Congress Should Investigate Administration’s $100 Million Gift to U.N. from Tax Equalization Fund

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Published on February 15, 2011 by Brett Schaefer

Last year, the United Nations reported that it was holding $179 million owed to the United States from the U.N.’s Tax Equalization Fund (TEF) because the U.S. had failed to instruct the U.N. on how it wished to dispose of those funds. On February 9, 2011, Congress held a vote on legislation instructing the Administration to secure the return of that money from the U.N. In its effort to defeat the legislation, the Administration revealed that it had already allowed the U.N. to use $100 million of the $179 million for U.N. security upgrades that would be paid for entirely by the U.S.

Congress should press the Administration for details about this decision, examine whether the Administration had the authority to approve this transfer, and consider the implications of this decision for current and future efforts by Congress.

Beyond Negligence

The $179 million owed to the U.S. from the TEF[1] had accumulated for years despite the fact that, under U.N. financial rules and regulations, the money should be reimbursed at the end of each fiscal year.[2] In fact, the U.N. had previously observed this rule and reported that a TEF credit had been applied to the U.S. regular budget assessment in 1997.[3] The failure of the U.N. to dispose of the millions owed to the U.S. in subsequent years in the same manner was due only to the fact that the U.S. had failed to instruct the U.N. on how it wished to dispose of those funds.[4]

The State Department has yet to explain why U.S. officials did not seek reimbursement for the TEF credit owed to the U.S. as had been done previously. At best, this failure represents negligence on the part of the State Department with regard to its fiduciary responsibilities.

Since late 2010, congressional offices have been seeking additional information from the State Department about the TEF and the Administration’s intentions for the funds owed the U.S. The issue gained publicity when House Majority Leader Eric Cantor’s (R–VA) “YouCut” Web site included “Obtain Refund of Funds Owed to the U.S. by the U.N. Tax Equalization Fund” as one of three options to cut government spending.[5] It won the “YouCut” vote, and as a result, Representative Ileana Ros-Lehtinen (R–FL) introduced the United Nations Tax Equalization Refund Act of 2011 to seek the return of the TEF funds. Because the legislation was scheduled to be voted on under suspension of the rules, passage required two-thirds of all votes. Despite receiving support from 259 Members, it did not pass.

However, the introduction of the legislation led Esther Brimmer, Assistant Secretary of State for International Organization Affairs, to admit in an interview that the State Department had already given the U.N. permission to use $100 million of the TEF funds for security upgrades. The State Department confirmed this in a February 9 letter to Ros-Lehtinen, stating that the $100 million had been transferred to the U.N. and that the TEF surplus owed to the U.S. was “now approximately $80 million.”[6]

Questions Congress Should Ask

State Department officials have acted unethically—and perhaps illegally—in giving the $100 million in TEF funds to the U.N. To determine the facts, Congress should ask:

• Who gave the U.N. permission to use the $100 million from the TEF, and when did they give it? Under Secretary of State for Management Patrick Kennedy stated, “In this case the United Nations notified the State Department that it intended to use [TEF funds] for security enhancement. Since the money was already in their hands, the U.S. had no objection to the use in the upgrade.”[7] However, the U.N. did not use this money for years because it lacked U.S. authorization to do so. This past practice by the U.N. strongly implies that the State Department gave specific authorization for it to use the funds. Who gave the authorization? When was it given? Why was Congress not immediately informed of the decision?
• Under what legal authority did the State Department justify its decision? The TEF money was originally authorized and appropriated by Congress as part of America’s assessment for the U.N. regular budget. However, the Administration and the U.N. have argued that the security upgrades that the TEF funds are supposed to pay for are solely a host country responsibility. If this is the case, then the TEF-financed security upgrades cannot be part of the U.N. regular budget—at best, they are a voluntary contribution to the U.N. The State Department has yet to identify the legal authority and justification for its decision to authorize the U.N. to use the TEF funds for a purpose different from the purpose for which Congress originally authorized and appropriated the funds.
• What is being paid for with the $100 million? Discussions about further security upgrades at the U.N. have been ongoing for many months, perhaps years. There were major disagreements about what upgrades were necessary, how to implement them most practically, and how to pay for them. Estimates from last fall indicated that the upgrades would cost $50 million.[8] Four months later, the figure has doubled to $100 million with no explanation or justification.
• Who approved the $100 million project, and where are the project development records? The U.N. General Assembly has not approved the TEF-financed security upgrades, and the State Department has yet to provide a detailed project plan to Congress to justify its decision. Under what authority is the U.N. using the TEF money? Who is overseeing the project? Has the plan been subject to independent scrutiny? Has there been a competitive bid process?
• Why is the U.S. paying 100 percent of the cost of the upgrades? The U.S. pays 22 percent of the costs of the $1.8 billion Capital Master Plan (CMP), which includes significant security upgrades. Why are the new upgrades not being included in the CMP? In other words, why did the State Department acquiesce to paying $78 million more than it would have paid if these upgrades had been included as part of the CMP? If the new security upgrades are indeed a host country responsibility, there should be evidence that this principle has been applied elsewhere (for example, Kenya paying 100 percent of the costs for security around U.N. facilities in Nairobi or Ethiopia paying for security around U.N. facilities in Addis Ababa). Moreover, since the host country responsibilities would be limited to areas surrounding the U.N., the State Department should be required to prove that none of the $100 million will go toward security upgrades inside the U.N. building or on the grounds.
• How much oversight will the U.S. have over these funds and how they are spent? The State Department is arguing that, unlike with the CMP, the U.S. should pay 100 percent of the cost of these security upgrades. If these upgrades are a host country responsibility and the U.S. is footing the bill, the U.N. should not be allowed to prevent the U.S. from overseeing the plans and books on project.

