U.S. Commission on Unalienable Rights Is Launched

On July 8, 2019, the U.S. State Department launched its Commission on Unalienable Rights.[1]

Secretary of State Pompeo’s Remarks

At the launch Secretary of State Michael Pompeo said “the Trump administration has embarked on a foreign policy that takes seriously the founders’ ideas of individual liberty and constitutional government. Those principles have long played a prominent role in our country’s foreign policy, and rightly so. But as that great admirer of the American experiment Alex de Tocqueville noted, democracies have a tendency to lose sight of the big picture in the hurly-burly of everyday affairs. Every once in a while, we need to step back and reflect seriously on where we are, where we’ve been, and whether we’re headed in the right direction, and that’s why I’m pleased to announce today the formation of a Commission on Unalienable Rights.”

The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” (Emphasis added.)

“With the indispensable support of President Ronald Reagan, a human rights revolution toppled the totalitarian regimes of the former Soviet Union. Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.”

“But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like ‘rights’ can be used for good or evil; ‘they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.’ And as Rabbi Jonathan Sacks has observed, the evils of any time and place will be justified in whatever is the dominant discourse of that time and of that place. We must, therefore, be vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.”

“It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.” (Emphasis added.)

 With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy.” (Emphasis added,)

The Secretary hopes that the Commission “will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights? (Emphasis added.)

To put it another way, “the commission’s charge is to point the way toward that more perfect fidelity to our nation’s founding principles. . . .” (Emphasis added.)

Secretary Pompeo’s Prior Wall Street Journal Article[2]

The day before the Department’s launching of the Commission. Secretary Pompeo published an article about the Commission in the Wall Street Journal, in which he made the following comments beyond what he said at the official launch.

“America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.”

“Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.” (Emphasis added.)

He hopes “that its work will generate a serious debate about human rights that extends across party lines and national borders.” It “will address basic questions: What are our fundamental freedoms? Why do we have them? Who or what grants these rights? How do we know if a claim of human rights is true? What happens when rights conflict? Should certain categories of rights be inextricably ‘linked’ to other rights?”

“The human-rights cause once united people from disparate nations and cultures in the effort to secure fundamental freedoms and fight evils like Nazism, communism and apartheid. We have lost that focus today. Rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups.” (Emphasis added.)

Oppressive regimes like Iran and Cuba have taken advantage of this cacophonous call for ‘rights,’ even pretending to be avatars of freedom. No one believed the Soviet call for collective economic and civil rights was really about freedom. But after the Cold War ended, many human-rights advocates adopted the same approach, appealing to contrived rights for political advantage.” (Emphases added.)

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions. Many have embraced and even accelerated the proliferation of rights claims—and all but abandoned serious efforts to protect fundamental freedoms.” (Emphasis added.)

Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” (Emphasis added.)

Announcement of Commission’s Chair

On July 8, the Secretary announced that the Chair of the Commission will be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, among many honors.

Professor Glendon acknowledged this appointment with the following remarks:

 

  • “Secretary, I am deeply grateful for the honor of chairing this new commission, and I wanted to thank you especially for giving a priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators. At the same time, I understand that the mission that you have set us is a challenging one. You’ve asked us to work at the level of principle, not policy, and you’ve asked us to take our bearings from the distinctive rights tradition of the United States of America, a tradition that is grounded in the institutions without which rights would not be possible: constitutional government and the rule of law. I want to assure you, Mr. Secretary, that we will do our very best to carry out your marching orders and to do so in a way that will assist you in your difficult task of transmuting principle into policy.”

Announcement of Nine Other Commission Members

The Secretary also announced the appointment of the following nine additional members of the Commission. (The Commission’s Charter calls for 15 members so there may be an additional five members to be named later.)[3]

Russell Berman. He is the Walter A. Haas Professor in the Humanities at Stanford University, a Senior Fellow at the Hoover Institution and co-chair of its Working Group on Islamism and the International Order. Recently he has written about the reemergence of anti-Semitism and China’s “programmatic efforts to suppress the ethnic identity of the Uighur people” of Islamic faith.

