[Senate Hearing 111-576]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 111-576

   THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                           DECEMBER 16, 2009

                               ----------                              

                          Serial No. J-111-68

                               ----------                              

         Printed for the use of the Committee on the Judiciary






                                                        S. Hrg. 111-576

   THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 16, 2009

                               __________

                          Serial No. J-111-68

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel

                Subcommittee on Human Rights and the Law

                 RICHARD J. DURBIN, Illinois, Chairman
RICHARD J. DURBIN, Illinois          TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin       LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
                      Joseph Zogby, Chief Counsel
                 Brooke Bacak, Republican Chief Counsel













                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................   167
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prapred statement............................................   180
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   344

                               WITNESSES

Henderson, Wade, President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, DC..........    20
Massimino, Elisa, President and Chief Executive Officer, Human 
  Rights First, Washington, DC...................................    18
Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, Department of Justice, Washington, DC................     5
Posner, Michael H., Assistant Secretary for Democracy, Human 
  Rights and Labor, Department of State, Washington, DC..........     3

                         QUESTIONS AND ANSWERS

Responses of Thomas E. Perez to questions submitted by Senator 
  Coburn.........................................................    79
Responses of Michael H. Posner and Thomas E. Perez to questions 
  submitted by Senators Coburn, Durbin and Feingold..............    30

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Jamil Dakwar, Director, and 
  Michael W. Macleod-Ball, Acting Director, New York, New York, 
  joint statement................................................    89
Advocates for Human Rights, Minneapolis, Minnesota, statement....    99
Amnesty International, London, United Kingdom, statement.........   105
Armenian Assembly of America, Bryan Ardouny, Executive Director, 
  Washington, DC, statement......................................   113
Campaign for a New Domestic Human Rights Agenda, Atlanta, 
  Georgia, statement.............................................   116
Campaign for the Fair Sentencing of Youth, Jody Kent, National 
  Coordinator, Washington, DC, statement.........................   122
Center for Justice and International Law, Vivana Krsticevic, 
  Executive Director, and Michael J. Camilleri, Senior Staff 
  Attorney, Washington, DC, joint statement......................   124
Center for Reproductive Rights, New York, New York, statement....   133
Center for the Human Rights of Users and Survivors to Psychiatry, 
  Chestertown, New York, statement...............................   138
Civil and Human Rights and Justice Organizations, joint letter...   142
Clinton, Hon. Hillary Rodham, Secretary of State, State 
  Department, Washington, DC, statement..........................   144
Cohn, Marjorie, Professor, Thomas Jefferson School of Law and 
  Director, U.S. Human Rights Network, Atlanta, Georgia, 
  statement......................................................   163
Columbia Law School, Human Rights Institute, New York, New York, 
  statement......................................................   168
Council for Global Equality, Human Rights Campaign, Washington, 
  DC, statement..................................................   177
Everson, Mary Lynn, Heartland Alliance Marjorie Kovler Center, 
  Chicago Illinois, statement....................................   183
Foscarinis, Maria, Executive Director, National Law Center on 
  Homelessness & Poverty, Washington, DC, statement..............   187
Friends Committee on National Legislation, Washington, DC, 
  statement......................................................   193
Ginger, Ann Fagan, Executive Director, Meiklejohn Civil Liberties 
  Institute, Berkeley, California, statement.....................   198
Hamilton, Lee H., letter.........................................   202
Henderson, Wade, President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, DC, 
  statement......................................................   205
Heartland Alliance National Immigrant Justice Center, Mary Meg 
  McCarthy, Executive Director, Chicago, Illinois, statement and 
  attachment.....................................................   215
Heritage Foundation, Washington, DC:
    Steven Groves, publication no. 2168, August 7, 2008..........   226
    Brett D. Schaefer and Steven Groves, publication no. 2339, 
      November 9, 2009...........................................   236
Human Rights USA, Washington, DC, statement......................   245
Illinois Coalition for the Fair Sentencing of Children and Family 
  Justice Center, Shobha L. Mahaev, Chicago, Illinois, statement.   250
Indian Law Resource Center, Washington, DC, statement............   256
International Commission for Labor Rights, Jeanne Mirer, Zaid 
  Hydari, and Kae D'Adamo, New York, New York, joint statement...   265
International Indian Treaty Council, Andrea Carmen, Executive 
  Director, San Francisco, California, letter....................   269
Jacob Blaustein Institute for the Advancement of Human Rights of 
  the American Jewish Committee, Washington, DC, statement.......   275
Jenkins, Alan, Executive Director, the Opportunity Agenda, New 
  York, New York, statement......................................   277
Jewish Council on Urban Affairs, Chicago, Illinois, report.......   284
Johnson, Douglas A., Executive Director, Center for Victims of 
  Torture, Minneapolis, Minnesota, statement.....................   289
Just Detention International, Washington, DC, statement..........   300
Justice Now, Oakland, California, statement......................   307
Keller, Allen S., Associate Professor of Medicine, New York 
  University, New York, New York, statement......................   310
Latino Justice PRLDEF, Cear A. Perales, President & General 
  Counsel, New York, New York, statement.........................   324
Lawyers' Committee for Civil Rights Under Law, Washington, DC, 
  statement......................................................   326
Leahy, Hon. Patrick J., Senators Feingold, Franken, Kerry and 
  Cardin, Washington, DC, joint letter...........................   339
Lyon, Beth, Associate Professor of Law, Villanova University 
  School of Law, Villanova, Pennsylvania, letter and chart.......   341
Massimino, Elisa, President and Chief Executive Officer, Human 
  Rights First, Washington, DC:
    statement....................................................   349
    Appendix to the testimony....................................   357
Midwest Coalition for Human Rights, Minneapolis, Minnesota, 
  statement......................................................   368
Minnesota Tenants Union, Minneapolis, Minnesota, statement.......   374
McFarland, Maria, Washington, Advocacy Deputy Director, Human 
  Rights Watch, Washington, DC, statement........................   381
Nahapetian, Kate, Goverment Affairs Director, Armenian National 
  Committee of America, Washington, DC, statement................   396
National Alliance of HUD Tenants, Boston, Massachusetts, 
  statement......................................................   400
National Association of Criminal Defense Lawyers and The 
  Sentencing Project, Washington, DC, joint statement............   406
National Association of Social Workers, Washington, DC, statement   419
National Lawyers Guild, New York, New York, statement............   423
Northeastern University School of Law, Boston, Massachusetts, 
  statement......................................................   427
Northwestern University School of Law, Director, Center for 
  International Human Rights David Scheffer, Mayer Brown/Robert 
  A. Helman, Professor of Law....................................   436
Open Society Institute, New York, New York, statement............   441
Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, Department of Justice, Washington, DC, statement.....   447
Physicians for Human Rights, A. Frank Donaghue, Chief Executive 
  Officer, Washington, DC, statement.............................   453
Pollack, Wendy, Director, Women's Law and Policy Project, Sargent 
  Shriver National Center on Poverty Law, Chicago, Illinois, 
  statement......................................................   462
Posner, Michael H., Assistant Secretary for Democracy, Human 
  Rights and Labor, Department of State, Washington, DC, 
  statement......................................................   471
Poverty & Race Research Action Council, Washington, DC, 
  statemenet.....................................................   476
Price, Mary, Vice President and General Counsel, Families Against 
  Mandatory Minimums, Washington, DC, statement..................   485
Randall, Vernellia R., University of Dayton School of Law, 
  Dayton, Ohio, statement........................................   492
Rights Working Group, Washington, DC, statement..................   496
Ryan, Liz, President and CEO, Campaign for Youth Justice, 
  Washington, DC, statement......................................   502
Schulz, William F., Senior Fellow for Human Rights Policy, Center 
  for American Progress, Washington, DC, statement...............   515
Sklar, Morton, Founding Executive Director Emeritus, World 
  Organization for Human Rights USA, Washington, DC, statement...   520
Soler, Mark, Executive Director, Center for Children's Law and 
  Policy, Washington, DC, statement..............................   526
Smith, Chad, Principal Chief, Cherokee Nation, Tahlequah, 
  Oklahoma, statement............................................   535
Taifa, Nkechi, Senior Policy Analyst, Open Society Institute, 
  Washington, DC, statement......................................   540
Todres, Jonathan, Professor, Associate Professor of Law, Georgia 
  State University College of Law, Atlanta, Georgia and Carol 
  Smolenski, Exeutive Director, ECPAT-USA, Brooklyn, New York on 
  behalf of ECPAT-USA, statement.................................   556
United States Council for International Business, Peter M. 
  Robinson, President & Chief Executive Officer, New York, New 
  York, statement................................................   562
United States Department of State, Diplomacy in Action, 
  Washington, DC, statement......................................   564
Urban Justice, Ejim Dike, New York, New York, statement..........   565
U.S. Human Rights Network, Atlanta, Georgia, statement...........   571
University of San Francisco, Center for Law and Global Justice, 
  School of Law, San Fransisco, California, statement............   588
Venetis, Penny M., Rutgers School of Law, University of New 
  Jersey, Newark, New Jersey, statement..........................   590

