Ira Glasser, Executive Director American Civil Liberties Union 132 West 43rd Street New Yo

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Ira Glasser, Executive Director American Civil Liberties Union 132 West 43rd Street New York, New York 10036 December 14, 1992 The Honorable William J. Clinton President-elect of the United States Presidential Transition Office 1120 Vermont Avenue, N.W. Washington, DC 20270 Dear President-elect Clinton: Since 1980, civil liberties have been under a state of siege. Although every administration since the founding of the Republic has occasionally exceeded the limits imposed by the Bill of Rights, and some administrations have been decidedly unfriendly to civil liberties, it is fair to say that no administration was ever as systematically hostile to as broad a range of rights as were the last three. During these years, no right seemed safe from assault by the highest government officials. Censorship was encouraged; press restrictions were imposed; a crusade was launched to breach the wall that separates church and state and protects religious freedom. Remedies for racial injustice were blocked, and racial fears and resentments were fanned. Hostility toward equality for women has been palpable and unrelieved; the rights of gay men and lesbians have been belittled; the rights of aliens and refugees have been both ignored and resisted. Procedural rights were attacked -- the Miranda warning, the Exclusionary Rule and the ancient writ of habeas corpus -- as fundamental fairness itself became unfashionable. Through the brutal use of RICO laws and other forfeiture statutes, property was seized and disposed of without due process and before a trial; Fourth Amendment rights were dismantled; the war on drugs became a war on the Constitution, and one Supreme Court Justice began to speak of a "drug exception" to the Bill of Rights. The right to privacy and personal autonomy -- a fundamental constitutional right -- became a major target in an effort to reshape the judiciary. Access to justice itself was denied, especially to the poor. Medicaid funding was withheld from poor women to prevent them from exercising their reproductive freedom, and legal services funding was withheld from poor people so they could not sue to vindicate their rights. The Constitution became more of a class-based document, accessible only to those who could afford it. These are only some of the rights that came under government assault during the past 12 years. Beyond the substantive rights themselves, the infrastructure of enforcement was dismantled and disabled: the Civil Rights Division of the Department of Justice became an antagonist of civil rights, and the Legal Services Corporation Board became an antagonist of legal services. Agencies designed to enforce rights led the charge to deny rights. Consequently, there is much damage to repair as you prepare to take office. The attached Blueprint For Action details our view of what must be done, why it must be done and how to do it. It addresses a variety of issues in five basic areas: First Amendment Rights, Equality, Due Process, Privacy and an area entitled, "Liberty and Justice For All," which advocates the extension of traditional rights to people who have been too long denied them. The Blueprint is not a complete vision of what the American Civil Liberties Union wants the world to look like. Rather, it is an agenda for restoring rights, a set of goals that we believe are reasonable and possible to attain. The Blueprint reflects a vision of liberty and justice that we believe is the highest form of American patriotism: devotion to the principles of the Bill of Rights, a commitment to tolerance and respect for diversity. We look forward, as always, to a nation committed to freedom of thought and conscience, fairness, equality and what John Stuart Mill once called "personal sovereignty." We look forward to a society where it is easy to be free and safe to be different. With sincere best wishes, Ira Glasser Executive Director -------------------------------------------------- AMERICAN CIVIL LIBERTIES UNION RESTORING CIVIL LIBERTIES: A BLUEPRINT FOR ACTION FOR THE CLINTON ADMINISTRATION -------------------------------------------------- Acknowledgements This publication was prepared by the Legal Department, the Public Education Department and the National Washington Office of the American Civil Liberties Union. American Civil Liberties Union 132 West 43rd Street New York, NY 10036 (212)944-9800 122 Maryland Ave., NE Washington, DC 20002 (202)544-1681 Nadine Strossen President Ira Glasser Executive Director Kenneth B. Clark Chair, National Advisory Council The American Civil Liberties Union is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to preserving and defending the principles set forth in the Bill of Rights. Copies of this publication are available for $5.00 each. Prepaid orders should be sent to: ACLU, Dept. L P.O. Box 794 Medford, New York 11763 Copyright 1992 American Civil Liberties Union. All rights reserved. ISBN 0-914031-19-8 -------------------------------------------------- TABLE OF CONTENTS FIRST AMENDMENT RIGHTS FREE SPEECH Pornography Victims Compensation Act Sexually Oriented Expression The Gag Rule Decency Rules in Broadcasting and Cable TV Collegiate Free Speech Protection Act Commercial Speech The National Endowment for the Arts The Hatch Act Ban on Federal Employee Honoraria RELIGIOUS FREEDOM The Establishment Clause Free Exercise Child Care Regulations CAMPAIGN REFORM Campaign Financing Electoral Free Speech NATIONAL SECURITY Classification System Freedom of Information Act Security Clearances Restrictions on the Press and Others in Publishing Government Information Intelligence Oversight, Accountability and the Independent Counsel The Mission of the Intelligence Agencies War Powers Covert Action Draft Registration and Conscientious Objection Americans' Right to Travel Abroad Ideological Visa Denials Government Surveillance EQUALITY CIVIL RIGHTS ENFORCEMENT The Civil Rights Act of 1991 Test Score Norming Caps on Damages Title VI Housing Discrimination Minority Set-Asides Americans With Disabilities Act Health Care EDUCATION Equity in Testing and Evaluation Equity in Financing "Choice" Vouchers Race-Exclusive Scholarships VOTING RIGHTS Transfer of Decision-making Authority Section 2 Enforcement Section 2 Compliance National Voter Registration Act Statehood for the District of Columbia WOMEN'S RIGHTS Economic and Pay Equity Educational Equity Health Equity Military Combat Exclusion Sexual Harassment in the Military Drug Dependent Women Family and Medical Leave and Child Care LESBIAN and GAY RIGHTS Discrimination Security Clearance The Military Ban Government Publications NATIVE AMERICANS Indian Civil Rights Act American Indian Religious Freedom Act DUE PROCESS ACCESS TO JUSTICE Attorney's Fees Funding of Legal Services Rule 11 Reform Indigent Defense Habeas Corpus CRIME and CRIMINAL JUSTICE Imprisonment as a Crime Control Mechanism The Exclusionary Rule Mandatory Minimum Sentencing Coerced Confessions/Fifth Amendment Preventive Detention Capital Punishment Police Abuse DRUG POLICY The "War on Drugs" Militarization of Drug Law Enforcement Post-Conviction Sanctions Civil Forfeiture Medical Marijuana PRIVACY AIDS Centers for Disease Control AIDS Prevention Programs Mandatory Federal HIV Testing HIV-Infected Health Care Workers INFORMATION PRIVACY Credit Reporting Medical and Insurance Records Criminal History Records Telephone Technology Privacy Act of 1974 REPRODUCTIVE FREEDOM Public Funding of Abortion Services Freedom of Choice Act International Reproductive Freedom The Gag Rule RU 486, Contraception and Fetal Research LIBERTY AND JUSTICE FOR ALL IMMIGRANTS' RIGHTS HIV Exclusion Employer Sanctions Private Alienage Discrimination Detention of Juvenile Aliens INS Detention Abuse in Immigration Law Enforcement Indefinite Detention Haitian Refugees Amnesty Aliens' First Amendment Rights PRISONERS' RIGHTS Medical Care Maintenance of Family Ties Grievance Resolution Voting Rights International Standards Civil Rights of Institutionalized Persons Act Prison Overcrowding and Human Rights Violations CHILDREN'S RIGHTS Adoption Assistance & Child Welfare Act: Enforcement Adoption Assistance & Child Welfare Act: Compliance WORKERS' RIGHTS Unjust Dismissal Electronic Surveillance of Private Sector Employees Drug Testing Labor Law Reform INTERNATIONAL HUMAN RIGHTS International Human Rights Conformity Act Ratification of Treaties Abduction of Foreign Nationals Many of these issues encompass a number of fundamental civil liberties principles and could have appeared under several headings. The text indicates that by cross-references, where appropriate. -------------------------------------------------- FREE SPEECH INTRODUCTION The First Amendment's guarantee of freedom of speech is admired throughout the world. It is a guarantee, however, that can never be taken for granted. In a society that is becoming increasingly diverse, the pressures on the First Amendment are intensifying. The temptation faced by people in high places to give into those pressures for short-term political gain is always a powerful one. Government officials must resist that temptation if our nation is to remain faithful to its fundamental principles. Unfortunately, for the last 12 years our federal government has sacrificed First Amendment principles in the face of political pressure. Too often, the government used its control over the funds allocated to the arts and research to censor and restrict expression about important issues that happen to be controversial. Moreover, the federal government has used its authority over the communications media to regulate speech that allegedly "offends" some people, whether the expressive material consists of sexually oriented matter or advertisements of disfavored commercial products. Restrictions were imposed that narrowed, rather than expanded, the free flow of information in the marketplace of ideas. The exercise of First Amendment rights often produces raucous debate. That debate can be disturbing and disquieting. Yet, government should not use its enormous funding power to manipulate public debate, and it cannot resolve controversy by suppressing controversial speech. Society will not become more tolerant if government itself is intolerant of criticism. As Justice Brandeis said more than a half-century ago, the answer under our Constitution must always be more speech, not enforced silence. Attention: Federal Communications Commission Department of Justice National Endowment for the Arts -------------------------------------------------- Free Speech > PORNOGRAPHY VICTIMS COMPENSATION ACT ISSUE Legislation before Congress will likely be proposed again to permit the victims of sexual assaults to sue the producers, distributors and exhibitors of sexually explicit material--books, films, recordings--on the ground that such material inspired the assailants to commit their crimes. If enacted, the legislation would violate the First Amendment. BACKGROUND Concerns about sexual violence have prompted misguided legislative efforts to impose civil liability on the publishers, exhibitors and distributors of sexually explicit materials. Thus, in June 1992, the Senate Judiciary Committee approved the so-called Pornography Victims Compensation Act (PVCA) by a vote of 7-6. No further action was taken, but the issue is likely to be revived when the new Congress convenes. Although the bill went through numerous revisions during the last legislative session, its fundamental premises remain unchanged. For the first time in American history, producers, distributors and exhibitors of sexually explicit material would be liable in damages for any sexual assault allegedly inspired by printed, visual or audio material. This approach to the very serious problem of sexual violence represents both bad policy and bad law. There is no reliable evidence that words and images can cause sexual violence, as both the Meese Commission and the Senate Judiciary Committee conceded in their respective reports on this subject. See The Attorney General's Commission on Pornography, Final Report at 337 (1986); S.Rep. No.102-372, Pornography Victims Compensation Act of 1992, at 6-7 (Aug. 12, 1992). Moreover, the PVCA would undeniably discourage the free and open discussion of sexual themes in books, movies, records and plays. The principle of third-party liability embodied in the proposed legislation has the added potential to suppress a wide range of expressive material -- from news reports to murder mysteries to the Bible itself -- that a jury might conclude inspired an actual crime. Imposing third-party liability on any of these expressive materials violates the First Amendment. Finally, by focusing on words and images, the bill distracts public attention and resources away from more serious efforts to tackle the problem of sexual violence that plagues our society. It is no answer to say that the bill is limited to commercial obscenity and child pornography (as it was in its final version but not in the initial draft). Judgments about obscenity are so inherently subjective that many producers and distributors of First Amendment material will simply cease addressing sexual themes rather than risking large damage awards and the substantial expenses of even successfully defended litigation. A reduction in speech, not a reduction in sex crimes, would be the result of the PVCA, a result that is inconsistent with both common sense and the First Amendment. RECOMMENDED ACTION Oppose the Pornography Victims Compensation Act or any similar legislation. -------------------------------------------------- Free Speech > SEXUALLY ORIENTED EXPRESSION ISSUE The Child Exploitation and Obscenity Section of the Department of Justice pursues prosecutions that have the purpose and effect of suppressing constitutionally protected, sexually oriented expression. BACKGROUND The Bush Administration mounted a campaign to suppress sexually oriented expression, using a variety of constitutionally questionable prosecution strategies. The intellectual genesis of the campaign is generally traced to the widely discredited Meese Commission. See The Attorney General's Commission on Pornography, Final Report (1986). The Justice Department created a special unit, originally called the National Obscenity Enforcement Unit and subsequently renamed the Child Exploitation and Obscenity Section, that initiated simultaneous prosecutions against distribution companies in multiple jurisdictions. The prosecutions were aimed at pressuring the targeted companies to stop distributing sexually oriented materials, in exchange for a cessation of investigations or dismissal of criminal charges. The Section targeted speech that is clearly protected under the First Amendment. Indeed, the Section's definition of sexually oriented materials, according to documents obtained in litigation, was so broad as to include publications such as Playboy magazine and The Joy of Sex. By 1992, three federal courts had condemned the unit's multiple prosecution approach as unconstitutional. See United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992); PHE, Inc. v. Dept. of Justice, 743 F. Supp. 15 (D.D.C. 1990); Freedberg v. Dept. of Justice, 703 F. Supp. 107 (D.D.C. 1988). The Justice Department's activities were troubling for several interrelated reasons. First, the Section diverted significant federal resources from clear law enforcement priorities. Second, the Section's constitutionally questionable assault on erotic books, magazines, and films was particularly inappropriate given the acknowledged vagueness of obscenity laws. Finally, the Section clearly flouted the Supreme Court's continuing reminders that toleration of sexual candor in art and literature should be primarily determined by local communities, based on local standards. In its zeal to impose moral and religious conformity on a diverse American population, the Bush Administration ignored the longstanding principle that discussion of and information about sex are matters of public importance, and are generally entitled to full constitutional protection. RECOMMENDED ACTIONS 1) Abolish the Justice Department's Child Exploitation and Obscenity Section. 2) Redirect Justice Department resources toward fighting sex discrimination, sexual harassment and violence against women and children. -------------------------------------------------- Free Speech > THE GAG RULE ISSUE Contrary to the position taken by the Bush Administration, the Supreme Court's decision in Rust v. Sullivan does not establish a broad principle that permits the government to dictate the content of speech in any program receiving federal aid. Therefore, the government should not condition federal assistance upon adherence to any "gag rule." BACKGROUND Government largesse, distributed by grant or contract, should not be used to buy peoples' silence or deny their free speech rights. In Rust v. Sullivan, 111 S.Ct. 1759 (1991), the Supreme Court upheld the Bush Administration's "gag rule" prohibiting any discussion of abortion in family planning clinics that receive federal funds. The Administration quickly took the position in Congress and the courts that Rust established a broad principle permitting the government to dictate the content and viewpoint o f speech in any program receiving federal assistance. Thus, in Board of Trustees of the Leland Stanford Junior University v. Sullivan, 733 F. Supp. 472 (D.D.C. 1991), the Justice Department argued unsuccessfully that medical research grants could be conditioned on a requirement that scientists not discuss their research findings with students, colleagues, or others unless they receive prior permission from the government. In Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992), the Department argued unsuccessfully that Rust permitted censorship of AIDS education materials. In Finley v. National Endowment for the Arts, No. CV 90-5236, slip op. (C.D.Cal. June 9, 1992), the argument was stretched to include content restrictions on grants to artists and arts institutions, but the court rejected it. In Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988), the administration tried to reopen a pre-Rust judgment that struck down content and viewpoint-based discrimination in the awarding of customs benefits for documentary films. The effort failed. Legislation has been proposed attaching content restrictions to public broadcasting and other areas of expressive activity that receive government funds. Given the extent of government involvement in almost every aspect of public life -- through funding, other benefits and tax deductions -- extending the Rust approach to classic free speech forums, such as universities, libraries, research and the arts, simply because they receive government assistance would be devastating to First Amendment freedoms. RECOMMENDED ACTIONS 1) Oppose legislation that conditions any government grant or benefit on restricting the content or viewpoint of speech. 2) Direct the Department of Justice to abandon its efforts to extend Rust v. Sullivan to other areas affecting free expression. 3) By Executive Order, prohibit federal agencies from imposing content restrictions on free speech in programs that they assist or regulate. -------------------------------------------------- Free Speech > DECENCY RULES IN BROADCASTING AND CABLE TV ISSUE The federal legislation recently passed to regulate radio and television broadcasting and cable contain provisions that would, if applied broadly, have a censorship effect. Vague, content-based restrictions on broadcasting and cable impinge on the First Amendment rights of artists, producers and viewers. BACKGROUND Cable television programming is a form of expression and is, therefore, entitled to First Amendment protection. Nevertheless, various federal statutes restrict the content of cable television programming, thereby narrowing the free and diverse marketplace of ideas. The Federal Communications Commission is currently drafting rules to implement Congress' latest effort to mandate "decency" in cable TV and broadcasting. In the area of broadcasting, Congress passed a new law in 1992, the Public Telecommunications Act, shrinking the "safe harbor" period when so-called indecent programming may be broadcast to the hours of midnight to 6 a.m. In addition, Congress passed the Cable Television Consumer Protection and Competition Act of 1992, which imposes a variety of content restrictions on both leased access and public-access cable programming. This latter statute, for the first time, authorizes cable operators to ban material from leased access that they believe is "patently offensive," and requires the FCC to promulgate regulations that segregate and restrict access to "indecent" leased access programming. The new cable law also directs the FCC to restrict the content of public, educational and governmental access programming. The statutory language is both broad and vague, banning any material that contains "sexually explicit conduct, or . . . soliciting or promoting unlawful conduct." The new cable restrictions are particularly troubling because the leased and public-access provisions of the original law were intended to enhance an important new medium of communication, whose virtually unlimited channel capacity would make possible a public electronic "soapbox." The FCC can significantly minimize the censorship effect of the vague new "indecency" and "promoting unlawful conduct" provisions by construing them narrowly in the course of its rule-making. Similarly, the Commission can enhance free expression in the broadcast spectrum through narrow construction of the congressional "indecency" restriction, and by careful fact-finding in regard to the presence of unsupervised children among viewers. RECOMMENDED ACTIONS 1) Urge the FCC to promulgate regulations that are sensitive to the values of free expression, and that construe legislative restrictions on the broadcast and cable media narrowly. 2) Support legislation that would dispense with vague, content-based restrictions on broadcast and cable. -------------------------------------------------- Free Speech > COLLEGIATE FREE SPEECH PROTECTION ACT ISSUE The "hate speech codes" promulgated by public and private institutions of higher education in response to racial, religious, ethnic and sexual tensions on campus violate principles of academic freedom and free speech. While students attending public institutions enjoy the protection of the First Amendment, those attending private schools do not. BACKGROUND In response to racial, religious, ethnic and sexual tensions on college campuses, many universities have enacted speech codes that prohibit or punish expressions that offend minorities and women, and that contradict our society's professed interest in equality. The problems that verbal expressions of hate and bigotry symptomize, and that campus speech codes purport to address, are real problems that institutions of higher education must address. But those institutions should never sacrifice First Amendment principles to do so. Students are done a severe disservice when they are taught that certain speech is so harmful that we can throw out a cherished and important liberty. Instead of suppressing speech, school administrators should speak out loudly and clearly against expressions of racist, sexist, homophobic and other bias, and react promptly and firmly to acts of discriminatory harassment; create forums and workshops to raise awareness and promote dialogue on issues of race, sex and sexual orientation; intensify their efforts to recruit members of racial minorities on student, faculty and administrative levels, and reform curricula to reflect the racial and social diversity of peoples that have contributed to human knowledge and society, in the United States and throughout the world. Campus speech codes have been used to punish both serious instances of harassment that may be constitutionally subject to punitive responses, and speech that is protected against government suppression by the First Amendment. As arms of the government, state institutions of higher learning are subject to First Amendment constraints, and speech codes instituted by these universities have been struck down in federal court when challenged. See e.g., Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 773 F. Supp. 792 (E.D. Va. 1991); UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, No. 90-C-328, slip op. (E.D. Wis. Mar. 29, 1990); and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). Because the First Amendment does not apply to private colleges and universities, and because the sanctioning of words or ideas jeopardizes academic freedom, federal legislation is needed to provide speech protection at private institutions that receive federal funding. The proposed Collegiate Speech Protection Act, introduced as H.R. 1380 in the last Congress by Representative Henry Hyde (R-IL), appropriately addresses this issue by granting students at schools that receive federal funds a private right of action to vindicate their free speech rights. The rights the Act protects at these private campuses are coextensive with those guaranteed by the First Amendment. RECOMMENDED ACTION Support the Collegiate Free Speech Protection Act. -------------------------------------------------- Free Speech > COMMERCIAL SPEECH ISSUE Recent government attempts to restrict commercial speech by prohibiting the advertising of unpopular services and products, such as abortion services, cigarettes and alcoholic beverages, violate the First Amendment. Government bans based solely on content are not constitutionally permissible. BACKGROUND The Constitution broadly protects free speech, and the commercial nature of expression should not provide an excuse for infringement merely because the government disdains the message. Although commercial speech does not enjoy the degree of protection enjoyed by non-commercial speech, the remaining free speech guarantee is, nevertheless, substantial. Too often this somewhat lesser level of protection is used to justify restrictions aimed at disdained, but legal, products. Suppressing speech that pertains to such products cannot substitute for suppressing products that may be legally banned. Attempted restrictions often come up in the form of bans or burdens on the advertising or promotion of such products as cigarettes and alcohol, or such services as abortion. These restrictions violate the First Amendment. Advertising and sales talk convey ideas that are fully entitled to constitutional protection. As the Supreme Court has recognized, a "consumer's interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763 (1976). During the last Congress, various attempts were made, inter alia, to prohibit the advertising of abortion-related services, reduce the business-expense deductibility of advertising expenses associated with tobacco products, bar the use of certain culturally significant names on product brands and augment Federal Trade Commission authority to regulate advertising that was not misleading or fraudulent, but "unfair." All of these policies, statutory and regulatory, are questionable under the First Amendment and should not be pursued further. The regulation of commercial speech solely because government disdains the product being promoted cannot be justified under the Constitution. RECOMMENDED ACTION Send a clear message to the relevant regulatory agencies and the Congress that commercial speech is entitled to First Amendment protection. -------------------------------------------------- Free Speech > THE NATIONAL ENDOWMENT FOR THE ARTS ISSUE The politicization of the National Endowment for the Arts has led to content-based grantmaking decisions that have little to do with artistic merit. NEA and Congressional attacks on controversial artists and their work have created a chilling effect on artistic expression throughout the country. BACKGROUND The National Endowment for the Arts was founded by Congress in 1965 for the purpose of fostering "free inquiry and expression," and instructed to insure that "conformity for its own sake is not . . . encouraged." 111 Cong. Rec. 13,108. The overriding standard was to be "artistic and humanistic excellence." 111 Cong. Rec. 13,100. For almost 25 years, the NEA functioned as an independent agency, fulfilling its mandate and funding a wide range of artistic works. During that time, NEA grant recipients included such artists as Erica Jong, Richard Serra and Martha Graham. In 1989, several members of Congress, joined by private pressure groups, launched an attack on the NEA, claiming that it had given grants to artists whose work was "anti-Christian" and "pornographic." Over the ensuing months, works of art that depicted women's anger over male dominance and homosexual and heterosexual practices and lifestyles were denounced and ridiculed by members of Congress during debates over NEA budget appropriations. Certain members of Congress demanded information about NEA-funded artists whose work explored political and sexual issues. By 1990, the agency had begun to bow to the pressure, rejecting grants to artists of demonstrated merit if their work had been, or was likely to become, the target of sensationalist publicity. Meanwhile, in 1989 and 1990 Congress passed two unprecedented content-based restrictions on NEA funding, both of which were subsequently struck down as unconstitutional by federal courts. Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F.Supp. 774 (C.D.Cal. 1991); Finley v. NEA, No. CV 90-5236 (June 9, 1992). The NEA has capitulated to Congressional and private pressure and rejected grants to artists out of fear that those artists' work would become the target of sensationalist publicity. These content-based decisions, in turn, have had a chilling effect on artists throughout the country who understand that they must conform their artistic expression to the NEAs ideological standards in order to receive funding. Indeed, in the spring of 1992, the acting chair of the NEA testified before a Congressional subcommittee that the Endowment would no longer fund "sexually explicit" art. The recent actions of the NEA are antithetical to its founding principle: the encouragement of free inquiry and expression. RECOMMENDED ACTIONS 1) Reaffirm a commitment to keep the National Endowment for the Arts independent of politics. 2) Oppose any efforts to impose content restrictions on the grantmaking process, whether by legislation or administrative regulation. -------------------------------------------------- Free Speech > THE HATCH ACT ISSUE Hatch Act restrictions, which amount to a categorical ban on political speech and association, unnecessarily thwart millions of federal employees in the exercise of their basic First Amendment rights. BACKGROUND The Hatch Act, 5 U.S.C. Secs. 7321-27, was passed in 1939 in response to reports of abuse by federal employees during the 1936 and 1938 election campaigns. It has been amended many times since that date, but its basic purpose remains the same: to promote efficiency and integrity in government by denying federal employees the right to participate fully in the political process. The Act was intended to free the worker of the 1930s from threats and coercion by superiors, but today it is nothing more than a political muzzle on the voices of workers and is no longer -- if it ever was -- needed. Many substantial changes have been made in the makeup of the federal labor force, and in the system of reporting and dealing with abuse. We now have a Merit Systems Protection Board that protects nearly 80 percent of federal workers, and both civil and criminal penalties exist to punish coercion, threats and intimidation in the federal workplace. The Hatch Act not only regulates speech, it prohibits core political speech by federal employees. Currently, federal employees are not allowed, among other prohibitions, to solicit contributions for, or endorse candidates for partisan elections; to run for office in partisan elections, or to speak at political conventions or distribute campaign material in partisan elections. Moreover, these restrictions apply to elections at all levels of government, without regard to whether the federal employee has u sed (or could use) his or her official authority or influence to affect the outcome of an election, or to coerce a subordinate. Whatever the federal government's interest in preventing political coercion in the public work force, the Hatch Act restrictions go too far: they are a categorical ban on speech. Legislation to reform the Hatch Act was passed by the 101st Congress and vetoed by President Bush. The veto was overridden in the House, but fell short by two votes in the Senate. Similar legislation was introduced in the 102d Congress (S. 914, H.R. 20) and reported out of the Senate Governmental Affairs Committee. The bill retains safeguards against coercion and abuse of office, but restores to federal civilian employees their right -- with certain prohibitions -- to take an active part in political campaigns. Hatch Act Reform Amendments of 1992, Report of the Comm. on Governmental Affairs, U.S. Senate (May 5, 1992). The prohibition against running for partisan political office remains. RECOMMENDED ACTION Support prompt enactment of the Hatch Act Reform Amendments. -------------------------------------------------- Free Speech > BAN ON FEDERAL EMPLOYEE HONORARIA ISSUE Under current law, federal employees are prohibited from accepting honoraria or other compensation for speeches, articles and appearances, even if such activities are completely unrelated to the their jobs. This prohibition directly impinges on the First Amendment rights of federal employees. BACKGROUND The Ethics Reform Act of 1989, Pub. L. 101-194, 103 Stat. 1716, 1760-63 (November 30, 1989), makes it unlawful for members of Congress and federal employees to receive honoraria (payments of money or anything of value) for speeches, articles or appearances, whether or not those activities are in any way job-related. Substantial civil penalties are provided for violation of the honoraria law. 5 U.S.C. app. Sections 501, 504 (a). It is clear from the legislative history of the law that Congress was concerned with the actual and perceived impropriety caused by the longstanding practice whereby members of Congress received honoraria from parties who had potential interests in legislation. See e.g., 135 Cong. Rec. H8746, H8747 (daily ed. Nov. 17, 1989). The legislative record is devoid of any evidence either that similar abuse occurred in the federal workforce or that Congress intended to reach the off-the-job First Amendment activities of federal workers. Whatever Congress' intent, the new law has had the effect of directly impinging on the First Amendment rights of federal employees. Individuals who write articles that are totally unrelated to their federal jobs -- on gardening, history or the arts -- or who give lectures on religion or modern dance, may no longer be compensated for their work. Regulations promulgated under the law have further chilled expressive activities by adding a confusing layer of content-based rules and exceptions. 56 Fed. Reg. 1721, 1725-6. Bills were introduced in the 102d Congress to narrow the honoraria ban for federal employees to apply only to cases where either the subject matter of the article, appearance or speech is related to official duties or status, or where the source of the honoraria has an interest that may be substantially affected by the performance of an individual's official duties. (H.R. 325, S. 242). A similar bill passed the Senate in the 101st Congress. The House of Representatives passed H.R. 325 in 1991, but the Senate bill failed to reach the floor. During this period, a number of federal employees and unions filed suit charging, inter alia, that the honoraria law directly burdened speech, did not further a substantial government interest, was overbroad and was unconstitutionally vague. See e.g., National Treasury Employees Union v. United States, 788 F. Supp. 4 (D.D.C. 1992). On March 19, 1992, the law was struck down on constitutional grounds. See id. However, the District Court stayed the decision pending appeal, leaving federal workers to suffer additional constitutional injury in the interim. The United States appealed and argument was heard in the D.C. Circuit on November 6, 1992. RECOMMENDED ACTIONS 1) Support legislation to modify the ban on honoraria for federal employees. 2) Reconsider the government's legal position in National Treasury Employees Union v. United States. See also: AIDS: Centers for Disease Control AIDS Prevention Program CAMPAIGN REFORM: Campaign Financing CAMPAIGN REFORM: Electoral Free Speech IMMIGRANTS' RIGHTS: First Amendment Rights of Aliens NATIONAL SECURITY: Classification System NATIONAL SECURITY: Freedom of Information Act NATIONAL SECURITY: Restrictions on the Press and Others in Publishing Government Information NATIONAL SECURITY: Ideological Visa Denials PRIVACY: Telephone Technology REPRODUCTIVE FREEDOM: The Gag Rule WORKERS RIGHTS: Electronic Surveillance -------------------------------------------------- RELIGIOUS FREEDOM INTRODUCTION The First Amendment's protection of religious freedom retains vital significance for our time. Its prohibition against governmental interference with the "free exercise" of religion prohibits government from interfering with, or burdening, a person's religious practices except in the most extraordinary circumstances. The requirement that there be no "establishment" of religion means that the government is forbidden to take any action that directly or indirectly enhances any or all religions. In recent years, the Supreme Court has become less hospitable to claims of religious liberty and has seriously eroded free exercise rights in a series of decisions. It is even more essential, therefore, that the political branches assume an added obligation to preserve the heritage of religious freedom embodied in the Bill of Rights. The First Amendment's guiding principles are familiar, notwithstanding the fact that the Supreme Court's recognition of them is increasingly undependable. * First, the government may not interfere with the free exercise of religion except for the most compelling reasons. * Second, the wall of separation between church and state must remain intact, so that those who do not belong to the majority religion are not branded or made to feel as outsiders in their own communities. The wisdom of the Framers was in recognizing that adherence to both of these principles will go a long way toward ensuring that this country does not suffer the sectarian strife that has plagued so many societies. Attention: Department of Health and Human Services Department of Justice -------------------------------------------------- Religious Freedom > THE ESTABLISHMENT CLAUSE ISSUE The Bush Administration took the legal position that proof of government coercion is required in order to find a violation of the First Amendment's Establishment Clause. This is a radical departure from Supreme Court precedent and would, if adopted by the Court, lead to the establishment of religion. BACKGROUND The Establishment Clause prohibits the government from passing laws "which aid one religion, aid all religions, or prefer one religion over another." Everson v. Board of Education, 330 U.S. 1, 15 (1947). For nearly 50 years, the Supreme Court and constitutional scholars have also generally agreed that "[t]he Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." Engel v. Vitale, 370 U.S. 421, 430 (1962). These fundamental principles, which have largely fulfilled the goal of the Framers to separate religion and government for their mutual benefit, are now very much in jeopardy. In particular, the Justice Department has spearheaded an effort to reverse a half-century of Establishment Clause law by insisting that government is free to support religion so long as it avoids the more blatant forms of coercion. See, e.g., Brief of the United States as Amicus Curiae at 15-19, Lee v. Weisman, 60 U.S.L.W. 4723 (June 24, 1992). Until recently, this position had been repeatedly, consistently and properly rejected by the Supreme Court. E.g., School District of Abington Township v. Schempp, 374 U.S. 203, 224-25 (1963); Committee for Public Education v. Nyquist, 413 U.S. 756, 786 (1973); Wallace v. Jaffree, 472 U.S. 38, 60 n.51 (1985); County of Allegheny v. ACLU of Greater Pittsburgh, 492 U.S. 573, 627-28 (1989) (O'Connor, J., concurring). However, last year's decision in Lee v. Weisman, 60 U.S.L.W. 4723 (June 24, 1992), has raised new concerns that the Court may be poised to adopt a coercion test under the Establishment Clause. The effort to justify an establishment of religion that is not accompanied by coercion (however broadly or loosely that term is defined) is fundamentally misconceived for a variety of reasons. As a matter of constitutional history, it is clear that the Framers of the Constitution were concerned about any government endorsement of religion, whether coercive or not. See generally Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent," 27 Wm. & Mary L.Rev. 875 (1986). As a matter of constitutional logic, a coercion test would strip the Establishment Clause of any independent meaning since the government is already barred from coercing religious practices by the Free Exercise Clause. See, Employment Division v. Smith, 494 U.S. 872 (1990). And as a matter of constitutional value, a coercion test would seriously breach the wall of separation between church and state that has largely insulated our country from the religious strife that has plagued so many other societies. RECOMMENDED ACTION Direct the Justice Department to develop litigation policy that repudiates the coercion test and reaffirms prevailing Establishment Clause jurisprudence. -------------------------------------------------- Religious Freedom > FREE EXERCISE ISSUE The First Amendment right to religious liberty is a fundamental right that deserves the utmost protection from majoritarian intolerance. Today, as the result of a 1990 Supreme Court ruling, the free exercise of religion receives minimal judicial protection. BACKGROUND Religious freedom is one of the founding principles of this nation, and its protection as a constitutional right deserves vigorous support. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court dramatically departed from earlier precedent and held that an individual's religious beliefs do not relieve that person from compliance with an otherwise valid and neutral law of general applicability. The result was at odds with three decades of constitutional jurisprudence and gave government broad authority over religious beliefs and practices. In so ruling, the Court abandoned the compelling-interest justification that it has required whenever government encroaches on constitutionally protected fundamental rights. Religious freedom now receives minimal judicial protection and is, instead, largely dependent on the tolerance and sensitivity of political majorities. In a wide variety of cases applying the Smith precedent, religious claimants have lost where previously they would have won. Thus, among other instances denying free exercise rights, autopsies have been performed on Jews and Hmongs over their sincere religious objections, a church has been excluded from an area zoned for commercial and industrial use and landmarking boards have denied churches permission to make changes in their buildings. During the last Congress, 193 Representatives and 27 Senators co-sponsored the Religious Freedom Restoration Act (RFRA), a bill that provides statutory protection for religious freedom equal to the pre-Smith constitutional standard. Under RFRA, government may not burden the free exercise of religion absent a compelling state interest that is effectuated in the least restrictive manner. That standard has proven to be a workable test for striking a proper balance between religious liberty and competing governmental interests. In October 1992, the House Judiciary Committee approved RFRA, but the bill did not reach the House floor before the session ended. Nevertheless, it received wide bipartisan support, as well as the endorsement of a diverse group of religious and civil liberties organizations. Enactment of RFRA would do more to promote religious liberty than any legislative measure since the First Congress proposed what became the First Amendment. RECOMMENDED ACTION Support quick passage of the Religious Freedom Restoration Act. -------------------------------------------------- Religious Freedom > CHILD CARE REGULATIONS ISSUE The Department of Health and Human Services has promulgated regulations that permit tax dollars allocated by Congress for child care services to be used for religious purposes. These regulations violate the First Amendment's Establishment Clause. BACKGROUND The Establishment Clause stands as an absolute bar to government funding of religious activities, but new child care regulations violate both the Constitution and the underlying statute by permitting child care vouchers to be spent for religious purposes. In 1990, Congress enacted the Child Care and Development Block Grant Act to increase the availability, affordability and quality of child care. The Act created a block grant program to encourage states to develop contractual relationships with private child care providers, and to develop a certificate program through which qualifying parents could pay for child care services at the providers of their choice with government-issued vouchers. The Act contains a religious nondiscrimination requirement for eligible providers, 42 U.S.C. Section 9858l, and a provision prohibiting the support of religious activities, 42 U.S.C. Section 9858k. The latter provision is unequivocal, prohibiting the use of the financial assistance authorized by the Act from being expended "for any sectarian purpose or activity -- including sectarian worship or instruction," 42 U.S.C. Section 9858k(a). The requirement applies equally to assistance channeled through parental choice, through government grant or through contract. Disregarding this clear mandate, the Department of Health and Human Services promulgated regulations on August 4, 1992 that mandate the opposite result. The new regulations state that parental choice certificates, "[m]ay be expended by providers for any sectarian purpose or activity which is part of the child care services, including sectarian worship or instruction." 45 C.F.R. Section 98.30(c)(4); 57 Fed. Reg. 34,419 (Aug. 4, 1992). The Department's regulation violates both the authorizing statute and the Establishment Clause. Moreover, by establishing that religious worship and instruction are within the scope of activities that may be supported by government funds, the regulations effectively undermine the Act's religious non-discrimination provision. It is relatively easy for a sectarian child care provider to demonstrate that it does not turn away individuals of another religion, while making the setting undesirable for them by insisting on participation in denominational worship services and religious education, all with the apparent approval of the state because of the regulation's permissive spending provision. The regulations must be changed to comply with constitutional and statutory mandates. RECOMMENDED ACTIONS 1) Abolish the Department of Health and Human Service's current regulatory provisions; 2) Promulgate new regulations that: a. forbid the use of government child care funds to support sectarian activities, and b. assure that any sectarian activities are sufficiently segregated from the child care services as to avoid a constitutionally impermissible link between government and religion. See also: EDUCATION: Vouchers NATIVE AMERICANS: American Indian Religious Freedom Act -------------------------------------------------- CAMPAIGN REFORM INTRODUCTION Participation in the political process consists of much more than the franchise. It is built upon expression. Indeed, democratic self-government cannot exist without freedom of speech. Justice Louis Brandeis wrote in 1927: "freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth." Whitney v. California, 274 U.S. 357, 375 (1927). For these reasons, it is critical that government not curtail speech but, instead, see its role as enhancing expressive opportunities to participate in the nation's political discourse. To accomplish this goal, meaningful campaign finance reform must bring more people into the process by providing the financial means without holding down the politically expressive activities of others through the imposition of contribution or spending limits. Moreover, electoral laws must recognize the substantial political free speech rights of nonprofit, ideological organizations without undue restriction. Attention: Federal Election Commission -------------------------------------------------- Campaign Reform > CAMPAIGN FINANCING ISSUE Campaign finance reform can be an important step toward increasing access to the political system for newcomers and challengers. Public financing does not, however, give the government the right to restrict political speech and association. The constitutionally appropriate method is to expand, rather than limit, the resources available for political advocacy. BACKGROUND Political speech is a critical form of expression in our democracy. Consistent with constitutional principles, campaign reform laws should be aimed at increasing political discourse, rather than limiting it. The current system of private campaign financing causes disparities in the ability of different groups, individuals and candidates to communicate their views on politics and government. Congressional efforts to reform the current system should not restrict political speech by imposing contribution and expenditure caps. Instead, public financing should be authorized in order to expand political participation and understanding. Such an exercise of power by Congress has been upheld by the Supreme Court as a constitutional exercise of authority "to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising." Buckley v. Valeo, 424 U.S. 1, 91 (1976). Public financing, however, should not be used as a device to give the government a restrictive power over political speech and association. Limitations on either contributions or expenditures made for the purpose of advocating causes or supporting candidates in the public forum impinge directly on freedom of speech and association. Contribution limitations are constitutionally troubling and burden lesser known candidates, as well as those with views that do not immediately generate popular support. For those candidates, wealthy backers, unrestricted by contribution limitations, may be the only means of reaching enough people to win elections or influence public policy. Moreover, expenditure limitations, as Buckley recognized, "necessarily reduce[s] the quantity of expression by restricting the number of issues discussed, the depth of their exploration and the size of the audience reached. This is because virtually every means of communicating in today's mass society requires the expenditure of money." Id. at 19. In our view, the imposition of contribution and expenditure caps in return for partial public financing, as proposed by Congress last year, amounts to an unconstitutional condition on freedom of speech. In essence, it amounts to government buying an agreement from candidates that they will not speak as freely and frequently as they otherwise might, and that the candidates will also impose additional limits on the expressions of support they will accept from others. RECOMMENDED ACTIONS 1) Support Congressional efforts to begin public financing of Congressional primaries and general elections for all legally qualified candidates. 