Peter Berkowitz.  He is the Ted and Dianne Taube Senior Fellow at the Hoover Institution and a member of its Military History/Contemporary Conflict Working Group and a member of the State Department’s Policy Planning Staff. He “studies and writes about, among other things, constitutional government, conservatism and progressivism in the United States, liberal education, national security and law, and Middle East politics.”

Paolo Carozza. He is Professor of Law and Political Science at the University of Notre Dame and Director of its Kellogg Institute for International Studies an interdisciplinary, university-wide body “focusing on the themes of democracy and human development.”  His expertise is in the areas of comparative constitutional law, human rights, law and development and international law. From 2006 through 2010 he was a member of the Inter-American Commission on Human Rights, the principle international body for protecting human rights in the Western Hemisphere, and he also has served the Holy See in various capacities.

Hamza Yusuf Hanson. He is an American Islamic scholar, proponent of classical Islamic sciences and founder of Zaytuna College, a Muslim liberal arts college in Berkeley, California. According to The New Yorker Magazine, he is  “perhaps the most influential Islamic scholar in the Western world.” He was born in the U.S. as Mark Hanson and grew up a practicing Greek Orthodox Christian, but at age 19 he read the Qur-an and converted to Islam.

Jacqueline C.  Rivers. She is Lecturer on Sociology at Harvard University. She holds B.A. and Ph. D degrees with honors from Radcliffe College and Harvard and has served as Doctoral Fellow in the Multidisciplinary Program in Inequality and Social Policy of the Harvard’s J. F. Kennedy School of Government and a Graduate Research Fellow of the National Science Foundation. Rivers, an African-American, also is the Executive Director of the Seymour Institute on Black Church and Policy Studies, which seeks to create and promote a philosophical, political and theological framework for a pro-poor, pro-life, pro-family movement within the ecumenical Black Church both domestically and internationally.

Meir Soloveichik. He is an American Orthodox rabbi with a Ph.D. degree in religion from Princeton University. He has written extensively about Jewish thought and life, the relationship between Judaism and Christianity and the limits of interfaith dialogue. In 2012 he gave the opening invocation at the Republican National Convention.

Katrina Lantos Swett. She is the former chair of the U.S. Commission on International Religious Freedom and now the President of the Lantos Foundation for Human Rights, which is named in honor of her father, a Holocaust survivor and former Democratic Congressman. She is married to Richard Swett, former Ambassador to Denmark and former Congressman, and she converted to his faith, The Church of Jesus Christ of Latter-day Saints. She has been an unsuccessful Democratic candidate for the U.S. House of Representatives and Senate.

Christopher Tollefsen. He is the University of South Carolina’s College of Arts and Sciences Distinguished Philosophy Professor with specialization in moral philosophy, natural law ethics, practical ethics and bioethics. He has written many articles for “Public Discourse,” the journal of the Witherspoon Institute, which seeks to promote public understanding of the moral foundations of free societies.  He also is a co-author of Embryo: A Defense of Human Life and the editor of John Paul II’s Contribution to Catholic Bioethics.

David Tse-Chien Pan. He is Professor of German at University of California, Irvine. His research has focused on the problem of aesthetic experience as a mediator of human history in order to understand how history develops through a process of recollection and interpretation that depends on judgment and takes the reception of works of art as its model.

Reactions

Secretary Pompeo’s Wall Street Journal article for the first time really sets forth what has been speculated as the Commission’s true mission: redefinition and narrowing of international human rights.

A senior State Department official, in a report by CBS News, made the same point, perhaps more diplomatically, when he said the Commission will act like a “study group, examining the concept of universal human rights, where those rights come from and the difference between inherent rights and those prescribed by governments. . . . Unalienable rights are granted to everyone, everywhere, at all times. It doesn’t matter if you’re straight or gay, or a man or a woman, or black, white, brown or purple.’”

However, this official said, topics like abortion and gay marriage will not be part of the panel’s agenda. ‘Women’s rights or gay rights or healthcare rights, those are domestic issues.’ At some point gay marriage might be considered one of those, but this is an issue that’s being worked out on a nation-state level.’”

