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Aclu Unfinished Business Turning Obamas Human Rights Promises Into Policy 2012

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Unfinished Business:
Turning the Obama Administration’s Human Rights Promises into Policy
March 21, 2012

In April 2009, a few months after taking office, the Obama administration sought
membership in the United Nations Human Rights Council (UNHRC) and issued a list of
“U.S. Human Rights Commitments and Pledges”, including the following:
As the United States seeks to advance human rights and fundamental freedoms
around the world, we do so cognizant of our own commitment to live up to our
ideals at home and to meet our international human rights obligations.1
In 2010, the U.S. government then committed to using its Universal Periodic Review
(UPR) at the UNHRC to “deliver the progress [its] people demand and deserve” on
human rights.2 Through the UPR, the administration formally committed to take a
number of concrete steps to improve U.S. human rights performance at home. The extent
to which the administration lives up to those public commitments will substantially
impact its human rights legacy.
In March 2012, the administration announced a plan to carry out the recommendations it
agreed to during the UPR. The plan spans across agencies and establishes working groups
in ten thematic areas with specified points of contact for each area. 3 This white paper
proposes eight implementation steps for four of the new working groups, those focused
on: criminal justice, national security, immigration, and domestic human rights
implementation. The administration has a limited window of opportunity to turn its
pledges into policy. By implementing the recommendations in this paper, the
administration will put muscle behind its rhetoric and deliver the progress it recognized
the American people deserve.4
CRIMINAL JUSTICE
1. Take Concrete Steps to Stop Solitary Confinement Abuse5
During the UPR process the United States committed to:
Ensure the full enjoyment of human rights by persons deprived of their liberty,
including by way of ensuring treatment in maximum security prisons in conformity
with international law.6
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U.S. supermax prisons hold over 25,000 people nationwide and researchers estimate that
over 80,000 prisoners in the United States are held in administrative segregation,
disciplinary segregation, and protective custody.7 Many such prisoners are severely
mentally ill or cognitively disabled and they are typically placed in solitary confinement
for indefinite periods, and may remain there for months, years, and even decades. 8
Children held in adult U.S. prisons are also often held in solitary confinement “for safety
reasons.”9
In August 2011, Juan E. Mendez, the U.N. Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment concluded in a report to the U.N. General
Assembly that solitary confinement causes severe mental and physical pain and suffering
and can amount to cruel, inhuman or degrading treatment or punishment and even
torture.10 The United States should implement its commitment to humane treatment in
maximum security prisons by taking concrete steps to address the abuse of solitary
confinement. At a minimum, the United States government should immediately launch a
study into the use of solitary confinement in prison facilities run by the Federal Bureau of
Prisons. The United States should also extend an official invitation to the Special
Rapporteur on Torture to visit the country as soon as practically possible, and should
facilitate unimpeded access to prisons and prisoners held in solitary confinement.
2. End Disparate Impact of the Death Penalty and Mandatory Minimum
Sentences11
During the UPR process the United States committed to:
Undertake studies to determine the factors of racial disparity in the application of the
death penalty, to prepare effective strategies aimed at ending possible discriminatory
practices.12
Review the minimum mandatory sentences in order to assess their disproportionate
impact on the racial and ethnic minorities.13
Racial disparity in criminal penalties—particularly in the application of the death penalty
and imposition of mandatory minimum sentences—continue to persist in the American
criminal justice system. In its recent periodic report to the U.N. Human Rights
Committee, the U.S. government acknowledged “the overrepresentation of minority
persons, particularly Blacks/African Americans, in the death row population” referencing
a 2000 Justice Department study finding wide racial and geographic disparities in the
federal government’s requests for death sentences.14 In 2011, racial minorities constituted
56% of the 3,220 people on death row.15 In 96% of states where race studies have been
conducted, involving either race of victim or race of defendant, both disparities have been
observed.16 A recent study by the U.S. Sentencing Commission (USSC) further found
that people of color are sentenced to mandatory minimums for drug offenses far more
often than their white counterparts and that the minimums are excessively severe, applied
too broadly and inconsistently, and are in need of reform.17

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In the long term, the United States should heed domestic and international calls to bring
an end to the use of capital punishment.18 Immediately, the Obama Administration should
fulfill its explicit commitment to undertake a new federal study examining the racial
disparities in the application of the death penalty. In light of the most recent USSC study,
the Justice Department should also reexamine its support of existing mandatory minimum
sentences and, at the very least, refuse to support any new mandatory sentences that are
proposed.