2) Oppose the use of financing as a means of imposing contribution and/or expenditure limitations. -------------------------------------------------- Campaign Reform > ELECTORAL FREE SPEECH ISSUE In ruling that political speech lies at the core of the First Amendment, the Supreme Court has decided that the government may not restrict the ability of nonprofit corporations to spend money on federal election campaigns. But in its attempt to implement the Supreme Court's ruling, the Federal Election Commission has issued regulations that seriously undermine the First Amendment principles set forth by the Court. BACKGROUND In FEC v. Massachusetts Citizens for Life ("MCFL"), 479 U.S. 239, 259 (1986), the Supreme Court ruled that the provisions of the Federal Election Campaign Act that prohibit corporations and labor unions from making expenditures "in connection with" federal elections cannot constitutionally be applied to nonprofit corporations "formed to disseminate political ideas, not to amass capital." On July 29, 1992, the Federal Election Commission published a set of proposed regulations, 57 Fed. Reg. 33,548, ostensibly designed to implement the holding of MCFL. In fact, the proposed regulations would seriously undermine the First Amendment principles set forth in MCFL in several significant ways. First, the initial premise underlying the MCFL decision is that political speech lies at "the core of the First Amendment," 479 U.S. at 251, and that any restrictions on political speech must be narrowly drawn to serve a compelling state interest. Id. at 256. The Court then held that "the concerns underlying the regulation of corporate political activity are simply absent with regard to" nonprofit organizations like MCFL. Id. at 263. In its proposed regulations, the FEC has suggested a rule that would prohibit any nonprofit organization that receives any corporate or labor support, no matter how minimal, from making any expenditures "in connection with" a federal election. See 57 Fed. Reg. at 33,567. That approach cannot be reconciled with MCFL. Cf. FEC v. National Organization for Women, 713 F. Supp. 428, 430-31 (D.D.C. 1989). Second, the MCFL decision reiterated that any restriction on corporate expenditures must be limited to "express advocacy" to distinguish the discussion of issues from "exhortations" to vote for specific candidates. 479 U.S. at 248-49; see also Buckley v. Valeo, 424 U.S. 1, 44 (1976). Once again, the proposed FEC regulations blur this constitutionally compelled distinction by expanding the definition of "express advocacy" to include support for "a clearly identified group of candidates." 57 Fed. Reg. at 33,560. Among other things, this language would arguably prevent a pro-choice group from expressing its generalized support for pro-choice candidates, or a women's group from urging the election of more women. This attempt to dilute the "express advocacy" rule has likewise been rejected by the lower courts. Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), cert. denied, 112 S. Ct. 79 (1991). Third, the proposed regulations would require the FEC to play the sort of censorship role that it has too often and too enthusiastically played in the past. For example, alternative versions of the proposed rules either limit or prohibit an organization's ability to issue press releases announcing support for a particular candidate. 57 Fed. Reg. at 33,565. Under either version, these rules are inconsistent with the free marketplace of ideas. RECOMMENDED ACTION Urge the Federal Election Commission to either withdraw or reconsider its proposed regulations on corporate and labor expenditures "in connection with" federal elections that have been published at 57 Fed. Reg. 33,548 (1992). See also: FREE SPEECH: The Hatch Act -------------------------------------------------- NATIONAL SECURITY INTRODUCTION The United States victory in the Cold War abroad represents the triumph of the ideals of democracy and individual liberty, which have been most perfectly expressed to date in the United States Constitution. During the Cold War, however, the government frequently restricted civil liberties in the name of national security, arguing that restrictions were necessary to meet the threat of a monolithic Communist conspiracy. While the worst abuses of McCarthyism are behind us, many Cold War restrictions on individual liberty and democratic processes remain. For example, Americans' freedom to travel abroad is still restricted in the name of national security. There is still an enormous legal and bureaucratic structure of government secrecy that covers millions of documents and millions of government employees. The tumultuous political changes that have taken place in the world over the last five years require a reassessment of the necessity and the constitutionality of the present secrecy system that justifies restrictions on the First Amendment, due process, privacy and other rights of citizens in the name of "national security." A systematic review should be undertaken to catalogue and evaluate those restrictions. It is time to end the Cold War at home by eliminating restrictions on individual liberty, and by restructuring the government secrecy system that now permits the government to operate undemocratically, in secret and without individual accountability. Attention: Central Intelligence Agency Department of Defense Department of Energy Department of Justice Department of State Department of Treasury General Services Administration National Security Council Selective Service Administration -------------------------------------------------- National Security > CLASSIFICATION SYSTEM ISSUE The present classification system for national security information, instead of working to protect truly sensitive material, works largely to shield Executive Branch officials and activities from public scrutiny. BACKGROUND The present classification system has burgeoned out of control. Last year, seven million new records were classified, and most classified documents -- perhaps as many as 90 percent -- do not meet the standards for classification in the first place or have long ago ceased to pose a threat to the national security. See Preliminary Joint Staff Study on the Protection of National Security Secrets, House Judiciary Subcomm. on Civil and Constitutional Rights and House Post Office and Civil Services Subcomm. on Civil Service (Oct. 25, 1985). Documents are often marked classified to protect politically embarrassing information, to hide government misconduct, to manipulate public opinion or to impede Congressional oversight. The widespread practice of overclassifying documents undermines democratic decision-making and distorts history. Moreover, "when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. . . .." New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring). The current Executive Order #12356 on National Security Information (47 Fed. Reg. 14874, April 2, 1982) swept away reforms intended to enhance the public's right to know government information. Among other things, it lowered the minimum standard for classification, required that all doubts be resolved in favor of secrecy and discarded the requirement that potential harm to national security, in the release of information, be balanced against the public interest. RECOMMENDED ACTIONS 1) Repeal Executive Order #12356 on National Security Information and replace it with a new order that fundamentally reforms the classification system to significantly restrict the amount of classified information. 2) Direct an inter-agency committee to draft a new order, with an early deadline, that: a. provides maximum protection to the most vital national security secrets (e.g., weapons technology, ongoing diplomatic negotiations, plans for military operations), and maximum disclosure of all policy-related information that would assist Congress in carrying out its constitutional responsibilities; b. subjects all other national security information to a standard requiring that harm to national security be substantial and identifiable, and that in each case it be balanced against the public interest of release, with a presumption in favor of releas e; c. requires all documents to be marked with a date or event for release, and all documents to be automatically declassified after a limited period of time. 3) Establish a declassification program that gives special emphasis to historically valuable records related to the Cold War. 4) Appoint a "Cold War Commission" that includes prominent historians from outside the government to supervise the review and expedite declassification of documents to ensure that United States Cold War records are made available, along with records from other countries, to further historical understanding of the Cold War. -------------------------------------------------- National Security > FREEDOM OF INFORMATION ACT ISSUE Under the Reagan and Bush Administrations, the letter and spirit of the Freedom of Information Act -- to ensure maximum and prompt disclosure of government information to the public -- have been seriously undermined. BACKGROUND The Freedom of Information Act (FOIA) requires all government agencies to release all records unless they fall within one of the specific statutory exemptions. 5 U.S.C. Section 552 et seq. The statute incorporates the presumption that government information should be made public and that it should be done quickly, within ten days of a request. Even when information falls within one of the statutory exemptions, the agency still has the option to disclose such information unless it is private information about an individual, protected from disclosure by the Privacy Act, or its release is prohibited by a specific statute. Executive Branch agencies, however, have essentially reversed the basic FOIA presumptions of government openness and disclosure. Most agencies take months, if not years, to respond to requests even when the information is of vital public interest. Such delays permit political manipulation of the process: e.g., the expedition of requests for personal information on President-elect Clinton that, is in any event, protected from disclosure by the Privacy Act, while refusing to release before the election information about the illegal searches of passport files conducted by the State Department. In addition, the Executive Branch has also resisted complying with other open government laws, specifically, the Government in the Sunshine Act, 5 U.S.C. Section 552b, and the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II. FOIA should not, however, be extended to the Congress. See William Safire, New York Times, 10/29/92, at A27. The constitutional role of Congress differs from that of the Executive Branch; Congress, by its nature, acts more openly. The effect of extending the FOIA to Congress would be to make less, not more, information publicly available. See Cong. Rec., Nov. 21, 1991, H-10810 (statement of Cong. Bob Wise). RECOMMENDED ACTIONS 1) By Executive Order, affirm the importance of the Freedom of Information Act and the other open government statutes, such as the Federal Advisory Committee Act and the Government in the Sunshine Act. 2) Require all agencies to maximize disclosure to the greatest extent possible and to develop procedures to respond as quickly as possible to FOIA requests. 3) Review current Executive Branch policies, regulations and litigation positions and revise them to achieve these goals. This review should include revision, in particular, of current Justice Department and Office of Management and Budget guidelines. For example, the Justice Department should be directed not to defend FOIA withholdings unless "disclosure [is] demonstrably harmful, even if the documents fall within the exemption in the Act." See, May 5, 1977 letter of Attorney General Griffin Bell to Heads of all Federal Departments and Agencies. 4) Order all federal agencies not to withhold documents on the grounds that they disclose intelligence sources and methods, unless they also meet the new requirements for classification. 5) Direct that information may not be withheld to protect law enforcement sources except when the source is, in fact, a confidential one and is still alive. 6) Support legislation amending the Freedom of Information Act to ensure greater openness and more timely processing. -------------------------------------------------- National Security > SECURITY CLEARANCES ISSUE The security clearance system is based on outmoded Cold War presumptions and authorizes extremely intrusive and unconstitutional invasions of the privacy rights of government and defense contractor employees. BACKGROUND Millions of government and defense contractor employees require security clearances, even though they rarely, if ever, handle truly sensitive information. These employees are subjected to unnecessary and intrusive invasions of their privacy, such as having to reveal intimate details unrelated to their job duties, see, e.g., National Agency Questionnaire, Department of Defense Form 398-2 revised March, 1992, asking for details of all counseling for any purpose, and in some cases having to submit to drug testing and polygraphs. The current security clearance process continues to reflect outdated Cold War presumptions, and unnecessarily concentrates resources on intrusive preclearance background investigations. These investigations are aimed at revealing subjective personal factors that have no relevance to whether a person is likely to disclose classified information. Homosexuals continue to be singled out as high security risks. See High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.), reh'g denied, 909 F.2d 375 (9th Cir. 1990). The denial or revocation of clearance damages reputations and usually results in loss of employment. See Standards and Due Process Procedures for Granting, Denying and Revoking Security Clearances, Joint Hearings before the Subcomm. on Civil Service of the Comm. on Post Office Civil Service and the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, U.S. House of Representatives, 101st Cong., 1st and 2d sess. (Oct. 5, Nov. 2, 16, 1989; Feb. 28, Mar. 8, 1990). Yet government employees whose clearances are denied or revoked are afforded little, or often no, due process rights to contest the decision. Government contractor employees receive somewhat better, but still inadequate, due process protections. See Executive Order 10865, "Safeguarding Classified Information Within Industry," 25 Fed. Reg. 1583, Feb. 20, 1960. Lack of due process increases the risk that the clearance determination may be used to harass whistleblowers or discriminate against disfavored groups. The unnecessarily large number of people with clearances, and the unnecessarily broad investigation process, means that resources are spread too thin to permit a truly focused and effective counter-intelligence effort. RECOMMENDED ACTIONS 1) Revamp the security clearance system to reduce the number of positions requiring clearances; to prohibit discrimination against gay men and lesbians in making clearance determinations, and to limit background investigations to factors that are demonstrably related to government employment or the security of information. For many jobs, the decision to hire should automatically entitle that person to a clearance. 2) Replace Executive Orders 10450 and 10862 with a new order that provides full due process protections for all persons whose clearances are denied or revoked. This process should include a meaningful hearing before a neutral decision maker, representation by counsel, an opportunity to cross examine witnesses and judicial review for abuse of discretion. 3) Rescind Executive Order #12564, which mandates drug testing in each agency. Drug testing of cleared employees should be allowed only with a warrant based on probable cause and individualized suspicion. See, Skinner v. Railway Labor Executives' Assn, 489 U.S. 602, 635 (1989) (dissenting opinion of Justice Marshall); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 680 (1989) (dissenting opinion of Justice Scalia). 4) End the use of polygraphs on cleared government employees. In the interim, limit use of polygraphs to investigations of specific charges against a specific individual. -------------------------------------------------- National Security > RESTRICTIONS ON THE PRESS AND OTHERS IN PUBLISHING GOVERNMENT INFORMATION ISSUE Unconstitutionally and without authorization from Congress, the Reagan and Bush Administrations have criminalized and otherwise penalized the disclosure of government information to the media. The Executive Branch has improperly required employees to submit their writings for prepublication review after they leave the government, for the rest of their lives. It has sought prior restraints against the publication of government information. Recent administrations have imposed unconstitutional restrictions on media coverage of several wars. BACKGROUND Previous administrations have imposed unconstitutional and unauthorized restrictions on government officials, the press, and others in publishing government information. Prosecution of disclosures of government information. Congress has consistently refused to enact an "Official Secrets Act" to criminalize the release of non-public government information. Any such law would, in any event, run afoul of the First Amendment. See Edgar & Schmidt, The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929, 940-41 (1973). Congress has, however, criminalized the release of certain narrow categories of information, taking into account the public interest in knowing such information, as well as the harm from disclosure. In general, such statutes criminalize only release by government employees, not subsequent publication by others. See, e.g., Atomic Energy Act, 42 U.S.C. Sections 2274, 2277; Intelligence Identities Protection Act of 1982, 50 U.S.C. Section 421. Nevertheless, the Reagan and Bush administrations have improperly used the general theft and espionage statutes to prosecute individuals who leaked or received government information, as if those statutes constituted an official secrets act. See Statement of John C. Keeney, Deputy Assistant Attorney General, House Comm. on the Judiciary, Aug. 2, 1989. The general theft of government property statute, 18 U.S.C. Section 641, was intended to apply to tangible goods, not to disclosures of information. The espionage statute, 18 U.S.C. Section 793, was specifically aimed at classic espionage -- the covert transmission of information to foreign agents with the knowledge that the United States would be harmed thereby. The Reagan Justice Department first prosecuted Samuel Morison for leaking a classified photograph of a Russian aircraft carrier to a publishing house. United States v. Morison, 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988). The Justice Department has since expanded its use of section 641 to prosecute not only government officials but also those who receive the information; and it has applied the statute to even unclassified information. Such prosecutions pose a serious threat to the First Amendment rights of citizens and the news media. Current Justice Department interpretation of these statutes would authorize criminal prosecution of a newspaper reporter who receives a leaked document. Pre-publication review. The government may properly discharge Executive Branch employees who publicly disclose classified information in violation of their agreement not to do so. However, some Executive Branch agencies now also require employees to submit their writings for prepublication review after they leave government employment -- for the rest of their lives. The government enforces such requirements by seizing the proceeds of any non-cleared publication, even when such publication contains no classified information. See Snepp v. United States, 444 U.S. 507 (1980). Such censorship violates the First Amendment. Prior restraints. The Executive Branch has also sought prior restraints against the publication of government information, even when that information would not cause immediate and direct irreparable harm to the country, but rather is information important to public debate about fundamental policy matters. New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon Papers case); United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972); United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). Media restrictions during wartime. During the invasions of Grenada and Panama, and during the Persian Gulf War, the Defense Department imposed unconstitutional restrictions on press coverage of those military actions, including restricting media access to members of an officially designated press pool and requiring reporters to submit to prepublication review by military censors. The Nation Magazine v. U.S. Department of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991). RECOMMENDED ACTIONS 1) Direct the Justice Department to immediately cease prosecuting leaks of government information under the general government theft and espionage statutes until its policy can be thoroughly reviewed and revised. 2) Cease requiring lifetime prepublication review of writings by ex-government employees. 3) Disavow the use of prior restraints against publication of government information. 4) Suspend current Defense Department rules regarding press coverage of combat, and review whether such rules are necessary. -------------------------------------------------- National Security > INTELLIGENCE OVERSIGHT ACCOUNTABILITY AND THE INDEPENDENT COUNSEL ISSUE During the Reagan/Bush Administrations, a series of scandals demonstrated how secret intelligence agencies can and do abuse their power. Having intelligence agencies carry out foreign policy initiatives in secret is consistent with open and democratic government only if accompanied by independent oversight and individual accountability of agency officials. BACKGROUND Before the 1976 revelations of the Senate Church Committee about illegal and unconstitutional intelligence activities, the nation's intelligence agencies were accountable only to the President and his advisors. Congressional oversight was ad hoc at best, with intelligence agencies often reporting only to the chair of the relevant committee. Prosecutions of intelligence agency officials for criminal conduct were unknown. In the late 1970s, Congress established the House and Senate Intelligence Committees with primary and comprehensive oversight responsibilities for the entire intelligence community. Because the intelligence agencies are not subject to the normal public scrutiny that other agencies face, the Intelligence Committees must serve as surrogates for the public. The ability of these two committees to perform this vital function is, however, dependent upon the Executive Branch acting in good faith by providing them with required information. However, Intelligence officials have frequently concealed, obfuscated and sometimes even intentionally deceived their Congressional overseers in order to avoid revealing controversial activities. Notwithstanding the prosecution of Richard Helms and the Iran-Contra defendants, some agency officials still do not understand that lying to Congress is a crime. And, there are no specific criminal laws penalizing violations of the restrictions and procedures that govern intelligence activities. Intelligence agencies are sometimes able to prevent prosecutions of agency officials simply by refusing to release classified information. See United States v. Fernandez, 913 F.2d 148 (4th Cir. 1990); Second Interim Report to Congress by Independent Counsel for Iran/Contra Matters, at 37-38 (Dec. 11, 1989). Given these problems and the conflict of interest inherent in the Justice Department investigating executive officials suspected of lying to Congress, a mechanism for the appointment of Independent Counsel is a necessary part of oversight and an important remedy against intelligence abuses. However, the law authorizing their appointment expired on December 15, 1992. RECOMMENDED ACTIONS 1) Inform the intelligence agencies that the President will not tolerate deception of Congress, and that intentional deception will be criminally prosecuted. Provide that in certain circumstances witnesses may refuse to answer questions, but that all answers must be truthful. Direct the Director of Central Intelligence to be forthcoming with the intelligence committees and not wait for them to ask questions. 2) Urge Congress to reauthorize the Independent Counsel statute on a permanent basis, and consider appointing a permanent special prosecutor for intelligence matters within the Justice Department. 3) Support the strengthening of intelligence oversight laws, and study the need for additional criminal sanctions for their violation, as well as the need for new procedures to deal with situations in which the Independent Counsel and the Attorney General differ on the need to disclose classified information. See the Second Interim Report to Congress by Independent Counsel for Iran/Contra Matters, at 53-60. -------------------------------------------------- National Security > THE MISSION OF THE INTELLIGENCE AGENCIES ISSUE Now that the Cold War has ended, the Executive Branch should search for ways to cut back on the nation's massive and inherently undemocratic secrecy system. Instead, however, the intelligence agencies have launched a campaign to enlarge their mandates to cover non-national security matters, such as the global economy. BACKGROUND The Director of Central Intelligence, Robert Gates, has testified that "[p]olicymakers identified new requirements relating to, among other things, environmental, natural resource and health issues, indicating that the Intelligence Community has a wider range of customers than ever with interests that extend beyond traditional national security concerns." (Congressional testimony, Apr. 1, 1992.) While the government has a legitimate interest in collecting and analyzing information on these important issues, assigning the task to the intelligence agencies -- which operate under the cloak of almost complete secrecy -- would make government information more inaccessible to the public and more government policy formulated and implemented in secret, without public debate. With the Cold War over, the intelligence community should be examining ways to dismantle the secrecy system, not looking for ways to make new policy areas secret and unaccountable. RECOMMENDED ACTIONS 1) Refrain from asking the intelligence community to collect and analyze information on issues not within the traditional definition of national security: military defense and diplomatic relations. 2) Study how to collect global information and analyze it in a manner consistent with open and democratic government. -------------------------------------------------- National Security > WAR POWERS ISSUE Central to the structure of our government is the constitutional provision that only Congress can declare war and authorize offensive uses of force. Yet Presidents Reagan and Bush read this provision out of the Constitution. BACKGROUND Recent Presidents have asserted that they have unilateral constitutional authority as Commander in Chief to use military force any time they deem fit, even in defiance of Congressional opposition. President Bush recently reiterated that he "didn't have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait," and his advisors have asserted that Bush would have gone to war against Iraq even if Congress had voted against it. A central tenet of the Constitution's checks and balances scheme was to ensure that no single person or branch could take the country into war. Accordingly, the Constitution states that only Congress can declare war or grant letters of marque and reprisal, United States Constitution art. I, Section 8, cl. 11, while it makes the President Commander in Chief of the armed forces. Art. II, Section 2. This distribution of power means that the President cannot initiate use of the military force at his command without the prior consent of Congress. The only exceptions are to "repel sudden attacks" on the United States and its forces, and possibly for the limited purpose of rescuing or protecting U.S. persons unlawfully held abroad. Historically, presidents who took military action without Congressional authorization did so knowing they were in violation of the Constitution. The War Powers Resolution was passed in 1973, over Nixon's veto, as a modest, though flawed, attempt to restore the constitutional check by establishing procedures for effectuating the war-making powers of both branches. 50 U.S.C. Section 1541. Since then, only President Carter declared that he would abide by its terms. Presidents Reagan and Bush repeatedly violated the Resolution. During the Persian Gulf War, the constitutional balance was somewhat restored. The Congress recognized that it must accept its constitutional responsibility and decide whether the United States should use force against Iraq. Just prior to its vote supporting the use of force against Iraq, the House of Representatives voted overwhelmingly, 302-131, in support of a resolution asserting that "the Constitution vests all power to declare war in the Congress ...Any offensive action taken against Iraq must be explicitly approved by the Congress of the United States before such action may be initiated." H.Con.Res. 32 (102nd Cong., 1st sess., Jan. 12, 1991). Such Congressional authorization is not only constitutionally required, but also politically essential for any military endeavor. Without Congressional and popular support for the war effort from the beginning, the President cannot present a unified national front abroad and risks major political divisiveness and upheaval at home. RECOMMENDED ACTIONS 1) Affirm the principles of the Declare War Clause of the Constitution and the War Powers Resolution, which stipulate that the President will not commit armed forces into hostile situations without the explicit consent of Congress. 2) Support revision of the War Powers Resolution to establish effective procedures for ensuring Congressional authorization of all uses of force. 3) Affirm that the Executive Branch will provide all necessary information to Congress in connection with such decisions. -------------------------------------------------- National Security > COVERT ACTION ISSUE Covert action has been used increasingly by the Executive Branch as a means to conduct foreign policy initiatives without the knowledge or support of Congress, and even to circumvent specific Congressional restrictions as happened in Iran-Contra. Covert action has also led to numerous instances of lying by government officials. This practice is antithetical to a democratic form of government. BACKGROUND At the beginning of the Cold War, the United States adopted covert action as a foreign policy instrument in direct response to similar Soviet activities. Policymakers argued that we had to "destroy our enemies by more clever, more sophisticated and more effective methods than those used against us. It may become necessary that the American people will be made acquainted with, understand and support this fundamentally repugnant philosophy." Senate Church Committee Report, No. 94-755, Bk. I, at 9. Americans have become all too familiar with this "repugnant philosophy" through covert action failures and subsequent illegal coverups. The Reagan Administration came to rely on covert action more as a convenient means of avoiding domestic political opposition to controversial foreign policy initiatives than as a necessary means to achieve stated policy objectives. This point was most tellingly revealed when Robert McFarlane testified, at the Iran-Contra hearings, that the President and his advisors "turned to covert action [in Nicaragua] because they thought they could not get Congressional support for overt activities." Moreover, the Nicaragua operation, as well as others in the 1980s, demonstrated that there is no such thing as a truly "covert" paramilitary action. Such actions involving the use of force are covert in name only; they are well known to the foreign countries involved, remaining secret, if at all, only from the Congress and the American public. Other forms of covert action are also now carried out publicly, e.g., the National Endowment for Democracy openly works to aid foreign opposition groups and influence foreign elections. RECOMMENDED ACTIONS 1) Conduct a comprehensive historical review and net assessment of covert actions in the post-Cold War era. Specifically consider whether they should continue at all. See The Need to Know: Report of the Twentieth Century Fund Task Force on Covert Action and American Democracy (1992), p.9 (recommendations). 2) Announce substantive limitations on the use of covert action, including bans on assassinations, subversions of democratic governments and elections, and support for police or other internal security forces that violate human rights. 3) Affirm that no covert paramilitary action will be undertaken without prior Congressional notice and authorization, with an exception only if time is of the essence -- and then Congress must be notified within 48 hours. 4) Support legislation codifying these substantive and procedural limitations. -------------------------------------------------- National Security > DRAFT REGISTRATION AND CONSCIENTIOUS OBJECTION ISSUE Many draft-age Americans are currently deemed lawbreakers because, for reasons of conscience, they have refused to register for the draft. BACKGROUND Because there is now no means for young men to register their intention to seek conscientious objector status, many are forced to forego registration and face lifelong penalties, including denial of enrollment at some state universities, loss of educational financial aid and ineligibility for certain kinds of federal employment. See, e.g., 50 U.S.C. app. Section 462(f) (the "Solomon amendment"). Moreover, military conscription violates the constitutional rights to free association, freedom from involuntary servitude and privacy. Because compulsory registration is inextricably bound to military conscription, the constitutional arguments against the draft are equally applicable to the registration process. With the end of the Cold War, the nation has begun a process of downsizing its military. The rapid mobilization of the overwhelming military force the United States placed in the Persian Gulf in 1990 and 1991 demonstrated the irrelevance of the draft, and confirmed the military's contention that an all-volunteer army was superior to one that consisted of reluctant conscripts. RECOMMENDED ACTIONS 1) Revoke Proclamation No. 4771 (July 2, 1980, 45 Fed. Reg. 45247, 94 Stat. 3775), which provides for the current registration system. This can be done by proclamation. See Proclamation No. 4360 (March 29, 1975, 40 Fed. Reg. 14567, 89 Stat. 1255) (President Ford revoking registration and draft requirements from Vietnam War.) 2) Seek no funding for the Selective Service System, including the draft registration. 3) Support legislation that repeals the Military Selective Service Act, 50 U.S.C. app. Sections 451 et seq. 4) Urge Congress to restore the rights of those who were penalized for failing to register for reasons of conscience. -------------------------------------------------- National Security > AMERICANS' RIGHT TO TRAVEL ABROAD ISSUE Previous administrations declared parts of the world off-limits to Americans purely for foreign policy reasons, not because of any danger. These restrictions have impeded the free exchange of information and ideas between Americans and foreigners in a variety of ways. BACKGROUND The right to travel. The right of Americans to travel abroad, free of government restrictions, is critical to our ability to participate fully in the debate on foreign policy and international security matters. See Kent v. Dulles, 357 U.S. 116 (1958). Recent world events demonstrate that exposure to Americans and our ideas were also powerful factors in the demise of communism. Nevertheless, throughout the Cold War, the Executive Branch continually restricted this right in the name of national security -- for example, declaring entire countries off-limits. In 1978, Congress amended the Passport Act to limit area restrictions to situations in which the safety of American travelers is threatened. 22 U.S.C. Section 211(a). However, since 1982, the Executive Branch has used the economic embargo laws effectively to ban travel by Americans, thereby circumventing these statutory limitations. Current Treasury Department regulations under the Trading With the Enemy Act (TWEA), 50 U.S.C. app. Section 5, and the International Emergency Economic Powers Act ("IEEPA") (50 U.S.C. Sections 1701-1706), treat personal travel-related expenditures as economic transactions prohibited or restricted under comprehensive trade embargoes. See, e.g., Cuban Assets Control Regulations, 31 C.F.R. 515. The Carter Administration had exempted personal travel expenses from the general embargoes then in effect against Cuba, North Korea, Cambodia and Vietnam, but the Reagan Administration reimposed the ban on travel to Cuba in 1982. The Supreme Court upheld this use of the embargo authority, despite the Court's acknowledgement that it infringes upon the constitutionally protected right to travel. Regan v. Wald, 468 U.S. 222 (1984). The Right to Exchange Information. In 1988, Congress passed the Berman Amendment to the Omnibus Trade Act, prohibiting government restrictions on trade in informational materials. 50 U.S.C. app. Section 5(b)(1); 50 U.S.C. Section 1702(a)(1)(B). This law reflected the growing consensus among policymakers and the public that foreign policy objectives must be pursued without infringing upon the First Amendment rights of Americans. Nevertheless, Treasury regulations under the embargo laws continue to infringe rights protected by the First Amendment. For example, they ban the import or export of paintings between the U.S. and certain embargoed countries, as well as telecommunications transmissions. The embargo authority is also used to prohibit the establishment of permanent news bureaus in embargoed countries. RECOMMENDED ACTIONS 1) Amend the Treasury Department's Foreign Assets Control Regulations to exempt from trade restrictions: all individual and group travel; exchanges of information; scientific, educational, religious and cultural exchanges, and the opening of permanent news bureaus with embargoed countries. 2) Support legislation to permanently prohibit such restrictions under the trade embargo statutes. Such legislation has been introduced in the last three Congresses and enjoyed bipartisan support. 3) Suspend enforcement of 50 U.S.C. Section 3504 to the extent that it bans importation of "subversive" publications. 4) Urge Congress to adopt legislation repealing that provision. -------------------------------------------------- National Security > IDEOLOGICAL VISA DENIALS ISSUE Despite the end of the Cold War and Congressional repeal of all ideological exclusions for temporary visitors, the State Department continues to bar foreigners who hold controversial views from traveling here to speak to Americans. BACKGROUND One of the most infamous measures of the Cold War era was the McCarran-Walter Act, a law that bars Communists and others holding controversial political views from temporarily visiting the United States. 8 U.S.C. Section 1182. Under this law, U.S. audiences have been deprived of their First Amendment right to hear the views of controversial visitors invited to address the political topics of the day. For example, a Presidential proclamation issued in 1985 pursuant to this law still bars most Cubans from being admitted to this country. Proclamation Suspending Entry as Nonimmigrants by Officers or Employees of the Government of Cuba or the Community Party of Cuba, October 8, 1985. Even after the law was amended to restrict the exclusion of visitors on the basis of Communist affiliation, the State Department continued to exclude people with controversial views on the ground that their mere entry would cause harm to U.S. foreign policy. In 1990, Congress finally repealed all of the McCarran-Walter Act's ideological exclusions for temporary visitors. Immigration Act of 1990, P.L. No. 101-649, Title VI (November 29, 1990). At the same time, the law gives the Executive the authority to exclude visitors on the ground that their mere entry would harm U.S. foreign policy. The asserted harm may be based on beliefs, statements or associations if the Secretary of State personally determines that the foreign policy interest is "compelling." Congress also replaced the ideological exclusions provisions with a provision for excluding persons who engage in terrorist activity. However, the Executive Branch is now misconstruing that provision to cover individuals who support the political goals of organizations labeled terrorist, even though those individuals have never engaged in any terrorist activities themselves. This misinterpretation resurrects ideological tests for coming here to speak. RECOMMENDED ACTIONS 1) Reject the use of visa determinations to make foreign policy "statements." 2) Limit exclusions of visitors to instances where the visitor's proposed activities in the United States -- other than speech -- would cause tangible harm. 3) Purge the Justice Department's "alien look-out list" (NAILS) of all names listed on the basis of the person's beliefs or associations. -------------------------------------------------- National Security > GOVERNMENT SURVEILLANCE ISSUE The federal government continues to investigate and keep records on the First Amendment activities of Americans, even in the absence of any evidence that they are engaged in unlawful activities. BACKGROUND With the beginning of the Cold War and the advent of McCarthyism, the government investigated vast numbers of people whose political views it suspected of being "subversive." Watergate-era revelations confirmed that such government investigations, which violated the First and Fourth Amendments, had continued into the 1970s and encompassed the civil rights and anti-war movements. These activities included the use of secret informers to spy on political organizations, surveillance, harassment, disruption and illegal break-ins by the FBI as part of its infamous COINTELPRO operations. They also included the creation of large numbers of secret government files on political opponents and other Americans, that recorded lawful political beliefs and activities. The temptation by government officials to utilize the investigative powers of the FBI, CIA and other intelligence and law enforcement agencies against perceived "hostile" domestic political opponents remains great. Such activities are now governed by Executive Order and Attorney General guidelines, but that has not solved the problem. For example, Executive Order #12333 (46 Fed. Reg. 59,941, Dec. 4, 1981) authorizes secret, warrantless searches of Americans' houses and papers, solely upon the Attorney General's approval. Abuses still occur -- including, for example, the photographing of anti-Persian Gulf War demonstrators by the General Services Administration. Few statutory restrictions exist to prevent a resurgence of the worst abuses, as the Reagan Administration scuttled nearly completed efforts by Congress and President Carter to enact a comprehensive statutory FBI charter. While the Privacy Act prohibits the collection, maintenance or use of information on individuals' First Amendment activities except when relevant for law enforcement purposes, 5 U.S.C. Section 552a(e)(7), agencies violate this provision by continuing to keep and disseminate such information even when it is not relevant or necessary to any law enforcement purpose. Moreover, obtaining judicial remedies for such violations and other abuses has proved difficult. See, e.g., Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (en banc). RECOMMENDED ACTIONS 1) Study the continued need for such government investigations, given the end of the Cold War. 2) Rescind Executive Order #12333. Issue a new order that applies to government agents acting both within and outside the United States, and that: a. restricts all government agencies from investigating Americans without a reasonable suspicion of criminal activity; b. prohibits Fourth Amendment searches without proper notice, without a warrant and without probable cause and individualized suspicion of criminal activity; c. requires a warrant for the use of informers in the investigation of groups. 3) Strengthen administrative controls over national security investigations conducted by the FBI, and over CIA investigations of Americans abroad, e.g., the Attorney General Guidelines and the Justice Department Office of Intelligence Policy and Review and make those guidelines public. 4) Support legislation that codifies restrictions on the investigative powers of the government, and ensures protection of First and Fourth Amendment rights. 5) Review the issue of the existence of government files on Americans' First Amendment activities, adopt measures to notify individuals who have such files and measures to expunge or seal such files at the option of the individual. Adopt procedures to ensure compliance with the requirements of the Privacy Act regarding information on First Amendment activities. 6) Affirm the right of independent judicial review of claims that government investigations have violated constitutional rights and, to that end, carefully review the litigation positions taken by the government in such cases. See also: DRUG POLICY: Militarization of Drug Law Enforcement IMMIGRANTS' RIGHTS: HIV Exclusions IMMIGRANTS' RIGHTS: First Amendment Rights of Aliens INTERNATIONAL HUMAN RIGHTS: Covenant on Civil and Political Rights INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties INTERNATIONAL HUMAN RIGHTS: Abduction of Foreign Nationals LESBIAN AND GAY RIGHTS: Security Clearance LESBIAN AND GAY RIGHTS: Military Ban -------------------------------------------------- CIVIL RIGHTS ENFORCEMENT INTRODUCTION The Clinton Administration must renew this nation's commitment to achieving equality of opportunity for all Americans, without regard to race, national origin, religion or gender. That goal, while not explicitly disavowed, was severely dishonored during the last 12 years. The Los Angeles uprising that followed in the wake of the Rodney King verdict provided sad testimony to the fact that the goal of equality is now more distant and elusive than at any point since the civil rights movement began. The President must provide immediate moral leadership in this critical area. We can achieve authentic and tangible progress, but the Clinton Administration must begin by rebuilding the entire civil rights infrastructure of the federal government. We no longer even have effective mechanisms to measure the magnitude of our nation's problem in this area. Important institutions, such as the United States Commission on Civil Rights, were effectively undermined, although not dismantled, during the Reagan/Bush Administrations. Serious attention must be paid to each of the areas in which minorities and women suffer the daily injury of discrimination: employment, education, housing, health care and voting rights. We need a clear statement that the nation is committed to providing equality of rights and opportunities, and a recognition that historically disadvantaged groups deserve their share of the American dream. Each workplace, school and neighborhood should be reflective of the great diversity in this country, and a good place to start is with the government itself. Attention: Department of Education Department of Health and Human Services Department of Housing and Urban Development Department of Justice Department of Labor Equal Employment Opportunity Commission Federal Housing Authority United States Commission on Civil Rights -------------------------------------------------- Civil Rights Enforcement > THE CIVIL RIGHTS ACT OF 1991 ISSUE The Civil Rights Act of 1991, a significant weapon in the nation's fight against inequality, has been severely undermined by the Bush Administration's unduly restrictive interpretation of some of its key provisions. BACKGROUND President Bush signed the Civil Rights Act of 1991 on November 21 of that year. The Act was intended to reverse a number of Supreme Court decisions that had undermined meaningful civil rights enforcement by narrowly interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., and the Civil Rights Act of 1868, 42 U.S.C. Sections 1981-1982. The Civil Rights Act of 1991 also closed certain gaps that had existed in civil rights coverage, e.g., the provision of damages and the availability of jury trials in cases of intentional gender discrimination in employment. The 1991 Act, inter alia, effectively overrules portions of Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), which had significantly increased the burdens of proof and the liability standards that a victim of discrimination must prove. This important civil rights victory was jeopardized, however, by White House directives to federal agencies charged with enforcement that took unduly constricted--and inaccurate--views of the Act. The President's directive touched on almost every aspect of the newly enacted statute. Two of the most egregious aspects of the Administration's approach concerned the question of the Act's applicability to pending litigation ("retroactivity") and to construction of the statute's "disparate impact" provision. 1. Applicability to Pending Lawsuits. As a civil rights statute, the 1991 Act should be construed liberally to apply, at a minimum, to all cases pending at the time of its enactment. By contrast, the Bush Administration adopted the narrowest possible interpretation of the statute's reach and ordered all federal agencies with enforcement powers to act on that view. A number of federal circuit courts have examined the issue of the 1991 Act's retroactivity, and have ruled on the question of its applicability to cases seeking to enforce 42 U.S.C. Section 1981 or damages to redress intentional sex discrimination in employment. With the exception of the Ninth Circuit, Davis v. City and County of San Francisco, No. 91-15113 (9th Cir. Oct. 6, 1992), they have all refused to apply the Act to pending cases, e.g., Johnson v. Uncle Ben's, 965 F.2d 1363 (5th Cir. 1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied, 1135 S. Ct. 86 (1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir. 1991), cert. denied, 113 S. Ct. 207 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992); Gersman v. Group Health Ass'n, 975 F.2d 886 (1992). These decisions ignore the very strong arguments in favor of the retroactive effect of certain of the Act's provisions, especially relating to disparate impact analysis, to damages and to the applicability of Section 1981 to certain discriminatory employment practices. Congress clearly stated that only two sections of the 1991 Act were not to be applied retroactively-- the section granting extraterritorial jurisdiction to Title VII, and a narrow provision of the "disparate impact" section that exempts the Wards Cove Company from the Act's coverage. Basic rules of statutory construction dictate that the balance of the Act is intended to be retroactive and, at a minimum, applied to cases based on pre-Act violations, but filed after enactment. Failure to apply many of the Act's provisions will lead to confusion and anomalous and inconsistent results and will frustrate the purpose of the Act. 2. "Disparate Impact" Provisions. The Bush Administration's directive similarly took a cramped and inaccurate view of the Act's "disparate impact" provisions. The outcome of this seemingly technical dispute is fundamentally important to ensuring meaningful equal employment opportunity to minorities and women. The new law returns to the defendant the burden of proving that a challenged employment practice that has a disparate adverse impact on the basis of race, sex, national origin or religion is "job related for the position in question and required by business necessity." The provision of the Act dealing with business necessity requires the employer to prove that the challenged practice is both job-related for the position in question and consistent with business necessity. The Act permits a claimant to show the disparate impact caused by an employer's decision-making process as a whole where s/he can show that the various elements of the process are "not capable of separation for analysis." The Act states that its purpose is to codify the concepts of "business necessity" and "job related" enunciated in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and its progeny up to Wards Cove. The Bush Administration took the implausible position that the Act does not reverse Wards Cove. RECOMMENDED ACTIONS 1) Rescind and reverse the Bush Administration's directive to federal agencies concerning the interpretation of the Civil Rights Act of 1991. 