PREVENTION AND CONFLICT

Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations

Under the Radar traces the discriminatory deployment of immigration and law enforcement practices against Muslim communities in the United States through the lens of national security and counterterrorism policy, situating it in the broader framework of international human rights law and evaluating five under-documented patterns of government conduct that exploit lower evidentiary standards and due process gaps within the immigration system. This Briefing Paper argues that the targeting of Muslim immigrants on the basis of religious and ethnic stereotypes rather than evidence of wrongdoing carries profound human rights significance through the compounding dynamics of unsubstantiated allegations, coercive detention, overbroad statutory application, and institutional opacity, generating systematic violations of due process, liberty, religious freedom, and privacy that demand an immediate end to discriminatory practices and meaningful government accountability.

Through the targeted use of a wide set of immigration and law enforcement policies and actions, the U.S. government has cast Muslims as dangerous threats to national security, leaving Muslim communities across the United States vulnerable to discrimination and discriminatory profiling. This Briefing Paper by the Center for Human Rights and Global Justice and the Asian American Legal Defense and Education Fund (AALDEF) documents the U.S. government’s deployment of lower evidentiary standards and lack of due process guarantees in the immigration system against Muslims to further marginalize this targeted group in the name of national security and counterterrorism.

A number of particular immigration programs and practices—such as the National Security Entry-Exit Registration System (NSEERS), the Federal Bureau of Investigation (FBI) name-check system in the naturalization process, and racial profiling at U.S. borders have received critical attention for their discriminatory impacts on Muslim communities. This Briefing Paper draws on interviews with immigration and criminal defense attorneys and community-based groups, court documents, and media accounts to identify five key under-documented patterns of government practices that appear to be targeting Muslim communities through the immigration system:

1. The U.S. government’s use of unsubstantiated terrorism-related allegations without bringing official charges in cases involving ordinary immigration violations. This practice has the effect of prejudicing the immigration judge or placing the Muslim immigrant in a precarious situation where he is unable to defend himself against the allegations. As a result, he is often pressured to self- deport.
2. The U.S. government’s practice of subjecting Muslim immigrants to detention ostensibly for posing national security threats in cases involving minor violations that ordinarily do not warrant detention. Detention and threat of immigration detention are also used to coerce Muslims to drop challenges to immigration charges or accept plea deals in criminal cases.
3. The U.S. government’s use of flimsy immigration charges. For example, the government often uses false statement charges for failure to disclose tenuous ties to Muslim charitable organizations in such a way that seems to target Muslim immigrants for religious and political activities and affiliations.
4. The U.S. government’s unfair application of overbroad statutory language of the terrorism bar provisions of the Immigration and Nationality Act (INA) to remove, bar, and detain Muslims.
5. The undue influence of the FBI on U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) activities. The FBI is known to exploit the vulnerability of Muslim non-citizens as a way to facilitate its preventative counterterrorism policing objectives in prejudicial ways.

Although the Department of Homeland Security’s April 27, 2011 announced  the indefinite suspension of the NSEERS program, this  documentation suggests the government continued to use subtler—though no less abusive—practices of detention, deportation, and denial of immigration benefits.

PREVENTION AND CONFLICT

Struggling to Survive: Sexual Exploitation of Displaced Women and Girls in Port au Prince, Haiti

Struggling to Survive traces the widespread practice of sexual exploitation and survival sex among women and girls in post-earthquake Haiti’s displacement camps through a joint fact-finding investigation, situating it in the broader framework of international human rights obligations and evaluating the structural breakdown of family, community, and economic safety nets that has driven this new survival strategy amid persistent impunity for gender-based violence. This report argues that the prevalence of sexual exploitation carries profound human rights significance through the compounding dynamics of heightened vulnerability, inadequate humanitarian response, and entrenched institutional neglect, generating a need for holistic recommendations spanning immediate humanitarian relief, long-term economic and social support, integrated service coordination, and accountability measures to end impunity for perpetrators while ensuring that survivors are never themselves punished.

