UNITED STATES

In 1993, Human Rights Watch reported on several types of human rights abuse in the United States. Together with the American Civil Liberties Union, Human Rights Watch published a major report detailing U.S. compliance and noncompliance with the International Covenant on Civil and Political Rights, whose ratification by the U.S. in 1992 significantly expanded the protection of human rights in this country. Americas Watch released "Frontier Injustice," a follow-up to its 1992 report on human rights abuses by U.S. Border Patrol agents. Human Rights Watch collaborated with three other non-governmental organizations to produce a study of physician participation in the death penalty, and the Prison Project continued to monitor U.S. prison conditions. Finally, Human Rights Watch participated in the U.S.-based litigation against Bosnian Serb military commander Radovan Karadzic, who stands accused of a multitude of crimes, including genocide, torture, and crimes against humanity.

U.S. Compliance with the International Covenant on Civil and Political Rights

On September 8, 1992, the United States formally adopted the International Covenant on Civil and Political Rights (ICCPR). In doing so, the United States undertook "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the ... Covenant, without distinction of any kind ..." This duty is modified only by the explicit reservations entered by the United States.

Under the terms of the ICCPR, the United States had one year from the date of ratification in which to file a report on its compliance with ICCPR provisions. In anticipation of this report, Human Rights Watch and the American Civil Liberties Union collaborated to produce their own report on U.S. compliance with the ICCPR. Scheduled for release in December 1993, this report examined several areas of concern and found the U.S. to be in violation of numerous Covenant provisions. For example:

· Immigration and Refugee Law. The U.S. policy of interdicting and summarily repatriating Haitian boat people violated Article 12 of the ICCPR, which states that "[e]veryone shall be free to leave any country, including his own." The indefinite detention of HIV-positive Haitian asylum-seekers at Guantánamo Bay Naval Base, a practice discontinued in the summer of 1993 by court order, violated Article 9, which requires a statutory basis for detention. It also violated Article 10, which forbids inhumane conditions of confinement, and Article 26, which forbids discrimination on the basis of national origin (only Haitians were subject to medical screening and detention based on HIV status; intercepted Cubans, for example, were not medically screened and were transported directly to the United States). Misconduct by agents of the Immigration and Naturalization Service (INS), detailed below with regard to border violence, violated Article 7 (the right to be free from torture or cruel, inhumanor degrading treatment), Article 9(1) (the right to liberty and security of the person), and Article 16 (the right to recognition everywhere as a person before the law).

· Prison Conditions. United States treatment of prisoners and conditions of confinement violated each of the three paragraphs of Article 10 of the ICCPR. Article 10(1) requires that all persons deprived of their liberty "be treated with humanity and with respect for the inherent dignity of the human person." Conditions of confinement in the U.S. increasingly violated this mandate, with extreme overcrowding stripping prisoners of dignity and privacy and endangering their health and safety. The brutal treatment of the new "maxi-maxi" high-security prisons also contravened this provision. Confinement of pretrial detainees in facilities that were often older, more crowded and more dangerous than prisons violated Article 10(2), which requires that pre-trial detainees be separated from convicted persons and accorded treatment "appropriate to their status as unconvicted persons." Finally, Article 10(3) states that prisoners must be given treatment that aims for "reformation and social rehabilitation." This stands in marked contrast to current U.S. law and practice, which had rejected an affirmative right to rehabilitation.

· Language Rights. Article 2 of the ICCPR requires that the rights of the covenant be recognized "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Similarly, Article 26 forbids discrimination on the basis of any of these grounds. In contrast, domestic U.S. law provides no explicit protection against language discrimination. Those small pockets of protection that do exist reflect piecemeal legislation rather than a comprehensive policy, and have done little to stanch the ongoing attacks against minority language use in the schools, workplace and electoral arena. Federal courts have refused to equate language discrimination with national origin discrimination, which, like race and religion, warrants the highest level of judicial scrutiny; instead, language-based claims have been slotted into the lowest level of the three-tier system of evaluating discrimination claims, which requires only that the government show a "rational basis" for discriminatory government action. By attaching to its ratification an understanding that distinctions based on race, color, sex, language, religion, etc. are permissible when they are, "at minimum, rationally related to a legitimate governmental objective," the U.S. diluted the protection of the ICCPR to match that of the U.S. courts. Nonetheless, the ICCPR's specific prohibition on language discrimination adds a greater scope of protection than was previously available. The Human Rights Watch/ACLU report also examined U.S. compliance with the ICCPR in regard to free expression, race discrimination, women's rights, language rights, and religiousfreedom.