NATIONAL SECURITY
3. Provide U.N. Special Rapporteurs unimpeded access to Guantanamo Bay19
During the UPR process the United States committed to:
Consider the possibility of inviting relevant mandate holders as follow-up to the 2006
joint-study by the 5 special procedures, in view of the decision of the current
Administration to close the Guantanamo Bay detention facility.20
Outside independent monitoring is essential to ensuring prisoners’ human rights in any
detention facility. The well-documented history of secrecy and abuse at Guantanamo
heightens the need for transparency concerning the detention facility’s operations and the
U.S. government’s treatment of prisoners held there.21 Granting U.N. Special
Rapporteurs full and unfettered access to Guantanamo will send a powerful message to
the world that the U.S. government is truly committed to transparency, openness, and
humane treatment.
Inviting U.N. special procedures (experts) to Guantanamo is also consistent with
recommendations made in the U.S. Defense Department’s own 2009 review of detention
conditions at Guantanamo. In his report, Admiral Patrick Walsh recommended that the
U.S. Defense Department “consider inviting non-governmental organizations and
appropriate international organizations to send representatives to visit Guantánamo”
because “[t]he involvement of other international and non-governmental organizations [in
addition to the International Committee of the Red Cross]…may be beneficial in making
the operations at Guantánamo more transparent, and in offering their services for the
humane care and treatment of detainees.”22
To date, no non-governmental or international organization, other than the International
Committee of the Red Cross, has been granted access to Guantanamo prisoners. The
Obama administration should make good on its commitment to transparency and humane
treatment by providing the five U.N. special procedures (experts) unimpeded access to
the Guantanamo detention facility.

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4. Provide Accountability and Remedies for Torture & Prevent Transfers to
Torture23
During the UPR process the United States committed to:
[E]radicate all forms of torture and ill-treatment of detainees by military or civilian
personnel, in any territory of jurisdiction, and that any such acts be thoroughly
investigated.24
Halt all transfer [of] detainees to third countries unless there are adequate safeguards
to ensure that they will be treated in accordance with international law requirements.25
The U.S. government’s failure to date to ensure accountability or remedies for past
abuses of prisoners in U.S. custody – including transfer to abuse – has rightly generated
considerable concern amongst the international community.26 In light of these concerns,
the United States should reconsider its decision not to: open a full investigation into past
cases of torture, end the unjustified and improper assertion of the “state secrets” privilege
to shield government officials and corporations from civil accountability, consider nonjudicial remedies for victims of torture and other cruelty, and increase transparency in
reforms it has implemented to prevent transfer to torture and other abuse.
There is now overwhelming evidence that under the Bush administration high level U.S.
officials operated an interrogation program that subjected hundreds of prisoners to cruelty
that violated both domestic and international law.27 In June, Attorney General Eric
Holder announced that the Department of Justice was only pursuing full criminal
investigations into the deaths of two prisoners in U.S. custody.28 The U.S. government
should reverse its decision to so significantly narrow its investigation into abuses of
detainees in U.S. custody and should commit to fully pursuing accountability for all those
responsible for acts of torture consistent with its international legal obligations under the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT).
The U.S. government has also successfully invoked an array of privileges and immunities
to block victims of torture from having their day in court, thereby denying victims access
to remedies for their physical and psychological injuries.29 The United States government
should commit to providing alternative non-judicial remedies for victims of torture and
other cruel, inhuman or degrading treatment, particularly for those who have exhausted
judicial recourse.
Finally, in its recent periodic report to the U.N. Human Rights Committee, the U.S.
government highlighted several steps that the administration is taking to ensure that U.S.
transfers conform to international legal obligations.30 However, many of the reports and
recommendations that the government cited as being central to recent reforms remain
secret—their substance unknown to the public.31 In implementing the recommendation
that it ensure transfers are compliant with international law, the U.S. government should
make the documents outlining the steps public, specifically, the Special Task Force on
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Interrogations and Transfer Policies recommendations and the resulting reports on
transfers of the Inspectors General of the State and Defense Departments.32