 
   THE LAW OF THE LAND: U.S. IMPLEMENTATION OF HUMAN RIGHTS TREATIES

                              ----------                              


                      WEDNESDAY, DECEMBER 16, 2009

                               U.S. Senate,
          Subcommittee on Human Rights and the Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:34 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Feingold, Cardin, and Franken.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Chairman Durbin. Welcome, everyone. This hearing of the 
Human Rights and the Law Subcommittee will come to order. The 
title of today's hearing is ``The Law of the Land: U.S. 
Implementation of Human Rights Treaties.'' This is the first 
ever congressional hearing on U.S. compliance with our human 
rights treaty obligations.
    Last Thursday, December 10th, was the 61st anniversary of 
the Universal Declaration of Human Rights. Eleanor Roosevelt, 
the architect of the Universal declaration, once said, ``Where, 
after all, do universal human rights begin? In small places, 
close to home. . . . Unless these rights have meaning there, 
they have little meaning anywhere.''
    The United States has played a leading role in drafting and 
ratifying landmark human rights treaties. Congress has passed 
important legislation to implement these treaties. Just last 
year, this Subcommittee produced the Child Soldiers 
Accountability Act, which makes it a Federal crime and 
immigration violation to recruit or use child soldiers. This 
implements part of our obligations under the Optional Protocol 
on the Involvement of Children in Armed Conflict.
    Democrats and Republicans alike agree that we must make 
every effort to comply with the legal obligations we undertake 
when we ratify a human rights treaty. Indeed, under our 
Constitution, these treaties are part of the supreme law of our 
land.
    Democratic and Republican administrations alike monitor and 
report on U.S. compliance with our human rights treaty 
obligations. In fact, it was the Bush administration that 
brought the United States up to date with our human rights 
treaty reporting requirements for the first time and began 
preparations for the first ever Universal Periodic Review of 
the United States, which will take place next year.
    The Obama administration is building on this record, and I 
look forward to hearing more about their plans today. But 
reporting alone is not enough.
    We have to look at ourselves in the mirror and ask the 
difficult questions. Let us take one example. Today in the 
United States of America, more than 2.3 million people are 
imprisoned. This is, by far, more prisoners than any country in 
the world and, by far, the highest per capita rate of 
incarceration in the world. African-Americans are incarcerated 
at nearly six times the rate of white Americans. There are 
human rights issues behind these numbers that we must look at 
honestly.
    I also want to acknowledge our shortcomings in Congress. We 
have not held a single hearing on U.S. compliance with the 
human rights treaties that we have ratified. Hopefully today we 
will take a small step in the right direction.
    Why is it important to comply with human rights treaties? 
It is not because we fear the judgment of the United Nations. 
Democrats and Republicans alike agree that some U.N. criticisms 
may go too far from time to time.
    We take our treaty obligations seriously because it is who 
we are. The United States is a government of laws, and not 
people.
    Complying with our treaty obligations also enhances our 
efforts to advocate for human rights around the world. When the 
United States leads by example, we can help make universal 
human rights a reality, both close to home and around the 
world.
    I note that Senator Coburn has not arrived. I do want to 
note for the record that, though we disagree on so many things, 
we have been able to find such valuable common ground in this 
Subcommittee. He is a great ally and partner in our efforts on 
human rights, and I am going to, of course, defer to him when 
he arrives.
    Unless my colleagues Senator Cardin or Senator Franken have 
an opening statement, I am going to recognize the first panel. 
Our first panel includes the top human rights official and the 
top civil rights official in the Obama administration. Their 
presence here today speaks volumes about the administration's 
commitment to implementing human rights treaty obligations. 
Each witness will have 5 minutes for an opening statement and 
their complete statements will be made part of the record. I 
would like to ask the witnesses to please stand and, in the 
custom of the Committee, be sworn.
    Do you affirm or swear the testimony you are about to give 
is the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Posner. I do.
    Mr. Perez. I do.
    Chairman Durbin. Thank you. Let the record reflect that 
both witnesses answered in the affirmative.
    Our first witness, Michael Posner, is the Assistant 
Secretary of State for Democracy, Human Rights, and Labor. 
Previously the founding Executive Director and President of 
Human Rights First, which he headed for 30 years, Mr. Posner is 
one of our Nation's most prominent human rights advocates. 
Among other accomplishments, he led the effort to enact the 
first law providing for political asylum. He also helped found 
the Global Network Initiative, a code of conduct for Internet 
companies, that this Subcommittee held a hearing on last year. 
He has a bachelor's degree from the University of Michigan and 
a law degree from the University of California at Berkeley.
    Mr. Posner, thank you for being here today. The floor is 
yours.

    STATEMENT OF MICHAEL H. POSNER, ASSISTANT SECRETARY FOR 
 DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEPARTMENT OF STATE, 
                         WASHINGTON, DC

    Mr. Posner. Thank you, Chairman Durbin and members of the 
Committee, for holding this important hearing and for the work 
of this Subcommittee. I have submitted written testimony that I 
ask be made part of the record, and I am going to try to 
summarize it now.
    I would also ask that the text of Secretary Clinton's 
speech on human rights earlier this week at Georgetown be made 
part of the record.
    Chairman Durbin. Without objection.
    [The speech follows:]
    Mr. Posner. Chairman Durbin, I first want to thank you for 
your leadership in creating this important Subcommittee and the 
leadership you have demonstrated on issues like child soldiers, 
genocide accountability, Internet freedom, mental health issues 
in prisons, and today on U.S. implementation of international 
treaty obligations. We really appreciate your leadership.
    I want to set the context for this discussion by noting the 
Obama administration's commitment to advancing human rights in 
the international community as guided by a commitment to 
principled engagement; a determination to apply human rights 
standards to every government, including our own; and a belief 
that sustainable change in any society, including in this 
country, must be rooted from within and, therefore, involve 
civil society and other internal agents of change.
    Drawing from these broad principles, I want to focus this 
morning on three points, the first of which is this notion of 
principled engagement.
    As President Obama made clear in his speech at the General 
Assembly and again last week in Oslo, and as Secretary Clinton 
spelled out earlier this week, this administration is committed 
both in word and deed to a new era of principled engagement 
with the world. Our decision to join the U.N. Human Rights 
Council earlier this year is one element, but we fully realize 
the challenges we face in engaging with the U.N. on human 
rights issues. All too often, the U.N. has been a venue for 
government to play politics and exploit grievances. In deciding 
to join the Human Rights Council, our intention is to challenge 
these practices and to make the council a venue for advancing 
the interests of vulnerable people around the world.
    Second, our engagement at the U.N. and elsewhere is guided 
by our own history and a bipartisan commitment to the human 
rights agenda. The Founders of this country drafted a 
Constitution that was predicated on our commitment to human 
rights and fundamental freedoms, and in my written testimony I 
spell out a range of historic landmarks, including the Four 
Freedoms speech that President Roosevelt gave in 1941; Eleanor 
Roosevelt's leadership, which you referenced in your opening 
comments; and a range of comments also by Democratic and 
Republican leaders, including President Reagan.
    The third element that is essential here today is that we 
apply the same international law principles to ourselves. That 
is the purpose of this hearing, and as President Obama has 
stated repeatedly, this must be a cornerstone of our human 
rights policy. We can and we should lead by example, meeting 
our own obligations under both domestic and international law 
and not shying away from self-reflection and debate about our 
own record. As Secretary Clinton again reaffirmed this week, 
holding ourselves accountable does not make us weaker but, 
instead, reaffirms the strength of our principles and our 
institutions.
    I want to just summarize where we are on the treaty 
process. The United States has ratified, as you know, a range 
of human rights treaties, including the Covenant on Civil and 
Political Rights, the Convention Against Torture, the 
Convention Against All Forms of Racial Discrimination, and 
Optional Protocols to the Convention on the Rights of the 
Child, as well as the Convention on the Punishment of the Crime 
of Genocide.
    These treaties require all parties to write periodic 
reports, and we have done so since the mid-1990s, and we will 
continue to do so, including reports on the Optional Protocols 
on the Convention on Child Soldiers, which will come out in 
January; on the Civil and Political Covenant, which we will 
submit next September; and, importantly, as part of the Human 
Rights Council, the Universal Periodic Review process, which is 
a new process. We are taking it seriously. We are committed to 
making sure that the United States engages in this process in a 
way that involves not only different agencies of the Federal 
Government, but that we also take it to the States, and we are 
an involved civil society. We had a meeting last month with a 
range of organizations, including the two that are testifying 
in the second panel, about how we can engage civil rights, 
human rights groups in this society in helping to make our 
answers stronger.
    So this is for us a fundamental piece of what we are trying 
to do and build a human rights policy. I am excited about the 
prospect of being involved in it, and I welcome your questions. 
Thank you very much.
    [The prepared statement of Mr. Posner appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much, Mr. Posner.
    Our next witness is Thomas Perez. He is the Assistant 
Attorney General for the Civil Rights Division at the Justice 
Department. He has had quite an illustrious career in public 
service. He previously served as the Secretary of Maryland's 
Department of Labor, Licensing and Regulation. Prior to that, 
he was a member of the Montgomery County Council, including a 
stint as council president. Earlier in his career, he served as 
Director of the Office of Civil Rights in the U.S. Department 
of Health and Human Services, and as Deputy Assistant Attorney 
General for Civil Rights. He also was a staffer to Senator Ted 
Kennedy, and we all know Senator Kennedy's reputation when it 
came to advocacy for human rights. Mr. Perez has a bachelor's 
degree from Brown University; a master's in public policy from 
the JFK School of Government and a law degree from Harvard Law 
School.
    Mr. Perez, thank you for joining us, and please proceed.