Between 2010 and 2012, numerous reports have examined gender-based violence (GBV) in post-earthquake Haiti. These reports have focused on rape and other sexual violence perpetrated against women and girls living in internally displaced persons (IDP) camps in Port au Prince. In December 2010, recognizing that sexual violence against displaced women and girls is a serious problem in Haiti, the Inter-American Commission on Human Rights (IACHR), issued a groundbreaking decision requesting that the Government of Haiti take urgent measures to address sexual violence. These measures included increased security patrols in the camps, improved lighting, adequate medical care, legal accountability, as well as participation of grassroots women’s groups in developing anti-violence policies and practices. United Nations (UN) Special Rapporteurs and the Independent Expert on Haiti have also drawn attention to the grave issues of violence against women and impunity for such acts in Haiti.

The Haitian Ministry for Women’s Affairs and Women’s Rights (Women’s Ministry) is in the process of finalizing draft legislation addressing violence against women. Notwithstanding this heightened awareness and attention, violence against women and girls continues unabated. A social science researcher has recently found a staggering twenty-two percent of displaced persons and two percent of general community members have been victims of sexual assault. The Haitian grassroots women’s organization KOFAVIV, through its network of community outreach workers and free sexual violence hotline, documented 269 incidents of rape in and around Port au Prince from March to October 2011 alone. Around 520,000 Haitians still live in IDP camps in conditions without access to adequate food, health services, security or economic opportunity, placing them at risk for increased violence. As the international presence diminishes, the situation in displacement camps continues to become more precarious.

Post-earthquake conditions have made young women and girls particularly vulnerable to sexual exploitation. Through its work combating rape and other sexual violence, KOFAVIV has identified sexual exploitation as a priority issue. “Sexual Exploitation” is defined in this Report as the abuse of differential power for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another, thus abrogating the victim’s human right to dignity, equality, autonomy, and physical and mental well-being. “Survival sex” is defined here as the exchange of sex in circumstances where those exchanging sex for survival lack other options.

KOFAVIV requested the assistance of MADRE, the International Women’s Human Rights Clinic of CUNY School of Law, the Global Justice Clinic at NYU Law, and the UC Hastings Center for Gender & Refugee Studies, to investigate the problem of sexual exploitation, identify its causes and consequences, conduct a legal and critical analysis, and provide concrete recommendations to the Haitian government and other actors to develop more effective responses in line with international obligations.

While there are no reliable statistics on the prevalence of survival sex in IDP camps, or post- earthquake Haiti more generally, sexual exploitation has been identified as an issue in nearly every humanitarian or human rights report on women’s rights since the earthquake. The United Nations High Commissioner for Refugees (UNHCR) conducted a study into the issue, finding that women in focus groups commonly reported exchanging sexual acts in return for food and other survival needs, including aid distribution coupons, access to direct aid distributions, cash for work programs, money, or even a single meal. On top of the hardships suffered by all IDP camp residents, Human Rights Watch (HRW) found that women and girls are additionally harmed by sexual violence, the need to engage in survival sex, and a lack of access to family planning, prenatal and obstetric care. Women and girls who engage in survival sex are especially at risk of unintended pregnancy, sexually transmitted diseases and other related health problems. They are often isolated from their social networks and communities, increasing the risk of violence and despair. 

A study by the Humanitarian Accountability Partnership (HAP) mirrored these findings, confirming that single mothers are the most vulnerable population to sexual exploitation, and therefore more likely to engage in survival sex. Additionally, preliminary survey results from a study conducted by the Center for Human Rights and Global Justice suggest that camp residents believe that trading sex for basic needs has become a more common survival strategy for women and girls in the camps since the earthquake. Thus, for many women, survival sex appears to be a new coping mechanism that is driven by the breakdown of family and community structures, the loss of associated protection and safety nets, and poor economic opportunity.

