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"Rights to Remember"--A Commentary by Prof. Harold Koh


(This essay originally appeared in the Oct 30, 2003, edition of the Economist magazine.)

Rights to Remember
By Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law

How has September 11th changed America's approach to human rights? Dangerously, suggests Harold Hongju Koh, but perhaps only temporarily

I would argue that September 11th ended the euphoria brought on by the fall of the Berlin Wall, the belief that American-led global cooperation 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-defense" 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 emphasized 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 reprioritized "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 labeled "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 invasions 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, authorizes the Defense Department to develop a project to promote something called "total information awareness." Under this program, 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 traveling 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 Naturalization 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 America 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.

Zones and people outside the law

-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 Jose 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 defense 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 "organizing 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 organizations.

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.

Nothing natural about it

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 construe 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 authorization. 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.

The Supreme Court to the rescue?

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 criminalization 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 civilization." 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 civilization." 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 urgent" 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...to 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.


Harold Hongju Koh is professor of international law at Yale Law School, and was assistant secretary of state for human rights in the Clinton administration. This is extracted from the 2003 John Galway Foster lecture delivered in London on October 21st.