Friday, June 26, 2009

Take Another Look at International Law: Why it is Good for the United States

Human rights discourse in the United States focuses primarily on enforcing human rights abroad. However, human rights concerns are not inherently extraterritorial. Rather, it is the responsibility of every government – including the United States – to guarantee the basic human rights of every person within its territory. One way to fulfill this global responsibility is by incorporating international human rights norms – which have been agreed upon by all developed nations – into domestic jurisprudence.

According to Harold Koh, former Dean of Yale Law School who was recently confirmed to serve as the State Department's top legal advisor, "[F]ederal judges have become an increasingly critical link between the international and the domestic legal spheres... [by helping] internalize international legal norms into U.S. domestic law through a range of interpretive techniques."

However, some Americans remain skeptical that judicial recourse to international law would undermine U.S. sovereignty and harm American citizens. While some criticize Koh for using "international and foreign law to deprive Americans of our rights as American citizens," a closer look at the use of international human rights law reveals that these criticisms are ill-conceived, and reveals that the use of international human rights law is GOOD for America and its citizens.
Argument 1: Courts might prioritize international law over U.S. law and undermine U.S. sovereignty.

First, skeptics of international law, like John Bolton, Former President George W. Bush's Ambassador to the United Nations, fear that U.S. courts might put international law above the Constitution and thus undermine U.S. sovereignty. However, proponents of using international law as a guide domestically do not argue that international law should take precedence over the Constitution. Rather, proponents believe U.S. courts should (as at times they already do) look to international human rights norms when interpreting and applying the Constitution. For example, when the U.S. Supreme Court abolished the juvenile death penalty in 2005, the Court noted that "[t]he United States is the only country in the world that continues to give official sanction to the juvenile penalty.

It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom."[1] Furthermore, the Supreme Court has explicitly instructed federal courts to exercise great restraint on those rare occasions when they are asked to directly apply international human rights law, so as to not undermine State, Congressional or Presidential power within the democratic process.

Skeptics who argue that enforcing international human rights norms in U.S. courts will undermine U.S. sovereignty also overlook the facts that: (1) the United States was founded on human rights ideology (the Declaration of Independence rests on the human rights principle that 'all men are created equal'), and (2) the United States played a lofty role in developing international human rights law by encouraging other nations to internalize human rights norms.

After World War II, the United States took a leading role in developing major human rights documents when Franklin Roosevelt inspired the drafting of the Universal Declaration of Human Rights (UDHR). First Lady Eleanor Roosevelt, who chaired the original United Nations Human Rights Commission, furthered the role of the United States on the international stage by overseeing the drafting of that crucial document. According to the scholar Louis Henkin, the human rights norms encompassed in the UDHR have become international legal norms that "are in their essence American Constitutional rights protected around the world."[2] Thus, there is no reason to fear allowing international human rights law to come full circle and fit back into the democratic American society from whence it emerged.

Argument 2: Upholding international human rights law in U.S. courts could hurt American citizens.
Second, skeptics argue that upholding international human rights law will hurt U.S. citizens by "handicap[ing] America's efforts to defend itself" and "harm[ing] American business." In reality, U.S. security and business interests demand reciprocity – if we expect humane treatment of U.S. citizens abroad, we should ensure such treatment of foreign nationals in the U.S. By condoning – either explicitly or implicitly - violations of international law, the United States undermines its ability to demand respectful treatment of U.S. citizens overseas.

For example, due to U.S. failure to thoroughly address allegations of human rights violations, Spain considered prosecution of former U.S. officials for torture. The ability of another country to charge U.S. officials is beyond the scope of this entry, suffice to say that had the the U.S. government not ignored international human rights norms as a general policy, U.S. citizens acting within that political framework would not have been in such an undesirable situation.
Along with protecting the interests of U.S. citizens abroad, domestically enforcing international human rights norms protects U.S. citizens from violations of human rights by their own government. Six years ago, The New York Times dubbed Jack L. Goldsmith, a former law professor at the University of Chicago, as "one of the brightest stars in the conservative legal firmament," and "a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts."

A mere nine months after becoming legal advisor to the Pentagon in 2003, however, Goldsmith resigned from the prestigious position and began to speak publicly on how the Bush Administration violated both domestic and international human rights law. According to Goldsmith, the former Administration's pre-emptive approach to the "War on Terror" was an attempt to expand the limits of presidential power and simultaneously immunize government officials from international human rights violations and war crimes.

Goldsmith's exposure to high-ranking intelligence regarding human rights violations led the renowned conservative opponent of international law to recognize that enforcing international human rights law in the United States is necessary to fill domestic legal gaps and loopholes the government might exploit to harm American citizens. For example, respect for international human rights law could have protected U.S. citizens from the discretionary use of wiretapping, ethnic profiling, illegal detention of suspected terrorists, and attempts to justify torture.
These are but a few of the reasons Americans ought not fear judicial recourse to international human rights law. Rather, we should embrace international human rights law to protect national and personal interests, and to demonstrate to the world that the U.S. remains a leader in fostering and promoting human rights for all world citizens.