The importance of this Commission from the Trump Administration’s standpoint is underscored by the impressive resumes of its Chairperson and its initial other members. Therefore, advocates for the existing body of international human rights law need to prepare to combat this onslaught.

Amnesty International USA immediately said there was no reason for such a review given the decades-old protections in place and that the use of the word “unalienable” might be a code word to narrow human rights to the Founders’ notions of the late 18th century. Similar thoughts were expressed by the American Civil Liberties Union: “taxpayer resources would be better spent assessing the administration’s failure to meet basic human rights obligations, rather than redefining those rights.”

=======================================

[1] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019); Sullivan & Wong, State Department Creates Advisory Panel on Human Rights, N.Y. Times (July 8, 2019); Reuters, Pompeo Launches Panel to Review Human Rights in U.S. Foreign Policy, N.Y. Times (July 8, 2019)(notes Trump Administration’s U.N. actions against sexual and reproductive health measures); Assoc. Press, Trump Administration Reviews Human Rights’ Role in US Policy, N.Y. Times (July 8, 2019). Previous posts to this blog have discussed this Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019).

[2] Pompeo, Unalienable Human Rights and U.S. foreign Policy, W.S.J. (July 7, 2019).

[3] Another source listed two possible additional members of the Commission: Kiron Skinner and F. Cartwright Weiland. Skinner is the Director of Policy Planning at the State Department and a former Research Fellow at Stanford University’s Hoover Institution and a professor at Carnegie Mellon University. Weiland is a current or former chief speechwriter for Senator John Cornyn and Republican Whip (Rep., TX) and/or Policy Analyst at Texas Conservative Coalition Research Institute. (Ruffini, Mike Pompeo unveils new “Unalienable Rights” commission amid concerns over progressive rollbacks, CBS News (July 8, 2019).)

 

 

 

 

 

 

 

113th Congress Takes Actions on International Religious Freedom

In its waning days the 113th Congress has taken at least three actions regarding international religious freedom.

 New U.S. Ambassador at Large for International Religious Freedom

David N. Saperstein
David N. Saperstein

On December 12th the U.S. Senate by a vote of 62 to 35 confirmed President Obama’s nomination of David N. Saperstein, a prominent Reform rabbi, to be Ambassador at Large for International Religious Freedom, in charge of countering religious persecution around the world.

Saperstein was a member of President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships from 2010 to 2011. He also was a member of the U.S. Commission on International Religious Freedom (the Commission) from 1999 to 2001 and its Chair (1999-2000). For 40 years, Mr. Saperstein has been director of the Religious Action Center of Reform Judaism, lobbying on a wide range of civil rights and social justice issues.

At a confirmation hearing in September, Mr. Saperstein spoke out against religious discrimination in Burma, China, Iran, Iraq, Saudi Arabia and Syria, among other countries. “Even in Western Europe,” he said, “we are witnessing a steady increase in anti-Semitic discourse and violence against Jewish communities.”

The Senate Republican Policy Committee noted that Mr. Saperstein had criticized a ruling in June in which the Supreme Court said that some corporations could deny contraception coverage to their female workers on religious grounds. He expressed dismay at the ruling, which was hailed by conservatives as a victory for religious liberty, and he supported legislation to override the decision, in an effort to protect women’s health.

Amendment of the International Religious Freedom Act of 1998 [1]

On August 8, 2014, H.R. 4028 became Public Law No.: 113-154. It amended the “Findings” section (Section 2(a)(4)) of the 1998 statute to add three words (“desecration of cemeteries”) so that it reads as follows:

  • “The right to freedom of religion is under renewed and, in some cases, increasing assault in many countries around the world. More than one-half of the world’s population lives under regimes that severely restrict or prohibit the freedom of their citizens to study, believe, observe, and freely practice the religious faith of their choice. Religious believers and communities suffer both government-sponsored and government-tolerated violations of their rights to religious freedom. Among the many forms of such violations are state-sponsored slander campaigns, confiscations of property, desecration of cemeteries, surveillance by security police, including by special divisions of “religious police”, severe prohibitions against construction and repair of places of worship, denial of the right to assemble and relegation of religious communities to illegal status through arbitrary registration laws, prohibitions against the pursuit of education or public office, and prohibitions against publishing, distributing, or possessing religious literature and materials.” (Emphasis added.)

