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And Justice for Few

By William Fisher

NEW YORK, Dec 14, 2010 (IPS) - Poor defendants on death row, immigrants in unfair deportation proceedings, torture victims, domestic violence survivors and victims of racial discrimination - all these groups are consistently being denied access to justice while those responsible for the abuses are protected, according to a new report by the American Civil Liberties Union.

Jamil Dakwar, director of the ACLU Human Rights Programme, told IPS, "Access to justice is a fundamental human right and bedrock tenet of American democratic system - it was even codified by the Universal Declaration of Human Rights, which the U.S. championed 62 years ago."

"Unfortunately, access to the courts and effective remedy have been severely curtailed over the last decade, especially for those who need it most," he said. "It is time for our government and judiciary to recommit to respecting and promoting this essential right."

According to the report, "Slamming the Courthouse Doors", the "actions of the executive, federal legislative, and judicial branches of the United States government have seriously restricted access to justice for victims of civil liberties and human rights violations, and have limited the availability of effective (or, in some cases, any) remedies for these violations."

For example, the report details how individuals convicted of capital crimes who seek to present newly found evidence of their innocence or claims of serious constitutional violations are being denied recourse in the courts.

Federal legislation, most prominently the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and Supreme Court decisions, has greatly limited access to federal review of state court death penalty convictions, the report says. It also charges that victims of rape, assault, religious rights violations and other serious abuses in prison are having their claims thrown out of court because of a restrictive federal law.

Immigrants who may have legitimate claims to remain in the U.S. are unknowingly waiving their opportunity to pursue these claims and are being swiftly deported because of unfair procedures, the report charges.

It also notes that victims of domestic violence are being denied the opportunity to seek civil remedy under the Violence Against Women Act because of recent court decisions.

Similarly, victims of torture and "extraordinary rendition" have been denied their day in court.

The administration of President Barack Obama has sought to extinguish lawsuits brought by torture survivors through use of "judicially-created doctrines such as the so-called 'state secrets' privilege and qualified immunity to dismiss civil suits alleging torture, cruel, inhuman, or degrading treatment, forced disappearance, and arbitrary detention, without consideration on the merits," the report says.

It charges that by invoking the "state secrets" privilege, the Obama administration can not only restrict discovery but can quash an entire lawsuit - without demonstrating the validity of their claim to a judge. Immigrants also are systematically denied access to justice, as they face monumental obstacles to obtaining review of removal orders.

The U.S. government has claimed that there is no right to judicial review of diplomatic assurances when it has sought to transfer individuals to countries known to employ torture.

Federal immigration officials also have used a procedure known as stipulated removal to deport non-U.S. citizens without a hearing before an immigration judge. "There is a lack of meaningful safeguards to ensure people with mental disabilities facing possible deportation from the United States are afforded fair hearings. As a result, legal permanent residents and asylum seekers with a lawful basis for remaining in the United States may have been unfairly deported from the country because their mental disabilities made it impossible for them to effectively present their claims in court," the report says. The ACLU's recommends that Congress amend the habeas-related provisions of AEDPA so that federal courts are more accessible to prisoners asserting claims of constitutional violations. It also urges the creation of and adequate funding for state defender organisations that are independent of the judiciary and that have sufficient resources to provide quality representation to indigent capital defendants.

Congress should pass legislation that creates procedures to prevent the abuse of the state secrets privilege, and the Obama administration should prohibit the reliance on "diplomatic assurances" to deport or otherwise transfer persons from the United States.

The ACLU also urged Congress to enact the End Racial Profiling Act, which would ban racial profiling and provide for government monitoring and documentation of racial profiling.

Frances Boyle, a legal expert familiar with the report, told IPS, "Because of the deliberate U.S. federal court-packing scheme undertaken by the [Ronald] Reagan, [George] Bush Sr. and [George] Bush Jr. administrations, today about 60 percent of U.S. federal judges at all levels - up to and including the U.S. Supreme Court - have been members of the Federalist Society, and/or were vetted by the Federalist Society."

Boyle, a law professor at the University of Illinois, described this organisation as "right wing, racist, bigoted, reactionary, elitist, sexist, warmongering and totalitarian".

For example, he said, almost all of the lawyers involved in the Bush Jr. administration's torture scandal were and still are members of the Federalist Society.

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