War in the 21st Century

In the George Orwell classic 1984, there is a state of perpetual war between the nations of Oceania, Eurasia and Eastasia. The enemy in the conflict is ambiguous, it could be Eurasia one day, and Eastasia the next. The war has no borders and seems to be taking place everywhere and nowhere at the same time. It is also endless. There are daily news reports of battles and skirmishes but never reports of decisive victories. Meanwhile back at home the citizens are reminded that they are being protected by Big Brother who is constantly tracking their every movement and monitoring their mail and telephone communications. The protagonist, Winston Smith, is part of this system of governmental control; he works for the Ministry of Truth where his job is to rewrite past newspaper articles so that the historical record matches the current party line. He consigns inconvenient truths that do not fit the approved narrative to the “memory hole.”

Sound familiar? It could be a description of the new normal in 2014 where America and its NATO allies are engaged in an endless military struggle against Islamic terrorists in Afghanistan, Pakistan, Iraq, Yemen, Libya, Nigeria, Somalia, Syria and elsewhere. Where the government records every telephone conversation, every fax, every email message, and can track our movements by means of personal digital devices called “smart phones.”  Satellites in space silently survey every corner of the globe and send signals back to secret control centers hidden deep underground beneath nondescript suburban buildings where CIA soldiers direct pilotless drones to rain death down on enemy targets by means of laser-guided missiles.

This state of perpetual war used is to justify psychological and physical control over their populations by keeping them fearful and hateful towards the enemy, while at the same time ensuring that the military-industrial complex and the national surveillance state can continue to siphon billions of dollars from the treasury every year in the name of national defense. In the meanwhile millions of citizens are unemployed, children lack adequate schools, roads and bridges are collapsing, and the provision of essential social services such as ensuring that families have enough to eat or are able to access basic health care are assigned to charities. The legislature is in a perpetual state of conflict between entrenched opposing ideologies with “liberals” insisting that the government grow bigger and “conservatives” insisting that it get smaller.  Polls show that the people are extremely unhappy with the government, but at every election the vote mostly the same politicians back into office. Many people soon become cynical about “politics” and retreat into private pleasures, consoling themselves with alcohol, drugs, gambling, and professional football. Those lucky few who manage to find decent jobs can also entertain themselves by going to strip malls and buying cheap consumer goods made in China.

George Orwell’s dystopian novel was first published in 1949, the same year I was born, only four years after the end of WWII, a war in which an estimated 50 million people died. This war lasted for six years, but it was really a continuation of the WWI which began in 1914 (a century ago), so one can say that the Great World War lasted for 41 years. The year I was born, 1949, also marked the beginning of the Cold War which lasted for another 40 years until 1989. During the Cold War, America and its allies fought an enemy called “communism,” which was not really an enemy so much as it was an ideology that was perceived as a threat to our capitalist economic system.  Since 2001 America has been fighting a “War on Terrorism,” which is not really an enemy so much as it is a set of tactics employed by angry, humiliated men who reject liberal values and lack access to sophisticated weapons.

So, even if one regards the twelve year period between the fall of the Berlin Wall in 1989 and the fall of the Twin Towers in 2001 as a time of “peace” I have lived most all of my 65 years during “wartime.” My own parents, who were born in the 1910’s spent most of their lives during wartime. And it seems likely that my children and other members of the millennial generation, those of you born in the 1980’s and 1990s, will also spend most of your lives during “wartime.”

The historian Margaret McMillian whose work has focused on the causes and effects of WWI, has predicted that instead of WWIII, the 21st century “will be a series of low grade, very nasty wars that will go on and on without clear outcomes, doing dreadful things to civilians in their path.” (New York Times, September 7, 2014, SR 11). Political scientists such as Hedley Bull have been forecasting since the  late 1970s that the international system is evolving into a neo-Medieval pattern in which sovereign territorial nation states no longer possess a monopoly on violence, and political authority is exercised by a variety of violent non-state actors such as gangs, militias, warlords, and terrorist organizations.

