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U.S. Meeting with U.N. Human Rights Committee U.S. Delegation Response to Oral Questions from the Members of the Committee Tuesday, July 18 Mr. Matthew Waxman Thank you Madame Chair. My delegation will now be pleased to answer the questions posed orally by the members of this Committee at the end of our session yesterday. Then we will turn to the formal presentation of our written responses to questions 17-25, which we received from the Committee some months ago. My delegation labored hard into the night to prepare the responses to the Committee’s questions. Nevertheless, I am sure that the members of the Committee will understand that our responses to their oral questions will necessarily be briefer and less detailed than our responses to the written questions. This is important to conclude our work in the two sessions for which this delegation is available. We will respond in groups to the questions posed yesterday, in the interests of time, ease of delivery, and convenience for our interpreters – whom we would very much like to thank for their excellent assistance. The delegation member whose agency of office has the greatest responsibility for addressing the issue at hand will provide each response. I begin by addressing some of the questions concerning the war on terrorism and activities outside the territory of the United States, including detention and interrogation. Before doing so, I must reiterate the position of the USG that we consider these issues to be outside the scope of the Covenant. Rather than belabor that point now, because we have a lot to get through, I’ll let Robert Harris address this legal position briefly in a few minutes. Having said that, we know these are issues of enormous significance, and we want to use this opportunity to exchange views and share information with the Committee and with the other civil society organizations arrayed here. Mr. Kalin spoke eloquently about the threat that terrorism poses to all of us, and the need to ensure that in combating it we not compromise on our human rights principles. Those comments were well put, and we agree with him on this point. It is important to understand that the attacks of al Qaeda confronted not only the United States but the entire world with a new kind of threat – a threat that did not fit neatly into existing legal categories. This continuing threat poses difficult dilemmas for us all. At the same time, we are a nation that stands for the rule of law, and although the threat from al Qaida presents tough legal challenges, our guiding principle is that our actions be consistent with our Constitution, our laws, and our international obligations. We must not view these priorities – combating terrorism and upholding rule of law – as competing; rather, they should be seen in many ways as mutually reinforcing. That said, especially within a democracy, decisions about how to balance security and liberty are never easy; and anybody who thinks they are easy – one direction or the other – is probably not charged with the responsibility of governance With that by way of introduction, let me address a few substantive points related to detention. First, the United States is engaged in a real, not rhetorical, armed conflict with al Qaeda and its affiliates and supporters, as noted in multiple declaration by al Qaeda in the 1990’s and as reflected in al Qaeda’s heinous attack on September 11, 2001, an attack that killed more than 3000 innocent civilians. It is important to clarify the distinction we draw between the struggle in which all countries are engaged in a "global war on terrorism" and the legal meaning of our nation’s armed conflict with al Qaeda, its affiliates and supporters. On a political level, the United States believes that all countries must exercise the utmost resolve to defeat the global threat posed by transnational terrorism. On a legal level, the United States believes that it has been and continues to be engaged in an armed conflict with al Qaeda, its affiliates and supporters. The United States does not, however, consider itself to be in a state of international armed conflict with every terrorist group around the world. Even while we are engaged in an armed conflict, the Covenant continues to apply, in accordance with its terms. For example, the Covenant obviously applies to the treatment of prisoners in domestic U.S. prisons who are not governed by the law of armed conflict and to myriad other activities occurring within the United States. Our view is simply that U.S. detention operations in Guantanamo, Afghanistan, and Iraq are part of ongoing armed conflicts and, accordingly, are governed by the law of armed conflict, and this premise is crucial to understanding the actions of the United States. Regardless of the legal analysis, let me be very clear that both the law of armed conflict and human rights treaties, such as the Covenant, have provisions that prohibit torture and other mistreatment. Applying the law of armed conflict is not used to allow the United States to engage in such acts. Torture is a violation of the law of armed conflict and U.S. criminal law, wherever it occurs. Those who are found to have committed such acts are held accountable. Next, let me address a point raised by both Mr. Kalin and Sir Nigel Rodley, which is the suggestion that indefinite detention is inherently inhumane. I’ll offer several responses to that. First, we are relying on the traditional rule in warfare, which is that enemy fighters can be held until the end of the conflict. The purpose of this rule is