Yesterday the second iteration of President Trump’s “Travel Ban” Executive Order was slated to come into force. The evening prior, a federal judge halted its implementation, citing its “purpose to disfavor a particular religion.” The nationwide ruling, issued by a second federal judge, does not block the full order—it only applies to the section that banned travel from six Muslim-majority countries.

There are reasons to believe that, even without the “Travel Ban” in effect, bureaus within the Department of Homeland Security (DHS) are restricting entry to non-citizens (and some citizens), sometimes on religious grounds. This, says the United Nations High Commissioner, violates human rights.

Travel Restrictions Are Ongoing

Numerous Muslims and middle-easterners have been detained and denied entry to the US. Mohammed Ali’s son has been detained twice on flights since the first Travel Ban was issued. He says he was questioned about his religion while in detention. The Nigerian government has reported that several of its citizens were denied entry to the US, despite having valid multiple-entry visas. Northern Nigeria is majority-Muslim, although the country is not among the half-dozen blocked by the Travel Ban. Data bolsters anecdotes about dozens of Muslim Canadians being detained and turned back at the border (as well as an Egyptian-Canadian band traveling to the US for the South by Southwest Music festival).  

Statistics from Canada show that the US is turning away visitors from many nations at a 6% higher rate than in 2016, despite travel across the border having dropped.

Silence from DHS Contractors

Implementing enhanced screening and background checks requires DHS bureaus to use an array of technologies, tools and services. These are provided by private sector contractors. The DHS dispenses billions of dollars each year in private contracts.

NomoGaia reached out to 57 of the largest private contractors to DHS between February 6 and March 16, requesting information on how these companies had ensured that their goods and services were not at risk of being used to violate human rights. Of those 57, none described any processes in place for conducting “human rights due diligence.” Only nine replied at all:

• UPS, which provides transportation and logistics to DHS, asked to be excluded from the study
• BAE (a defense and security company), Nestle (which supplies water to DHS) and Sprint (a telecommunications and IT company) said they would get back to us but did not
• Microsoft (an IT, data-collection and technology) pointed us to public documents regarding their opposition to the ban for its impacts on employees but not to documents addressing potential human rights implications of their government contract work
• PAE (a surveillance and security firm), CACI (an IT and intelligence company that also provides interrogation services) and Northrop Grumman (a technology and intelligence company) declined to comment as a matter of “policy”
• Battelle didn’t actually reply to our emails but invited us to fill in a survey about the effectiveness of their client communications. Coincidentally, the survey benchmarked Battelle against several other government contractors NomoGaia had contacted during research. There was no opportunity to seek further feedback at the end of the survey.

These non-responses are important from a human rights standpoint. As companies that help the US government implement its policies, they need to evaluate human rights risks. Their failure to respond brings the credibility of their policies into question, as well as their concern for racial and ethnic equality.

A Very Brief History of Corporate Complicity in State-Sponsored Human Rights Abuse

Historically, such business links have been damning for companies. General Motors was the single largest employer of black South Africans during the Apartheid era before pulling out of the country in 1986 under pressure from human rights groups. As recently as 2012, GM was making payments to South African claimants who accused the company of complicity in the human rights abuses of the Apartheid regime.

IBM, one of the largest contractors to DHS (and one that did not reply to NomoGaia’s information requests) has also faced lawsuits and reputational backlash for its activities in Apartheid South Africa. Its Apartheid suit was dropped in 2016 after the Supreme Court questioned whether non-citizens could press charges for human rights violations that occurred off of US soil. Those dismissal grounds would not necessarily be applicable for companies working with a US department on US soil.

Other human rights lawsuits against IBM, for its role in the Holocaust, have generated ongoing criticisms. The company provided software to the Nazi regime which was used to identify Jews for slaughter (the numbers tattooed on victims were generated by IBM technology).

IBM’s services to the Nazi regime initially provided a census function, identifying relevant populations and targeting them for deportation. These services are not unlike services provided to DHS for identifying deportation targets.

Corporate Standards Not Being Implemented

This is notable, because IBM’s human rights policy requires it to conduct “due diligence” of its operations to ensure that it does not violate human rights. Its policy reads as follows: “Underpinning our corporate responsibility standards and practices is our dedication to respect human rights. IBM’s stance on human rights is informed by international standards, including the UN Guiding Principles on Business and Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, and the UN Universal Declaration of Human Rights.” The UN Guiding Principles explicitly require IBM to “know and show” how its operations affect human rights.

Out of the 57 contractors contacted, 44 of the contractors had policies in place requiring the company to operate with respect for fundamental human rights. Of those, 16 required the company to conduct assessments of its business operations to ensure that its activities did not cause, contribute to or benefit from human rights violations. (All the contractors, human rights policies, and communications with NomoGaia are available on this Google Doc.)

That none are willing (or able) to describe how they are carrying out these assessments is problematic. UPS posited that “given the lack of any correlation between providing transportation and logistics services and ‘assisting in the implementation of the Travel Ban’” it should be removed from this study. However, Ford Motors faced decades of lawsuits for providing South Africa’s Apartheid government with vehicles, expressly for the purpose of transportation and logistics.

It is possible that our notes went unobserved by the right people, but NomoGaia is not alone in non-responses by companies to the Travel Ban. The New Yorker contacted the 10 largest contractors (all on NomoGaia’s list) in January. “Lockheed Martin and Boeing, the biggest government contractors, both declined to comment. Spokespeople for Raytheon, McKesson, and United Technologies also declined to comment. General Dynamics, Northrop Grumman, L-3 Communications, and the Bechtel Group didn’t respond to my e-mails. Only BAE Systems, the tenth-largest contractor, had a comment, and it addressed only a question on how the executive order might impact BAE employees. “I don’t think we’d experience any impact,” a spokesman wrote. “As a defense contractor supporting many military and security agencies most of our employees are citizens and actually many of them hold security clearances.”

BAE systems provided NomoGaia this reply: “I have passed this query to our US Head Office and asked them to respond directly.” No further response was forthcoming.

What Would a Duly Diligent Company Do?

Companies are a major part of government operations in the 21st century. 70% of the world’s largest “economies” are companies (including DHS Prime Contractors HP, SAIC, Verizon, AT&T, Microsoft, Nestle). Anti-poverty activists have argued that companies use this wealth to sway policy decisions in smaller economies. There is a risk, however, that companies refuse to use their leverage to sway policy decisions in larger economies

Microsoft may offer an exception to this rule in the case of the Travel Ban. Although the company would not provide information on whether it had evaluated the risk of being complicit in rights abuses linked to the Travel Ban, it threw its substantial weight behind the State of Washington’s lawsuit against the original ban.

There are political sensitivities around voicing dissent against government policies. President Trump has used formal communications to censure companies that speak out against his proposals, and contractors are naturally reluctant to jeopardize their relationships with the White House, particularly when the US Government is their primary client. Yet, with regard to the Travel Ban, the courts have, to date, been consistently on the side of human rights. Now would be an ideal time for companies to be evaluating their government contracts for human rights risks and using their shared leverage to ensure that they help government agencies uphold human rights.