United States of America 2016/2017
Two years after a Senate committee reported on abuses in the secret detention programme operated by the CIA, there was still no accountability for crimes under international law committed under it. More detainees were transferred out of the US detention centre at Guantánamo Bay, Cuba, but others remained in indefinite detention there, while pre-trial military commission proceedings continued in a handful of cases. Concern about the treatment of refugees and migrants, the use of isolation in state and federal prisons and the use of force in policing continued. There were 20 executions during the year. In November, Donald Trump was elected as President; his inauguration was scheduled for 20 January 2017.
In August, the UN Human Rights Committee expressed concern that the investigation into torture in the counter-terrorism context, which the USA was legally obliged to conduct, had not taken place. The Committee noted that the USA had provided no further information on the Senate Select Committee on Intelligence (SSCI) report into the secret detention programme operated by the CIA after the attacks of 11 September 2001 (9/11). The full 6,963-page report remained classified top secret and the SSCI had not released it by the end of the year.
On 16 August, the Committee noted that the USA had provided no further information on reports that Guantánamo Bay detainees had been denied access to judicial remedy for torture and other human rights violations incurred while in US custody.
No action was taken to end impunity for the systematic human rights violations, including torture and enforced disappearance, committed in the secret CIA detention programme after 9/11.
In May, the US Court of Appeals for the District of Columbia (DC) Circuit ruled that the SSCI report into the secret CIA detention programme remained a “congressional record” and was not subject to disclosure under the Freedom of Information Act. A petition seeking US Supreme Court review of the ruling was filed in November. Separately, in late December, a DC District Court judge ordered the administration to preserve the SSCI report, and to deposit an electronic or paper copy of it with the Court for secure storage. At the end of the year, it was not known if the government would appeal the order.
On 12 August, the DC Circuit Court of Appeals dismissed a lawsuit for damages brought on behalf of Afghan national Mohamed Jawad who had been held in US military custody from 2002 to 2009. During that time he was subjected to torture or other cruel, inhuman or degrading treatment. He was under 18 years old when taken into US custody in Afghanistan and transferred to detention in Guantánamo Bay.1 The Court of Appeals upheld a lower court decision to dismiss the lawsuit on the grounds that the federal courts lacked jurisdiction under Section 7 of the Military Commission Act (MCA) of 2006.2
In October, the US Court of Appeals for the Fourth Circuit overturned a lower court’s dismissal of a lawsuit brought by Iraqi nationals who claimed they were tortured by interrogators employed by CACI Premier Technology, Inc. at Abu Ghraib prison in Iraq in 2003 and 2004. The Court held that intentional conduct by contracted interrogators, which was unlawful at the time it was committed, could not be shielded from judicial review.
Counter-terror and security
At the end of the year, nearly eight years after President Obama made the commitment to close the Guantánamo Bay detention facility by January 2010, 59 men were still held there, the majority of them without charge or trial. During 2016, 48 detainees were transferred to government authorities in Bosnia and Herzegovina, Cape Verde, Ghana, Italy, Kuwait, Mauritania, Montenegro, Oman, Saudi Arabia, Senegal, Serbia and the United Arab Emirates.
In August, the UN Committee against Torture said that its recommendation to end indefinite detention without charge or trial, which amounted per se to a violation of the UN Convention against Torture, had not been implemented.
Pre-trial military commission proceedings continued against five detainees accused of involvement in the 9/11 attacks and charged in 2012 for capital trial under the MCA of 2009. The five – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al Baluchi and Mustafa al Hawsawi – were held incommunicado in secret US custody for up to four years prior to their transfer to Guantánamo Bay in 2006. Their trial had not begun by the end of 2016.
Pre-trial military commission proceedings also continued against ‘Abd al-Rahim al-Nashiri. He was arraigned for capital trial in 2011 on charges relating to the attempted bombing of the USS The Sullivans in 2000, and the bombings of the USS Cole in 2000 and of the French supertanker Limburg in 2002, all in Yemen. He had been held in secret CIA custody for nearly four years prior to his transfer to Guantánamo Bay in 2006. In August 2016, the DC Circuit Court of Appeals ruled that a decision on his claim, that the offences with which he had been charged were not triable by military commission because they were not committed in the context of and associated with hostilities, had to await a final appeal in the case in what was still likely a decade away.
Omar Khadr who pleaded guilty in 2010 to charges under the MCA relating to conduct in 2002 in Afghanistan when he was aged 15, and was transferred to his native Canada in 2012, sought disqualification of one of the judges on the Court of Military Commission Review (CMCR) on grounds of lack of impartiality. The DC Circuit Court of Appeals rejected the challenge, again ruling that the claim would have to wait for a final appeal to be decided.