More That Congress Can Do

In the aftermath of the State Department’s $100 million gift to the U.N., the State Department is acting as if nothing improper occurred. In response, Congress should:

• Demand full access to or, if necessary, subpoena all relevant documents and communications between State and the U.N. relating to the decision to “repurpose” the TEF money.
• Request a formal legal opinion from the Congressional Research Service on whether the State Department has the authority to let international organizations use funds appropriated by Congress for purposes unrelated to those authorized by Congress or in defiance of congressional instruction.
• Hold hearings on the State Department’s decision to “repurpose” the TEF funds and on the proposed U.N. security upgrades.
• Instruct the Government Accountability Office (GAO) to conduct a formal investigation of the proposed security upgrades to be funded by the $100 million to assess whether they comply with accepted U.S. procedures and past practice of host country governments in paying for security around U.N. facilities.
• Request a GAO report on the how the TEF functions, including an audit of the TEF accounts. GAO should be asked to determine the formula used for the TEF and why the U.S. has been substantially overcharged in recent years, identify deposits made to the TEF and debits drawn from it, examine how TEF rebates to the U.N. member states are determined and how they are applied, determine whether they comprise a subsidy to the regular budget assessments of the member states, and provide recommendations for reforming the TEF, including its possible elimination.

Congress’s Crucial Role

Congress has a role to play in U.S. policy toward international organizations. The Administration’s decision to “repurpose” the TEF funds implies that the State Department believes that, once congressionally authorized and appropriated funds go to international organizations, it no longer has to abide by congressional authorization, instruction, or intent. This has profound implications. If the State Department can “repurpose” funds once they go to an international organization, that authority can be used to circumvent or ignore current or future prohibitions imposed by Congress.

If Congress wishes to retain the power of the purse and its ability to direct how U.S. taxpayer dollars are used, it should not take the Administration’s actions in “repurposing” the $100 million in funds owed to the U.S. from the U.N. Tax Equalization Fund lightly.

Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation and editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).

U.N. Human Rights Council Takes Aim at New Target: United States

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By George Russell

Published November 05, 2010

| FoxNews.com

The United Nations Human Rights Council, a conclave of 47 nations that includes such notorious human rights violators as China, Cuba, Libya and Saudi Arabia, met in Geneva on Friday, to question the United States about its human rights failings.

It heard, among other things, that the U.S. discriminates against Muslims, that its police are barbaric and that it has been holding political prisoners behind bars for years.

Russia urged the U.S. to abolish the death penalty. Cuba and Iran called on Washington to close Guantanamo prison and investigate alleged torture by its troops abroad. Indonesia, the world's most populous Muslim nation, told the U.S. it must better promote religious tolerance. Mexico complained that racial profiling had become a common practice in some U.S. states.

Some of these allegations, and many more, come from Americans themselves — especially from a stridently critical network of U.S. organizations whose input dominates the U.N. digest of submissions from “civil society” that are part of the council’s background reading.

For the first time ever, the U.S. came under the Human Rights Council’s microscope as part of the its centerpiece activity, the “Universal Periodic Review,” a rotating examination of the human rights failings and strong points of every country in the world, from North Korea to Norway, by the council's members.

For two hours, council members got to say whatever they wish, good and ill, about the country that has done the most in the past 40 years to establish human rights as a global theme.

The anticipation was that that ill-wishers were planning to pack the line to the speaker’s podium, with complaints from some Western human rights organizations that Cuba, Venezuela and Iran were seeking to “hijack” the microphone and stack the speaker’s list with U.S. critics. And it appears to some extent they did.