obvious: to prevent them from returning to the battlefield. It is true in any war that captured prisoners are uncertain when they will be released, because during the course of the war it’s never clear how long it will last. Second, having said that, the United States also recognizes that this is a unique kind of war, and we also don’t want to be in the position of holding anyone longer than necessary. My colleagues will discuss this in more detail, but we have gone to great lengths to develop individualized administrative review procedures to examine each case in Guantanamo and elsewhere, and we are actively seeking to release or transfer detainees to their home countries when we can be assured of both adequate security and humane treatment upon return. Now I would like to ask Mr. Robert Harris, the Assistant Legal Adviser for Human Rights and Refugees at the Department of State, to respond to some legal interpretation questions. Mr. Robert Harris I will first answer questions about the writing of the U.S. report, U.S. government coordination on human rights matters, and the publication of the Covenant within the United States. Mr. Lallah expressed concern that our reports were more than seven years late. We sincerely regret this and are taking steps now to be on time in the future. The Interagency Working Group to which Mr. Lallah referred was originally established in December 1998. One of its tasks was to facilitate the preparation of reports to treaty bodies. A similar body remains in effect and has shepherded through the Government four extensive reports. Through this body, we expect to prepare shortly our reports to the CERD and to the Committee on the Rights of the Child on the two Child Protocols to which the United States is a party. Mr. Lallah asked what the United States has done to make the Covenant known in the United States. I am pleased to reply that the Covenant is well known in the United States. Our reports are published on the State Department and other websites. The Covenant has been cited in many judicial cases. The legislative branch is also familiar with the Covenant as a result of the ratification process, which included extensive public discussion. The Federal Judicial Center and organizations such as the American Society on International Law conduct numerous treaty programs for U.S. federal judges. Rest assured that the Covenant is included as appropriate when those programs address U.S. international treaty obligations. Mr. Lallah and Mr. Kalin also expressed concern that there should be more information about the practice of the 50 states of the United States. We agree entirely and have tried several ways to engage the States. For example, the Legal Adviser wrote to all 50 State Attorneys General, seeking their participation in writing treaty reports. Since U.S. civil rights protections are enforced through both federal and state legal processes and the application of the U.S. Constitution is applied to the states, the absence of detailed reporting does not reflect a failure to implement the Covenant at the State level. In addition, there is a limit to how much can be said and how much the Committee can review. There are 50 states in the United States. If the Committee would be interested in particular questions related to a state in the United States, it would be helpful for the Committee to inform the United States prior to preparation of the next U.S. treaty report. I am pleased to reply to a number of treaty law questions, although not exhaustively given time limits. Mr. Amor and Mr. Lallah asked why the United States had not entered any derogations under Article 4 of the Covenant. The short answer is that the United States has entered no derogations to the Covenant because US actions have not derogated from its obligations under the Covenant. Mr. Glele asked why the United States had not withdrawn its reservation to Article 6 paragraph 5concerning the juvenile death penalty. For one thing, since only a small portion of the U.S. reservation to Article 6(5) involves the juvenile death penalty, it would not be possible to withdraw the reservation in its entirety. Also, in our domestic procedures, it is not an easy process to withdraw reservations, and doing so is very unusual in US treaty practice. Again, I would note there is no practical effect to failing to withdraw the reservation, since the Supreme Court has ruled that there will be no execution of juveniles in the United States. Regarding Article 2, paragraph 1 of the Covenant, we would like to thank Mr. Kalin for sharing with us yesterday his analysis of the reach of the Covenant. We realize that this may be an issue where people of good faith simply disagree. Mr. Kalin said that the text “within its territory and subject to its jurisdiction” was ambiguous and that the word “and” could mean “and/or.” My delegation has great difficulty with this proposition. Moreover, the negotiators had before them the proposal to substitute the word “or” for the word “and,” but the substitution was rejected by the negotiators of the Covenant. As a general matter, only the parties to a treaty are empowered to give a binding interpretation of its provisions unless the treaty provides otherwise or the parties have otherwise so agreed. The Covenant does not so provide. Also, unlike some other treaties, the Covenant does not authorize the ICJ to issue legally binding interpretations of its provisions. Time today does not permit a response to the interesting arguments about the content of a single General Assembly resolution or subsequent state practice, other than to say that