In 2014 these predictions are reality. In Nigeria last April Boko Haram kidnapped 250 schoolgirls because they object to secular education. Social media around the world quickly reacted with hashtags of horror, but six months later nobody has rescued them. In Guatemala and Honduras gangs extort and threaten honest citizens who are so afraid they send their children unaccompanied across the US border in hopes of saving them. In Libya rival militias fight over control of Tripoli’s international airport, and Egypt and the U.A.E. send in planes to bomb the ones they don’t like. Russian separatists in eastern Ukraine rebel against a new government in Kiev that leans west, and shoots down an international commercial jetliner with a Russian missile system killing everyone aboard. Russia annexes Crimea and sends its troops across the border to aid the Russian separatists. In Afghanistan thirteen years of NATO military involvement have not eliminated the Taliban. The election that was supposed to set the stage for NATO withdrawal ended up as a fiasco with the charges of rampant voter fraud and election rigging, In Syria, a four year civil war has so far killed 200,000 people, and created 3 million refugees and 6 million IDPs. Israel decides it is time to punish and degrade Hamas in Gaza, so it launches a fifty day assault killing an estimated 2,000 people most of whom are civilians. And finally, for now, over the summer ISIS surged into Northern Iraq and has declared a Islamic Caliphate complete with beheading of infidels whose remains are mounted on crucifixes as a warning to those who would prefer not to convert to their brand of radical Islam.

President Obama was elected in part because he campaigned on a pledge to end the wars in Afghanistan and Iraq. He followed through on his promise to pull US combat forces out of Iraq, but, sobered by the rapid advance and brutality of ISIS, is now is contemplating returning US forces to the region to combat ISIS. His mind focused by the grisly executions of two American journalists, the winner of the Nobel Peace Prize is making the case for more war.

In a speech to the nation on September 10^th 2014, on the eve of the 13^th anniversary of the September 11^th attacks, he offered three reasons, or causus belli, for this renewed war in the Middle East. First, he claimed that “ISIL poses a threat to the people of Iraq and Syria, and the broader Middle East - including American citizens, personnel and facilities.” Second, he said that “these terrorists could pose a growing threat beyond that region - including to the United States.” The third justification was to protect civilians who are being threatened with ethnic cleansing and genocide.

His strategy to degrade and ultimately defeat ISIS involves four points: (1) stepping up airstrikes against ISIL in Iraq and if necessary Syria; (2) increasing intelligence sharing, coordination and support with the Iraqi army and the Kurdish pesh merga mobilizing to counter ISIS in northern and western Iraq and eastern Syria; (3) the US “will redouble our efforts to cut off its funding; improve our intelligence; strengthen our defenses; counter its warped ideology; and stem the flow of foreign fighters into - and out of - the Middle East”. (4) the US will  “continue providing humanitarian assistance to innocent civilians who have been displaced by this terrorist organization,” including Sunni and Shia Muslims who are at grave risk, as well as tens of thousands of Christians and other religious minorities who have been targets of ethnic cleansing and genocide carried out by ISIL.

Of these objectives, the only one that I wholeheartedly support is the last, continuing the military intervention for humanitarian protection purposes. The United Nations Human Rights Council has condemned the abuses committed by ISIL against civilians in northern Iraq in the strongest terms, and has called the brutal persecution of Christian, Yezidi, Turkmen, Shabak, Kaka’e, Sabaeans, and Shia on the basis of their ethnic and religious identities as crimes against humanity. Amnesty International and Human Rights Watch have produced reports that label these crimes as “ethnic cleansing.” And a group of genocide scholars, including myself, have written a letter to the UN Security Council calling these crimes “genocide.” Whichever category of mass atrocity crimes one employs, the acts are clear violations of international criminal law. In my view, people who are threatened with genocide, ethnic cleansing, or crimes against humanity have a right to be rescued by the international community. 

