How to Elevate the Status of Human Rights – at Home and Abroad – in a Biden-Harris White House

In these last days of the outgoing administration’s four-year assault on basic international norms, advocates have been issuing detailed recommendations for how the Biden-Harris administration should re-center human rights as a priority in the United States . Human Rights Watch (HRW), for example, has issued, as its very first recommendation, a call to “address human rights at home to project human rights abroad,” noting that Trump administration policies have led other countries to dismiss U.S. critiques as “hypocritical or self-serving” and have also been an “inspiration for abusive regimes.” (They also urge global leadership, including by restoring participation in the United Nations Human Rights Council.) HRW’s detailed recommendations for a domestic human rights agenda foreground tackling poverty, inequality and racial justice. Vanita Gupta, the head of the Leadership Conference on Civil and Human Rights, has similarly indicated in a statement that the Leadership Conference is ready to work with the new administration to “usher in an era where we protect the most vulnerable and ensure that everyone has a seat at the table.” These messages accord with the incoming administration’s top-line message: “restoring American leadership” and its day-one priorities, including to secure jobs and economic recovery for working families and to advance racial equality.

Yet the phrase “human rights” is, so far, almost entirely absent from the Biden-Harris transition website (other than to describe past positions of advisors and appointee-designates, it appears only in a statement marking Transgender Day of Remembrance, to note that transgender rights are human rights, but not as a part of any specific policy goal). Similarly, the Democratic Party Platform – which Elizabeth Warren recently argued was “the most progressive economic and racial justice platform of any general election nominee ever” – explicitly frames only the domestic failure of accountability for police officers in human rights terms (and only once; the phrase is used a number of times to refer to foreign policy and trade policy). It remains to be seen whether the Biden-Harris administration views leadership and the government’s duties towards all Americans (indeed, towards all peoples) through the prism of human rights. It is likewise uncertain whether the parallel crises of the COVID-19 pandemic and the state of the economy, along with the broadening national reckoning with pervasive racism and xenophobia might yet prompt state and local leaders across the country (and not just social movements) to conceptualize governance challenges in human rights terms.

We have a long way to go before each of the guarantees of the Universal Declaration of Human Rights – drafted with U.S. leadership more than 70 years ago – is consistently realized for everyone in the United States. Rebuking Trump-era abandonment of international human rights and truly making these guarantees a reality for tens of millions of people in the United States will take more than the first 100 days – it will even take more than careful appointments and deep rebuilding of respect for rule of law principles across the executive branch. But there are a few key actions that a Biden-Harris administration could take, starting during the transition, to demonstrate their commitment to helping to secure the enjoyment of human rights for all in the United States as well as abroad. Though it may be counterintuitive, baking this commitment into the staffing structure of the White House from day one might well be the most important first step.

Presidential Precedents in Staffing for Human Rights

Fortunately, notwithstanding the repeated failure of presidents in recent decades to articulate their vision for domestic justice in human rights terms or to champion formal domestic compliance with international law as a real priority, history  provides precedents that should inform the actions of the Biden-Harris administration in terms of staffing structures and planned Executive Orders to set the White House on a path to lead in this area from day one.

Take, to start, the model proposed by the President’s Commission for the Observance of Human Rights Year 1968, established by Lyndon B. Johnson in Executive Order 11394. The Commission was composed of multiple cabinet members, including the Secretary of State, the Attorney General, the Secretary of Labor, the Secretary of (what was then) Health, Education, and Welfare, the Secretary of Housing and Urban Development and a number of private citizens; it was chaired by Ambassador and former New York Governor W. Averell Harriman.

Johnson had earlier designated 1968 as Human Rights Year, to commemorate the proclamation of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948. In his Presidential Proclamation, Johnson had called on all Government agencies – “federal, state and local” – to “deepen our commitment to the defense of human rights” and “strengthen our efforts for their full and effective realization . . . among our own people.” The Commission was intended to identify how to operationalize this commitment.

Perhaps most importantly for the Biden-Harris administration, the Commission’s 1969 Report found a need for greater coordination on human rights within the federal government and between the federal government and states and localities – and the need for formal structures to secure that coordination. The Commissioners made a total of just three recommendations.

First, the Commission advised the creation of the position of Assistant to the President for Human Rights. The Report stated that designating a high official within the President’s immediate staff, who could coordinate government programs in the human rights field across the executive branch and liaise with Congress, state and local officials, was necessary to advance human rights both domestically and in U.S. foreign policy.