virtually all other resolutions take a contrary view and state practice suggests that countries have not applied the Covenant in international armed conflict outside their territories. Mr. Kalin expressed disagreement with the United States on whether Article 7 of the Covenant includes a non-refoulement obligation. As the United States explained in its answer to Question 10, we are aware of the Committee’s views on this subject and respectfully disagree with its conclusion that Article 7’s prohibition on torture and cruel, inhuman or degrading treatment or punishment contains a non-refoulement obligation with respect to both categories of mistreatment. Article 3 of the Convention Against Torture explicitly contains such a non-refoulement requirement with respect to torture alone. In fact, this was considered one of the subsequent innovations of the Convention Against Torture. Moreover the Committee’s views concerning the non-refoulement requirement purportedly contained in Article 7 go well beyond the plain language of Article 7, as well as the scope of the non-refoulement provision contained in Article 3 of the Convention Against Torture. As I said before, we do not accept as a legal matter the proposition that the obligations of a State Party would be affected or modified by non-binding general comments or individual complaints procedures when that State Party has not accepted such procedures. Finally, let me respond briefly to Mr. Kalin’s and Sir Nigel Rodley’s question about the meaning of the standard “more likely than not,” which the United States adopted for implementation of Article 3 of the Convention Against Torture. As we explained to the Committee Against Torture in May 2006, in applying this standard, United States officials determine whether it is probable that the foreign national would be tortured if returned or extradited to a particular country. It is a standard that is familiar in U.S. law and has long been applied by immigration tribunals in the United States (at least since the enactment of the Refugee Act of 1980. In fact, immigration judges apply the standard in approximately 20,000 adjudications per year under regulations implementing Article 3 of the Convention Against Torture. Now, Ms. Sandra Hodgkinson, Deputy Director of the State Department’s Office of War Crimes, will respond to questions about the treatment of detainees in U.S. custody. Ms. Sandra Hodgkinson I will now respond to a series of questions from Sir Nigel Rodley. He asked first why the detainees are being held at Guantanamo. There are several reasons. The detainees were captured on the battlefield. We wished to remove them from the field of battle to a location safe from the continuing battle, while keeping dangerous terrorists from the proximity of the American public. Guantanamo was the best choice as a military base with existing facilities. Sir Nigel also asked how the United States determines who is a “neutral officer” for the purpose of the Combatant Status Review Tribunals (CSRT’s) and Administrative Review Boards. These are officers who have taken an oath to defend the Constitution. In all cases, they are individuals who were not involved in the capture of the detainee, have no prior knowledge of the facts in the case and do not know the detainee. These individuals are similar to those who would comprise the members (or jury) in a court-martial for U.S. service members under the Uniform Code of Military Justice. In addition, Sir Nigel asked for more details about the CSRT procedures. These are one-time hearings to determine a detainee’s status as an enemy combatant. They are more expansive than hearings under Article 5 of the Geneva Conventions. Detainees have specific protections in these hearings, including the ability to request witnesses, and present information on their own behalf. As for the question regarding the “reasonable availability” of witnesses, many detainees did request witnesses in their CSRT proceedings. When the detainees were already present at Gunatanamo Bay, they were generally viewed to be reasonably available. For detainees who were not present at Guantanamo, these requests were passed to host nations. When such witnesses were located they were afforded the opportunity to provide relevant information. Witnesses did, in fact, provide information to the CSRT proceedings. As a result of these proceedings, 38 detainees were designated no longer enemy combatants, and were released or are in the process of being released. I will also respond to Sir Nigel’s question about Administrative Review Boards, or ARB’s. These are annual reviews to determine if there is a continued need to hold the detainee in question, based on their threat level or intelligence value. They are similar to CSRT’s procedurally, including the ability for detainees to present information and have witnesses. More than 100 detainees were determined eligible for transfer or release as a result of the ARB process. As for Judge Advocate General Corps (JAG) reviews, these are sufficiency reviews to ensure procedures were followed prior to sending recommendations to a Designated Civilian Official, who makes the final determination. Continuing with Sir Nigel’s questions, I will address the procedures in Afghanistan and Iraq. During major hostilities in Iraq, U.S. officials conducted tribunals under Article 5 of the Third Geneva Convention. Currently in both Iraq and Afghanistan, similar procedures have been established to ensure robust and periodic reviews of the basis for detention and the potential for release. In both Iraq and Afghanistan, many detainees have been