2) By Executive Order, make clear, at a minimum, that: a. the Civil Rights Act of 1991 applies to all cases pending as of the Act's enactment; b. perpetrators of discrimination must meet a stringent standard of business necessity to justify employment practices that have a disproportionately adverse effect on minorities and women. -------------------------------------------------- Civil Rights Enforcement > TEST SCORE NORMING ISSUE Despite the promise of equal opportunity, women, minorities and other historically disadvantaged groups remain disproportionately excluded from many types of jobs for which they are, in fact, fully qualified by the operation of so-called pencil and paper tests. BACKGROUND Many qualified women and minorities continue to be barred from jobs and promotions because of the disproportionately adverse impact of paper and pencil employment tests. Many tests, particularly multiple choice tests, measure different groups differently. The continued use of these tests effectively erects an insurmountable paper barrier to many jobs and promotions where such tests are required. Contrary to popular belief, a finding of disparate impact, standing alone, does not preclude the use of such a test. The National Academy of Sciences recently found that the General Aptitude Test Battery (the "GATBy") is unfair to African Americans, i.e., black people with lower scores perform many jobs better than whites with higher scores. Yet the GATBy is routinely used by the United States Employment Service (unemployment offices) to refer people to jobs. To adjust for the problem, the Labor Department has been using lower cut-off scores for African Americans. The Civil Rights Act of 1991 prohibits the users of tests from adjusting scores or using different cut-off scores on the basis of race, sex, national origin or religion. Unfortunately, however, the Act contains no concomitant requirement that an employment test be both valid and fair. As a result, tests like the GATBy can continue to be used, despite their exclusionary effect on qualified minority applicants, without score norming. Such a result is radically at odds with the principle of equal opportunity. RECOMMENDED ACTIONS 1) Review all paper and pencil tests currently used by federal agencies to ensure that they are valid and do not disproportionately exclude qualified women and minorities. 2) Support amendments to Title VII and, in the interim, urge the Equal Employment Opportunity Commission to issue guidelines that make clear that employment tests must be fair and valid, and in cases where they are not fair, valid score norming is permissible. -------------------------------------------------- Civil Rights Enforcement > CAPS ON DAMAGES ISSUE Legislation is needed to ensure that women and people with disabilities can obtain meaningful damages when they prove intentional discrimination in employment. BACKGROUND The availability of damage awards in employment discrimination cases is a powerful deterrent to continued violation of our nation's civil rights laws. Until recently, however, employers found guilty of intentional sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, were subject only to back pay and injunctive remedies. Although Section 1981 of the Civil Rights Act of 1964 allows for an award of damages in cases of discrimination on the basis of race and national origin, it does not apply to discrimination on the basis of sex. The Civil Rights Act of 1991 partially corrects that problem by enacting Section 1981A, which grants women the right to sue for damages in cases of intentional sex discrimination in employment. Section 1981A, however, includes caps on the amount of damages available. The new law also allows for damages to redress intentional violations of the Americans with Disabilities Act (ADA), but these damages are also subject to a cap. By contrast, Section 1981 places no such caps in discrimination cases affecting race or ethnicity. RECOMMENDED ACTION Support the Equal Remedies Act. -------------------------------------------------- Civil Rights Enforcement > TITLE VI ISSUE Under the Bush Administration, federal agencies failed to enforce Title VI of the Civil Rights Act of 1964 to ensure that the Act protects the right of minorities to equal opportunity in programs that receive federal funds. BACKGROUND Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d, provides that no person shall be discriminated against on the basis of race, color or national origin under any program or activity receiving federal financial assistance. Title VI applies to education institutions, state and local governments, private corporations and entities that they establish. The statute is enforced in suits by the Attorney General and private parties bringing lawsuits directly against the recipients of federal funds, and by administrative proceedings by federal agencies for termination of funding or other relief. Every federal department and agency empowered to extend financial assistance through a grant, loan or contract is required to enforce the nondiscrimination provisions of Title VI. Unfortunately, during the last 12 years, Title VI enforcement has been largely ineffective because the various federal agencies have not taken their roles as monitors of the statute's anti-discrimination requirements seriously. Federal agencies have argued that they lacked authority to end discrimination in their areas of regulatory expertise. They have also resisted civil rights goals. One federal court, for example, strongly criticized the Department of Housing and Urban Development for having an attitude of "amiable apartheid" in funding racially segregated public housing, and for failing to take steps to end discrimination in the distribution of federal housing funds. Young v. Pierce, 628 F. Supp. 1037, 1056 (E.D. Tex. 1985). Rather than taking a leadership role in helping to eradicate racial discrimination, the federal government, instead, contributed to this longstanding and divisive problem. RECOMMENDED ACTIONS 1) Direct the Attorney General to implement Title VI's prohibition on discrimination in federally assisted programs and activities. 2) Direct the Attorney General to require all recipients of federal financial assistance to collect and report demographic data about program beneficiaries to ensure that federal funds are not being expended in a way that disproportionately disadvantages minorities. -------------------------------------------------- Civil Rights Enforcement > HOUSING DISCRIMINATION ISSUE The Bush Administration failed to take seriously the need to end racial discrimination in residential housing. As a result, residential segregation continues to divide the nation. BACKGROUND The Fair Housing Amendment Act of 1988 (FHAA), which became effective on March 12, 1989, represented a major civil rights victory that strengthened federal housing discrimination law in several important respects. The FHAA was designed primarily to correct problems in enforcement and coverage under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Sections 3601-3619 (commonly known as the Fair Housing Act), and significantly increased the power of the Department of Housing and Urban Development to enforce fair housing rights. 1. Redlining. A major discriminatory practice that contributes to residential segregation is the phenomenon of "redlining," a practice by which financial institutions discriminate against a homebuyer or homeowner on the basis of the racial composition of the neighborhood in which the home is located. The federal government has itself been a major perpetuator of redlining. As far back as the New Deal, the Federal Housing Authority "redlined black neighborhoods and refused to insure mortgages within them." Michael B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America 244 (1986). Fair housing regulations promulgated by HUD now make clear that the Act prohibits redlining, see 24 C.F.R. Section 100.70(b)-(d), and federal courts have found statutory violations where redlining was undertaken by banks and savings and loans, Harrison v. Otto Heinzeroth Mortg. Co., 430 F. Supp. 893 (N.D. Ohio 1977); Laufman v. Oakley Building & Loan Co., 408 F. Supp. 489 (S.D. Ohio 1976); see Cartwright v. American Sav. & Loan Ass'n, 880 F.2d 912 (7th Cir. 1989); Southend Neighborhood Improvement Assn. v. County of St. Clair, 743 F.2d 1207 (7th Cir. 1984); insurance companies, see NAACP v. American Family Mutual Insurance Co., No. 91-1176 (7th Cir. October 20, 1992); McDiarmid v. Economy Fire & Cas. Co., 604 F. Supp. 105 (S.D. Ohio 1984); Dunn v. Midwestern Indemnity Mid-American Fire & Casualty Co., 472 F. Supp. 1106 (S.D. Ohio 1979); and real estate appraisers, see United States v. American Institute of Real Estate Appraisers, 442 F. Supp. 1072 (N.D. Ill. 1977). Nevertheless, redlining persists and contributes to the severe problem of racial segregation in our communities. Redlining in the home mortgage area is especially serious. A Federal Reserve Board study -- compiled from evidence submitted by banks pursuant to the 1990 Home Mortgage Disclosure Act and released in October 1991 -- found the mortgage application denial rate to be much higher for African Americans and Latinos than for whites and Asians, even accounting for income disparities. For the highest income applicant groups, denial rates nationally were 21.4 percent for African Americans, 15.8 percent for Latinos, 11.2 percent for Asians and 8.5 percent for whites. Insurance redlining has equally pernicious effects. As the 1968 President's National Advisory Panel on Insurance concluded more than twenty years ago: "Insurance is essential to revitalize our cities. Insurance is a cornerstone of credit. Without insurance, banks and other financial institutions will not -- and cannot -- make loans." 2. Public Housing Segregation. Another discriminatory practice that adversely affects housing opportunities for poor minorities is the segregation that remains in our nation's public housing. When first developed, many housing projects were subject to explicit racially segregated admission policies. Long after de jure discrimination became constitutionally impermissible, patterns of racial segregation continued to be perpetuated by tenant-assignment practices and site-selection rules. In some cities, safety and conditions also vary considerably in public housing, depending on the race of the tenants. The federal government has a statutory obligation to ensure that federally financed housing does not contribute to the disease of racism that infects our country. Segregation also taints other forms of federally subsidized housing. In 1988, Congress passed legislation that would allow indigent tenants to use federal rent subsidies anywhere in a state, rather than just in the jurisdiction issuing the certificate. See 42 U.S.C. Section 1437f(r) (1992). HUD has never developed regulations to effectuate this important anti-segregation measure. As a result, many African American and Latino tenants remain isolated in racially segregated communities because their federal rent subsidies are not welcome in white communities. RECOMMENDED ACTION 1) Direct the Justice Department to adopt a policy of vigorous enforcement of the Fair Housing Act to end residential discrimination on the basis of race. Affirmative litigation should be undertaken to ensure that public agencies and private insurers do not engage in redlining or other discriminatory practices that result in racial segregation. 2) Direct the Department of Housing and Urban Development (HUD) and the Federal Housing Authority to require participants in their programs to keep and report data showing the racial and ethnic characteristics of program beneficiaries. 3) Direct HUD to issue regulations for the 1988 portability statute that gives Section 8 Certificate and Voucher holders the right to use their subsidies anywhere in the state. -------------------------------------------------- Civil Rights Enforcement > MINORITY SET-ASIDES ISSUE Set-aside programs for minority based enterprises should be supported as an important remedial option in federal efforts to increase minority participation in certain industries. BACKGROUND Affirmative action programs are indispensable if the nation is to fulfill the promise of equality contained in the Fourteenth Amendment. Among the more potent remedial options that the government possesses are minority set-aside programs, which are intended to increase minority participation in industries from which they have been historically excluded because of discriminatory barriers. Nevertheless, In City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989), the Supreme Court invalidated Richmond's construction contract set-aside program for minority business enterprises ("MBEs"). The Richmond program set aside 30 percent of the total dollar amount of city contracts for minority subcontractors, requiring general contractors to subcontract to MBEs. The Court, applying the highest form of equal protection review, strict scrutiny, struck down Richmond's MBE set-aside program because the city had no evidence of "identified" discrimination in the market in question and the program was not narrowly tailored to the goal of remedying identified discrimination. Despite Croson, Congress retains power to create minority set-aside programs to redress discrimination as part of its enforcement authority under Section 5 of the Fourteenth Amendment. In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court upheld minority set-aside programs established by Congress to enforce the dictates of the Fourteenth Amendment. Under Fullilove, Congress has the power to define situations that threaten principles of equality, and to adopt prophylactic measures for redress. RECOMMENDED ACTION Support legislation, based on Section 5 of the Fourteenth Amendment, to establish minority set-aside programs that are narrowly tailored to meet identified patterns of discrimination in important areas of economic life. -------------------------------------------------- Civil Rights Enforcement > AMERICANS WITH DISABILITIES ACT ISSUE People with disabilities have long experienced discrimination in all aspects of their lives. Congress passed the Americans with Disabilities Act in 1990 to address this problem. The challenge now is to make the promise of that law a reality for the millions of Americans it is intended to protect. BACKGROUND The Americans with Disabilities Act (ADA) protects people with disabilities from discrimination in employment, state and local government programs, public transportation and public accommodations (privately-owned entities that offer goods and services). It provides for enforcement by various agencies within the federal government, including the Equal Employment Opportunity Commission (EEOC) and the Department of Justice, and allows private parties to bring suit. Congress mandated a delayed and staggered phase-in period for the effective dates of the ADA's provisions, reasoning that those bound by the statute should have time to educate themselves about the law and take steps to comply. At this time, the statute is almost completely phased-in. Complaints are being filed with federal agencies and being received by members of the private bar. However, given the revolutionary nature of the ADA's protections and attorneys' concomitant lack of experience with ADA cases, much education still needs to be done to make the private bar effective in enforcing the law. Moreover, in addition to the novelty of the legal issues, attorneys are faced with new scientific and technical questions related to disabilities and their accommodation in the workplace and elsewhere. Similarly, the responsible government agencies are just beginning to tackle the task of enforcement. The Department of Justice has set up a new section within the office of Civil Rights to specialize in ADA enforcement. In the EEOC, however, no permanent office for ADA enforcement has been established, nor has a permanent director of enforcement been appointed. In both departments, the staffs assigned to ADA matters are inadequate in size. Elaborate regulations have been issued by the appropriate federal agencies that for the most part improve understanding of and compliance with the ADA. In one particular area -- the effect of the ADA on insurance coverage, particularly employers' health benefit plans --additional regulatory guidance is warranted. RECOMMENDED ACTIONS 1) Establish a permanent office of ADA enforcement within the EEOC. 2) Increase the staff assigned to ADA enforcement in both the Department of Justice and the EEOC. 3) Provide technical assistance and education programs to advocates for the disabled. 4) Instruct the EEOC to issue regulations clarifying the fact that the ADA prohibits disease-based discrimination in medical benefits plans. -------------------------------------------------- Civil Rights Enforcement > HEALTH CARE ISSUE Past administrations have not fulfilled their obligation to ensure that health care programs that receive federal funds do not discriminate on the basis of race. BACKGROUND Health care in the United States is separate and unequal, characterized by stark racial differences that are a matter of life and death. African Americans have twice the infant mortality rate of whites and a life expectancy that is six years shorter. Council on Ethical and Judicial Affairs, "Black-White Disparities in Health Care," 263 Journal of the American Medical Association 2344 (May 2, 1990). These disparities, the result of patterns of discrimination that persist in our country's system of health care delivery, are exacerbated by the mounting costs of health care, which disproportionately burden the poor. Over the last 12 years, the Department of Health and Human Services (HHS) and its Office of Civil Rights failed to take seriously their obligations under Title VI of the Civil Rights Act of 1964, to ensure that health care programs that receive federal financial assistance do not, by intent or effect, discriminate against African Americans. Discriminatory practices went unstopped: patient dumping, exclusion from nursing homes and wrongful denials of disability claims are merely examples. Nor did HHS even attempt to develop a national policy that would afford access to health care without regard to race or ethnicity. Existing health care legislation also has a detrimental impact on minorities. The Employee Retirement and Income Security Act of 1974 (ERISA), 29 U.S.C. Sections 1001-1242, for example, regulates employee benefit plans and preempts any state law that seeks to regulate employers who self-insure their employees. ERISA does not, however, contain anti-discrimination language. At a minimum, the distribution of health care provided by federal legislation must not have a disproportionately adverse impact on minorities and historically disadvantaged groups. RECOMMENDED ACTIONS 1) Direct HHS to review all programs that receive federal financial assistance and Medicaid and collect and report demographic data about program beneficiaries to ensure that federal funds are not being spent in a way that disproportionately disadvantages minorities. 2) Direct HHS to develop health policy that ensures African Americans and other minorities access to the health care they need in order to overcome the adverse effects of discriminatory exclusion. See also: ACCESS TO JUSTICE: Attorney's Fees ACCESS TO JUSTICE: Rule 11 Reform CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Enforcement CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Compliance EDUCATION: Equity in Testing and Education EDUCATION: Equity in Financing EDUCATION: Vouchers EDUCATION: Race-Exclusive Scholarships IMMIGRANTS' RIGHTS: HIV Exclusion IMMIGRANTS' RIGHTS: Employer Sanctions IMMIGRANTS' RIGHTS: Private Alienage Discrimination LESBIAN AND GAY RIGHTS: Discrimination NATIVE AMERICANS: Indian Civil Rights Act PRISONERS' RIGHTS: Civil Rights of Institutionalized Persons Act VOTING RIGHTS: Transfer of Decisionmaking Authority VOTING RIGHTS: Section 7 Enforcement VOTING RIGHTS: Section 7 Compliance WOMEN'S RIGHTS: Economic and Pay Equity WOMEN'S RIGHTS: Educational Equity WOMEN'S RIGHTS: Health Equity WOMEN'S RIGHTS: Military Combat-Exclusion WOMEN'S RIGHTS: Sexual Harassment in the Military WOMEN'S RIGHTS: Drug Dependent Women -------------------------------------------------- EDUCATION INTRODUCTION The constitutional issues of educational adequacy and equity are among the most important that the Clinton Administration will consider. As the Supreme Court explained in its landmark decision, Brown v. Board of Education, 347 U.S. 483, 493 (1954), "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity for education." Forty years after Brown, however, the promise of equal educational opportunity remains an empty promise for millions of children. The Clinton Administration must make clear that improvement of our nation's education system implicates fundamental issues of civil rights and civil liberties. The Administration must strike a decisive blow against the segregation and resegregation that taint our public school system. The Administration must take affirmative steps to end the "savage inequalities" that affect the quality of education provided in public schools. Finally, the Administration must ensure that programs of public school "choice" conform to accepted principles of the separation between church and state, and that they not disadvantage the children who are left behind in schools considered less desirable by more affluent or informed parents. The Clinton Administration must work to remove barriers that prevent minorities, women and others from securing access to higher education. Minority scholarships must be retained and expanded. The Administration must also urge the Department of Education to undertake vigorous enforcement of the anti-discrimination requirements of Titles VI and IX and their regulations. The Department of Education should use its regulatory power to encourage the development of admission and assessment standards for elementary, secondary and higher education programs that reflect cultural, ethnic, racial and ethnic diversity and that do not have a disproportionately adverse impact on minorities and females. Attention: Department of Education Department of Justice -------------------------------------------------- Education > EQUITY IN TESTING AND EVALUATION ISSUE The standardized tests used to evaluate elementary and secondary school students across the country operate to deny females and minorities important educational opportunities. The Office of Civil Rights of the Department of Education has been derelict in enforcing the protective testing and evaluation requirements of the Civil Rights Act of 1964. BACKGROUND The National Commission on Testing and Public Policy estimates that each year elementary and secondary school students take 127 million separate standardized tests, at a direct cost of between $90 million and $127 million annually. National Commission on Testing and Public Policy, From Gatekeeper to Gateway: Transforming Testing in America, 15,17 (1990). However, it has long been understood that standardized tests, although often regarded as an impartial method of evaluating student aptitude and achievement, in fact operate to deny people of color and women many important educational opportunities. For various reasons, including built in cultural biases and inferior schooling, such tests disadvantage minorities and women in their pursuit of scholarships and admission to competitive educational programs. When used as prerequisites for students to qualify for further education or diplomas or for entrance into various occupational fields, they have created significant barriers for these groups. Reliance on such tests has resulted in substantial over-representation of minorities in special education programs that stunt their educational attainment. The issue of bias in educational testing has been addressed by a number of courts. Applying principles developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, these courts have held that educational tests that have the effect of discriminating on the basis of race and/or national origin, and that are not shown by the test user to be required by "educational necessity," i.e., to bear a demonstrable relationship to classroom education, are in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d -- which prohibits discrimination on the basis race, national origin and religion in all programs receiving federal financial assistance, see e.g., Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); United States v. LULAC, 793 F.2d 636 (5th Cir. 1986); Debra P. v. Turlington, 730 F.2d 1405 (11th Cir. 1984). The same standard has been applied under Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681, to a test having the effect of discriminating on the basis of gender. Sharif v. New York State Education Department, 709 F.Supp. 345 (S.D.N.Y. 1989). As in the case of other areas of enforcement of these laws, the Office of Civil Rights of the Department of Education has been derelict in its implementation of the testing and evaluation requirements of Title VI and Title IX. The continued uncritical use of such tests is having a devastating impact on the educational opportunities of minorities and women. Moreover, due to understandable anguish over the manifest shortcomings of our educational system, many observers have advocated a more stringent testing apparatus, including a so-called "national test." Such a test, particularly if not accompanied by real reforms in the public school system, would not change anything, but would likely serve to stigmatize minorities and women and create barriers to their advancement. RECOMMENDED ACTIONS 1) Instruct the Department of Education's Office of Civil Rights to aggressively enforce Title VI and Title IX of the Civil Rights Act of 1964 to ensure that minorities, women and other historically disadvantaged groups are not denied equal educational opportunity because of discriminatory testing procedures. 2) Encourage the development of evaluation methods that do not discriminate on the basis of race, national origin or sex. -------------------------------------------------- Education > EQUITY IN FINANCING ISSUE Great disparities exist in the financing of elementary and secondary schools across the country. This results in unequal educational opportunity, especially for minority and poor students, denying them equal protection under the federal and state constitutions. BACKGROUND Equal educational opportunity must be the building block that underlies federal educational policy. The current decentralized system of financing American elementary and secondary education results in wide variations in educational spending from state to state, district to district and even school to school. These financing disparities result in unequal educational opportunity. Moreover, inequitable systems of school finance inflict disproportionate harm on minority and economically disadvantaged students. Lack of adequate funding affects a school system's preschool child development programs; class size; counseling and parental involvement programs; that school system's ability to attract and retain experienced faculty; its curricular offerings, physical plant and a variety of learning resources -- all of which have been shown to have a direct correlation with educational performance. Although the Supreme Court rejected an equal-protection challenge to school financing schemes in San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973), financing disparities undermine educational opportunities with severe ramifications for the country's democratic future. Moreover, state courts have upheld claims that school financing disparities deny equal protection and the right to education under state constitutions. See e.g., Abbott v. Burke, 575 A.2d 359 (N.J. 1990); Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Indep. School Dist. v. Kirby, 777 S.W.2d 391 (1989); Pauley v. Kelly, 255 S.E.2d 859 (W.Va. 1979); Horton v. Meskill, 376 A.2d 359 (Conn. 1977); and Serrano v. Priest, 487 P.2d 1241 (1971). Additional cases are now pending. It is appropriate for the federal government to play a role in promoting educational equity. Traditionally, the federal government has taken responsibility in education to assure that economically disadvantaged students receive additional assistance and to end discrimination. Both of these customary functions are implicated by funding inequities. With school districts already strapped for resources, the situation can only get worse without federal intervention. RECOMMENDED ACTION Use the leverage of grants-in-aid programs to require that states equalize educational spending among their districts and schools to ensure adequate education for all school children. -------------------------------------------------- Education > "CHOICE" VOUCHERS ISSUE The use of vouchers to subsidize the cost of education at private and parochial schools would have the effect of benefiting religion and of resegregating the nation's public schools, as well as raising church-state and equality concerns. BACKGROUND In response to general dissatisfaction with the nation's public schools, the Bush Administration and many others have promoted the concept of "education choice," whereby parents would receive vouchers to assist them in paying tuition at any school they choose -- public, private or parochial. The supposed evenhandedness of this proposal is illusory. Public schools do not generally charge tuition and would not qualify for, or benefit from, voucher payments under most proposals. The overwhelming number of private schools -- 83 percent -- are religiously sponsored. Thus, the voucher system that has been proposed would amount to a form of aid to parochial schools and raise serious constitutional problems. The Supreme Court has never directly addressed the Establishment Clause problems presented by a voucher program that includes parochial schools. But the Supreme Court has also never wavered from its view that the Establishment Clause forbids the state from providing financial support for sectarian education. See e.g., Grand Rapids School District v. Ball, 473 U.S. 373, 393-94 (1985). Because parochial schools do not and cannot separate their educational purpose from their religious mission, the expenditure of tax dollars for general educational purposes at a sectarian school violates this constitutional prohibition. In Mueller v. Allen, 463 U.S. 388 (1983), the Court did reject a facial challenge to a Minnesota statute permitting certain educational expenses to be taken as tax deductions, whether incurred in public or private school. However, the Court has twice struck down a program of tuition grants and tax benefits to the parents of children attending religious schools. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Sloan v. Lemon, 413 U.S. 825 (1973). In our view, the constitutional inquiry should not turn on whether "the aid was formally given to parents [or] to the religious schools . . ." Grand Rapids, 473 U.S. at 394. Rather, we think the critical inquiry is whether the aid provides "direct and substantial advancement of the sectarian enterprise." Wolman v. Walter, 433 U.S. 229, 250 (1977). It is well settled, after all, that "[a]id may have that effect even though it takes the form of aid to students or parents." Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 487 (1986). Judged by this standard, the use of vouchers to subsidize the cost of sectarian education is constitutionally flawed and should be rejected. Other constitutionally sensitive issues are implicated by vouchers that may be spent at non-religious private schools, most of which charge tuition that is several times the per student cost of education at a public school. Thus, it is unrealistic to believe that government vouchers will enable most public school students to choose a private school. Moreover, a recent federal study found that 63 percent of non-religious private schools enroll no African American students, and 80 percent no Latinos. Since private schools are free to choose their students, choice plans are likely to relegate children from poor families in poor neighborhoods -- especially those most at-risk -- to society's worst schools, while providing a windfall to families that can already afford to send their children to the country's most exclusive private schools. "Choice" also creates a real potential for resegregating public school systems that have been successfully desegregated by siphoning off whites and the more affluent. RECOMMENDATIONS Oppose legislative proposals to subsidize the cost of parochial and private school education through publicly funded vouchers. -------------------------------------------------- Education > RACE-EXCLUSIVE SCHOLARSHIPS ISSUE The Bush Administration's unduly restrictive policy with respect to race-exclusive scholarships and financial aid for minorities perpetuates the underrepresentation of minorities on campuses throughout the country and frustrates the legitimate government purpose of campus diversity. BACKGROUND For decades, the doors to many of our nation's colleges and universities were closed to minority students. Although formal state enforcement of segregation has been abandoned in the past 30 years, the legacy of institutional racism remains evident today. Minorities remain significantly underrepresented on numerous college campuses and face disproportionately difficult challenges in achieving educational success. Although they represent only an insignificant portion of total financial aid, scholarships that specifically target minority students have been extremely effective tools for recruiting minority students to our nation's universities and sending a message that they are welcome. The federal government has long been the largest provider of race-based financial aid, but numerous public and private universities and foundations have also employed minority scholarships as a resource to promote campus diversity and/or to remedy the effects of past discrimination. Despite the long history of federal support for minority scholarships, the Bush Administration, in an effort to appease conservative ideologues, initially declared such scholarship programs to be in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d, and the Equal Protection clause of the Fourteenth Amendment. The ensuing uproar led the Secretary of Education to call for a policy reexamination. 56 Fed. Reg. 24,383 (1991). The result of this reexamination was proposed "policy guidance" from the Department of Education that permitted some race-exclusive scholarships, subject to numerous restrictions. 56 Fed. Reg. 64,548 (1991). The Bush Administration policy is unduly restrictive in at least three respects. First, it permits race-exclusive scholarships as a remedy for past discrimination only where there exists an official "finding of past discrimination" by a court, legislature, or administrative agency. 56 Fed. Reg. at 64,549. Such a requirement creates a severe disincentive against voluntary corrective actions by colleges and universities that may have discriminated in the past. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (1986) (O'Connor, J., concurring). Second, the policy guidance permits such remedial scholarships only where the scholarships themselves are "necessary to overcome past discrimination," 56 Fed. Reg. at 64,549 (emphasis added), an impossibly high standard. Finally, while permitting scholarship programs that take race into account as a weighing factor for promoting diversity, the Bush policy prohibits colleges and universities from utilizing race-exclusive scholarships for this purpose. Id. at 64,548. Neither the legal requirements of the Constitution and civil rights laws nor logic supports this distinction. Promoting campus diversity is a legitimate government purpose and justifies race-exclusive scholarships that further that end. RECOMMENDATION Withdraw the Bush Education Department's proposed policy guidance, and reinstate policy that permits race-exclusive scholarships, where appropriate, to further the goals of remedying past discrimination or promoting campus diversity -- so long as the scholarship programs do not unduly limit the access of majority students to financial aid. See also: AIDS: Centers for Disease Control AIDS Prevention Program FREE SPEECH: Collegiate Free Speech Protection Act WOMEN'S RIGHTS: Educational Equity -------------------------------------------------- VOTING RIGHTS INTRODUCTION The right to vote "is of the essence of a democratic society." Reynolds v. Sims, 377 U.S. 533, 555 (1964). During the last 12 years, however, the federal government failed to protect the right to vote and opposed legislation that would have strengthened the Voting Rights Act of 1965. In 1982, for example, Attorney General William French Smith took the position that Section 2 of the Voting Rights Act should not be amended to prohibit voting rights practices that "result" in discrimination, a provision seen as necessary to achieve meaningful minority political participation. Despite the Reagan Administration's opposition, the amendment passed by overwhelming majorities in both houses. When amended Section 2 was first before the Supreme Court in Thornburgh v. Gingles, 478 U.S. 30 (1986), the Solicitor General argued that a Section 2 claim should be foreclosed by token or minimal minority electoral success. The Court rejected this argument, which would have greatly diminished the effectiveness of the 1982 amendment. President Bush continued the assault on equal voting rights when he vetoed the National Voter Registration Act on July 2, 1992. The Act, designed to bolster the depressed levels of voter registration and voting in the United States, had been passed in both houses of Congress by substantial majorities and would have allowed eligible voters to register for federal elections by mail when they applied for a drivers' licenses and at state and federal agencies. The Clinton Administration should dedicate itself to full and effective enforcement of the Voting Rights Act on behalf of those specially protected by the statute -- African Americans, Native Americans, Asian Americans, Native Alaskans and those of Spanish heritage. And it should immediately support passage of a national voter registration act to encourage as inclusive a franchise as possible. Attention: Department of Justice -------------------------------------------------- Voting Rights > TRANSFER OF DECISION-MAKING AUTHORITY ISSUE The Supreme Court has interpreted the Voting Rights Act of 1965 to provide no protection against voting changes that transfer decision-making authority among elected officials. BACKGROUND Prior to the decision in Presley v. Etowah County Commission, 112 S.Ct. 820 (1992), the transfer of decision-making authority from one official, or set of officials, to another was held to be a change in voting that required preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. Section 1973c. See, e.g., Blanding v. Du Bose, 454 U.S. 395 (1982) (state law transferring powers of county governance from state to county officials "required preclearance under Section 5 of the Voting Rights Act"); Hardy v. Wallace, 603 F. Supp. 174 (N.D.Ala. 1985) (statute transferring the power to appoint members of a county racing commission from the local legislative delegation to the governor was a change subject to Section 5); Robinson v. Alabama State Department of Education, 652 F. Supp. 484 (M.D.Ala. 1987) (transfer of authority from a board of education whose members were elected countywide to one whose members were appointed by the city council was required to be precleared under Section 5). The decisions in these cases were said to be controlled by Allen v. State Board of Elections, 393 U.S. 544, 566-67 (1969), which held that Section 5 was to be given "the broadest possible scope" to reach any change in voting, no matter how minor. In Presley, the decision-making authority of individual county commissioners was substantially curtailed and transferred to the commission as a whole. This occurred after an African American was elected to the commission, following the implementation of a consent decree in a case that challenged the preexisting method of elections as being racially discriminatory. A majority of the Court held that the change in question affected only the allocation of power among governmental officials, and was not a change "with respect to voting," subject to Section 5. As the dissent pointed out, however, to exempt such changes from preclearance allows jurisdictions to transfer the authority of black elected officials to other officials controlled by the majority, and thus undermines the remedial purposes of the Act. The discriminatory transfer of decision-making authority will likely increase as a result of the Presley decision. Covered jurisdictions can be expected to try to do indirectly what they could not do directly: deny or abridge the power of the minority vote. To allow minorities the right to vote, yet deny them the equal right to govern, is to betray the broad vision of political equality contained in the Voting Rights Act. RECOMMENDED ACTION Initiate and support legislation to return the Voting Rights Act to the state of the law that existed prior to the Supreme Court's decision in Presley. -------------------------------------------------- Voting Rights > SECTION 2 ENFORCEMENT ISSUE The Reagan and Bush Administrations seriously neglected their duty to enforce Section 2 of the Voting Rights Act. BACKGROUND The Attorney General has the primary duty of enforcing the Voting Rights Act. During the past 12 years, however, the Department of Justice has seriously neglected the important responsibility of enforcing the Act through affirmative litigation, where it must exercise initiative in instituting challenges to discriminatory voting practices. Between 1978 and 1989, the United States was a party in only 200 of the 2,419 voting rights cases filed in federal court. See annual Reports of the Director of the Administrative Office of the United States Courts, Table C-2, U.S. District Court, civil cases commenced, by basis of jurisdiction and nature of suit, June 30, 1978-June 30, 1989. The United States was named as a defendant in 84 of these suits involving Section 5 preclearance and bail-out, and the Attorney General was, thus, required to defend them. Of the remaining 2,335, the United States was a plaintiff in only 116, or five percent, including cases filed initially by private parties and in which the United States was a plaintiff-intervenor. Private parties brought the remaining 95 percent of the cases. As is apparent, the minority and civil rights communities have borne a disproportionate burden of modern voting rights enforcement. When the Attorney General fails to discharge the duty to enforce the Voting Rights Act, that failure not only allows the denial of protected rights in particular cases to go unredressed, but it also sends a message that the enforcement of equality in voting is not a priority of the administration and, thereby, encourages further violation of voting rights. RECOMMENDED ACTION Direct the Attorney General to pursue a vigorous program of affirmative litigation to enforce Section 2 and the other provisions of the Voting Rights Act, as they apply to African Americans and to language minorities (i.e., Native Americans, Asian Americans, Native Alaskans and those of Spanish heritage) who were covered by amendments to the Act in 1975. -------------------------------------------------- Voting Rights > SECTION 2 COMPLIANCE ISSUE The Attorney General, who has the primary duty of enforcing the Voting Rights Act of 1965, has failed to make clear that submitting jurisdictions have the burden of proving compliance with Section 2 of the Act, which prohibits voting practices which "results" in discrimination. BACKGROUND Our nation's quest for equality must ensure that minorities are not barred from the franchise by practices that disproportionately burden their right to vote. In 1982, Congress amended Section 2 of the Voting Rights Act, 42 U.S.C. Section 1973, in response to the decision in Mobile v. Bolden, 446 U.S. 55 (1980), to provide that voting practices are unlawful if they "result" in discrimination, without regard to whether they were adopted or are being maintained with a racially discriminatory purpose. The results standard is essentially a racial-fairness standard and was intended to cure the anomaly created by Beer v. United States, 425 U.S. 130 (1976), that voting changes were lawful under Section 5 even if they produced discriminatory results, so long as they were not purposefully discriminatory or were not retrogressive. Congress indicated in the legislative history that the results standard was to apply to Section 5 preclearance. Subsequently, on January 6, 1987, the Attorney General issued implementing regulations authorizing a Section 5 objection "to prevent a clear violation of amended Section 2." 