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 26th 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 21st
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 21st
century following the horrifying attacks of September 11, 2001.