released. Sir Nigel asked about the availability of habeas corpus to Guantanamo detainees in light of the Detainee Treatment Act. The Supreme Court, in its ruling on Hamdan v. Rumsfeld, determined that the Detainee Treatment Act did not affect habeas jurisdiction over certain cases pending on the day the Act took effect. In fact, the Detainee Treatment Act provides judicial review by our nation’s domestic courts over the detention of enemy combatants, which is a protection completely unprecedented in the history of war. Referring to allegations of abuse at detention facilities, Sir Nigel asked why there was no “command responsibility.” The United States cannot say that its government officials or our military are beyond reproach; no humans are beyond reproach. What sets the U.S. apart from other countries is how we deal with transgressions. We do so in three ways. First, we vigorously and transparently investigate credible allegations, consistent with the rule of law. Second, we apply strict accountability for abuses that occur. Let me note with respect to allegations of abuse at DOD, the following: a commanding general and a Lieutenant Colonel were relieved of their commands following Abu Ghraib. In detention operations worldwide, more than 250 military personnel have been held accountable for abuses, at various levels. There have been more than 100 courts martial with an 86% conviction rate. Six hundred investigations have been carried out and accountability is ongoing. The third and final means of dealing with transgressions is taking remedial steps to ensure that such abuses don’t recur. The United States has conducted 12 major reviews, made nearly 500 findings and recommendations pursuant to these reviews. The Defense Department has implemented numerous reforms aimed at improving detention operations and reducing the likelihood of abuse, including improving training and implementing changes in leadership oversight. In response to Sir Nigel’s question on John Bellinger’s statement to the Committee Against Torture, regarding the Army Field Manual on Intelligence Interrogations and its application, let me make the following points. Under the Detainee Treatment Act, the military is restricted by law only to those techniques listed in this Field Manual, or its successor. All of the techniques in the current Army Field Manual are consistent with Common Article 3 of the Geneva Conventions, the law of war, and applicable U.S. law, including the Detainee Treatment Act’s statutory prohibition on cruel and inhuman or degrading treatment. Sir Nigel asked whether the McCain Amendment in the Detainee Treatment Act applies to any person held by the United States. The answer is, yes, it does. Under current U.S. law, no one may engage in cruel, inhuman, or degrading treatment or punishment -- as defined under U.S. obligations under the Convention Against Torture -- against anyone, anywhere. In addition, 18 USC Section 2340 prohibits the torture of any person anywhere. With respect to the questions on rendition and diplomatic assurances, I would like to emphasize again what Mr. Waxman stated yesterday. The U.S. does not transfer detainees to countries where it is “more likely than not” that they will be tortured. Likewise, the U.S. does not transport any individual to a third country to be tortured. Consistent with U.S. law and policy and our presentation to the Committee Against Torture, we will not discuss specific intelligence activities. Nevertheless, the U.S. and other countries have used renditions for decades to transport individuals from one country to another for law enforcement purposes. Renditions are a vital tool in combating terrorism. In the context of transfers from Guantanamo Bay and diplomatic assurances, the U.S. does negotiate, where appropriate, diplomatic assurances to ensure that individuals will not be tortured upon return to their countries and to ensure they do not pose a significant threat to the United States or its allies. Diplomatic assurances are not a substitute for a thorough review of whether it is “more likely than not” that a person will be tortured; rather, they are just one component of many considered when analyzing each situation. Sir Nigel also asked what the United States plans to do after the Supreme Court’s Hamdan ruling, regarding military commissions, and whether any new commissions will meet ICCPR standards. In response, I can say that the executive and legislative branches are working together now to determine how best to implement the Supreme Court’s decision. Nevertheless, we note that the Covenant is not applicable to military commissions, as the law that applies during time of armed conflict is the law of armed conflicts. Now, Mr. Kim will respond to a series of questions about U.S. domestic laws and programs to protect vulnerable groups and protect basic freedoms in the United States. Mr. Wan Kim Thank you. I would like to begin with Ms. Palm’s questions about women’s rights in the United States. First, she asked about the treatment of women in U.S. prisons. The U.S. Government has several laws in place to safeguard the constitutional rights of all inmates, including women. The Civil Rights Division at the Department of Justice investigates and, where appropriate, prosecutes prison officials for violations of inmates’ and detainees’ constitutional rights. Between 2001 and 2005, the United States charged a total of 334 defendants in official misconduct cases, which includes police and prison officials. The Department of Justice also actively investigates conditions in state local prisons and juvenile detention