28 C.F.R. Section 51.55 (b)(1). In practice, the Attorney General has frequently objected to submissions under Section 5 that violated Section 2 (as well as other provisions of the Act). The Attorney General's regulations need to be amended to clarify two matters: First, the regulations fail to provide that a submitting jurisdiction has the burden of showing compliance with Section 2. Congress allocated the burden of proof in Section 5 preclearance to "shift the advantage of time and inertia from the perpetrators of the evil [of discrimination in voting] to its victims." South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966). Second, the evidentiary standard under Section 5 is the usual one of a "preponderance" and not "clear and convincing evidence." City of Port Arthur, Tex. v. United States, 517 F. Supp. 987, 1011 (D.D.C. 1981), aff'd, 459 U.S. 159 (1982). If the Attorney General is unable to determine whether or not a proposed voting change has a discriminatory result, an objection should be entered. There is no warrant for lowering the standard for preclearance established by Congress and the courts by requiring clear and convincing evidence of a violation of Section 2. RECOMMENDED ACTION Direct the Attorney General to amend regulations governing the administration of Section 5 of the Voting Rights Act to provide that submitting jurisdictions, and not the Attorney General or affected minorities, have the burden of proving compliance with Section 2. -------------------------------------------------- Voting Rights > NATIONAL VOTER REGISTRATION ACT ISSUE Legislation is needed to provide convenient and accessible voter registration for all American citizens. BACKGROUND Literacy tests and poll taxes historically excluded minorities and the poor from the franchise. Although these barriers no longer exist, the right to vote remains meaningless if the right to register and to stay registered is limited. To make registration more accessible to all, national voter registration is needed to break down the inconvenient and cumbersome procedures that exist in many states. The National Voter Registration Act (Motor Voter Bill) would allow eligible voters to register for federal elections by mail, when applying for a driver's license and at the offices of state and federal agencies. Since an estimated 91 percent of the adult population has either a driver's license or photo ID card, automatic voter registration when individuals apply for, renew or change their address on such licenses is likely to pick up the largest number of unregistered voters. Since people with disabilities and the unemployed and poor are less likely to drive, designated agencies providing services to these people will also have voter registration services. States that have adopted these measures have dramatically increased political participation. On May 20, 1992 the Senate passed the National Voter Registration Act by a vote of 61-38. On June 16, 1992 the House passed the bill by a vote of 268-153. On July 2, 1992 President Bush vetoed the bill, on the pretext that it would impose significant costs on the states and promote fraud. On September 22, 1992 the Senate failed to override President Bush's veto of the proposed legislation by a vote of 62-38. The concerns President Bush stated in his veto message are groundless. States that have adopted these methods have dramatically increased political participation while saving substantial funds. Furthermore, the bill includes postal rate reductions to offset the costs of implementation. Although states that already use the methods of the Motor Voter bill report no problems with fraud, the bill also has provisions that address such concerns. The legislation strengthens federal penalties for fraud while leaving in place state procedures responsive to local conditions. Finally, this legislation provides uniform ways for removing from the rolls those who have moved or died or are ineligible to vote for other reasons, without removing those who have not voted recently. RECOMMENDED ACTION Support the National Voter Registration Act. -------------------------------------------------- Voting Rights > STATEHOOD FOR THE DISTRICT OF COLUMBIA ISSUE The District of Columbia, with its more than 600,000 residents, meets the historical Congressional test for statehood and should be admitted to the United States as the 51st state. BACKGROUND The U.S. stands alone among 115 nations that have elected national legislatures in denying representation to residents of its capital. This means that the District's 600,000 residents, many of whom are persons of color, are denied any meaningful voice in the nation's political affairs. Moreover, the District of Columbia is the only entity subject to United States jurisdiction that is taxed without having a voting representative in Congress. Puerto Rico, Guam, the Virgin Islands and American Samoa, all U.S. territories, pay no federal income taxes. District residents, however, are not only taxed but pay more in federal taxes than eight states, and more per capita than 48 of the 50 states -- a billion dollars in taxes -- to the federal treasury. The New Columbia Statehood Act, which would allow for the admission of the State of New Columbia into the Union, would terminate Congress' power to overturn, amend or repeal all District-passed legislation and budgets and grant Congressional voting representation to over 600,000 District residents. There is no constitutional impediment to granting statehood to residents of the District of Columbia, and a constitutional amendment is not a prerequisite. All that has been required for the admission of other states into the Union is a simple majority of both Houses of Congress and the President's signature. The Constitution requires that Congress exercise exclusive control over a federal seat of government that does not exceed 100 square miles. No minimum size is specified. Congress can and has in the past reduced the size of the District without an amendment. The constitutionally-mandated federal seat of government would be preserved by maintaining the District of Columbia as the "National Capital Service Area," comprised of key federal buildings, agencies and monuments, with the remaining territory admitted into the Union as the state of New Columbia. The District meets the historical three-part Congressional test for statehood: District residents have expressed, through a democratic process, their desire to be a state; they have agreed to accept the republican form of government practiced in the United States, and there are clearly sufficient people and wealth to support a state. The District of Columbia, with a population of 639,000, has nearly as many or more people than six states, each of which has two senators. Finally, representation in Maryland through retrocession is not a viable alternative. District citizens have voted for statehood, not retrocession. Moreover, the Maryland state legislature would also have to approve. A recent survey reflected that only seven of the 189 Maryland legislators were willing to have the District ceded back to their state. Thus, it is apparent that citizens of the District, as well as of Maryland, overwhelmingly reject retrocession. Statehood for the District of Columbia is the only option that will give D.C. residents the full bundle of rights enjoyed by all other U.S. citizens. The citizens of the District of Columbia seek no more than citizens in any other state -- the right to self determination, full and equal voting representation in Congress and local legislative, budgetary and judicial autonomy. RECOMMENDED ACTION Support the New Columbia Statehood Act. See also: CAMPAIGN REFORM: Campaign Financing CAMPAIGN REFORM: Electoral Free Speech PRISONERS' RIGHTS: Voting Rights -------------------------------------------------- WOMEN'S RIGHTS INTRODUCTION In the late 20th century, women in the United States are still second-class citizens in virtually all aspects of economic and public life. To end this second-class status, and to reach the ultimate goal of complete elimination of all barriers to women's full economic, social and political equality, requires our society's total commitment and concentrated effort. Not all of the areas in which women encounter bias and sexism are within the control of the federal government, but many of the areas of economic discrimination are. All forms of employment discrimination against women must be eliminated, including pervasive wage discrimination, widespread occupational segregation, the "glass ceiling" on advancement, discrimination on the basis of pregnancy and childbearing capacity, rampant sexual harassment and all other forms of discrimination against women in the workplace. All forms of discrimination against girls and young women in education must be eradicated at all levels. Women, especially poor women, must have equal access to affordable housing, food, health care, education, job training, child care, child support enforcement and other essential services. Attention: United States Commission on Civil Rights Department of Defense Department of Education Equal Employment Opportunity Commission Department of Health and Human Services Department of Justice Department of Labor -------------------------------------------------- Women's Rights: > ECONOMIC AND PAY EQUITY ISSUE All forms of discrimination against girls and young women in education must be eradicated at all levels. Women, especially poor women, must have equal access to affordable housing, food, health care, education, job training, child care, child support enforcement and other essential services. Women are subjected to widespread occupational segregation that excludes them from higher paying, traditionally male occupations. BACKGROUND The problem of sex-based wage discrimination has long been recognized as a major obstacle to the full economic equality of women. Simply requiring "equal pay for equal work" has never been sufficient (even when there is adequate enforcement of that standard) because the most pernicious form of wage discrimination occurs when women are paid unequal wages for jobs of equal value to the employer. This has been a major factor contributing to the "feminization of poverty." Because of entrenched occupational segregation, women are often concentrated in jobs involving skill, effort and responsibility equal to, or greater than, that required in jobs in which men tend to predominate. For example, in one suburb of Washington D.C., liquor clerks with two years experience and a high school diploma (nearly all male) were paid more than county school teachers with a Bachelor's degree and two years experience (more than two-thirds female). See Americans for Democratic Action, Breaching the Next Barricade: Pay Equity for Women. During the last 12 years this problem has been largely ignored. Although existing civil rights laws could tackle much of this destructive form of discrimination, women have found the federal courts to be unreceptive to their claims. In addition, even the most modest proposals for new legislation (e.g., a bill that would set up a comparable worth study of jobs in the federal government) have languished. Meanwhile, women and minorities continue to suffer disproportionately from the general economic distress in the country. Despite some gains in the 1980s (based largely on a decline in the earning power of men), women still earn an average of 72 cents to the dollar earned by men. Women continue to be subjected to widespread occupational segregation that keeps them out of high-paying, traditionally male occupations. Because women are often employed in part-time or temporary jobs, they also lack benefits, such as pensions and health insurance. Older women suffer the loss of pension security when long time marriages end, leaving former homemakers and low-wage earning women without means of support. Throughout the Reagan/Bush years, a number of legislative initiatives to deal with these and other economic justice issues were proposed. Many fell under the general rubric of the Women's Economic Equity Act, which encompassed a wide variety of bills proposing corrective solutions. Examples include: the Pay Equity Technical Assistance Act (H.R. 386), the Non-Traditional Employment for Women Act (H.R. 906), and the Women in Apprenticeship and Non-Traditional Occupations Act (H.R. 3475) to address the problem of sex discrimination in blue collar, predominately male occupations; the Part-time and Temporary Workers Protection Act, which would amend ERISA to lower the number of hours an employee must work each year to qualify for a pension, and provide health benefits on a pro rata basis to part-time workers, and the Earnings Sharing Act (H.R. 52), the Former Military Spouses Act, and the Federal Employees Former Spouses Act (H.R. 108), which would help to protect the pension rights of older women. RECOMMENDED ACTION Support legislation on behalf of women that would ensure wage comparability, pension security, meaningful access to health benefits, protection for part-time workers and education and training to ensure women's access to traditional male occupations. -------------------------------------------------- Women's Rights > EDUCATIONAL EQUITY ISSUE Federal laws designed to protect women and girls from discrimination on the basis of sex in any educational program that receives federal funds are not being enforced. Studies continue to show that women and girls are systematically denied equal educational opportunity. BACKGROUND Title IX of the Education Amendments of 1972, 20 U.S.C. Sections 1681 et seq.,prohibits discrimination on the basis of sex in any educational program receiving federal funds. Regulations promulgated pursuant to Title IX are at 34 C.F.R. Sections 106 et seq. Other areas covered by the law and regulations include prohibitions against: discrimination on the basis of pregnancy and marital status; discrimination in the provision of health benefits, and the use of selection and evaluations criteria, such as tests, that have a disproportionately adverse effect on the basis of sex, and that do not validly predict success in the educational program in question. Title IX has also been construed to prohibit sexual harassment. The Office of Civil Rights (OCR) of the Department of Education is charged with the enforcement of these provisions. Under the Reagan and Bush Administrations, however, enforcement was, at best, lax and more often virtually non-existent. Moreover, the backlog on sex discrimination complaints is huge. It has been impossible to get claims processed in a timely fashion, and it is difficult even to learn the status of pending claims. Since few complainants have the financial means to pursue their claims in court, this non-feasance effectively bars them from any effective remedy for discrimination. Meanwhile, a 1987 survey of schools across the country revealed that 75 percent of the schools violated Title IX in some manner in their treatment of pregnant and parenting students. Nash and Dunkle, The Need for a Warming Trend 3 (May 1989). As repeatedly documented in many studies, the economic and social effect of this sort of discrimination, and the failure of our schools to deal with this issue in a realistic way, are devastating. See, e.g., National Collaboration for Youth, Making the Grade: A Report Card on American Youth-Participant's Workbook II-65 (1989); Alan Guttmacher Institute, Teenage Pregnancy: The Problem That Hasn't Gone Away (1981); and Marx, et al., Childcare for the Children of Adolescent Parents: Findings from a National Survey and Case Studies 3 (Working Paper No. 184, Wellesley College Center for Research on Women, 1989). RECOMMENDED ACTIONS 1) Direct OCR to undertake vigorous enforcement of Title IX. 2) Support legislation that provides increased services to pregnant and childbearing teens, to ensure their equal access to education. -------------------------------------------------- Women's Rights > HEALTH EQUITY ISSUE Patterns of sex discrimination persist in our nation's health care delivery system, from the exclusion of women from important clinical drug trials, to their underrepresentation in preventive health care programs. BACKGROUND America's health care system is failing to meet the needs of women. For example, a 1990 General Accounting Office study documented that women are frequently excluded from clinical drug trials. As a result of this exclusion, women suffer double discrimination: They are denied access to beneficial, if experimental, drugs, and drugs may be approved and marketed without reliable data on their effects on women. Women also face discrimination in access to some health care services and preventive health care programs. This is a particular problem for poor women and women of color, who, for example, lack access to breast cancer diagnostic tools. As a result, poor women and African-American women die from breast cancer disproportionately because their disease is often diagnosed too late for effective treatment. Another example involves the lack of research and regulatory attention to the occupational health diseases and injuries that women experience, including but not limited to reproductive disorders in the lead industries, cardiovascular conditions in office workers and musculoskeletal injuries in many female-intensive industries. The Congressional Caucus for Women's Issues has advocated passage of a series of legislative proposals collectively referred to as the Women's Health Equity Act. This legislation is an important step toward addressing gender-related issues in research and delivery of health care and preventive services. It is vital, however, that this and other legislation be developed and implemented without incorporating stereotypes about the supposed physical vulnerability of women, and without exaggerating the biological differences between the sexes, lest in the process of protecting women's health we create new grounds for discrimination against women. RECOMMENDED ACTIONS 1) Instruct the Secretary of the Department of Health and Human Services to authorize Medicare reimbursements for mammograms on a yearly basis, rather than the every-other-year entitlement now in effect. 2) Support the Women's Health Equity Act. 3) Enforce more vigorously than past administrations the Occupational Safety and Health Act, the Toxic Substances Control Act and other existing federal health laws on behalf of women. -------------------------------------------------- Women's Rights > MILITARY COMBAT EXCLUSION ISSUE The Pentagon continues to resist allowing women to serve in combat roles, despite women's solid performances during wartime. This policy guarantees that women will never break through the ceiling that limits their advancement in the military. BACKGROUND Since the end of the draft and the advent of an all-volunteer military, the numbers and importance of women in the armed forces have grown. The percentage of members of the armed services who are women went from two percent in the early 1970s to approximately 11 percent today. Women played an extremely important role in the Gulf War, where they flew planes into enemy territory, commanded units of men, ferried troops into the combat zone and carried supplies to them, and fired weapons defensively. In 1991, in recognition of the vital role played by women pilots and based on a study done by the Air Force, Congress concluded that women make excellent combat pilots and, therefore, repealed 10 U.S.C. Section 8549 and the aircraft section of 10 U.S.C. Section 6015, the last legal restriction on women in combat aircraft. The only remaining legal restriction on women in combat is the combat ship sections of 10 U.S.C. Section 6015. The Pentagon, however, has refused to implement the lifting of the aircraft and other combat exclusions and continues a policy of not assigning women to combat positions. Nevertheless, because they are officially barred from combat positions, women continue to be second-class citizens in the military. As a result of the combat exclusion, approximately half of all military occupations are closed to women, and there are severe limitations on the number of women who may enlist or be admitted to ROTC programs (which include lucrative scholarships) and to the service academies. The combat exclusion greatly limits promotional opportunities for women. RECOMMENDED ACTIONS 1) Direct the Pentagon to implement the repeal of the aircraft combat exclusion. 2) Submit legislation to overturn the remainder of 10 U.S.C. Section 6015, which bars Navy and Marine women from serving on combat ships. 3) Direct the Pentagon to institute gender-neutral, performance-based standards for all positions so that anyone meeting such requirements is eligible for the position in question, regardless of gender. 4) Eliminate quotas on the number of women permitted to enlist and the number of women admitted to the service academies. -------------------------------------------------- Women's Rights > SEXUAL HARASSMENT IN THE MILITARY ISSUE The problem of sexual harassment against women in the military is extremely serious, but existing remedies are inadequate. For women to have full and equal opportunity in the military, and throughout society, this problem must be confronted. BACKGROUND Sexual harassment is pervasive in our society. An egregious example is the extensive and severe problem of sexual harassment in the military, which has been well documented and widely reported. The Tailhook incident represents only the tip of the iceberg. For example, a 1987 Study Group on Women in the Navy found that over half of the 1,400 women interviewed said they had been subjected to sexual harassment while in the Navy, but that most of them were hesitant to report it because they lacked confidence in the grievance process. Similarly, a 1990 study by the Defense Manpower Data Center of over 20,000 members of the military found that two out of every three women interviewed said they had been sexually harassed in the prior year, but that less than 40 percent believed the grievance procedures would be effective. Worse still, a total of 71 percent believed the process would be detrimental. The avenues that now exist for redress of this problem are inadequate. The courts that have ruled on the issue have held that neither Title VII, 42 U.S.C. Section 2000e, see Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978), cert. denied, 439 U.S. 986 (1978); Gonzalez v. Dept. of the Army, 718 F.2d 926 (9th Cir. 1983); but see Hill v. Berkman, 635 F. Supp. 1228 ( E.D.N.Y. 1986), nor the Federal Tort Claims Act applies to uniformed members of the armed services, Feres v. United States, 340 U.S. 135 (1950), and claims directly under the Constitution have been limited to the point of non-existence. See Rostker v. Goldberg, 453 U.S. 57 (1981); Chappell v. Wallace, 462 U.S. 296 (1983). Although the Department of Defense has internal regulations that define sexual harassment almost identically to the definition used by the Equal Employment Opportunities Commission, victims of military sexual harassment (like victims of race discrimination) are required to go through the chain of command. Service women frequently are not familiar with the procedures they are required to follow and have no way to learn about them. Retaliation is common. No outside agency investigates, no written record or formal findings are required, the commanding officer almost always has the final decisionmaking authority, and the process may be halted along the way. RECOMMENDED ACTIONS 1) Direct the Defense Department to provide military women the same rights as civilian women to combat sexual harassment. This means the development of a system of independent investigation, fact-finding and a decisionmaking process with a written record, standard procedures and protection from retaliation. 2) Support legislation that provides judicial review and damages in cases of military sexual harassment. -------------------------------------------------- Women's Rights > DRUG DEPENDENT WOMEN ISSUE The problem of drug dependency among women of childbearing capacity has attracted the attention of overzealous prosecutors, who have filed criminal charges and taken other punitive actions against them. Such prosecutions are counterproductive and violate basic due process rights. BACKGROUND Public health officials are in virtually unanimous agreement that the most effective way to cope with drug use during pregnancy is by ensuring that women at risk have access to drug treatment centers, prenatal care, good nutrition and a variety of supplemental support services. Yet, many district attorneys and child protective services have adopted a punitive, coercive approach that is not only ineffective in preventing harm, but may actually undermine pursuit of that goal. In the last several years, approximately 160 women have been prosecuted in 24 states under a variety of statutes whose legislative intent is to deter drug trafficking or other willful, criminal conduct. Prosecutors have brought these charges on the theory that ingesting drugs while pregnant constitutes a "delivery" or "assault with a deadly weapon" or "criminal child abuse" through the umbilical cord. In addition, many states have sought to remove children from the custody of their mothers (or, in some cases, to terminate the mother's parental rights), based solely on a positive drug test without a full inquiry into parental fitness. These criminal prosecutions violate the basic due process right of "fair notice." They also violate the fundamental right to privacy in that they penalize a drug dependent woman's pregnancy, and not simply her drug use. Additionally, the automatic revocation of child custody and termination of parental rights, without a full inquiry into parental fitness, violate the fundamental right to maintain family integrity. The punitive response places women in a "Catch-22" situation since women who seek help for their addiction during pregnancy often cannot get it. See Opening Statement of Representative George Miller, Chairperson, Testimony Before House Select Committee on Children, Youth and Families (April 27, 1989). A 1988 survey of drug abuse treatment programs in New York City found that 54 percent refuse to take pregnant women; 67 percent deny treatment to pregnant addicts on Medicaid, and 87 percent deny treatment to pregnant women on Medicaid who are addicted to crack. See Chavkin, W., M.D., Testimony Before House Select Committee on Children, Youth and Families (April 27, 1989). Moreover, rehabilitation programs are frequently based on male experience with addiction and recovery, which does not account for the underlying reasons for substance abuse among many women. In addition, the lack of child care, as research by the National Institute for Drug Abuse confirms, "effectively precludes the participation of women in drug treatment." See Chavkin, "Help, Don't Jail, Addicted Mothers," N.Y. Times, July 18, 1989. RECOMMENDED ACTIONS 1) Direct the Secretary of Health and Human Services to issue regulations guaranteeing the effectiveness of the recently enacted Alcohol, Drug Abuse and Mental Health Administration Reorganization Act. These regulations should clarify that the focus of the Act is primary, coordinated-care services, including outreach, identification of women at risk, education, family planning and related health care services. The regulations should explicitly prohibit states receiving federal monies from: a. discriminating against women in the provision of drug treatment; b. mandating the reporting of positive drug tests to criminal law enforcement, and c. removing infants from their mothers or terminating mothers' parental rights without a full evaluation of parenting abilities. 2) Support the Medicaid Family Care Act, which would amend the current Medicaid exclusion of residential drug treatment for pregnant women. -------------------------------------------------- Women's Rights > FAMILY AND MEDICAL LEAVE AND CHILD CARE ISSUE The failure to guarantee family and medical leave and government supported child care has created enormous hardships for workers, especially women, undermining family integrity and economic productivity. BACKGROUND The United States is the only advanced industrialized country that does not provide parental and medical leave benefits to workers. This lack of job security causes immense hardships to workers, who must balance their family responsibilities with the demands of their jobs. It presents particularly difficult obstacles to women workers, who continue to bear the primary burden of caring for other family members. The federal Family and Medical Leave Act has been introduced repeatedly in Congress but has never been enacted. The current version provides unpaid leave for up to 12 weeks per year for childbirth, adoption or the serious illness of an employee or immediate family member. Only businesses with 50 or more employees are covered by the act, and the highest paid 10 percent of the work force may be exempted. In the 102nd Congress, both Houses passed the Act, but the President vetoed the bill on September 22, 1992. The Senate overrode the veto on September 24, 1992, but the House failed to override. The swift passage of federal family and medical leave legislation is essential. Studies show that workers lose billions of dollars in earnings every year due to the lack of guaranteed leave policies, and many employees have no job-guaranteed medical leave at all. This lack of job security puts workers in the untenable position of having to choose between their family responsibilities and their livelihood. In addition, millions of working parents must locate quality, affordable child care that provides a safe, nurturing environment for their children while they are at work. Government support for child care is critical to ensure that all parents can afford appropriate care for their children, and to sustain and strengthen our current network of child care providers. One of the most important mechanisms for federal support is through appropriations for the Child Care and Development Block Grant, which was incorporated into the Omnibus Reconciliation Act of 1990, Public Law 101-508. However, appropriations under this act for 1994 must be substantially increased. RECOMMENDED ACTIONS 1) Revise and support the recently vetoed Family and Medical Leave Act, so that it: * covers employers with 15 or more employees; * includes highly paid workers in its coverage. 2) Upon passage of the FMLA, urge the Commission on Leave, established pursuant to the Act, to study and evaluate paid as well as unpaid leave policies. 3) Support significantly increased appropriations for the Childcare and Development Block Grant. See also: CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Enforcement CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Compliance RELIGIOUS FREEDOM: Child Care Regulations PRISONERS' RIGHTS: Medical Care PRISONERS' RIGHTS: Maintenance of Family Ties REPRODUCTIVE FREEDOM: Public Funding of Abortion Services REPRODUCTIVE FREEDOM: Freedom of Choice Act REPRODUCTIVE FREEDOM: International Reproductive Freedom REPRODUCTIVE FREEDOM: The Gag Rule REPRODUCTIVE FREEDOM: RU 486, Contraception and Fetal Research -------------------------------------------------- LESBIAN AND GAY RIGHTS INTRODUCTION Lesbian and gay Americans still face widespread prejudice and lack the most basic civil rights. The discrimination lesbians and gay men confront is irrational because it is unrelated to their abilities to perform and contribute to society. President-elect Clinton's demonstrated concern for these issues provides an opportunity to reverse a history of discrimination against gay people. But meaningful change will require a commitment to principle in the face of strong political opposition. Prejudice against lesbians and gay men is shockingly explicit and virulent. Not only is this discrimination not currently redressed by federal law, it is often sanctioned by the government itself. For example, the federal government openly denies lesbians and gay men the opportunity to serve their country in the military, effectively denies employment to gay people in the Federal Bureau of Investigation and the Central Intelligence Agency and places burdens on gay applicants for security clearances. Even more basic, the United States still maintains a federal sodomy law. The Clinton Administration has the opportunity to provide positive federal leadership on gay issues for the first time in American history. Until lesbians and gay men are afforded equal rights in our society, the Bill of Rights will remain an unfulfilled promise for millions of our citizens. Attention: Central Intelligence Agency Department of Defense Department of Health and Human Services Department of Justice Department of State Federal Bureau of Investigation -------------------------------------------------- Gay Rights > DISCRIMINATION ISSUE Lesbians and gay men are discriminated against in employment, housing and public accommodations and have no recourse under federal law. This violates the core principle of the Fifth and Fourteenth Amendments that every citizen has the right to due process and equal protection. BACKGROUND Every year, thousands of Americans are denied job opportunities and access to housing and public accommodations because they are gay or lesbian, or because they are perceived as such. Discrimination on the basis of sexual orientation is pervasive in the public and private sectors. Companies still openly fire lesbian and gay employees, many states maintain policies prohibiting gay people from serving in certain positions and the federal government maintains discriminatory employment policies in agencies like the CIA, FBI and foreign service, as well as in the military. Lesbians and gay men who suffer such discrimination currently have no recourse under federal law. Although seven states and more than 100 municipalities have adopted civil rights legislation that protects gay people from discrimination in employment, housing, public accommodations, public facilities and government programs, this patchwork of state and local laws does not adequately address the problem. In most locales in 43 states, it remains perfectly legal to refuse to hire, or to fire, an individual solely on the basis of sexual orientation. Federal constitutional challenges to governmental discrimination against lesbians and gay men have not been successful. See, e.g., Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (FBI); USIA v. Krc, 905 F.2d 389 (D.C. Cir. 1990), on remand, 1991 U.S. Dist. LEXIS 11447 (D.D.C. 1991) (foreign service); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (upholding policy of subjecting lesbians and gay men to heightened screening in applications for security clearances); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) (military), cert. denied 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) (military), cert. denied, 494 U.S. 1003 (1990); Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) (military), reh'g denied, 746 F.2d 1579 (D.C. Cir. 1984); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984) (military). Cf. Dubbs v. CIA, 866 F.2d 1114 (9th Cir. 1989). Federal law must be expanded to reflect fully the basic premise, grounded in the Fifth and Fourteenth Amendments, that individuals should be treated as individuals and not prejudged on the basis of their membership or perceived membership in a certain group. Sexual orientation does not determine an individual's ability to contribute to society, nor does it determine an individual's needs. Thus, discriminatory treatment of gay men and lesbians cannot in any way be justified. All people, regardless of their sexual orientation, are entitled to the same rights, liberties, freedom from harassment and freedom from discrimination. RECOMMENDED ACTIONS 1) By Executive Order, prohibit all federal agencies and federally assisted programs, contractors and agents from practicing discrimination based on sexual orientation. 2) Support legislation -- a federal gay rights bill -- that will amend all federal civil rights statutes to prohibit discrimination based on sexual orientation in employment, housing, public accommodations, public facilities and federally assisted programs, and to provide remedies and recourse for the targets of such discriminatory practices. -------------------------------------------------- Gay Rights > SECURITY CLEARANCE ISSUE Lesbians and gay men are subjected to a lengthier and more complex security clearance process than are heterosexuals, solely because of their sexual orientation. BACKGROUND The federal government continues to single out lesbians and gay men as high security risks, even though no evidence exists that sexual orientation is somehow relevant to one's trustworthiness in handling classified information. Official discrimination is primarily effectuated through a policy that puts lesbians and gay men through a more rigorous security clearance review process. The length of time required by the extended process often means that the gay person loses his or her employment opportunities. Despite the lack of connection between sexual orientation and security risk, the government's policy has been upheld by the federal courts. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990). There is some evidence that the federal government is loosening its policy with respect to lesbian/gay security clearances. For example, in settling a case in 1991, the CIA agreed that homosexual status would not be considered in making security clearance determinations, and that homosexual conduct would be treated in the same manner as heterosexual conduct. See Settlement Agreement and Stipulation of Dismissal, Dubbs v. Cent. Intelligence Agency, 866 F.2d 1114 (9th Cir. 1989) (No. C-85-4379 EFL) (filed June 17, 1991). Despite the CIA's position in the Dubbs case, some agencies continue to treat gay persons differently as a matter of policy, while in other agencies, gay men and lesbians are still harassed and subjected to intrusive, irrelevant questioning about intimate details of their lives during the background investigations. RECOMMENDED ACTIONS 1) By Executive Order, ban all discrimination against lesbians and gay men in making security clearance determinations, and require federal agencies to treat homosexual conduct in the same manner as heterosexual conduct. 2) Direct federal agencies to review their procedures for conducting background investigations in order to eliminate harassment and discrimination on the basis of sexual orientation in the conduct of those investigations. 3) Review and evaluate the litigation positions now being taken by the government in cases involving harassment or discrimination on the basis of sexual orientation, in light of the new policy of non-discrimination. -------------------------------------------------- Gay Rights > THE MILITARY BAN ISSUE The Department of Defense's policy of prohibiting lesbians and gay men from serving in the military is discriminatory, costly and counterproductive. BACKGROUND Since World War II, the Department of Defense (DOD) has maintained a prohibition against lesbians and gay men serving in the military. See Department of Defense Directives 1332.14 and 1332.30. The military enforces this policy more or less stringently, depending on its need for soldiers. During the Vietnam and Persian Gulf wars, for example, the policy was not strictly enforced. The current version of the policy was adopted following the election of Ronald Reagan in 1981 and was meant to strengthen the ban and its enforceability. The currently stated rationale for the policy -- that the presence of lesbians and gay men in the military would undermine morale and discipline -- closely parallels the military's justification for its policy of racial segregation prior to 1948. The military maintains an ever-expanding administrative apparatus for managing homosexual personnel. Nearly 1,500 lesbians and gay men, who are often identified through systematic "witch hunts," are drummed out of the military each year. The anti-gay policy also promotes biased application of the military's sodomy law, 10 U.S.C. Section 925, art. 125. This law, which on its face applies equally to heterosexual sexual activity, is used to jail gay men and lesbians for engaging in conduct for which heterosexuals are rarely prosecuted. The ban on lesbians and gay men in the military should be reversed because: * The military's regulation is blatantly discriminatory in that it judges lesbians and gay men based on prejudice rather than on ability. The policy perpetuates the myth that lesbians and gay men never serve in the military and/or are not good soldiers, even though the military's own studies reveal the opposite: Two reports initiated by the DOD and the Services examined the suitability of lesbians and gay men to be in the military and to receive security clearances. Both studies reached favorable conclusions and present convincing cases, from within the system, against the military's policy. See Defense Personnel Security Research and Education Center, Nonconforming Sexual Orientations and Military Suitability, December 1988; Defense Personnel Security Research and Education Center, Preservice Adjustment of Homosexual and Heterosexual Military Accessions: Implications for Security Clearance Suitability, January 1989. * The policy is costly. In June 1992, the General Accounting Office (GAO) released a report on the exclusion policy that estimates that the costs of recruiting and training troops to replace discharged gay soldiers amounted to $28,226 for each enlisted individual, and $120,772 for each officer. Using these figures, the GAO estimated that lesbian/gay discharges would cost the military approximately $27 million in 1990 alone -- and that figure does not include the costs of investigations and discharge. Defense Force Management: DOD's Policy on Homosexuality, (GAO\NS\AD - 92-985) (June 1992). * The American public does not support the ban. According to a 1991 national poll conducted by Penn & Schoen Associates, Inc. and cited in the GAO report, 81 percent of Americans believed that homosexuals should not be discharged from military service solely because of their sexual orientation. Several federal appellate courts have upheld the policy against various constitutional challenges. See Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984). However, the Ninth Circuit Court of Appeals recently overturned a district court decision that granted the government's motion to dismiss a challenge to the policy. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992), cert. denied, 1992 U.S. Lexis 7704 (1992). The court remanded the case to the district court for further development of the rational relationship between the policy and a legitimate governmental interest. Despite a cert. petition filed by the government, the Supreme Court has refused to review this decision. RECOMMENDED ACTIONS 1) By Executive Order, rescind DOD Directives 1332.14 and 1332.30, and guarantee equality of treatment and opportunity for all persons in the armed services without regard to sexual orientation. The Executive Order should guarantee that the armed services will not discriminate in recruitment, assignment, promotion or retention practices on the basis of sexual orientation. A mechanism should be established to redress harms visited by the extant policy on current and former servicemembers. 2) Direct the Attorney General to convene all relevant agencies to review -- with the objective of eliminating, revising and/or recommending reform or repeal of -- all policies, rules, regulations (including the Uniform Code of Military Justice), forms and practices that by their nature explicitly, or as applied, exclude or otherwise discriminate against gay men and lesbians in recruitment, training, deployment, promotion and the acquisition of security clearances. 3) Establish an enforcement mechanism that will educate and train the military to ensure equal opportunity for lesbians and gay men, and that will provide grievance procedures and remedies for future violations of this policy. -------------------------------------------------- Gay Rights > GOVERNMENT PUBLICATIONS ISSUE Under previous administrations, the federal government actively censored scientific information and research about Americans' sexual desires and preferences. BACKGROUND Up-to-date information on sexuality is critical in confronting at least two national crises: the AIDS crisis and the epidemic of suicide among lesbian and gay youth. These two sources of premature, unnecessary death demand federal efforts to gain more information about sexuality, and to use that information to aid HIV and suicide prevention programs. To the contrary, the Reagan and Bush Administrations actively suppressed sexuality-related information, obstructing the country's ability to fight sexually transmitted diseases and reinforcing homophobic attitudes. In particular, conscious federal efforts to silence researchers and pretend that no problem exists have led government agencies at all levels to ignore the exceptionally high suicide rate among lesbian and gay youth. Two important, planned sexuality surveys were dropped by the Bush Administration. One, the American Teenage Study, specifically sought a better understanding of teenagers' sexuality. The second, the Survey of Health and AIDS Risk Prevention (SHARP), sought information about the sexual practices of adults in this age of AIDS. The scientific branches of the federal government have been calling for such a study since at least 1986, when the Institute of Medicine in Confronting AIDS called for "a more detailed, representative, and contemporary evaluation of sexual behavior analogous to the Kinsey Report." No large-scale sexuality survey has been undertaken in this country since the Kinsey investigation in 1948. In addition, in 1989 the Department of Health and Human Services Task Force on Youth Suicide delayed publication of a four-volume report. Several of the published papers in the report emphasized the large number of lesbian and gay youth who resort to suicide. Paul Gibson, for example, concludes in his study that lesbian and gay teenagers "may comprise up to 30 percent of completed youth suicides annually." Gibson, "Gay Male and Lesbian Youth Suicide," in Report of the Secretary's Task Force on Youth Suicide 3-110 (1989). Gibson's recommendations include the proposal that youth service agencies and schools take steps to provide acceptance and support for these lesbian and gay youth, who are at great risk of despair and death. See Id. at 3-133 to 3-137. HHS delayed publication from January until August 1989. Once the report was finally released, Secretary Louis Sullivan quickly disassociated himself from the data and recommendations relating to the great risk of suicide among lesbian and gay young people. President Bush did the same. Only a small number of copies of the report were printed. HHS has now allowed this important compendium of information on youth suicide, particularly among lesbian and gay youth, to go out of print. A similar, but even more blatant, effort at suppressing information took place in the editing of the Office of Technology Assessment's recent several-volume report on adolescent health issues. Several references to lesbian and gay youth were deleted from that report. The avoidance of the phrase "lesbian and gay youth" also permeates the federal grant-making process. Agencies that help lesbian and gay youth have learned that they should instead refer to "sexual identity issues" if they wish to gain federal funding. RECOMMENDED ACTIONS 1) Direct the Department of Health and Human Services to reprint the four-volume study on youth suicide for distribution to agencies and schools that serve teenagers. 2) Develop policy to ensure that federal grant applicants are encouraged to serve the needs of lesbian and gay youth. 3) Undertake the two planned government-sponsored sexuality surveys that were abandoned by the previous administration. See also: AIDS: Centers for Disease Control AIDS Prevention Programs NATIONAL SECURITY: Security Clearances -------------------------------------------------- NATIVE AMERICANS INTRODUCTION Native American peoples occupy a unique position in American society. The federal government has consistently given assurances that it will guarantee the survival of Native Americans, their land base and their tribal groups. This principle of respect was recently affirmed by the Supreme Court in Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 112 L. Ed. 2d 1112, 1119 (1991), which declared that "Indian tribes are 'domestic dependent nations,' which exercise inherent sovereign authority over their members and territories." The Clinton Administration must renew the national commitment to defend tribal sovereignty, and to support the inherent right of Native American tribes to exercise tribal sovereignty by preserving the government-to-government relationships that exist between the United States and the Native American nations. At the same time, the Administration should support legislation that enhances the ability of tribal governments to protect individual civil rights under the Indian Civil Rights Amendment. Attention: U.S. Commission on Civil Rights -------------------------------------------------- Native Americans > INDIAN CIVIL RIGHTS ACT ISSUE The Indian Civil Rights Act of 1968, 25 U.S.C. Sections 1301-1303, which affords tribal governments most of the protections in the Bill of Rights, has not been effective in securing rights and preventing civil rights abuses. BACKGROUND The Supreme Court has held that the Indian Civil Rights Act (ICRA) requires only that a tribe provide a tribal forum for the vindication of rights under the Act. Federal court review of tribal civil rights decisions is limited to a petition for writ of habeas corpus, relief that is available only to incarcerated persons. Some tribal members, however, have complained of abuses by their tribal governments that cannot be redressed in federal court, absent incarceration, under the ICRA. Allegations include denial of the right to vote, denial of the right to seek public office, arbitrary dismissal from public employment, loss of tribal housing, election irregularities, confiscation of private land, religious discrimination and denials of due process and equal protection. The U.S. Commission on Civil Rights recently held extensive hearings on the enforcement of the ICRA in the tribal courts. See The Indian Civil Rights Act, A Report of the United States Commission on Civil Rights (June 1991). The study found that when Congress passed the Act, it did not fully take into account the practical problems in applying its provisions to the many broad and diverse tribal governments within the United States. The Commission also found that the Act required many procedural protections without providing adequate funding for their implementation. Currently, two different approaches are competing to resolve the inadequacies of the Indian Civil Rights Act. The first approach seeks to maintain tribal sovereignty by focusing on tribal court funding and the strengthening of tribal forums. This view contends that Congress should not take any further steps to extend the reach of federal government interference unless absolutely necessary. The U.S. Commission on Civil Rights recommended this approach in its report, advising that prior to considering such an imposition, Congress should afford tribal forums the opportunity to operate with adequate resources, training, funding and guidance, which the federal government has not provided since the inception of the ICRA. This is also the approach favored by almost all tribal governments and tribal judges. The second approach favors a direct right of appeal to a federal court from judgments of tribal courts for actions arising under the ICRA. RECOMMENDED ACTIONS 1) Assist tribal governments in their development and promote recognition of their sovereignty. 