But what really is under review is the gamble by the Obama administration to join the council in the first place, rather than shun it in disdain, as the Bush administration did, along with its predecessor, the U.N. Human Rights Commission, because of its roster of despotic members and unbridled antagonism toward Israel.

The Universal Periodic Review, in which all countries great and small submit to human rights commentary by their peers, is supposed to help install the principle of observing human rights in the farthest reaches of the international community.

But it is also showing signs of becoming, in the U.S. case, a one-sided fiasco, along the lines of such previous toxic human rights extravaganzas as the U.N.’s 2001 “World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance,” and its 2006 follow-up, which turned into orgies of anti-Israeli posturing and helped to lead to the previous U.N. Human Rights Commission crackup.

So who is supposed to benefit from the U.S. submission to the UPR process?

According to Jim Kelly, director of international affairs for the Federalist Society for Law and Public Policy Studies and founder of a blog called Global Governance Watch, the main beneficiaries are likely to be the interest groups that take part in the exercise. “The fact is, they are demanding that the U.S. comply with rights that are already addressed by our own democratic system and laws,” he argues. “They are simply trying to get us to adopt U.N. standards instead of our own. It’s not as if by our participating in the human rights process Cuba is going to clean up its act.”

But according to the U.S. State Department, which led a delegation of high-level American diplomats and government officials to Geneva, the Periodic Review is a major opportunity for Washington to lead the rest of the world by example.

“Our taking the process seriously contributes to the universality” of the human rights process, one State Department official told Fox News. “It’s an important opportunity for us to showcase our willingness to expose ourselves in a transparent way” to human rights criticism.

“For us, upholding the process is very important.”

The same official, however, declared that the “most important” part of the process is “the dialogue with our own citizens.”

That was a reference to the important—and often harshly critical—role being played in the U.S. Universal Periodical Review by American human rights interest groups, or Non-Governmental Organizations (NGOs), also known in U.N. parlance as “stakeholders.”

The Obama administration has gone to elaborate lengths to consult with such groups in advance of the Geneva meeting. The State Department, has led delegations from a variety of government departments (including Labor, Homeland Security, Education and Justice) to consult with such groups in Chicago, Detroit, San Francisco, Harlem, and Albuquerque, according to an official at State.

Those NGOs will also get a chance to “engage” with the U.S. delegation in Geneva at what the State Department calls a “first ever town hall meeting,” after the Human Rights Council, composed of national governments, makes its views known. “Many countries stack the room with NGOs that are government controlled,” the State Department official told Fox News, adding that the U.S. obviously doesn’t.

“We hope that the Periodic Review process will be one that sheds new light on issues,” the official added, including “what we learn from our own NGOs, which we take seriously.”

How seriously the NGOs should be taken is indeed, an important part of the question surrounding the human rights tableau in Geneva. For one thing, 103 submissions by those NGOS about U.S. human rights practices—very broadly defined—are already included in the official documentation of the Universal Periodic Review itself.

In that sense, their contents provide a kind of rough road map to the rhetoric that the U.S. may face in the days—and even years—ahead, because the Universal Periodic Review process will be repeated indefinitely into the future, and is supposed to analyze progress from session to session.

According to a dense summary of the submissions circulated by the U.N. in advance of Friday's meeting, the NGOs offering briefs for this Review run a familiar gamut from the American Bar Association and British-based Amnesty International to such specialized groups as the Navajo Nation Human Rights Commission.

They also include an array of submissions from college legal faculties and their advocacy offshoots; environmental coalitions; and a smattering of other non-American organizations such as the Federation of Cuban Women, based in the Castro dictatorship. (The women’s group objects on human rights grounds to the U.S. embargo against Cuba.)

Even relatively conservative and centrist organizations are represented in submissions by the Heritage Foundation, the Catholic Family and Human Rights Institute, and the Beckett Fund for Religious Liberty.

CLICK HERE FOR THE U.N. SUMMARY OF SUBMISSIONS

Yet despite their apparent diversity, many of the submissions, as summarized briefly in the U.N. document, point to a number of common themes:

--The U.S. needs to sign, ratify and implement a wide number of United Nations-sponsored human rights conventions, whatever reservations various U.S. governments or courts have had to them;

-- All these treaties and conventions should be “self-executing,” meaning that no subsequent U.S. government action should be required for them to go into effect—regardless of the U.S. constitutional separation of powers, and the separation of powers between federal and state governments;

--the U.S. should have national human rights institutions to coordinate and enforce human rights compliance;

--racial, economic and social disparities are still endemic in the U.S. despite its own civil rights laws, and need to be eliminated to meet “international standards” embodied in U.N. treaties. Amnesty International, for example, charges that “racial disparities continue to exist at every stage [U.S.] in the criminal justice system,” and calls for laws to bar “racial profiling in law enforcement.”