facilities. Overall, since 2001, the Department of Justice has concluded formal investigations of 42 jails, prisons, and juvenile facilities to ensure constitutional rights are protected. The Department is currently monitoring agreements involving 97 jails, prisons and juvenile facilities and will remain vigilant in protecting the rights of women in custody. Ms. Palm also asked about the availability of reproductive health services, including abortions, for women in prisons. Bureau of Prisons regulations provide that the inmate has the responsibility to decide either to have an abortion or to bear the child. The wardens provide each pregnant inmate with medical, religious, and social counseling to aid her in making the decision whether to carry the pregnancy to full term or to have an elective abortion. If an inmate chooses to have an abortion, she shall sign a statement to that effect and the abortion shall take place. For contraception, pre-natal and neo-natal care, Bureau of Prisons medical staff provide an inmate with advice and consultation, medical care, case management, and counseling services. Ms. Palm further asked what U.S. agencies are responsible for monitoring and guarding against sex discrimination. A wide range of laws prevent discrimination based on sex, including gender based wage discrimination. Thus, virtually every federal government agency is responsible in some fashion for protecting the equal rights and opportunities of women. The primary agency responsible for enforcing federal anti-discrimination statues that specifically address sex discrimination is the Equal Employment Opportunity Commission (EEOC). The EEOC is responsible for enforcing Title VII, which prohibits employment discrimination based on sex, among other factors. Under the statute, it is illegal for employers to pay different wages based on the sex of the employee. In addition, the EEOC enforces the Equal Pay Act, which requires that men and women be given equal pay for equal work. We also note that the Department of Justice and the Department of Education enforce Title IX of the Civil Rights Act, which prohibits discrimination on the basis of sex by recipients of federal funds. Moreover, since 1995, the U.S. Department of Justice’s Office on Violence Against Women (OVW) alone has awarded more than $2.4 billion in grants authorized by Violence Against Women Act and related legislation to protect women. In a follow-up question, Ms. Palm asked whether U.S. agencies were taking action to eliminate the gender wage gap. The EEOC, for example, is vigilant in guarding against discrimination based on gender in the workplace, which includes aggressively prosecuting allegations of wage discrimination. In addition, the Department of Labor’s Women’s Bureau, has as its mission to promote the well being of wage-earning women, improve their working conditions, increase their efficiency, and advance their opportunities for profitable employment. The Women’s Bureau routinely conducts studies concerning the impact of Federal employment laws on working women and has provided grants that promote the participation of women in nontraditional occupations. Mr. Amor asked about acts of discrimination against Arabs and Muslims after the attacks against the United States on September 11, 2001. Just weeks after the September 11th terrorist attacks, then-Attorney General Ashcroft appeared publicly to condemn a rise in hate crimes against people of perceived Middle-Eastern descent. He said, "Such senseless acts of brutality violate federal law, and they run counter to the very principles of equality and freedom upon which our nation is founded. They are un-American.... Let there be no mistake: the Department of Justice will not tolerate acts of violence or discrimination against people in this country based on their national origin, religion, or race." To put action to these words, the Attorney General commissioned a task force to investigate and prosecute these cases. That task force was run out of the Civil Rights Division of the Department of Justice and ultimately investigated more than 700 allegations of such bias motivated crimes. These resulted in state and federal prosecutors initiating well over 100 prosecutions. Meanwhile, the Civil Rights Division of the Department of Justice has worked proactively to combat violations of civil rights laws against Arab, Muslim, Sikh, and South-Asian Americans, and those perceived to be members of these groups, through creation of the Initiative to Combat Post-9/11 Discriminatory Backlash. We also note that law enforcement activity in the United States is limited by the Constitution, by statutory law, and by regulation and internal procedures. Under the U.S. Constitution, persons who are selected for prosecution due to some impermissible factor such as race, religion or national origin are entitled to have criminal charges dismissed, irrespective of their guilt or innocence. United States law also provides for other court remedies, including damages for persons whose constitutional or statutory rights have been violated. Mr. Lallah asked why material witness detention can be used before charges are filed in a case. He asked what would occur if the person detained refused to give a statement, and whether he or she could still be held. Article 9 of the Covenant provides that, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” The statutory criteria for the arrest and detention of a material witness are that there is probable cause that the witness has testimony material to a criminal proceeding, and that there is probable cause that it is