However, concerning the president’s broader strategy to “degrade and ultimately destroy” ISIL, I have some serious doubts and misgivings. While ISIL is certainly a threat to the people of Iraq and Syria, the extent to which it threatens other countries in the region, such as Jordan, Turkey, and Israel has been over-stated. Moreover, there is no evidence that it intends to nor has the capability to carry out terrorist attacks against the USA or Europe. In fact, it seems more likely that mounting US airstrikes against ISIL will make it more rather than less likely that they will contemplate retaliation of this kind. There is no credible evidence that ISIL is planning an attack on the American homeland. Even if it does decide to send some of its fighters who are American or EU citizens to carry out terrorists attacks it is possible to stop them and prevent them from succeeding without going to war against ISIL. Why have we spent billions of dollars on Homeland Security (in additional to national defense, the NSA surveillance programs, the CIA, and other intelligence services) if not to detect and neutralize just such threats? In fact, given the ideology and past behavior of this group, it seems that directing more American airstrikes against them in Iraq and Syria will tend to increase rather than decrease the likelihood that they will decide to try to retaliate against American civilians by dispatching jihadis to travel to Western Europe and North America to carry out terrorist attacks.

The task of pushing ISIL back out of the parts of Iraq it has captured will be formidable, particularly given the fact that it has the support of many of the Sunni tribes in those cities and towns who are more fearful of the Shia militias and the Iraqi Army than they are of ISIL. At least in the case of Iraq, the US has the consent of the government to intervene militarily, and at least one solid ally in the Kurdish Peshmerga forces, so it might be possible to recapture the parts of Iraq that ISIL is now occupying. But the prospects for defeating ISIL in their strongholds in Syria are much dimmer. I have grave doubts about how feasible it is to train and equip the Free Syrian Army to stand up to ISIL in Syria. For the past several years the Obama administration has thought it was a “fantasy” that this fractured and undisciplined force could topple the Assad regime. Why is it now credible to believe that it can fight effectively against both Assad and ISIL?

Many commentators have argued that only way to end the sectarian civil wars in the region is through political negotiations that recognize the legitimate grievances of the Sunni populations of Syria and Iraq. It is not possible to eliminate the threat of Islamic extremism by killing extremists. Unless one addresses the underlying grievances that lead people to support and join extremist groups, we are just playing “whack-a-mole,” or worse, “whack-a-hornet’s-nest.” One cannot resolve grievances born of humiliation and dispossession by killing those who claim to be fighting for those harbor these feelings. Unless we learn this lesson I fear that we will continue to live during wartime.

Morton Winston

American Exceptionalism and the Spider-Man Principle

“With great power there must also come – great responsibility!”

In the aftermath of the 1994 genocide in Rwanda many scholars and policy-makers began to reexamine the concepts of just war and humanitarian intervention with a view to determining whether states have a positive duty to protect people who are being subjected to genocide and ethnic cleansing and other forms of gross human rights violations. The main bar to forceful military intervention to suppress genocide and ethnic cleansing is the Charter of the United Nations which is based on the principle of respect for national sovereignty and does not explicitly recognize humanitarian rescue as one of the grounds for organized military intervention authorized by the Security Council. However, in 2001 an international commission, chaired by Gareth Evans and Mohamed Sahnoun, issued an influential report in which it was argued that there is a need for a new norm of international relations that would place a positive obligation on states to act either alone or in concert to protect innocent people against genocide, ethnic cleansing and other serious imminent human rights catastrophes.

In the context of this debate over the ethics of forceful humanitarian intervention, there was an interesting exchange between Jean Bethke Elshtain and Anthony Burke in which Elshtain, agreeing with the claim that there is a “responsibility to protect” innocent people from serious, widespread, and systematic human rights violations argued that there is also a “presumptive case in favor of the use of armed force by a powerful state or alliance of states who have the means to intervene, to interdict, and to punish in behalf of those who are under assault.”  According to Elshtain, “the burden of this responsibility will be borne disproportionately by the United States, given its unique capability to project power.”  Her argument was that because the United States is a “superpower” with unique military capabilities, it has a greater responsibility than other states to intervene on behalf of people who are threatened with ethnic cleansing or genocide.

