9/11 and Human Rights

On the morning of September 11, 2001 I was riding in a NJ Transit train bound for Manhattan when my cell phone rang. It was my wife Sally calling from Baltimore; she was watching CNN while getting dressed for work and saw a breaking news alert saying that a plane had crashed into the North Tower of the World Trade Center at 8:46am. She urged me to get off the train and turn around. But I had appointments that morning at the Amnesty International USA offices to interview job candidates.  I told her it was probably just a small plane accident and not to worry. As the train pulled out of Newark NJ station I looked over my right shoulder and saw the black smoke pouring from the crash site into the cerulean September sky and began to wonder whether I had made the right decision.

By the time I made my way from Pennsylvania Station to the AIUSA offices on 26^th street the second plane had crashed into the South Tower and everyone knew that this was no accident. The people who made it into the office were huddled around television sets or staring out of the south-facing windows through which the burning towers were clearly visible. I was standing next to Curt Goering, Deputy Executive Director of AIUSA, looking out of his office window when the South Tower began to collapse in an enormous cloud of dust and smoke. At that moment I had a visceral sensation in the pit of my stomach; I realized that I was witnessing an event in which thousands of people were perishing. These eye-witness images are seared into my memory with devastating intensity. It is the worst thing I have ever seen.

Several days later, on September 14, 2001 I participated in a hastily arranged faculty panel at The College of New Jersey, where I teach philosophy. I titled my remarks “The Impending Moral Slide” and talked about the risk that American policy makers would respond to this ghastly provocation with a “war on terror” in which important moral and legal boundaries would be transgressed. I observed that officials in the Bush administration were already framing these events as “acts of war” rather than as “crimes against humanity” and were preparing for a military response. I speculated that America might be led to disregard the UN Charter and unilaterally invade other states in order to hunt and kill “terrorists”. I speculated that our government might engage in ethnic profiling of Muslims, detain people without charges and trial, suspend habeas corpus, assassinate suspected terrorists, and engage in torture in order to respond to the threat of further devastating attacks. But I argued, perhaps naively, that a moral slide of this kind was neither necessary nor inevitable, and that it was still possible to prevent the USA from sliding into this moral abyss.

We know now, of course, that my fears were well-founded; the moral slide that I warned about did indeed occur. The list of human rights violations, crimes, and abuses that can be laid at the feet of the Bush administration is long and includes: the “disappearance” of suspected terrorists into CIA-run secret prisons, the denial of the right of habeas corpus of detainees, the use of ‘enhanced’ interrogation methods, otherwise known as torture, such as water-boarding, by military interrogators and the CIA,  the indefinite detention without charges or trials of suspected terrorists at Guantánamo, the use of Predator drones to assassinate suspected terrorists, the detention of an American citizen, Jose Padilla, without charges or trial for more than three years, the irregular rendition of a Canadian citizen, Maher Arar, to Syria where he was tortured,  the torture of  Khalid Al Masri in a secret CIA prison, ill-treatment and deaths of detainees held at Abu Gharaib prison in Iraq and Baghram airbase in Afghanistan, and the secret and illegal eavesdropping on American citizens by the National Security Agency in violation of the  Foreign Intelligence Surveillance Act, among others.

Some of these human rights abuses have been the subject of high-level special reports on U.S. human rights violations prepared by the charter-based bodies of the United Nations. The Special Rapporteur for the Mission to the United States of America, Martin Scheinin, identified, "serious situations of incompatibility between international human rights obligations and the counter-terrorism law and practice of the United States. Such situations include the prohibition against torture, or cruel, inhuman or degrading treatment; the right to life; and the right to a fair trial." This report and many others, both by agencies of the United Nations and by private nongovernmental human rights organizations, both in the U.S. and abroad, provides compelling evidence that senior officials in the George W. Bush administration conspired to systematically transgress international human rights obligations, violated US federal law, and authorized the commission of war crimes.

But this is neither the time nor the place to argue this case in detail. Instead I want to share with you the results of a conference I participated in that was organized to address the question whether the moral back-sliding that occurred in the USA produced significant and lasting damage to the overall international human rights regime.  In April 2008 I was invited to participate in a small conference at the University of Pittsburgh that addressed this question. A group of distinguished human rights scholars both from North America and Europe were invited to attend, and to present discussion papers defending a view on this question. Following the conference the participants were invited to revise their discussion papers for inclusion in a book. This is that book: Human Rights in the 21^st Century: Continuity and Change Since 9/11, edited by Michael Goodhart and Anja Mihr. I will begin by describing my own contribution and then discuss those of several of the other authors.

