HUMAN RIGHTS AND TERRORISM - Netherlands Helsinki Committee

PART IV: HUMAN RIGHTS VERSUS SECURITY, A CRUCIAL DIALOGUE
heading_white

mr. tom malinowski (human rights watch):
“By infringing basic liberties the U.S. undermines
its own terrorism prevention strategy”

heading_white
Mr. Malinowski (Human Rights Watch) argues that a successful strategy to prevent further terrorist attacks should be twofold: good police- and intelligence work, and a political transformation in countries where lack of democracy makes dissent turn into violent extremism. Both approaches should rely on strict adherence to human rights: police work tends to get sloppy when the appropriate rules aren’t followed, whereas stimulating political transformation abroad is contingent upon repairing the severely damaged moral authority of the United States as champion of the rule of law and democracy, says Mr. Malinowski. However, he hopefully notices the start of a healthy domestic debate on issues such as detaining suspects indefinitely without trial, practicing ‘soft’ torture and sending suspects to be questioned in countries with bad human rights records.
heading_white

Mr. Tom Malinowski (Human Rights Watch): “Actions that restrict civil liberties are a distraction from the hard work that really needs to be done.”

“I’m also very happy to share the stage with Viet Dinh, in part because we have some things in common: we’re both immigrants to the U.S., and we both came to the U.S. from Communist countries, Vietnam and Poland. Not many years later, we find ourselves debating fundamentals of America’s commitment to liberty and human rights, which I find a wonderful thing, even though we don’t agree on every score, obviously. Also I’m particularly happy–for selfish reasons—to be sharing the floor with him after he left the Justice Department, because it means that he can no longer have me indefinitely detained as an enemy combatant immediately after this meeting. So I can speak freely.

I am here representing a human-rights organization, and I am someone who believes that human rights are inherently precious and worth defending, no matter the circumstances. I am also someone who has in the past served my country in a position that focused on the full range of national security issues, and I strongly believe that winning the war on terrorism must remain the number one priority for all governments threatened by terror.

Today, I’m going to speak as much from that national security perspective as from the perspective of a human rights advocate. I feel I can do that because I reject the argument that there is an inevitable trade-off between fighting terror and protecting human rights. On the contrary, I believe that the steps the United States and other Western countries have taken since ‘9/11’ to weaken domestic protection of human rights have, at best, done nothing to advance the cause of fighting terror and, at worst, seriously undermined it.

The notion that there is a trade-off is, of course, widely accepted and rarely challenged. In the United States, for example, there is a cliché that virtually everyone in public life has repeated at one point or another. I’m probably guilty of it as well. It goes something like this: ‘On September 11, these terrorists took advantage of our open society to destroy that society; they benefited from our freedoms to strike at our freedom.’ It sounds almost self-evident. But is it really true?
Let’s try this little thought-experiment: imagine you were a member of an Al-Qaeda terrorist cell two years ago, and you were planning an attack like the one we saw on 9/11—crashing a plane into an important public building. Except you were not planning an attack on the United States, but on China, say on the Forbidden City or Tiananmen Square or an office tower in Shanghai. Would it have been any more difficult to pull off such an attack on China’s closed society than on America’s open society? My answer is: no. Any one of us could have gotten flight training somewhere, gotten a tourist visa to China, boarded a domestic flight, hijacked it and flown it into a building. All the powers invested in the Communist Party in China—to detain people indefinitely without due process or trial, to interrogate them without access to a lawyer and without regard to any prohibitions on torture, to use special security courts, to spy on citizens, to restrict travel and immigration—all these powers would have done nothing to prevent a determined, well-organized terrorist movement from launching a suicide attack such as this. By the same token, had we invested all those powers in the President of the United States and his Attorney-General, it would have done nothing to prevent ‘September 11’. That’s because determined terrorists don’t need human rights to do what they do.

So what could have prevented these attacks, and what are the most important things we need to do today to prevent future attacks? I think most people with real-world counter-terrorism experience will tell you the same. First, there is a need for painstaking law-enforcement work and better intelligence, for better coordination between domestic intelligence and law-enforcement agencies, better law-enforcement cooperation across national borders, better security at seaports, airports, and critical infrastructure. The problem with this kind of work is that it isn’t very glamorous; success is hard to quantify; one doesn’t end up with a dramatic body count to put in a press release. And yet, this is what has worked. And none of it requires abrogating human rights or civil liberties. Indeed, actions that restrict human rights and civil liberties are a distraction from the hard work that really needs to be done.
One example from the United States was the decision by the U.S. Justice Department to round up, immediately after 9/11, over 1,200 aliens from Muslim countries. This was a huge deal, portrayed as a major blow against the terrorist network in the days and weeks after the attacks. Many of these people were held incommunicado, many fell into nigphparish legal black holes. Yet, in the end, the only charges brought against the overwhelming majority of these people were for routine immigration violations. None were charged with offences related to the September-11 attacks.
In retrospect, it seems to me that these arrests were motivated more by the Bush administration’s desire to do something dramatic, than by any desire to do something effective. In the end, all they created was a false sense of security, the illusion that our government was actually doing something in response to the threat. The Justice Department’s own Inspector-General recently agreed, castigating the haphazard way in which the government failed to distinguish between real terrorist threats and petty immigration violations. This was a huge distraction from the real work of fighting terror.
And it reminds us that in law-enforcement matters, human rights and due process protections are not just there to protect the terrorist suspects. They are there to protect all of us from lazy police work, from the Casablanca mentality that says, ‘round up the usual suspects.’ It compels law-enforcement agencies to make sure they get the right intelligence and arrest the right people, because they know they’ll have to prove their case to a court. I’d feel much safer knowing I’m protected by law-enforcement officials who have to play by those rules.