Second, the Commission recommended that departments and agencies with significant impact on the protection or realization of human rights (again, whether domestically or abroad) designate a high-level officer to have policymaking and coordinating responsibilities for human rights.

Third, the Commission recommended that the president champion U.S. ratification of human rights conventions. (In fact, Johnson had been calling for the ratification of more human rights treaties since at least his proclamation designating 1968 as Human Rights Year, saying it would “present the world with another testament to our Nation’s abiding belief in the inherent dignity and worth of the individual person.”)

Unfortunately, these recommendations were not put into place by President Nixon, who received the Commission’s final report. Indeed, they have never been fully implemented. The Commission also published a 234-page book analyzing U.S. compliance with the Universal Declaration of Human Rights, article by article, with multiple submissions drafted by executive branch agencies.

A “Missed Opportunity” – or Nascent Human Rights Bureaucracy?

Historian Sarah B. Snyder has argued that 1968 was a “missed opportunity” for the United States, and that the effort, overall, had “limited impact.” Yet the Commission’s recommendations were echoed in the development of the human rights bureaucracy in the decades that followed and now speak directly to how the incoming Biden-Harris administration could finally help achieve the vision outlined by Johnson and the Commission: full and effective realization of human rights.

Nearly a decade later, in 1977, President Jimmy Carter tasked an ad hoc Inter-Agency Group on Human Rights and Foreign Assistance with reviewing U.S. policy with respect to human rights. The Inter-Agency Group (which came to be known as the Christopher Committee, after its Chair, Warren Christopher) was formed after  years of congressional hearings and legislation, led in particular by Congressman Donald M. Fraser, throughout the 1970s and the corresponding development of a modest human rights bureaucracy within the Department of State (initially stunted, according to historian Barbara Keys, due to the intransigence of Secretary of State Henry Kissinger, but then expanded during the Carter administration).

The Inter-Agency Group delivered its review in August 1977, focusing exclusively on foreign policy. Thereafter, in 1978, Carter issued a Presidential Directive setting the “promotion of the observance of human rights” as a “major objective of U.S. foreign policy”; the same Inter-Agency Group was then charged with reporting periodically to the National Security Council (NSC) actions taken or recommended pursuant to the Directive. The State Department took the lead in implementing the Directive, and while Secretary of State Cyrus Vance sought to coordinate the “fullest possible support” throughout the executive branch, his vision was focused on coordinating efforts “affecting the promotion of human rights abroad.” Carter also championed the ratification of more human rights treaties.

Notably, the Carter administration also reorganized the White House Domestic Council it had inherited into the Domestic Policy Staff, divided into clusters (rather than just mirroring departments or agencies), such as “Civil Rights and Justice” or “Governmental Reform.” This evolution did not include a formal cluster dedicated to bringing human rights home. While Carter was a champion of human rights and spoke powerfully about U.S. history and domestic affairs in human rights terms, for example, of “black Americans [being] denied even the most basic human rights” and of a “struggle for full human rights for all Americans – black, brown and white, male and female, rich and poor,” as “far from over,” – neither the White House staffing structure nor Carter’s inter-agency process reflected an explicit goal of making domestic policy consistent with U.S. human rights commitments.

Slow Progress toward a Robust – Domestic – Human Rights Agenda

Two decades later, in 1998, President Bill Clinton finally incorporated some aspects of the 1968 Commission’s recommendations through Executive Order 13107. Among other things, the Order set protecting and promoting human rights and fundamental freedoms as the “policy and practice” of the United States. The Order directed all executive departments and agencies to take action to respect and implement U.S. human rights obligations “fully,” including by each designating a single contact officer charged with coordination and implementation. The Order also created an Interagency Working Group on Human Rights Treaties (limited to treaties but ignoring customary international law) and mandated that all executive agencies cooperate with it.

The Working Group was chaired by the National Security Advisor and consisted of representatives at the Assistant Secretary level from numerous cabinet agencies, including Departments of State, Justice, Labor, Defense, the Joint Chiefs, and any others designated by the Chair. The Working Group had a substantial mandate, including coordination of reports and responses to the United Nations in connection with U.S. compliance with its human rights treaty obligations, but also reviewing all administration legislative proposals for conformity with human rights obligations, developing mechanisms for monitoring state and local compliance with the same, and reviewing U.S. reservations to human rights treaties for continued relevance.

