UN Special Rapporteur Calls on US to make CT Law and Practice Compliant with International HR Law

The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, issued a statement at the conclusion of his visit to the United States of America. In it he stated that the US needed to ‘bring its counter-terrorism legislation and practices in compliance with international human rights law’.

The section on counter-terrorism is below:

‘Recent terrorist attacks in several parts of the world are painful reminders of how critical a resolute and coordinated response to the scourge of terrorism is needed. However, the fundamental rights of individuals, including the rights to freedom of peaceful assembly and of association, should not be forfeited in the name of this struggle.
I am concerned that US counter-terrorism legislation unduly curtails the right of associations to engage in humanitarian and peace building work abroad. The Antiterrorism and Effective Death Penalty Act (1996), amended by the USA Patriot Act of 2001, prohibits a wide range of support to terrorism but does so in a way that jeopardizes the right to freedom of association in the process. For example, the act imperils the work of associations providing critical peace trainings to actors suspected to be related to terrorism. Similarly it complicates the work of humanitarian organizations in areas where terrorist actors are active. In the same manner grantmakers supporting this type of activities are put at risk of criminal liability.
I believe that these restrictions have disproportionate effects on legitimate civil society organizations, some which may even have been unintended by Congress. I therefore encourage the Government to urgently review the relevant legal stipulations, mindful that “restrictive measures must be the least intrusive means to achieve the desired objective and be limited to the associations falling within the clearly identified aspects characterizing terrorism only. They must not target all civil society associations” (A/HRC/23/39, para. 23).
Furthermore, the Department of Treasury has the authority to list organizations as Specially Designated Global Terrorists and freeze all of their US assets if it has a “reasonable suspicion” that they provide “financial, material or technological support for, or other services to a terrorist group or are “otherwise associate with one”. An administrative procedure exists to challenge the Treasury’s decision, but two federal courts have ruled that this procedure contravenes due process rights.
I note with satisfaction that since 2009, no association has reportedly been prosecuted or closed down under the counter-terrorism framework. However, this does not mean that a future Government will not resume prosecution. In practice, this legislation has had a severe chilling effect on associations willing to provide relief work to vulnerable populations. I therefore urge the authorities to amend this framework so it complies with international human rights norms and standards.
My attention was also drawn to the Partner Vetting System (PVS) and Risk Analysis and Management (RAM), developed by the US Agency for International Development (USAID) and the State Department, whose goal is to prevent terrorists, their supporters or their affiliates from benefitting from funds managed by domestic non-governmental organizations (NGOs). The PVS is currently being tested in five countries (Guatemala, Kenya, Lebanon, the Philippines and Ukraine). While the purpose of this initiative is sound, it is feared by many NGOs that such system will lead local partners to believe that they are used by the US authorities to gather intelligence, and as a consequence will compromise existing and future working relationships with such partners.
Domestic NGOs informed me that this vetting system is in fact not necessary as they already vet local partners by using lists provided by other Government agencies. I therefore call on the authorities to rethink this system, in consultation with domestic NGOs.
The Joint Strategy on Countering Violent Extremism, introduced by the Department of State and USAID in May 2016, aims at preventing the radicalization and recruitment of individuals by violent extremists. Although officially this strategy is not directed towards a particular group of individuals, nor calibrated on the basis of race or religion, I heard repeated reports that this strategy is bound to target mainly members of the Muslim community. As a result, it has the potential to impact adversely on the enjoyment of their rights to freedom of peaceful assembly and of association.
I was also informed that the very effectiveness of the strategy is questionable, as no research has demonstrated that individuals who are more prone of becoming radicalized can be identified. Indeed, the strategy seems highly similar to the UK’s Prevent Program, which has targeted Muslim youth in England and contributed to a sense of discontent by requiring that teachers and others report students who they may deem “at risk” using very broad indicators. It is imperative that any strategy to counter extremism is as narrow as possible, based on scientific research and involves a broad range of civil society organizations in its formulation, implementation and oversight.
Let me add that I salute the US Government for its efforts in working with civil society organizations towards the recent revision of Financial Action Task Force’s Recommendation 8.
Of further concern is the reported surveillance and infiltration by the authorities of civil rights groups and movements such as the Occupy Movement and Black Lives Matter, as well as the Muslim community. I heard in a number of places I visited that federal agents undertake so called “fishing expeditions” whereby agents visit members of the Muslim and African-American communities at their homes or work places, enquiring about their activities, including planned protests. In fact, some cases of “entrapment” by the FBI were reported to me with regard to cases of alleged terrorism.
Such activities are counterproductive in the fight against terrorism, and use resources that could be better spent in fighting real terrorists. Targeting communities based upon racial or religious profiling with a view to allegedly gathering intelligence, creating disruption, seeking informants, and more worryingly, to inciting and enabling members to commit crimes, vilify the groups and movements as a whole, often under the banner of national security. Such pervasive practices inevitably erode the trust and cohesion within communities.
The Department of Justice has issued guidance for officials which prohibits racial profiling, but allows for two broad exceptions in the context of border control and national security. I find this practice troubling as it is discriminatory by nature and casts suspicion on groups of individuals within society.
There is also the issue of the Terrorist Screening Center Database, in which 1 million people are reportedly listed. I was informed by the authorities that religion is not a criteria used for deciding whether an individual should be in the database or not. However, most of the people on the list are reportedly Muslims, and it is allegedly a particularly arduous process to have one’s name removed from the list, sometimes taking years. It also generates mistrust within the Muslim community as individuals speculate about who is on the list.
There is considerable anti-Muslim sentiment in this country at the moment, and in many other places, which is all the more troubling in times of elections. I was heartened to learn that interfaith meetings have taken place in several parts of the country, such as in New Orleans, to build or consolidate understanding between religious communities. I applaud such initiatives which I hope will continue to flourish.
I call on the US Government to bring its counter-terrorism legislation and practices in compliance with international human rights law. In the absence of a national human rights institution tasked with monitoring the fulfillment of the State’s obligations under international human rights law and standards, the Government should consider allowing embedded ombudspersons in all federal agencies to ensure that no human rights violations are committed.
In the alternative, the US could borrow from the UK which has created an independent Counter Terrorism Ombudsman whose role is to monitor compliance with domestic and international law and norms. This is all the more important given the role and influence of the US on other countries when it comes to designing measures to prevent terrorism.
In conclusion, I would like to reiterate my appreciation for the renewed excellent co-operation I received during this visit. I offer these observations and recommendations once again in a spirit of constructive dialogue. I look forward to a continued dialogue with the US Government, and I stand ready to offer technical assistance with a view to consolidating the exercise of the rights to freedom of peaceful assembly and of association in the country.’

The Special Rapporteur’s full statement is available here.