2) Support legislation that enables the protection of tribal rights without diminishing the protection of individual rights, and that provides adequate resources, training, funding and guidance to tribal governments and forums. -------------------------------------------------- Native Americans > AMERICAN INDIAN RELIGIOUS FREEDOM ACT ISSUE Recent Supreme Court decisions have substantially weakened Native Americans' religious liberty. BACKGROUND Government suppression of traditional religions practiced by Native Americans is longstanding. In 1978, Congress enacted the American Indian Religious Freedom Act (AIRFA) in an effort to reverse this historic, deplorable treatment. However, since AIRFA was enacted as "policy" law, it contains no specific protections or enforcement mechanisms, and courts have been unable or unwilling to utilize it as a means of protecting the integrity of Native American religions. Most recently, the Supreme Court ruled, in essence, that the First Amendment will not protect traditional Native religions. In Lyng v. Northwest Indian Cemetery Association, 485 U.S. 439 (1988), the Court denied protection of a religious site on public land, and in Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), the Court denied protection of a Native American Church practitioner fired from his job for engaging in the sacramental use of peyote. In the 103rd Congress, amendments to AIRFA will be introduced that will seek to reverse the detrimental effects of the Lyng and Smith decisions on Native American religious practice and put teeth into AIRFA. The legislation will: first, protect the areas considered sacred by traditional Native American religious practitioners. Native Americans often attach religious significance to particular natural sites, such as high mountain peaks or secluded valleys. Native American sacred sites are often located on public land, since the federal government often created reservations without regard to the locations of sacred sites. In Lyng, the Forest Service proposed to build a timber-access road in California through an area where Native American religious practitioners conducted ceremonies that were crucial to their religious beliefs and practices. Although the lower courts had found that the road was of only marginal use, and that other alternatives were available, the Supreme Court held that the First Amendment's free exercise balancing test did not apply to the government's use of the land; second, extend First Amendment protection to Native American practitioners who may use peyote as part of their worship. Peyote is a cactus with psychedelic properties that is grown in northern Mexico and southern Texas, and it has been used by Native Americans for thousands of years. In 1965, the Drug Abuse Control Act added peyote to its list of controlled substances with an exemption granted for bona fide religious use. 21 C.F.R. 1307.31. However, this federal exemption does not bind the states and, under the Smith decision, states are free to ban peyote use. Although 27 states have laws that protect the use of peyote as a sacrament, those laws are inconsistent with each other. Amendment of AIRFA is essential to the current D.E.A. regulation and would make it uniformly applicable throughout the country; third, protect the rights of incarcerated Native Americans who are denied access to traditional religious practices. These prisoners lack the freedom to worship according to their religious traditions on a basis comparable to that afforded prisoners of other, more widely known religions, and finally, afford Native medical people or traditional healers easier access to eagle feathers. Many Native American religions consider the use of eagle parts and feathers to be fundamental to the integrity and sacredness of their ceremonies, and some have compared eagle feathers to the cross in Christianity. However, the religious use of eagle parts and feathers has been curtailed by federal efforts to protect the eagle as an endangered species. Although the Religious Freedom Restoration Act (H.R. 2797) seeks to reverse the Smith decision by restoring the standard for resolving conflicts between governmental authority and the free exercise of religion, it does not address the unique, historical problems faced by Native American religions. There remains a need for separate legislation to protect free religious exercise for Native peoples. RECOMMENDED ACTION Support the amendments to the American Indian Religious Freedom Act. See also: REPRODUCTIVE FREEDOM: Public Funding of Abortion Services -------------------------------------------------- ACCESS TO JUSTICE INTRODUCTION Historically, the federal courts have served as the great bulwark of liberty against private and public wrongs. This was especially true for persons who lacked effective political power, such as the poor, women and members of minority groups. For the historically disadvantaged, the federal courts were the principal protector of their rights and liberties against the excesses of the other branches of government and the states. During the past 12 years, however, the Reagan and Bush Administrations severely undermined the historic mission of the federal courts by burdening access to justice and diminishing federal rights. Funding cutbacks at the Legal Services Corporation and in indigent defense made it more difficult for the poor to obtain government-funded legal counsel and vindicate their rights in court; court-imposed limitations on attorney fee awards under civil rights and other fee shifting statutes reduced the number of attorneys available to undertake complex federal litigation. Even where attorneys could be located, procedural and jurisdictional restrictions, urged upon the courts by the Justice Department, severely limited the relief that the victims of constitutional wrongs could obtain in court. and recent Supreme Court rulings concerning habeas corpus gutted the effectiveness of the "Great Writ" as a tool for protecting state defendants' constitutional rights. The Clinton Administration must renew our nation's commitment to constitutional rights, and restore the federal courts to their historic mission as defenders of civil rights and civil liberties. It must establish a tone of respect for constitutional rights. And it must endorse legislation to repeal the past administrations' procedural and substantive roadblocks that bar litigants from vindicating federal rights in federal courts. Attention: Department of Justice Legal Services Corporation Public Defender Service -------------------------------------------------- Access To Justice > ATTORNEYS' FEES ISSUE Recent Supreme Court decisions have unduly restricted plaintiffs' ability to collect attorney and expert witness fees in civil rights and environmental protection cases, thus deterring private citizens from bringing lawsuits to enforce federal laws. BACKGROUND Congress has provided that courts may award reasonable attorneys' fees to prevailing plaintiffs in civil rights and certain public interest suits. Such suits can be extremely costly and time-consuming to litigate, and parties will not undertake them (or will be unable to find counsel to represent them) unless they can be assured that their expenses will be recovered when a lawsuit is successful. The possibility of a fee and cost award encourages attorneys to take on such suits, and ensures that successful plaintiffs will be made whole. Recent Supreme Court rulings, however, have undermined the effectiveness of federal fee statutes in encouraging civil suits by private citizens. Congress's intention in enacting fee statutes was to ensure that the likely cost of a lawsuit would not deter plaintiffs from bringing meritorious suits to enforce federal laws. However, two recent Supreme Court decisions have unduly restricted the meaning of a "reasonable attorney's fee" in federal fee-shifting statutes and, thus, undermined the effectiveness of fee awards in promoting civil rights and environmental enforcement. Expert Costs. First, in West Virginia University Hospital v. Casey, 499 U.S. , 113 L. Ed. 2d 68 (1991), the Supreme Court ruled that a "reasonable attorney's fee" did not include fees paid for services rendered by expert witnesses in civil rights lawsuits. Many civil rights plaintiffs simply cannot prove their cases without the use of expert witnesses. For example, the ACLU Southern Regional Office has brought many successful vote dilution cases under Section 2 of the Voting Rights Act; none of these cases could have been won without the use of experts. By restricting the ability of civil rights plaintiffs to employ expert witnesses, the Casey decision undermines civil rights. Contingency Multipliers. Second, in City of Burlington v. Dague, 505 U.S. , 120 L. Ed. 2d 449 (1992), the Supreme Court ruled that a statutory attorney's fee award could not be enhanced to take account of the risk the attorney had accepted that the lawsuit might be unsuccessful. Such "contingency multipliers" had previously been permitted in most of the appeal courts. In the market for attorney services, contingency is a well-recognized factor. Since attorneys accepting fees on contingency only receive payment if they win, they must charge more than attorneys who are assured of payment. By prohibiting contingency multipliers, the Dague decision undermines the congressional purpose in fee-shifting. Attorneys will be discouraged from pursuing cases that are less than certain winners and thus enforcement of the underlying statutes will be seriously weakened. RECOMMENDED ACTION Urge Congress to amend 42 U.S.C. Section 1988, and similar fee-shifting statutes to permit both recovery of expert fees and contingency multipliers, in order to ensure effective private enforcement of federal civil rights and environmental laws. -------------------------------------------------- Access To Justice > FUNDING OF LEGAL SERVICES ISSUE The effectiveness of the Legal Services Corporation (LSC) in delivering legal services to the poor has been greatly hampered by inadequate federal funding and by numerous and inappropriate restrictions on the activities of LSC-funded organizations. BACKGROUND Since 1974, the LSC has been the principal source of non-criminal legal services for poor people in the U.S. It serves approximately 1.4 million people annually. However, for the past 12 years, the LSC has been hampered by administrations that were unremittingly hostile to its mission. At current funding levels, it is estimated that 80 to 85 percent of the legal needs of the poor go unmet. In addition to the shortage of funds, legal services attorneys are hindered in their ability to provide effective representation by numerous restrictions on the kinds of cases they can undertake. Provisions of the L.S.C. Act, 42 U.S.C. Section 2996 et seq., bar legal services organizations receiving LSC funds from engaging in certain activities on behalf of poor clients. The restrictions include: Substantive limitations. Legal services organizations cannot use LSC or private funds to seek to procure a nontherapeutic abortion or to compel individuals or institutions to provide or assist in abortions; they cannot use LSC funds to participate in any litigation with respect to abortion. 42 U.S.C. Section 2996f(b)(8). They cannot provide representation in school desegregation litigation. Id., (b)(9). They cannot provide legal assistance in cases involving selective service, id., (b)(10), or election redistricting, 45 C.F.R. Section 1632. Limitations on methods of representation. Legal services attorneys are, for the most part, limited to bringing traditional litigation on behalf of individual clients. They cannot organize clients into effective advocacy groups, such as tenant organizations. 42 U.S.C. Section 2996f(b)(7). They cannot conduct or support training programs for the purpose of advocating particular public policies or encouraging political activities. Id., (b)(6). Legal services attorneys cannot assist their clients with voter registration or engage in legislative advocacy on their behalf. Id., (a)(5)-(6). All of these restrictions interfere with the ability of dedicated legal services attorneys to serve the needs of their clients. The poor remain politically powerless in this country. Only in the courts can their interests be protected; thus, the poor must have meaningful access to the judicial system. RECOMMENDED ACTIONS 1) Restore funding for the Legal Services Corporation to adequate levels. 2) Appoint LSC Board members who are committed to meaningful access to justice and legal services for the poor. 3) Support legislation and urge regulatory changes to remove restrictions on the ability of LSC-funded organizations to meet the legal needs of their impoverished clients, as those clients' legal situations warrant. -------------------------------------------------- Access To Justice > RULE 11 REFORM ISSUE Rule 11 of the Federal Rules of Civil Procedure authorizes monetary sanctions against attorneys for acting in bad faith. A 1983 amendment to the Rule that alters the standards for sanctioning attorneys has had a chilling effect on public interest lawyers. BACKGROUND Rule 11 of the Federal Rules of Civil Procedure governs the conduct of attorneys and parties in civil litigation in federal court. It provides monetary sanctions for the submission of papers to court that are not well grounded in fact, not legally warranted, or interposed for an improper purpose. In 1983, Rule 11 was amended to change the standards for sanctioning attorney conduct from bad faith to a new, supposedly "objective" standard. Application of that standard by the federal courts has had a chilling effect on vigorous advocacy by public interest lawyers. Since 1983, defendants have frequently employed Rule 11 as a weapon against civil rights and civil liberties lawyers. Creative and aggressive plaintiffs' lawyers, who have vigorously defended constitutional rights and liberties, have been held personally liable for large monetary sanctions under the rule. Indeed, the same legal arguments held to be sanctionable in one case have been found to be meritorious in separate actions before different judges. Recognizing the problems with Rule 11, the Judicial Conference of the United States has proposed substantial amendments to Rule 11 as part of a larger revision of the Federal Rules of Civil Procedure. While far from perfect, the revised Rule 11 would substantially reduce the use of monetary sanctions in civil rights and civil liberties litigation. It would also reduce the use of Rule 11 motions as a litigation tactic by creating a "safe harbor" period, in which non-meritorious claims might be withdrawn without penalty. The proposed amendments are currently before the Supreme Court and will likely be presented to Congress sometime next year. Once approved by the Court, the proposed amendments will automatically take effect unless rejected by both houses of Congress and by the President. RECOMMENDED ACTION Support the Judicial Conference's proposed amendment to Rule 11 and oppose any legislative effort to weaken reforms of the Rule. -------------------------------------------------- Access To Justice > INDIGENT DEFENSE ISSUE Although criminal defendants have a constitutional right to legal counsel, the federal government does not adequately fund indigent defense. This problem has become particularly acute since the the "war on drugs" occasioned a huge increase in drug prosecutions. BACKGROUND In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Constitution guarantees indigent defendants the right to counsel in criminal cases. Thirty years later, the promise of Gideon remains unfulfilled for many indigent defendants. The federal government's support for prosecution has increased dramatically over the last decade when compared to the increase in funding for defense. Direct federal expenditures for prosecution increased 284.2 percent between 1979 and 1988. There was but a 60.3 percent increase for public defense over the same period. U.S. Department of Justice Statistics, Justice Expenditure and Employment, 1988. During this period, however, largely because of the recession, the indigency rate in criminal cases has grown while budgets for defense have remained flat. Moreover, the Department of Justice has continually opposed indigent defense funding and encouraged spending the money on police and prosecutors. Under the federal Anti-Drug Abuse Act, the Bureau of Justice Assistance distributes $400 million to state and local governments through both a formula block grant program and a discretionary grant program. Although Congress revised the Act to indicate specifically that indigent defense is one area in which the money may be used, in FFY 1991 only $12 million was allotted among all the states and local governments for indigent defense in this federal program. There must be "adequate and balanced" funding under all federal programs to meet police, prosecution and defense functions. Much of the fiscal control for indigent defense in federal court, however, remains in the judiciary through the Judicial Conference of the United States and individual judges. Judicial representation of indigents occurs, if at all, through appointment of unpaid counsel. It is no more appropriate for the judiciary to control indigent defense funding than for the judiciary to control prosecution funding. RECOMMENDED ACTIONS 1) Support adequate and balanced funding of indigent defense and remove exclusive judicial control over indigent defense funding. 2) Urge the promulgation of a regulation requiring that indigent defense representatives serve on the state agencies that decide how federal money is distributed. -------------------------------------------------- Access To Justice > HABEAS CORPUS ISSUE In a series of decisions during the past decade, the Supreme Court has severely eroded meaningful access to the federal courts for state death row inmates, thus undermining the letter and spirit of the historic writ of habeas corpus. BACKGROUND Ever since the Magna Carta, the writ of habeas corpus has stood as the highest safeguard of personal liberty. Access to the writ is guaranteed by the Constitution (Art. 1 Section 9). Congress enacted the federal habeas corpus statute (28 U.S.C. Sections 2241-2254) shortly after the Civil War to ensure that state, as well as federal, courts do not deprive persons charged with crimes of the rights they are guaranteed by the Bill of Rights and the Fourteenth Amendment. The vigorous federal oversight that habeas is intended to provide not only protects the integrity of our constitutional guarantees, but also encourages state courts to pay close attention to federal constitutional standards. Habeas corpus has been particularly critical to the fair administration of justice in capital cases. Capital trials in many parts of the country remain permeated with racial bias, and are often conducted with little regard for constitutional standards and without competent legal representation. In the last decade, federal courts have found harmful constitutional errors in nearly 40 percent of the capital cases reviewed. See Habeas Corpus Issues, 1991, before the Subcomm. on Civil and Constitutional Rights, Comm. on the Judiciary, 102d Cong., 1st sess. 1991 (Statement of John J. Curtin, Jr., President of the American Bar Association). Since 1980, the Reagan and Bush Administrations have sought to place severe limitations on access to federal habeas corpus for death row inmates. Claiming that most capital appeals are without merit, both administrations have repeatedly urged the Supreme Court to interpret the habeas statute to require extraordinary deference to state proceedings. See e.g., Wright v. West 60 U.S.L.W. 4639 (June 19, 1992); Withrow v. Williams 94 F.2d 284 (6th Cir. 1991), cert. granted 60 U.S.L.W. 3716 (April 20, 1992). In addition, both have asked Congress to enact legislation that would require federal courts to defer to state court decisions on the meaning of the Constitution, as long as the state courts use "full and fair" procedures. See, H.R. 1400, 102d Cong., 1st sess., 137 Cong. Rec. H1669, (daily ed. March 12, 1991). According to the American Bar Association and other experts, that would mean that the federal courts would have to turn away plainly meritorious constitutional claims. Federal courts would no longer be able to ensure that prisoners' rights are protected at all. Habeas corpus would not be reformed; it would be repealed. See, e.g., Yackle, "The Reagan Administration's Habeas Corpus Proposals," 68 Iowa L. Rev. 609 (1983). The past administrations' Draconian approach to habeas reform was rejected by Congress and by the Court. See Wright v. West. Nevertheless, the Court has drastically curtailed access to the federal courts during the past decade in a series of cases interpreting the doctrines of procedural default, see, e.g., Coleman v. Thompson 59 U.S.L.W. 4789 (June 24, 1991), and retroactivity, Teague v. Lane, 489 U.S. 288 (1989). These procedural doctrines have erected new barriers to federal habeas review, and have made such cases far more complex to litigate, more burdensome on the federal courts and far less fair. It is now becoming commonplace for capital defendants to be put to death without any meaningful federal judicial review of their constitutional claims, even when those defendants claim actual innocence. See Coleman v. Thompson. There is no question that the processing of capital cases is in need of reform. But the past administrations' approach to the problem exalts speed over fair review. It fails altogether to address the root cause of the problem -- the crisis of competent counsel on death row -- and perpetuates the procedural complexity created by the Supreme Court's decisions that prevent habeas courts from considering the merits of a claim. For the past 12 years, habeas corpus reform has been treated as a crime issue. It is not: It is an issue that goes to the heart of the fair administration of justice. Habeas reform should be considered free of the political rhetoric and partisanship that mark the consideration of crime bills in Congress. RECOMMENDED ACTIONS 1) Support true habeas corpus reform that: a. assures capital defendants at least one full opportunity to litigate constitutional claims on the merits in federal court; b. requires states to provide properly trained and compensated counsel from trial through post-conviction proceedings; c. provides for substantial reform of the doctrines of procedural default and retroactivity to simplify the process and assure that the system not only works more efficiently, but also that federal review is fair; and d. provides a mandatory stay of execution through the first round of federal habeas review. 2) Review the litigation positions the government has taken before the Supreme Court in habeas cases, with particular attention to death penalty cases. Urge the Department of Justice to advocate strenuously on behalf of a reinvigorated writ, in keeping with its historic mission. See also: CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Enforcement CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991 CIVIL RIGHTS ENFORCEMENT: Caps on Damages DRUG POLICY: The War on Drugs DRUG POLICY: Civil Forfeiture -------------------------------------------------- CRIME AND CRIMINAL JUSTICE INTRODUCTION For more than two decades, the United States has experienced extraordinarily high levels of violence and crime. Our crime rate far exceeds that of any other industrialized nation. According to the United Nations, the U.S. homicide rate is more than 14 times that of the United Kingdom, four times that of Canada and eight times that of France. The American Bar Association estimates that more than 30 million serious crimes are committed in our country every year. Understandably, the American public has responded to the high crime rate with fear, and with demands for effective public safety measures. But rather than confront the complex problem of crime with rational policies and the necessary resources, many politicians discovered that it is expedient and inexpensive to scapegoat the Constitution and the Bill of Rights. Instead of dealing with the conditions of poverty that prompt many young people in our inner cities to commit property crimes, they attack the Exclusionary Rule and the Miranda warnings. Instead of investing in crime prevention measures like education, decent housing and job training, they invest in prison construction -- one of the fastest growing industries in the country. These policies have not reduced the crime rate. Instead, they have fostered a criminal justice system that is pervaded with racism and class bias, from arrest to imprisonment, and a rate of incarceration that surpasses every other country in the world. The typical inmate in a U.S. jail or prison is minority, male, young and uneducated. Over 40 percent of inmates are functionally illiterate, and one-third were unemployed when arrested. More than half had annual incomes of less than $10,000, and more than 60 percent of female prisoners were on welfare at the time of arrest. We cannot afford to continue these failed policies. The Clinton Administration must commit itself to a serious re-examination of the nation's criminal justice policies that both looks at the underlying integral causes of crime and violence in our society and recognizes the importance of preserving every individual's civil rights and liberties. Attention: Department of Justice United States Sentencing Commission -------------------------------------------------- Crime/Criminal Justice > IMPRISONMENT AS A CRIME CONTROL MECHANISM ISSUE The federal government's longstanding reliance on incarceration as a crime control strategy is unsupported by research or experience. It has led to the doubling of the nation's prison population in the last decade, without any measurable impact on the crime rate. BACKGROUND In the United States today, more than 1,300,000 men, women and juveniles live behind bars in more than 5,000 separate lock-ups, jails and prisons. The U.S. now has the world's highest per capita incarceration rate, which has grown continuously during the past 12 years and is now four to 10 times greater than that of any Western European country, and three to five times greater than that of any Eastern European country. Yet our rate of imprisonment has had no measurable impact on our crime rate, which continues to soar. People of color are disproportionately represented in our jails and prisons. Although African Americans constitute only 12 percent of the population, almost half of all prisoners are black. Indeed, the rate of incarceration of black men in the U.S. is almost five times higher than in South Africa. M. Mauer, "Americans Behind Bars: A Comparison of International Rates of Incarceration," The Sentencing Project (1991). One out of every four black men and one out of every ten Latino men, between the ages of 20 and 29, are in prison or jail or on probation or parole, compared to one out of every 16 white men in the same age group. M. Mauer., "Young Black Men and the Criminal Justice System: A Growing National Problem," The Sentencing Project (1990). We pay a high price for our inordinate reliance on incarceration, both socially and fiscally. The imprisonment of such great numbers of young minority men, most for nonviolent offenses, has been a major factor in the feminization of poverty in our inner cities. And the annual cost of incarceration now exceeds $20 billion -- approximately $30,000 a year per prisoner. The huge increase in the prison population over the last decade has also led to severe overcrowding in federal and state prisons and jails. As of January 1992, prison systems in 40 states and the District of Columbia were under court orders to reduce conditions of overcrowding that were found to be unconstitutional. RECOMMENDED ACTION Develop a rational and fiscally responsible criminal justice policy that: a. recognizes the limitations of incarceration as a crime control mechanism; b. expands the use of alternatives to incarceration for non-violent offenders, and c. reserves scarce prison space for violent offenders. -------------------------------------------------- Crime/Criminal Justice > THE EXCLUSIONARY RULE ISSUE The Exclusionary Rule of the Fourth Amendment, which is designed to deter the police from executing unconstitutional searches and seizures, has been repeatedly attacked by past administrations and significantly weakened by recent Court decisions. BACKGROUND The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The Exclusionary Rule gives the Fourth Amendment teeth. By excluding from trial any evidence seized in violation of the Fourth Amendment, police are deterred from acting in an unconstitutional manner. In recent years, however, numerous government officials have attacked the Exclusionary Rule as a mere "technicality" that allows hordes of guilty criminals to go free. In fact, studies show that the rule rarely has an adverse effect on the outcome of a criminal case. For example, in a 1979 study by the General Accounting Office, it was revealed that only four-tenths of one percent of the cases rejected for prosecution were rejected because of Fourth Amendment problems. Report by the Comptroller General of the United States, U.S. General Accounting Office, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979). And many respected police officials believe that the Exclusionary Rule has had the salutary effect of professionalizing the police and encouraging respect for individual rights. See "Criminal Justice in Crisis," American Bar Association (1988). In 1984, the Supreme Court significantly weakened the Exclusionary Rule by holding that evidence is admissible even if seized with an invalid search warrant, so long as the police acted in "good faith." United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984). The Reagan/Bush Administrations proposed legislation that would have expanded the "good faith exception" to the Exclusionary Rule to include evidence gathered during a warrantless search. These proposals were rejected by Congress but are likely to be proposed anew. Extending the "good faith exception" to warrantless searches would have a devastating effect on the deterrence of police misconduct and would, in fact, provide an incentive for police to circumvent the warrant process altogether. The Fourth Amendment, for all practical purposes, would be reduced to a paper tiger that would, in the words of the late Justice Robert Jackson, "leave the people's homes secure only in the discretion of police officers." Johnson v. United States, 333 U.S. 10, 14 (1948). RECOMMENDED ACTIONS 1) Oppose any attempts in Congress to expand the "good faith exception" to the Exclusionary Rule. 2) Instruct the Department of Justice to adopt a litigation position that strengthens the Fourth Amendment. -------------------------------------------------- Crime/Criminal Justice > MANDATORY MINIMUM SENTENCING ISSUE Mandatory minimum sentencing laws prevent judges from considering mitigating factors and result in unreasonably harsh penalties. These laws have contributed to the explosion of our prison population, but they have not led to a reduction in our crime rate. BACKGROUND Since 1984, Congress has enacted a series of mandatory minimum sentencing laws, removing from the judiciary the discretion it has traditionally had under our system of criminal justice. Approximately 100 mandatory sentencing provisions are now housed within 60 federal statutes. Under these statutes, federal judges are compelled to mete out harsh prison sentences without regard to any mitigating circumstances. Mandatory minimum sentences raise serious civil liberties concerns. Because judges are compelled to disregard mitigating factors when imposing sentence, mandatory minimum provisions often force trial courts to impose sentences that may be disproportionate to the crime. For example, an offender convicted of possession of five grams of "crack," must be sentenced to five years in prison even if it is a first offense and irrespective of the offender's age, prospects for rehabilitation or role in the commission of the crime. Although mandatory minimums were originally designed to eliminate sentencing disparities for similar crimes, they have not accomplished that purpose. In 1991, the U.S. Sentencing Commission completed a study of the effects of mandatory minimum sentencing laws. The Commission found that discriminatory racial disparities persisted, with minority offenders receiving harsher sentences than their white counterparts in spite of the mandatory minimums. United States Sentencing Commission Special Report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System at 1 (August 22, 1991). The greatest and most consistent opposition to mandatory minimum sentencing laws has come from federal jurists. The United States Judicial Conference, in addition to all 12 Circuit Courts of Appeal, have passed resolutions opposing the concept of mandatory minimums. RECOMMENDED ACTIONS 1) Support the repeal of federal mandatory minimum sentencing laws, so that sentencing discretion is restored to the federal judiciary. 2) Support the Sentencing Uniformity Act of 1992 (H.R. 6079), introduced by Ed Jenkins (D-GA) and Don Edwards (D-CA). -------------------------------------------------- Crime/Criminal Justice > COERCED CONFESSIONS / FIFTH AMENDMENT ISSUE The Supreme Court has discarded the special rules that have long applied to the admissibility of coerced confessions in criminal trials, thus eroding the Fifth Amendment right against self-incrimination. BACKGROUND In 1991, the Supreme Court, in Arizona v. Fulminante, 111 S. Ct. 1246 (1991), reversed longstanding precedent that the admission into evidence of a coerced confession could never be held harmless error. The Fifth Amendment's guarantee of the right against self-incrimination, as with the right not to be deprived of counsel or tried before a biased judge, is central to a fair trial. The admission of a coerced confession distorts a trial's truth- seeking function and undermines its structural integrity. In Fulminante, the Court held that coerced confessions should now be treated like any other trial error; thus, it extended to involuntary confessions the harmless error rule outlined in Chapman v. California, 386 U.S. 18 (1967). A coerced confession, however, is fundamentally different from other types of erroneously admitted evidence to which the rule has been applied. "The defendant's own confession is probably the most probative and damaging evidence that can be admitted against him ... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct." Bruton v. United States, 391 U.S. 123, 139-140 (1968) (White, J., dissenting). Recognizing the distinct nature of confessions, the Court had long rejected application of the harmless error doctrine to coerced confessions, even if independent corroborating evidence existed to support the conviction and even when a second confession by the defendant had been properly admitted into evidence. The abandonment of this long-standing precedent has disturbed one of the fundamental tenets of our criminal justice system. RECOMMENDED ACTION Introduce legislation that amends the federal criminal code by restoring pre-Fulminante law, as follows: 1. Section 3501 of Title 18, United States Code, should be amended by adding at the end of subsection (a), "The erroneous admission into evidence of an involuntary confession subject to exclusion under this section shall not be subject to consideration as harmless error," and by adding to the end of subsection (f), "The law of the United States does not require the disregarding as harmless error of the erroneous admission of evidence in a proceeding in any court under circumstances in which admission of the evidence would not be subject to consideration as harmless error in a court of the United States pursuant to subsection (a) of this section." 2. Rule 52 of the Federal Rules of Criminal Procedure should be amended by adding at the end of subsection (a), "This subsection shall not apply to a confession involuntarily given, as determined under section 3501 of Title 18, United States Code." -------------------------------------------------- Crime/Criminal Justice > PREVENTIVE DETENTION ISSUE Detention before trial is repugnant to the Constitution and abrogates the presumption of innocence upon which our system of criminal justice is based. BACKGROUND The Eighth Amendment guarantees the right to reasonable bail except in cases of murder, a capital offense. The practice of incarcerating the accused before trial tramples on one of this country's most fundamental rights: the right to be presumed innocent until proven guilty. The presumption of innocence means that judges, in deciding on bail, may not consider the issue of guilt, but only whether a defendant might flee the jurisdiction if released. The purpose of bail is not to punish, but to guarantee a defendant's presence at trial. The Bail Reform Act of 1984, 18 U.S.C. Sections 3141-56, was enacted by Congress to give judicial officers the authority to detain an arrestee "preventively" without bail, upon determination that no release conditions "will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. Section 3143(c). In United States v. Salerno, 481 U.S. 739, 746 (1987), the Supreme Court upheld the facial constitutionality of the Bail Reform Act, ruling that substantive due process is not violated because pretrial detention is regulatory, not penal. The Court rejected the argument that the Act authorized impermissible punishment before trial. Pretrial detention was first among the 24 "crime-fighting" recommendations for state and local law enforcement agencies issued by Attorney General William Barr in July 1992. In his report, Barr stated that a "critical step" in legal reform during the 1980s was the ability to keep "dangerous defendants" in jail before trial. Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice, U.S. Department of Justice at 1 (July 28, 1992). The assumptions upon which pretrial detention are based, however, are faulty. The vast majority of criminal defendants do not commit further serious crimes while free on bail. U.S. Department of Justice, Bureau of Justice Statistics, Pretrial Release of Felony Defendants, 1988 (1991). Moreover, it is impossible to predict accurately which defendants will commit new crimes and which will not. Ennis and Litwack, "Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom," 62 Cal. L.R. 693 (1974). RECOMMENDED ACTION Instruct the Department of Justice to: a. reverse its practice of expanding the types of cases where preventive detention is sought; b. exclude "dangerousness" as a criterion for detention before trial; and c. limit preventive detention to cases where no condition or combination of conditions would reasonably assure the defendant's presence in future court proceedings. -------------------------------------------------- Crime/Criminal Justice > CAPITAL PUNISHMENT ISSUE Capital punishment exacts enormous social, moral and financial costs from U.S. society. But there is no convincing evidence that the death penalty deters the commission of murder. BACKGROUND For the past 12 years, the death penalty has taken on an exaggerated importance in the public debate over crime and punishment. But its prominence bears no relationship to its utility as a crime-fighting measure. Indeed, there is no credible evidence that the death penalty has any impact on reducing violent crime or homicide. Nevertheless, 38 jurisdictions, including the U.S. military and the federal government, have death penalty statutes. There are currently 2,600 people on death row nationwide, including one person who is under sentence of death under the federal Anti-Drug Abuse Act of 1988. The federal government's support for the death penalty must be re-examined in light of the following facts: Death penalty states, as a group, do not have lower rates of criminal homicide than non-death penalty states. During the 1980s, death penalty states averaged an annual rate of 7.5 criminal homicides per 100,000 of the population, while states without the death penalty averaged a rate of 7.4. Hugo Bedau, The Case Against the Death Penalty, Capital Punishment Project of the ACLU (reprinted 1992). Despite the fact that Texas has the largest death row in the country, and Houston alone has executed 10 percent of all of the people executed in the U.S. since 1976, the murder rate in three major Texas cities, including Houston, is so high as to rank those cities among the nation's top 25 cities for murder. Death Penalty Information Center, Millions Misspent: What Politicians Don't Say About the High Cost of the Death Penalty, (October 1992). The death penalty has increased the costs of state and local criminal justice systems without a commensurate increase in public safety. In California, capital trials are six times more expensive than other murder trials. The Death Penalty Information Center, Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty (October 1992). In Texas, a single death penalty case costs the taxpayers an average of $2.3 million -- three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. Id. In an era of limited resources, death penalty states find themselves choosing between expensive death penalty trials and executions in a handful of cases, and other vital law enforcement programs. American juries continue to apply the death penalty in a racially discriminatory manner. Although there has been some improvement in the extent to which race plays a role in capital punishment in the years since the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972) (in which the Court invalidated virtually every death penalty statute in the country), strong evidence exists that in some jurisdictions, and for some crimes, the defendant's race is still a determining factor -- especially if the victim is white. According to a survey by the General Accounting Office, studies show "a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty..." In 82 percent of the studies reviewed by the GAO, the race of victim was found to strongly influence the likelihood of being charged with a capital murder and of receiving the death penalty. Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, U.S. Government Accounting Office Report to Senate and House Committees on the Judiciary (GAO\GGD-90-57) (February 1990). [Note: The case can be made that the U.S. is alone among Western nations in its retention of the death penalty for ordinary crimes because of its unique history of slavery and its legacy. Under slavery, the Slave Codes that regulated all aspects of slave life in the South sanctioned extreme physical punishment and the ultimate punishment, death, as the primary method of controlling the population held in bondage -- a population that was perceived to be forever "alien" and inferior. After Emancipation, official and mob lynchings were used to terrorize the newly freed slaves, keeping them in virtual bondage. The racial bias that historically has marked the imposition of the death penalty remains entrenched in our society and continues to inform the general public's orientation towards crime and punishment and continues to influence the shape of public policy.] The execution of innocent defendants is a significant and unacceptable risk. Although the American system of criminal justice has many safeguards to prevent gross miscarriages of justice, it is not infallible. There are hundreds of cases in which persons have been falsely accused and convicted. Since 1900, there have been on average more than four cases per year in which people have been put to death for murders they did not commit. Radelet, Bedau and Putnam, In Spite of Innocence, Northeastern University Press (1992). As the use of the death penalty expands, so does the risk of mistaken executions. RECOMMENDED ACTIONS 1) Support legislation that repeals the death penalty at the federal level. Provide leadership in urging states to repeal existing death penalty statutes. 2) Appoint a national commission on crime and capital punishment to study the effect of the death penalty, if any, on the incidence of homicide. Support legislation imposing a moratorium on federal death sentences and executions pending the commission's report. 3) Support legislation to provide a meaningful remedy for the impermissible influence of race in capital cases and to insure that no person is executed as a result of racial discrimination. -------------------------------------------------- Crime/Criminal Justice > POLICE ABUSE ISSUE The federal government must shoulder its burden in protecting all people's civil right to be free from abusive treatment by law enforcement officials. BACKGROUND During the past 12 years, the federal government has virtually ignored the nationwide problem of police abuse. Nowhere was this failure more evident than in Los Angeles, California. A widespread pattern of police abuse by officers of both the Los Angeles Police Department (LAPD) and the Los Angeles Sheriff's Department (LASD) was well known to the Department of Justice long before the beating of Rodney King. Over a six-year period, from 1984 to 1990, the LASD ranked second, and the LAPD 11th, in police abuse complaints received by the Department. Yet, during that period, the Department of Justice brought only three prosecutions against police officers in Los Angeles County. The Department's lack of zeal was apparent elsewhere as well. In 1990, of the 7,960 complaints of civil rights violations filed with the FBI and the Justice Department, only 3,050 cases were investigated and only 63 were prosecuted. In 1991, the year of the Rodney King beating, charges were filed in only 68 cases. Moreover, the Department of Justice failed to support reform legislation that would make it easier to vindicate valid claims of police abuse. Laws enacted during the Reconstruction Era give the Justice Department authority to prosecute local law enforcement officers for federal criminal civil rights violations. 18 U.S.C. Sections 241 and 242. However, the Supreme Court's decision in Screws v. United States, 325 U.S. 91, 103-104 (1945), which requires that the accused officer acted with specific intent to deprive the victim of a constitutional right, has made it difficult to bring successful federal civil rights cases against individual police officers. Although 42 U.S.C. Section 1983 provides for civil remedies for victims of police abuse, recent Supreme Court decisions under Section 1983 have become so restrictive that legislative reform is essential to ensure that private civil rights damages are effective in achieving the goals of victim compensation and police accountability. Under current law, for example, the federal government cannot bring a civil suit on behalf of a victim of police misconduct. In most cases, the victim must sue the individual officer, who is usually judgment proof, rather than his or her government employer. Moreover, the victim may lose the suit if the jury finds that the officer acted "in good faith," even if the jury believes the conduct to have been illegal. During the Carter Administration, the Justice Department sued the City of Philadelphia, seeking injunctive relief to halt a pattern and practice of police misconduct in that city. But the United States Court of Appeals for the Third Circuit ruled that Congress had not authorized such pattern and practice suits by the Justice Department. United States v. Philadelphia, 644 F.2d 187 (3d Cir. 1980). Then, in Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that individual victims of police misconduct lacked legal standing to bring such lawsuits. RECOMMENDED ACTIONS 1) Instruct the Department of Justice to vigorously prosecute abusive police officers under existing federal civil rights laws and to collect data from federal, state and local law enforcement agencies about complaints of excessive force. 2) Support legislation that: a. gives the Justice Department clear statutory authority to bring a civil action for obtaining appropriate equitable and declaratory relief to eliminate a pattern or practice of police misconduct; b. gives private parties standing to challenge a pattern or practice of police abuse in civil actions; c. makes state and local governments liable for acts of abuse by police officers, and gives the Justice Department authority to sue on behalf of the injured party; d. makes law enforcement officers criminally liable whenever they act under color of law to subject any person to force exceeding that which is reasonably necessary to carry out a law enforcement duty, and e. requires police departments that receive federal funds to: establish an early warning system for identifying police officers who have received an excessive number of complaints of misconduct; provide training, counseling and, where appropriate, disciplinary action for those officers; establish a clear policy prohibiting the use of unreasonable and unnecessary physical force, and set up a formal procedure for investigating citizens' complaints. See also: ACCESS TO JUSTICE: Indigent Defense ACCESS TO JUSTICE: Habeas Corpus DRUG POLICY: The War on Drugs DRUG POLICY: Militarization of Drug Law Enforcement DRUG POLICY: Post-Conviction Sanctions DRUG POLICY: Civil Forfeiture DRUG POLICY: Medical Marijuana INFORMATION PRIVACY: Criminal History Records INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties INTERNATIONAL HUMAN RIGHTS: Abduction of Foreign Nationals PRISONERS' RIGHTS: Medical Care PRISONERS' RIGHTS: Maintenance of Family Ties PRISONERS' RIGHTS: Grievance Resolution PRISONERS' RIGHTS: Voting Rights PRISONERS' RIGHTS: International Standards PRISONERS' RIGHTS: Civil Rights of Institutionalized Persons Act PRISONERS' RIGHTS: Monitoring Overcrowding and Human Rights Violations WOMEN'S RIGHTS: Drug Dependent Women -------------------------------------------------- DRUG POLICY INTRODUCTION For the past 75 years, local, state and federal governments in the United States, with virtually no exceptions, have pursued a policy of criminal prohibition with respect to certain (though not all) mind-altering drugs. Despite the fact that this policy has failed either to curb drug trafficking or to reduce the crime associated with it, our policy makers have never seriously reconsidered its underlying premises. Instead, they have called for more of the same: more vigorous law enforcement and harsher and harsher laws, despite the persistent failure of such laws to achieve lasting remedial results. Apparently widespread public acceptance of this approach has enabled the government to remain largely above criticism and, at the same time, to accumulate tremendous and sometimes unconstitutional powers. The 1980s saw both the rapid deterioration of living conditions in America's inner cities and the emergence of the twin epidemics of crack and AIDS. The federal government's primary response was to favor law enforcement strategies over treatment, prevention, education and research. The "war on drugs" quickly became a war on people, and a war on the Bill of Rights. Hundreds of thousands of non-violent drug abusers have been imprisoned. The AIDS virus has been allowed to run rampant through the population of drug-users, their sexual partners and their offspring. And fundamental civil liberties have been scapegoated and eroded. The war on drugs has caused enormous human suffering, while doing little or nothing to curb the nation's appetite for drugs. The Clinton Administration must reexamine drug control strategy and implement policies that genuinely reduce, rather than magnify, the harms caused by drug abuse. Attention: Department of Justice Drug Enforcement Administration Food and Drug Administration National Commission on AIDS Office of National Drug Control Policy -------------------------------------------------- Drug Policy: > THE "WAR ON DRUGS" ISSUE The National Drug Control Strategy, popularly known as the war on drugs, has failed to reduce the importation of contraband into the U.S., and it has failed to reduce Americans' demand for illegal drugs. Instead, it has led to the erosion of basic civil liberties and the diversion of federal resources needed for drug treatment, education and prevention. BACKGROUND The first contemporary war on drugs, declared by President Nixon in 1969, devoted almost two-thirds of its total budget to treatment, prevention and education. Presidents Ford and Carter continued to proclaim "demand reduction" as the primary focus of national drug policy. But President Reagan precipitously shifted 80 percent of the federal funds allocated to the drug war over to law enforcement -- supply reduction -- reflecting his Administration's view that drug abuse was not an illness, but primarily a law enforcement problem. This funding pattern continued under the Bush Administration, which spent $12 billion on the drug war. More than 70 percent of that went to law enforcement. One of the Bush Administration's major responses to the drug problem in the inner cities is "Operation Weed and Seed," an essentially paramilitary operation aimed at drug trafficking. This initiative has been opposed in the targeted cities by citizens who see its law enforcement thrust as being at odds with the need for treatment and jobs. Over-reliance on law enforcement has had disastrous consequences for the nation, including the following: A gridlocked criminal justice system. The sheer volume of drug arrests (1.2 million per year today, compared to 200,000 in 1968 when drug use was much higher) is overwhelming our police, our prosecutors, our defense bar, our courts and our jails and prisons. The world's highest incarceration rate. The United States, with more than one million people behind bars, now imprisons more people per capita than any other country, including South Africa. The diversion of funds from drug prevention programs. Most law enforcement officials today believe that adequately funded social programs, including economic opportunity programs, are the best crime prevention methods we have. The explosion of HIV-infection among intravenous drug users, their sexual partners and their children. Possession of hypodermic syringes continues to be a criminal offense in many jurisdictions, especially those with a high percentage of intravenous drug users. But the federal government has ignored even its own National Commission on AIDS, which in 1991 recommended removing legal barriers to the purchase and possession of clean needles. The destruction of basic civil liberties. We now have what some constitutional scholars call "the drug exception to the Bill of Rights." Random, suspicionless drug testing, the militarization of domestic drug law enforcement, heightened surveillance through wiretapping and other techniques, passage of vaguely worded loitering laws and curfews, forfeiture of people's homes and assets, excessive and mandatory prison terms -- all of these practices and more have eroded the constitutional rights of all Americans. A growing consensus of experts, including many law enforcement officials, agrees that a cease-fire must be declared in the war on drugs, and that drug policy must be reformed. Several weeks after the brutal 1991 beating of Rodney King in Los Angeles, 12 big city police chiefs issued a position paper on "The Policing Crisis in America." They wrote: "We reject metaphors such as 'war on drugs' and 'war on crime' that imply violence." They also recognized that the crime and violence associated with drugs is the inevitable "aftermath of years of urban neglect . . . and of a lost generation wandering the streets without employment or hope of a better future." They are right. RECOMMENDED ACTIONS 1) Declare an immediate cease-fire in the war on drugs and redirect federal resources towards drug treatment, prevention and education. 2) Develop and implement a national drug policy that reflects the fact that drug abuse is principally a public health problem, not a criminal justice problem. 3) Implement the recommendation of the National Commission on AIDS that legal barriers to the purchase and possession of sterile hypodermic syringes be removed. -------------------------------------------------- Drug Policy > MILITARIZATION OF DRUG LAW ENFORCEMENT ISSUE During the past twelve years, the military has assumed an increasingly prominent role in domestic drug law enforcement. This development threatens our nation's historic separation between military and civilian affairs, and jeopardizes basic civil liberties. BACKGROUND In 1878, Congress passed the Posse Comitatus Act, 18 U.S.C. Section 1385, forbidding the armed forces from engaging in civilian law enforcement. During its first 100 years, the law remained intact, reflecting what Chief Justice Warren Burger referred to as "a traditional and strong resistance of Americans to any military intrusion into civilian affairs." Laird v. Tatum, 408 U.S. 1,14 (1972). In 1981, Congress passed amendments to the Posse Comitatus Act, allowing the military to provide law enforcement with intelligence information, lend military equipment to law enforcement authorities and train, and provide technical assistance for, civilian drug enforcement. 