President Obama invoked essentially this same argument in his speech last night arguing for a limited, punitive US military strike against Syria as a response to the use of chemical weapons against civilians in the suburbs of Damascus on August 21, 2013,

In response to her argument, Burke accused Elshtain of an “ethical sleight of hand” because she based her argument on the “Spider-Man ethic” under which “The more powerful have greater responsibilities,” for the international protection of human rights. Burke argued that in appealing to this principle she is “brushing aside” the important role of the United Nations and “its capacity for global debate and transparency,” that is, its capacity for open, democratic deliberation. The UN’s deliberative capacity would be by-passed by allowing “coalitions of the willing” to decide among themselves when military intervention was justified. Moreover, he says that ignoring the vital role of the United Nations, and relying on coalitions of powerful states casts the United States in the role of a superhero “with all the absence of moral ambiguity such a metaphor implies.”

In her reply to this charge, Elshtain wrote the following:

With all due respect to Mr. Burke, I do not believe he knows anything about Spider-Man. Any reader of Marvel Comics appreciates that Spider-Man is a tormented superhero and that his life is riddled with moral conflict and ambiguity. Does his loyalty to family and girlfriend take precedence over his duty to protect the innocent from torture and death? How can he be fair to the “domestic” and the “trans-domestic” at the same time? Spider-Man is always in danger of stretching himself too thin; always a bit exhausted; always wondering if he is doing the right thing. I chose Spider-Man rather than, say, Superman precisely because of the perduring conflicts Spidey faces. What a pity that Burke has not familiarized himself with this existential and troubled hero. 

There are several points I should like to make about this exchange. First, Burke seems right in his argument that an appeal to the Spider-Man principle in this context does not by itself settle the question of when, if ever, forcible military intervention by nation states into the territories of other sovereign states in order to prevent or suppress massive human rights violations is morally justified. That a militarily powerful nation such as the United States could have intervened in order to suppress the genocide in Rwanda does not entail that it ought to have intervened. There were other considerations at that time, for instance, the Clinton administration did not want to get embroiled in another African conflict, like Somalia, in which US troops were placed in harm’s way even though there was no vital US national interest at stake. Whether this constitutes a “good excuse” for inaction in Rwanda is another question, but the point here is that there are always going to be other considerations at work. But this is why Elshtain is correct in pointing out that possessing “great power” does not absolve moral agents of moral ambiguity, quite to the contrary, it intensifies their moral quandary.

In the case of humanitarian intervention, no one would seriously expect nations such as Tuvalu or Antiqua to be the first to send its troops into a distant country in order suppress genocide or ethnic cleansing. It is far simpler if you are not very powerful because no one expects you to do very much other than take care of yourself and not harm others. So one might also want to say -- “With little power there comes little responsibility.”

It would also be simpler for Spider-Man if he was a libertarian and did not believe as a matter of principle that he had any positive moral responsibilities of beneficence that he owed to anonymous strangers. If Spider-Man was a libertarian he would mind his own business, probably marry his girlfriend and settle down to a quiet life in the suburbs, displaying his superpowers only as entertainment for children’s birthday parties. His life would be far less complicated if Uncle Ben had told him only that he should not abuse his superpowers, and not also that he should use them to advance the common good. If Spider-Man was not a ‘liberal’ and did not believe that he had positive moral responsibilities of beneficence to come to the aid of suffering humans he would only have to observe negative duties not to use his powers to harm others -- he would not feel obliged to go out of his way to help them when they could use his help. He would not have to go around fighting “evil-doers” all the time. But Spider-Man happens to be an idealist who believes in things like human rights and the rule of law. He believes that his superpowers confer upon him a unique responsibility to protect these values, and that his failing to act on these responsibilities would be wrong.