During the year, Omar Khadr’s appeal to the CMCR against his conviction, including on grounds that he had pleaded guilty to offences that were not war crimes triable by military commission, was held in abeyance pending the Court of Appeals’ decision on the case of Guantánamo Bay detainee Ali Hamza Suliman al Bahlul who is serving a life sentence imposed in 2008 under the MCA of 2006. In 2015, a three-judge panel of the Court had overturned Ali Hamza Suliman al Bahlul’s conviction for conspiracy to commit war crimes on the grounds that the charge was not recognized under international law and could not be tried by a military tribunal. The government successfully sought reconsideration by the full court, which in October 2016 upheld the conspiracy conviction in a fractured vote involving five separate opinions and no resolution of the ultimate issue. Three of the nine judges dissented, arguing that Congress did not have the power to make conspiracy an offence triable by military commission, stressing that “whatever deference the judiciary may owe to the political branches in matters of national security and defense, it is not absolute”. Two judges wrote separately to say that it was improper to decide the ultimate issue for procedural reasons unique to Ali Hamza Suliman al Bahlul’s case.
Excessive use of force
The authorities continued to fail to track the exact number of people killed by law enforcement officials during the year – documentation by media outlets put the numbers at nearly 1,000 individuals killed. The US Department of Justice (DOJ) announced plans to create a system to track these deaths under the Deaths in Custody Reporting Act, to be implemented in 2017. However, the programme is not compulsory for law enforcement agencies and the data compiled may not reflect the total numbers. According to the limited data that is available, black men are disproportionately victims of police killings.
At least 21 people across 17 states died after police used electric-shock weapons on them, bringing the total number of such deaths since 2001 to at least 700. Most of the victims were not armed and did not appear to pose a threat of death or serious injury when the electric-shock weapon was deployed.
Freedom of assembly
In July, the deaths of Philando Castile in Falcon Heights, Minnesota, and Alton Sterling in Baton Rouge, Louisiana, sparked protests against the police across the country. Similar protests against police use of force occurred in other cities such as Tulsa in Oklahoma and Charlotte in North Carolina. The use of heavy-duty riot gear and military-grade weapons and equipment to police these demonstrations raised several concerns in terms of the demonstrators’ right to peaceful assembly.
Protests in and around Standing Rock, North Dakota, against the Dakota Access Pipeline to transport crude oil, despite being largely peaceful, drew a heavy police response from local and state law enforcement authorities. Local law enforcement agencies placed a police barricade on the road leading to the protest sites. Officers responded in riot gear and with assault weapons and used pepper spray, rubber bullets and electric-shock weapons against protesters. There were more than 400 arrests after August, mainly for acts of trespassing and non-violent resistance. Authorities targeted reporters and activists for low- level offences such as trespassing.
Attempts by US Congress to pass legislation to prevent the sale of assault weapons or implement comprehensive background checks for weapon buyers, failed to pass. Congress continued to deny funding to the Center for Disease Control and Prevention to conduct or sponsor research into the causes of gun violence and ways to prevent it.
Refugees’ and migrants’ rights
More than 42,000 unaccompanied children and 56,000 individuals who comprised family units were apprehended crossing the southern border irregularly during the year. Families were detained for months, some for more than a year, while pursuing claims to remain in the USA. Many were held in facilities without proper access to medical care and legal counsel. The UN High Commissioner for Refugees called the situation in the Northern Triangle a humanitarian and protection crisis.
The authorities resettled more than 12,000 Syrian refugees by the end of the year and said they would go from taking in 70,000 refugees per year to accepting 85,000 in fiscal year 2016 and 100,000 in the year 2017. Legislators introduced bills attempting to prevent lawfully admitted refugees from living in their state. In September, Texas announced its withdrawal from the federal Refugee Resettlement Program on the basis of alleged security concerns, despite refugees being required to undergo an exhaustive screening process before entering the USA. Kansas and New Jersey also withdrew from the Program.
Native American and Alaskan Native women remained more than 2.5 times more likely to be raped or sexually assaulted than non-Indigenous women. Gross inequalities remained for Indigenous women in accessing post-rape care, including access to examinations, rape kits – a package of items used by medical staff to gather forensic evidence – and other essential health care services.
Disparities in women’s access to sexual and reproductive health care, including maternal care, continued. The maternal mortality ratio rose over the last six years; African-American women remained nearly four times more likely to die of pregnancy-related complications than white women.
The threat of criminal punishment for drug use during pregnancy continued to deter women from marginalized groups from accessing health care, including prenatal care. However, a harmful amendment to Tennessee’s “fetal assault” law expired in July after successful advocacy ensured the law did not become permanent.3
Rights of lesbian, gay, bisexual, transgender and intersex people
Legal discrimination against LGBTI people persisted at the state and federal level. No federal protections existed banning discrimination on the grounds of sexual orientation and gender identity in the workplace, housing or health care. While some individual states and cities enacted non-discrimination laws that included protection on the grounds of sexual orientation and gender identity, the vast majority of states provided no legal protections for LGBTI people. Conversion therapy, criticized by the UN Committee against Torture as a form of torture, remained legal in most states and territories. Transgender people continued to be particularly marginalized. Murder rates of transgender women were high and discriminatory state laws, such as North Carolina’s “bathroom bill” which bans cities from allowing transgender individuals to use public bathrooms in accordance with their gender identity, undermined their rights.
