How Has 9/11 Changed America's Approach to Human Rights?

Magazine article

By: Harold Hongju Koh

Date: October 30, 2003

Source: Koh, Harold Hongju. "How Has 9/11 Changed America's Approach To Human Rights?" The Economist (October 30, 2003).

About the Author: Harold Hongju Koh was Assistant Secretary of State for Democracy, Human Rights and Labor under President Bill Clinton, starting on November 13, 1998. At the time this article was written, he was a professor of international law at Yale. In 2004, he became dean of the Yale Law School.

INTRODUCTION

The events of September 11, 2001, have often been compared to those of December 7, 1941, when Japanese aircraft attacked the U.S. Naval base at Pearl Harbor, Hawaii. In both cases, the U.S. public was shocked by sudden proof of unsuspected national vulnerability. In both cases, the nation responded by going to war.

During World War II (1939–1945), however, the enemy was a definite group of nation-states with traditional military forces. To fight the war primarily meant pitting armies, navies, and air forces against other armies, navies, and air forces, all easily identified. In what the U.S. government has termed "the war on terror," however, there is no national enemy. The declared foe is a methodology—the use of violence, terror, and intimidation to achieve a desired end—rather than any particular state or group. The United States has instituted a number of policies with possible effects on human rights since 9/11, citing as justification for these policies the peculiar secretiveness and elusiveness of terrorism. Most of these policies have been controversial. Critics have accused the United States of systematically violating human rights in its pursuit of the war on terror.

This primary source is written by American law professor Harold Hongju Koh, a critic of many of post-9/11 policies. Similar views have been expressed by many writers and speakers, but as a Yale University law professor, Koh backs his claims with professional credentials not held by most citizens.

PRIMARY SOURCE

I would argue that September 11th ended the euphoria brought on by the fall of the Berlin Wall, the belief that American-led global co-operation could solve global problems. The American administration responded to the twin-towers tragedy with a sweeping new global strategy: an emerging "Bush doctrine," if you will.

One element of this doctrine is what I call "Achilles and his heel." September 11th brought upon America, as once upon Achilles, a schizophrenic sense of both exceptional power and exceptional vulnerability. Never has a superpower seemed so powerful and so vulnerable at the same time. The Bush doctrine asked: "How can we use our superpower resources to protect our vulnerability?"

The administration's answer has been "homeland security." To preserve American power and prevent future attack, the government has asserted a novel right under international law to disarm through "pre-emptive self-defence" any country that poses a threat. At home it has instituted sweeping strategies of immigration control, security detention, governmental secrecy and information awareness.

The administration has also radically shifted its emphasis on human rights. In 1941, Franklin Delano Roosevelt called the allies to arms by painting a vision of the world we were trying to make: a post-war world of four fundamental freedoms: freedom of speech, freedom of religion, freedom from want, freedom from fear.

This framework foreshadowed the post-war human-rights construct—embedded in the Universal Declaration of Human Rights and subsequent international covenants—that emphasised comprehensive protection of civil and political rights (freedom of speech and religion), economic, social and cultural rights (freedom from want), and freedom from gross violations and persecution (the Refugee Convention, the Genocide Convention and the Torture Convention). But Bush administration officials have now reprioritised "freedom from fear" as the number-one freedom we need to preserve. Freedom from fear has become the obsessive watchword of America's human-rights policy.

Witness five faces of a human-rights policy fixated on freedom from fear. First, closed government and invasions of privacy. Second, scapegoating immigrants and refugees. Third, creating extra-legal zones, most prominently at the naval base at Guantanamo Bay in Cuba. Fourth, creating extra-legal persons, particularly the detainees of American citizenship labelled "enemy combatants." Fifth, a reduced American human-rights presence through the rest of the globe.

The following vignettes illustrate this transformation of human rights.

Closed government and invasion of privacy

Two core tenets of a post-Watergate world had been that our government does not spy on its citizens, and that American citizens should see what our government is doing. But since September 11th, classification of government documents has risen to new heights.