-Annie Johnston, International Justice Project Legal Intern

[1] Roper v. Simmons, 543 U.S. 551, 554 (2005).
[2] Louis Henkin, How Nations Behave: Law and Foreign Policy, in Int'l Law 25, 24 (Barry E. Carter, Phillip R. Trimble, & Allen S. Weiner 5th ed., 2007).

Thursday, June 25, 2009

Debunking Myths in the Torture Debate: Why Waterboarding Does More Harm than Good

The recent release of memoranda advising the President about interrogation techniques used at Guantanamo Bay, specifically waterboarding, has prompted much debate regarding the utility and morality of torture. Many argue that torture is unequivocally wrong. Others contend that, under certain circumstances, torture may be permissible or even recommended. This post reviews the laws that apply in the United States as well as the scientific studies regarding the use of torture so that our readers may take an informed stance. We explore two common myths surrounding torture such that it becomes clear: torture is never a valid option.

Myth #1: Certain types of conduct, including waterboarding, are not torture.

To understand whether torture is ever permissible, we must first clarify what is or is not torture. In the context of the debate over waterboarding of terrorist suspects, many argue that this technique is not torture because, in most cases, it does not cause permanent physical injury. International law offers a clear prohibition against torture, defined as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [1]

This ban is contained not only within multiple international treaties, including the Geneva Conventions, but also customary international law as well as U.S. domestic law. [2]

Yet some commentators have attempted to delineate how much pain, suffering, or force must be inflicted before the “torture line” is crossed. Their creation of an artificial divide between torture and cruel, inhuman, and degrading treatment acts as a distraction from the real issue: whether torture is justifiable. For example, panelists on Fox News’ “The Strategy Room” unanimously concluded that the actions of a United Arab Emirates sheik, including electrocuting, whipping, and driving over a prisoner, constituted torture. Yet, in that same discussion, the panelists continued to refer to waterboarding as “splashing water on someone.” These divergent reactions are the result of the difference between reading about a set of interrogation procedures versus watching and hearing them be carried out. The difference might also be related to the identity of the person being tortured; some might change their opinions regarding the lawfulness of torture based on whether the person strapped to the board is an alleged Al Qaeda operative or a U.S. citizen.

The willingness of some journalists to undergo waterboarding provides an opportunity to better understand the procedure. Watching someone emerge, stuttering and panicked, from a brief waterboarding session raises more questions than merely reading about the procedure. This is especially true since these willing participants lack both the perspective of someone accused – whether correctly or incorrectly – of being a terrorist, as well as the agenda of some administration and military officials.

When waterboarding was applied in a controlled environment with less political charge to two different participants, both subjects easily and quickly conceded the procedure is torture. Conservative radio talk show host Eric “Mancow” Muller was so adamant that waterboarding was merely “uncomfortable” that he agreed to undergo the procedure during a live radio broadcast: “I wanted to prove it wasn’t torture.... they cut off our heads, we put water on their face.” After only a few seconds, he emerged gasping for air, then raised his head and said, though he hated to admit it, the procedure was “absolute torture.” Similarly, Vanity Fair columnist Christopher Hitchens subjected himself to waterboarding and later penned an entire article describing, in detail, how and why the procedure was torturous.

The objective accounts of Muller and Hitchens tend to debunk any skepticism as to the fact that waterboarding constitutes torture.

Myth #2: Torture is a Useful Tool in the War Against Terror

Another argument often put forth to support the use of torture is the “ticking time bomb scenario. Its proponents argue that torture may provide the only avenue by which certain life-saving information may be extracted from informants. Such proponents claim that waterboarding has “saved thousands of lives.” These declarations may be refuted by two separate lines of argumentation: (1) there is no evidence to prove that waterboarding is the only way to gain information and (2) even if waterboarding is the only way to gather information, there is no guarantee that the information will be truthful.

First, there is no control group or any reliable method comparison from which to draw the conclusion that torture is the sole method of gaining information. As Intelligence Director Admiral Dennis C. Blair has stated: "...there is no way of knowing whether the same information could have been obtained through other means..." These conclusions were buttressed by a New York Times op-ed piece by Ali Soufan, a former interrogator responsible for the interrogation of Abu Zubaydah. Like Blair, Soufan stated that “there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.”

Second, even if torture provides the quickest and most efficient method of gaining intelligence, there is no guarantee that information gained is correct. Harsh interrogation techniques may have created an unbearable pressure on detainees to make statements, whether false or fabricated, in order to make the painful interrogations cease. One of the high-value detainees imprisoned at Guantanamo, Khaled Shaik Mohammed, provided misleading information to interrogators: “I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.... I'm sure that the false information I was forced to invent...wasted a lot of their time and led to several false red-alerts being placed in the US.” Therefore, even if tortuous techniques were the only way to gain certain information, there is no guarantee that the information gained is true or would prove to be helpful to national security officials.

Sadly, it appears that the use of “enhanced interrogation techniques” may have lead not only to a wider escalation in violence, but to misinformation (and thus a likely misallocation) of U.S. military resources. These techniques have damaged the global reputation of the United States, and, according to Admiral Blair, “the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

-Jill Paul, International Justice Project Legal Intern

[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 39 U.N.T.S. 24841.

