United States of America 2017/2018
United States of America 2017/2018
Executive orders to suspend travel to the USA from several Muslim-majority countries sparked legal challenges, which continued through the year. There were major attacks on the rights of women and girls. Eighteen detainees were transferred from the US naval base at Guantánamo Bay, Cuba; 41 detainees remained at the base and pre-trial military commission proceedings continued. Gun violence remained high. Death sentences were handed down and executions were carried out.
On 20 January, Donald Trump was sworn in as President, following an election campaign in which he made comments and promised policies that were discriminatory or otherwise contradicted international human rights principles.
Refugees’ and migrants’ rights
A number of executive orders affecting migrants, asylum-seekers and refugees were signed by President Trump during the year. Two orders dated 25 January called for a wall to be built along the USA-Mexico border, allowed for refoulement (forcible return) and the increased detention of asylum-seekers and their families, increased the functions and number of immigration and customs enforcement agents, prioritized deportation of migrants, especially those suspected of crimes, and cancelled funding for “sanctuary cities” that did not co-operate with federal authorities in apprehending irregular migrants.
A third executive order signed on 27 January banned entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, suspended the US Refugee Admissions Program (USRAP) for 120 days, reduced the number of refugees eligible for entry during the 2017 fiscal year from 110,000 to 50,000, and imposed an indefinite ban on the resettlement of refugees from Syria. The order immediately led to chaos, protests and legal challenges on the basis of discrimination towards Muslims. A week later a federal judge issued a nationwide temporary injunction, which was upheld on appeal. The government issued a revised version of the order on 6 March, again suspending USRAP for 120 days, repeating the limit of 50,000 refugees, and imposing a 90-day ban on entry into the USA of nationals of six countries (the original seven minus Iraq). Federal judges in the states of Maryland and Hawaii issued nationwide injunctions temporarily blocking its implementation. On 26 June, the Supreme Court allowed a limited version of the order to take effect. The Court also ruled that the ban could be applied to refugees being supported by resettlement agencies.
A second revision of the order, signed on 24 September, indefinitely banned immigration into the USA by nationals of seven countries: Chad, Iran, Libya, North Korea, Somalia, Syria and Yemen. It also banned the issuance of certain types of non-immigrant visas to nationals of Chad, Iran, Libya, North Korea, Syria and Yemen, and specifically barred visas for Venezuelan officials from certain government agencies and their families. On 17 October, federal judges in Hawaii and Maryland again ruled against the measure, blocking the government from enforcing it on nationals from six of the countries. On 13 November, a federal appeals court panel allowed the third ban to take effect for people with no legitimate ties to the USA.
On 24 October, President Trump issued an executive order to resume USRAP “with enhanced vetting procedures”. On 4 December the Supreme Court granted the administration’s request to temporarily allow the latest so-called “Muslim ban” to take full effect as the case continued to be litigated.
On 16 August, the federal Department of Homeland Security terminated the Central American Minors programme. The programme had allowed those under 21 years of age fleeing violence in El Salvador, Guatemala and Honduras, whose parents had regular status in the USA, to apply for refugee resettlement interviews before travelling to the USA. Children from those three countries who did not qualify for refugee status and had no other means of reuniting with their parents had also been able to apply for entry under the programme.
On 5 September, the government announced that it would end the Deferred Action for Childhood Arrivals (DACA) programme in six months if Congress did not find a legislative solution regarding the immigration status of those protected by the programme, placing more than 800,000 individuals at risk of deportation. DACA’s aim was to protect from deportation migrant youth who came to the USA as children and met certain eligibility criteria. Congress introduced the DREAM Act to provide DACA beneficiaries with a means to obtain regular migration status; it had not been passed into law at the end of the year.
More than 17,000 unaccompanied children and 26,000 people travelling as families were apprehended after irregularly crossing the border with Mexico between January and August. Families were detained for months, many without proper access to medical care and legal counsel, while pursuing claims to remain in the USA.