The author of this bill, Representative Grace Ming (Dem. NY), said during the House debate, “There are two related problems we seek to address through this legislation. One is the religiously motivated vandalism of cemeteries that occurs with alarming regularity. The second is the building and development over cemeteries in places where there are no communities remaining to protect and look out for the cemeteries.” She added that the bill “works to identify and preserve cemeteries, memorials, and buildings in foreign countries that are associated with the cultural heritage of Americans, and it does much work in areas of the former Soviet Union, where Jewish communities were destroyed by the Holocaust and where power subsequently passed to atheistic, communist regimes.”

Other bills in this Congress were offered to make other amendments to the statute, but they were not adopted, including a bill by Senator Marco Rubio (S. 2675) that would have imposed requirements and restrictions on presidential actions with respect to countries designated by the Commission as “of Particular Concern for Religious Freedom.” He introduced his bill the day after the State Department had issued its annual report on this freedom, and Rubio said, “While I welcome . . . [the Department’s] announcement updating CPC designations, this administration has failed to do so since 2011.” This proposed amendment “encourages the administration to take a firmer stance on religious freedom violators and codifies America’s commitment to advancing religious freedom as a key objective of U.S. foreign policy.”

In December 2014, too late for any legislative action this year, Reps. Joe Pitts (Rep., PA) and Anna Eshoo (Dem., CA) introduced H.R. 5878 (An Act to amend the International Religious Freedom Act of 1998 to further express United States foreign policy with respect to, and to strengthen United States advocacy on behalf of, freedom of religion or belief abroad and individuals persecuted in foreign countries on account of religion or belief, and for other purposes). It would add non-state actors like Boko Haram in Nigeria to the group of bodies the U.S. government can sanction for violating religious freedoms. The bill will be re-introduced in the next Session of Congress.

Reauthorization of the Commission on International Religious Freedom

On December 10thth the House adopted H.R. 5816 re-authorizing the Commission essentially for only another nine months (to September 30, 2015), and on December 15th the Senate added its approval of the bill.

This action reflected the inability of the two chambers to reach agreement on the terms of a lengthier reauthorization. In this context, I was surprised by a statement about this inability from Leonard L. Leo, the Executive Vice President of the Federalist Society for Law & Public Policy Studies and a former member of the Commission (2007-2009) and its Chair (2009-2012). He said that the Commission was formed in 1998 to be a watchdog on the State Department to ensure that it would promote religious freedom.

In July the House passed a reauthorization bill (H.R. 4653) that never passed the Senate. It would have extended the Commission through September 30, 2019, essentially another five years. It also would have (a) required training of foreign service officers on “the relationship between religious freedom and security, and the role of religious freedom in United States foreign policy;” (b) encouraged the Department of State to allow Commission members and staff to have “access to classified information;” and (c) allowed the Commission interns, fellows and volunteers to be paid compensation by “sponsoring private parties” so long as there was no conflict of interest.

During the House debate on this bill, Rep. Chris Smith (Rep., NJ), said that the original statute was passed by “a somewhat supportive Congress but highly reluctant [Bill Clinton] White House.” He lamented that eight countries designated as “Countries of Particular Concern” or CPCs by the Commission had not been similarly designated by the State Department and that the Obama Administration had not enacted sanctions for such designations of other countries.

During another House debate, the one on the previously mentioned “desecration of cemeteries” bill, the same Representative Smith said at a May 22, 2014, hearing he chaired, there had been evidence of “the lack of enforcement and the lack of due diligence on the part of the administration when it comes to the International Religious Freedom Act. Not since 2011 has there been a designation of what we call country of particular concern, CPC status, or the dishonorable status that it conveys ought to be done every year. . . . [despite the Commission’s pointing out] that there are eight [other] countries that ought to be so designated, followed by eight others, including Vietnam, that needed to be added to the list, making a total of 16 countries that are then liable to sanctions.”