IMMIGRATION
5. Take Concrete Steps to Reduce Significantly the Number of Individuals in
Immigration Detention33
During the UPR process the United States committed to:
Reconsider alternatives to the detention of migrants.34
The U.S. immigration detention system locks up tens of thousands of immigrants
unnecessarily every year, exposing detainees – including vulnerable populations such as
persons with mental disabilities, asylum-seekers, women, children, and lesbians, gays,
bisexuals and transgender individuals – to brutal and inhumane conditions of
confinement at massive costs to American taxpayers.35 This system of mass detention
persists despite the fact that the U.S. Department of Homeland Security (DHS)
acknowledges that most immigration detainees “have a low propensity for violence.”36
Moreover, such mass detention is unnecessary to enforce immigration laws given the
availability of alternatives like telephonic and in-person reporting, curfews, and home
visits to prevent flight. Moreover, such mass detention is unnecessary to enforce
immigration laws given the availability of alternatives to detention that have been shown
to be successful at ensuring appearance at far less cost. These include supervised release
with a combination of case management and assistance, reporting requirements
(telephonic and/or in-person), and where necessary, curfews, home visits, and electronic
monitoring. Indeed, DHS's Alternatives to Detention programs had a 93.8% compliance
rate in 2010 and cost from $.30-$14 per person per day, whereas detention costs $166 per
person per day.37
While the Obama administration has slightly reduced its congressional request for
funding of immigration detention beds, there are many additional steps the administration
should take to implement the UPR recommendation that it reconsider alternatives to the
detention of migrants. Specifically, U.S. Immigration and Customs Enforcement (ICE)
should use detention only as a last resort, in those circumstances where no alternative
conditions of release would be sufficient to address the government’s concerns about
danger or flight risk.38 ICE should also increase collaboration with local NGOs to allow
statutorily eligible individuals who lack the requisite community ties to participate in
alternatives to detention programs.39 In this regard, the U.S. government should institute
procedures to ensure that no person is subjected to immigration detention without a
hearing before an impartial adjudicator to review ICE’s determination that such detention
is necessary. ICE should also ensure that its newly developed risk assessment tool
prioritizes vulnerable populations for release, abandon its overly broad application of
mandatory detention provisions, which offend international human rights norms, and
increase collaboration with local NGOs on alternatives to detention programs.
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6. Stop fostering racial profiling through immigration enforcement40
During the UPR process the United States committed to:
Prohibit and punish the use of racial profiling in all programs that enable local
authorities with the enforcement of immigration legislation and provide effective and
accessible recourse to remedy human rights violations occurred under these
programs.41
During the November 2010 U.S. UPR process, a number of states expressed serious
concerns about racial profiling in relation to immigration enforcement issues. Racial
profiling remains a widespread and pervasive problem in the United States, it is a
violation of human rights, and it specifically runs afoul of U.S. obligations under the
International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).42 Two DHS programs, in large part, specifically fuel concerns around racial
profiling: 287(g), which allows certain state and local law enforcement officers to engage
in immigration enforcement; and Secure Communities (S-Comm), under which everyone
arrested and booked into a local jail has their fingerprints checked against ICE's
immigration database.
The 287(g) and S-Comm programs foster racial profiling and damage ties between local
law enforcement and the community. The DHS Office of Inspector General (OIG) issued
three reports in 2010-2011 on 287(g), affirming concerns that the program has
contributed to racial profiling and has been incompetently administered. 43 While ICE has
asked Congress to reduce funding in FY 2013 for 287(g) task forces, it has also approved
the program’s expansion in jails. Many states and localities throughout the country have
refused to participate in S-Comm because officials have concluded that the program
destroys public trust in policing and makes it harder for local and state law enforcement
to do their jobs.44 In both 287(g) and S-Comm, DHS has continuously partnered with
jurisdictions where there are confirmed patterns of racial profiling. 45 The Inter-American
Commission on Human Rights has emphasized that for S-Comm and 287(g), “ICE has
failed to develop an oversight and accountability system to ensure that these local
partners do not enforce immigration law in a discriminatory manner by resorting to racial
profiling and that their practices do not use the supposed investigation of crimes as a
pretext to prosecute and detain undocumented migrants.”46
At the 2011 UPR process, the United States “reaffirmed its commitment and recent
actions to combat profiling” in the context of immigration enforcement, and claimed to
be “conducting a thorough review of policies and procedures to ensure that none of its
law enforcement practices improperly target individuals based on race or ethnicity”. 47 To
truly fulfill this commitment, the Obama administration should immediately require DHS
to terminate all 287(g) agreements and the Secure Communities program. Moreover, the
administration should: require DHS to regularly collect and make public data surrounding
any such programs involving state and local police in immigration enforcement 48; limit
all such programs to individuals convicted of serious and violent deportable felonies;
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institute a robust racial profiling complaint and investigation procedure; and decline to
initiate removal proceedings against individuals shown to have been subjected to racial
profiling.
7. End Excessive Use of Force by Customs and Border Protection Agents49
During the UPR process the United States committed to:
Prohibit, prevent and punish the use of lethal force in carrying out immigration
control activities.50
While it is unclear whether the United States has taken any steps to address the escalating
number of incidents where U.S. Border Patrol agents and other Customs and Border
Protection (CBP) personnel cause serious injury or death through the use of force, there
are numerous allegations of abuses. In 2010, the Mexican Foreign Ministry reported that
the number of Mexican nationals injured or killed as a result of use of force by U.S.
Border Patrol agents has increased dramatically from 5 in 2008 to 12 in 2009 to 17 in just
the first five months of 2010,51 but these numbers significantly understate the scale of the
problem as countless incidents go unreported or occur against non-Mexican nationals.
Over the past two years, there have been several fatal shootings where circumstances
suggest the Border Patrol agents’ use of force was disproportionate. In response to a June
2011 incident where a U.S. Border Patrol agent shot and killed a suspected border crosser
on the Mexican side of the border who was allegedly throwing rocks at agents, Mexico’s
Foreign Relations Secretariat stated: “The Mexican government energetically condemns
the death. ... [We] reiterate that the use of firearms to repel attacks with rocks, which is
what preliminary information indicates may have occurred in this case, represents a
disproportionate use of force.”52
While there are rare instances in which an agent needs to use lethal force if there is a
tangible threat of serious bodily harm to agents or others, the frequency and regularity of
its use has become alarming. To fulfill its commitment to prohibit, prevent and punish the
use of lethal force in carrying out immigration control activities, the U.S. government
should increase transparency of investigations into violent incidents; establish greater and
independent oversight of Border Patrol agents; train agents to use alternative methods of
force and de-escalation techniques when faced with individuals throwing rocks; and
cease arguing in court that victims’ survivors have no judicial remedy to recover damages
from deadly-force incidents.