10 U.S.C. Sections 371 et seq. Several years later, Congress continued this trend by passing the Defense Drug Interdiction Assistance Act of 1986, which authorized even greater use of military resources. Public Law No. 99-570, Section 3052. These developments have led to the increasing militarization of drug enforcement, to the detriment of fundamental civil liberties. While most of the military's effort is directed at defending the nation's coasts and borders against drug smuggling, the National Guard and the Army have participated in domestic drug enforcement as well. According to the Department of Defense, the National Guard conducted a total of 5,815 domestic marijuana eradication missions in all 54 states and territories in 1991. ("Annual Report to the President and the Congress, Part III, Defense Components, Counterdrug Program," February 1992). The experience of residents of Humboldt County, California during the summer of 1990 demonstrates the inherent dangers of using the military for domestic law enforcement. For two weeks in August of that year, a contingent of 200 active-duty military troops participated in a marijuana eradication campaign called Operation Green Sweep. During that time, the military conducted relentless helicopter surveillance over residents' homes and fields, set up military roadblocks, conducted unwarranted interrogations and detentions and frightened law-abiding people -- including children -- with displays of excessive force and weaponry. See Complaint for Injunctive Relief and Damages, Drug Policy Foundation v. Bennett, No. C-90-2278 (D.C.N.CA. filed Aug. 9, 1990). Whereas civilian law enforcement agents are trained to abide by limits placed upon them by the Constitution and the Bill of Rights, the military is trained to wage war. One has only to look at the histories of those countries around the world where the military has played a major role in domestic law enforcement to see the extent to which basic civil liberties are imperiled by such an arrangement. RECOMMENDED ACTIONS 1) Urge repeal of the 1981 amendments to the Posse Comitatus Act and the Defense Drug Interdiction Assistance Act. 2) Restore the clear separation between military and civilian law enforcement. -------------------------------------------------- Drug Policy > POST-CONVICTION SANCTIONS ISSUE The imposition of "civil" fines, and the suspension of certain federal benefits for persons convicted of relatively minor drug offenses violates due process. BACKGROUND On November 18, 1988, at a time when the country was in the grip of an unprecedented drug scare, Congress enacted the Anti-Drug Abuse Act of 1988. The Act imposes, inter alia, post-conviction sanctions on minor drug offenders over and above the criminal penalties authorized by law. Indeed, as with many laws enacted during the war on drugs, the Act singles out drug offenders, many of them drug addicts, for special retribution. The provision entitled "Denial of Federal Benefits to Drug Traffickers and Possessers," 21 U.S.C. Section 862, allows judges, after passing sentence on an offender convicted of drug distribution or possession in either state or federal court, to mete out an additional penalty: the suspension of eligibility for federal benefits. While the law exempts veteran's benefits and needs-based benefits, such as welfare, disability, public housing and Social Security, it covers a wide range of federal benefit programs. Benefits that are subject to suspension include: federally insured student loans; education grants issued by the Department of Education; loans and grants issued by the Small Business Administration; federally insured mortgages, and grants made by the National Endowments for the Arts and the Humanities. The other provision, "Civil Penalty for Possession of Small Amounts of Certain Controlled Substances," 21 U.S.C. Section 844a(a)-(g), establishes a system of civil fines of up to $10,000, imposed administratively under the authority of the attorney general. This law explicitly targets non-violent drug users convicted of possession of such small amounts of a controlled substance that the drugs are presumptively for personal use only. The individual offender must request an administrative hearing if he or she wants to challenge the imposition of the fine. The penalty under federal criminal law for a first offense of simple possession of a controlled substance is substantial: one year in prison and a minimum $1,000 fine, see 21 U.S.C. Section 844(a). A hefty civil fine plus the loss of federal benefits amounts to overkill. While couched in "civil" terms, these measures are an end run around the procedural rights to which criminal defendants are entitled under the Constitution. They subject relatively minor drug offenders to post-conviction sanctions not suffered by rapists and murderers. And they fuel the vicious cycle of economic hardship, limited opportunity and alienation that cause some people to turn to drugs in the first place. RECOMMENDED ACTION Support the repeal of 21 U.S.C. Sections 844a and 862 of the Anti-Drug Abuse Act of 1988. -------------------------------------------------- Drug Policy > CIVIL FORFEITURE ISSUE The increasing use of civil forfeiture in the war on drugs endangers our constitutional rights to be free from unwarranted and disproportionate punishment. The fact that law enforcement agencies can keep the assets and property they seize encourages official abuse and corruption. BACKGROUND Although civil forfeiture has existed throughout this country's history, it became increasingly popular with prosecutors after 1984, when Congress passed a law authorizing federal officials to seize any property used in any manner to facilitate the drug trade, or that was purchased with drug money. See 21 U.S.C. Section 881 (1984). Since that time, civil forfeiture has been used to seize all manner of personal and real property, from family homes to lawn equipment. See 21 U.S.C. Section 881(a). Civil forfeiture operates on the legal fiction that property can be guilty of wrongdoing. Absent a statutory exception, even the innocence or acquittal of the property owner is no bar to confiscation of the offending property. Criminal forfeiture, on the other hand, is only possible upon the conviction of the property owner. See 18 U.S.C. Section 853. Civil forfeiture has become a nightmare for thousands of ordinary people who have minor brushes with the law, or who are completely innocent of wrongdoing. The ease with which law enforcement authorities are able to secure forfeitures, and the zeal with which they pursue them, endangers our constitutional right to be free from unwarranted or disproportionate criminal punishment. Civil forfeiture has been especially attractive to law enforcement agencies because very little in the way of proof or connection to actual wrongdoing is required for success. At present, authorities must simply satisfy a requirement of probable cause that the property was used in an illicit activity, or was purchased with funds from illicit activity, in order to seize it. See 21 U.S.C. Section 881(b). No criminal arrest or conviction is necessary to subject property to forfeiture. Indeed, the government never has to prove that any crime was actually committed. See United States v. Property Identified as 3120 Banneker Drive, 691 F. Supp. 497 (D.D.C. 1988). Once property has been seized, there is a rebuttable presumption in favor of the seizing agency. An owner can only overcome this presumption by proving that s/he had no knowledge of the illicit activity and/or did not consent to that activity. This burden of proof is often impossible to satisfy. Because civil forfeiture requires such a low level of proof, it is frequently used by authorities to penalize people where the state cannot sustain a criminal conviction. Often, the amounts of the forfeitures far exceed the criminal fines that would be assessed if a criminal proceeding were initiated. And while civil forfeiture is sustained as constitutional because it is characterized as civil rather than criminal, its effects are clearly penal -- but without the safeguards governing criminal trials. Civil forfeiture stands outside the doctrines of due process and criminal procedure. It is an arcane legal doctrine that exists merely on the strength of its historic pedigree and its fiscal advantage to law enforcement agencies. The loss of one's car or family home for possession of microscopic quantities of drugs is disproportionate to the crime alleged. And even if we the people believe that such punishments are warranted for crimes of such little magnitude, the accused should still have the right to a presumption of innocence. RECOMMENDED ACTIONS 1) Support the reform of civil forfeiture law and practice to require: a) that the property subject to forfeiture be substantially connected to the illicit conduct, and that the connection be proven by clear and convincing evidence; b) proportionality between the value of property seized and the culpability of the actor; c) a lengthening of the deadline for filing challenges to a forfeiture, and d) the right to a jury trial. 2) Support HR 2774, introduced by Rep. John Conyers (D-MI), which seeks to minimize the mismanagement of confiscated property by the Department of Justice by channeling 50 percent of the seized funds to treatment, prevention and community-based crime prevention programs. -------------------------------------------------- Drug Policy > MEDICAL MARIJUANA ISSUE Marijuana is known to be an effective therapeutic agent for the treatment of various medical conditions; yet physicians are currently not permitted to prescribe the drug. This forces people with certain medical conditions to obtain marijuana illegally and face the possibility of arrest, prosecution and imprisonment. BACKGROUND The Drug Enforcement Administration (DEA) has refused to reschedule cannabis, under the U.S. Controlled Substances Act, from Schedule I (high abuse potential; no currently accepted medical use) to Schedule II (prescriptions allowed), in spite of clear evidence that marijuana has accepted medical uses and can be used safely under medical supervision. That was the finding of Honorable Francis L. Young, Chief Administrative Law Judge of the DEA. In September 1988, Judge Young ruled that: "The evidence in the record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefit of this substance in light of the evidence in this record." In the Matter of the Marijuana Rescheduling Petition, Docket # 86-22, U.S. Department of Justice, Drug Enforcement Administration, Sept. 6, 1988. On December 29, 1989, John Lawn, the Administrator of the DEA, refused to adopt the recommendations of his chief administrative law judge and announced that cannabis would remain a Schedule I drug. 54 Fed. Reg. 53,767. The case is still in litigation. The DEA's refusal to reclassify marijuana flies in the face of both the actual experience of desperately ill patients, and prevailing medical opinion. A recent survey of 1,000 cancer specialists found that 44 percent had recommended the illegal use of marijuana to control the vomiting associated with chemotherapy. Forty-eight percent of the doctors said they would prescribe marijuana in smokable form to some of their patients if it were legal. Annals of Internal Medicine, (May 1991). RECOMMENDED ACTIONS 1) Direct the DEA to implement the recommendation of the Chief Administrative Law Judge of the Drug Enforcement Administration: Reclassify marijuana from Schedule I to Schedule II of the Controlled Substances Act. 2) Direct the Food and Drug Administration to issue a rule making marijuana available by prescription. 3) Support research on the potential medicinal uses of marijuana. See also: ACCESS TO JUSTICE: Indigent Defense CRIME AND CRIMINAL JUSTICE: Imprisonment as Crime Control Mechanism CRIME AND CRIMINAL JUSTICE: Exclusionary Rule CRIME AND CRIMINAL JUSTICE: Mandatory Minimum Sentencing CRIME AND CRIMINAL JUSTICE: Preventive Detention CRIME AND CRIMINAL JUSTICE: Capital Punishment CRIME AND CRIMINAL JUSTICE: Police Abuse INFORMATION PRIVACY: Criminal History Records PRISONERS' RIGHTS: Medical Care WORKERS' RIGHTS: Drug Testing -------------------------------------------------- AIDS INTRODUCTION Few issues offer President-elect Clinton a better opportunity to reverse the policies of the Reagan/Bush era than HIV disease, the final stage of which is AIDS. The 12 years of Reagan/Bush have been -- indeed, some would say, have caused -- the 12 years of the AIDS epidemic in this country. Many attribute those administrations' lack of commitment in the face of a national health emergency to prejudice against the groups hardest hit by the epidemic: men who have sex with men, and intravenous drug users, many of whom are poor people from racial minority groups. The primary goal of the Clinton Administration should be to confront HIV disease as a public health crisis, not a moral issue. The federal government must guarantee that its policies, generally -- and funding decisions, especially -- are not clouded by discriminatory attitudes towards the groups affected. In the short term, the Clinton Administration can quickly dismantle many of the programs developed in the past 12 years for political reasons that have no public health rationale. These include, for example, removing HIV disease from the list of conditions barring entry into the United States, and ending the mandatory HIV-testing programs now administered by various federal agencies. In general, the Adminstration should carefully review and finally begin to implement the recommendations of the National Commission on AIDS and other public health authorities. The time for further study of the HIV epidemic is over. The opportunity to pursue sound public health policy is at hand and it must be seized. Attention: The Centers for Disease Control Department of Defense Department of Health and Human Services Department of State Immigration and Naturalization Service The National Commission on AIDS -------------------------------------------------- AIDS > CENTERS FOR DISEASE CONTROL AIDS PREVENTION PROGRAMS ISSUE The Centers for Disease Control (CDC) have long placed restrictions on the use of federal funds provided to states, municipalities and community-based organizations for AIDS prevention work. These restrictions have hampered AIDS prevention efforts and wasted scarce federal funds that should have been devoted to real education. BACKGROUND Since HIV is a disease that is sexually transmissible, discussion of it may provoke controversy and even be offensive to some. Treatment and prevention require full and frank discussion of high risk behavior that can lead to infection. Nevertheless, the CDC, which distributes federal funds for AIDS prevention work, has imposed morality-based content prohibitions and required that grantees set up a special "program review panel" to screen every piece of educational material slated for production with CDC funds. From 1986 until a federal court ruled such a standard unconstitutional, the CDC's grant restrictions required that no materials be funded if "offensive" to a majority of those outside the audience targeted for the material. See 51 Fed. Reg. 3431 (Jan. 27, 1986); 57 Fed. Reg. 10794 (Mar. 30, 1992). This imprecise standard led to the creation of bland materials that did not effectively educate those at greatest risk. In May 1992, a federal judge in New York ruled that the CDC's grant restrictions both exceeded the agency's authority and were unconstitutionally vague. Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D. N.Y. 1992). The government did not appeal that decision but, instead, adopted "interim" restrictions that maintain the program review panels and ask them to enforce an "obscenity" standard. "Requirements for Content of AIDS-Related Written Materials, Pictorials, Audiovisuals, Questionnaires, Survey Instruments, and Educational Sessions in Centers for Disease Control Assistance Programs," 57 Fed. Reg. 26742 (June 15, 1992)(interim revisions). The obscenity standard is as unconstitutionally vague and unenforceable as the restrictions that the court struck down. The House Committee on Government Operations recently concluded that: "[I]n the issuance of the new obscenity standard and the other new content restrictions, and in the continued requirement of program review panels, CDC has once again stymied the war on AIDS, defying logic, reason and science. The committee believes that if the goal of AIDS education is to modify behavior, the content of materials developed must treat the behaviors in question as clearly and directly as possible, in language and graphics that will be understood by the persons to whom they are addressed." House Committee on Government Operations, The Politics of AIDS Prevention: Science Takes a Time Out, H.R. Rep. No. 1047, 102d Cong., 2d sess. 20 (Oct. 8, 1992). Removing the politically based restrictions on CDC funding for AIDS education, and freeing up local AIDS educators, must be priorities. In addition to its grant restrictions, the CDC has failed to perform its own educational functions wisely. According to the House Committee report cited above, CDC decided to withhold an updated Surgeon General's Report on AIDS until after the 1992 election. It has also refused to mention or show condoms in its AIDS prevention advertisements. This sort of censorship impedes the education of Americans about how they must change their behaviors to lessen the risk of contracting AIDS. RECOMMENDED ACTIONS 1) Direct the Secretary of Health and Human Services to order the CDC to rescind the "Requirements for Content of AIDS-Related Written Materials, Pictorials, Audiovisuals, Questionnaires, Survey Instruments, and Educational Sessions in Centers for Disease Control Assistance Programs," and eliminate the requirement of program review panels. 2) Provide leadership in the nation's AIDS prevention effort and direct the development of a massive, well-funded public health campaign to raise public awareness about practices that help stop the spread of HIV disease. -------------------------------------------------- AIDS > MANDATORY FEDERAL HIV TESTING ISSUE The government has excluded, restricted or expelled people who test positive for HIV in at least four settings over which it exercises complete control: the military, the Foreign Service, the Job Corps and immigration. This policy is discriminatory and does not serve public health. BACKGROUND Public health experts oppose mandatory testing for HIV infection and AIDS. Nevertheless, the federal government mandates HIV testing in a number of important areas. The military tests all volunteers and recruits and rejects all HIV-infected individuals, regardless of their current health or competence to serve. Department of Defense Directive 1332.18. The military also tests all of its current employees, including civilian personnel. While the military does not automatically discharge HIV-infected individuals, it does restrict their assignment opportunities. Moreover, despite Department of Defense regulations forbidding discriminatory treatment, 32 C.F.R. Sections 58 et seq., military personnel found to be HIV-infected have been placed in segregated barracks and reassigned to demeaning menial labor. Legal challenges to these policies have been ineffective. See, e.g., Plowman v. Dept. of the Army, 698 F.Supp. 627 (E.D. Va. 1988); Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990), cert. denied, 903 F.2d 1455 (1991). Like the military, the Job Corps tests all entrants and those found to be HIV-infected are subjected to demeaning and invasive interviews. Only those individuals whose conduct meets an unspecified standard are admitted, subject to further tests at any time. See Job Corps Bulletin 86-58 (Dec. 19, 1986); Job Corps Bulletin 89-03 (July 24, 1989). The State Department bars all current Foreign Service officers who test positive for HIV from posting overseas. Candidates for the Foreign Service and the Peace Corps who test positive for HIV are rejected outright. See U.S. Department of State, Department Notice: AIDS Testing (Nov. 22, 1986); U.S. Peace Corps, Medical Information for Applicants (Nov. 1, 1990). These policies were unsuccessfully challenged by the Foreign Service officers' union in Local 1812, American Fed'n of Gov't Employees v. Dept. of State, 662 F. Supp. 50 (D.D.C. 1987). Finally, the Immigration and Naturalization Service denies admission to the United States to all prospective immigrants who test positive for HIV, regardless of their current health or insurance status. Prospective tourists who are HIV-infected must apply for a waiver in order to enter the country; tourists who fail to do so have been threatened with imprisonment and expulsion. See 8 C.F.R. Section 245a.3; 42 C.F.R. Sections 34.2 et seq. Mandatory testing runs counter to current epidemiological thinking about HIV and AIDS, and it has encountered widespread criticism from public health officials, both inside and outside the federal government. Public health experts believe that mandatory testing, far from identifying individuals with HIV, tends to drive the disease underground, particularly when individuals perceive that those with HIV are subject to segregation and discrimination. Public health officials nationwide have long advocated a program of education and free, anonymous testing as the best strategy for combatting the AIDS crisis. Individuals who test positive for HIV usually do not develop symptoms that would hamper job performance for years following infection. A total ban on HIV-infected personnel, as in the Peace Corps, foreign service positions and military recruiting, is too broad and excludes large numbers of individuals who are competent in every way to carry out their duties. HIV-infected individuals, like all persons with disabilities, deserve an individualized assessment of their ability to perform. RECOMMENDED ACTIONS 1) By Executive Order, prohibit mandatory HIV testing by the military, Foreign Service, Peace Corps and Job Corps, or for admission to the United States, and require that these services develop plans for the integration of individuals with HIV, or other disabilities, into their areas. 2) Instruct all federal agencies that their employment practices must be consistent with principles of disability law (no discrimination absent a significant risk of infection, individualized assessment of an applicant's capabilities and reasonable accommodation of the needs of the disabled). -------------------------------------------------- AIDS > HIV-INFECTED HEALTH CARE WORKERS ISSUE A highly publicized announcement by the Centers for Disease Control, that a Florida dentist was believed to have infected a patient with HIV through routine dental work, caused public hysteria and led to the CDC's adoption of flawed guidelines that discriminate against HIV-positive health care workers. BACKGROUND In July 1991, the Centers for Disease Control issued guidelines for the control of bloodborne pathogens in the health care setting. CDC, Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis-B Virus to Patients During Exposure-Prone Invasive Procedures, 40 Morbidity & Mortality Weekly Rep. RR-8 (July 12, 1991). The CDC guidelines reject mandatory testing for all health care workers in favor of voluntary testing, and also state that health care workers who do not perform "exposure-prone" invasive procedures should not be restricted in their practices. However, the CDC guidelines suggest that health care workers who perform "exposure-prone invasive procedures" halt their practice unless they have consulted with an "expert review panel" and informed their patients of their condition. In a July 1992 letter, the CDC added a requirement that "expert review panels" evaluating HIV- and Hepatitis-B virus-infected workers conduct an "individualized assessment," focusing not only on the procedures used, but the worker's technique and skill level. Congress enacted an amendment to the Department of Health and Human Service's 1992 appropriations bill requiring each state to develop guidelines "equivalent" to the CDC guidelines or risk losing their federal funding. The CDC's recommendations raise serious civil liberties questions. Federal laws that protect people with disabilities from discrimination prohibit exclusion from employment absent a significant risk of infection. See EEOC regulations to the Americans with Disabilities Act, 56 Fed. Reg. 35,745 (1991). Here, the risk appears to be miniscule. The CDC proposal also violates the principle that risk must be measured objectively. An objective approach would require placing the risk of HIV transmission in context and perspective by comparing it with other comparable risks -- an approach not undertaken by the CDC. Finally, the law requires that safety-driven policies may not be applied in a selective and discriminatory manner. A risk related to one kind of disability may not be singled out for elimination if other comparable risks are completely ignored. The CDC's regulations are an overreaction to what appears to be a unique case of doctor-to-patient transmission. Few data have been offered by the CDC to support the restrictions. Rather, this is an example of public-health policymaking driven by public emotion rather than by science. Furthermore, the CDC's restrictions lead to a host of national sacrifices that are not justified by the virtually nonexistent risk involved. These include the loss of qualified health care professionals, the loss of the social resources invested in their training and the likelihood of an increasing reluctance by noninfected health care workers to treat HIV patients for fear of HIV infection and loss of livelihood. Finally, the CDC has failed to clearly set forth a list of specific invasive procedures that should be considered "exposure-prone." Public health groups that have examined the issue have been unwilling to develop such a list because of insufficient data establishing a real risk of exposure during invasive procedures. RECOMMENDED ACTION Direct the Centers for Disease Control to develop new guidelines on the transmission of bloodborne pathogens in the health care setting -- guidelines that focus specifically on infection control procedures and not on the serostatus of providers or on some vague notion of what procedures are "exposure prone." The goal of regulatory action in this area should be to police compliance with infection control procedures, not to ferret out all HIV- or HBV-infected individuals. See also: CIVIL RIGHTS ENFORCEMENT: Health Care CIVIL RIGHTS ENFORCEMENT: Americans With Disabilities Act DRUG POLICY: The War on Drugs DRUG POLICY: Medical Marijuana FREE SPEECH: Extending the Gag Rule GAY RIGHTS: Discrimination IMMIGRANTS' RIGHTS: HIV Exclusions IMMIGRANTS' RIGHTS: Haitian Refugees INFORMATION PRIVACY: Medical and Insurance Records PRISONERS' RIGHTS: Medical Care -------------------------------------------------- INFORMATION PRIVACY INTRODUCTION People care deeply about their privacy and their ability to control personal information. Crucial to one's sense of self and autonomy is the right to maintain some decisionmaking power over what information to divulge, to whom and for what purpose. For this reason, the demand for federal legislation to protect sensitive personal information is increasing nationwide. The need for such legislation has become more and more critical as new forms of information technology have made peoples' privacy more vulnerable. The new technologies have fostered not only more intrusive data collection, but also growing demands for personal information that can be stored, exchanged and manipulated with split-second speed. At the same time, however, new technologies can also be used to protect privacy by enhancing security in electronic information systems. In the past 20 years, Congress has made progress in regulating government and private use of personal information by enacting federal information privacy legislation. Most of the existing laws incorporate the central Fair Information Practice principle articulated in a 1973 government report, Records, Computers and the Rights of Citizens, which states that "information collected for one purpose may not be used for a different purpose without the individual's consent." The Clinton Administration must continue to develop and implement policies that recognize and respect the right of information privacy. Attention: Federal Bureau of Investigation Federal Trade Commission National Academy of Science -------------------------------------------------- Information Privacy > CREDIT REPORTING ISSUE Existing laws do not adequately regulate, and impose limits on, the credit reporting industry. As a result, individuals have no control over the collection, storing and sharing of highly personal information. BACKGROUND In 1970, Congress passed the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section 1681 to regulate the credit reporting industry. However, inherent weaknesses in the law, coupled with an expansion in industry practices, have resulted in a loss of consumer control over detailed, sensitive information. Most people are not even aware of how the credit reporting industry operates, what information is collected, how it is used and to whom it is available. Yet increasingly, information from credit reports is used to make decisions that affect critical areas of peoples' lives, such as employment, insurance, credit and housing. The credit reporting industry, as it services the burgeoning demand for personal information, is operating without comprehensive, strong government regulation or oversight. * Under the current FCRA, it is extremely difficult for people to get a copy of their credit report unless they have already been denied credit. * The law fails to provide a workable mechanism for people to correct and update information in their reports, 30 to 40 percent of which is inaccurate, outdated or incomplete. * The industry regularly sells personal information without an individual's knowledge or consent, and the law's remedies and enforcement provisions are weak and ineffective. New legislation is needed to strengthen protections in the credit reporting area. Although bills were proposed during the 101st and 102nd Congress, they did not find their way into law. (Fair Credit Reporting Act of 1970: Hearings before the Subcomm. on Consumer and Regulatory Affairs of the Senate Comm. on Banking, Housing and Urban Affairs, 102d Cong., 1st sess. at 312 (Comm. Print 1991); Fair Credit Reporting Act of 1970: Hearings on H.R. 4213, H.R. 4122 and H.R. 3740 before the Subcomm. on Consumer Affairs and Coinage of the House Comm. on Banking, Finance and Urban Affairs, 101st Cong., 2d sess. at 25 (Comm. Print 1990); Fair Credit Reporting Act of 1970: Hearings before the Subcomm. on Consumer Affairs and Coinage of the House Comm. on Banking, Finance and Urban Affairs, 101st Cong., 1st sess. at #83 (Comm. Print 1989). RECOMMENDED ACTION Support legislation to strengthen and update the Fair Credit Reporting Act. The Act must: a. give people the right to a free copy of their credit report upon request; b. require stringent procedures for accuracy of information collected and disclosed by credit reporting companies; c. impose an obligation on credit grantors to report accurate information; d. require credit reporting companies to provide notice and get individual consent prior to disclosing information from their files, and e. broaden the oversight and enforcement authority of the Federal Trade Commission. -------------------------------------------------- Information Privacy > MEDICAL AND INSURANCE RECORDS ISSUE Current federal law does not protect the confidentiality of personal medical and insurance records. BACKGROUND The absence of legislation designed to protect individual medical and insurance records is the most glaring gap in federal privacy law. A person's medical record contains a tremendous amount of detailed, sensitive information, all of which may be maintained by both the medical care provider and the insurer. With the recent efforts to computerize and link health care services, there is a staggering potential for privacy intrusions and confidentiality breaches through unauthorized access to, and disclosure of, personal records. Clearly, legislation is needed that creates a statutory right to privacy in medical and insurance records, so that people can have greater control over the collection, use and disclosure of personal information. Both the National Academy of Science's Institute of Medicine and the Congressional Office of Technology Assessment are in the process of examining the privacy, confidentiality and security threats posed by the creation of health data networks. RECOMMENDED ACTION Support legislation that creates statutory privacy protections for medical and insurance records and other personally identifiable health records. Such legislation should: a. create an individual right of access to personal information; b. impose limits on the collection and disclosure of personal health records by others; c. require the implementation of security measures for computerized health networks, and d. establish sanctions for violations of the law. -------------------------------------------------- Information Privacy > CRIMINAL HISTORY RECORDS ISSUE The Federal Bureau of Investigation's recent decision to release old arrest records to non-law enforcement requesters, such as employers and licensing boards, is both an invasion of privacy and discriminatory. BACKGROUND On September 6, 1990, the FBI eliminated the "one-year rule," a regulation that prohibited the Bureau from releasing to non-law enforcement requesters (employers, licensing boards) arrest records that were over one-year-old, and that lacked dispositions. 28 C.F.R. Section 20.33(a)(3). The FBI's recent decision to disseminate "naked" arrest records is a drastic step in the wrong direction, at a time when the Bureau and state criminal history record repositories are focusing on improving the quality of information in their systems. The decision is a mistake for these reasons: First, the release of arrest records without dispositions for employment and licensing purposes will result in discrimination against minorities. Racial minorities are arrested four times more frequently than non-minorities, and half of those arrests do not result in conviction. Second, many employers will treat an applicant's arrest record as proof that the applicant committed a crime. Given the high probability that most employers will not distinguish between an arrest and a conviction, the release of a naked arrest record violates the principle that one is innocent until proven guilty. Arrest records have no place in the non-law enforcement community and should be irrelevant in determining employment and licensing. Third, the poor data quality of criminal history records is well-documented. Nearly half of the arrest records held by the FBI lack dispositions. The "One-Year Rule," Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th Cong., 2d sess. at 44 (Comm. Print 1987). The FBI's decision to release incomplete records removes any incentive for the Bureau to improve data quality by requiring the states to submit dispositions. Rather, the release of arrest records unfairly places on individuals the burden of tracking down dispositions in local courthouses and overcoming the stigma associated with having an arrest record -- and in most instances, people are unaware that the FBI's records may be incomplete. It is far easier and more just for the FBI to perform the task of completing information about disposition prior to dissemination of records. RECOMMENDED ACTIONS 1) By Executive Order, restrict the FBI from disseminating arrest records without dispositions to the non-law enforcement community. 2) Direct the FBI to establish a mandatory system of disposition reporting by state and local criminal justice agencies. -------------------------------------------------- Information Privacy > TELEPHONE TECHNOLOGY ISSUE New telephone technology, including cordless telephones and caller identification services, substantially implicate privacy rights. BACKGROUND The use of cordless telephones is increasingly prevalent in the United States. Projections are that 60 percent of American households will have them by the end of the decade. Most people expect that their conversations on cordless telephones are protected from interception. But in 1986, when Congress passed the Electronic Communications Privacy Act (ECPA) (updating the 1968 wiretap law to protect new forms of telecommunications), cordless telephones were explicitly exempted. This was because at that time the technology operated on a low, radio-based frequency that was so easy to intercept that a prohibition against interception would have been difficult to enforce. Today, however, new technological developments have made cordless telephone communications more secure. The Senate Privacy and Technology Task Force has, therefore, proposed amending ECPA to include protection for cordless phone communications. See Leahy, Final Report of Privacy and Technology Task Force at 8 (May 28, 1991). Another form of telephone technology that poses a threat to civil liberties is Caller Identification, a device that automatically reveals, on the receiving end of a telephone, the number from which a person is calling. If offered unrestricted, Caller ID may be illegal under ECPA. ECPA provides that "no person may install or use a pen register or trap and trace device" without first obtaining a court order. 18 U.S.C. Section 3121. The law defines a trap and trace device as one that "captures the originating electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." 18 U.S.C. Section 3127(4). There is general agreement that Caller ID is a trap and trace device. Indeed, legislation is apparently needed to make Caller ID legal under the current law. Legislation is needed not only to legalize Caller ID, but to regulate it so that individuals are able to block the display of their number on the receiving end. Without a blocking mechanism, people will no longer be able to decide when and to whom to give their telephone numbers, even when they are calling commercial entities or government agencies. Blocking would insure the fairest balance between the competing privacy interests of both parties to a telephone call. Model legislation requiring telephone companies to offer blocking wherever Caller ID is available is widely supported by a range of industries, trade associations, law enforcement officials, domestic violence coalitions and consumer and civil liberties organizations. RECOMMENDED ACTIONS 1) Support amendment of the Electronic Communications Privacy Act of 1986 to prohibit the intentional interception of communications carried on cordless telephones. 2) Support legislation to require that, wherever Caller ID technology is offered, people have the ability to block the display of their numbers on the receiving end. -------------------------------------------------- Information Privacy > PRIVACY ACT OF 1974 ISSUE The Privacy Act of 1974 imposes limits on the government's collection and use of personal information and gives individuals certain rights to control, access and correct personal information held by the government. However, weaknesses and gaps in the law undermine its effectiveness. BACKGROUND Congress passed the Privacy Act of 1974, 5 U.S.C. Section 552(a), in the wake of Watergate to create a right of privacy where personal information collected and maintained by federal agencies is concerned. With certain exceptions, the Act was intended to prohibit government agencies from taking information that was collected for one purpose and disclosing it for a different purpose without the individual's consent. Under the Act, citizens have a right of access to their records and the opportunity to amend their records if they are not accurate, timely or complete. The Act also limits the use of the Social Security Number for identification purposes, but Congress has overridden this limitation in numerous laws. Individuals may sue for injunctive relief only in very limited cases, and damages are only available if one can prove that harm occurred as a result of willful or intentional violation of the law. Despite Congressional good intentions, the Act in practice has fallen far short of its original goals. Its potential impact has been watered down, due in part to flaws in the Act itself, administrative interpretation and lack of enforcement. The basic principles of the Act have failed to limit significantly the government's inter-agency use of personal information. RECOMMENDED ACTION Support legislation to amend the Privacy Act of 1974 that: a. tightens the Act's disclosure standards; b. includes a prohibition on the creation of a national identification card, and c. strengthens the Act's civil and criminal penalties provisions, which need to be increased and broadened. See also: AIDS: Mandatory Federal HIV Testing GAY RIGHTS: Security Clearances NATIONAL SECURITY: Freedom of Information Act NATIONAL SECURITY: Security Clearances NATIONAL SECURITY: Government Surveillance WORKERS' RIGHTS: Electronic Surveillance -------------------------------------------------- REPRODUCTIVE FREEDOM INTRODUCTION The right of reproductive choice is a fundamental civil liberty. A woman's decision whether to bear a child affects her health and her body and shapes the course of her life. Every subsequent decision of consequence that she makes will depend in some way on whether she continues or ends a pregnancy. Her loss of control over this decision threatens not only her plans for her life, but her hopes of achieving full and equal citizenship in American society. The overarching goal of a renewed national commitment to reproductive freedom must be to guarantee all women the right to decide, without interference from the government, when and whether to have children. Efforts to achieve this goal must focus especially on poor women and young women -- those who are most hurt by the unrelenting attacks on reproductive rights over the past two decades. Women who rely on publicly funded programs or public facilities for their health care must have the same choices regarding pregnancy as more affluent women. Teenagers, most of whom voluntarily turn to their parents when faced with an unwanted pregnancy, must not be forced by law to confront their parents unwillingly or to go to court as a precondition to getting an abortion. The federal government must also lift the information black-outs and biases that now encumber federally financed sex education and family planning programs, and must fully fund such programs to help stem the epidemics of unintended pregnancy and sexually transmitted disease in this country. Scientific research into new and promising contraceptives, abortifacients and other reproductive health technologies must no longer be held hostage to an anti-choice political agenda. Swift government action is necessary to undo the harms wrought by prior administrations; sustained, affirmative government action is necessary to enable women to make and implement informed decisions about reproduction, uncoerced by the government and reliant on their own consciences. Attention: Agency for International Development Department of Health and Human Services Food and Drug Administration National Institute of Child Health and Human Development National Institutes of Health -------------------------------------------------- Reproductive Freedom > PUBLIC FUNDING OF ABORTION SERVICES ISSUE Since taking office, the Reagan and Bush Administrations have mercilessly combed through federal programs to find and eliminate all public funding for abortion. Their actions have left the most vulnerable of American women unable to gain access to basic reproductive health care. BACKGROUND The exclusion of abortion services from the Medicaid program (which serves approximately 22 million women) was accomplished in 1976 by the Hyde Amendment. In Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court upheld this discriminatory funding of services related to childbirth but not those related to abortion. Through executive action and amendments to various federal appropriations bills, funding of abortion has effectively been cut off for several other groups -- that is, an additional 22 million women who depend on federal programs for their medical care. Because Medicaid-funded abortions accounted for approximately 33 percent of all abortions prior to 1976, cutting off this funding source was a high priority for the right-to-life movement. With the passage of the Hyde Amendment, the indigent are ineligible for federal money except when the abortion is necessary to save the life of the pregnant woman. Native Americans are similarly restricted because of constraints on Indian Health Services facilities (codified at 25 U.S.C 1676; 42 CFR Chapter 1 Section 36.51-57), which are prohibited from performing abortions except in cases of life-endangerment, even if the procedure is paid for by private money. These federally-funded facilities provide health care to nearly 100,000 Native Americans living on or near reservations. Because of the disproportionately high rate of poverty among this population, as well as the remote location of many reservations, it is unlikely that Native American women seeking abortions have any realistic alternative to Indian Health Services. Peace Corps volunteers and women in federal prisons are also unable to obtain federally-funded abortion services except, in the case of a prison inmate, where her life is in danger or the pregnancy was the result of rape (28 CFR 551; Section 551.23). As for Peace Corps volunteers, there is no exception whatsoever to the funding ban, which is contained in the Peace Corps appropriation legislation, H.R. 5368. Federal employees and their dependents insured by the Federal Employee Health Benefits Program are not covered for abortion except when the pregnancy endangers the life of the woman. Military personnel and their dependents are insured under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). The funding ban for this program is codified at 10 U.S.C. Section 1093. Pursuant to a 1991 regulation, abortions are paid for only when the life of the woman would be endangered if the fetus were carried to term. Even cases where childbirth would result in extreme mental health consequences, e.g., "threatened suicide," are explicitly excluded under the regulation, 32 CFR Chapter 1 Section 199.4 (e) (2). Moreover, pursuant to a "Memorandum for Secretaries of the Military Departments" from William Mayer, M.D., Assistant Secretary of Defense for Health Affairs, dated June 21, 1988, military hospitals are prohibited from performing even privately-financed abortions, further impeding access to abortion services for women in or associated with the military. This prohibition, of course, may be lifted by the new President without Congressional action. Finally, through amendments to its annual appropriation from Congress, the District of Columbia has been prohibited from spending its own tax dollars to finance abortions for indigent women. (H.R. 6056, signed October 5, 1992 as P.L. 102-382, is the latest of these bills.) RECOMMENDED ACTIONS 1) Support the Reproductive Health Equity Act (RHEA), which would eliminate all of the inequities outlined above. RHEA provides that federally-funded care, assistance or benefits for services related to abortion shall be provided in the same manner as other pregnancy-related health care services. 2) Alternatively, press for the restoration of full federal funding for abortion by clearly stating that the President will sign only appropriations bills that contain no funding bans. Each of the funding bans that has been attached to appropriations bills -- for military personnel and their dependents, District of Columbia residents, federal prisoners, federal employees, Medicaid recipients and Peace Corp volunteers -- may be reversed simply by deleting the restrictive language from the next fiscal year's appropriations legislation. (While the Indian Health Service ban is codified in permanent law, it is cross-referenced to the Medicaid appropriation and, therefore, will automatically be rescinded when the Medicaid funding ban is removed. The funding ban for military personnel, however, must be reversed by an affirmative act of Congress.) -------------------------------------------------- Reproductive Freedom > FREEDOM OF CHOICE ACT ISSUE Nearly 20 years after the Supreme Court held that women have a right to abortion, this basic right has been eroded and chipped away by a series of decisions from the high court. The erosion of the right to privacy has resulted in state laws that will force some women to resort to dangerous, late abortions. BACKGROUND The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973), that the United States Constitution prohibits states from restricting the right of a woman to choose to terminate a pregnancy prior to viability. The Court also held that after viability, a state may not prohibit abortion unless it is necessary to protect the woman's life or health. In recognizing a fundamental right to choose abortion, the Court stated that laws or regulations that interfere with that decision must be justified by a compelling government interest. With Roe as precedent, and applying this strict standard, over a period of almost 20 years the Court proceeded to strike down many (but not all) state restrictions on abortion. Last term, in Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992), the Court abandoned the strict scrutiny test articulated in Roe and adopted a much less rigorous standard. Under this new test, the Court held that the Constitution does not forbid a state to regulate or restrict a woman's right to choose unless the law creates an "undue burden" that presents a "substantial obstacle" to her right to terminate her pregnancy. Thus, the right to choose has been substantially stripped of protection from restrictive governmental regulation. Applying the standard articulated in Casey, the Court upheld several Pennsylvania restrictions, including a mandatory 24-hour waiting period, detailed reporting requirements and the provision of state-mandated anti-choice materials to patients. The Court struck down only the Pennsylvania statute's husband notification requirement, which it found would act as a bar to abortion in some cases. State laws that severely restrict access to abortion, such as those upheld in Casey, will force some women to resort to dangerous, late abortions. These barriers will be particularly difficult to surmount for low-income women, teenagers and women from rural areas. The Freedom of Choice Act codifies Roe v. Wade and forbids states to restrict a woman's right to choose an abortion unless such restriction could survive strict scrutiny. The House Judiciary Committee approved an amended bill, H.R. 25, 102nd Congress, 2nd sess. (1992), on June 30, 1992, while the Senate Labor Committee approved a companion bill on July 1, 1992. (The bill approved by the Senate and House committees fails to protect women from state legislation that requires parental consent or notification for minors' abortions. The Senate bill permits states to cut off public funding of abortion.) Nonetheless, the legislation failed to reach the floor of either house in the 102nd Congress. RECOMMENDED ACTION Support Congressional efforts to pass the Freedom of Choice Act without restrictive amendments. -------------------------------------------------- Reproductive Freedom > INTERNATIONAL REPRODUCTIVE FREEDOM ISSUE The Reagan and Bush Administrations have adopted policies that block organizations from receiving United States family planning money if the agencies provide abortion services or information for overseas programs. These policies have blocked women in developing nations from receiving vital primary and preventive reproductive health care and information. BACKGROUND At an August 1984 United Nations Conference on Population, the Reagan Administration announced a revision in its interpretation of the Foreign Assistance Act, 22 U.S.C. Section 2151b (FAA). Under the Reagan directive, commonly called the "Mexico City Policy," private domestic and foreign family planning organizations providing family planning services in the developing world are ineligible for U.S. family planning funds if they provide abortion services or information, even if such services are funded by other means. (The FAA already contained prohibitions on the use of federal foreign aid funds for the performance of abortion, the promotion of abortions as a family planning method and research on abortion with funds obtained from the United States.) This policy forces private family planning organizations, based in the United States and overseas, to choose between accepting U.S. funds for desperately needed family planning services or obeying the laws and medical ethics of the foreign countries where the services are provided. If these organizations refuse U.S. funds, they cannot maintain their family planning programs. Thus, the rates of unintended pregnancy, abortion and sexually transmitted disease increase in the countries they serve. If these organizations accept U.S. funds, they cannot provide abortion services, counseling, referral or information overseas; thus, their patients are left without the resources they need to make and effectuate informed decisions regarding their health. In addition to the Mexico City Policy, in 1985 the federal government withdrew funding for the United Nations Fund for Population Activities (UNFPA). UNFPA is the largest multi-national organization that provides family planning and population assistance. It provides services in 141 developing countries and, until 1985, the U.S. contributed nearly 30 percent of its budget. As a result of the Mexico City Policy and of the withdrawal of U.S. support for UNFPA, women in developing nations have lost access to vital primary and preventive reproductive health care and information. Congressional efforts to overturn these policies have so far not succeeded. In June 1992, the House approved the fiscal 1993 Foreign Operations appropriation bill, H.R. 5368, 102d Cong., 2nd sess. (1992), that funded $20 million for UNFPA. The Senate version, approved in September 1992, included both the UNFPA funding and repeal of the Mexico City Policy. Neither survived the House-Senate conference. RECOMMENDED ACTIONS 1) Rescind the Mexico City Policy. 