STATEMENT OF THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL 
  RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Perez. Thank you, Mr. Chairman. It is always a pleasure 
to be back in front of this Committee, and it is a particular 
honor to be in front of you and in front of my home Senator, 
and Senator Kennedy's spirit endures in this hearing because I 
am quite confident that this was an issue of great passion, 
among many passions in his life. So it is a pleasure and an 
honor to be here.
    It is also a pleasure to be here with my friend and 
colleague, Assistant Secretary Posner. We are working very 
closely with the State Department, with other agency 
colleagues, with other NGOs to ensure that civil rights and 
human rights are understood as being inextricably intertwined.
    From the time of our Nation's founding, in every generation 
there are Americans who have sought and struggled to realize 
the promise of our Constitution to ensure equality, equal 
opportunity, and fundamental fairness for all people, 
regardless of race, national origin, ancestry, gender, 
religion, or disability. And in recent years, as we remarked 
when we had the hearing in the Senate HELP Committee, Americans 
have worked in earnest to combat discrimination against 
individuals based on sexual orientation or gender identity. All 
of this ongoing work--our civil rights work--is firmly rooted 
in the human rights movement of the 1940s and 1950s. In fact, 
our civil rights movement began as a human rights movement, 
with giants such as W.E.B. Du Bois testifying, in 1947, before 
the U.N. General Assembly on the denial of the right to vote 
for African Americans, the continued pervasive discrimination 
in educational opportunity, and the need for recognition of 
human rights for African Americans. The Universal Declaration 
of Human Rights, which was adopted in December 1948, recognizes 
that domestic civil rights protections are integral to human 
rights.
    That civil rights are part and parcel of human rights was 
underscored for me on a very personal level when I had my work-
study job in college, working at the Rhode Island Commission 
for human rights. This was one of the oldest anti-
discrimination law enforcement agencies in the country. It was 
established in 1949, the same period when the Universal 
Declaration of Human Rights was adopted. The Commission had 
then and has now responsibility for adjudicating domestic civil 
rights complaints arising in Rhode Island, but like so many 
other State and local human rights agencies, it is known as a 
Commission for human rights, recognizing the inextricable 
intertwinedness--if that is a word--between civil rights and 
human rights.
    At the Federal level, the Civil Rights Division has, since 
its founding 1957, served as a primary force for realizing the 
promise of the Universal Declaration, having the responsibility 
to fully and fairly enforce the laws within its jurisdiction 
and to coordinate domestic civil rights enforcement across the 
Federal Government. Our national commitment to meeting our 
international human rights obligations is manifested by our 
enforcement of the Nation's civil rights laws and by our 
recognition that civil rights, nondiscrimination, and equal 
opportunity are indeed human rights.
    As President Obama has so eloquently made clear on many 
occasions, the only way we can promote our values across the 
globe is by living them at home.
    Today, the United States is party to three critical human 
rights treaties whose subject matters coincide with the work of 
the Civil Rights Division authorized under the Constitution and 
U.S. laws. They include the International Covenant on Civil and 
Political Rights; the International Convention on the 
Elimination of All Forms of Racial Discrimination, which is 
known as the CERD; and the Convention Against Torture and other 
Cruel, Inhuman, or Degrading Treatment or Punishment.
    Under the President's leadership, we are working closely 
with our colleagues at the State Department and elsewhere in 
the Federal Government to ensure that the reports required 
under these treaties are done in a timely and thorough fashion 
and that they accurately reflect both the strengths and areas 
of improvement in our civil and human rights enforcement 
program. We are actively participating in the newly revitalized 
interagency policy Committee led by the National Security 
Council to explore ways in which we can enhance our compliance 
with and implementation of those human rights norms by which we 
are bound. And we are committed to the continuing with, in 
close partnership with the State Department in carrying out the 
Government's first ever participation in the U.N.'s Universal 
Periodic Review process. This effort, which is led by the State 
Department, will include surveying human rights in the United 
States, holding listening sessions across the country, and 
compiling our findings into a report that will provide a useful 
snapshot of where we are and where we need to go to meet our 
constitutional and international obligations.
    At the same time that we are working to meet our 
international obligations, the Civil Rights Division at the 
Department of Justice is committed to pursuing our agenda of 
restoration and transformation, and one of the most important 
things that we can accomplish in the Civil Rights Division to 
meet our obligations under these treaties is to ensure that we 
are fully and effectively and impartially enforcing all of the 
civil rights laws that are on the books.
    We recognize that as this Nation's leading civil rights 
enforcement agencies, we cannot pick and choose which laws to 
enforce, but we must be meaningfully and vigorously engaged 
across the board. Our aggressive program of restoration and 
transformation, therefore, spans the breadth of our authority 
and includes a host of areas--voting, religious liberty, 
nondiscrimination in employment, and the like. It also includes 
prosecuting hate crimes, official misconduct by law enforcement 
officers, and human trafficking. It includes renewed 
enforcement of our laws ensuring equal access to housing, 
nondiscriminatory lending and credit, and equal opportunities, 
to name a few more--equal educational opportunities, I should 
say, to name a few more.
    Finally, it includes addressed the pressing civil rights 
challenges of the 21st century, including, for example, 
expanding Federal protection for LGBT communities in employment 
and the successfully enacted hate crimes law, which I was proud 
to be at the signing of roughly a month ago.
    I also note that within the Department of Justice the 
Criminal Division and the National Security Division share the 
commitment of the Civil Rights Division to conduct our 
activities in a manner that is consistent with the human rights 
treaties outlined above.
    Mr. Chairman, I look forward to working with you and other 
members of this Committee on all of these issues, and I thank 
you for your time and attention this morning.
    [The prepared statement of Mr. Perez appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much for your testimony.
    It was about a week ago when Senator Boxer invited me and 
Senator Lautenberg, Senator Wyden, and Senator Merkley to come 
by her home and have dinner and then watch a documentary film 
entitled ``Playground.'' It was a film that has not been 
released yet, but it was produced by a young woman named Libby 
Spears. She had begun this documentary in Asia on the issue of 
child trafficking and child prostitution and at one point was 
invited to meet with a person--I wish I remembered his name--in 
the United States who said to her, ``Why are you going to Asia? 
The country with the most child trafficking in the world in the 
United States of America.'' Unfortunately, there are certain 
places within our country where it is notorious, primarily the 
Northwestern part of the United States.
    The documentary focused on the trafficking of children for 
prostitution and sexual exploitation between the United States 
and Canada and other countries. It was, as you can imagine, a 
gripping and sad documentary, which led me to tell my staff to 
followup on this.
    Well, let us put this topic in the context of today's 
hearing. Shortly, you are going to be submitting a report on 
our implementation of the Optional Protocol on Child 
Prostitution. As you do that, as you reflect on this in terms 
of not only the clear violation of American law, but our clear 
treaty obligations here, can you put this in context as to what 
that treaty does to either enlarge our responsibility or create 
an added reporting requirement?
    Mr. Perez. The factual circumstances that you describe 
shock the conscience, and I had the privilege, Senator, Mr. 
Chairman, of working in my previous iteration in the Justice 
Department on a number of cases involving human trafficking, 
sometimes of adults, sometimes of children. And those cases--so 
many cases that came to our attention shocked the conscience, 
but those cases were the ones that really kept you up at night 
because you would see the exploitation of some of our most 
vulnerable people in this country.
    The Criminal Division, under the very able stewardship of 
Lanny Breuer, is taking the lead in the issue of the child 
prostitution rings that you discussed. We work very closely 
with them because we also enforce the human-trafficking laws, 
including the laws that were passed in 2000 and reauthorized a 
number of times since then. And so it is a joint venture led by 
the Criminal Division but assisted by the Civil Rights 
Division.
    And certainly the laws that are on the books give us a 
remarkable set of tools at our disposal to move forward, and in 
enforcing those laws, I think we are giving meaning to a lot of 
the treaty obligations that you so correctly referred to, and I 
think----
    Chairman Durbin. Can I zero in on one in particular?
    Mr. Perez. Sure.
    Chairman Durbin. In 2008, the U.N. Committee on the Rights 
of the Child criticized us for not having better data 
collection in the United States regarding the number of child 
prostitution victims. Are you familiar with that?
    Mr. Perez. I have not seen that particular report, but one 
of the things we talk about repeatedly in the context of 
trafficking is the data collection challenges, whether it is in 
the child prostitution context or the human-trafficking 
context. Collecting data has been something that we have 
strived to do. It is very, very difficult for a number of 
reasons, but it is one of those job one's. If you cannot 
collect the data, just like in the hate crimes context, the 
Hate Crime Statistics Act, data collection informs your 
prosecutive judgments and your investigative strategies. And 
so----
    Chairman Durbin. Are we doing something about that data 
collection?
    Mr. Perez. Yes, the Criminal Division is spearheading this 
effort, and we are certainly assisting in that enterprise.
    Chairman Durbin. Now, recently the State of New York passed 
a safe harbor law. Are you familiar with this?
    Mr. Perez. No.
    Chairman Durbin. This law shielded sexually exploited 
children from being charged with prostitution. The law diverts 
child prostitution victims into counseling and treatment rather 
than into juvenile detention. The New York law appears to be 
the first such law in the land.
    Are we contemplating similar action either at the Federal 
level or do you know of other action at the State level that 
would move us closer to our treaty obligations being fulfilled?
    Mr. Perez. I am not familiar with the New York law to which 
you reference, but I will certainly go back to the Criminal 
Division and bring that to their attention and report back to 
you on their analysis of the New York law and how it could 
affect potential efforts in the Federal regard.
    Chairman Durbin. Mr. Posner.
    Mr. Posner. Yes, if I could just add, there is another 
dimension of this which is the State Department Office on 
Trafficking in Persons has for the last number of years done an 
annual report that looks at the whole world but the United 
States. And Secretary Clinton announce earlier this year that 
the next report, which is 2010, will also include a chapter on 
the United States. So that will help, I think, us as well do 
some of the--compel some of the reporting and gathering of 
statistics that you talk about. That is the first piece.
    Then I think with that treaty and others, or with that 
report and others, we ought to be looking at laws and 
implementation, and we ought to take a broader policy look to 
say, as we find problems, as we identify them in this kind of a 
comprehensive report, what are the policies at a State and 
Federal level that we can take to address the problem?
    Chairman Durbin. I always thought this annual report from 
the State Department with our human rights report card on the 
world was an interesting, some would say audacious position we 
are taking, that we are going to stand in judgment of others. 
If I understand you now, we are going to add the United States 
into this calculation in terms of our human rights record, at 
least with respect to the treaty obligations we have accepted.
    Mr. Posner. At this point it is with regard to traffic in 
particular, trafficking, but we are also going to do the period 
review which is going to take the whole look at everything in 
2010, and then we will go from there.
    Chairman Durbin. Mr. Posner, I also note that there were 
some positive comments recently by the U.N. Special 
Representative on Children in Armed Conflict about two bills 
that we passed out of this Committee. That is good to know that 
people notice our efforts in that regard.
    What is the State Department doing to implement the Child 
Soldier Prevention Act?
    Mr. Posner. Well, again, one of the pieces now that the 
laws in place--and we regard those bills as a very good policy 
tool. We are beginning, as the laws require for us, to report 
on this. And so the trafficking report and the human rights 
report now are going to incorporate going forward those issues 
into what we do as a starting point. And we are beginning to 