I titled my chapter “Why Human Rights Will Prevail in the War on Terror” and in it I argued that while 9/11 and the reaction to it had indeed produced a spate of serious human rights violations, that the counter-terrorism and security policies of the Bush administration did not delegitimize and undermine the global consensus about human rights, rather, those policies were themselves de-legitimized because they violated human rights. In the end, what was seriously damaged was the credibility of America’s claim to be a champion of human rights.

Allow me to clarify this claim. There is no doubt that the past decade has been characterized by patterns of major human rights violations. The terrorist attacks that took place ten years ago were themselves a crime against humanity – a systematic attack against a civilian population. The epidemic of subsequent suicide bombings in London, Madrid, Bali, Iraq, Afghanistan and elsewhere are also major human rights violations which have taken the lives and maimed thousands of innocent people who were treated as pawns in a political game. So it is unquestionably true that terrorism has been a cause of human rights violations in the past decade. And it is also true that governments have a responsibility to protect their citizens against these kinds of wanton crimes.

However, rather than responding to these violations in a proportionate and lawful fashion, one which affirmed human rights norms and values against those who would flout them, the Bush administration adopted counter-terrorism policies that flew in the face of globally accepted human rights standards. The architects of these policies justified them by the same “ends justify the means” logic that terrorists use. As noted above, there is no question that these policies produced human rights violations and that those officials of the government of the United States who authorized and carried them out have thus far escaped accountability for these crimes. What is questionable, and open to serious debate, is whether this pattern of action and over-reaction has done serious and lasting damage to the human rights paradigm itself, that is, to the global consensus on human rights. 

Although it turned out not to be possible to prevent American policy-makers from back-sliding on their human rights obligations, the “push-back” against Bush’s security and counter-terrorism policies from the global human rights movement, leading international human rights NGOs such as Amnesty International and Human Rights Watch, and domestic civil and human rights NGOs such as the ACLU and Human Rights First, has been vigorous, sustained, and I think largely successful in discrediting, and in some cases, reversing these policies.  The legal academy, both in the United States and elsewhere has responded as well with hundreds of articles in law reviews and the more general scholarly literature condemning the Bush administration’s anti-terrorism policies.

Self-correction also came from a series of important U.S. Supreme Court decisions which rebuked the Bush administration’s Guantanamo detention policies. In four important cases: Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008) the high court rejected the specious arguments put forward by Bush administration lawyers such as David Addington, John Yoo, Jay Bybee, and Alberto Gonzalez, that the inherent powers of the president as commander in chief of the armed forces places him above the law and justifies the suspension of habeas corpus, the violation of the Bill of Rights, the Uniform Code of Military Justice, and international human rights and humanitarian laws to which the United States is a party.

In addition, evidence from polling data that supported my contention that by 2008 public opinion both domestically and abroad, had turned sharply against the policies of the Bush administration, but continued to show strong support for human rights. Public opinion polls conducted in Europe, Asia, Africa, Latin America, and in the United States itself, demonstrate that global public opinion firmly rejected the policies of the Bush administration regarding human rights.  For instance, a poll conducted by the BBC of more than 27,000 people in 25 countries found that a majority believe that torture is not justified even if it is used to obtain information that could save innocent lives from terrorist attacks (World Public Opinion 2006b).  Other polls found that two in three Americans say the United States should change the way it treats detainees at Guantánamo Bay as prescribed by the UN Commission on Human Rights (World Public Opinion 2008a: ;World Public Opinion 2006a), and that a sizable majority of Americas oppose the rendition of suspects to countries that practice torture and reject the argument that suspected terrorists should not have the same due-process rights as U.S. citizens (World Public Opinion 2007b).  Another poll conducted in 2006 showed that a large majority of Americans believe that the U.S. is viewed more negatively by people in other countries as a result of the policies of the Bush administration (World Public Opinion 2007c).  The same poll found that 73% of Americans were somewhat or very worried that the U.S. might be losing the trust and friendship of people in other countries.  This belief was confirmed by another poll in 2007 that found that in 20 of 26 countries surveyed the most common view is that America is having a mainly negative influence on the world.

