Fresh from his electoral victory, President Bush now has the opportunity to build a better record on human rights. Why do so? Three reasons.
First, a more positive approach is one way to reach out to all Americans, including those who voted against him based in part on his disappointing policies on human rights.
Second, it’s the right thing to do. Yes, we still face threats from terrorism and nuclear proliferation, but security is not built on repression or on skirting the rule of law. As the president told the United Nations in September, “The security of our world is found in the advancing rights of mankind.”
The president’s speech was lined with salutes to human rights: to UN staff “who stand for peace and human rights in every part of the world,” to the Universal Declaration of Human Rights and to UN charter commitments.
“The protection of human rights” and other ideals, he said, “call us to great work in the world.”
He was right.
Third, we must lead by example. Bush told the UN that in the Middle East “millions have been denied basic human rights. . . . We must help the reformers of the Middle East as they work for freedom.”
It would not be difficult for the president to become a leader on human rights in his second term, if he so chose. There are, of course, some bridges too far for him to cross. For example, his administration is not about to reverse course and embrace the International Criminal Court.
But there are many steps he could take without sacrificing national security or abandoning deeply held conviction. Most involve midcourse corrections to first-term policies that failed to reach their objectives but brought our nation into international disrepute.
The following are four examples:
Torture
We cannot simply sweep the shameful revelations of torture at Abu Ghraib and elsewhere under the rug. Nor, as the president has affirmed, can this nation treat torture as acceptable.
Two main tasks should now be undertaken.
First, as recommended by the American Bar Association and by several former judge advocates general, Congress should establish a high-level, bipartisan commission, with sufficient budget and subpoena power, to investigate what went wrong and how to fix it. Seven military inquiries to date have failed to take a hard look at the upper echelons of the Pentagon and have not looked at the CIA or other agencies at all.
Until we get to the bottom–and the top–of this sordid affair, neither we nor the world can be confident that we have learned our lesson or that torture will not recur.
Second, again as recommended by the ABA, we need to tighten our laws against torture. For example, torture is a federal crime if committed outside the U.S. or U.S. military bases, but not if it is committed at our naval base at Guantanamo, Cuba, or if ordered from the Pentagon.
Trials of terrorist suspects
In the immediate wake of the Sept. 11 terrorist attacks, Bush authorized trials of suspected foreign (but not American) terrorists by military commission. Such trials bypass not only ordinary criminal trials in federal court under the Bill of Rights, but also courts-martial under the procedural safeguards provided by Congress in the Uniform Code of Military Justice.
Pentagon efforts to gin up procedures for trials by commission, which have not been held since World War II, before the code and the 1949 Geneva Conventions were adopted, have been sharply criticized by military lawyers. They have been denounced abroad, including by our closest ally, Britain.
And they have accomplished next to nothing. After nearly three years of holding hundreds of prisoners at Guantanamo, only four have even been charged, and none is a big fish. Far from prosecuting Osama bin Laden, for example, we are trying to prosecute his chauffeur.
Most recently, a federal court in Washington ruled that the commission trial of the alleged chauffeur violates the Uniform Code and the Geneva Conventions. The defendant is entitled to trial by court-martial, to access to the evidence against him and to confront his accusers. These are basic rights.
Enough already. The administration should thank the court for offering a graceful exit from a failed strategy. Military commissions should be given a swift burial.
Imprisonment without trial
The other 600 prisoners at Guantanamo have been held for up to three years without being charged with a crime and without access to lawyers or courts. In June the Supreme Court ruled 6-3 that they are entitled to challenge their detention by filing habeas corpus petitions in federal court in Washington. The court added in a footnote that if they are indeed non-combatants and innocent of terrorism, as many claim, their prolonged detention is unlawful.
The families of many prisoners have filed such petitions, but the government is stonewalling. While it now concedes, as it must, that federal courts have jurisdiction to hear these claims, it denies that the prisoners have any legal rights whatsoever. It even denies their right to assistance by lawyers–as if foreign citizens imprisoned at Guantanamo, who do not speak English or know our legal system, could somehow file legal papers in Washington without the aid of lawyers.
In mid-October a federal judge ruled in the case of three prisoners that they have a right of access to lawyers and that the government may not eavesdrop on their attorney-client communications. This ruling, too, should prompt the Pentagon to rethink its detention policies.
The prisoners should be given access to lawyers and allowed hearings in federal court on their claims of innocence. If in a fair hearing they are proved to be dangerous, the government can continue to detain them.
Respect for World Court
Early this year the International Court of Justice in The Hague ruled in favor of Mexico’s claim that the U.S. violated the Vienna Convention on Consular Relations by prosecuting and sentencing to death some 51 Mexican citizens without advising them of their right to contact their nation’s consulates for assistance, which Mexico actively provides in capital cases.
Since then the Oklahoma Court of Criminal Appeals stayed the execution of a Mexican citizen, and Oklahoma’s governor commuted the inmate’s sentence to life imprisonment, based largely on the World Court’s ruling.
But in a Texas case involving Mexican citizen Jose Medellin, lower courts recently refused to consider the violation of his consular rights because he failed to raise the issue at trial. This contradicts the World Court, which ruled that governments that fail to advise defendants of their rights cannot later say the defendants waived their rights by not asserting them.
The lower courts felt constrained by a 1998 ruling of the U.S. Supreme Court, which upheld the waiver of a consular rights claim and declined to enforce a World Court request to stay the execution. But that 1998 ruling was made in haste, in the face of an imminent execution, and did not involve a final, binding judgment of the World Court.
The World Court has ruled definitively. The U.S. is bound by treaty to respect its ruling. Our national honor is at stake. Medellin’s lawyers have asked the Supreme Court to review the case. The administration should ask the high court to take the case and to rule that U.S. courts must follow World Court judgments on U.S. treaties.
In all these cases Bush has an opportunity to show respect for international law and human rights. In none need the U.S. pay a great price for doing so.
We have a chance not only to do the right thing but also to regain a measure of the respect for the rule of law, which the world once expected of us.
Let us hope that the White House gives serious thought to how much can be gained, and how little lost, by meaningful midcourse corrections.