Attacks on the rights of women and girls were broad and multi-faceted. President Trump’s administration overturned policies that required universities to investigate sexual violence as gender discrimination and suspended equal pay initiatives that had helped women to identify whether they were being paid less than male colleagues. Attacks on women’s reproductive health and rights were particularly virulent. There were repeated efforts by the government and Congress to withdraw funding from Planned Parenthood − a health organization providing vital reproductive and other health services, particularly to women on low incomes. The government issued rules exempting employers from providing health insurance coverage for contraception if it conflicted with their religious or moral beliefs, putting millions of women at risk of losing access to contraception. Gross inequalities remained for Indigenous women in accessing care following rape, including access to examinations, forensic evidence kits for use by medical staff, and other essential health care services. The government also introduced the so-called “global gag rule”, prohibiting any US financial assistance to any hospitals or organizations that provide information about, or access to, safe and legal abortion care.
Rights of lesbian, gay, bisexual, transgender and intersex people
Murders of LGBTI people increased during the year, against a background of continuing discrimination against LGBTI people in state and federal law. Further discriminatory measures by the government against LGBTI people increased. The USA continued to lack federal protections banning discrimination on the grounds of sexual orientation and gender identity in the workplace, housing or health care. Transgender people continued to be particularly marginalized. President Trump’s administration overturned guidelines that protected transgender students in public schools who used facilities that corresponded with their gender identity. In August, President Trump ordered a reversal in the policy announced in 2016 to allow openly transgender individuals to enlist in the military, which had been due to take effect on 1 January 2018. On 30 October, a federal judge issued a preliminary injunction blocking implementation of the directive. In December, a judge ruled that transgender people would be allowed to enlist in the military from 1 January 2018, as legal cases proceeded.
Counter-terror and security
On 28 November, a federal jury in Washington DC convicted Libyan national Ahmed Abu Khatallah on terrorism charges relating to an attack on a US diplomatic compound in Benghazi, Libya, in 2012 in which four US nationals were killed. The jury acquitted him of murder. In August, the judge had ruled that any statements made by Ahmed Abu Khatallah while held incommunicado for nearly two weeks on board a US naval vessel after being seized by US forces in Libya could be admitted as evidence. On 29 October, US forces seized another Libyan national, Mustafa al-Imam, in Libya. He was flown to the USA and appeared in federal court on 3 November after five days’ incommunicado detention. At the end of the year he was facing trial for terrorism offences in relation to the Benghazi attack.
After an attack in New York on 31 October in which eight people died and 12 were injured, Uzbek national Sayfullo Habibullaevic Saipov was charged and due to be tried in federal court, despite calls from two senior Senators for his transfer to military custody as an “enemy combatant” and comments from President Trump that he would consider sending him to Guantánamo Bay. President Trump flouted the presumption of innocence in a series of posts on Twitter in which he called for the death penalty for Sayfullo Saipov.
In January, under the administration of President Barack Obama, 18 detainees were transferred from Guantánamo Bay detention centre to Oman, Saudi Arabia and United Arab Emirates. Most of the remaining 41 Guantánamo Bay detainees were held without charge or trial. President Trump had made a pre-election pledge to keep the detention facility open and increase the numbers of detainees held there; no further detainee transfers were made into or out of Guantánamo Bay during the year.
Refusal in October by the Supreme Court to consider two jurisdictional challenges allowed military commission proceedings to continue at Guantánamo Bay, in contravention of international fair trial standards.
In October, Ahmed Mohammed Ahmed Haza al-Darbi, a Saudi Arabian national, was sentenced by military commission to 13 years’ imprisonment after pleading guilty in 2014 to conspiracy, terrorism and other offences. He had been arrested in Azerbaijan in June 2002 and handed over to US agents two months later.
Torture and other ill-treatment
In an interview on 25 January, President Trump expressed his support for torture while stating that he would “rely” upon the Secretary of Defense, the CIA Director and others in deciding whether the USA should use it. No action was taken to end impunity for the systematic human rights violations, including torture and enforced disappearance, committed in a secret detention programme operated by the CIA after the attacks on 11 September 2001.
At least three people alleged to have been involved in the secret detention programme were nominated by President Trump for senior government roles: Gina Haspel, selected in February for the role of Deputy Director of the CIA; Steven Bradbury, nominated for General Counsel at the Department of Transportation; and Steven Engel, nominated to head the Office of Legal Counsel (OLC) at the Department of Justice. Gina Haspel was believed to have been CIA Chief of Staff in Thailand in 2002 when the CIA ran a so-called “black site” in which at least two detainees were subjected to torture and enforced disappearance. She was later Chief of Staff to the Director of the Counterterrorism Center, the branch of the CIA that ran the secret detention programme. As Acting Assistant Attorney General at the OLC between 2005 and 2009, Steven Bradbury authored a number of memorandums to the CIA giving legal approval to methods of interrogation and conditions of detention that violated the international prohibition of torture and other ill-treatment. As Deputy Assistant Attorney General at the OLC in 2007, Steven Engel was also involved in the writing of one of those memorandums. On 7 November, the Senate confirmed his appointment by 51 votes to 47. On 14 November, by 50 votes to 47, the Senate confirmed the appointment of Steven Bradbury. Gina Haspel’s appointment did not require Senate confirmation.