The Order and mandate of the Working Group were arguably the high point of a formal recognition that bringing human rights home required commitments reflected in the establishment of a formal staffing structure within the Executive Office of the President. (Clinton also secured the ratification of several human rights treaties.) That said, nothing in the Clinton Administration’s Order cross-referenced the work of the Domestic Policy Council (DPC), which had been created in 1993 by Clinton and comprised of cabinet-level appointees and various other officials from executive departments and agencies to coordinate the domestic policy-making process. Notably, there is no mention of human rights in the order creating the DPC.

Stalled Progress on Making Human Rights a Reality at Home

More recent administrations have done little to prioritize domestic incorporation of human rights through their approach to White House staff structures or interagency coordination. President Bush did not formally revoke Executive Order 13107, but transferred the duties of the Working Group to an NSC Policy Coordination Committee on Democracy, Human Rights, and International Operations in National Security Presidential Directive-1. President Obama did not formally revitalize the Working Group nor re-structure White House engagement with domestic affairs to incorporate human rights priorities. During the Obama Administration, human rights issues were housed within a Multilateral Affairs and Human Rights directorate at the NSC. Like past presidents, the administration’s DPC did not explicitly include human rights as among the focuses of any of its policy teams.

The Trump Administration famously removed “human rights” from the formal remit of the relevant NSC directorate and, according to some commentators, crippled the capacity of the NSC. No administration in recent memory has more conspicuously abandoned human rights in practice, as well as in rhetoric.

Thus, despite the dramatic variations in style and emphasis in recent administrations, presidents have shared a relatively narrow view of the proper realm of human rights: the topic has been thought of and staffed as a feature of foreign – not domestic – policymaking in the Executive Office of the President for the last 20 years. No recent administration has returned to the Johnson-era vision of a White House formally committed to promoting domestic and international human rights – as legally enforceable obligations of government, as individual rights both at home and abroad. But the Biden-Harris administration can and should do just that.

Structuring and Staffing for the Integration of Human Rights in the White House

If the Biden-Harris administration is to reinvigorate the promotion of human rights domestically as well as in foreign policy, the process should start before inauguration day and should be “baked in” through staffing structures and planned Executive Orders. There are three key steps that can be taken by the transition team even before Jan. 20, 2021.

First, the administration should designate senior White House leadership to have an exclusive focus on human rights, consistent with the lead recommendation of the 1968 Commission. Specifically, the Biden-Harris administration should create two new positions: a Deputy Assistant to the President for Domestic Human Rights Policy or a Deputy Director of the DPC for Human Rights and, second, the new position of Deputy National Security Advisor for Human Rights.

The creation of the first new position should involve formally revising the Executive Order establishing the DPC (Executive Order 12859 of 1993) to reflect the creation of the role and its membership on the Council. This revision should also specify that one of the functions of the DPC is to ensure domestic implementation of U.S. human rights obligations.

On the foreign policy and national security side, the designation of the second new human rights position should be reflected in whatever Presidential Policy Directive establishes the contours of the new NSC staff. This revision could likewise explicitly state that one of the functions of the NSC is ensuring U.S. compliance with its international human rights obligations.

To ensure integration of a commitment to mainstreaming human rights throughout the executive branch, these two senior White House officials should co-chair an expanded and re-established Inter-Agency Working Group on Human Rights. They could also, separately, chair meetings of inter-agency policy committees of that Working Group on, respectively, domestic or foreign affairs, and co-chair meetings on cross-cutting issues (COVID-19, migration, etc.). While much of the day-to-day of the Working Group could be accomplished by these policy committees, the co-chairs should also have the power (potentially jointly with the Director of the DPC and the National Security Advisor) to co-convene cabinet department or agency heads for principals meetings when specific needs arise. For example, the Working Group could convene principals to finalize the U.S. report to the United Nations Human Rights Council during the universal periodic review (UPR) of the U.S. human rights record. Ensuring that there is a standing body with expertise to review and complete this report would significantly improve U.S. engagement with the UPR and other U.N. processes.

This proposed structure is preferable to obvious alternatives. For example, it will ensure ability to influence domestic policy better than putting the domestic human rights brief within the NSC or an entity the NSC alone convenes, even if its relevant directorate is reestablished (others have noted that immediately reestablishing a directorate focused on human rights is a quick win for a new administration). Implementing this recommendation would also be more effective than creating a new White House human rights entity or appointee situated outside of existing policy- and decision-making structures, because it will force engagement with human rights into the center of key existing structures.