In November and December 2011, teams of researchers from MADRE, the International Women’s Human Rights Clinic at CUNY School of Law, Global Justice Clinic at NYU Law and the UC Hastings Center for Gender & Refugee Studies conducted a fact-finding investigation in Haiti in an effort to respond to KOFAVIV’s request for a critical analysis of the current response to sexual exploitation in Haiti and to build on existing research into the issue, such as that of the UNHCR and HRW. 

The investigation focused on elucidating the factors that make women and girls particularly vulnerable to exploitation, examining the effects of this exploitation, and evaluating the programs developed by the Haitian government and the international community to respond to it. During the fact-finding investigation, team members interviewed numerous young women who exchanged sex for food, education or other necessities for themselves and their families, as well as numerous residents of camps knowledgeable about the practice. The team also interviewed a wide range of governmental and non-governmental representatives as well as service providers and outreach workers from grassroots organizations working in displacement camps. The study suggests that sexual exploitation is widespread. In addition, the study found that little is being done to address the issue, due in large part to a lack of understanding and a history of impunity for violence against women in Haiti. 

The findings of this Report are consistent with numerous other reports examining sexual exploitation and exchange in post-earthquake Haiti. Sexual exploitation is not unfamiliar in a country that has faced overlapping emergencies for decades. Yet the evidence suggests that sexual exploitation increases dramatically when levels of vulnerability are heightened and access to food and basic services needed for survival are limited.

The findings of this report suggest that much remains to be done in the way of effectively preventing, combating and responding to sexual exploitation, and other forms of violence against women in post-earthquake Haiti. 

As such, the report concludes by offering a series of recommendations designed to holistically address this issue. These recommendations cover four areas of concern: 

1. meeting immediate needs of those people most vulnerable to sexual exploitation, including ensuring that poor and displaced Haitians are provided with basic necessities of life such as food, comprehensive medical and health care and temporary shelter; and improving security measures and police response to sexual exploitation and other forms of gender-based violence; 
2. meeting long-term needs, including the provision of free education, income generating opportunities, housing and adequate health care; and the implementation of effective measures to promote and protect the right to be free from sexual violence;
3. integrating services, including training medical staff, police, outreach workers and other first responders on how to identify and respond to youth vulnerable to sexual exploitation; coordinating with civil society, and encouraging the full participation and leadership of women and systematizing data collection documenting the prevalence of all forms of violence against women in displacement camps; 
4. and ending impunity and ensuring accountability, including working to finalize, pass and implement the Draft Law on Violence Against Women; ensuring that reported cases of rape, and abuses of power by public sector and other humanitarian workers are held responsible, and, conversely, that women and girls engaging in survival sex are not punished.

PREVENTION AND CONFLICT

Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street

Suppressing Protest traces the response of U.S. authorities, particularly in New York City, to the Occupy Wall Street protests through the lens of assembly and expression rights, situating it in the broader framework of international human rights law and evaluating the systematic policing abuses—including excessive force, surveillance, unlawful arrests, and obstruction of press freedom—that have undermined protesters’ fundamental freedoms. This report argues that the abusive and unlawful protest regulation documented across U.S. cities carries profound human rights significance through the compounding dynamics of institutional impunity, disproportionate policing in minority communities, and the chilling of collective democratic participation, generating an urgent need for independent review, accountability, and reform to bring U.S. authorities’ practices into line with their binding international legal obligations.

In September 2011, waves of protests against mounting socioeconomic injustice broke out across the United States, capturing the attention of the country. The Occupy Wall Street movement, inspired by similar protests around the globe, used the occupation of public space and mass demonstrations to call attention to a wide array of shared concerns. The movement also used public assemblies to debate concerns and promote direct democratic participation. Within weeks of their emergence, the protests dramatically expanded and deepened U.S. political discourse around the widening gap between rich and poor, bank bailouts and impunity for financial crimes, and the role of money in politics.

The response of U.S. authorities to the protests also received significant attention. Images of police using pepper spray on seated students, the arrests of thousands of peaceful protesters across the country, midnight raids on encampments, baton-swinging officers, marches accompanied by phalanxes of riot police, and officers obstructing and arresting journalists were beamed around the world.