DOMESTIC IMPLEMENTATION OF HUMAN RIGHTS
8. Improve Transparency and Accessibility of Interagency Human Rights
Implementation53
During the UPR process the United States committed to:

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Continue consultations with non-governmental organizations and civil society in the
follow up.54
In preparing its UPR report, the U.S. government engaged dozens of federal agencies and
departments and participated in a number of civil society consultations throughout the
country.55 While the administration’s recently announced plan for implementing the UPR
recommendations is a welcome development, the administration needs to institutionalize
a broader interagency process for implementing U.S. human rights obligations.
The U.S. government should heed the call of the Human Rights at Home Campaign and
the U.S. Human Rights Network and codify a formal interagency human rights structure,
led by the National Security Council, which is transparent and accessible to civil
society.56 The mechanism should: make clear to the public its mandate, authorities,
structure and activities; establish explicit civil society points of contact with each agency
involved in the structure; and hold regular, periodic meetings with civil society members.
Such steps will allow civil society members to share their knowledge about rights
violations they encounter on the ground and allow the administration to increase public
awareness of its activities to improve compliance. The mechanism should also ensure
effective collaboration and improved coordination between federal, state, local, and tribal
governments on implementation and enforcement of human rights obligations.
In addition, in accordance with the U.S. government’s recently stated commitment to
improving ICERD implementation,57 the administration should place particular focus on
enhancing its ICERD-specific interagency coordination. The government should formally
establish an interagency working group on ICERD. This body should clarify the mandate
of the ongoing interagency ICERD work and, going forward, the mandate of the existing
U.S. interagency group addressing ICERD should be made clear to the public. That
mandate should focus on establishing a clear plan of action to implement fully the
ICERD domestically and improve the United States’ compliance with the treaty.
Conclusion
In March 2010, Secretary of State Hillary Clinton famously stated that “Human rights are
universal, but their experience is local. This is why we are committed to hold everyone to
the same standard, including ourselves.”58 This white paper has described concrete ways
that the Obama administration can make tangible progress in protecting and promoting
human rights and addressing their very serious violations.
Consistent with the Obama administration’s stated commitment to “meeting its UN treaty
obligations and participating in a meaningful dialogue with treaty body members” 59, in
the 9 months between now and the end of this presidential term, there remains a real
opportunity for the Obama administration to match its rhetoric with concrete action.