[2] See, e.g., War Crimes Act of 1996, 18 U.S.C. § 2441 (1996); Anti-Torture Statute, 18 U.S.C. § 2340; Torture Victim Protection Act, 28 U.S.C. § 1350 Note.

Tuesday, June 23, 2009

Treaty Ratification: Why Should the United States Ratify International Treaties?

Earlier this year, when Sen. Barbara Boxer (D-Cal) began urging the Obama administration to ratify a 20-year old international agreement creating a full range of human rights for children, it revived discussions about what role the promotion of human rights should play in U.S. foreign policy. The answer is simple: as the world’s lone superpower, the U.S. has the rare and important ability to influence the behaviors of governments and people around the globe.

Although the U.S. has played a key role in establishing global human rights standards – the UN Declaration on Human Rights (UDHR) was inspired in part by Franklin D. Roosevelt’s Four Freedoms speech, and partially drafted by his wife, Eleanor [1] – the country’s credibility has been compromised because of its role in recent human rights violations. With this year marking the 60th Anniversary of the UDHR, and it being the first time the U.S. has held a seat on the UN Human Rights Council, the timing couldn’t be better for the U.S. to reaffirm its commitment to universal human rights by ratifying international treaties. [2] To date, the U.S. has failed to ratify several fundamental international agreements intended to protect human rights, including the Convention on the Elimination of All Forms of Discrimination against Women (commonly known as “CEDAW”) and the Rome Statute of the International Criminal Court.

The Convention on the Rights of the Child, which provides a global framework for the protection of children by vesting them with specific civil, social, cultural, political, and economic rights, is yet another example of a human rights agreement the U.S. has failed to ratify. Although the Treaty was signed by the Clinton administration in 1995, it has not yet been ratified – an important distinction as “signing” treaties is akin to a symbolic gesture, while “ratification” gives teeth to the agreement by creating legal obligations. Despite publicly stating its intention to ratify, the U.S. still stands with Somalia as one of the only two countries to not ratify the Treaty, while worldwide atrocities against children – including enslavement, torture, abuse, and abduction – continue daily.

While some believe that, under the Supremacy Clause, the Treaty would trump all federal laws and undermine parental authority and influence over a child’s development, in actuality, the Treaty would not override the Constitution. For one, U.S. ratifications of international treaties are often made with explanations or caveats (in what are called Reservations, Understandings, and Declarations or “RUDs”) to acceptance. If the U.S. agrees with the general principle of the Treaty, but is troubled by a certain provision, it may clarify or modify those areas of the Treaty before ratification. Furthermore, the Treaty is not self-executing – it cannot be “automatically implemented without legislative action,” giving Congress another opportunity to clarify what the Treaty will and will not mean for U.S. law.

Regarding parental rights, the CRC clearly recognizes the principle that parents “have the primary responsibility for the upbringing and development of the child,” and that parties to the Treaty are merely rendering “appropriate assistance” to parents performing their child-rearing responsibilities. In other words, ratifying the Treaty will not give the UN authority to control U.S. policies on children and there is no language in the CRC dictating how American parents are to raise their children. In fact, the CRC frequently emphasizes the vital role that parents play and recognizes the importance of a loving family atmosphere for the proper upbringing of a child.
Some opponents to ratification purport that, under the Treaty, parents will no longer be able to spank their kids.

To those who understand the language of the Treaty and the realities of its implementation, this argument is easily dismissed. At no point does the text of the Treaty refer to spanking or corporal punishment of children. What it does prohibit, is “cruel, inhuman or degrading treatment or punishment.” It also protects children from physical and mental violence, injury and abuse, neglect, and maltreatment or exploitation. Each country may interpret the Treaty as it so chooses, and many have defined such violence as beatings so severe that they leave visible marks on the body.

Overseas, the implementation of laws in furtherance of the Treaty has been largely successful. Recent reports from many of the 193 countries that have ratified the Treaty indicate that much progress is being made as a result. In countries such as Oman, Niger, Romania, and Bangladesh, governments have implemented laws forbidding children in armed conflicts, combating child poverty, and improving the health and well-being of children. The results have varied, from decreases in infant mortality rates to significant progress in the area of education.

Contrary to claims that U.S. children already enjoy the rights set forth in the Treaty, many American kids still live in poverty, and nearly a million children suffer from child abuse or neglect each year. Though the U.S. may not face all of the challenges seen in other countries, ratifying the Treaty will lend support to those countries and encourage the addressing of challenges we do still face.

In light of these considerations, it is not difficult to see why the U.S. should ratify the CRC. Not only will ratification boost U.S. credibility overseas, but it will demonstrate our commitment to ensuring the basic rights and freedoms to which all humans are entitled, worldwide. Global leadership, after all, is a privilege that we must not take for granted.

-Jacy Youn, International Justice Project Legal Intern

[1] Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for the New Administration, American Constitution Society for Law and Policy, Oct. 2008, available at
[2] Statement of Congressman John Lewis (GA), On the Reintroduction of Recommitment to International Human and Civil Rights Resolution, May 7, 2009