Through an eight-month-long study of the response in New York City, together with comparative data collected from cities across the U.S., this report highlights major policy concerns and serious violations of the rights of protesters. 

Additionally, the  report followed  a review of thousands of news reports and hundreds of hours of video, extensive firsthand observation, and detailed witness interviews. In New York City, some of the worst practices documented include:

• Aggressive, unnecessary and excessive police force against peaceful protesters, bystanders, legal observers, and journalists
• Obstruction of press freedoms and independent legal monitoring
• Pervasive surveillance of peaceful political activity
• Violent late-night raids on peaceful encampments
• Unjustified closure of public space, dispersal of peaceful assemblies, and kettling (corralling and trapping) of protesters
• Arbitrary and selective rule enforcement and baseless arrests
• Failures to ensure transparency about applicable government policies
• Failures to ensure accountability for those allegedly responsible for abuses

These practices violate assembly and expression rights and breach the U.S. government’s international legal obligations to respect those rights. In New York City, protest policing concerns were  extensive and existed against a backdrop of disproportionate and well-documented abusive policing practices in poor and minority communities outside of the protest context.

PREVENTION AND CONFLICT

A Decade Lost: Locating Gender in U.S. Counter-Terrorism

This report traces the gendered dimensions and impacts of United States counter-terrorism policies across a decade of the War on Terror through the lens of women’s and sexual minorities’ rights, situating it in the broader framework of international human rights law and evaluating the systemic invisibility of gender-based violations within domestic and foreign counter-terrorism measures. This report argues that the failure to account for the differential impacts of counter-terrorism on women, men, and LGBTI individuals carries profound human rights significance through the compounding dynamics of institutional blindness, gendered stereotyping, and the squeezing of vulnerable populations between terrorist violence and state overreach, generating an urgent roadmap for integrating gender and human rights perspectives across all dimensions of counter-terrorism strategy.

A Decade Lost: Locating Gender in U.S. Counter-Terrorism provides the first global study of how the U.S. government’s (USG) counter-terrorism efforts profoundly implicate and impact women and sexual minorities. Over the last decade of the United States’ “War on Terror,” the oft-unspoken assumption that men suffer the most—both numerically and in terms of the nature of rights violations endured—has obscured the way women and sexual minorities experience counter-terrorism, rendering their rights violations invisible to policymakers and the human rights community alike. This failure to consider either the differential impacts of counter-terrorism on women, men, and sexual minorities or the ways in which such measures use and affect gender stereotypes and relations cannot continue. As the USG leads a world-wide trend toward a more holistic approach to countering terrorism that mobilizes the 3Ds—defense, diplomacy, and development—and increasingly emphasizes the role of women in national security, the extent to which counter-terrorism efforts include and impact women and sexual minorities is set to rise. As the ten-year anniversary of the attacks of September 11, 2001 approaches, now is the time for the USG and governments the world-over to take stock of, redress, and deter the gender-based violations that occur in a world characterized by the proliferation of terrorism and counter-terrorism and the squeezing of women and sexual minorities between the two.
This report provides a roadmap for this effort. It represents the culmination of over three years of primary and secondary research into the gender dimensions and impacts of the USG’s counter-terrorism policies domestically and abroad, drawing on scores of interviews with USG and foreign government, non-government, academic, and inter-government entities; regional Stakeholder Workshops in the United States, Africa, Asia, and the Middle East and North Africa (MENA); and extensive secondary research (see further Methodology below). Where appropriate, the Report also draws on comparisons with the United Nations’ (U.N.) and foreign governments’ (including the United Kingdom’s) counter-terrorism strategies and their gender and human rights aspects and outcomes. While the Report’s findings and recommendations are primarily directed to the USG, the patterns documented and lessons learned will nonetheless resonate with, and be relevant to, those foreign governments and inter-governmental institutions which often emulate or participate in the USG’s approaches to countering terrorism.