Second, the incoming Biden-Harris administration should designate a senior-level appointee within each cabinet department and agency (at least at the Assistant Secretary level)  charged with being the focal point for the incorporation of human rights into each entity’s mandate, as recommended by the 1968 Commission. These appointees should represent their department or agency in the regular inter-agency policy committee meetings held by the revamped Inter-Agency Working Group on Human Rights, except when the Inter-Agency Working Group convenes principals. Rather than leaving compliance with human rights to be reflected in the White House staffing structure alone, or only in cabinet departments or agencies with specific human rights offices, this proposal has the advantage of more effectively translating and tailoring an expanded focus on human rights into the day-to-day activities of each department or agency.

Third, the Biden-Harris administration should revise and reissue an updated Executive Order (like Executive Order 13107 of 1998) to reflect the establishment of the structures described above, with a number of additional changes designed to raise the significance of human rights and commit the entire executive branch to making human rights – including at home – a centerpiece of the Biden-Harris administration. Most importantly, an updated Executive Order could make sure human rights are not siloed or sidelined, mandating that any and all inter-agency coordination and policy- or decision-making must engage human rights and incorporate these new senior human rights officials in the policy formation process. In short, a new Executive Order could establish that promoting the observance of human rights is a major objective of both U.S. domestic and foreign policy.

One could also imagine the Working Group issuing public reports on compliance with human rights norms, which could be coordinated with U.S. reporting to U.N. treaty bodies and the UPR. These reports would provide an account of the ways the Biden-Harris administration is mainstreaming human rights into both domestic and foreign policy and how it is working to reverse the backsliding of the Trump administration. It is not too far-fetched to imagine a report like that of the 1968 Commission, authored by cabinet departments and agencies, evaluating how the U.S. stacks up against the Universal Declarations and other core human rights obligations.

Taking Human Rights Obligations Seriously at Home – in Court and in Policy Formation

A revised and reissued Executive Order should also tackle reconciling the disconnect between the country’s formal international law obligations and the widespread view that those obligations have little to say domestically. This view is far too common, not only among the public, congress, and courts, but in the executive branch. For example, State Department officials regularly cite domestic civil rights precedents as evidence of U.S. compliance with international law but only rarely do their counterparts in other departments or agencies cite international precedents to justify positions on civil rights issues. A more robust Executive Order could provide clear guidance to federal law enforcement officials, especially those charged with civil rights enforcement, regarding enforcement of obligations under U.S. treaties and other forms of international law, such as customary international law.

As I have argued elsewhere, at a minimum, the federal government as litigant should inform U.S. courts (especially in cases where U.S. international law obligations and federal constitutional and statutory protections overlap) that courts’ rulings risk putting the United States in breach of international law and, therefore, that courts must interpret the Constitution and laws of the United States in a manner consistent with international law. There are many civil rights statutes that permit the federal government to bring enforcement actions to protect fundamental rights that are covered by U.S. treaty and customary international law obligations. Executive branch officials who enforce civil rights statutes across executive branch agencies could – and should – explicitly incorporate U.S. international obligations into their work. The entire executive branch could also prioritize the hiring of lawyers with international law expertise in relevant positions, such as in both the Civil and Civil Rights Divisions of the Department of Justice.

A new Executive Order could articulate that it is the policy of the United States to pursue such indirect enforcement of international law, especially in litigation where the United States is a party. The Order could also direct cabinet departments and agencies to integrate international law obligations – and train officials and subordinates on how to do so – across the breadth of domestic policy arenas. This revision alone could enable the Biden-Harris administration to mainstream the incorporation of U.S. international law obligations into domestic discussions about basic rights and leave a remarkable human rights legacy in the decisions of the courts.

Alternative Options for Mainstreaming Human Rights in the White House

My recommendations echo similar thinking in a recent Just Security article by Ariana Berengaut and Rob Berschinski and, addressed at greater length, another by Rob Berschinski and Elisa Massimino. However, one concern with their common recommendation of establishing a single individual to act as the human rights coordinator who simultaneously reports to the heads of the NSC, the DPC and the National Economic Council (NEC) is the risk of spreading the influence of the new human rights official too thin and thus diluting their impact. Berschinski and Massimino argue that the cross-pollination of ideas and outcomes with a single coordinator would outweigh the managerial complexity of that coordinator reporting to three senior officials leading three separate policy- and decision-making structures. Whether a new human rights role should be delegated to one or multiple individuals embedded in existing policy structures, as set out above, however, it is clear that, alongside an appropriately revised Executive Order, either could have great impact.