Border Violence

In May 1993, Americas Watch released "Frontier Injustice: Human Rights Abuses Along the U.S. Border with Mexico Persist Amid Climate of Impunity." The forty-six-page newsletter followed the 1992 publication of Brutality Unchecked: Human Rights Abuses Along the U.S. Border with Mexico, a major report detailing severe human rights abuses committed by the U.S. Border Patrol of the INS. One year later, Americas Watch found the situation unchanged; serious abuses continued and mechanisms to ensure accountability were thoroughly inadequate. Documented abuses included numerous beatings, sexual assault, arbitrary detention, unjustified shootings, and murder. Border Patrol agents often covered up abuses of fellow agents by observing a "code of silence," complaints were discouraged, procedures for investigating alleged violations were ineffective, and abusive agents often went undisciplined.

Those vulnerable to mistreatment included undocumented immigrants, refugees, U.S. citizens and legal residents. They might be abused during apprehension or while in detention; although the majority of such abuses occurred in the border region, abuses were documented in interior regions as well, including Nevada and Nebraska. High school students had been harassed and assaulted while on or near their school campuses. Instances of abuse were not limited to agents of the border patrol; "Frontier Injustice" included allegations of abuse by customs agents at points of entry, which, although less widespread than border patrol violations, shares the same disregard for the rights of the person and the same freedom from accountability. Racially motivated verbal abuse by immigration law enforcement agents was also extremely common.

The case of border patrol agent Michael Andrew Elmer was a stark example of the impunity surrounding even the most violent border patrol agents. On June 12, 1992, Elmer was patrolling the border region near Nogales, Arizona when he and his partner spotted three men they suspected to be lookouts for drug smugglers. As the men fled, Elmer shot at one of them a dozen times, hitting him twice in the back. He then hid the wounded man, Darío Miranda Valenzuela, behind a tree trunk in a gully, where the victim subsequently died. Elmer's partner, agent Thomas Watson, broke the traditional code of silence and reported the shooting fifteen hours later.

Although he was acquitted of murder on the grounds of self-defense, Elmer's trial revealed his alleged perpetration of other human rights abuses: on March 18, 1992, he reportedly assaulted a motorist, leaving him wounded and in need of stitches; later that night Elmer was alleged to have shot at a group of thirty undocumented immigrants, wounding one in the stomach and leg. In keeping with the code of silence, none of the agents present during these incidents reported them; were it not for the publicity surrounding the investigation into the Miranda murder, they would have remained hidden and unaccounted for. (Two of the victims of the March shooting reported the incident at a border patrol station, but it was not investigated.) Significantly, agentWatson, who reported the killing of Miranda Valenzuela, was fired by the border patrol. Although the ostensible reason was his fifteen-hour delay in reporting the shooting, he believed the real cause to be his breach of the code of silence.

Other documented abuses included:

· Border Patrol agent Luis Santiago Esteves was reported to have sexually harassed or assaulted three different women whom he first encountered while on duty. The first incident was reported to his supervisor on October 9, 1989; no disciplinary action was taken against him. The second incident led to his arrest in December 1989 for rape. Although Esteves was temporarily suspended, the border patrol reinstated him when the victim failed to appear in court, forcing the prosecutor to drop charges. He was arrested a third time in 1991, again for rape. That arrest led to a conviction and, in July 1992, he was sentenced to twenty-four years in prison.

· On December 23, 1992, a border patrol agent allegedly beat an unarmed man who had been apprehended near the border. The agent then warned the man not to report the beating. Agents took him and his female companion, who was detained by a second agent and witnessed the beating, to the San Ysidro, California detention center, where they were held for several hours. Despite the man's obviously severe pain and his repeated requests for medical attention, no assistance was provided for several hours. He was eventually taken to a hospital, where he remained under observation for ten days, at which time his condition worsened and he underwent surgery to repair damage that had been done to his pancreas. Two weeks later the border patrol issued a statement claiming the man had injured himself by falling into a drainage ditch. Although both the Federal Bureau of Investigation (FBI) and the Office of the Inspector General of the Justice Department subsequently began investigations, the agent was reportedly still on active duty as of November 1993. In keeping with INS policy, the agent's name was withheld from the victim and his attorney.