Section 1

Section 1 outlines what it means to take a gender approach to counter-terrorism and terrorism, scrutinizing the USG’s current emphasis on women in national security, and presenting ten overarching recommendations to ensure that women and lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals are the beneficiaries rather than casualties of the USG’s counter-terrorism measures. This overview does not squarely address the USG’s claim that promoting gender equality counters terrorism—a question that is beyond the scope of this Report—but does demonstrate the failure to take account of gender cuts against both counter-terrorism and equality goals.

While A Decade Lost takes up this and other questions in respect of two of the most invisible stakeholders in national security—women and sexual minorities—it (1) devotes significantly more attention to the former, in large part because of the dearth of information on the latter; (2) locates the focus on gender in the broader context of the USG’s focus on Muslim communities; and (3) examines how the gender features and impacts of the USG’s counter-terrorism efforts relate to gendered patterns in failures to protect women and LGBTI communities against terrorist violence.

Section 2

Section 2 analyzes the USG’s development activities to counter the conditions that lead to violent extremism.

Section 3

Section 3 analyzes the USG’s militarized counter-terrorism efforts.

Section 4

Section 4 analyzes the USG’s anti-terrorism financing measures.

Section 5

Section 5 analyzes the USG’s tactical counter-terrorism efforts in terms of intelligence and law enforcement measures and cooperation.

Section 6

Section 6 analyzes the USG’s border securitization and immigration enforcement.

Section 7

Section 7 analyzes the USG’s diplomacy and strategic communications.

Section 8

Section 8 summarizes and offers initial insights into how to overcome the challenge of measuring counter-terrorism activities  both in terms of gender impacts and efficacy, stressing the urgent need for tools to measure both outcomes as ultimately effective counter-terrorism measures should protect the whole population from terrorism, including particularly women and LGBTI individuals who are regularly its victims.

PREVENTION AND CONFLICT

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

This Legal Advisory sets out the minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfers, articulating threshold standards, substantive norms, and procedural requirements; and concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

In January 2009, President Obama promulgated a number of Executive Orders that created several Task Forces to advise him on certain aspects of U.S. counter-terrorism policy. One of the key issues under review is the U.S. practice of rendition. Several bodies of international law binding on the United States set out rules relevant to the transfer of individuals outside the United States to U.S. territory or to the custody of another state in the context of counter-terrorism operations. International refugee law, international human rights law, and international humanitarian law apply extraterritorially and concurrently. 

Examining human rights, refugee law, and humanitarian law norms together allows for the identification of a minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfer of an individual within its effective control. The transfers to which this minimum standard applies include, for example, “renditions to justice” to the United States or a third state; renditions pursuant to an international arrest warrant or request for surrender by an international court; transfers carried out at the close of hostilities in the context of armed conflict (i.e. repatriations of prisoners of war or security detainees); and transfers across borders of individuals detained in the context of armed conflict. 

This Legal Advisory sets out this minimum baseline standard, articulating threshold standards, substantive norms, and procedural requirements. As a threshold matter, formal transfer processes may not be intentionally bypassed and the United States must have a valid basis for apprehending an individual in contemplation of transfer. Substantively, the U.S. government may not transfer an individual to the custody of a state where he/she is at a real risk of: torture or ill-treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedurally, an individual facing transfer must have the ability to challenge the basis for his deprivation of liberty in contemplation of transfer prior to transfer before an independent decision-maker. This challenge must allow the individual to contest the transfer on the basis of fear of being subject to any of the risks protected against by international law. This Legal Advisory concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

PREVENTION AND CONFLICT

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

This report is a joint effort between the Center for Human Rights and Global Justice and Amnesty International, Cageprisoners, the Center for Constitutional Rights, Human Rights Watch, and Reprieve.

This report aims to shed light both on what has been revealed and what has been obscured by the U.S. government. It also seeks to demonstrate the enormous range of information that is in the public sphere about the nature and scope of the U.S. rendition, secret detention, and coercive interrogation activities. This exercise makes it increasingly evident that the threats of disclosure of “state secrets” and harm to national security are ill-founded, and that the real concern lies in the very fact that a program of this nature exists and continues to operate.