1

United States Department of State, United States Human Rights Commitments and Pledges (April 2009),
http://www.state.gov/documents/organization/121976.pdf.

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2

United States Department of State, Report of the United States of America Submitted to the U.N. High
Commissioner for Human Rights in Conjunction with the Universal Periodic Review,
http://www.state.gov/documents/organization/146379.pdf.
3
Humanrights.gov, U.S. Implementation Plan for the 2010 Universal Periodic Review (March 16, 2012),
http://www.humanrights.gov/2012/03/16/u-s-implementation-plan-for-the-2010-universal-periodic-review.
4
This report is not intended to be a comprehensive description of all steps the administration would have to
take to be fully compliant with its human rights obligations. Instead, the report focuses on discrete
commitments the administration has already made.
5
American Civil Liberties Union, Stop Solitary - Advocacy Campaign Tools,
http://www.aclu.org/prisoners-rights/stop-solitary-advocacy-campaign-tools (last visited March 20, 2012).
6
Humanrights.gov, Accepted UPR Recommendations (March 2012) ¶ 177,
http://www.humanrights.gov/wp-content/uploads/2012/03/USAcceptedRecommendations-2010UPR.pdf.
7
Daniel P. Mears, Evaluating the Effectiveness of Supermax Prisons, Urban Institute, 4 (2006); Angela
Browne, A. Cambier, S. Agha, Prisons Within Prisons: The Use of Segregation in the United States, 24
Federal Sentencing Reporter 46 (2011).
8
Wilkerson v. Stalder, 639 F. Supp. 2d 654 (M.D. La. 2007) (three prisoners held in solitary confinement
for periods ranging from 28 to 35 years); Silverstein v. Federal Bureau of Prisons, 704 F. Supp. 2d 1077
(D. Colo. 2010) (prisoner held in solitary confinement for 27 years).
9
United Nations Human Rights Council, 19th Session, Agenda Item 3, U.N. Doc. A/HRC/19/NGO/31
(February 17, 2012), available at
http://www.aclu.org/files/assets/aclu.statement.solitary.confinment.unhrc_.19th.session.feb_.2012.pdf;
Washington Coalition for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult
Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and
Adolescent Brain Development, 8 (2009), available at http://www.columbialegal.org/files/JLWOP_cls.pdf.
10
United Nations Human Rights Council, 19th Session, Agenda Item 3, U.N. Doc. A/HRC/19/61 (January
18, 2012), http://www.ohchr.org/Documents/Issues/SRTorture/A-HRC-19-61.pdf.
11
American Civil Liberties Union, Death Penalty 101 (October 3, 2011),
http://www.aclu.org/capital-punishment/death-penalty-101; American Civil Liberties Union, Safe
Communities, Fair Sentences, http://www.aclu.org/safe-communities-fair-sentences-0 (last visited March
20, 2011).
12
Humanrights.gov, supra note 6, at ¶ 95.
13
Id. at ¶ 97.
14
United States Department of State, Fourth Periodic Report of the United States of America to the United
Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights
(December 30, 2011), http://www.state.gov/j/drl/rls/179781.htm.
15
Death Penalty Information Center, Facts about the Death Penalty (March 12, 2012),
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.
16
Id.
17
United States Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System, xxviii-xxxviii (2011).
18
American Civil Liberties Union, Statement Submitted to the OSCE Human Dimension Implementation
Meeting by the American Civil Liberties Union on: Death Penalty in the United States of America
(September 28, 2011), http://www.aclu.org/files/assets/osce-hdim-11-193-en.pdf.
19
American Civil Liberties Union, Detention, http://www.aclu.org/national-security/detention (last visited
March 20, 2012).
20
Humanrights.gov, supra note 6, at ¶ 89.
21
Laurel E. Fletcher & Eric Stover, Guantanamo and its Aftermath: U.S. Detention and Interrogation
Practices and Their Impact on Former Detainees (2008), available at
http://www.law.berkeley.edu/HRCweb/pdfs/Gtmo-Aftermath_2.pdf.
22
Admiral Patrick Walsh, Department of Defense, Review of Department Compliance with President’s
Executive Order on Detainee Conditions of Confinement (February 2009),
http://www.defense.gov/pubs/pdfs/Review_of_Department_Compliance_with_Presidents_Executive_Orde
r_on_Detainee_Conditions_of_Confinementa.pdf.
23
American Civil Liberties Union, Torture, http://www.aclu.org/national-security/torture (last visited
March 20, 2012).