Over 80,000 prisoners at any given time were held in conditions of physical and social deprivation in federal and state prisons throughout the country. In January, the DOJ issued guiding principles and policy recommendations that would limit the use of solitary confinement and restrictive housing – prison or jail housing that had different rules than were in place for the general prison population – in federal prisons. The recommendations emphasized housing prisoners in the least restrictive environment possible, diverting persons with mental illness out of isolation, and drastically limiting the use of solitary confinement for juveniles.
Twenty men were executed in five states, bringing to 1,442 the total number of executions since the US Supreme Court approved new capital laws in 1976. This was the lowest annual total since 1991. Approximately 30 new death sentences were passed. Around 2,900 people remained on death row at the end of the year.
Texas carried out fewer than 10 executions for the first time since 1996. Oklahoma did not carry out any executions for the first time since 1994. Texas and Oklahoma combined accounted for 45% of executions in the USA between 1976 and 2016.
In the November elections, the Oklahoma electorate voted to amend the state constitution to prohibit Oklahoma’s state courts from declaring the death penalty a “cruel or unusual” punishment. In California, the state with the largest death row population, voters opted not to repeal the death penalty; and in Nebraska the electorate voted to reject the legislature’s 2015 repeal of the death penalty.
Execution moratoriums remained in force in Pennsylvania, Washington State and Oregon throughout the year.
Florida, where executions had been on the increase in recent years, saw them on hold all year after the US Supreme Court ruled in Hurst v Florida in January that Florida’s capital sentencing statute was unconstitutional for giving juries only an advisory role in who was sentenced to death. Florida legislature passed a new statute, but in October the Florida Supreme Court ruled it unconstitutional because it did not require juror unanimity on death sentencing. In December, the Florida Supreme Court ruled that the Hurst ruling applied to those death row inmates – just over 200 of nearly 400 – whose death sentences had not yet been finalized on mandatory appeal by 2002. They could be entitled to new sentencing hearings as a result.
In August, the Delaware Supreme Court struck down Delaware’s capital sentencing statute in the wake of Hurst v Florida, because it gave judges the ultimate power to decide whether the prosecution had proved all facts necessary to impose the death penalty. Delaware’s Attorney General announced that he would not appeal the ruling.
States continued to face difficulties with their lethal injection protocols and the acquisition of drugs. Louisiana will not carry out any executions throughout 2017 due to the litigation in federal court on its lethal injection protocol. Ohio continued to face problems sourcing lethal injection drugs and there were no executions for the second year running in Ohio. In March, Ohio Supreme Court ruled 4-3 that the state could try to execute Romell Broom for the second time. The first attempt in 2009 was abandoned after the lethal injection team failed to establish an intravenous line during two hours of trying. An execution date for Romell Broom had not been set by the end of the year.
The US Supreme Court intervened in a number of capital cases. In March, it granted Louisiana death row inmate Michael Wearry a new trial, 14 years after he was convicted. The Court found that prosecutorial misconduct, including the withholding of exculpatory evidence, had violated Michael Wearry’s right to a fair trial. In May, it granted Georgia death row inmate Timothy Foster a new trial because of racial discrimination at jury selection. Timothy Foster, an African-American, was sentenced to death by an all-white jury after prosecutors had peremptorily removed every black prospective juror from the jury pool.
In August, the National Hispanic Caucus of State Legislators “overwhelmingly” approved a resolution calling for abolition of the death penalty across the USA. The resolution cited racial discrimination, ineffectiveness, cost and the risk of error.
In April, Gary Tyler was released after 42 years in prison in Louisiana. Gary Tyler, an African-American, had originally been sentenced to death for the fatal shooting of a 13-year-old white boy in 1974 during a riot over school integration. Gary Tyler, aged 16 at the time of the shooting, was convicted and sentenced to death by an all-white jury. His death sentence was overturned after the US Supreme Court ruled Louisiana’s mandatory death penalty statute unconstitutional in 1976; and his life sentence was overturned after the Court in 2012 barred mandatory life without parole sentences for crimes committed by under-18-year-olds. The prosecution agreed to vacate the murder conviction, allowed him to plead guilty to manslaughter, and he received the maximum prison sentence of 21 years, less than half the time he had already served.4
- USA: From ill-treatment to unfair trial − the case of Mohamed Jawad, child "enemy combatant" (AMR 51/091/2008)
- USA: Chronicle of immunity foretold (AMR 51/003/2013)
- USA: Tennessee "Fetal Assault" Law − a threat to women’s health and human rights (AMR 51/3623/2016)
- USA: The Case of Gary Tyler, Louisiana (AMR 51/089/1994); Louisiana: Unfair Trial – Gary Tyler (AMR 51/182/2007)