The Promise of Human Rights. Jamie Mayerfeld
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The United States should not incorporate international human rights law in a blind or mechanical way. On the contrary, it should reject treaty obligations and institutional arrangements if it has good reason to believe that they would undermine human rights. Such critical engagement can promote an international dialogue from which all parties can learn. Instead of taking this path, however, the United States has rejected the incorporation of international human rights norms whenever it perceives that such norms would require a change in its national law or policy. The message conveyed by the self-exemption policy is that the United States has nothing to learn from others, and that others may learn from it through imitation but not dialogue.14
Learning from Europe
Europe demonstrates what international human rights institutions can achieve. Since the end of World War II, it has built an international regime under which participating states hold one another accountable to respect human rights. In effect, European countries have become co-guardians of human rights within each national jurisdiction. The dramatic advancement of human rights throughout the region would have been impossible if Europe had rejected the multilateral approach and left each country to be final judge of its human rights policies. The European human rights system adopts central principles of Madisonian constitutionalism and proves their power to promote justice.
The success of the European regime should not be exaggerated. Grave human rights problems persist. Progress has been slow in some areas, nonexistent in others. I do not attempt a global comparison of respect for human rights in the United States and Europe. Instead, my claim is that respect for human rights in Europe is significantly stronger than it would have been in the absence of a strong transnational human rights regime. Even after 9/11, when officials in some European countries colluded in the U.S. torture program, there can be little doubt that regional human rights institutions prevented what would otherwise have been a worse unraveling of human rights. They exerted a significant, albeit inadequate, restraint on government conduct.
Serious problems cloud the future of human rights in Europe. These include the Eurozone crisis and its political fallout, the rise of extreme right-wing parties, the persistence of anti-immigrant and anti-Roma sentiment, authoritarian entrenchment in Russia and Azerbaijan, Russia’s aggression against Ukraine, the authoritarian turn in Hungary and Turkey, the refugee crisis, and terrorism. One threat is recurrent opposition to the regional human rights regime itself. Echoing American critics of international human rights law, some European citizens, politicians, and media accuse the regime, especially the European Court of Human Rights, of being antidemocratic and infringing state sovereignty. I seek to rebut this line of criticism by establishing the democratic legitimacy of international human rights institutions and by reminding readers of the invaluable contributions made by Europe’s regional institutions to the protection of human rights.15
Lessons from the “War on Terror”
The “War on Terror” reveals the dangers of the U.S. self-exemption policy. When tested by the shock of 9/11, U.S. human rights institutions failed dramatically. Practices that should have been unthinkable, “enhanced interrogation techniques” constituting torture in all but name, were authorized by the president and members of his cabinet. The government’s senior lawyers vowed that the practices broke no laws, a finding that gave officials the assurance they needed to continue using torture and that hindered the ability of future administrations to put those officials on trial. Government lawyers similarly enabled the policy of using “extraordinary rendition” to have individuals tortured by foreign officials.16
U.S. officials designed and implemented interrogation methods calculated to cause pain, terror, humiliation, and despair.17 The avowed goal was “learned helplessness,” to be achieved by patient and methodical destruction of the victim’s sense of agency and self-worth. Victims sometimes thought they would die under torture, and several did.18 Their harrowing testimonies have been confirmed by the internal government communications of those who tortured them.19
Some of the victims had no connection to terrorist activity. False statements elicited by torture were used to justify the 2003 Iraq War, a moral and strategic catastrophe that has set off a careening escalation of violence with no end in sight.20 As symbols of U.S. torture, Abu Ghraib and Guantanamo became a rallying cry for terrorists worldwide.21
Back in the United States, the architects of the torture policy found themselves with a personal stake in defending its legitimacy. They have mounted a vigorous campaign aimed at weakening the torture taboo and propagating the false belief that torture benefited U.S. efforts to combat terrorism.22 The CIA destroyed video recordings of its interrogation sessions, then fiercely resisted the Senate Intelligence Committee’s investigation into its treatment of detainees, to the point that it spied on Committee staffers and sought to have them prosecuted (but publicly denied these actions).23 U.S. law was rewritten to immunize several acts constituting torture from criminal prosecution.24 At the urging of both the George W. Bush and Barack Obama administrations, courts have blocked lawsuits by victims of U.S. torture, and the reasoning on which judges have based their findings of official immunity suggests that there are weak institutional restraints against the future resumption of systematic torture in the name of national security.
I consider the U.S. torture policy in depth in Chapters 4 and 5, but take this opportunity to recall a few of its many victims. In the fall of 2002, Maher Arar of Canada was seized by U.S. agents at JFK Airport in New York, then delivered to Syria, where he was tortured and kept in a grave-like cell for ten months.25 After his release, a Canadian commission of inquiry produced a three-volume report clearing him of all ties to terrorism. The Canadian government formally apologized for providing U.S. officials misleading information about Arar and awarded him $9 million in compensation, but when he attempted to sue U.S. officials responsible for his rendition to torture in Syria, U.S. judges blocked his case from going to trial.26 He remains on a terrorist watch list that bars his entry into the United States.
In December 2001, Murat Kurnaz of Germany was seized by Pakistani police and sold for a $3,000 bounty to the United States. At Kandahar Airbase in Afghanistan, U.S. interrogators beat him, suffocated him by forcing his head under water, administered electric shocks, and suspended him by his hands for days. He was sent to Guantanamo, where a tribunal justified his detention on the grounds that his friend had carried out a suicide bombing in Istanbul. In fact, his friend never took part in the bombing, but was alive and well in Germany. Although internal Pentagon documents dating from 2002 stated there was no evidence linking Kurnaz to Al Qaeda or terrorist activity, he was kept in detention and tortured over the next four years.27
Lakhdar Boumediene, an Algerian resident of Bosnia, was arrested by Bosnian police at the request of U.S. authorities claiming that he was part of a plot to blow up the U.S. and British embassies. Bosnia’s highest courts ordered his release when they could find no evidence to support the allegations, but U.S. authorities spirited him to Guantanamo, where he endured harsh interrogation including torture for over seven years, and was force-fed during a two-year hunger strike. After the Supreme Court ruled in 2008 that Boumediene had a constitutional right to habeas corpus, the government was obliged to justify his designation as an “enemy combatant” in court. No longer alleging a plot to attack the embassies in Bosnia, the government submitted as its sole evidence a document reporting a statement by an unnamed informant that Boumediene planned to travel to Afghanistan to fight the United States. A U.S. judge, finding that the reliability of the informant could not be established, ordered Boumediene’s release.28
In June 2002, U.S. citizen Jose Padilla was placed in indefinite detention in a South Carolina military prison without charge or trial. Federal authorities claimed he was part of an Al Qaeda plot to explode a radioactive “dirty bomb” inside the United States. Kept in extreme solitary confinement for over three years, Padilla reports that he was subjected to stress positions, sleep deprivation, temperature extremes, and noxious fumes, as well as hooded, denied urgent medical