As Elshtain said, “The United States is itself premised on a set of universal propositions concerning human dignity and equality. There is no conflict in principle between our national identity and universal claims and commitments. The conflict lies elsewhere—between what we affirm and aspire to, what we can effectively do, and what we can responsibly do.”  If the United States believes that it has a moral responsibility to protect and promote freedom and human rights, then its “superpower” status often makes its leaders that they ought to use those powers to protect others from “evil-doers” when they can do so without great cost or risk to the national interests of the United States, and where there are no other “good reasons” why it should not do so.

For instance, it does not seem that the United States regards the lack of UN Security Council authorization for the use of military force to constitute a “good reason” against military intervention in other cases: it used its military powers in Kosovo in 1999, in Afghanistan in 2001, and in Iraq in 2003 without such authorization, and in each of these cases, did so at least in part because of patterns of gross human rights violations in those countries under their previous governments, but also, in part because its leaders also believed that military intervention was in the national interest of the United States. In the first two of these cases, the UN gave these interventions its retrospective blessing -- but not for Iraq, a war that is now widely regarded as the greatest blunder in American foreign policy since Vietnam.  Burke has a point then when he argues that that decision-making by “coalitions of the willing” underpinned by the “idealism and power of the United States,” cannot “match the possibility for greater dialogue, equality, and transparency present in the (admittedly imperfect) United Nations.”  But the deliberative powers of the government of the United States are also imperfect. It's leaders often becomes morally conflicted and wonder whether it is doing the right thing or not doing something it ought to be doing. It sometimes uses its power in ways that cause more harm than good. Being an idealistic superhero (or a superpower) definitely has its downside.

It is not a coincidence that Spider-Man is an American comic book character.While the notion that there is a link between power and moral responsibility has broad intuitive appeal, and the Spider-Man Principle may indeed already have become part of American “folk ethics”, there are some obvious reasons to doubt that this principle is true as it stands; the main ones being that ethical duties do not arise directly from facts, and “can” does not imply “ought”. For instance, it is true that the United States of America can launch a massive nuclear attack that would obliterate Denmark. But it certainly does not follow from the fact that it can do this that it ought to do so. Generalizing from this example, although one has the power to do something does not imply that one ought to do that thing. While correct this logical argument fails to take into account cases in which the prospective agent or agents is already under a moral obligation of some kind to do the thing in question. So, for example (pace Peter Singer), if I have a moral obligation to rescue a drowning child from a shallow pond, and can do so without great cost or risk to myself, then, morally I ought to do it. So, then, if we assume that the United States, like other nations, as a moral obligation to protect innocent people from crimes against humanity, and that it can do so without great cost or risk to itself, then it ought to do so.

This was essentially President Obama's argument in his address last night on Syria. But there is still a problem with this reasoning. The problem is that the agent, in this case the United States, may also be under other moral obligations which would lead to a contrary course of action. Among other things, the US in under an obligation, which is both moral and legal, to obey the international law embodied in the Charter of the United Nations. Attacking Syria without authorization of the UN Security Council when the US is not directly defending itself against an immanent threat, would violate this obligation. This is one powerful counterargument that President Obama did not address last night. This is unfortunate, since then his argument boils down to the dubious claim that the United States, because of it unique military capabilities, may violate international norms in order to enforce them.


References:

1. International Commission on Intervention and State Sovereignty. The Responsibility to Protect. (Ottawa: IDRC, 2001). See also, Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect.” Foreign Affairs 81, no. 6 (2002).
2. Jean Bethke Elshtain. “International Justice as Equal Regard and the Use of Force,” Ethics & International Affairs, 17, no. 2 (2003), pp. 53-64,
3. Anthony Burke. ”Against the New Internationalism,” Ethics & International Affairs 19, no 2 (2005), p. 80.
4. Jean Bethke Elshtain. ”Response to ’Against the New Internationalism’ Against the New Utopianism,” Ethics and International Affairs, 19, no. 2 (2005), p. 93.

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.