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Restoring America's Rights Record: Memo to the President-Elect

Leila Nadya Sadat

America's human rights record has been badly tarnished by seven years of abuse by the Bush Administration in its conduct of the war on terror, particularly as regards U.S. policy towards detainees. The United States has been criticized before the Torture Committee, the Human Rights Committee, the Inter American Commission, the European Parliament, many national courts and Parliaments and the international press. What should the new administration do to set matters right?

First, close the U.S. detention facility at Guantanamo Bay.

The existence of this prison camp, which Amnesty International labeled "the gulag of our time" in 2005, has become a lightening rod for criticism of the United States and a recruitment tool for international terrorists. It seems clear from what information is available, that of the approximately 250 detainees left in Guantanamo Bay, most have been cleared for release, but the administration has not been able to find a country willing to take them. Closing "Gitmo" has been advocated by former Secretaries of State, military officers, human rights groups and legal and political experts. During his campaign, President-elect Obama announced that he planned to close the prison at Guantanamo Bay if elected, and he should make it a top priority to keep this promise.

Second, ensure respect for the U.S. Constitution by using existing, ordinary courts - civilian and military - to try Guantanamo detainees who are accused of serious crimes.

During his campaign, President-elect Obama also announced that the existing legal system could handle whichever detainees remained to be tried. To his great credit, he voted against the Military Commissions Act of 2006, which permitted the government to classify individuals - including U.S. citizens -- as "unlawful enemy combatants," and subject them to a special legal regime. Yesterday it was reported that Senator Obama was considering the establishment of a "new legal system" to handle some detainees, which is presumably a reference to the establishment of national security courts recently proposed by a handful of legal scholars. Although advocates of creating a new set of courts to try terror suspects are no doubt sincere in trying to "fix" the problem of what to do with the detainees at Guantanamo Bay, let's remember that at least some of these folks are the ones who gave the advice that supported the practice of rendition and the establishment of Guantanamo Bay in the first place. Indeed, a close look at their proposals suggests a disregard for time-tested rules of law eerily similar to the lawyering style that has pervaded the administration during the past eight years. Let's turn the page on that infelicitous precedent! The federal courts, and regularly constituted military courts, are more than capable of trying individuals accused of terrorism and violations of the laws and customs of war, as they have done so before.

Third, the President should establish a Blue Ribbon Commission evaluating U.S. detention policies over the past seven years.

The Commission needs to examine not only issues of accountability for violations of U.S. and international law, but should make an authoritative record and issue recommendations regarding victim reparations for those who were imprisoned by U.S. officials or under U.S. authority by mistake. The Commission could also make recommendations concerning the other items on this list of suggestions, as well.

Fourth, the President should immediately issue an Executive Order mandating humane treatment for all detainees in U.S. custody.

It needs to be made clear that there is no "CIA exception" to the Convention Against Torture and the Geneva Conventions, and that the United States takes seriously not only its role as a beacon of freedom, human rights and democracy, but its obligations under international law.

Fifth, the President should recommit the United States of America to the international and domestic rule of law; by supporting and ratifying, when possible, the many human rights and humanitarian law treaties that the United States has eschewed during the past decade.


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In particular, the United States should support the International Criminal Court and ratify the Convention on the Rights of the Child, the Convention for the Elimination of Discrimination Against Women, the Landmines Ban, the ban on Cluster Bombs and the new treaty on Enforced Disappearances. Perhaps the idea of the United States supporting international human rights and humanitarian law treaties is farfetched - after all, the Law of the Sea Convention continues to languish in the Senate even thought President Bush supports it. Yet Obama's election allows one to hope that what seemed improbable only a few months ago might actually be possible. Moreover, to the extent that a new American era is now at hand, what better way to begin it than to accept international treaties that have been negotiated and accepted by our allies all over the world?

Sixth, the President should not issue pardons to individuals accused of war crimes, crimes against humanity or facilitating torture or cruel, degrading or inhumane treatment.

As of yet, very few individuals have been held to account for the abuses at Abu Ghraib prison, Guantanamo Bay, and detention facilities around the world to which individuals were rendered by U.S. officials or on U.S. instructions. Efforts to insulate individuals in advance included obtaining legal opinions that served, in Jane Mayer's words, as "golden shields" to permit rendition, torture and cruel treatment, and amending the war crimes act of 1996 to try to prevent effective use of federal law to bring prosecutions against individuals who may have engaged in torture or cruel treatment. Without prejudging in any way the outcome of any Commission established to look into issues of accountability, further legal immunization of individuals who may have committed or aided and abetted the commission of these crimes should be off the table.

Seventh, the President should seriously consider joining the Inter-American system by ratifying the American Convention on Human Rights.

Additionally (or alternatively) the United States could consider establishing its own human rights commission. Regional human rights regimes such as the European Convention on Human Rights have clearly had a moderating influence on European efforts to address international terrorism. For example, in A. v. Secretary of State, the U.K House of Lords held that Britain could not indefinitely detain aliens suspected of connections to terrorism.

As Lord Hoffman wrote in that case,

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.

There is no doubt that governments have a duty to respond to national security threats; but they have equally important obligations to ensure the human rights of their citizens, and their prisoners. Fear causes governments to overreact; strong institutions help nations to respond in a more measured way. Most democracies are members of regional human rights regimes, and many have their own national human rights commissions. The United States could consider these examples as it looks for ways to strengthen its own human rights record, and enhance its world leadership.

The new President should consider implementing these suggestions even though cynics could argue that the United States has "gotten away" with conducting the war on its own terms, without regard either to a decent respect for the opinions of mankind or the legal and institutional framework of international law. In addition to the obvious point of enlightened self-interest -- that the United States can only achieve its objectives if it acts with legitimacy and commands respect -- there is the deeper moral question of deciding what we stand for. Do Americans still believe that all human beings are created equal and endowed with inalienable rights, beliefs that many generations of Americans have died fighting for, beliefs that have inspired respect and admiration for the United States the world over, and principles that President-elect Obama invoked in his campaign?

The war that was launched from the nightmare of September 11 has produced the nightmare of Guantanamo, the horror of Abu Ghraib, the broken lives of the U.S. soldiers killed or wounded in Iraq and Afghanistan, the deaths of tens, maybe hundreds of thousands of Afghan and Iraqi civilians, and the shattered psyches of America's torture and rendition victims. The United States is better than this -- surely it can temper its great power with reason, to paraphrase Justice Jackson's famous phrase uttered at Nuremberg so many years ago. On January 20, 2009, it is to be hoped that the 44th President of the United States of America will immediately begin doing so.

Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law, St. Louis, Missouri

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