work on a bilateral basis with governments to encourage similar 
legislation and similar attention to these issues. That is 
really critical as a part of our foreign policymaking.
    Chairman Durbin. We examined the child soldier issue. We 
identified countries that organizations have said have been 
involved in this, which we would generally characterize as our 
allies, some of whom we provide foreign aid to. And now we 
asked that this be part of the calculation of our future 
relationship with these countries. Is that going to be done?
    Mr. Posner. Well, as a first step, we are going to do the 
reporting, and then coming out of that, we are going to take a 
look at what it means in terms of our relation and our aid 
program, yes.
    Chairman Durbin. I might add that we tried, rather than to 
be punitive, to be constructive in terms of making certain that 
resources would be dedicated to repatriating these child 
soldiers and giving them the help that they need to come back 
to a normal life. So it is not just a matter of saying we will 
cut you off, but hoping that we can use some of the resources 
to stop the practice and to deal with those who have been 
victimized by it.
    Mr. Posner. We agree. This is a high priority for us, and 
both elements are right. We need to put pressure on governments 
to stop the practice, and we need to recognize that the victims 
need to be rehabilitated and need support. And there are 
various programs that my bureau is involved in in a number of 
places trying to do that.
    Chairman Durbin. Thank you.
    Senator Cardin.
    Senator Cardin. Well, Mr. Chairman, let me first point out 
that there would not be a Subcommittee on Human Rights and the 
Law but for the leadership of Senator Durbin, and I personally 
want to thank you for your commitment to put a focus in the 
U.S. Senate on human rights and the compliance by the United 
States on our human rights obligations, not just our treaty 
obligations but our obligations to what this Nation stands for.
    This is a historic moment that we are having this hearing, 
and I just really want to first thank you for doing this.
    Chairman Durbin knows of my interest and his interest in 
the Helsinki Commission and the process of the Helsinki 
Commission where we look at human rights and we put a spotlight 
on problems around the world. Our Commission has also put a 
spotlight on the United States because we do need to make 
advancements. We are not doing everything right. We can do a 
better job, and it is important that the international 
community understand that it is not only our interest in what 
is happening globally, but what is happening in the United 
States. So thank you for holding this hearing and thank you for 
your efforts that we have a Subcommittee that can focus on this 
issue.
    I first also want to applaud the Obama administration. I 
think the actions taken by the President shortly after he took 
the oath of office to make it clear that the United States 
would deal with issues such as torture, making it clear that we 
would not tolerate torture in the United States under any 
circumstances, that we were going to comply with our 
international obligations and our domestic laws, Attorney 
General Holder's actions early in making clear that prior 
opinions of counsel would no longer be applicable. Declaring 
the intent to close Guantanamo Bay was a clear message to the 
international community. And Secretary Clinton's comments this 
past week about the importance of human rights was a welcome 
message. So I applaud the administration.
    Now, let me get to some of the specifics. I think the point 
that Chairman Durbin made about these reviews that are required 
by law--and trafficking is an area where the United States has 
taken a major leadership role internationally and has changed 
the attitude internationally on trafficking, and we now have an 
action plan in many countries around the world. We know that 
there are countries that are the source of trafficking, and 
then it will not take place unless there is a destination 
country. And you have to have actions at both places.
    We do require by law that there be a report by the State 
Department on the actions of all countries in dealing with 
trafficking, and we appreciate that that review now will take 
place as to our current laws in the United States and the 
actions taking place in the United States.
    We do by law require you to do human rights evaluations of 
all countries. We do not have that by law required for the 
United States. And I think one of the things, Mr. Chairman, we 
might want to take a look at is whether we should not as a 
Congress institutionalize a review of our own actions and 
meeting standards on human rights as well as the trafficking 
issue. And I would welcome thoughts as to whether we can do 
this administratively, whether Congress should weigh in so we 
institutionalize. But these reviews need to be given more 
attention, more attention in the United States and more 
attention internationally. And I am afraid that we have not 
used the reviews generally on human rights as effectively as we 
could.
    A lot of work goes into it, but I think we need to have a 
more effective use of these reviews. And it would certainly 
have more credibility if the United States was part--if we 
reviewed actions in our own country with the same standards we 
use in the international community.
    Let me just question you on some of the statements that you 
have first, Mr. Posner. The Convention on the Elimination of 
All Forms of Racial Discrimination, I appreciate the fact that 
you said that we will communicate on a regular basis as 
required by the Convention and give thorough reports, but that 
has not been the case in the past. The United States has been 
tardy in submitting its reports, and it certainly has not 
provided detailed information.
    There have been criticisms of the U.S. compliance with the 
treaty obligations in racial profiling and the manner in which 
we treat juveniles. These issues have been raised in the past 
along with how Katrina was handled internationally, 
perceptions--not only perceptions, but reality.
    Can you just elaborate a little bit more on our commitment 
to comply with this treaty as far as listening to the concerns 
that are being raised and giving a more timely and detailed 
response to the reporting?
    Mr. Posner. Yes, Senator. Thank you for asking the 
question. I think there are different approaches to how you 
look at these treaties and our reporting. One approach is to 
say this is something that is required by the U.N. or somebody 
and let us do it de minimis. Let us tell them what we need to 
tell them and tell them what the laws are, et cetera, but it is 
really not about us.
    And there is another approach which is the approach that I 
favor and this administration, the President has articulated, 
which is to say let us actually take a look at the underlying 
issues and figure out how we can use the reporting process to 
improve our own record.
    This is a great country, and we have a great democratic 
constitutional system, but there is always room for 
improvement. And we ought to use these reporting 
opportunities--and view them as opportunities--to take a look 
at our own performance and say where there are shortcomings and 
how do we address them at a Federal and at a State level. It is 
easier to say that than to do it, but beginning with the 
Periodic Review this year and the review of the Civil and 
Political Covenant, and then in subsequent years we are going 
to come back to the Convention on Racial Discrimination, the 
Convention on Torture, and we are going to look to see how do 
we both engage various Federal agencies that need to be part of 
this, how do we engage the States, and how do we take advantage 
of expertise of groups like the Leadership Conference on Civil 
Rights to figure out--and Wade Henderson's testimony lists a 
number of things that I think we need to be looking at when we 
come back to the review of the racial discrimination treaty.
    So I do not have the particulars now of what we are going 
to do, but I can assure you that our intention is to be 
forthcoming, honest in our evaluation, to be inclusive in the 
approach, and to use it as an opportunity to figure out what we 
need to change.
    Senator Cardin. Thank you.
    Mr. Perez, in your written comments--you were unable 
because of the clock to give all of your statement. I just want 
to underscore two points and then ask a very quick question, 
and I know the Chairman is going to be a little lenient on me 
because I spent my first minute complimenting him. I am sure I 
can get an extra----
    [Laughter.]
    Chairman Durbin. Take your time.
    Senator Cardin. But I really want to compliment you for 
taking this opportunity to continue your commitment in the 
Civil Rights Division and the Department of Justice is 
committed to pursuing a more robust approach to civil rights 
enforcement and accomplishment, that you are committed to 
ensuring full political participation by qualified voters in 
our democratic process through enforcement of our voting rights 
laws, and engage in affirmative programs to reinvigorate our 
enforcement of Title VI of the Civil Rights Act of 1964. That 
is in your written statement, and I just really want to put a 
spotlight on that because you and I have talked about this, and 
we are very much supportive of the Department of Justice and 
the Civil Rights Division doing its traditional role in these 
very important areas.
    I have one specific question which deals with the torture 
treaty. When the Senate ratified that, they referenced 
amendments to our Constitution 5, 8, and 14 as saying that it 
is how we interpret the Convention Against Torture. That seemed 
to be adequate at the time, but now that I look how the Bush 
administration tried to justify torture, which I think was 
against our Constitution and our laws, but clearly against the 
Convention, do we need to take a better look at the treaty to 
make sure that it is clear that we are in compliance with the 
international agreements? And, second, does the statute of 
limitations--that is not mentioned here--cause any concern as 
to whether we would be restricted in a 5-year statute of 
limitations, which is generally used? And do we need to take 
further action in order to make it clear that torture is not 
going to be permitted?
    Mr. Perez. Thank you for your questions, and thank you for 
your longstanding leadership, not only for the Nation but also 
in the State of Maryland on civil rights issues, Senator.
    The torture issues are very, very critical, and what we 
have observed most recently, for instance--and this was a 
Criminal Division prosecution in the Southern District of 
Florida of Chuckie Taylor, the son of Charles Taylor of 
Liberia, under the Federal statutes that you enacted. In that 
particular context, actually in the briefs there was reference 
to the treaty that you just referred to, and so I think it was 
an example of where Federal law was informed by our treaty 
obligations and actually resulted in a very successful 
prosecution of an individual who had engaged in heinous acts. 
And so that was, I think, a very good example of the interplay 
between our treaty obligations and Federal laws that were 
enacted that really reflect those values embodied in those 
treaty obligations.
    As it relates to the statute of limitations question, I 
would need to study that further because I have not really 
studied that in any detail, and I am reluctant to give what 
prove to be uninformed answers. But I am very committed to 
getting back to you on that.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. I have been here 
a while now. I did not know this rule. How many seconds extra 
do I get for every second I compliment you?
    Chairman Durbin. Two. It is a bonus.
    Senator Franken. OK. Well, in that case, thank you, Mr. 
Chairman, for your leadership and for calling this 
exceptionally important hearing. This is the first hearing in 
the Senate on our compliance with human rights treaties, and so 
I am proud to be a Senator on this day, and I am proud to be a 
Senator from Minnesota. My State has a long history in the 
fight for human rights. We are the first State in the Nation to 
have a center for the rehabilitation of victims of torture, and 
we consistently welcome more refugees to our State than any 
other State per capita, I think the second most in the Nation.
    My predecessor, Paul Wellstone, was a consistent and 
unabashed advocate for human rights, authoring and passing, for 
example, the Trafficking Victims Protection Act in 2000. This 
has been bipartisan from Senators from our State, and I hope to 
keep that tradition alive.
    Let me ask a few questions first of Mr. Posner. Last week, 
in a hearing I asked Secretary Napolitano about the detention 
of asylum seekers, and I know you know a lot about refugees 
seeking asylum. Now, this issue is very relevant at this 
hearing. Let me explain. You can be a human rights activist who 
was jailed and tortured in another country, get a visa to come 
to the United States, enter the country legally, and ask for 
asylum the second you arrive here, step off the plane, and you 
will be mandatorily detained. In fact, even after you have 
convinced two Government officials, the customs agent and 
asylum officer, that you have a credible fear of returning 
home, the Government can continue to detain you. This happened 
to thousands of asylum seekers in this country.
    I know that you are scheduled to report on the United 
States compliance with the International Covenant on Civil and 
Political Rights. Do you think that these practices are 
consistent with Article 9, Section 1 of the International 
Covenant on Civil and Political Rights, which this Congress 
ratified in 1992 and which prohibits arbitrary detention?
    Mr. Posner. This is, Senator, as you know, something that 
in my previous life I worked on quite a bit, and I do still--
this is not the focal point of what I am doing in the State 
Department, but it is something that I think we as a Government 