In the other chamber Senator Richard Durbin (Dem., Illinois) offered a reauthorization bill (S. 2711) that was not adopted by either chamber. It would have extended the Commission through September 30, 2016, but also would have required annual rotation of its chair and vice chair based on political party affiliation and restricted service in such positions to one term. It also would have required the Ambassador at Large for International Religious Freedom to be notified in advance of all Commission meetings and allowed the Ambassador to attend all meetings as a nonvoting member. Finally it would have required (a) at least six commissioners to approve any commission statement and allow dissenting statements and separate staffs for the two major political parties; and (b) the Commission’s annual report to be issued after the issuance of the annual religious freedom reports by the Department of State.

Conclusion

Congressional criticism of the State Department and the President for their alleged failure to follow every recommendation of the Commission, in my judgment, is uncalled for. I also disagree with any proposed legislation like that of Senator Rubio’s that seeks to impose legislative constraints on the president based upon the Commission’s reports.

The basic reason for this judgment was expressed well by the Commission’s current Chair, Ms. Katrina Lantos Swett, when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President. She said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”

=================================================

[1] Detailed information about bills in Congress can be obtained at www. Congress.gov. A prior post summarized the structure and members of the Commission while others posts have discussed the international law on this subject and some of the Commission’s annual reports. Although I believe that freedom of religion is important for every individual and for nation states, I believe that the Commission’s negative views on the status of that freedom in Cuba for 2011 and 2013 are unjustified.

Leaders of U.S. Commission on International Religious Freedom Criticize U.S. Government for Alleged Failure To Promote Religious Freedom

The top officials of the U.S. Commission on International Religious Freedom –Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett –recently have been entering the public forum to discuss that freedom. A prior post reviewed their recent essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”

The Criticism

Now in the Washington Post they have criticized the U.S. Government for its alleged failure to comply with the requirements of the International Religious Freedom Act of 1998 (“the Act“). They assert that the statute requires all administrations to conduct annual reviews and designations of “countries of particular concern,” defined as those governments engaging in or allowing ‘systematic, ongoing, egregious” violations.’” Unfortunately, they continue, “neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders.”

Now, the Commission leaders say, “a key deadline for action [is] arriving this month, [and] it is time to confront this unwise failure to act.”As a result, they ask Congress to press the executive branch “to apply the International Religious Freedom Act fully and the country designation process decisively.”

Analysis

George and Swett apparently refer to section 402 (b)(1) (A) of the Act, which states:

  • “Not later than September 1 of each year, the President shall review the status of religious freedom in each foreign country to determine whether the government of that country has engaged in or tolerated particularly severe violations of religious freedom in that country during the preceding 12 months or since the date of the last review of that country under this subparagraph, whichever period is longer. The President shall designate each country the government of which has engaged in or tolerated violations described in this subparagraph as a country of particular concern for religious freedom.”

Guidance on this requirement is provided in section 402(b)(1)(B) of the Act, which says that such presidential review “shall be based upon information contained in the latest [State Department} Country Reports on Human Rights Practices, the [State Department’s] Annual Report [on International Religious Freedom], and on any other evidence available and shall take into account any findings or recommendations by the [U.S.] Commission [on International Religious Freedom] with respect to the foreign country.”

Given these statutory provisions, I think George and Swett erroneously say that various administrations have failed to comply with section 402 (b)(1)(A) of the Act. That provision, as I read it, invests the president with the exclusive authority to make the determination of whether another country has “engaged in or tolerated particularly severe violations of religious freedom.”  In so doing, the president determination shall be based on any available evidence, including said reports by the State Department and the Commission.

Moreover, Ms. Swett undercut her and Mr. George’s criticism when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President.

In an interview about whether or not the U.S. should grant a visa to an Indian politician, she said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”