2) Direct the Agency for International Development to restore full funding to the United Nations Fund for Population Activities. 3) Urge Congress to include appropriate language in Foreign Operations authorization and appropriations bills to abolish the Mexico City Policy and provide sufficient funds to the UNFPA. -------------------------------------------------- Reproductive Freedom > THE GAG RULE ISSUE As part of its extreme anti-choice policy, the Reagan Administration issued regulations that, in essence, gagged doctors and other staff at clinics that receive Title X funding by forbidding them to discuss abortion with their patients. This rule -- successfully defended by the Bush Administration before the Supreme Court -- violates the First Amendment rights of doctors and other clinic staff, and keeps vital information from women. BACKGROUND Title X of the Public Health Service Act, 42 U.S.C. Sections 300-300a-41, was enacted in 1970. It authorizes project grants to public and private nonprofit organizations that provide family planning services, with priority given to low-income patients. No abortions may be performed with Title X funds. On February 2, 1988, the Department of Health and Human Services (HHS) issued final regulations prohibiting staff in clinic projects funded with Title X money from discussing abortion as an option for a pregnant patient. Title X project staff are also forbidden to refer a woman to an abortion clinic. In May 1991, the Supreme Court upheld the regulations in a 5-4 opinion in Rust v. Sullivan, 111 S.Ct. 1759 (1991). These regulations prevent low-income pregnant women from receiving necessary and complete health care information about all possible medical options available to them. The regulations are inconsistent with Congress' intent that patients served by the program receive non-directive counseling and all information needed to help them make an informed choice between parenting, adoption and abortion. The regulations also mandate viewpoint-based suppression of speech, and conflict with the professional ethics and guidelines of major medical organizations, 21 of which have called for abolition of the gag rule. On November 5, 1991, President Bush issued a memorandum to HHS Secretary Louis Sullivan, ostensibly allowing only physicians to counsel Title X patients about abortions in some limited circumstances, a policy change that was subsequently formalized in a March 20, 1992 memorandum. However, this change has had little practical effect because nurses, social workers and other trained counselors provide most information given to patients, with doctors rarely acting as counselors in Title X clinics. In May 1992, the United States District Court for the District of Columbia, ruling in National Family and Reproductive Health Association v. Sullivan, No. 92-2177, decided May 28, 1992, enjoined the newly-issued policy on physician counseling on the ground that it was promulgated in violation of the Administrative Procedure Act. The United States Court of Appeals for the D.C. Circuit granted a stay of the order pending outcome of the appeal, and HHS began to implement the regulations on October 1, 1992. On November 3, 1992, however, the Court of Appeals affirmed the district court decision and enjoined the physician counseling guideline. (No. 92-5252) The practical effect of that ruling is to forestall implementation of the entire gag-rule regulation until the physician counseling policy is properly promulgated. In the meantime, legislative efforts to overturn the gag rule have thus far been unsuccessful. Reauthorization of the Title X family planning program should be a legislative priority. Title X has been at the core of our national family planning efforts for more than 20 years. It is a critical component of our effort to cope with the current epidemic of adolescent pregnancies and sexually transmitted diseases. Title X programs provide preventive health care to approximately five million low-income women and teenagers in approximately 4,000 free-standing and hospital-based clinics. However, the program has been unauthorized since 1985 and, accordingly, has suffered in the appropriations process. Title X funding (after adjusting for inflation) has actually declined by 58 percent since 1981. RECOMMENDED ACTIONS 1) Abolish the gag rule by directing the Department of Health and Human Services to take the necessary steps to rescind 42 CFR 59.2 -59.10. 2) Support legislation to reauthorize the Title X Family Planning Program and urge rescission of the gag rule as part of that bill. -------------------------------------------------- Reproductive Freedom > RU 486, CONTRACEPTION AND FETAL RESEARCH ISSUE In the past 12 years, the Reagan and Bush Administrations, acceding to pressure from anti-choice zealots, have severely limited access to new and promising drugs and research in the fields related to reproductive health. These actions have fundamentally undermined a woman's right to choose. BACKGROUND Women's reproductive health care is in crisis. High rates of unintended pregnancies, declining contraceptive options, high incidences of breast cancer and high rates of maternal and infant mortality, as well as an epidemic of sexually transmitted diseases, all threaten the health and well-being of American women. One of the most promising new reproductive health drugs, RU 486, when used appropriately, has fewer risks for many women seeking to terminate a pregnancy than does surgical abortion (which itself has fewer risks than carrying a pregnancy to term). RU 486 is also thought to be a promising post-coital contraceptive for treating victims of sexual assault or women who experience contraceptive failure, A. Glasier, et al., "Mifepristone (RU486) Compared With High Dose Estrogen and Progestogen For Emergency Postcoital Contraception," 327 J.A.M.A. 1041 (1992). The drug may also prove to be effective in treating breast cancer, brain tumors, glaucoma and Cushings Syndrome. Klitsch, RU 486: The Science and the Politics, Alan Guttmacher Institute (1989). Unfortunately, RU 486 is not available to most Americans. The Food and Drug Administration has imposed an import alert on the drug, effectively banning it from importation into this country for personal use. Roussel-Uclaf, the manufacturer of RU 486, has not initiated an approval process for the drug because it fears anti-choice boycotts and legal action. Contraceptive research and development has also been stymied in recent years. Although contraceptive failure contributes to 43 percent of all unintended pregnancies in the United States, "Contraceptive Failure Rate Found Higher Than Thought," Washington Post Health Magazine 5 (July 25, 1989), funds available for contraceptive research have been slashed by 50 percent since 1980. National Commission on America Without Roe, "Facing A Future Without Choice" 38 (1992). In this period, only one new contraceptive for women (Norplant) has reached the American market, and no new contraceptives have been developed for men. The ban on federal funding for most fetal tissue research has had deleterious effects on research relating to Alzheimer's disease, Parkinson's disease, diabetes and other serious illnesses. This ban has been in effect since March 1988 despite recommendations to lift it from such groups as the American Medical Association and an advisory panel of the National Institutes of Health. During recent consideration of the reauthorization bill for the National Institutes of Health, an effort was made to lift President Bush's ban on research that uses fetal tissue from sources other than miscarriages or ectopic pregnancies. This measure failed when anti-choice Republicans lobbied heavily against it. RECOMMENDED ACTIONS 1) Lift the FDA import alert on RU 486 and encourage its manufacturer, Roussel-Uclaf, to seek FDA approval for its use as an abortifacient and a contraceptive. 2) Increase federal funding for contraceptive research and for the National Institute of Child Health and Human Development. 3) Support legislation, such as the proposed "Contraceptive and Infertility Research Centers Act," H.R. 1161, 102d Cong., 1st sess. (1991), that would authorize the establishment of university-based research centers. 4) Lift the Bush Administration ban on fetal tissue research and allow funding for research using tissue derived from abortion procedures. See also: CIVIL RIGHTS ENFORCEMENT: Health Care PRISONERS' RIGHTS: Health Care WOMEN'S RIGHTS: Educational Equity WOMEN'S RIGHTS: Health Equity WOMEN'S RIGHTS: Drug Dependent Women -------------------------------------------------- IMMIGRANTS' RIGHTS INTRODUCTION A new outlook on immigrant and refugee matters must be developed by the Clinton Administration -- an outlook that values the integration of newcomers into our society. Above all, the federal government must set a new tone in the nation that fosters recognition of the unique and rich contributions of all immigrants to our national life. At the same time, the government must repudiate efforts to blame non-citizens for our nation's ills, and combat the divisive anti-alien sentiment that is growing in our country. The federal government can and should vigorously enforce existing civil rights laws to secure equal treatment for immigrants. In addition, it must aggressively enforce existing health, safety and labor laws on behalf of aliens who are in the workforce. Failure to implement these statutory protections over the last decade has created strong incentives for private employers to exploit a highly vulnerable group that is contributing to the economic growth of our nation. Steps should be taken to reform the Immigration Service so that its law enforcement function (particularly the Border Patrol) is separated from its service and adjudication role. Similarly, the government should work to bring procedural fairness into deportation and exclusion proceedings, which, at a minimum, should be subject to the provisions of the Administrative Procedure Act. Immigration judges should be elevated to full ALJ status. Likewise, a system must be established to provide free representation to indigent aliens threatened with deportation. Finally, all Salvadoran and Guatemalan refugees who registered under the statutory Temporary Protected Status program or the related settlement of American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991), should be granted legal resident status in order to eliminate an enormous backlog in the asylum system, and to remedy the improper denial of their asylum claims. Attention: Department of Health and Human Services Department of Justice Department of Labor Immigration and Naturalization Service Public Health Service United States Customs Service -------------------------------------------------- Immigrants' Rights > HIV EXCLUSION ISSUE The Public Health Service's list of "dangerous contagious diseases" for which aliens can be excluded from the United States includes HIV-infection. This flies in the face of the consensus that has emerged among medical experts, including Health and Human Services Secretary Louis Sullivan, that the exclusion serves no public health purpose. BACKGROUND In June 1987, Congress passed the Helms Amendment, directing that HIV-infection be added to the list of "dangerous contagious diseases" for which aliens may be excluded from the United States. Sec. 518, Pub. L. No. 100-71, 101 Stat. 391. Responding in part to this mandate, in August 1987 the Public Health Service (PHS) promulgated a new rule adding HIV-infection to the exclusion list. 52 Fed. Reg. 32,540 (1987). The new rule became effective December 1, 1987. Since that time, despite subsequent statutory and regulatory changes that should have led to elimination of the HIV exclusion, all applicants for "immigrant" visas (i.e., legal permanent resident status) have been subject to mandatory HIV testing as part of their required medical examination. If they test positive, their applications are automatically denied, unless they qualify for a "waiver" of the HIV exclusion. Many of the individuals who are denied legal status have lived in the United States for many years and were exposed to the HIV virus here. The HIV exclusion also applies to "nonimmigrants" (i.e., aliens visiting the United States temporarily, such as students). Non-immigrants are not required to undergo mandatory HIV testing. However, if HIV positive, they must apply for a "waiver" of the exclusion in order to temporarily enter the United States. If no waiver is obtained, and they are suspected of being HIV positive, they can be refused entry or detained by INS and forced to submit to an HIV test. The HIV exclusion rule has been an international embarrassment for the United States and has drawn sharp criticism from the public health community, including the World Health Organization. Experts agree that the exclusion serves no public health purpose and only fuels discrimination and hostility against people with AIDS. See e.g., American Public Health Association, Comments on Interim Rule "Medical Examination of Aliens" (56 Fed. Reg. 25,000). The exclusion has been used to justify the Bush Administration's discriminatory policy of detaining HIV positive Haitian refugees in camps at the U.S. Naval base at Guantanamo, Cuba. In November 1990, Congress directed the Secretary of Health and Human Services to promulgate a new list of "communicable diseases of public health significance." Pub. L. No. 101-649, codified at 8 U.S.C. Section 1182(a)(1)(A)(i). The new exclusion list was to be based solely on "epidemiological principles and medical standards" and limited to those diseases "for which admission of such aliens would pose a public health risk to the United States." H. R. Rep. No. 101-955, 101st Cong. 2d sess. (1990). Responding to its new mandate, HHS Secretary Louis Sullivan proposed regulations in January 1991 to remove HIV-infection from the list of excludable diseases. 56 Fed. Reg. 2484 (Jan. 23, 1991). Sullivan cited the consensus among major medical and public health authorities that there was no medical basis for the exclusion. Under pressure, however, HHS instead promulgated an "interim rule" that continues the HIV exclusion. 56 Fed. Reg. 25,000-25,001 (May 31, 1991). RECOMMENDED ACTIONS 1) Direct HHS to immediately adopt the regulation proposed by HHS Secretary Sullivan in January 1991, removing HIV-infection from the list of excludable diseases. 2) Direct the Public Health Service to issued revised technical instructions to designated civil surgeons reflecting that HIV-infection is no longer an excludable condition, and that applicants for immigrant status are no longer subject to mandatory testing for HIV. 3) Direct INS to parole all Haitian refugees detained on Guantanamo because of their HIV status, and permit them to enter the United States to pursue their applications for political asylum. -------------------------------------------------- Immigrants' Rights > EMPLOYER SANCTIONS ISSUE The employer sanctions provision of the Immigration Reform and Control Act of 1986 (IRCA) penalizes employers for knowingly hiring unauthorized aliens. Although the Act contains anti-discrimination provisions, the employer sanctions have led to widespread discrimination based on national origin and citizenship status. BACKGROUND On November 6, 1986, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. # 99-603, a major amendment of the Immigration and Nationality Act (INA). IRCA's most controversial provision was the adoption of "employer sanctions," which require employers to verify the work eligibility of all job applicants and new employees, and which establishes civil and criminal penalties for employers who knowingly hire unauthorized aliens. The employer sanctions proposal was opposed by the business community as an undue burden, as well as by a broad coalition of civil rights groups on the ground that it would cause widespread discrimination against anyone perceived by an employer to be "foreign," including U.S. citizens of ethnic origin and legal aliens authorized to work. In response to these concerns, Congress added an anti-discrimination provision to IRCA, 8 U.S.C. Section 1324b, which outlaws discrimination on the basis of citizenship status and national origin, and instituted a speedy administrative remedy. Congress also mandated that the General Accounting Office prepare three annual reports to determine whether employer sanctions were causing discrimination, and to review the implementation and enforcement of sanctions. 8 U.S.C. Section 1324a(j). At the time IRCA was enacted, Congress included a provision for the repeal of sanctions if the final GAO report found a widespread pattern of discrimination. 8 U.S.C. Section 1324a(l). Just as Congress had feared, and despite the anti-discrimination provisions, employer sanctions have caused widespread discrimination on the basis of national origin and citizenship. The GAO, in its third report published in 1990, found that almost 20 percent of U.S. employers initiated discriminatory hiring practices as a result of IRCA. Immigration Reform: Employer Sanctions and the Question of Discrimination 7 (GAO/GGD-90-62 March 1990). Moreover, aggressive enforcement of the anti-discrimination provisions of IRCA has been hindered by inadequate funding, and by the Reagan Administration's limiting interpretation that IRCA's anti-discrimination regulations, 28 C.F.R. Section 44.200(a)(1), unlike Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, require proof of discriminatory intent. See President's "Remarks on Signing S. 1200 Into Law," 22 Weekly Comp. Pres. Doc. 1534-35 (Nov. 6, 1986). The Reagan Administration's legal argument was based on an interpretation of Title VII that has been directly rejected by two federal courts. See Colby v. J.C. Penney Co., Inc., 811 F.2d 1119 (7th Cir. 1987) (Posner, J.); Wambheim v. J.C. Penney Co., Inc., 705 F.2d 1492 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984). Compare 42 U.S.C. Section 2000e-2(a)(1)(1992) with Section 2000e-2(a)(2) (1992). Congress explicitly specified that nothing in IRCA "shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card." 8 U.S.C. Section 1324a(c). IRCA also provided that documents other than Social Security cards could, in different combinations, satisfy the provision's requirements on identity and employment eligibility verification. 8 U.S.C. Section 1324a(b). Proponents of sanctions have sought to ignore the discriminatory effect of the law and have, instead, blamed the problems caused by employer sanctions on the work eligibility verification system, under which a job applicant can use a wide range of documents to prove identity and work eligibility. As a result, several proposals have been made to modify the verification system. One of those, put forth in a report currently being prepared by the Senate Subcommittee on Immigration and Refugee Affairs, proposes the designation of the Social Security card as the sole document for identity and employment verification and comes perilously close to calling for the establishment of a national identification card. The report also recommends requiring state motor vehicle departments to verify Social Security numbers with the Social Security Administration (SSA) before issuing a driver's license and recommends sharing databases. These proposals, which are based on the mistaken assumption that Social Security numbers are reliable identifiers, raise additional civil liberties concerns. The proposals will themselves discriminate against low-income persons; they will be prohibitively expensive to implement; they place no controls on the use or access to linked databases, and they could lead to the use of inappropriate identifiers in contexts other than employment. RECOMMENDATIONS 1) Endorse legislation, such as the Kennedy-Hatch Employer Sanctions Repeal Act of 1991, to repeal employer sanctions. 2) Support amendments to regulations implementing Section 274B that will prohibit disparate impact discrimination and will clarify that the same standards of proof apply under Section 274B as under Title VII. 3) Oppose efforts to create a de facto national identity card, and efforts to expand the use of Social Security numbers. -------------------------------------------------- Immigrants' Rights > PRIVATE ALIENAGE DISCRIMINATION ISSUE Widespread discrimination against aliens in a variety of contexts, both public and private, makes it increasingly urgent for the Clinton Administration to undertake aggressive enforcement of existing civil rights law. BACKGROUND Although the United States of America was founded and built by immigrants, the foreign born continue to face discrimination on a daily basis. Many localities are conditioning important benefits that are needed for everyday life, like a driver's license, on proof of citizenship, while private entities, such as insurance companies and credit institutions, are withholding important services from aliens. One of the most important legal vehicles available for protecting non-citizens is 42 U.S.C. Section 1981, a Reconstruction era statute that, among other things, grants all persons the same right to make contracts as that possessed by white citizens. Section 1981 has long been held to prohibit private and public racial discrimination, as well as public discrimination against aliens. The Civil Rights Act of 1991 reaffirms that Section 1981 applies to private discrimination. District courts have divided on whether Section 1981 outlaws private alienage discrimination, and the Fourth Circuit is now considering the issue. Section 1981 could provide a powerful weapon against private alienage discrimination in employment, housing, admission to private schools, credit approval and insurance coverage. In many instances Section 1981 provides the only available relief; in others it provides remedies that are not afforded elsewhere. The importance of protecting aliens from private discrimination under Section 1981 is underscored by recent increases in employment-related discrimination against aliens as a result of Congressional passage of employer sanctions in the Immigration Reform and Control Act of 1986. The devastation suffered by immigrant populations in the wake of the Los Angeles riots and Hurricane Andrew also illustrates the need to ensure that these populations have access to insurance and other financial services. Otherwise, immigrants' ability to become self-sufficient and to assimilate into our society, both economically and socially, is threatened. In an era when many immigrants to the United States are minorities, private alienage discrimination may mask racial and ethnic animus. RECOMMENDED ACTIONS 1) Urge the Department of Justice to develop a litigation position that applies Section 1981 to private alienage discrimination, and urge Justice to advocate this position before the courts of appeal and, if necessary, the Supreme Court. 2) Enforce federal civil rights prohibitions against private alienage discrimination. -------------------------------------------------- Immigrants' Rights > DETENTION OF JUVENILE ALIENS ISSUE Under current Immigration and Naturalization Service (INS) policy, children suspected of being in the country illegally can be indefinitely held in detention centers, frequently for as long as a year, even if they pose no danger to the community and no risk of absconding. This is true even in cases where responsible adults or groups are willing to assume custody. BACKGROUND Pursuant to 8 U.S.C. Section 1952, the Immigration and Naturalization Service (INS) each year arrests thousands of children suspected of being in the country illegally and places them in deportation proceedings. Pending the outcome of the proceedings, which often last years, the INS detains those children who present either a danger to the community or a risk of absconding. Detention under such circumstances is not controversial. The issue in need of immediate attention concerns the detention of presumptively innocent children, who present neither a risk of flight nor a danger to the community. Prior to 1984, the longstanding policy of INS was to release such children. In the absence of a close blood relative, INS would release the child to an otherwise responsible adult or group willing to assume custody and ensure the child's presence at deportation hearings. The INS policy of releasing children to a responsible adult or group was consistent with prevailing child welfare doctrine, which requires that children be placed in an institutional setting only as a last resort, and that they generally be housed in a manner least restrictive of their liberty. See e.g., 42 U.S.C. Sections 627, 671 et seq.; 18 U.S.C. Section 5034; 42 U.S.C. Section 5631; U.S. Dept. of Health Education and Welfare, Model Acts for Family Courts and State-Local Children's Programs (1974). Under the current INS policy, adopted in the Western Region in 1984 and nationally in 1988, a child may now be released only to one of the following listed individuals: a parent, legal guardian or adult brother, sister, aunt, uncle or grandparent. 8 C.F.R. Section 242.24(b). If one of the listed individuals is not available, INS automatically and indefinitely detains the child regardless of whether a responsible adult or group is willing to assume custody (e.g., church group, godparent, cousin, family friend, foster home). The one exception is where "unusual and compelling circumstances" exist, but INS has applied this provision in only a handful of cases and only then where the child had a medical problem. 8 C.F.R. Section 242.24(b)(4). The result of the Reagan Administration's policy change was that children, primarily 13-17 years in age, languished in detention centers for periods up to a year, even though they had been found guilty of no crime, posed no danger to the community, no risk of absconding and had a responsible adult or group willing to care for them in a non-institutional setting pending a final decision on their deportability. The policy was challenged successfully in federal district court in Los Angeles on the ground that it violated the children's fundamental interest in liberty under the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit Court of Appeals affirmed. Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc). The Supreme Court granted review and heard oral argument October 13, 1992. See id., cert. granted sub nom. Barr v. Flores, 112 S. Ct. 1261 (1992). RECOMMENDATIONS 1) Support legislation that repeals 8 C.F.R. Section 242.24(b) to the extent that it requires the automatic detention of children without regard to the availability of non-institutional placements. 2) Seek the dismissal of the government's appeal in Barr v. Flores as moot on the basis of the anticipated change in regulations if the Supreme Court has not ruled by the time the regulation is amended. -------------------------------------------------- Immigrants' Rights > INS DETENTION ISSUE The dramatic increase in Immigration and Naturalization Service detention over the past decade, which is the result of a regulation promulgated in 1982, is unnecessary and interferes with the ability of aliens to pursue their legal rights. BACKGROUND Immigration and Naturalization Service (INS) detention grew dramatically during the Reagan and Bush Administrations, with the INS detention budget jumping from $15.7 million in 1981 to over $149 million in 1990. See Immigration Control: Immigration Policies Affect INS Detention Efforts 12 (GAO/GGD-92-85 June 1992); American Civil Liberties Union, Detention of Undocumented Aliens 5 (October 1990). In part, this growth was due to a policy decision in the early 1980s to detain all aliens who arrive in the United States without documents, regardless of whether they pose a danger or are likely to abscond. See 47 Fed. Reg. 46,494 (1982). In addition, unnecessarily high bonds make it impossible for many aliens to obtain release from detention. In addition to being costly, detention interferes with aliens' ability to exercise their legal rights. Many INS detainees are eligible for relief from deportation, e.g., they are refugees from persecution or are long-time legal, permanent residents of the United States eligible for numerous forms of discretionary relief. However, because indigent aliens have no right to appointed counsel in deportation proceedings, detained aliens are often unable to obtain the relief to which they are statutorily entitled. RECOMMENDED ACTIONS 1) Repeal the 1982 Reagan Administration regulation mandating detention of virtually all excludable aliens, and apply the same policy as is applicable to deportable aliens -- requiring detention of those who are likely to abscond or are a threat to the community. Re Patel, 15 I&N Dec. 666 (B.I.A. 1976). 2) Explore alternatives to detention that would ensure detainees' appearance at hearings without prejudicing their ability to pursue their legal claims. Appropriate policies include lower bonds, as well as other forms of supervised release similar to those employed in the federal and state criminal justice systems. Such release programs would provide a substantial cost saving to the INS while enabling detainees to better exercise their legal rights. 3) Encourage the development of legal services programs for detained aliens, particularly applicants for asylum and longtime legal permanent residents with close family ties to the United States. Congress' prohibition on the Legal Services Corporation's use of federal funds to provide representation to most aliens should be repealed. Legislation should be enacted that would entitle all detained aliens to representation at government expense. -------------------------------------------------- Immigrants' Rights > ABUSE IN IMMIGRATION LAW ENFORCEMENT ISSUE Independent investigations of Immigration and Naturalization Service (INS) border agents report widespread agent abuse of immigrants, including beatings, sexual abuse and racially biased verbal abuse. The federal government has not taken adequate steps to establish rules and procedures concerning the use of force. BACKGROUND In 1977, a Justice Department audit found major defects in INS complaint procedures that prevented fair and thorough investigations of complaints filed against Border Patrol officers. U.S. Dept. of Justice, Office of Professional Responsibility, "1977 Annual Report to the Attorney General," pp. 9-10. Three years later, a U.S. Commission on Civil Rights report found continued deficiencies, "that prevent an adequate response to public complaints of officer misconduct." U.S. Commission on Civil Rights, "The Tarnished Golden Door: Civil Rights Issues in Immigration," September 1980, p. 118. Some of these problems stem from the dual role of the INS as a law enforcement and service agency. Many of the victims of INS abuse are immigrants or have family members who are immigrants. They fear that lodging complaints against the INS may jeopardize their immigration status or trigger retaliatory action. Reports of INS misconduct have increased substantially in recent years as a result of expanded authority given to INS enforcement agents. In 1986, the Immigration Reform and Control Act (IRCA) doubled the number of Border Patrol officers. That same year, the Anti-Drug Abuse Act of 1986 gave INS officers the power to arrest drug smugglers and the responsibility of interdicting drugs. The enforcement authority of INS agents was expanded again in 1990 with enactment of the Immigration Act of 1990 (IMMACT 90). Section 503 of the Act permits specified INS officers and employees to carry firearms, and gives them broad criminal arrest powers. Recognizing the concerns about INS misconduct, however, Congress specifically conditioned this enhanced authority on the issuance of INS regulations regarding (1) use of force; (2) standards for enforcement activities; (3) the certification of training of officers and (4) an expedited complaint process. Pub. L. No. 101-649, 101 Stat. See 8 U.S.C. Section 1357(a). The draft regulations just issued by INS fail to adequately address Congressional concerns. See 57 Fed. Reg. 47,011 (October 14, 1992). For example, the regulations lack guidelines for minimizing the use of force, despite a September 1991 Justice Department audit that criticized INS for its firearms policy and subsequent INS assurances that these issues would be addressed in the forthcoming regulations. With regard to a complaint process, the only change in the draft regulations is to refer complaints "promptly for investigation" under an "expedited internal review process." Meanwhile, major reports released in 1992 by the American Friends Service Committee and Human Rights Watch document what the latter describes as "appalling" findings that "beatings, rough physical treatment and racially motivated verbal abuse are routine," and that "unjustified shootings, torture and sexual abuse occur." RECOMMENDED ACTIONS 1) Direct INS to withdraw the proposed rules implementing Section 503 of IMMACT 90, and solicit public input in drafting new rules that address Congress' concern with curtailing INS abuse. These rules should: a. set strict limitations on the use of force, particularly deadly force; b. adopt stricter enforcement standards consistent with INS employees' expanded criminal arrest authority; c. require that INS employees receive training in these standards, and d. establish, to the extent possible, a meaningful internal review process that addresses the critical importance of outreach and intake procedures, protection against retaliation and confidentiality. 2) Appoint to key positions in the INS and Customs Service individuals who are committed to ensuring that the human rights of undocumented migrants and U.S. citizens are fully respected as the United States enforces its immigration laws. 3) Support legislation that establishes an independent Immigration Enforcement Review Commission to receive and investigate complaints of misconduct filed against the Border Patrol, U.S. Customs Service and any other federal officers designated to enforce immigration laws. The Commission should have: a. subpoena power and sufficient investigatory staff to ensure thorough investigations of complaints; b. the authority to recommend disciplinary action against officers responsible for abusive conduct and policy changes regarding immigration law enforcement practices; c. the authority to establish community outreach task forces for improving the working relationship between immigration officials and local community organizations, and to ensure that victims of misconduct are informed of their right to file complaints. 4) Separate the law enforcement and service branches of INS, as recommended most recently in the July 1990 Report of the Commission for the Study of International Migration and Cooperative Economic Development. As long as these branches are linked, victims of INS abuse will be fearful that lodging complaints will jeopardize their immigration status or result in retaliatory action. -------------------------------------------------- Immigrants' Rights > INDEFINITE DETENTION ISSUE Nearly 2,000 Cubans who came to the United States in 1980 remain in indefinite Immigration and Naturalization Service (INS) detention, in violation of basic notions of due process. BACKGROUND In 1980, some 125,000 Cubans came to the United States from the Cuban port of Mariel. Those suspected of having criminal records in Cuba were held in custody upon their arrival. Eventually, most were released into U.S. society, but some only after spending years detained indefinitely in maximum security prisons even though they had committed no crime in this country. Today, 12 years after the "Freedom Flotilla," over 1,800 Cubans remain in indefinite detention under the legal fiction that they were never "admitted" into the U.S. and are, therefore, "excludable" aliens. About 2,500 more are currently serving sentences in federal, state and local prisons, after which they too will be detained indefinitely by INS. Many came to the U.S. in 1980 as children and have spent most of their lives in this country. In recent years, the Justice Department implemented a number of reforms to improve conditions in the detention program. However, there still is no fair procedure to determine when detainees should be released after they have completed their criminal sentences. Arbitrary, prolonged detention of aliens violates customary international law. The detention criteria in exclusion and deportation proceedings ought to be the same, with provision of the same due process protections that all persons within the jurisdiction of the United States are entitled to receive. RECOMMENDED ACTIONS 1) Direct INS to implement a fair review system under which Cuban detainees are promptly released from detention unless it is shown, in a hearing before a neutral decision-maker, that the detainee constitutes a serious threat to the community. 2) Direct INS to provide legal representation at detention hearings, intensive counseling and treatment services and annual detention hearings to those whose detention is upheld. 3) Support legislation to end the distinction between deportable and excludable aliens, under which aliens who are physically in the United States but have not been formally admitted into the country are subject to exclusion and have no due process rights. -------------------------------------------------- Immigrants' Rights > HAITIAN REFUGEES ISSUE President Bush's "Kennebunkport Order," which returns to Haiti all Haitians fleeing by sea without benefit of an investigation into their eligibility for refugee status, is illegal. Also unlawful is the continued detention of HIV-positive Haitians at the U.S. Naval base at Guantanamo Bay, Cuba. BACKGROUND The Bush Administration's policy toward Haitian refugees requires immediate reversal on two counts. Both aspects have been declared illegal by the Second Circuit Court of Appeals, but because of the procedural posture of the legal challenges, both policies continue. First: On May 24, 1992, President Bush issued Executive Order No. 12,807 (known as the "Kennebunkport Order"), which altered the 11-year-old Haitian interdiction program in several ways. Most crucially, it allowed the Coast Guard to cordon off the country of Haiti, intercept all those who attempt to flee that country by sea and return them summarily to the Haitian military authorities without any effort whatsoever to identify genuine political refugees. The Bush Administration itself acknowledged that prior to the Kennebunkport Order, fully 30 percent or more of all Haitians interdicted were deemed to have a credible claim for asylum in this country. Thus, every day that the current interdiction continues, at least one out of every three refugees turned over by the U.S. to Haitian authorities is most likely in danger of political persecution or death. The Second Circuit Court of Appeals has found the Kennebunkport Order to be without legal authority, as it violates the plain language of INA Section 243(h) and 8 U.S.C. Section 1253(h). Haitian Centers Council Inc. v. McNary, 969 F.2d 1350 (2d Cir. 1992). However, the Supreme Court stayed the court of appeals' injunction pending disposition of the case on the merits. Oral argument before the Supreme Court will probably be heard the week of February 22, 1993. Second: Before issuing the Kennebunkport Order, the Bush Administration followed the 11-year-old practice of "screening" Haitians interdicted on the high seas to determine, after an individual assessment, whether a person had a credible fear of persecution if returned to Haiti. In February 1992, however, the Administration altered this longstanding policy, and began conducting de facto asylum hearings for certain screened-in refugees on the U.S. Naval base at Guantanamo Bay, Cuba, solely because those refugees allegedly tested positive for the HIV virus. More than 280 Haitians, many of whom have now been there for almost a full year, are being held at Guantanamo, despite the fact that the Bush Administration has the necessary legal authority to allow them to come into the U.S. as asylees until the situation in Haiti stabilizes. RECOMMENDED ACTIONS 1) Rescind Executive Order No. 12,807 (Kennebunkport Order). 2) Direct the Solicitor General to decline to defend the Kennebunkport Order before the Supreme Court in Haitian Centers Council Inc. v. McNary, cert. granted 113 S. Ct. 52 (Oct. 5, 1992). 3) Direct the Attorney General to: a. Parole all Guantanamo detainees into the U.S. pursuant to 8 U.S.C. Section 1182(d)(5) so that they may complete their applications for political asylum; b. Grant asylum under 8 U.S.C. Section 1158 to the 115 Haitian refugees currently detained at Guantanamo who have already established their status as bona fide refugees; c. Grant temporary protected status to all Haitians in the U.S. who have fled Haiti since the coup on September 30, 1991. -------------------------------------------------- Immigrants' Rights > AMNESTY ISSUE By adopting overly restrictive policies and practices, the Immigration and Naturalization Service (INS) has frustrated the goals of the two amnesty programs created by the Immigration Reform and Control Act of 1986. As a result, tens of thousands of eligible aliens have been denied the right to participate and secure legal status. BACKGROUND The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, created two amnesty programs that provided a one-time opportunity for thousands of aliens residing illegally in the United States to acquire legal residency. See 8 U.S.C. Sections 1160(a), 1255a. The first amnesty program permitted any alien who had resided in the United States "continuously and unlawfully" since January 1, 1982 to acquire legalized status. 8 U.S.C. Section 1255a. The second program granted legalized status to "special agricultural workers" (SAWs) if they had resided in the United States and had performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986. 8 U.S.C. Section 1160(a). The Act also required the Attorney General to establish a 12-month application period in which eligible aliens could apply. 8 U.S.C. Section 1255(a)a. Reflecting Congress' intent to confer legalized status on all eligible applicants, IRCA further directed that the Attorney General "shall" legalize all aliens who meet the eligibility standards. The goals of the amnesty programs were twofold. First, "in recognition that a large segment of the shadow population played a useful and constructive role in the American economy but continued to reside in perpetual fear, the Reform Act [IRCA] established two broad amnesty programs to allow existing undocumented aliens to emerge from the shadows" and obtain legalized status. McNary v. Haitian Refugee Center, 111 S. Ct. 888, 890 (1991). Second, Congress believed that by legalizing those undocumented aliens already within the country, INS would be free to concentrate its limited resources on controlling the borders. Id. at 890 & n.4 (discussing H.R. Rep. No. 99-682, pt.1, p.49 (1986)). Thus, Congress intended both to bestow a benefit on deserving individuals and to make progress on enforcement. Accordingly, Congress directed that the "legalization program . . . be implemented in a liberal and generous fashion . . . to ensure true resolution of the problem." H.R. Rep. No. 682 at 72 (1986). INS has severely frustrated IRCA's objectives by its implementation of both programs. With regard to the SAW program, INS adopted policies and practices that resulted in thousands of deserving aliens being denied their statutory right to legalized status. The policies were successfully challenged on a class-wide basis in federal district courts throughout the country, and INS ultimately conceded the invalidity of many of the policies (but only after receiving unfavorable decisions in the district courts.) Rather than reprocess applications under the revised policies, however, INS took the position on appeal that the federal district courts had lacked jurisdiction under IRCA to entertain the suits. The Supreme Court rejected INS' jurisdictional argument, leaving in place district court judgments around the country that required INS to process SAW applications under revised regulations. McNary v. Haitian Refugee Center, 111 S. Ct. 888 (1991). An almost identical scenario is now occurring with regard to IRCA's other amnesty program, which covers aliens who have resided in the country continuously since 1982. INS promulgated overly restrictive implementing regulations that denied thousands of eligible individuals legalized status. INS now concedes the regulations were unlawful and has adopted revised regulations. INS has, nevertheless, refused to consider thousands of applications from individuals eligible under the new standards on the grounds that the district court challenges were jurisdictionally defective and applications are now untimely. The jurisdictional and "timeliness" issues are presently pending before the Supreme Court. Barr v. Catholic Social Services 112 S. Ct. 2990 (1992). The case is scheduled to be argued some time after January 1, 1993. The government filed a petition for certiorari on September 9, 1992 on similar issues in Perales v. Thornburgh, 967 F.2d 798 (2d Cir.), cert. pending No. 92-451 (1992), in which the Second Circuit also rejected the government's jurisdictional and timeliness arguments. The jurisdictional argument is, in all material respects, identical to the argument previously raised by INS in the SAW context and soundly rejected by a 7-2 vote in the Supreme Court. McNary v. Haitian Refugee Center (Scalia and Rehnquist, dissenting). The "timeliness" question is equally meritless and at odds with Congress' intent to provide eligible aliens with the full 12-month period to apply under proper legal standards. Not surprisingly, the lower courts have rejected INS' position and ordered it to reopen the application process for a short period in order to permit statutorily eligible aliens to apply. See e.g., Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) cert. granted sub nom. Barr v. Catholic Social Services, Inc., 112 S.Ct. 2990 (1992); Perales v. Thornburgh, 967 F.2d 798 (2d Cir.), cert. pending No. 92-451 (1992). RECOMMENDED ACTIONS 1) Revise regulations to require INS to accept applications from eligible aliens. 2) Seek to dismiss the government's appeal of Barr v. Catholic Social Services, Inc. in the Supreme Court and withdraw its cert. petition in Perales v. Thornburgh. -------------------------------------------------- Immigrants' Rights > ALIENS' FIRST AMENDMENT RIGHTS ISSUE The Justice Department's current interpretation of a 1990 immigration statute penalizes foreign nationals residing in the United States for speech and activities that are protected by the First Amendment. BACKGROUND It is well-settled that foreign nationals residing in the United States are guaranteed the freedoms of speech and association enshrined in the First Amendment to the Constitution. In Bridges v. Wixon, a case in which the U.S. sought to deport labor activist Harry Bridges for being a member of the Communist Party, the Supreme Court succinctly ruled that "[f]reedom of speech and press is accorded aliens residing in this country." 326 U.S. 135, 143 (1945). The Justice Department, however, is attempting to circumscribe this right, in the first case to be brought under the Immigration Act of 1990, Pub. L. No. 101-649, 104 stat. 4978 (codified at 8 U.S.C. Section 1182). In Matter of Hamide and Shehadeh, Nos. A19 262 560 and A30 660 528, the Immigration and Naturalization Service (INS) has taken the position that under the new law, any alien, including a permanent resident, is deportable if he or she supports an organization deemed to be "terrorist," even if that support was directed wholly towards lawful ends. This is an extraordinarily broad interpretation of a provision that renders deportable "[a]ny alien who has engaged, is engaged, or at any time after entry engages in any terrorist activity." 8 U.S.C. Section 1251 (a)(4)(B). The INS asserts that it need not allege or prove that Hamide and Shehadeh have supported any terrorist act, but that supporting a "terrorist organization without more" is a deportable offense. The INS position is contrary to the Supreme Court's ruling that "the government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims, and a specific intent to further those aims." Healy v. James, 408 U.S. 169, 186 (1972). Indeed, the government is taking the same approach repudiated in the Bridges case. This dangerously expansive interpretation would mean that any foreign national who raised funds for the ANC, the Kurdish rebels or the Nicaraguan Contras, even for humanitarian aid, is at risk of deportation. It would mean that foreigners living in this country do not enjoy the same basic freedoms as citizens. Indeed, an INS spokesman, commenting on the case, queried: "A noncitizen in the United States -- does he have that full range of privileges and rights?" Los Angeles Daily News, October 27, 1992, at 4. The answer must be an unequivocal, "Yes!" RECOMMENDED ACTIONS 1) Direct the Department of Justice and the Immigration and Naturalization Service to interpret the terrorist activity provisions of the 1990 Immigration Act in a manner consistent with legislative intent and constitutional requirements. 