Soundings September 24: Attacking Human Rights and Accountability

In what might be described as a prophetic plea, the late theologian and activist William Sloane Coffin argued in 2004 that the United States should end its efforts at a war of retribution in Iraq and Afghanistan for the September 11, 2001 attacks. Coffin contended that those conflicts, launched in the name of revenge, were both poor policy and, in practice, antithetical to our nation’s dedication to human rights. On his first point, time has suggested he was surely correct, as the rationale for U.S. intervention in Iraq particularly, has been shown to be false and therefore its actions were illegal under international law. Neither war made sense in light of the nation’s existing policies. His second point also has been shown to be accurate, as the “Bush wars,” and the policies that accompanied them, contradicted much of what the United States had helped construct as the foundations of an international political community as a principal architect of the United Nations (U.N.) and the Geneva Accords. Coffin’s hope was that

We [the United States] will respond, but not in kind. We will not seek to avenge the death of innocent Americans by the death of innocent victims elsewhere, lest we become what we abhor. We refuse to ratchet up the cycle of violence that brings only ever more death, destruction and deprivation. … [We will do] all in our power to see justice done, but by the force of law only, never by the law of force.[1]

Coffin’s call was largely ignored by the George W. Bush administration, and neither Afghanistan nor Iraq can be characterized as stable democratic nations today. The United States bears a significant share of the responsibility for that fact. What is more, America’s choice to intervene militarily in both countries saw its government descend to fatuous legal reasoning to sanction state-sponsored torture at the Abu Ghraib prison in Iraq and to develop a security complex at the U.S. Naval Base at Guantanamo Bay, Cuba, at which inmate mistreatment also occurred.[2] The Bush administration also secretly developed detention centers for prisoners at several so-called Black Ops sites overseen by CIA operatives, at which torture occurred as well. These were created explicitly to avoid accountability for prisoner treatment. All of these misguided steps were part of a determined effort by the Bush administration to escape international scrutiny, accountability and opprobrium for its actions, the majority of which in these cases were contrary to international law.

Each of these choices undermined long-standing U.S. policies and law. Indeed, the United States Supreme Court has since ruled that there was no legal basis for the administration’s actions related to torture and that the Geneva Convention Common Article 3 banning torture and inhuman and degrading treatment of detainees, in fact, had applied to the U.S. war effort against al Qaeda in Iraq and Afghanistan.[3] More significantly, however, these Bush administration actions undermined the United States’ symbolic claim to serve as a beacon for human rights and freedom. If the U.S. could behave with such impunity, in clear violation of its principles and accepted national and international law, while potentially subjecting its military personnel to the same inhuman treatment in the future when in enemy hands, what now would give pause to tyrannical governments as they pondered such actions?

These concerns were ameliorated to considerable degree during the Barack Obama presidency, but a Republican-dominated Congress during that administration refused Obama’s best efforts to close the Guantanamo Bay prison, despite its extremely high costs, inconsequential and redundant role in serving national security and its history as a symbol of prisoner abuse. But, if the nation’s assault on its own human rights principles was stopped during the Obama years, however unevenly, the Donald Trump presidency has chosen once again to attack human rights and international law. In doing so, the Trump administration is rekindling international outrage and diminishing still further United States credibility and standing among other nations.

Three brief examples illustrate the resurfacing of this lamentable trend. First, while his Department of Defense has thus far stymied his oft-stated interest in once again pursuing torture as U.S. policy, Trump repeatedly embraced this indefensible practice while campaigning in 2016. Here is one example from a campaign event in Arizona in February of that year:

‘Don't tell me it doesn't work—torture works,’ Trump said. ‘Okay, folks? Torture—you know, half these guys [say]: “Torture doesn't work.” Believe me, it works. Okay?’ Trump has long called for the return of waterboarding, and he has seemed to embrace the idea of torture in the past without using the term himself. During a Feb. 7 interview on ABC's “This Week,” host George Stephanopoulos asked Trump whether he ‘would authorize torture.’ Trump responded: ‘I would absolutely authorize something beyond waterboarding.’[4]                                                                                                                   

As with much else that Trump has said before and since, there was no evidence to support his assertion, even if one accepted that the debate should only concern relative utility and not reach the reality that such actions are anti-democratic, anti-human and illegal, not to say heinously and needlessly cruel. But none of this seems to matter to Trump, and he has never renounced his embrace of techniques that by definition abrogate human rights and law. That fact constitutes an indictment of his character and represents an in-principle abomination in light of the nation’s law and international treaty obligations as well as its professed ideals.            

The State Department provided a second example of Trump administration attacks on human rights and international law and accountability when its spokesperson announced in late August that the United States would immediately withdraw its humanitarian support for the displaced Palestinian refugee population, which now numbers nearly 5 million people scattered across multiple nations in the Middle East. Their dislocation occurred originally with the eruption of war following the creation of Israel in 1948 and the international community has never negotiated a comprehensive permanent settlement to end their plight.[5] They are legally stateless and merit support as refugees under international human rights law and long-standing U.S. policy as well.     