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24

Humanrights.gov, supra note 6, at ¶ 139.
Id. at ¶ 161.
26
Id. at ¶ 139.
27
American Civil Liberties Union, Documents Released Under FOIA,
http://www.aclu.org/accountability/released.html (last visited March 20, 2012).
28
Ateqah Khaki, DOJ to Investigate Deaths of Two Detainees in CIA Custody, ACLU Blog of Rights (June
30, 2011), http://www.aclu.org/blog/national-security/doj-investigate-deaths-two-detainees-cia-custody.
29
See e.g. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010), cert denied, No. 10-778,
2011 WL 1832889, at *1 (S. Ct. May 16, 2011); Arar v. Ashcroft, 585 F.3d 559 (2nd Cir. 2009), cert
denied, 130 S. Ct. 3409 (2010).
30
United States Department of State, supra note 14, at 256-95.
31
Id. at 285-86.
32
Note that the Department of Homeland Security Inspector General did make its report on transfer policy
public. See, e.g., United States Department of Homeland Security, Office of Inspector General, DHS
Detainee Removals and Reliance on Assurances,
http://www.oig.dhs.gov/assets/Mgmt/OIG_11-100_Nov11.pdf.
33
American Civil Liberties Union, Immigration Detention, http://www.aclu.org/immigrantsrights/immigration-detention (last visited March 20, 2012).
34
Humanrights.gov, supra note 6, at ¶ 212.
35
National Immigration Forum, The Math of Immigration Detention: Runaway Costs for Immigration
Detention Do Not Add Up to Sensible Policies (August 2011),
http://www.immigrationforum.org/images/uploads/MathofImmigrationDetention.pdf.
36
Dora Schriro, Immigration and Customs Enforcement: Immigration Detention
Overview and Recommendations (October 6, 2009),
http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf.
37
National Immigration Forum, supra note 35.
38
See U.N. High Commissioner for Refugees, Back to Basics: The Right to Liberty and Security of Person
and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants iii,
available at http://www.unhcr.org/refworld/docid/4dc935fd2.html (“[P]rinciples of proportionality,
necessity and reasonableness . . . must be read as requiring detention to be an exceptional measure of last
resort; and in this regard, states must show that there were not less intrusive means of achieving the same
objective.”).
39
Schriro, supra note 36.
40
American Civil Liberties Union, Secure Communities Blog Series, http://www.aclu.org/blog/tag/securecommunities (last visited March 20, 2012); American Civil Liberties Union, 287(g) Blog Series,
http://www.aclu.org/blog/tag/287g (last visited March 20, 2012).
41
Humanrights.gov, supra note 6, at ¶ 108.
42
American Civil Liberties Union, The Persistence of Racial and Ethnic Profiling in the United States
(2009), available at http://www.aclu.org/files/pdfs/humanrights/cerd_finalreport.pdf.
43
Department of Homeland Security Office of Inspector General, The Performance of 287(g) Agreements
(March 2010), http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-63_Mar10.pdf; Department of Homeland
Security Office of Inspector General, The Performance of 287(g) Agreements Report Update (September
2010), http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-124_Sep10.pdf; Department of Homeland
Security Office of Inspector General, The Performance of 287(g) Agreements FY 2011 Update, (September
2011), http://www.oig.dhs.gov/assets/Mgmt/OIG_11-119_Sep11.pdf.
44
See e.g. Letter from Pat Quinn, Governor of Illinois, to Marc Rapp, Acting Assistant Director, Secure
Communities (May 4, 2011), available at
http://uncoverthetruth.org/wp-content/uploads/2011-05ilterminate.pdf; Letter from Mylan L. Denerstein,
Counsel to Governor of New York, to John Sandweg, Counsel to the Secretary for U.S. Department of
Homeland Security (June 1, 2011), available at
http://www.governor.ny.gov/assets/Secure%20Communities.pdf.
45
DHS belatedly terminated its 287(g) agreement with Maricopa County Sheriff’s office after a DOJ
investigation found evidence of misconduct by that office. Press Release, Department of Homeland
Security, Statement by Secretary Napolitano on DOJ’s Findings of Discriminatory Policing in Maricopa
County (December 15, 2011), available at http://www.dhs.gov/ynews/releases/20111215-napolitano25