The Patriot Act, passed almost without dissent after September 11th, authorises the Defence Department to develop a project to promote something called "total information awareness." Under this programme, the government may gather huge amounts of information about citizens without proving they have done anything wrong. They can access a citizen's records—whether telephone, financial, rental, internet, medical, educational or library—without showing any involvement with terrorism. Internet service providers may be forced to produce records based solely on FBI declarations that the information is for an anti-terrorism investigation.

Many absurdities follow: the Lawyers Committee for Human Rights, in a study published in September, reports that 20 American peace activists, including nuns and high-school students, were recently flagged as security threats and detained for saying that they were travelling to a rally to protest against military aid to Colombia. The entire high-school wrestling team of Juneau, Alaska, was held up at airports seven times just because one member was the son of a retired Coast Guard officer on the FBI watch-list.

Scapegoating immigrants

After September 11th, 1,200 immigrants were detained, more than 750 on charges based solely on civil immigration violations. The Justice Department's own inspector-general called the attorney-general's enforcement of immigration laws "indiscriminate and haphazard." The Immigration and Naturalisation Service, which formerly had a mandate for humanitarian relief as well as for border protection, has been converted into an arm of the Department of Homeland Security.

The impact on particular groups has been devastating. The number of refugees resettled in Ameica declined from 90,000 a year before September 11th to less than a third that number, 27,000, this year. The Pakistani population of Atlantic County, New Jersey has fallen by half.

The creation of extra-legal zones

Some 660 prisoners from 42 countries are being held in Guantanamo Bay, some for nearly two years. Three children are apparently being detained, including a 13-year-old, several of the detainees are aged over 70, and one claims to be over 100. Courtrooms are being built to try six detainees, including two British subjects who have been declared eligible for trial by military commission. There have been 32 reported suicide attempts. Yet the administration is literally pouring concrete around its detention policy, spending another $25m on buildings in Guantanamo that will increase the detention capacity to 1,100.

The creation of extra-legal persons

In two cases that are quickly working their way to the Supreme Court, Yasser Hamdi and José Padilla are two American citizens on American soil who have been designated as "enemy combatants," and who have been accorded no legal channels to assert their rights.

The racial disparities in the use of the "enemy combatant" label are glaring. Contrast, for example, the treatment of Mr. Hamdi, from Louisiana but of Saudi Arabian ancestry, with that of John Walker Lindh, the famous "American Taliban," who is a white American from a comfortable family in the San Francisco Bay area. Both are American citizens; both were captured in Afghanistan in late 2001 by the Northern Alliance; both were handed over to American forces, who eventually brought them to the United States. But federal prosecutors brought criminal charges against Mr. Lindh, who got an expensive lawyer and eventually plea-bargained to a prison term. Meanwhile, Mr. Hamdi has remained in incommunicado detention, without a lawyer, in a South Carolina military brig for the past 16 months.

The effect on the rest of the world

America's anti-terrorist activities have given cover to many foreign governments who want to use "anti-terrorism" to justify their own crackdowns on human rights. Examples abound. In Indonesia, the army has cited America's use of Guantanamo to propose building an offshore prison camp on Nasi Island to hold suspected terrorists from Aceh. In Australia, Parliament passed laws mandating the forcible transfer of refugees seeking entry to detention facilities in Nauru, where children as young as three years old are being held, so that Australia does not (in the words of its defence minister) become a "pipeline for terrorists."

In China, Wang Bingzhang, the founder of the pro-democracy magazine China Spring, was recently sentenced to life imprisonment for "organising and leading a terrorist group," the first time, apparently, that the Chinese government has charged a democracy activist with terrorism. In Russia, Vladimir Putin on September 12th 2001 declared that America and Russia "have a common foe" because Osama bin Laden's people are connected to events in Chechnya. Within months the American government had added three Chechen groups to its list of foreign terrorist organisations.