These polling data, as well are other more recent studies, show that the norms embodied in the contemporary human rights paradigm have not been weakened or delegitimized by their being violated, even by one of the most powerful nations.  Human rights, particularly civil and political rights, function as a shield against tyranny and the abuse of power by governments.  They are designed to thwart systematic or institutionalized oppression by state authorities, and as such, the fact that they are violated or ignored does not undermine their validity as moral and legal norms.  Instead it highlights and reinforces the perception of why the effective protection of human rights is necessary and why the selective application of human rights standards by states must be firmly resisted, even, and perhaps especially, when the state that violates them is a “superpower.” The contemporary international human rights paradigm has proven more robust and resilient than many people feared; in the confrontation between the policies of the government of the United States of America and the contemporary human rights paradigm, the United States lost and human rights won.

Several of the other contributors shared my perspective. Jack Donnelly (University of Denver) argued that while the “war on terror” certainly harmed human rights, the global state of human rights has not changed fundamentally. At the international level of multilateral institutions there is no evidence of decline. Similarly, data on national human rights practices from Freedom House and the Cingranelli-Richards human rights data project show some evidence of decline, particularly in freedom of expression, but it is “modest, uneven, and incomplete” (18). While bad things did happen because of the “war on terror”, Donnelly contends that “it has not been a human rights disaster.”

Michael Goodhart (University of Pittsburgh) who was one of the organizers of the conference and a co-editor of the book, argued that the back-sliding on human rights that took place during the Bush years represented a “reversion to form” of long-running theme in American politics – American exceptionalism. He traces this theme back to the Puritans who believed that (like the Blues Brothers) the colonists were on a mission from God to create a model “city on a hill” that would be an example to other nations. He calls this view “Providential exceptionalism” and argues that it tends to produce foreign policies characterized by a “messianic engagement” with other countries, particularly when America feels itself threatened. 

According to Goodhart, the period between the fall of the Berlin wall (11/9) and the fall of the twin towers (9/11), was a period of significant expansion and consolidation of the international human rights regime. During this period American policy, both under the first President Bush and President Clinton, became more pragmatic and more supportive of multilateralism. But the shock of the 9/11 attacks produced a sharp reversion to the stance of unilateral messianic engagement that had dominated American foreign policy during most of the Cold War. He noted that, “the war on terror” had a clearly redemptive aim as articulated by the second president Bush, namely to rid the world of “evil doers”. He argued that this has been reversed again to some degree by president Obama, who has stopped using the term “war on terror”, and reverted to a more pragmatic approach to foreign policy, but who has at the same time, continued many Bush-era counter-terrorism policies.

The general consensus of the conference, and the overall conclusion of the book, was that the countries of Western Europe and Canada experienced much less back-sliding on human rights than the United States, and that the likely reason for this was the greater degree of the institutionalization and domestication of human rights norms and values into the laws and cultures of these societies. The distinguished Dutch scholar, Peter Baehr (who passed away while this volume was being prepared for print) argued that in light of its perceived vulnerability to Islamic terrorism, the Netherlands did enact several counter-terrorism policies that are on the face of it at odds with human rights. But that it did not go nearly as far down this path as the United States. Similarly, Yan St. Pierre (Universite de Montreal) argued that as a “middle power” Canada can be used as a barometer to measure the impact of attitudes about the trade-offs between national security and human rights. He noted that Canada did enact tougher and more restrictive immigration and border control policies, largely due to criticism from the USA, and also that the government demonstrated “complicity to torture and inaction towards human rights abuses” to an extent that is not in keeping with Canada’s historical stance on human rights. But Canada’s regression was seen as “simply reflecting the stronger policy changes imposed by major powers” (199).

The overall assessment of the editors is that, important exceptions notwithstanding, “the [human rights] regime has survived a major shock intact” (266). Human rights remains the dominant global normative discourse and it has not been displaced by the new discourse on counter-terrorism and national security that 9/11 spawned. States will always be tempted to back-slide on their human rights obligations when threatened, and the experience of the past decade shows that the best way to prevent this from happening is to create “thicker layers of institutionalization” of human rights norms and values within the fabrics of national ethical cultures.  That this process is continuing despite the setbacks of the past decade is the silver-lining behind the dark cloud of fear that obscured our hopes for a more just and peaceful world in the 21^st century following the horrifying attacks of September 11, 2001.