The Center for Human Rights and Global Justice, an offshoot of New York University’s law school, goes further, and argues that since 9/11, “the U.S. has institutionalized discriminatory profiling against members of Muslim, Arab, South Asian and Middle-Eastern communities.” The organization calls for federal laws against profiling “on all grounds, with no exceptions for national security and an in-depth audit of government databases/watchlists.”

--barbaric treatment of citizens by U.S. police is allegedly rife. Again according to Amnesty, U.S. police and custody officials “are rarely prosecuted for abuses,” prison conditions “remain harsh in many states,” and “electroshock weapons are widely used against individuals who do not pose a serious threat, including children, the elderly and people under the influence of drink or drugs.”

--U.S. social conditions are dismal. One submission claims, according to the U.N. summary, that 30% of the U.S. population “lacks an adequate income to meet basic needs,” while another notes that “there is an unequal access in the U.S. to basic amenities such as adequate food, shelter, work, healthcare and education. There is also a lack of affordable housing, job shortages and income insecurity, particularly among minorities and women.”

-- native peoples on American soil are badly neglected and need the protection of international treaties, and the U.S. treats immigrants and asylum-seekers badly. At least one organization recommends a ban on deporting indigenous peoples from anywhere in the Americas.

The sheer welter and volume of accusations, recriminations and prescriptions aimed at the U.S. that are embedded in the U.N. summary, however, obscures one important fact—an extraordinary number of them, Fox News has discovered, come from just a single source out of the 103 submissions cited in the U.N. document.

Indeed, no fewer than 60 of 162 footnote citations in the summary—37 percent of the entire total-- refer to a back-up document from a single organization, known as the U.S. Human Rights Network, or USHRN.

The 60 footnotes often cite other submissions as well, but no other organization contributing in the Human Rights Council summary comes close to USHRN as a source for accusations against U.S. behavior. (The energetic Amnesty International, by contrast, finishes in second place with just 23 footnote citations.)

Which raises the question: what, exactly, is the U.S. Human Rights Network?

According to its 423-page submission to the Geneva meeting—actually, 23 separate position papers bound together with a 15 page “overarching report,” or executive summary, USHRN was formed in 2003 as a “new model for U.S.-based human rights advocacy.”

Its intention is to “raise awareness of the human rights network within the broader social justice movement, to create linkages between traditional human rights and social justice organizations, and to facilitate sharing of information and resources among a broader network of activists.”

USHNR’s website is a little more specific: it is an agglomeration of nearly 300 activist organizations whose ultimate aim, “full U.S. compliance with universal human rights standards—will require the development of a broad-based, democratic movement that is dedicated to the long-term goal of transforming U.S. political culture.”

Funding for the network and its Geneva submission apparently comes from the Human Rights Fund, an umbrella group whose steering committee of philanthropies include the Ford Foundation, George Soros’ Open Society Institute, the Overbrook Foundation and an anonymous donor.

Among the network’s membership are some prominent and familiar organizations: the American Friends Service Committee, Fordham University Law Center, the left-leaning Institute for Policy Studies, the NAACP Legal Defense Fund, the Robert F. Kennedy Memorial Center for Human Rights.

But most of USHNR’s members are a hodge-podge of relatively unknown and local organizations, like the St. Louis-based Organization for Black Struggle, the Progressive Action Alliance (“a group of progressives in the southeast Texas area”), the National Day Laborer Organizing Network, and many more.

Some of them are also apparently non-American, like Rebuild Green, whose own website is entirely in German.

What they apparently share, according to their mammoth Human Rights Council submission, is a militant vision of the U.S. as a malignant force. “In the years since UNHRN’s inception,” the document declares, “constitutional protections for U.S. citizens and non-citizens have diminished, economic conditions for working and poor people in the U.S. have deteriorated, and repression has increased.”

Several of the position papers included in the submission are a lot more militant than that, and also seem to emerge from some radical left-wing time tunnel. One of the papers, entitled “Political Repression—Political Prisoners,” harks back to the 1970s to indict the FBI through Operation COINTELPRO for “maiming, murdering, false prosecutions and frame-ups, destruction and mayhem throughout the country.”