impracticable to secure the presence of the witness by subpoena. There are significant protections against abuse of material witness warrants. All persons arrested under a material witness warrant have the right to counsel and such people have the ability to challenge, before an independent judicial officer, the reason for their detention. These standards and practices fully satisfy the requirements of Article 9. Nor does the use of the material witness warrant procedure violate any other constitutional right. An individual undergoing proceedings pursuant to a material witness warrant may invoke any applicable constitutional right, including the right to be free from self-incrimination as protected by the 5th Amendment to the Constitution, and those rights will be respected. Mr. Lallah asked how individuals could learn whether they had been subject to surveillance, or whether, for example, a “sneak and peek” search has been performed on them. Every government has a right to enforce its system of criminal laws. Criminal investigations inevitably involve the gathering of evidence in a manner that is consistent with due process. In some instances, it is effective to gather evidence of an ongoing crime, and it would not be practicable to alert the criminal that this evidence is being gathered. Nevertheless, I would like to assure the members of this Committee that there are numerous safeguards in place to ensure that delayed-notice search warrants are appropriately used. As with all criminal search warrants, a delayed-notice search warrant is issued by a federal judge only upon a showing that there is probable cause to believe that the property sought or seized constitutes evidence of a criminal offense. A federal judge must further determine that a delay in notice is justified, and the federal judge determines the length of delay in notice. Section 114 of the recently enacted USA PATRIOT Improvement and Reauthorization Act provides that notice must presumptively be given within thirty days after the warrant is executed, with extensions presumptively limited to periods of 90 days or less. Mr. Glele asked whether the United States should establish legal protections to guard against racial profiling. The answer is that such protections already exist. The Fourteenth Amendment of the United States Constitution prohibits law enforcement actions motivated solely by race or national origin. The Bush Administration is the first in history to issue guidelines that go beyond these legal protections and prohibit the use of racial profiling in federal law enforcement. In addition, under two other provisions of federal law, the Department of Justice may conduct investigations of law enforcement agencies regarding allegations of a pattern or practice of constitutional violations, including allegations of racial profiling. If such a violation is deemed to exist, the DOJ works with the law enforcement agency to revise policies, procedures, and training to ensure constitutional policing. Mr. O’Flaherty asked about the existence of de facto segregation in U.S. public schools. I would like to provide some context in my response to this question, starting with the fact that $536 billion are spent annually to educate students in the U.S. public schools. The underlying problem that Mr. O’Flaherty was seeking to address, we believe, is substandard education. In fact, poor and minority students in the past were most often left behind by our education system, whether in predominantly minority enrolled schools or not. Increasing accountability for minority student groups at all levels ― in the school, the school district, and the State― is at the core of President Bush’s No Child Left Behind education reforms. That is why the No Child Left Behind Act insists that these students be tested annually, that their scores be publicly reported, and that schools, districts, and States be held accountable for their academic performance. Next I will turn to a series of questions from Mr. Kalin about Native American issues, which referred to a number of specific cases, all of which had the underlying theme of the extinguishment of property rights. At the time the United States was founded, Indian tribes held their land in “aboriginal title,” which is a right of use and occupancy. Since then, Congress and the Executive Branch have acted to recognize tribal property rights through treaties, statutes, executive orders, or as fee simple ownership. Today, federally recognized tribes hold virtually all their land in this manner. Once Congress has acted to recognize these property rights, an impairment of such rights is compensable under the Fifth Amendment of the Constitution. It should be noted that, despite the fact that the occupancy right provided for under aboriginal title is not compensable, compensation has in fact been paid by the United States for many Indian land cessions at the time they were made. The Tee Hit Ton case reflects a situation in which the tribe possessed only an occupancy right to certain lands and did not have ownership interests in the lands. The United States was therefore not required to provide compensation after removing timber from the land. With regard to Western Shoshone land claims, in 1946, Congress provided for a quasi-judicial body, the Indian Claims Commission (ICC), to adjudicate unresolved Indian claims against the United States. The ICC provided a forum for suits against the United States Government that would otherwise have been barred by time and doctrines of sovereign immunity, and in some respects provided Indians with special access that would