In Egypt, the government extended for another three years its emergency law, which allows it to detain suspected national-security threats almost indefinitely without charge, to ban public demonstrations, and to try citizens before military tribunals. President Hosni Mubarak announced that America's parallel policies proved that "we were right from the beginning in using all means, including military tribunals, to combat terrorism."

What's wrong with this picture? Each prong of the Bush doctrine places America in the position of promoting double standards, one for itself, and another for the rest of the world. The emerging doctrine has placed startling pressure upon the structure of human-rights and international law that the United States itself designed and supported since 1948. In a remarkably short time, the United States has moved from being the principal supporter of that system to its most visible outlier.

Around the globe, America's human-rights policy has visibly softened, subsumed under the all-encompassing banner of the "war against terrorism." And at home, the Patriot Act, military commissions, Guantanamo and the indefinite detention of American citizens have placed America in the odd position of condoning deep intrusions by law, even while creating zones and persons outside the law.

At this point, you are surely asking: "Why did this happen?" and "What can we do about it?" People living outside America sometimes suggest that the reason is rooted in the American national culture of unilateralism, parochialism, and an obsession with power. With respect, let me urge you to see it differently. The Bush doctrine, I believe, is less a broad manifestation of American national character than of short-sighted decisions made by a particularly extreme American administration.

Many, if not most, Americans would have supported dealing with September 11th in a different way. Imagine, for example, the Bush administration dealing with the atrocity through the then prevailing multilateralist strategy of using global co-operation to solve global problems. On the day after the attack, George Bush could have flown to New York to stand in solidarity with the world's ambassadors in front of the United Nations.

He could have supported the International Criminal Court as a way of bringing the Osama bin Ladens and Saddam Husseins of the world to justice. He could have refrained from invading Iraq without a second UN resolution and he could have maintained a host of human-rights treaties to signal the need for even greater global solidarity in a time of terror. I am convinced that the American people would have supported him in all those efforts.

So to those who would blame American culture for America's unilateralism, let me remind you that not every American is equally well-placed to promote American unilateralism. In recent years, such individuals as Mr. Bush, Donald Rumsfeld, John Bolton, Jesse Helms, and Justice Antonin Scalia have held particularly strategic positions that enabled them to promote this sea-change in human-rights policy.

But if particular politicians and judges are part of the problem, they are also part of the solution. For, in recent months, American human-rights lawyers have launched multiple efforts to counter these trends, particularly through lawsuits seeking to persuade judges to consider American law in light of universal human-rights principles.

What are the signs of this trend? With each passing day, I see growing resistance to these policies among ordinary Americans. Some promising examples:

• Career bureaucrats have started to challenge the administration's policies for undoing years of hard work.
• Military judges and former federal prosecutors have expressed dismay over military commissions.
• A group of former federal judges filed a brief in the Padilla case challenging the president's detention of American citizens without express congressional authorisation. They were joined in those efforts by two conservative libertarian groups: the Cato Institute and the Rutherford Institute.
• Career diplomats have told me of early retirements by those who refuse to implement what they view as discriminatory visa policies.
• A group of former American diplomats and former American prisoners-of-war have challenged the administration's flouting of the Geneva Conventions before the Supreme Court.
• Librarians and booksellers have joined a bipartisan group of 133 congressional representatives to press for a law, called the Freedom to Read Protection Act, that would shield library and bookstore records from government surveillance.

These grassroots efforts are finally reaching the political actors. The public outcry following the leak of a proposed second Patriot Act has put that legislation on hold. Resolutions opposing the first Patriot Act have passed in three states and 162 municipalities. The House of Representatives has refused to provide funding for the part of the Patriot Act that allows so-called "sneak and peek" searches of private property without prompt notice to the resident. A battle is brewing in Congress over whether parts of the current act should be eliminated in 2005.

Most important, the key cases are finally starting to make their way to the United States Supreme Court. Now you may ask: what influence can a combination of international pressure and protest from ordinary Americans have on such a conservative court?