According to the United States (U.S.) government, shortly after September 11, 2001, the Central Intelligence Agency (CIA) was tasked with planning a “separate” program to begin secretly detaining and interrogating individuals outside of the United States. At that time, the CIA was also reportedly authorized to forcibly transfer individuals to foreign countries for interrogation in a practice commonly known as “rendition” or “extraordinary rendition.” Starting with the rendition of Ibn al-Shaykh al-Libi to Egypt in January 2002, and the detention and interrogation of Abu Zubaydah in March 2002,4 the U.S. post-9/11 rendition, secret detention, and coercive interrogation program has since swept up many individuals, the vast majority of whom are still unaccounted for by the United States. 

Between 2001 and September 2006, information about CIA rendition, secret detention, and coercive interrogation operations emerged piecemeal. The U.S. government was the source of some of this information: officials discussed rendition in the media and on Capitol Hill, but gave only partial accounts; they announced the capture of individuals, but refused to disclose their whereabouts; and they informed the National Commission on Terrorist Attacks Upon the U.S. (the 9/11 Commission) that certain individuals were “currently in U.S. custody,” but refused to give the Commission the access it sought to the detainees themselves. The U.S. government also provided “statements” culled from interrogations on behalf of certain secret CIA detainees in the cases of United States v. Paracha and United States v. Moussaoui. Media, inter-governmental bodies (such as the Council of Europe and the United Nations (UN)), human rights organizations, and former detainees also provided comprehensive insights into the CIA’s activities. 

In an effort to obtain further information from the U.S. government about its rendition, secret detention, and coercive interrogation activities, in 2004, 2006, and 2007, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law Center for Human Rights and Global Justice submitted Freedom of Information Act (FOIA) requests to several U.S. agencies, including the CIA. Following a refusal to disclose the majority of the information sought, AIUSA, CCR, and NYU IHRC filed suit in June 2007 in federal court in the Southern District of New York. In spring 2008, the CIA admitted that it had more than 7,000 relevant documents, but sought a ruling that it did not need to disclose the vast majority of those documents, arguing, inter alia, that it cannot be compelled to disclose information it argues is properly classified. In response, on June 26, 2008, AIUSA, CCR, and NYU IHRC filed an opposition to the CIA’s motion for summary judgment and a memorandum of law in support of a cross-motion for partial summary judgment.

PREVENTION AND CONFLICT

Surviving the Darkness: Testimony from the U.S. “Black Sites”

This report is a condensed version of the Declaration. It omits references to, and copies of, most exhibits to the Declaration but is otherwise unchanged. After more than eighteen months of being held “off the record” by the U.S. government, the Declaration and this report is Mohamed Bashmilah’s opportunity to tell his own story. Here, he puts back on the record the truth about the extensive human rights violations he and his family have suffered as a result of his enforced disappearance.

On September 6, 2006, President George W. Bush acknowledged that the United States operates a program of secret detention in the “War on Terror.” In the same statement, President Bush indicated that fourteen of the individuals held in the program had been transferred to Guantánamo Bay and that “…there are now no terrorists in the CIA program.” President Bush did not disclose the fate and whereabouts of the other individuals known or believed to have been secretly detained at some point by the U.S. government, and he left open the possibility that the CIA program would be used again.

A number of the individuals known or suspected to have been held secretly by the United States are still missing. The fate and whereabouts of a smaller number is known as a result of the efforts of human rights organizations. 

Since 2006, the International Human Rights Clinic at New York University School of Law has represented two such individuals—Yemeni nationals Mohammed Abdullah Saleh al-Asad and Mohamed Farag Ahmad Bashmilah. Their stories exemplify the nature and breadth of the U.S. system of detention in the “War on Terror,” as well as the treatment that individuals targeted in the “War on Terror” suffer.

December 2007.