that for the first time in decades, “uncut” girls would outnumber those who have had the procedure.