But recent cases may give hope. For instance, last June in Lawrence v. Texas, the Supreme Court finally overruled its 17-year-old decision in Bowers v. Hardwick, which had permitted states to ban same-sex sodomy among consenting adults. Representing Mary Robinson, the former UN Human Rights High Commissioner, and several other human-rights groups, I had filed an amicus curiae brief urging the court to consider two decades of European human-rights precedent rejecting the criminalisation of same-sex sodomy as a violation of the European Convention's right to privacy.

In a six-to-three vote, Justice Anthony Kennedy wrote, citing our brief, that the rationale of Bowers had been rejected by "values we [Americans] share with a wider civilisation." The court noted that "the right petitioners seek in this case has been accepted as an integral part of human freedom in many other countries" and that "[t]here has been no showing in [the United States] that governmental interest in circumscribing personal choice is somehow more legitimate or urgent."

What this may mean is that when the September 11th cases get to the Supreme Court, American human-rights lawyers can similarly argue that the legality of our policies must be evaluated by "values we [Americans] share with a wider civilisation." Citing Lawrence, human-rights advocates can urge the court to decide whether the rights being asserted by detainees like Mr. Hamdi, Mr. Padilla and those on Guantanamo "have been accepted as an integral part of human freedom in many other countries" and can argue that our government has not demonstrated "that the governmental interest in circumscribing [these freedoms] is somehow more legitimate or ugent" in the United States than in other countries that have seen fit to forgo such legal restrictions.

Whether our Supreme Court will accept these arguments remains unclear. But these cases may well determine whether historians will remember these past two years as a fundamental change, or as only a temporary eclipse, in America's human-rights leadership. I, for one, have neither given up hope, nor accepted as inevitable a 21st-century American human-rights policy that is increasingly at odds with core American and universal values.

In our "Declaration of Independence," Thomas Jefferson wrote: "When in the course of human events, it becomes necessary for one people … o assume among the Power of the Earth, the separate and equal Station to which the Laws of Nature … entitle them, a decent respect to the opinions of mankind requires that they should declare the causes …" Most patriotic Americans, I believe, still think that our human-rights policy should pay "decent respect to the opinions of mankind." As a nation conceived in liberty and dedicated to certain inalienable rights, our country has strong primal instincts to address the world not just in the language of power, but through a combination of power and principle.

In 1759, Benjamin Franklin wrote: "They that can give up essential liberty to obtain a little temporary safety deserve neither." In the months ahead, I believe, we can both obtain our security and preserve our essential liberty, but only so long as we have courage from our courts, commitment from our citizens, and pressure from our foreign allies. Even after September 11th, America can still stand for human rights, but we can get there only with a little help from our friends.

SIGNIFICANCE

There is disagreement over whether U.S. government policy toward human rights has changed since 9/11. The U.S. government and those who support its post-9/11 policies maintain that the U.S. commitment to human rights is unchanged and that all official U.S. actions have been both morally and legally justified. Others have argued that many of the new policies are illegal, immoral, or both, and reflect an increased official disregard of human rights since 9/11. Koh represents the latter school of thought.

Some controversial post-9/11 human rights policies include:

(1) The United States has detained hundreds of persons captured in Afghanistan, Iraq, and other countries since 9/11. Almost all of these prisoners are held in detention centers outside U.S. borders, and only a few have been formally charged with any crime. The most famous of these detention centers is that at the U.S. Naval base at Guantanamo Bay, Cuba. The holding of prisoners for years without charge has been criticized as illegal and unjust. Further, the U.S. government does not categorize the prisoners it captures in the war on terror as prisoners of war and has argued that the protections of the Geneva Conventions do not apply to them. It also has argued that since these prisoners are not U.S. citizens and are not held inside U.S. territory, they are not entitled to rights granted by U.S. domestic law. In Rasul v. Bush (2004), the U.S. Supreme Court ruled that foreign nationals imprisoned at Guantanamo were entitled to challenge their detentions. In response, the U.S. government began reviewing the status of detainees before military tribunals. In February 2005, a federal judge ruled that the tribunals were illegal and that the detainees must be allowed to challenge their detentions in U.S. civilian courts. The case went before the U.S. Supreme Court again in 2006; a ruling was due by the end of June 2006.