· In February 1992, a customs agent injured a U.S. citizen whose car was being inspected at an El Paso/Juarez checkpoint. According to the victim and witnesses, the agent twisted the woman's arm behind her back and held it there for a long period of time, despite her protests that he was hurting her. She was taken by ambulance to a nearby hospital, where a cast was placed on her severely sprained arm. An investigator with the Office of Internal Affairs of the Customs Service took statements from customs agents at the scene, yet never contacted the victim, even though her name and phone number were available from police officers who had been called to the scene. When the victim returned to the checkpoint days later to ask whether the agent had been disciplined, she was told that he had been suspended; Customs Service officials later admitted that she had been misinformed and that the agentremained on duty.

· In December 1992, a federal court ruled that border patrol agents committed a number of abuses over a period of years against students and faculty at Bowie High School in El Paso, Texas, including the use of excessive force (beatings, rough physical treatment, and the unnecessary brandishing of a weapon), verbal abuse, and harassment. Murillo v. Musegades, EP-CA-319-B, (W.D. Tex. Dec 1, 1992). "Frontier Injustice" also reported numerous instances of border patrol agents' harassment on high school campuses in Phoenix, Arizona.

Americas Watch concluded that these and similar incidents of misconduct were fostered by a protective climate of impunity sustained by a variety of factors. First, incidents of abuse often went unreported, due both to victims' fears of deportation or further harassment and to the absence of information regarding complaint procedures. Second, attempts to lodge complaints were often obstructed by immigration officials. "Frontier Injustice" reported that complainants were ridiculed, given incomplete or wrong information, directly discouraged from filing complaints, and threatened with counter-charges. Reports by fellow agents were also rare, in adherence with the strict code of silence.

In addition to these informal obstacles, existing complaint procedures within the INS were found to be inadequate. Most abuse cases were investigated by INS and Border Patrol managers themselves, calling into question the independence of the investigators. And, although the Office of the Inspector General of the Justice Department maintained a hotline to receive complaints, its existence was almost wholly unknown, its operation hours limited, and it staff not equipped to respond to Spanish speakers.

Those investigations that did take place were shrouded in secrecy, with the Justice Department refusing to divulge the names of agents involved or the status or results of investigations. Agents under investigation might remain on active duty at the discretion of their supervisors, even when the alleged abuse was a serious criminal offense. Finally, Americas Watch found a consistent failure to discipline agents involved in human rights abuses. Where disciplinary action was taken it was carried out in an arbitrary fashion, turning more on the agent's relationship with his supervisor than on the seriousness of the abuse committed.

There were some encouraging developments following the release of "Frontier Injustice" in May 1993. Citing the Americas Watch report, Acting INS Commissioner Chris Sale sent a letter to all district directors and chief patrol agents in July 1993. Saying she was "seriously concerned about these allegations," Ms. Sale declared her intention "to ensure strict adherence to policies and procedures for investigating allegations of abuse and disciplining ... [violators of] principal human rights." She also promised "imminent approval" of an INS policy for the use of non-deadly force. In October 1993, Doris Meissner was confirmed as commissioner of the INS. In a written statement submitted at her confirmation hearing, Ms. Meissner stated that the work of the INS"must always be done with care, compassion and respect for human and civil rights."

In the meantime, Americas Watch followed up on the recommendations first made in our 1992 report, Brutality Unchecked. In addition to detailed recommendations regarding the use of force, Americas Watch advocated the creation of an independent federal commission to receive complaints of abuse, investigate those complaints, hold public hearings when warranted, and relay its findings to the INS or Customs Service for disciplinary action. During 1993, Human Rights Watch worked closely with members of Congress who supported the creation of such a commission. In May, Rep. Xavier Becerra (D-CA) introduced the "Immigration Enforcement Review Commission Act," which would provide for independent review of the INS and the Customs Service. Hearings on the proposal were held in September, and the bill continued to gain co-sponsors.