“Human Rights: What the Next President Can Do”
What can the next President do to restore American credibility on human rights? Following the lapses of this Administration, there is nowhere to go but up. But if we are to recover our good name, dramatic words must be accompanied by persuasive actions.
Failure to seize this opportunity would be a serious foreign policy loss. No one puts the case more eloquently than a group of former United States diplomats whom I had the privilege to represent in a friend-of-the-court brief before the United States Supreme Court. Their brief argues that prisoners held by the US at Guantanamo should have a right to file habeas corpus petitions to challenge the lawfulness of their detention.
In language penned by former Under Secretary of State William D. Rogers, whose death shortly after the brief was filed I mourn, the diplomats advise:
“It has been the experience of each of us that our most important diplomatic asset has been this nation’s values. Power counts. But this nation’s respect for the rule of law – and in particular our reverence for the fundamental constitutional guarantee of individual freedom from arbitrary government authority – have gone far to earn us the respect and trust which lie at the heart of all cordial relations between nations. …”
“Any hint that America is not all that it claims, or that it is prepared to ignore a ‘non-negotiable demand of human dignity,’ … demeans and weakens this nation’s voice abroad.”
“We have taken it as our duty to so state to this Court. … [F]or this nation, there is no benefit in the exercise of our undoubted power unless it is deployed in the service of fundamental values: democracy, the rule of law, human rights, and due process. To the extent that we are perceived as compromising those values, to that extent will our efforts to promote our interests in the wider world be prejudiced. Such at least is our collective experience.”
How can a new President put their wisdom into action? The following, illustrative policy reversals could go far to regain the respect of the world for our democratic experiment gone astray. Far from compromising our national security, these policies would enhance it by repairing our alliances and by making clear what separates us from our adversaries:
Torture and Mistreatment of Prisoners: The new President should unequivocally renounce, not only torture, but also cruel, inhuman and degrading treatment as defined by international law. The US should withdraw its reservation to the UN Convention against Torture, by which we agreed to ban mistreatment only if it violates the US Constitution – a reservation relied on by this Administration to justify mistreatment of prisoners, so long as it does not “shock the conscience” of some official in Washington. The US should also require the CIA to use only the same interrogation techniques approved for military use in the Army Field Manual.
Accountability: Never again should the FBI be preemptively ordered to close a war crimes file on American torture – as we now learn happened at Guantanamo. Nor should investigations of prisoner abuse be conducted only by the same agency whose conduct is at issue – as was true of military investigations of Abu Ghraib. Nor should investigators look only down and not up the chain of command, as also happened at Abu Ghraib. The next President should order an independent investigation of prisoner abuse at Guantanamo and Abu Ghraib – and of orders given by and the command responsibility of those at the top. Crimes committed at any level should be prosecuted.
Secret Prisons. Nothing comes closer to totalitarianism than secret CIA prisons overseas, where prisoners without names are tortured in cells without numbers, for years on end, without even the Red Cross knowing the locations of the prisons or the identities of the prisoners, let alone having access to visit them. The next President should categorically renounce this affront to the rule of law. Congress should ban it by law.
Kidnapping. Nothing enrages the public in our European allies more than revelations that the CIA, with cooperation from some European intelligence officials but acting outside the law, covertly kidnapped suspected terrorists from Italy and Germany for transport to interrogators in Syria and Egypt, where they were tortured. Italy is now prosecuting more than 20 CIA agents in absentia, while the US all but publicly acknowledges that the CIA kidnapped an innocent German by mistake. The next President should renounce, and Congress should ban, these crimes of state.
Arbitrary Detention. Neither international law nor world public opinion accepts the prolonged detention of suspected terrorists without trial and without fair hearing at Guantanamo. In 2004 the Supreme Court banned such treatment of Americans. Imposing it on foreign citizens reflects a double standard and violates universal human rights to liberty and equality. Many prisoners have now been released from Guantanamo after being imprisoned for years with no evidence that they were ever guilty of any crime. The next President should guarantee foreign citizens the same basic rights the Supreme Court requires for Americans – the rights to know the accusations against them, and to have a fair opportunity to contest them before an impartial decision-maker.
Guantanamo. The US prison at Guantanamo has become a worldwide symbol of American contempt for human rights. It should be closed. Prisoners who cannot be sent home should be transferred to military prisons in the United States, within the jurisdiction of American courts.
Fair Trials. The recent finding by a military judge of improper command influence on military prosecutors at Guantanamo is only the latest proof that the effort to try suspected terrorists before military commissions is not only a failure but a national embarrassment. Authorized by the President in 2001 in hopes of securing swift justice for terrorists, the commissions have been neither swift nor just. Seven years later, not a single trial has been completed. The next President should abandon this misguided shortcutting of due process. Any cases that can still be prosecuted should be transferred for trial either by federal court or by court-martial under the Uniform Code of Military Justice. Congress should repeal the legislative green light it gave to military commission trials, while under political pressure on the eve of the 2006 elections.
More positive steps should be taken as well. For example, we should ratify treaties on human rights in the Americas and on rights of women and children. But by at least repudiating this Administration’s more egregious assaults on law and rights, a new President can tell the world that our nation has taken the equivalent of the Hippocratic Oath: First, do no harm to human rights.
Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.