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statement-doj-maricopa-county.shtm. DHS continues to operate S-Comm in several other jurisdictions with
records of discriminatory policing including New Orleans, Suffolk County, New York, Alamance County,
North Carolina, Puerto Rico, and Alabama. Is Secure Communities Keeping Our Communities Secure?,
Hearing by the House Judiciary Subcommittee on Immigration Policy and Enforcement, 112th Cong.
(2011) (statement of the American Civil Liberties Union), available at
http://www.aclu.org/files/assets/aclu_statement_re_scomm_hearing_11_30_11_final.pdf.
44
Inter-American Commission on Human Rights, Report on Immigration in the United States: Detention
and Due Process (December 30, 2010), available at
http://www.detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/03.17.2011_ReportOnImmig
rationInTheUnited%20States-DetentionAndDueProcess.pdf.
47
United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review,
at 72, 74, U.N. Doc A/HRC/16/11 (January 4, 2011).
48
Such information should include: circumstances and basis for contacts with individuals issued
immigration detainers and/or placed in deportation proceedings; (b) the race and ethnicity of those
contacted; and (c) the prosecutorial and judicial disposition of arrests that lead to detainers and/or
deportation proceedings.
49
Press Release, American Civil Liberties Union, Border Patrol Shoots, Kills Rock Thrower (June 22,
2011), available at http://www.aclu.org/criminal-law-reform/border-patrol-shoots-kills-rock-thrower.
50
Humanrights.gov, supra note 6, at ¶¶ 208-209. In accepting these recommendations the United States
noted that “law enforcement and immigration officers are lawfully permitted to use deadly force under
certain exceptional circumstances, e.g., self-defense or defense of another person.” U.S. Department of
State, U.S. Response to U.N. Human Rights Council Working Group Report (March 10, 2011),
http://www.state.gov/j/drl/upr/157986.htm.
51
Letter from NGOs to John Conyers, U.S. House Judiciary Chairman (June 21, 2010),
http://www.aclu.org/files/assets/Border_Oversight_Letter_FINAL_HOUSE_JUDICIARY.pdf.
52
Agent’s Shot Kills Rock Thrower at Border Fence, San Diego Union Tribune, June 22, 2011, available at
http://www.4sd.signonsandiego.com/news/2011/jun/22/border-patrol-agent-fatally-shoots-man-border/?ap.
53
Jamil Dakwar, Keeping Our Promise to Human Rights, ACLU Blog of Rights (December 9, 2009),
http://www.aclu.org/blog/human-rights/keeping-our-promise-human-rights.
54
Humanrights.gov, supra note 6, at ¶ 225.
55
United States Department of State, Report of the United States of America Submitted to the U.N. High
Commissioner for Human Rights in Conjunction with the Universal Periodic Review 3,
http://www.state.gov/documents/organization/146379.pdf.
56
Human Rights at Home Campaign Factsheet,
http://www.hurahcampaign.org/files/Interagency%20Working%20Group%20Fact%20Sheet.pdf (last
visited March 20, 2012).
57
United States Department of State, U.S. Statement on the Durban Declaration and Programme of Action,
(September 27, 2011), http://geneva.usmission.gov/2011/09/27/durban-declaration-and-programme-ofaction.
58
Hillary R. Clinton, Preface to 2009 Country Reports on Human Rights Practices (March 11, 2010),
http://www.america.gov/st/texttransenglish/2010/March/20100311143411eaifas0.5985311.html.
59
United States Department of State, supra note 1.

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