In fact, the United States has historically been the largest supporter of this United Nations administered aid initiative. Trump’s policy choice represents a draconian reduction in the capacity of this population to meet even its daily needs since the U.N. has limited options to replace the American support. In any case, this abridgement of human rights and settled international law and practice appear to be of little concern to Trump or his chief Middle East policy advisor (and son-in-law), Jared Kushner. Kushner reportedly lobbied for this choice, “as part of a plan to compel Palestinian politicians to drop demands for most of the refugees to return to what they call their homeland.”[6] Kushner’s aim, like the policy it generated, simply assumes that millions of displaced individuals should not be parties to any overarching negotiated settlement that allows for at least a share of their number to return to their ancestral homes, from which many were dispossessed through no action of their own. Instead, the policy was designed explicitly to disregard the rights of those trapped in that situation. Kushner convinced Trump to vitiate our nation’s engagement in supporting a displaced population’s legal claims in order to undermine and hopefully obtain a voluntary abandonment of those rights—a perverse irony.                                                                     

One final example of the Trump administration’s disdain for any legal or other accountability for its efforts to undermine and disavow human rights occurred in recent days when Trump’s National Security Advisor, John Bolton, gave a speech to a conservative group in which he attacked the International Criminal Court as a usurpation of American sovereignty and threatened its members with criminal action were they to launch any inquiry into whether the U.S. has committed war crimes in Afghanistan or anywhere else:

The ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States. In no uncertain terms, the ICC was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent. … We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.[7]  

He made these statements as the Court was discussing whether to take up claims concerning alleged U.S. war crimes in Afghanistan, which certainly did occur. Bolton was adamant that no nation, let alone the United States, be subject to any scrutiny beyond itself for its actions. While one might well debate how states balance their claims of sovereignty against the need for international checks on state-sponsored terror and tyranny, Bolton set all such discussion and possibility aside to claim a virtually unfettered realm of action free from accountability to anyone or anything beyond a share of the citizens of one’s country. More, he threatened personally any international jurist who might contemplate such action. This absolutist position leaves the door open for the practice of every manner of atrocity conceivable against a state’s population in the name of power, because all such activities would be protected by the perpetrating government’s claim of sovereignty. For Bolton, the remedy for such scenarios is war, but too many such brutalities have occurred without outside intervention by other states to end them to give that claim credence. In short, his frequently menacing rhetoric de facto represented an attack on the idea of international community responsibility and cooperation, and his basic claim throughout was that the United States would assail any individual or institution that dared question its behaviors or their outcomes. He demanded that the U.S. enjoy a position of near complete impunity vís-a-vís all other nations in all that it has undertaken and might undertake.  

The theme that joins the Bush presidency’s adoption of torture and the Trump stances reported here is an aim to undermine foundational claims for human rights. Indeed, the two administrations evidenced a growing willingness to demand unqualified freedom from accountability for the actions it undertook relative to human rights. Like the Trump administration, the Bush White House sought to act with substantial latitude, but that president and his advisors nonetheless still felt compelled to rationalize and justify their actions before the world community, however disingenuously. In contrast, Trump and his appointees have shown no interest in even appearing to pay heed to such norms. Instead, they have called for a total lack of accountability for United States actions. This situation brings to mind the fitting and wise (and likely spurious) aphorism alternately attributed to Thomas Jefferson and Henry David Thoreau: “When injustice becomes law, resistance becomes duty.”[8] If they expect to protect their birthright of freedom, Americans cannot permit their leaders to establish rule by whim or fiat without accountability to the claims of human and civil rights and the devotion to dignity that underpins those constructs.

Notes

[1] Coffin, William Sloane. “Despair is not an Option,” The Nation, January 12, 2004, http://tinyurl.com/ya5fnsuo Accessed September 14, 2018.

[2] Hersh, Seymour. “The Gray Zone,” The New Yorker, May 24, 2004, https://www.newyorker.com/magazine/2004/05/24/the-gray-zone Accessed September 18, 2018.

[3] Bellinger, John. “Obama, Bush, and the Geneva Conventions,” Foreign Policy, August 12, 2010, https://foreignpolicy.com/2010/08/11/obama-bush-and-the-geneva-conventions/ Accessed September 18, 2018.

[4] Johnson, Jenna. “Donald Trump on Waterboarding: ’Torture Works,’” The Washington Post, February 17, 2016, https://www.washingtonpost.com/news/post-politics/wp/2016/02/17/donald-trump-on-waterboarding-torture-works/?utm_term=.ac184b04851f Accessed September 18, 2018.

[5] Wong, Edward. “Trump Administration’s Move to Cut Aid to Palestinian Refugees is Denounced,” The New York Times, August 31, 2018, https://www.nytimes.com/2018/08/31/world/middleeast/trump-administration-aid-palestinian-refugees-.html  Accessed September 20, 2018.

[6] Wong, Edward. “Trump Administration’s Move.”

[7] “Bolton’s Remarks on the International Criminal Court,” Just Security, September 10, 2018, https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/

[8] Thomas Jefferson’s Monticello-Research and Collections, “When Injustice becomes Law, Resistance becomes Duty,” https://www.monticello.org/site/research-and-collections/when-injustice-becomes-law-resistance-becomes-duty-spurious-quotation  Accessed September 18, 2018.