2) Review the Hamide case and, if there is no such evidence of support for terrorist activity, drop the charges against the defendants. See also: CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991 CIVIL RIGHTS ENFORCEMENT: Test Score Norming CIVIL RIGHTS ENFORCEMENT: Title VI CIVIL RIGHTS ENFORCEMENT: Housing Discrimination CIVIL RIGHTS ENFORCEMENT: Minority Set Asides INTERNATIONAL HUMAN RIGHTS: Covenant on Civil and Political Rights INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties NATIONAL SECURITY: Ideological Visa Denials PRISONERS' RIGHTS: International Standards -------------------------------------------------- PRISONERS' RIGHTS INTRODUCTION During the Reagan/Bush years, the nation's prison population grew, jumping from 369,930 state and federal prisoners in 1981 to 855,958 in 1992. During the 1980s, the United States overtook the Republic of South Africa and the former Soviet Union as having the highest per capita incarceration rate in the world. Overcrowding plagues nearly every prison system in the country. That includes the federal system, which, by the end of 1991, was operating at 150 percent over capacity. Prison overcrowding exacts terrible costs, human as well as financial. These include a greatly heightened risk of major prison disturbances and a threat to public health posed by epidemics -- such as multi-drug resistant tuberculosis -- that are easily spread in overcrowded prisons. Furthermore, there is a disproportionate number of minorities, particularly African Americans and Latinos, in prisons, raising serious questions of racial bias in the criminal justice system. During the same period, mounting evidence demonstrated that high incarceration rates do not lead to diminished crime rates. Most recently, the National Research Council found that while the number of prisoners increased from 240,000 in 1975 to 604,000 in 1989, the number of serious violent crimes per year stayed constant at about 2.9 million per year. Studies also show that non-incarcerative, "intermediate" sanctions, such as community service programs and intensive probation, are just as effective in rehabilitating non-violent offenders as is imprisonment. Despite the gravity of these problems, the federal government has failed to take the lead in combatting overcrowding. In fact, the Department of Justice has done just the opposite. In 1992, Attorney General William Barr announced that the Department would assist those states that wished to challenge court orders limiting overcrowding in their prisons. This is a dangerous and counterproductive policy. The Clinton Administration must recognize the inherent limitations of incarceration as a crime control strategy, make certain that federal prisons are humane institutions that comport with constitutional and international human rights standards and invest in "intermediate sanctions" for non-violent offenders. Attention: Department of Justice Federal Bureau of Prisons United States Civil Rights Commission -------------------------------------------------- Prisoners' Rights > MEDICAL CARE ISSUE The Federal Bureau of Prisons (FBOP) is failing to provide adequate medical and mental health care to the more than 77,000 inmates in its custody. BACKGROUND Medical staffing in the FBOP is deficient in both numbers and qualifications. In 1989, for example, 3 out of 13 staff physicians at the Bureau's Springfield medical facility were not board certified. To compensate for staff shortages, the facility employed mentally ill prisoners as ward attendants. Mental health staffing is also inadequate. Medical records often fail to accompany prisoners when they are transferred, making it difficult to treat them when they reach the new facility. The FBOPs medical transport system subjects severely ill patients to long and arduous bus journeys, often lasting weeks, that sometimes result in death or serious aggravation of health problems. The FBOP is failing to provide adequate AIDS education and proper treatment to HIV-positive prisoners. The Bureau has transferred some prisoners with AIDS to the Marion Penitentiary, a maximum security facility with a highly controlled and stressful environment that has been shown to have a detrimental effect on the health of HIV-positive prisoners. Tuberculosis is perhaps the most pressing correctional health concern today. Tuberculosis is an airborne disease that thrives in the poorly ventilated, overcrowded conditions characteristic of most prisons. The disease threatens prisoners and staff, and can be spread from institution to institution as prisoners are transferred, and to the communities to which prisoners and staff return. RECOMMENDED ACTION Direct the Federal Bureau of Prisons to institute medical care reforms to bring the prison system into compliance with nationally recognized correctional health care standards. The reforms should include: a. hiring adequate numbers of fully trained medical and mental health staff and barring unlicensed health care providers; b. implementing tuberculosis control measures recommended by the Centers for Disease Control; c. providing adequate staff and services to meet the special health needs of women prisoners; d. providing adequate AIDS treatment and education; e. providing adequate staff and services to meet the special health needs of older prisoners; f. keeping adequate medical records and ensuring that prisoners' records accompany them upon transfer. -------------------------------------------------- Prisoners' Rights > MAINTENANCE OF FAMILY TIES ISSUE The Federal Bureau of Prisons is failing to encourage the maintenance of strong family ties, which are needed for prisoners' successful post-release adjustment. BACKGROUND The maintenance of family ties during imprisonment positively correlates with successful post-release adjustment. But correctional policies and practices erect barriers to the development of family-focused programs. Staff mistreatment of visitors, remote prison locations, inflexible visiting schedules and other factors combine to deter family members from visiting incarcerated loved ones. One result is that the children of prisoners, particularly women prisoners, often become wards of the state and are placed in foster care or other institutional settings. These policies and practices violate the right to family integrity. Family services and programs may provide an effective approach to the problem of recidivism. The $20 billion that it costs the United States to incarcerate its prisoners does not include the cost to the system of foster care and public assistance for the children of these prisoners; it also does not include the cost that society will have to bear in the virtual destruction of families. Services promoting family unity are relatively inexpensive compared to the cost of reimprisonment. The United States lags behind most European and Latin American countries on the issue of family visits. Successful model programs exist in various parts of the country that seek to strengthen the families of prisoners as a way of deterring future criminal activity. The Mother-Infant Care Program in San Francisco, the Family Reunion Program for incarcerated fathers in the New York State system and the Bedford Hills, New York Infant Program could all be replicated at the federal level. The Family Unity Demonstration Project Act, H.R. 2726, was introduced in the first session of the 102nd Congress, authorizing the National Institute of Corrections to create a competitive grant program for the establishment of five family-unity demonstration projects in the states and one at the federal level. To date there has been no action on H.R. 2726. RECOMMENDED ACTION 1) Increase funding for the development of family-unity type demonstration projects. 2) Support the Family Unity Demonstration Project Act, H.R. 2726. -------------------------------------------------- Prisoners Rights > GRIEVANCE RESOLUTION ISSUE The Federal Bureau of Prisons needs to implement a fair and efficient grievance procedure for prison inmates. BACKGROUND Federal prisoners face significant barriers in making known their legitimate grievances about prison conditions. The FBOP has established a three-tier internal grievance mechanism called the Administrative Remedy Procedure (ARP), 28 C.F.R. Section 542-10 et seq., for federal prisoners who have complaints about conditions, abuse and treatment by prison staff. The goals include reducing prisoner-staff conflict, demonstrating to prisoners that the government intends to deal fairly with them and reducing the enormous flow of federal prisoner pro se petitions into the federal courts. The ARP has significant weaknesses, however. Most ARP programs have no clear fact-finding process, and statements secured from prison personnel are not given under oath or seriously questioned. The Supreme Court noted in a recent decision that the filing deadlines for the FBOP grievance procedure "are a likely trap for the inexperienced and unwary inmate, ordinarily indigent and unrepresented by counsel." McCarthy v. Madigan, 112 S.Ct. 1081, 1090 (1992). RECOMMENDED ACTION Support legislation that would establish an effective prisoner grievance system that provides, at a minimum, an impartial, outside review process. -------------------------------------------------- Prisoners' Rights > VOTING RIGHTS ISSUE Prisoners in all but six states do not have the right to vote, and ex-prisoners are effectively disenfranchised because of the cumbersome process they must go through to regain their right to vote. This violates prisoners' rights to equal protection and to petition their government. BACKGROUND In 1974, the Supreme Court permitted California to deny convicted felons the right to vote. The case made the right to vote wholly dependent on each state's laws. As a result, a federal prisoner's right to vote is determined by the laws of the state in which the federal prison is located. State laws vary widely. Many state laws that restrict the franchise raise serious civil liberties issues. In Hunter v. Underwood, 471 U.S. 222 (1985), the Supreme Court ruled unconstitutional a provision of the Alabama Constitution that disenfranchised convicted criminals because it had been enacted with the intent of discriminating against African Americans. In Tate v. Collins, 496 F. Supp. 205 (W.D. Tenn. 1980), a district court upheld the right of Tennessee state prisoners to vote if they had not been convicted of "infamous crimes" and ordered that prisoners be permitted to obtain absentee ballots. In addition, because of a confusing patchwork of state laws, many ex-offenders also find it difficult, if not impossible, to regain access to the ballot once they are released. Some are required to go through a cumbersome and sometimes expensive procedure in order to regain the right to vote. Prisoners and ex-prisoners should not be punished two-fold by losing their right to vote. A clear and reasonable nationwide standard is needed on restoration of voting rights. RECOMMENDED ACTION Support legislation that would restore the right to vote for convicted felons and ex-offenders. -------------------------------------------------- Prisoners' Rights > INTERNATIONAL STANDARDS ISSUE The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment establishes an international standard for the treatment of prisoners. However, the reservations and understandings imposed by the United States upon its ratification of the Convention greatly limit the Convention's effectiveness. BACKGROUND In 1990, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with several reservations and understandings. These reservations and understandings, now part of the treaty and law of the United States, severely limit the ability of American courts to use international law as a standard against which to measure violations of human rights. For example, Article 16 provides that we are obligated under the treaty to prevent cruel and inhuman or degrading treatment or punishment only to the extent that such treatment is prohibited by the United States Constitution. In effect, the Senate has said that the treaty does not provide any additional limitations other than those already provided under domestic law. In ratifying the Convention, the United States also attached an "understanding" that torture was to be defined more narrowly than by the United Nations and that the Convention does not prohibit the death penalty. In addition, the United States attached an "understanding" of a higher standard in the policy of non-refoulment (prohibiting the deportation of aliens to countries where it is likely they will be subject to torture) than the treaty requires. Moreover, none of the Convention's substantive provisions are self-executing and, therefore, are ineffective until Congress formulates implementing legislation, which it has not done. Finally, the Senate has stated that its advice and consent are subject to a proviso requiring the President to notify all signatories to the Convention that the United States is not required to take any action prohibited by the United States Constitution. The proviso makes our obligations very uncertain, leaving other parties to guess what provisions the United States will respect. RECOMMENDED ACTION Support legislation to remove the proviso, understandings and reservations and to make the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment self-executing. -------------------------------------------------- Prisoners' Rights > CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT ISSUE The Department of Justice has refused to enforce the Civil Rights of Institutionalized Persons Act (CRIPA) on behalf of prisoners. BACKGROUND In 1980, Congress enacted the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 (CRIPA), and charged the Department of Justice with the duty of protecting the rights of those who are helpless to protect themselves -- institutionalized mental patients, mentally retarded persons, juveniles and prisoners. At the time CRIPA was enacted, the Department of Justice told Congress that it expected to file seven to ten lawsuits per year under the Act. During the Reagan/Bush years, the Civil Rights Division of the Department of Justice adopted a policy of refusing to enforce CRIPA. When William Bradford Reynolds was appointed Assistant Attorney General for Civil Rights, enforcement of CRIPA came to a halt. In the first four years of CRIPA, the Department filed only two actions to enforce the Act. In addition, in CRIPA cases and in other cases involving the rights of institutionalized persons, the Department of Justice, although enrolled in the cases as a plaintiff, has routinely sided with the defendant. Recently, Attorney General Barr set forth this position as the Department's formal policy when he ordered Department of Justice lawyers to side with state governments in motions to end federal court decrees that set limits on prison overcrowding. Indeed, the Department of Justice refused to withdraw the policy even after the Supreme Court, in Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992), rejected the legal argument that in large part underlay the policy. This policy on the part of the Department of Justice frustrates Congress' intention that in appropriate cases the Department advocate on behalf of the most helpless members of our society -- the institutionalized. RECOMMENDED ACTIONS 1) Rescind the Department of Justice's policy of supporting state governments' attempts to overturn court orders that limit prison overcrowding. 2) Instruct the Department of Justice to vigorously enforce CRIPA on behalf of prisoners. -------------------------------------------------- Prisoners' Rights > PRISON OVERCROWDING AND HUMAN RIGHTS VIOLATIONS ISSUE Severe overcrowding throughout state and federal corrections systems has resulted in many institutions operating substantially above their design capacity. There is currently no mechanism for monitoring and reporting this and other human rights violations in U.S. jails and prisons. BACKGROUND Jail and prison conditions and practices vary greatly in different cities and states, as well as in the Federal Bureau of Prisons (FBOP). But virtually all suffer from serious overcrowding. Overcrowding wreaks havoc on an institution's ability to manage its population effectively, and it greatly increases the probability of harm to both staff and prisoners. Overcrowding creates dangerous fire hazards, increases violence, overwhelms medical services and diminishes programming services that are essential to the maintenance of order in an institution. A number of prisoner rebellions that have led to significant injury and death are directly linked to conditions caused by crowding, such as the 1971 Attica rebellion, the 1980 New Mexico disturbance and the 1989 Camp Hill (Pennsylvania) violence. As of January 1992, there were 40 states (plus the District of Columbia) and more than 150 jurisdictions with large jail populations (i.e., 100 inmates or more) in which courts had found that overcrowding and other conditions in prisons and jails violate the Constitution. The dramatic growth in drug felony convictions has caused overcrowding in the federal system to increase to 150 percent of rated capacity. The number of drug offenders serving time in federal prisons has more than doubled in the past few years, and such prisoners now account for more than half of the federal prison population. The Bureau is coming under increasing pressure from Capitol Hill to "double-bunk" -- that is, put two prisoners in each cell. In fact, in practice the FBOP has double-bunked detainees and some prisoners for many years. In addition to the serious deterioration in jail and prison conditions caused by overcrowding, there are well-documented cases of serious human rights abuses. For example, earlier this year the Supreme Court decided a case involving a state prisoner in Louisiana who had been beaten by prison officers while he was shackled hand and foot. Hudson v. McMillian, 112 S.Ct. 995 (1992). As a general rule, however, there are no official agencies that monitor human rights violations in U.S. jails and prisons. RECOMMENDED ACTIONS 1) By Executive Order, forbid the use of "double-bunking" and the housing of prisoners in excess of the design capacity of any Federal Bureau of Prisons facility. 2) Appoint new members to the United States Civil Rights Commission and direct the Commission to develop mechanisms to monitor human rights violations in jails and prisons. See also: CRIME AND CRIMINAL JUSTICE: Imprisonment as a Crime Control Mechanism CRIME AND CRIMINAL JUSTICE: Preventive Detention DRUG POLICY: The War on Drugs -------------------------------------------------- CHILDREN'S RIGHTS More than 400,000 children are currently in government foster care custody. The removal of these children from their homes constitutes an extreme example of government intervention into the lives of children and their families. Although the removal of some children from their parents may be necessary to protect children from abuse and neglect, state foster care systems are often so grossly mismanaged that they inflict serious and irreparable injury on the helpless children entrusted to their care. In the District of Columbia, for example, thousands of reports of abuse or neglect have gone uninvestigated; children are crammed into overcrowded and unlicensed foster homes; workers, who have no training and little supervision, carry caseloads of hundreds of children, and children remain in government custody for an average of five years. Recognizing the terrible problems plaguing foster care systems around the country, Congress enacted in 1980 the Adoption Assistance and Child Welfare Act, Pub. L. No. 96-272 (codified as amended at 42 U.S.C. Sections 620-627, 670-679a). That statute amended the Social Security Act by mandating that states provide specified services to children in government foster care custody as a condition of the states' receipt of substantial federal funding for their foster-care systems. (In FY 1993, states will receive nearly $3 billion under the Act.) The statute sought to reduce the number of children entering foster care by providing services so they could either be returned home or adopted, to shorten the period of time that those children who did enter foster care remained there, and to improve the conditions of foster care. In the early 1980s, the number of children in foster care declined substantially, largely as a result of reforms spawned by the statute. However, with the substantial cutback of aid to states and cities in the mid- and late-1980s, children started flooding back into foster care, and many systems now are at the brink of collapse. Attention: Department of Health and Human Services -------------------------------------------------- Childrens' Rights > ADOPTION ASSISTANCE & CHILD WELFARE ACT:ENFORCEMENT ISSUE For more than a decade, children in foster care had the right to file private lawsuits to enforce provisions of the federal Adoption Assistance and Child Welfare Act of 1980. But this year, at the urging of the Bush Administration, the U.S. Supreme Court called into question most of the Act's enforcement provisions. And the Bush Administration later vetoed a Congressional attempt to clarify the law and overturn the Court's judgment. BACKGROUND In the ten years following enactment of the Adoption Assistance and Child Welfare Act of 1980, children's advocates prosecuted lawsuits around the country against states, municipalities, and counties in which foster care problems were particularly acute. Though foster care reform litigation had taken place prior to 1980, the Adoption Assistance Act created significantly greater entitlements for children and gave advocates much broader means by which to accomplish necessary reforms. During the 1980s, courts around the country uniformly concluded that children were entitled to sue to enforce the Act's provisions. Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983); L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied, 488 U.S. 1018 (1989); Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883 (10th Cir. 1992); Winston v. Children and Youth Services, 948 F.2d 1380 (3d Cir. 1991), cert. denied, 112 S.Ct. 2303 (1992); Timmy S. v. Stumbo, 916 F.2d 312 (6th Cir. 1990); Del A. v. Edwards, 855 F.2d 1148 (5th Cir. 1988), appeal dismissed, 867 F.2d 842 (5th Cir. 1989); LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991). By 1990, the law was well settled in this area, and foster care reform lawsuits turned largely upon the facts of particular cases. In 1992, however, the U.S. Supreme Court undermined all foster care reform litigation when it ruled that a particular provision of the Adoption Assistance Act was not privately enforceable by children. Though the holding of the Court's decision in Suter v. Artist M, 112 S.Ct. 1360 (1992), was narrow, the language of the opinion is so broad in some places as to suggest that all of the statute -- as well as all of the Social Security Act and all of the Medicaid Act -- has been rendered unenforceable. Relying on this language, several lower courts recently have dismissed entire lawsuits. RECOMMENDED ACTIONS 1) Use the Department of Health and Human Services' regulatory power to reverse the Supreme Court's interpretation in the Suter decision, and to restore the enforceability of the specific provision of the statute at issue in Suter. 2) Alternatively, support legislation to counter the Court's decision in Suter. Whichever course is chosen, it is essential that the Clinton Administration move quickly to reverse the impact of Suter and to restore the law to its prior state so as to assure that children are able secure the protections of the Adoption Assistance and Child Welfare Act. -------------------------------------------------- Childrens' Rights > ADOPTION ASSISTANCE AND CHILD WELFARE ACT: COMPLIANCE ISSUE Although the federal Adoption Assistance and Child Welfare Act of 1980 contains broad policy directions, it does not identify or mandate the services that states must provide for children. This lack of specificity has left states with such broad discretion that the Act's mandates are seriously diluted. BACKGROUND Like many statutes, the Adoption Assistance and Child Welfare Act specifies broad mandates. One example: The statute requires states to provide "proper care" to children and to provide services to children to permit them to return home if appropriate. However, the statute does not identify or further define the mandated services, and there are no accompanying regulations relating to the provision of services to children, leaving the states with such broad discretion that the statute's mandates are seriously diluted. Children's advocates have been hampered by the federal government's failure to promulgate appropriate regulations under the statute. Indeed, the Supreme Court concluded in Suter v. Artist M. that one of the statute's key provisions was unenforceable because, given its lack of regulatory definition, it was too vague for enforcement. Not only has the lack of regulation circumscribed the efforts of children's advocates, but it has also limited the ability of the Department of Health and Human Services (HHS) to monitor state compliance with the statute. Field office personnel have noted that the lack of regulatory detail vastly undermines their ability to review and correct state foster care programs. Given the huge sums of federal dollars going to state foster care programs, it is essential that the federal government be able to ensure that the states are providing the services mandated by the Adoption Assistance Act. RECOMMENDED ACTION With the input of children's advocates, draft and urge adoption of appropriate regulations under the Adoption Assistance and Child Welfare Act. See also: EDUCATION: Equity in Financing EDUCATION: Vouchers IMMIGRANTS' RIGHTS: Detention of Juvenile Aliens PRISONERS' RIGHTS: Maintenance of Family Ties WOMEN'S RIGHTS: Family and Medical Leave and Child Care -------------------------------------------------- WORKERS' RIGHTS New laws must be created to protect civil liberties in the world of work. The Bill of Rights protects individuals from violations of their civil liberties by the government. But it offers no protection in the private workplace, even though violations of civil liberties by employers far outnumber those committed by the government. American freedoms are just as important in the world of work as they are in public life. It is just as wrong for a person to be fired by an employer for her or his political beliefs as it is to be punished by the government. Among the abuses committed against the employed by their employers are secret monitoring of telephone calls and electronic mail; retaliation against those who speak up on workplace safety issues; dictating how employees conduct their private lives; forcing employees to answer questions about their sex lives and religious beliefs on psychological tests, and firing employees for union activity. The nation's failure to protect rights in the workplace not only makes us less free, it also makes us poorer. In an era when we need the full energy and creativity of all people at work, most Americans consciously give less than their best because they believe their companies do not respect them or their rights. It is no accident that those nations that have laws protecting the rights of employees, such as Germany, Sweden and Japan, are the world's most successful trade competitors. Attention: Department of Defense Department of Energy Department of Health and Human Services Department of Labor Department of Transportation National Labor Relations Board -------------------------------------------------- Workers' Rights > UNJUST DISMISSALS ISSUE Non-unionized, private sector workers, who make up the majority of workers in the United States, have virtually no protection from arbitrary and unfair terminations. Private sector employees lack the procedural protection granted to their counterparts in the public sector. BACKGROUND Most Americans are shocked to learn that the Bill of Rights does not protect them at work. Although the workplace must be free of discrimination on the basis of race, sex, disability and age, the basic rights of free speech, privacy and due process protect only against government action. Eighty percent of the workforce that is not in union or government jobs can be fired for any reason or for no reason at all. They can be subjected to intrusive and degrading tests and searches that are unrelated to the work they were hired to perform. And they can be fired for activities conducted in the privacy of their own homes. Non-unionized, private workers are still subject to the "employment-at-will" rule, a 19th century common law doctrine that allows employers to fire employees for any reason, whether for just cause or no cause. As a result of this arcane doctrine, an estimated 150,000 American workers are unjustly dismissed each year. Workers will continue to suffer unless federal legislation is enacted to remedy their plight. RECOMMENDED ACTION Support federal legislation that establishes a just cause standard for employee dismissals, and that prohibits discrimination based on employees' outside legal activities. -------------------------------------------------- Workers' Rights > ELECTRONIC SURVEILLANCE OF PRIVATE SECTOR EMPLOYEES ISSUE Electronic surveillance has become increasingly common in the American workplace, and much of the surveillance has nothing to do with job performance or with any other legitimate employer concern. Monitoring by telephone, computer and video represents a serious invasion of employees' privacy. BACKGROUND Recent advances in electronic technology in the workplace have stripped many Americans of any semblance of privacy on the job. Employers now routinely: listen to employees' telephone calls without telling either the employee or the other party to the conversation; secretly read employees' computer screens and bypass passwords to monitor electronic mail, and install hidden microphones and video cameras. The Congressional Office of Technology Assessment estimates that at least four million Americans are routinely subjected to these practices. U.S. Congress, Office of Technology Assessment, The Electronic Supervisor (1987). Current law provides little protection for workplace privacy. The Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. Sections 2510-3126, prohibits employers from deliberately monitoring personal communications engaged in by their employees on the job. The Act does not apply this prohibition, however, if the communication is business related, and it does not require an employer to give prior notice of a monitoring practice. Employees should not have to leave their right to privacy on the doorstep when they enter their workplaces. A University of Wisconsin study found that monitored workers suffer significantly higher levels of psychological and physical problems than those in the same industry who are not monitored. Smith, Sainfort, Rogers and LeGrande, Electronic Performance Monitoring and Job Stress in Telecommunications Jobs, Univ. of Wisconsin-Madison, Department of Industrial Engineering (October 1990). Unrestrained surveillance has turned many offices into electronic sweatshops. For several terms, Congress has been considering legislation that would strike a reasonable balance between an employer's right to workplace information and employees' right to privacy. The Privacy for Consumers and Workers Act (H.R. 1218/S. 3238) preserves the employers' right to collect information about employees' work performance through electronic monitoring, but it requires employers to notify employees about the nature of the monitoring and when it will take place. This bill was reported out of the House Education and Labor Committee in 1992. RECOMMENDED ACTION Support the Privacy for Consumers and Workers Act. -------------------------------------------------- Workers' Rights > DRUG TESTING ISSUE Suspicionless drug testing of workers, including those who do not occupy safety-sensitive positions, has become routine in many industries. Urinalysis, which cannot measure job performance and is often unreliable, invades the privacy rights of hundreds of thousands of innocent employees every year. BACKGROUND One casualty of the war on drugs has been the privacy rights of American workers. The Department of Defense, for example, requires defense contractors to establish a drug testing program for employees in sensitive positions, and the Department of Energy requires drug testing of employees with access to nuclear sites. Executive Order 12564, issued on September 15, 1986, requires random urinalysis drug testing for a wide variety of federal employees. In 1991, Congress passed the Omnibus Transportation Employee Testing Act of 1991, 45 U.S.C. Section 431; 49 U.S.C. app. Sections 1434, 1618a, 2717, which mandates urinalysis drug testing and alcohol testing for safety-sensitive workers in industries subject to the Federal Aviation Act, the Federal Railroad Safety Act, the Commercial Motor Vehicle Safety Act and the Urban Mass Transportation Act. The Omnibus Act covers both public and private sector employees. Every court that has considered the matter has ruled that urinalysis is a search and seizure under the Fourth Amendment. Nevertheless, such testing has survived constitutional challenge for employees whose positions have a direct impact on public safety or involve access to sensitive government documents. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). The federal government's action has given a green light to private employers, who now routinely impose intrusive drug testing on employees even in non-safety sensitive industries. Drug tests are not only intrusive, they are also unreliable. Urinalysis is not a work-related test because it cannot detect actual impairment or intoxication, but merely the inactive residue of substances ingested at some time in the past. Severe accuracy problems also attend urinalysis testing. The vast majority of laboratories have not been certified by the National Institute on Drug Abuse or any other government agency. Many of these labs have poorly trained personnel, inadequate quality standards and substandard equipment. Because of these deficiencies, many innocent people have lost their jobs. Passage of the Clinical Laboratory Improvements Act of 1988, 42 U.S.C. Section 263, was meant to address these deficiencies by subjecting all labs that conduct clinical tests to strict quality standards. Regulations issued by the Department of Health and Human Services (HHS) initially included workplace drug testing within the Act's coverage. However, HHS, under protest, issued a temporary exemption for workplace testing before the regulations took effect in September 1992. The result is that American employees have no protection against loss of civil liberties and loss of employment because of shoddy lab work. Public safety would be protected far better if employees in safety-sensitive positions were tested for their ability to do the job. Such impairment testing is well established in the private sector, and has demonstrated its ability to protect the public without invading the private lives of employees. (Lewis L. Maltby, Put Performance to the Test, American Management Association, July, 1990). RECOMMENDED ACTIONS 1) Revise Executive Order #12564, and Department of Defense and Department of Energy regulations, to provide for direct testing of impairment instead of urinalysis for all safety-sensitive positions. 2) Urge Congress to amend the Omnibus Transportation Employee Testing Act to require the use of impairment tests instead of urine tests. 3) Reissue the original regulations promulgated by HSS under the Clinical Laboratory Improvements Act. -------------------------------------------------- Workers' Rights > LABOR LAW REFORM ISSUE Structural weaknesses in the National Labor Relations Act have the effect of denying workers the right to engage in collective action without fear of retaliation. BACKGROUND The rights of employees to organize and bargain collectively are important civil liberties. They are aspects of freedom of association. The National Labor Relations Act (NLRA), 29 U.S.C. Sections 151-69, promises all Americans the right to join with their fellow employees to negotiate with their employer for better wages and working conditions. It prohibits employers from interfering with employees' attempts to organize, or from retaliating against employees who exercise their rights under the statute. The NLRA, however, contains serious structural weaknesses. These have been exploited by employers in recent years to deny employees the protections promised by the Act. For example, the Act makes it an unfair labor practice for an employer to fire an employee because he or she is trying to organize a union. If an employer violates the law in this manner, however, the employee has no right to take the employer to court. The Act restricts the remedy to an administrative procedure before the NLRB. Moreover, this administrative remedy is limited to reinstatement with backpay. Reinstatement does not occur until long after the organizing drive is over, and backpay is reduced by interim earnings to an average of about $2,000. Thus, an employer can effectively defeat an organizing effort by firing the leaders and write off the minimal penalties as the cost of doing business. Many employers are taking this approach. In 1985, 10,905 employees were discharged in retaliation for union activity, an average of almost three firings per union election. This enforcement system not only fails to protect the right to organize, but also provides a lower standard of protection than that afforded other civil rights. The Civil Rights Act of 1991, for example, allows victims of other civil rights violations to sue for compensatory and punitive damages, preliminary and permanent injunctions and attorneys' fees. But the civil right to organize now receives second class enforcement. The law also fails to protect the right to strike. The Supreme Court has allowed employers to use termination as a weapon against economic strikers. An employer, of course, has the right to resist a strike through legitimate means. This includes keeping the company operating by having supervisors do bargaining unit work, using subcontractors or hiring temporary replacements. These techniques have proven to be sufficient to keep a facility operating during a strike. The Supreme Court, however, in Mackay Radio and Tel. Co. v. NLRB, 304 U.S. 333 (1938), allowed employers to "permanently replace" economic strikers. This extreme measure is not needed to protect employers' legitimate interests; it is, in effect, a license to break a strike by taking away the strikers' jobs. Many employers have taken advantage of this option. The General Accounting Office has estimated that 17 percent of all employers involved in economic strikes have retaliated in this way. To make matters worse, many employees are denied even these inadequate protections. In NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), the Supreme Court held that all managers, even middle managers with no individual bargaining power and no voice in setting company policy, are not "employees" under the NLRA and do not qualify for any of its protections. Congress attempted to correct one of these injustices last term through the Striker Replacement Act (H.R. 5/S. 55). The Act passed the House, but the Senate killed the bill when cloture was defeated, 59 to 41. RECOMMENDED ACTIONS 1) Support the comprehensive reform of all federal labor laws to ensure that employees actually receive the rights and benefits that Congress intended. 2) Support the Striker Replacement Act. See also: AIDS: Mandatory Federal HIV Testing AIDS: HIV-Infected Health Care Workers CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991 CIVIL RIGHTS ENFORCEMENT: Test Score Norming CIVIL RIGHTS ENFORCEMENT: Caps on Damages FREE SPEECH: The Hatch Act FREE SPEECH: Ban on Federal Employee Honoraria GAY RIGHTS: Security Clearances IMMIGRANTS' RIGHTS: Employer Sanctions NATIONAL SECURITY: Security Clearances WOMEN'S RIGHTS: Economic and Pay Equity WOMEN'S RIGHTS: Family and Medical Leave and Child Care -------------------------------------------------- INTERNATIONAL HUMAN RIGHTS INTRODUCTION United States' support for international human rights legitimizes and strengthens the values of civil liberties and civil rights here and throughout the world. In the last 12 years, however, the U.S. government has withheld full support for the development of international law and institutions that are designed to protect human rights around the world, and it has attempted to limit the application of international human rights standards in the United States. Without the active involvement and support of the United States, the international system of human rights protection will never achieve maximum effectiveness in preventing human rights abuses. Nor will the United States be able to be as effective as it could be in promoting human rights unless it accepts the application of international human rights standards in this country. It is in the long term interest of the people of the United States that our government accept and apply international standards in the conduct of domestic and foreign policy. Attention: Department of Justice Department of State United States Mission to the United Nations -------------------------------------------------- International Law > INTERNATIONAL HUMAN RIGHTS CONFORMITY ACT ISSUE In September 1992, the United States ratified the International Covenant on Civil and Political Rights, subject to a number of important reservations. Further action is needed to bring our nation into compliance with the human rights goals set out in the Covenant. BACKGROUND The International Covenant on Civil and Political Rights was formulated in the aftermath of World War II. The Covenant was inspired by the United Nations charter, which placed special emphasis on "universal respect for, and observance of, human rights and fundamental freedom for all." Drawing heavily on the United States' Bill of Rights, the Covenant was adopted by the United Nations in 1966. Today, over 100 nations have become party to the Covenant. President Carter signed the Covenant in 1977, but the United States did not take any more action on it until more than a decade later. On April 2, 1992, the United States Senate consented to ratification of the Covenant, subject to a series of reservations and exceptions that limit U.S. obligations under the Covenant to the existing requirements of U.S. law. In its report on the matter, the Senate Committee on Foreign Relations recognized the need to consider changes in U.S. law, yet recommended that it was more appropriate to conform the disparities between U.S. law and the Covenant through the customary legislative process, which requires the participation and assent of the House of Representatives, as opposed to lawmaking by treaty which rests in the province of the Senate alone. See S. Rep. No. 23, 102d Cong., 2d sess. (1992). The International Human Rights Conformity Act, which will be introduced in the 103rd Congress, responds to the call for further Congressional action in compliance with the Covenant. Specifically, the Act would prohibit the execution of juvenile offenders and pregnant women; adopt international standards of retroactive imposition of lighter penalties; afford compensation for unlawful arrest and for convictions resulting from the prosecutions by federal and state authorities and require the segregation of juvenile from adult offenders and of the convicted from the accused. The proposed legislation does not purport to address all aspects of U.S. law protecting civil and political rights, nor correct every respect in which U.S. law fails to conform to international standards of human rights. However, this Act, in addition to providing greater human rights protection for Americans, would signal to the world that the United States recognizes the applicability of international human rights standards to itself. Thus, adherence to the Covenant, by way of the International Human Rights Conformity Act, would enhance the United States' ability to shape and protect standards of human rights worldwide. RECOMMENDED ACTION Support the International Human Rights Conformity Act and seek its early enactment. -------------------------------------------------- International Law > RATIFICATION OF TREATIES ISSUE The United States has failed to ratify or sign numerous international human rights treaties. The absence of our imprimatur renders the treaties less effective and deprives the American people of important human rights protections. BACKGROUND During the Bush Administration the Senate consented to the ratification of the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment. The ratification process will be complete after Congress passes implementing legislation. In September 1992 the United States ratified the International Covenant on Civil and Political Rights. Both treaties were accepted subject to a long list of reservations, declarations and understandings which limit the acceptance of these international obligations, especially where they provide for broader rights than existing U.S. law. Four other significant international human rights treaties have been pending in the Senate for more than a decade without action. They are: the International Covenant on Economic, Social and Cultural Rights; the American Convention on Human Rights; the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women. The last comprehensive hearings on international human rights treaties took place in November 1979 in the Senate Foreign Relations Committee. Neither the Reagan nor Bush Administrations sought the ratification of these four treaties. Finally, the United States has yet to sign the Convention on the Rights of the Child. This Convention was promulgated by the U.N. General Assembly in December 1990. Nor has the United States signed the Optional Protocol to the International Covenant on Civil and Political Rights providing for the right of individual petition. These treaties create the institutional and substantive framework of the international system for the protection of human rights that has come into being since World War II. It has taken the United States decades to reach the point of tentatively accepting the Covenant on Civil and Political Rights and then only with a package of limitations that undermine our commitment to international human rights standards. While some reservations, declarations or understandings may be required, there is no justification for the limitations that have accompanied the ratification of the Convention Against Torture and the Covenant on Civil and Political Rights. Full United States participation in these treaties is essential to their effectiveness. These treaties embody human rights standards that should be available to protect all persons in the United States. These standards should be enforceable by the courts and should govern the conduct of the Executive Branch. RECOMMENDED ACTIONS 1) Seek the removal of many of the reservations, declarations and understandings now attached to the Senate's consent to the ratification of the International Covenant on Civil and Political Rights and sign the Optional Protocol providing for the right of individual petition. 2) Seek removal of the reservations, declarations and understandings attached to the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, and urge the Senate to give its consent to the ratification of that Convention and the other international human rights treaties now pending before it. 3) Sign the Convention on the Rights of the Child and transmit it to the Senate for its Consent. -------------------------------------------------- International Law > ABDUCTION OF FOREIGN NATIONALS ISSUE The Bush Administration engaged in the kidnapping of foreign nationals outside the United States in violation of international law and extradition treaties, and took the position that the Bill of Rights does not apply to extraterritorial arrests, searches and seizures. BACKGROUND In 1989, then Deputy Attorney General William Barr authored a secret legal opinion asserting that the Federal Bureau of Investigation could legally arrest fugitives overseas without the permission of the host country. This was followed by the kidnapping of two Mexican citizens who were then handed over to U.S. agents and put on trial here for a crime committed in Mexico. The Mexican government filed formal diplomatic protests regarding the incidents involving its nationals, asserting that the abductions violated the extradition treaty between the two countries and demanding their repatriation. In 1992, the Supreme Court upheld the legality of these abductions. United States v. Alvarez-Machain, 60 U.S.L.W. 4523 (1992). Instead of affirming the importance of fundamental constitutional constraints, the Bush Administration instead took the position that the Fourth Amendment does not apply to searches and seizures by U.S. agents overseas. In 1990, the Supreme Court agreed, holding that the Fourth Amendment does not apply to searches and seizures by U.S. agents of a non-resident alien's property located outside the United States, even though the alien was in the United States facing U.S. criminal charges at the time of the search. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The Alvarez decision was met with shock and incredulity both within the United States and abroad. According to the State Department, "[m]any [foreign] governments have expressed outrage that the United States believes it has the right to decide unilaterally" to enter their territory and abduct one of their nationals." Numerous countries have voiced objections, including Argentina, Bolivia, Brazil, Chile, Paraguay, Uruguay, Colombia, Jamaica, and Canada. RECOMMENDED ACTIONS 1) Rescind the Barr legal opinion that authorizes international kidnappings. 2) Issue an Executive Order that: first, bars all U.S. government agencies from participating in or authorizing abductions of foreign nationals abroad, without the prior authorization of the President and the express consent of the host government; second, requires agents of the U.S. government who exercise law enforcement powers abroad to conduct arrests, searches and seizures in accordance with all restrictions imposed by the Constitution and laws of the United States; and, third, requires that persons arrested or searched be afforded all protections guaranteed by the Constitution, including the right to counsel, Miranda warnings and Fourth Amendment restrictions on searches and seizures. 3) Support legislation prohibiting the prosecution of any person brought before United States courts in violation of this prohibition on kidnappings. See also: IMMIGRANTS' RIGHTS: Haitian Refugees IMMIGRANTS' RIGHTS: HIV Exclusion NATIONAL SECURITY: Ideological Visa Denials NATIONAL SECURITY: Americans' Right to Travel Abroad PRISONERS' RIGHTS: International Standards PRISONERS' RIGHTS: Monitoring Overcrowding and Human Rights Violations REPRODUCTIVE FREEDOM: International Reproductive Freedom ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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