need to take a very close look at. We will take a look at it 
both in the context of reviewing the Civil and Political 
Covenant, but also in this Periodic Review.
    One of the things we are going to do--and I think it 
mentioned it in the opening statement--is to have a series of 
consultations around the country starting next month in New 
Orleans looking at some of the Katrina issues. And others are 
going to be set in different parts of the country. At least one 
of those reviews will be designed to look at a range of 
immigration and refugee issues in particular, and this is 
something that is very close to my heart.
    Senator Franken. I know that.
    Mr. Posner. And I can assure you we are going to look at 
it.
    Senator Franken. Then another point on that. Once an asylum 
seeker is detained and the Department of Homeland Security 
decides to keep him in detention, that asylum seeker cannot 
appeal his detention to an immigration court. That is an 
unappealable decision. I do not think that is consistent with 
Article 9, Section 4 of that treaty, the requirement that 
anyone detained be afforded access to a court to challenge his 
or her detention.
    Could you look at that as you conduct these hearings and as 
you think more about this issue?
    Mr. Posner. We certainly will, and I would say just 
generally I am not up to speed on all of the details of this 
right now.
    Senator Franken. Sure.
    Mr. Posner. But I would say in general one of the things I 
certainly noticed, we noticed over the last 8 years, 9 years, 
is that refugee issues became very much part of a national 
security debate, and in that context, there was a lot of 
overreaching. And I think part of our challenge as an 
administration coming in is to take a fresh look at all those 
things. So that is what we will do.
    Senator Franken. Thank you.
    Mr. Perez, first of all, ``intertwinedness'' is not a word.
    [Laughter.]
    Mr. Perez. OK. Thank you. I looked at you when I said that, 
Senator.
    Senator Franken. I know.
    Mr. Perez. I do not know why I looked at you when I said 
that.
    Senator Franken. I got to ``interconnectivity.''
    Mr. Perez. That works.
    Senator Franken. You referred to the HELP Committee hearing 
where you very rightly supported the Employment 
Nondiscrimination Act, at least in my mind, which would 
prohibit discrimination on the basis of sexual orientation and 
gender identity. Do you have a position on the ratification of 
the Convention on the Elimination of All Forms of 
Discrimination Against Women? You did not mention CEDAW in your 
testimony, but I believe that we are one of just a handful of 
nations that have refused to ratify the Convention, and on this 
point we are really in the same league as Sudan and Iran. Do 
you have a position on that? Does the administration have a 
position on that?
    Mr. Posner. Maybe I can answer that. There are several 
human rights treaties that we have signed, the U.S. has signed 
but not ratified, and I think the Commission Clinton has made 
it clear that this treaty, CEDAW, the Convention on Elimination 
of Discrimination Against Women, is a priority--in fact, the 
first priority. So one of the challenges we have is coming up 
here and finding 67 of you to support it, but we are committed 
to doing it, and we are in the process of reviewing how we are 
going to go about coming up here and asking for it. But it is 
something that the Secretary is very, very committed to, as am 
I.
    Senator Franken. Very good. Thank you.
    Chairman Durbin. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Two months ago, Senators Leahy, Cardin, Franken, Kerry, and 
myself asked your respective Departments for recommendations on 
how to bring the United States back into compliance with the 
Vienna Convention on Consular Relations. The U.S. Supreme Court 
in Medillin v. Texas determined that the Congress must act to 
address the fact that the United States is currently out of 
compliance with its Vienna Convention obligations, as found by 
the International Court of Justice in the 2004 Avena case. In a 
recent letter, the United States Council for International 
Business explained the dangers of the situation and said, ``The 
security of Americans doing business abroad is clearly and 
directly at risk by U.S. noncompliance with its obligations 
under the Vienna Convention. Overseas employees of the U.S. 
business community as well as other Americans traveling or 
living abroad need this vital safety net.'' And John Bellinger, 
the legal adviser to the State Department under Secretary Rice, 
made the same point in a recent New York Times op-ed piece. I 
would ask first, Mr. Chairman, that various materials relevant 
to this issue be placed in the record.
    Chairman Durbin. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Feingold. So given that background, do you agree 
that addressing this issue is critically important to the 
protection of Americans abroad? And when can we expect a 
response to our letter asking for your Departments' input on 
how to bring the United States back into compliance with the 
Vienna Convention?
    Mr. Perez. I absolutely agree that it is a critically 
important question because it implicates foreign nationals here 
and Americans abroad, and I appreciate your leadership in this 
issue. I have reviewed your letter and consulted with others in 
the Department.
    As you well know, it is a very complex question because it 
implicates both what we do at the Federal level and then what 
States do, and the reason for the delay--and I apologize for 
that--is simply the complexity of the issue, because as you 
know the Medillin case basically stood for the proposition that 
there are limits to what the Federal Government can say to a 
sovereign state. And so we are attempting to move forward, 
recognizing those complexities, to come up with a series of 
solutions that will address the issues that, you correctly 
point, ensure the security of Americans abroad and ensure our 
compliance with our treaty obligations here at home. I am 
continuing to consult with our colleagues at the Department, 
and we hope to get a response to you at the earliest 
possibility opportunity. And I can assure you that there is 
robust discussion underway within the various relevant 
components of the Department and our sister agencies as we 
address how best to address the myriad of complexities in this.
    Senator Feingold. What kind of timeframe are you suggesting 
for a response to the letter?
    Mr. Perez. I will consult with my colleagues and attempt to 
get you an answer within the next few days about when that 
timeframe would be.
    Senator Feingold. That is good.
    Assistant Secretary Posner, according to an Executive order 
issued by President Obama in January, the U.S. Government must 
``provide the International Committee of the Red Cross with 
notification of and timely access to any individual detained in 
any armed conflict'' and in U.S. custody. The New York Times 
recently published a story alleging that there is a secret 
detention facility in Afghanistan to which the ICRC does not 
have access and where detainees allege that they have witnessed 
abuse as recently as this year. So let me ask you: Does the 
ICRC have access to all U.S. detention facilities in 
Afghanistan? And what does it mean to provide timely access to 
the ICRC?
    Mr. Posner. Senator, I have seen those articles, and I am 
going to have to refer back and give you a written answer to 
that. I am not the person who has the most timely information 
on that.
    Senator Feingold. When can we expect that answer?
    Mr. Posner. Soon. I will push hard to get that answer to 
you in the next few weeks.
    Senator Feingold. OK. Assistant Secretary Posner, again, as 
you know, 21 years ago the United States became a party to the 
Convention on the Prevention and Punishment of the Crime of 
Genocide, and you actually mentioned that treaty in your 
statement. The ratification of the treaty was obviously a 
momentous occasion, not just because it was the first human 
rights treaty passed by the U.N. General Assembly, but also 
because it was a signal to the world that the United States 
would never again sit back and watch as genocide took place. 
And I believe that when the United States ratified this treaty, 
it agreed to take decisive action to help prevent and punish 
genocide. I am raising this with you, perhaps obviously, 
because in 2004 the Bush administration made a determination 
that genocide had been committed in the Darfur region of Sudan 
and stated at the time that genocide could still be occurring.
    So after making that determination, what obligation do you 
believe the United States has to attempt to halt the genocide? 
And do you believe that the United States has fulfilled its 
legal commitment in this instance?
    Mr. Posner. Senator, we have, obviously, in the last 
several years watched painfully as hundreds of thousands of 
people have been killed in Darfur and several million have been 
exiled or internally displaced. I do not think any of us are 
satisfied with the way in which it has unfolded or believe that 
there cannot be more done.
    I do not view this so much as a legal obligation, but I 
think it is an absolute obligation of leadership in the world 
for us to do everything possible to address the genocide that 
occurred in Darfur and the continuing suffering. It is a tragic 
situation and one that in some ways continues to deteriorate.
    So we are committed to trying to find the right answer 
there. The alternatives are tough, and there is also a growing 
concern--and I think this has been part of the challenge 
recently--in a disintegration of the country between north and 
south and General Gration is preoccupied, understandably, with 
trying to hold the country together. But my view would be--and 
I think it is the administration's view--that we have to do 
both. We have to be engaged in trying to hold the country 
together and prevent a further erosion of peace in the south, 
but at the same time continue to focus on the genocide and 
violence----
    Senator Feingold. Of course, I am aware of and deeply 
involved in all those policy arguments, but my question to you 
had to do with our legal obligation under the Genocide 
Convention. It is a narrower and important question. What are 
the ramifications of the position we have taken vis-a-vis the 
Genocide Convention in Sudan, particularly if we believe the 
genocide is still happening in Darfur?
    Mr. Posner. I think the legal obligation is that we have to 
respond to end the genocide. How you do it and what that means 
in practical terms I think is harder.
    You know, there has been a discussion, as you know and have 
been involved in for a long time, about what are the military 
options, what are other options in terms of sanctions. All of 
those things are still being discussed and on the table.
    Senator Feingold. Does this administration continue to 
believe this is genocide occurring under the Genocide 
Convention?
    Mr. Posner. I would have to get back to you on that. There 
is no question and various administration officials have said 
that genocide occurred in Darfur and there are continuing gross 
violations occurring to this day. I do not think the 
determination of whether the word still applies is really the 
key thing. It is an unacceptable situation now, and we need to 
be operating with all of our energies to prevent the continued 
violence and killing and disappearance and rape that 
characterizes Darfur today.
    Senator Feingold. Thank you.
    Chairman Durbin. Thank you, Senator Feingold.
    I want to thank this panel. This is not the last time we 
will probably call on you, because I think that we feel--and I 
think you share this feeling in the administration--that as 
painful as some of these questions may be, it is appropriate 
that we ask them and establish that we are trying our best to 
live up to the very standards that we have agreed to and that 
we suggest the rest of the world should abide by. So thank you 
very much for your service.
    Mr. Posner. I agree.
    Mr. Perez. Thank you for your time, Mr. Chairman.
    Chairman Durbin. We are honored to welcome on our next 
panel two of our Nation's leading human rights and civil rights 
advocates. I am going to introduce them as they are sitting 
down in the interest of time.
    The first one who will testify is Elisa Massimino. She is 
the President and CEO of Human Rights First, one of the 
country's most prominent and well-respected human rights 
organizations. Ms. Massimino joined Human Rights First in 1991 
and was previously the organization's Washington Director. Ms. 
Massimino is also an adjunct professor at the highly regarded 
Georgetown University Law Center. She holds a bachelor's degree 
from Trinity University in San Antonio, Texas, a master's 
degree in philosophy from Johns Hopkins University, and a law 
degree from the University of Michigan. I want to especially 
note that Ms. Massimino has been very supportive of our 
Subcommittee efforts since it was created in 2007. Although we 
work very closely with Ms. Massimino, this is her first 
appearance before the Subcommittee.
    I will introduce the next witness and then ask that they 
both take the oath.
    A personal friend and a real leader, I am just honored that 
he is here today. Wade Henderson is President and Chief 
Executive Officer of the Leadership Conference on Civil Rights; 
the largest and oldest civil rights coalition in America. Mr. 
Henderson is also a law professor at the University of the 
District of Columbia. Previously, he was the Washington Bureau 
Director of the NAACP and Associate Director of the ACLU's 
Washington office. He has a bachelor's degree from Howard 
University and a law degree from Rutgers University School of 
Law.
    If I could ask you both to stand for the oath, please. Do 
you affirm that the testimony you are about to give is the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Ms. Massimino. I do.
    Mr. Henderson. I do.
    Chairman Durbin. Thank you. Let the record reflect that 
both witnesses answered in the affirmative.
    Ms. Massimino, please proceed.

  STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF EXECUTIVE 
          OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC

    Ms. Massimino. Thank you, Mr. Chairman, and I thank the 
Committee for holding this important hearing. We are just 
profoundly grateful to you, Senator Durbin, for your leadership 
on so many human rights issues and, in particular, for the 
central role that you played in creating this Subcommittee. We 
think the Subcommittee's work signals a new approach and 
thinking about human rights in this country and that it will 
help educate Americans about their human rights and ensure that 
the U.S. Government views its human rights treaty requirements 
as a part of its domestic law. This is what the Constitution 
requires, so it is particularly fitting that the Judiciary 
Committee now formally can look at these issues explicitly. In 
the many years since the United States first started ratifying 
human rights treaties, I think this is the first hearing that I 
can remember ever explicitly addressing these issues, and we 
hope it is the first of many.
    I also want to welcome the attention of the Government 
witnesses to these issues. I really do not Congress could have 
any two better partners in this effort than Tom Perez and Mike 
Posner, both of whom really deeply understand the importance of 
implementation of human rights commitments. So we look forward 
to working with them and with you to further this.
    You mentioned the Eleanor Roosevelt quote about human 
rights beginning close to home, and it is particularly fitting. 
It should be on this Committee wall somewhere because the human 
rights treaties are intended to protect people close to home 
against government abuses of their rights. They are the supreme 
law of the land under our Constitution, but most Americans have 
never heard of them, and most government agencies who have the 
jurisdiction over the subject matter that is covered in those 
treaties have never heard of them either.
    Historically, the U.S. Government has kept the examination 
of human rights treaties behind a fence at the State 
Department, where they have been treated primarily as a matter 
of foreign policy. And for many years, Congress took the same 
approach, limiting jurisdiction over these issues--as human 
rights issues--to the committees that oversee the State 
Department and foreign relations.
    But that approach misses Eleanor Roosevelt's point. The 
U.S. Government has to understand that human rights laws are 
part of our domestic law, and Congress and the executive branch 
need to work together to bring these obligations into the 
mainstream of the domestic agencies with primary jurisdiction 
over their subject matter.
    Last week, we celebrated the 61st anniversary of the 
Universal Declaration of Human Rights, which is our foundation 
document setting out the principles that the human rights 
treaties are intended to operationalize as standards by which 
to judge all governments. And as an organization based in the 
United States, my organization, Human Rights First, has focused 
particular attention on making sure that the U.S. lives up to 
those obligations. Ensuring compliance with human rights treaty 
obligations strengthens the U.S. effort to advance human rights 
abroad. And as Secretary Clinton said in her speech on Monday, 
we have to lead by example. There is just no substitute for 
U.S. global leadership on human rights. Without it, the agenda 
crumble and repressive governments operate with greater 
impunity, and really the very fabric of the norms that are 
enshrined in the Universal Declaration starts to fray. When the 
U.S. itself violates these norms--or sets them aside for 
expediency's sake--the global consensus erodes. And as 
President Obama said in Oslo last week, ``we honor those ideals 
by upholding them not when it's easy, but when it is hard.''
    We can have many hearings--and I hope we will--about the 
distance, the gap between our obligations and ideals and the 
current reality in the United States, but my testimony, which I 
hope you will accept in full in the record, outlines a strategy 
going forward to create a structure to ensure greater fidelity 
to those ideals and obligations in the future. And that is 
based on three components which I will just summarize briefly.
    First is the executive branch structure to enhance 
compliance, and you have heard about the Interagency Task Force 
on Treaty Implementation. I remember when the Interagency Task 
Force was formed, and we had high hopes for an expansive agenda 
for that Interagency Task Force. To my knowledge, it focused 
primarily on reporting externally to U.N. bodies and inquiries 
abroad about how we were complying with our treaty obligations, 
and that is very important. And as you mentioned, under 
President Bush we got current on our treaty reporting 
requirements. It is very important.
    But, really, for there to be a revolution in how we think 
about human rights in the United States, there has to be a lot 
more, and we would propose that the executive branch create a 
structure that will do a few important things: ensure that the 
legislation that is promoted by the administration or on which 
the administration is taking a position is vetted for 
conformity with treaty obligations; educate State and local 
governments and the broader public about their rights and 
responsibilities under human rights treaties; develop and 
execute a plan to monitor law, policy, and practice at the 
State level to assess conformity with human rights obligations; 
conduct an annual review of the reservations, understandings, 
and declarations to the treaties; and ensure that domestic 
agencies with the jurisdiction over this subject matter really 
have content experts who understand that this human rights law 
is part of their obligation.
    I see my time is already up, so I am going to leave the 
rest of the discussion about what Congress can do for the 
questions and answers. Thanks.
    [The prepared statement of Ms. Massimino appears as a 
submission for the record.]
    Chairman Durbin. Thank you.
    Mr. Henderson.

  STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE 
 OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, WASHINGTON, DC

    Mr. Henderson. Thank you, Mr. Chairman, for this really 
important hearing, and thank you for having me here today on 
behalf of the Leadership Conference on Civil and Human Rights, 
a coalition of over 200 national organizations committed to 
building an America that is as good as its ideals. I appreciate 
your including the formal written statement in the record 
today, so thank you for that as well.
    We believe that human rights instruments, like the 
Universal Declaration of Human Rights and the Convention on the 
Elimination of All Forms of Racial Discrimination, are not 
merely aspirational statements but effective tools for 
illuminating inequities here at home and abroad. Indeed, as Tom 
Perez noted in the previous panel, while it may have gone by a 
slightly different name, our Nation's modern civil rights 
movement was very much at its heart a human rights movement.
    The Leadership Conference itself was founded at the dawn of 
this movement, just 2 years after the adoption of the Universal 
Declaration and only 5 years after the Holocaust and the 
internment of Japanese Americans on U.S. soil. Our leaders were 
motivated not only by the standards articulated in our Nation's 
founding documents, but those in the Universal Declaration as 
well.
    Now, with that in mind, and with our 60th anniversary 
approaching, we have chosen to honor the legacy and the 
foresight of our Founders by fully incorporating the term 
``human rights'' into our name. In January of 2010, we will 
officially become the Leadership Conference on Civil and Human 
Rights. Civil rights are human rights, but we also know that 
the concept of human rights extends beyond those personal 
rights guaranteed by the U.S. Constitution, to include 
protections such as the National Right to Education for All.
    Moving more directly to today's subject, I want to thank 
you for this hearing again and for your efforts in general to 
step up Congress' oversight of our domestic human rights 
obligations. The fact that this Subcommittee did not even exist 
prior to 2007 points to a troubling fact. Congress has not done 
enough to ensure that the United States lives up to its treaty 
obligations, which represent not just mere ideals but the law 
of the land. Today's hearing represents an encouraging turning 
point.
    We are also encouraged that the United States has been 
working to reclaim the leadership on international human rights 
matters by joining the UN's Human Rights Council, signing the 
Convention on the Rights of Persons with Disabilities, and by 
the effort of U.S. NGOs to support the Senate's ratification of 
the Convention on the Elimination on All Forms of 
Discrimination Against Women.
    But as our Nation takes on these new commitments, we cannot 
lose sight of those that we have already made. As we reclaim 
our leadership on human rights, our shortcomings at home are 
not only harmful, they also undermine our credibility with 
other nations, and as they have in the past, they also serve as 
easy fodder for opponents who want to divert attention from 
even worse wrongdoings of their own.
    With that in mind, we would strongly encourage Congress to 
look at the following issues through a lens of our 
international treaty obligations:
    One issue that clearly implicates our international treaty 
obligations is that of racial disparities in our criminal 
justice system, particularly the one in sentencing for crack 
and powder cocaine, which has had a disproportionate effect on 
African-Americans and has helped give the United States the 
largest prison population in the world.
    To be sure, the sale of any cocaine product should be 
punished, but I think we can all agree that it should not be 
done in a disproportionately harsh and discriminatory manner, 
and that is the one area where the U.S. Sentencing Commission 
and the international community clearly agree.
    A second area is with respect to D.C. residents who 
currently face taxation without representation and lack a vote 
in our National legislature in violation of the most important 
right that citizens have in a democracy. International human 
rights bodies have taken notice, and the disenfranchisement of 
D.C. residents continues to undermine our efforts to promote 
democracy elsewhere.
    Third, the United States clearly needs a truly independent, 
bipartisan, national civil and human rights institution. For 
many years, we had one in the form of the U.S. Commission on 
Civil Rights, but the Commission has been weakened by political 
partisanship and is now a hollow shell of its former self. It 
is in dire need of overhaul.
    Fourth, both international human rights standards and our 
Nation's civil rights movement have long recognized that the 
right to form unions plays a critical role in ensuring 
equality. As A. Philip Randolph, one of our founders, once 
said, ``The two tickets to a better life are a voter 
registration card and a union card.'' But as workplaces change 
and as our Nation's policies fail to keep up, it is becoming 
harder and harder for all workers to organize, in violation of 
our obligations under the Universal Declaration, among other 
instruments.
    Finally, and sadly, the United States has clearly not taken 
seriously its human rights obligations toward the indigenous 
peoples of this country, the first Americans, in clear 
contradiction of well-established human rights principles and 
despite repeated condemnations by international human rights 
bodies.
    We strongly believe that civil and human rights must be 
measured by a yardstick both at home and abroad. On issues such 
as these, Congress must step in and make sure that our country 
is living up to the standards that we are trying to establish 
throughout the rest of the world.
    Thank you, Mr. Chairman, and I look forward to the 
questions.
    [The prepared statement of Mr. Henderson appears as a 
submission for the record.]
    Chairman Durbin. Thank you both. Mr. Henderson, thank 
goodness for your voice. The fact that you are here so 
frequently and the message that you bring is an important part 
of this democratic process. I do not know what we would do 
without you, and I am glad you are here today.
    Ms. Massimino, will you follow up on that? Mr. Henderson 
has been rather specific. Could you put it in this context? I 
am sure that, with your background in human rights and meetings 
with others from around the world, occasionally you will get 
into this exchange about how before the United States judges 
anyone else, why don't you take care of your own situation? You 
have heard Mr. Henderson's list. What would you add to it?
    Ms. Massimino. Well, I think we are in the context of the 
fight with al Qaeda in the last 8 years, I mean, this has been 
one of the biggest set-backs to U.S. global leadership, are the 
steps that the United States took to diverge from the Geneva 
Conventions, from the Convention Against Torture.
    You know, shortly after 9/11, when these measures started 
to come to light internationally, I was at a meeting with many 
of my counterparts from all around the world--Asia, Africa, the 
Middle East--all of whom are on the front lines of the struggle 
for human rights and democracy in their own countries. And when 
I asked them then what can we do to help you, they all to a 
person said, ``You have got to get the United States back on 
track, get your own house in order, because we need the United 
States to be a strong global leader on human rights.'' Without 
it, as I said, the consensus erodes and the norms become less 
than universal.
    I was just at a conference last week in London with human 
rights activists and government leaders from around the world, 
and the topic was: Are universal human rights really universal 
anymore? And I really do not believe we would have had that 
conversation before the missteps of our own country with 
respect to torture and abuse of prisoners and the Geneva 
Convention problems, the divergence from the Geneva Conventions 
that we had.
    So we still have work to do there, and the announcement 
yesterday with moves to close Guantanamo is a welcome step. But 
as you know, the devil is in the details, and the world is 
watching how we resolve these problems from accountability to 
prolonged, indefinite detention without charge. So we have to 
be vigilant.
    Chairman Durbin. Are there any other areas? Not that I want 
to diminish that, but there are so many different fronts that 
we can discuss. I spoke earlier about child trafficking. I am 
really asking you if your list would go to include any other 
topics that Mr. Henderson did not touch.
    Ms. Massimino. Oh, it is a very long list and I----
    Chairman Durbin. It sure is.
    Ms. Massimino. In fact, I think it was a wonderful 
opportunity that you provided to the public to solicit 
testimony from so many groups who are focused on this issue, 
and I have begun to look at all of the submissions. My own 
organization, as you know, we touched on this earlier--I think 
Senator Franken raised it--about the discrepancy between our 
obligations under the Refugee Convention and the protocol that 
the U.S. is a party to and how we treat refugees and asylum 
seekers in this country. Next year will be the 30th anniversary 
of the Refugee Act, and I think it would be a particularly 
appropriate time for this Subcommittee to look at the specifics 
of our obligations under that treaty and whether or not we are 
living up to them under our own domestic legislation.
    There are many, many other areas that we could talk about, 
and I think I would--as a proud member of the Leadership 
Conference on Civil and Human Rights, Wade and I work closely 
together on a whole range of these issues.
    One on which I think we ought to--that this Committee could 
focus particular attention on which has the added benefit of 
enabling us to--the State Department and the Justice Department 
to join together and share our wisdom about how we are dealing 
with these issues with other countries is on bias-motivated 
violence and hate crimes. We obviously have taken a step 
forward there with our laws recently with the Matthew Shepard 
Act, but now we need to implement that, collect the data and 
demonstrate that it makes a difference on the ground.
    Those mechanisms and structures that we develop in 
Government to do that can be shared with other nations who also 
are facing in many places a disturbing rise in bias-motivated 
violence. So I would add that to the list as well.
    Chairman Durbin. Mr. Henderson, before I rechaired this 
Committee, I for a brief time was the Chairman of the Crime 
Subcommittee, which Senator Specter now chairs, of the 
Judiciary Committee. To demonstrate a certain 
``intertwinedness'' between that Subcommittee and this 
Subcommittee----
    [Laughter.]
    Chairman Durbin. One of the early hearings we had was on 
the crack/powder cocaine disparity. The administration has come 
out against the disparity and called for a 1:1 sentencing 
guideline. I have introduced legislation along that line, and 
it now is pending before the Committee, and we are working with 
the other side to see if we can find any common ground so that 
this can move in a fairly quick fashion.
    But can I step back for a second from that and say that, 
even before that disparity, we could see racial disparities 
within our system of justice. As bad as this is, as much as it 
has aggravated the situation--and I plead guilty as one of 
those who voted for it along with many others in the House who 
thought this was the right thing to do at the time, and I now 
realize how wrong we were. But this is the thing that you 
headlined as the first on your list and one that I have often 
asked of people aspiring to the bench and other law enforcement 
positions in our Government, to try to explain for a moment 
what this country is all about, where 12 or 13 percent of the 
population is African-American and it turns out that the 
numbers are just out of line in terms of those arrested, 
convicted, and incarcerated, as I said here 6:1.
    Can you step back for a moment, and be reflective and say 
what more can we do? I mean, we have made--for the record, we 
have made substantial progress.
    Mr. Henderson. Absolutely.
    Chairman Durbin. Witness my former colleague in the Senate. 
But can you tell me what more you think we can or should do?
    Mr. Henderson. Mr. Chairman, thank you for your question, 
but thank you for your incredible leadership on this really 
extraordinary issue. The fact that you have introduced a bill 
to address the crack/powder cocaine disparity, a bill in the 
Senate that is now the pending business of the Judiciary 
Committee, is extraordinary.
    You know, this disparity is one of our Nation's most 
glaring examples of injustice in the criminal justice system. 
It is one of the most fundamentally challenging civil and human 
rights issues facing the Nation today. The truth is that racial 
disparities and racial discrimination in our criminal justice 
system is a stain on American democracy, and it undermines the 
principle of equal justice under law. It undermines the 
confidence really that all Americans have in the fundamental 
fairness of our system. And it holds us up to ridicule abroad 
because we are challenged on the hypocrisy and the gap between 
what we say our principles are and what we do in practice.
    Now, you talked about the existence of racial 
discrimination within the criminal justice system, and indeed, 
it traces its legacy back to the period of slavery in American 
life. Yes, we have made as a country extraordinary progress in 
helping to reconcile that difference between America's ideals 
and American reality. But we still have a long way to go.
    Structural inequality and racial discrimination of the kind 
that the crack/powder cocaine disparity reflects in my view 
cannot be entirely excised even with the passage of your 
extraordinarily important legislation, because the numbers that 