not ordinarily have been available under regular court rules and procedures. Recovery of compensation did not depend on proof of recognized title; compensation was available even if a tribe's property interest was aboriginal only. Further, financial compensation was available if a tribe's interest in land was found to have been taken for less than adequate compensation by the government or through encroachment by others. Judgments of the Commission, which are restricted to financial compensation and do not include land restoration, are enforceable as law and appealable to higher courts. In the case of the Western Shoshone, the tribe appealed their 1977 ICC judgment (which is now valued at more than $144 million) to a court of appeals and then to the Supreme Court. The ICC is similar to processes under United States law that allow parties to go to court to claim deprivation of land by the government, where judgments or awards on such claims of “takings” are compensable only by money, not land. In the Yankton Sioux case, the United States Government and the Yankton Sioux Tribe were together defending the boundaries of the tribe’s reservation against the local state government of South Dakota. In this case, the court held that, while the reservation may have been diminished to the degree that certain lands passed out of tribal control under the allotment processes in the mid-1800s, the reservation had not been extinguished. Mr. Kalin referred to the Individual Indian Money accounts (IIM accounts), which contain money held in trust by the Department of the Interior for individual Indians – not tribal governments. The money is derived from the use or extraction of natural resources on individual Indian land. These accounts are the subject of litigation in which the plaintiffs allege a breach of trust and demand an accounting of the monies. This accounting has begun and will encompass billions of dollars of transactions, hundreds of thousands accounts, tens of millions of transactions, and a quarter of a billion of pages of account records. The preliminary results of the independent accounting are as follows: (1) No evidence of widespread fraud or systematic error, (2) difference rates are small, and include both overpayment and underpayment, and (3) errors are random and non-systemic. Preliminary findings show that the claims of systemic error, fraud and bias are unfounded and demands for billions of dollars are exponentially larger than the facts will substantiate. The United States Government seeks a fair and non-discriminatory resolution for the account holders. Mr. O’Flaherty asked about the indigenous peoples of Hawaii. The proposed Native Hawaiian Government Reorganization Act of 2006 was recently defeated in the Senate. The Administration opposed the bill because, as written, it would have divided the American people by race. As, the U.S. Civil Rights Commission stated, the bill risked "further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege." In addition, the Supreme Court and lower federal courts have invalidated state legislation containing similar race-based qualifications for participation in government entities and programs. Finally, the bill would have granted federal tribal recognition to native Hawaiians even though the Supreme Court has stated that whether native Hawaiians are eligible for tribal status is a "matter of dispute" and "considerable moment and difficulty." Mr. O’Flaherty also asked why some indigenous groups are not recognized as such in the United States, and specifically, why native Hawaiians are not afforded the same rights as other indigenous peoples. In order for an indigenous group to be federally recognized as a tribe, it must demonstrate its continuous existence as a political community, having retained its inherent sovereignty. Such federal recognition of an Indian group's legal status does not just confirm the tribe's existence as a distinct political unit, it also institutionalizes the government-to-government relationship between the tribe and the federal government. An administrative process exists through the Department of the Interior's Office of Federal Acknowledgement that allows tribes not yet recognized by the federal government to gain such recognition. While Native Hawaiians are indigenous to Hawaii, there are substantial historical, structural, and cultural differences between Native Hawaiians as a group and federally recognized Indian tribes. The most significant difference is that Congress has yet to indicate that it seeks to establish a government-to-government relationship with a Native Hawaiian group or groups. Mr. O’Flaherty asked about the problem of assaults based on a victim’s sexual orientation or physical status. I would note that the Covenant nowhere mentions “sexual orientation.” That notwithstanding, the United States acknowledges the concerns mentioned by Mr. Flaherty and it notes that the United States takes all crimes of violence – against all victims – very seriously. Violent assaults are a crime in every jurisdiction in the United States. The laws afford protection to every victim of a violent crime, regardless of what they look like or what they believe. As demonstrated by the successful prosecution of those in Wyoming who killed Matthew Shepherd because of his sexual orientation, such offenders are and will be held strictly accountable under our system of state and federal laws. We also note that forty-six states and the District of Columbia have criminal laws that specifically prohibit hate crimes Mr. O’Flaherty also asked about discrimination in employment based on