A revised and reissued Executive Order on human rights should also reflect a number of recommendations in the 2008 American Constitution Society for Law and Policy’s (ACS)  Human Rights At Home: Domestic Policy Blueprint for the New Administration, authored by Catherine Powell. Among the key reforms to the Clinton-era Executive Order and Inter-Agency Working Group proposed by the ACS blueprint which should be adopted by the Biden-Harris administration are to (i) expand the list of participating agencies, (ii) enhance follow-up work with United Nations treaty bodies; (iii) formally engage state and local officials, including human rights commissions and other subnational entities; (iv) coordinate a plan to conduct impact studies of pending legislation but also budgets, appropriations and regulations, to ensure compliance with human rights law; (v) engage civil society as partners, not just stakeholders; (vi) include customary international law and all international and regional human rights treaties that bind the U.S.; and (vii) coordinate periodic review of the U.S. record. While addressing a different political moment, much of the analysis underlying the ACS blueprint recommendations is as relevant today as it was in 2008. The key changes proposed would, however, be made far more effective as part of a concerted effort by the Biden-Harris administration to re-prioritize human rights in the White House and across the entire executive branch.

Interestingly, the ACS blueprint also proposed that, separate from a revised Executive Order, the Obama administration create an independent, nonpartisan national human rights commission. This recommendation echoed earlier calls, including by the Leadership Conference on Civil and Human Rights, for a Domestic Human Rights Institution. Evaluating the form this might take could be an early cross-cutting tasking of a Biden-Harris administration Inter-Agency Working Group.

Conclusion

As Berschinski and Massimino argue, many of the most significant challenges the Biden-Harris administration will face are inherently transnational and have a human rights dimension. Addressing these transnational human rights challenges will require creativity as to how the new White House adapts policy- and decision-making structures to inject and coordinate consideration of cross-cutting issues.

For example, domestic immigration reform – including in the asylum system – and international migration – including international refugee protection – will require a coordinated, human rights-centered approach. These issues implicate multiple domestic agencies (the Department of Homeland Security, Department of Justice, and Health and Human Services, among others) and international affairs (particularly but not exclusively the remits of various State Department Bureaus and officials, the Departments of Defense and Homeland Security, as well as several international organizations and key bilateral relationships around the world). As the United States unravels and rebuilds after a four-year assault on the rights of immigrants and refugees, executive and agency action –  to say nothing of legislation – must integrate the consistent domestic implementation and international compliance with human rights at every turn.

In remarks to the 1968 Commission, Johnson argued that “[o]ur greatest Presidents are remembered best for their successes in human rights” and that, in the two previous decades, there had been “significant victories for human rights in the expansion of human opportunity” – including actions to end segregation, the passage of the Civil rights Act, the Voting Rights Act and the Fair Housing Act – but that, “much work remains before us.” It is certainly possible for a Biden-Harris administration to be remembered for remarkable human rights accomplishments. The scope of their human rights legacy will depend, in part, on whether they prioritize human rights from the start – including by staffing the White House and planning a robust Executive Order to center human rights.

Image: WILMINGTON, DE – NOVEMBER 24:  President-elect Joe Biden (C) introduces key foreign policy and national security nominees and appointments at the Queen Theatre on November 24, 2020 in Wilmington, Delaware. From left, the nominees and appointees are Anthony Blinken, nominee for Secretary of State; Jake Sullivan, appointee for National Security Advisor;  Alejandro Mayorkas, nominee for DHS Secretary; President-elect Biden; Avril Haines, nominee for Director of National Intelligence; John Kerry, special envoy on climate change; Vice President-elect Kamala Harris; and Linda Thomas-Greenfield (behind Harris), nominee for U.S. Ambassador to the U.N. (Photo by Mark Makela/Getty Images)

 

About the Author(s)

Ian M. Kysel

Ian M. Kysel is a Visiting Assistant Clinical Professor of Law at Cornell Law School, where he co-directs the Asylum and Convention Against Torture Appellate Clinic. Follow him on Twitter (@ianmkysel)