(2) The possibility of torturing persons suspected of being terrorists has been widely discussed in the United States since 9/11. Prominent civil rights attorney Alan Dershowitz argued publicly in 2002 that, since torture will inevitably be practiced by the government, it would be best to provide for legalized torture. Also in 2002, a memorandum from the Justice Department to the White House claimed that torture could be used legally on members of the terrorist organization Al Qaeda. In 2003, a Defense Department memorandum declared that the president is not bound by U.S. federal anti-torture law or by the Torture Convention of 1984, an anti-torture treaty signed by the United States. According to the New York Times, an official 2002 memo of the U.S. administration authorized the use of an interrogation technique called "water boarding," in which a suspect is strapped to a board and held under water until they think they are going to be drowned. President George W. Bush has insisted, however, that the United States does not use torture or employ other illegal means of interrogation. "We do not torture," he stated during a 2005 visit to Panama. In 2005, the International Committee of the Red Cross concluded that U.S. interrogation practices at Guantanamo were "tantamount to torture." In February 2006, the United Nations Human Rights Commission demanded that the United States cease the interrogation and force-feeding practices deemed "tantamount to torture" by the Red Cross. In 2005, Craig Murray, the former British Ambassador to Uzbekistan, claimed that U.S. intelligence agencies routinely accept information obtained in Uzbekistan using torture. The U.S. government maintains that it has never approved of the use of torture or other illegal interrogation methods.

(3) In 2005, the Washington Post reported that the Central Intelligence Agency (CIA) was running a network of secret prisons outside the United States. The CIA seemed to acknowledge the existence of such a system of prisons by requesting that the Justice Department conduct a criminal investigation of the source of the information given in the article. Secret imprisonment is illegal in the United States and in most countries allied with it.

(4) The Bush administration has been widely criticized for a secret CIA program to transfer terrorist suspects to foreign countries for interrogation. The practice, called "special rendition," was authorized by a directive signed by President Bush a few days after the 9/11 attacks, according to a March 6, 2005, report in the New York Times. Critics of the program have argued that its purpose is to have suspects tortured in countries where torture is routine, such as Egypt and Jordan.

(5) Increased surveillance of U.S. citizens and others has occurred since 9/11. Most controversially, it was reported by the New York Times in December 2005 that President Bush had authorized eavesdropping on the telephone calls of U.S. citizens and others in the United States without the issuing of warrants. This action has been described as illegal by a number of members of Congress, including Republican Arlen Specter (PA), chairman of the Senate Judiciary Committee. Its legality has been defended by the Bush Administration.

This list of controversial policies could be extended. Many experts and commentators have argued that all U.S. actions in the war on terror have, in fact, been fully legal and fully justified. Others, both in the United States and abroad, have argued that this is not the case, and that some policies, justified as necessary tactics in the war on terror, violate human rights.

FURTHER RESOURCES

Books

Nacos, Brigitte L. Terrorism and Counterterrorism: Understanding Threats and Responses in the Post-9/11 World. New York: Pearson/Longman, 2006.

Schulz, William F. Tainted Legacy: 9/11 and the Ruin of Human Rights. New York: Thunder's Mouth Press/Nation Books, 2003.

Periodicals

Leonnig, Carol. "Judge Rules Detainee Tribunals Illegal." Washington Post (February 1, 2005).

Lewis, Neil A. "Red Cross Finds Detainee Abuse in Guantanamo." New York Times (November 30, 2004).

Priest, Dana. "CIA Holds Terror Suspects in Secret Prisons: Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11." Washington Post (November 2, 2005).

Risen, James, and Eric Lichtblau. "Bush Lets U.S. Spy on Callers Without Courts." New York Times (December 16, 2005).