A civil jury trial of James Mitchell and John “Bruce” Jessen, two CIA-contracted psychologists who had leading involvement in its detention programme, was due to begin on 5 September. However, in August an out-of-court settlement was reached.
On 19 June, the Supreme Court ruled in a case brought against former US officials by individuals of Arab or South Asian descent who were among the hundreds of foreign nationals taken into custody in the USA in the wake of the attacks of 11 September 2001. Following the attacks, detainees were held for months in harsh conditions and reported a range of abuses. The Supreme Court stated that if the allegations were true, then what happened to the detainees “was tragic”, and “nothing in this opinion should be read to condone the treatment to which they contend they were subjected”. However, it ruled that the case largely could not proceed, thus continuing a pattern of judicial remedies being blocked in cases involving human rights violations in the counter-terrorism context since the 2001 attacks.
Excessive use of force
The authorities continued to fail to track the exact number of people killed by law enforcement officials across the USA. Data collected by The Washington Post newspaper put the total at 987 individuals killed during the year by law enforcement agents using firearms. According to the data, African Americans – who comprised 13% of the population – represented nearly 23% of the victims in 2017. Of those killed, 24% were known to have mental health problems. A proposal by the Department of Justice to create a system to track these deaths under the Deaths in Custody Reporting Act was not compulsory for law enforcement agencies and therefore risked leading to under-reporting. No information was released on whether the reporting process had been initiated during the year.
At least 40 people across 25 states died after police used projectile electro-shock weapons on them, bringing the total number of such deaths since 2001 to at least 802. Most of the victims were not armed and did not appear to pose a threat of death or serious injury when the electro-shock weapon was deployed.
In September, the acquittal of a former police officer for shooting dead Anthony Lamar Smith in 2011 sparked weeks of protests across the city of St Louis, Missouri, and hundreds of arrests. There were allegations by local civil rights organizations that police unlawfully detained people and that their use of chemical irritants against protesters amounted to excessive use of force. St Louis police used heavy-duty riot gear and military-grade weapons and equipment to police the demonstrations. In August, President Trump annulled restrictions put in place by the previous government that limited the transfer of some military-grade equipment to law enforcement agencies.
In October a gunman used “bump stocks” – accessories that modify firearms to allow rapid firing similar to that of fully automatic firearms – against a crowd of concert-goers in Las Vegas, Nevada, killing 58 people. In response to the massacre, Congress considered legislation and regulations banning such devices, but the measures were not enacted. In November, Congress introduced but failed to pass a separate piece of legislation aimed at preventing gun violence.
Two pieces of federal legislation were pending at the end of the year that would make it easier for people to obtain firearm silencers and carry concealed weapons. Legislation in place since 1996 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.
President Trump’s administration considered relaxing restrictions on the export of small arms, including assault rifles and ammunition, by shifting the responsibility for processing international non-military firearms sales from the Department of State to the Department of Commerce. The move would severely weaken oversight of arms sales and risked increasing the flow of firearms to countries suffering high levels of armed violence.
Twenty-three men were executed in eight states, bringing to 1,465 the total number of executions since the US Supreme Court approved new capital laws in 1976. Approximately 39 new death sentences were passed. Around 2,800 people remained on death row at the end of the year.
Arkansas conducted its first executions since 2005. Ohio resumed executions after a hiatus of more than three years. Florida conducted its first executions since January 2016, when the US Supreme Court ruled its capital sentencing statute unconstitutional. The Florida Supreme Court’s decision that the ruling applied only retroactively to about half of those on death row allowed the state to begin executing those deemed not to benefit. During the year, the first death sentences were handed down under a new sentencing statute.
During the year, four inmates were exonerated of the crimes for which they were originally sentenced to death in the states of Delaware, Florida, Arkansas and Louisiana, bringing to 160 the number of such cases since 1973.