sexual orientation. Again, I would note that the Covenant nowhere mentions “sexual orientation.” We note, however, that more than a dozen states in the United States and 100 cities in the United States offer employment protections to individuals based on sexual orientation. Now Mr. Timofeyev will respond to questions about Hurricane Katrina and migration. Mr. Igor Timofeyev Mr. O’Flaherty asked whether the United States has considered applying or making use of the U.N. Guiding Principles on Internal Displacement. The United States strongly supports these voluntary principles and recognizes that they provide a useful framework in addressing the numerous challenges posed by internal displacement. Indeed, they articulate multiple important protections that also find expression in the Covenant, which is of course a legally binding treaty. As the United States made clear in its reply to Question 16, the United States’ response to the displacement resulting from Hurricane Katrina has been informed by its obligations under the Covenant and under U.S. laws, including providing relief assistance to all disaster victims as soon as possible without discrimination. At the same time, the United States continues to examine its response to Hurricane Katrina and is aggressively moving forward with implementing lessons learned from Hurricane Katrina. We would note, however, that despite the extensive displacement resulting from Hurricane Katrina, in many ways we do not consider it to be similar to the challenges, such as violent conflicts and gross violations of human rights, that the Guiding Principles on Internal Displacement were designed to address. In this regard we will separately provide to you a response from the United States to an inquiry from Mr. Walter Kalin, the Special Representative on the Human Rights of Internally Displaced Persons. We respectfully disagree with Mr. O’Flaherty’s suggestion that federal evacuation plans would have been obviously discriminatory in a pre-event examination. Mr. O’Flaherty asked what steps the United States has undertaken in the aftermath of Hurricane Katrina to review the transportation aspects of its evacuation plans. As we expressed in our opening statement, under the U.S. constitutional framework, perhaps as opposed to many other countries’ systems of government, it is state and local governments who have the authority to order the evacuation of their citizens, and thus who bear primary responsibility for evacuation planning and for providing evacuation assistance to citizens. In particular, federal planners have been working with state and local officials to improve evacuation plans, and better provide transportation and shelter to those persons who need assistance. This comprehensive review of catastrophic and evacuation planning in all 50 states and 75 of the largest urban areas is forward-looking and seeks to identify those areas in which improvement or change is required. In the Gulf Coast in particular, for this hurricane season, the Department of Homeland Security and the Department of Health and Human Services are spearheading interagency efforts to address evacuation and sheltering for special needs populations. With respect to Mr. O’Flaherty’s question about the government’s response to Katrina, it was strong. The United States quickly responded to the financial need of Hurricane Katrina’s victims. Less than 3 weeks after the hurricane, the Federal Government approved $61 billion in emergency funding to support disaster relief efforts. More than 16,000 federal personnel assisted state and local officials with the recovery. Katrina victims have received over $6 billion in direct financial and housing aid as part of the Department of Homeland Security’s Individual and Households Assistance Program. Assistance under these programs, rather than reparations is the appropriate response. Dr. Solari Yrigoyen asked whether the United States plans to expel the millions of illegal migrants in the United States. President Bush has resolutely rejected such an approach. In fact, the President said that he is looking forward to working with Congress on a rational plan as to how best to ensure that aliens without lawful immigration status who have been in the U.S. for some time are treated with respect and dignity. In response to the President’s strategy to reform our immigration system, the U.S. Congress and civil society have engaged in an active discussion about the best way to reform the U.S. immigration system and the appropriate form that system should eventually take. Dr. Solari Yrigoyen also inquired about the use of the National Guard at the border. National Guard personnel assigned to the border states will assist the Border Patrol by providing logistical and administrative support by operating surveillance systems, providing mobile communications, augmenting border-related intelligence analysis efforts, and constructing and installing border security infrastructure. National Guard troops will not have direct contact with detainees. Nor will the National Guard units engage in direct law enforcement duties of apprehension or detention of aliens. As part of their deployment, National Guard troops are provided preparatory training in areas including rules for use of force, cultural awareness, and specific training to perform their border security duties. Now I return to the floor to Mr. Waxman. Mr. Waxman Ladies and gentlemen of the Committee, this concludes our responses to your oral questions of yesterday. At this time, I would like to proceed with our oral summary of our written responses to questions 17-25. |