you allude to are as much a reflection of the problems at every 
step of the criminal justice system. Who is arrested, who is 
prosecuted, and, ultimately, how those individuals are 
sentenced upon conviction is often a reflection of inherent 
bias in the system that can only be addressed by bringing it to 
the surface, making it an open issue in which the country 
discussed and seeks remedy. And we need to do so.
    Hence, this problem of racial profiling, which we also know 
exists, contributes to the very problem that you have talked 
about with the crack/powder disparity, because the truth is 
statistics of the U.S. Sentencing Commission and other bodies--
human rights organizations and internationally recognized 
bodies--shows that the distribution of those who use these 
products is far closer to and equal a system than the 
prosecution and conviction rate would suggest.
    So, you know, we thank you for your leadership in this 
area. It is important. Your effort to bring bipartisan support 
to this issue is extremely important. We were pleased at the 
Justice Sotomayor confirmation hearing that the Ranking Member 
of the Judiciary Committee, Senator Jeff Sessions, lifted up 
the issue of crack/powder cocaine with which he shares concern 
as a former U.S. Attorney. But, ultimately, the issue is how do 
we come together to make a decision about how to equalize these 
penalties in a way that makes sense given that the two products 
are pharmacologically so similar that the disparity both in 
sentencing and penalty obviously should not exist.
    So thank you for your effort to push this legislation, 
thanks for trying to make it a bipartisan issue, as it should 
be, because these kinds of disparities are not partisan issues. 
They are really national issues. And until we step back and 
really reflect on that and fashion solutions to the problem, we 
will not be able to make progress. But I think your leadership 
is really contributing to it, so thank you.
    Chairman Durbin. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, and once again I 
would like to compliment you on your comically ironic use of 
``intertwinedness.'' That was very good.
    Mr. Henderson, your discussion of the disparities in 
sentencing and the prison populations reminds me of Richard 
Pryor's discussion of justice, when he said that he visited a 
prison and it was ``Just us.''
    Let me turn to the Convention on Torture, if I might. In 
1994, the U.S. Congress ratified the Convention Against 
Torture, and the treaty prohibits countries from returning or 
deporting anyone to a country ``where there are substantial 
grounds for believing that he would be in danger of being 
subjected to torture.'' That is the quote from the treat.
    But our implementing regulations actually require someone 
claiming protection under the Convention to actually show ``it 
is more than likely that he would be tortured.''
    So, Ms. Massimino, doesn't our standard seem higher than 
the Convention's standard? And doesn't that create a problem?
    Ms. Massimino. Yes. But there are many problems I actually 
think that are even worse than the standard of proof about 
whether it is more likely than not or substantial likelihood, 
actually. What we have seen over the years since the treaty was 
formally ratified is a real erosion of the whole concept of a 
responsibility not to send people to torture and, in fact, 
efforts to get around that, to reduce the opportunity for 
people who are in U.S. custody, whether they are in U.S. 
custody abroad--this is another issue that we have to pay close 
attention to. The United States has asserted at times that the 
obligation not to return people to face torture does not apply 
if the person is outside the United States but in the custody 
of the United States.
    So you cannot have an adjudication about whether or not a 
person has a substantial--that there is a substantial 
likelihood that they would face torture unless that person has 
an opportunity to raise that claim in either a removal 
proceeding or any other kind of proceeding. Even in extradition 
proceedings, what we have found is that there is an inadequate 
level of protection, due process protection, for people to 
raise these claims, and it comes down to the discretion of the 
Secretary of State whether or not the person can be extradited, 
even if there is a magistrate finding that there is a more 
likely than not chance that the person will be tortured.
    Now, you know, the United States has cited this obligation 
in its refraining from sending the Uyghurs at Guantanamo back 
to China, and that is very welcome. But this is an issue that 
really needs a very close look at our--both in the extradition 
area and removal area to make sure that we have got sufficient 
procedures in place that will allow people to even raise these 
claims.
    In the context of refugee cases and asylum cases, often it 
is protection under the Convention Against Torture that is the 
most appropriate protection, and yet for many years our 
immigration judges did not even have the opportunity to make a 
judgment about that claim.
    So I think it would be very important for us to have a look 
at across the board, both when the U.S. acts internationally 
but also in removal proceedings. This was a problem in the Arar 
case, as you probably know, which people do not think of 
necessarily as an immigration case, but it was the failure to 
really have an opportunity--he raised a fear of torture when 
the United States said that it was not going to let him go back 
to his home country of Canada. And yet there was no procedure 
by which that could be adjudicated by an independent person.
    So you are right very much to focus on it, and I think when 
the United States reports on its compliance with the Convention 
Against Torture, we need to take very seriously the 
recommendations to reform our procedures.
    Senator Franken. So when we have in the past--and I hope 
not now, but when we have engaged in rendition, you are saying 
that one of the issues has been just due process, the ability 
of the person being sent to another country being able to have 
this adjudicated in a proper court.
    Ms. Massimino. Absolutely, and I would not--I am not at all 
convinced that the executive branch has set aside assertions of 
the authority to conduct renditions. I think that as I 
understand it from the President's Executive orders, that was 
not definitively set aside by any stretch. And I think we need 
to make sure if there is going to--anytime that there is a 
transfer--that is why we have extradition treaties and removal 
proceedings, because anytime there is a transfer of a person 
from the custody of one government to the custody of another 
government, that person's life, liberty is, you know, in 
question. And so we have to have protections. And so anytime 
that it goes outside those processes, we need to make sure that 
there is a real reason for doing it and, second, that there is 
a kind of a process where that can be raised and adjudicated 
independently.
    Senator Franken. Thank you.
    Mr. Henderson, my first cosponsorship in this body was of 
the Employment Free Choice Act, and I was heartened that the 
Leadership Conference views passage of EFCA as necessary for 
fulfillment of our obligations under the Universal Declaration 
of Human Rights and the Convention on the Elimination of All 
Forms of Racial Discrimination.
    Can you tell us a little bit more about the provisions of 
these treaties that require passage of EFCA?
    Mr. Henderson. Yes, sir. First of all, thank you for 
raising the question, Senator Franken.
    You know, when we talk about civil rights in our country, I 
often find that those who are not as familiar with our 
constitutional obligations and international treaty obligations 
are frequently surprised to hear that a right to education on 
behalf of all children in our country is not recognized by our 
Supreme Court as a fundamental right. It is not. The case of 
San Antonio v. Rodriguez is a case which held the principle 
that education is not a fundamentally protected constitutional 
right in this country.
    So, too, is the issue of the right to organize. I think 
Eleanor Roosevelt and those who helped fashion the Universal 
Declaration of Human Rights understood the seminal importance 
of allowing individuals to organize to protect their interests 
in the workplace: the 40-hour work week, the weekend that we 
now enjoy, the protections that workers who had high school 
diplomas but who were able by virtue of their hard work in the 
manufacturing context to create the middle class that we 
celebrate.
    Walter Reuther of the United Auto Workers was one of our 
founding members of the Leadership Conference, and it was 
because of the UAW that there were adequate resources to bring 
individuals to Washington. They paid for the buses, for 
example, for the march on Washington. They helped provide the 
resources that were really necessary to help advance the causes 
that many of us support and celebrate today. And yet the 
interests of workers are largely ignored.
    We find in many instances that employers have become 
increasingly sophisticated about misclassifying workers, 
calling them independent contractors, which strips them of 
their protections in the workplace, takes away their protection 
under many civil rights laws, does not allow them to petition 
for protection, to be an example of what we think is a real 
problem--worker misclassification. Or forcing workers into 
circumstances where they waive their constitutionally protected 
rights to challenge discriminatory practices in the workplace 
through processes of mandatory arbitration. We think that is a 
horrendous problem, and, you know, individuals have addressed 
that, including, Senator, your own efforts.
    So there are indeed examples, concrete examples of how 
workers today are not adequately protected, and that is why the 
Employee Free Choice Act is such a fundamentally important 
piece of legislation and one that the Leadership Conference 
wholeheartedly supports.
    I should also say, just as an addendum to my friend Elisa 
Massimino's response, the nongovernmental organizations, the 
civil and human rights groups of this country, there is a 
groundswell emerging, as Elisa knows and is leading helping to 
develop, to protect and enforce our treaty obligations 
internationally. There is a clear recognition of that.
    I am privileged that the Leadership Conference works with a 
group called the Campaign for a New Domestic Human Rights 
Agenda, which is about 50 national and grassroots organizations 
that have come together to really support the full enforcement 
of our existing international obligations, and they are making 
a significant difference both here in Washington and in 
communities all over the country.
    So these issues that you and Chairman Durbin are bringing 
to the fore today are critically important. There is a base of 
support to implement these treaties effectively, and we are 
looking for ways to assist in the coordination of that effort.
    Senator Franken. Thank you so much, and, Mr. Chairman, I am 
sorry I have gone over my time and not done the requisite 
complimenting of you. I will just throw it back to you, but 
thank you so much for chairing this important hearing and 
calling it and for your leadership.
    Chairman Durbin. And if you want to add the compliment as 
part of the record, written record at a later date, we will 
keep the record open.
    [Laughter.]
    Senator Franken. Oh, I can make up for the lack of 
compliments in the written record. Good.
    Chairman Durbin. Thank you, Senator Franken.
    Thanks to everybody for being here. We asked a lot of 
organizations that did not have a chance to testify what they 
thought we should be focusing on. We had an amazing outpouring 
of response, 41 different organizations, and we are in the 
process, the staff has notified me, of going through their 
recommendations and finding a way to post them on a website, 
making them part of the congressional record, which we hope to 
continue to do on a regular basis.
    There have been so many great organizations that have 
stepped forward, including the American Civil Liberties Union, 
Amnesty International, Center for American Progress, Human 
Rights Watch, the Lawyers Committee for Civil Rights under the 
Law, Open Society Policy Center, Rights Working Group, and all 
of those, without objection, will be included in the record.
    [The information referred to appears as a submission for 
the record.]
    Chairman Durbin. I am going to bring this hearing to a 
close, and the hearing record will remain open--for a variety 
of reasons--over the next week for additional materials.
    I want to make it clear for the record that this self-
criticism does not overlook the fact that our Nation has been a 
leader in the world in championing civil rights and human 
rights, and I want to say with great pride that a lot of people 
who came before us took this very seriously. I hope that this 
effort will give us even more credibility and will also lead to 
a better country that we live in, which at the end of the day 
is what we are all here working toward.
    We have concerns around the world. I could list all the 
different varieties of venues that have been discussed today. 
But as was said by President Obama just recently in his Nobel 
Peace Prize acceptance speech, ``America cannot insist that 
others follow the rules of the road if we refuse to follow them 
ourselves.'' I learned yesterday that our President did an all-
nighter on that speech, if you thought that Presidents did not 
do those sorts of things. When we are honest about our own 
shortcomings and work to address them, we will be more 
effective at protecting human rights close to home and around 
the world.
    The hearing stands adjourned.
    Mr. Henderson. Thank you.
    Ms. Massimino. Thank you.
    [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]



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