It cites the Feds for targeting such far-left organizations as the Puerto Rican Independence Front, the Black Panther Party, the Weather Underground, the American Indian Movement, the Black Liberation Army, as well as “peace activists and everyone in between,” and says that “many of today’s political prisoners” in the U.S. were jailed indefinitely as a result. That repression has increased, the paper argues since 9/11.

The political repression paper demands an “immediate criminal investigation into the conspiracy,” and also new trials for two now-aged left-wing activists jailed on murder charges, Mumia Abu Jamal and Leonard Peltier.

The repression paper was authored by the National Conference of Black Lawyers and the Malcolm X Center for Self Determination, neither of which are listed among USHRN’s member organizations. It is endorsed by a host of other organizations, however, including at least that is not only a USHRN member, but is also cited in the U.N. summary as the author of a separate submission to the Periodic Review. This seems to indicate that USHRN’s collective viewpoint is being augmented by other, nominally independent contributors to the Review.

Yet another position paper, on “The Continuum of Domestic Repression” in the U.S., asserts that “today, police still routinely make unfounded mass arrests and detentions to keep people off the streets and out of the eye of the media which tends to be accommodating.” It further condemns the use of high-security detention measures against terrorists such as Sayed Fahad Hashmi , a Pakistani-born U.S. citizen who pled guilty this year to conspiracy for providing support to Al Qaeda. Hashmi, the paper says, was held in high-security custody for three years. The paper says such treatment is “typical of how terrorism suspects are being treated in U.S. prisons and courts.”

The “Continuum” paper was submitted by the African American Institute for Policy Studies & Planning, the October 22 Coalition, and the Ida B. Wells Media Institute. None of them are listed on the USHRN website as member organizations.

However, an organization called the Afrikan Amerikan Institute for Policy Studies and Planning, Inc., which calls itself “a volunteer Grassroots, community based think tank created more than 10 years ago,” and is based in Greenville, South Carolina, claims on its website that the Malcolm X Center for Self-Determination, co-author of the other repression paper in the USHRN portfolio, is one of its projects. The Coordinator/President-CEO of the Afrikan Amerikan Institute is Efia Nwangaza, a onetime Green Party candidate for the U.S. Senate.

On its website, the Oct. 22 Coalition gives its full name as “The October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation.” According to its website, its birth “came out of conversations” among a group of radical activists, including a member of the Revolutionary Communist Party. Since 1996, the Coalition has organized national days of protest annually on its name day, and uses a post office box in New York’s East Village as a focal point for organizing. (The October 22 date, the website says, does not have a “significance in its own right.” The protesters wanted a day when “students would be back in school, and before the elections.”)

The USHRN position paper on U.S. labor relations, however, was submitted by much better-known mainstream organizations. Among them: the AFL-CIO, the Teamsters, the United Steelworkers and the Service Employees International Union (SEIU). None are listed as USHRN members.

Among other things, the labor paper points to declining U.S. union membership as a function of discriminatory U.S. labor laws, including the National Labor Relations Act, and declares that “core internationally established labor rights are not adequately protected by state and federal laws that govern the American workplace” and adds that “workers have resorted to international fora to seek redress.”

It says that corporate harassment, threats, unlawful interrogations and retaliatory firings are “standard practice” in U.S. union organizing, and calls on the U.S. to obey “pertinent international instruments” to, among other things, adopt the Employee Free Choice Act, commonly known as “card check,” to ensure all workers get full federal and state labor law protection “regardless of migration status.” It also calls on U.S. governments give broader latitude to allowing public sector labor strikes.

The sheer expanse of the USHRN effort virtually guaranteed it would have a major impact on the U.N.’s summary documentation for the November 5 Periodic Review—and so, apparently, did the Network’s heavy participation in the State Department’s cross-country “consultations” in the lead-up to the review.

In an acknowledgement at the front of the document USHRN executive director Ajamu Baraka, lauds two of his workers for efforts across the country where they “continually held the State Department to its commitments even though corralling federal officials was not part of their job description.”

Baraka himself is no stranger to strenuous efforts on behalf of his causes. A onetime director of Amnesty International USA’s southern regional director and head of its anti-death penalty campaign, he has been described as “a veteran grassroots organizer with roots in the Black Liberation movement, anti-apartheid and Central American solidarity struggles.”

Personally hailed, according to various reports, by then-U.N. Secretary General Kofi Annan, as a human rights activist, Baraka was also listed in May 2000 as an attendee of the first U.N. preparatory committee meeting to lay the groundwork for the Durban World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. He apparently attended as a delegate of the World Peace Council, an organization created in the early days of the Cold War, and which now describes itself as “an anti-imperialist, democratic, independent and non-aligned international movement of mass action.”

George Russell is executive editor of Fox News