The second thing we need to win the war on terrorism is something much more fundamental and complex than good police- and intelligence work. It is to effect a political transformation in the countries that have spawned terrorist movements, in the Middle East, North Africa, the Caucasus, Central, South and Southeast Asia. Why is this important? Let’s not forget what the ‘9/11’ terrorists had in common. Virtually all came from countries that restrict fundamental freedoms—countries like Egypt, Saudi Arabia and Pakistan, where people have no peaceful, democratic outlets to express dissent, and are therefore naturally drawn to shadowy, extremist groups that express themselves violently.
Virtually everyone who thinks seriously about foreign policy in the United States has recognized that political repression in this part of the world fuels support for terrorism. Virtually everyone has come to the conclusion that changing this is a national security imperative for the United States. President Bush himself, to his credit, has spoken out about the need for political reform and respect for human rights in the Arab world, something no American president before him has really done.
But there is a problem.
It is very difficult for the Americans to say to the President of Egypt or Syria that he can’t use state security laws to lock up anyone he thinks is a security threat, when the President of the United States is claiming the authority to do the same thing; it is difficult for the U.S. State Department to criticize other countries, as U.S. diplomats do every day from Algeria to Burma to China to Saudi Arabia and Zimbabwe, for detaining suspects indefinitely, without charge, and without access to lawyers, when the U.S. Justice Department is asserting the right to do the same thing to suspects arrested off the battlefield, simply on the President’s say-so; it is hard for America to complain effectively about torture and mistreatment of detainees in Iraq or Iran when Bush administration officials brag to the press about breaking Al-Qaeda detainees with ‘soft’ torture techniques, as they did for months until the White House issued a more clear policy on this issue last month; it’s hard to complain about torture in Egypt when America and Western Europe send detainees to be interrogated in Egypt and close their eyes to what happens next.

Now, Professor Dinh might say: ‘Wait a minute, you can’t compare what America is doing to Al-Qaeda suspects to what Egypt or Saudi Arabia do to dissidents.’ And on one level he’d be right. George Bush has no interest in locking up journalists or his political critics as enemy combatants in the war on terrorism. But he is asserting a degree of authority that would permit him to do that. The example this sets for the world is profoundly damaging. It is a radical departure from the principle of checks on executive authority that America has long stood for and promoted around the world. And it has consequences around the world.
During the Cold War, dissidents in Eastern Europe looked to America as a model, as a genuine champion of their democratic aspirations. Despite the Bush administration’s efforts, nowadays few reformers in the Muslim world look to the United States as a credible champion of their human rights. President Bush may speak to them with moral clarity. But he lacks moral authority, in part because the United States is not seen as applying to itself the values it preaches to others.

It is extraordinarily important for all of us to understand how conscious people in the Muslim world are of the compromises America and its allies have made in the war on terror, and how sensitive they are to the slightest appearance of hypocrisy. When human-rights organizations like mine raise civil liberties issues with governments in this region, we increasingly hear back the answer: ‘Why are you raising this with us? Hey, John Ashcroft (?) does the same thing.’ We had a funny experience recently talking to some Egyptian diplomats about a report we’d done on ‘post-9/11’ detainees in the United States, to whom we were being denied access. What the Egyptians wanted to know from us was: ‘What reasons did the Justice Department give to deny you access? We really want to know, because people like you are always trying to get access to our prisons and we’d like to know what to say.’

Professor Dinh also said that what the United States is doing is different because it is happening in the context of a war, and under the laws of war it is permissible, for example, to hold combatants without charge or trial for the duration of the conflict. But it is extraordinarily dangerous to declare, as the Bush administration has done, that the whole world is a battlefield in the war on terror, and that the laws of war apply to every element of the struggle against terrorism. If the whole world is a battlefield and every suspected terrorist is a combatant, then it would be entirely permissible for the United States to do on the streets of Paris or Hamburg or Cairo what it did last year in a lawless area of Yemen—in other words, if its intelligence picked up the presence of a suspected terrorist in a house in a European or Middle-Eastern city, it could fire a ‘Predator’ missile at that house so long as it took appropriate care to minimize civilian casualties. In just the same way, when the suspected terrorist Professor Dinh mentioned, José Padilla, walked off that plane at Chicago O’Hare airport, the FBI would have been well within its rights to gun him down right in the terminal—that is, if the laws of war had indeed applied to that case, as the administration claimed. Now, the Bush administration might not want to do any of these things. But that is where their arguments lead. And other countries, with fewer scruples, will take those arguments and run with them.

All of this matters profoundly. With America and some of its European allies setting a bad example, it’s a lot easier for a country like Pakistan to restrict basic freedoms prior to elections, with the result that more moderate, secular, pro-western political movements are marginalized and radical extremist organizations fill the vacuum; it’s easier for a country like Uzbekistan to round up thousands of pious Muslims on the pretext of fighting terrorism, with the result that more and more young Uzbeks become alienated, angry and drawn to extremism; it’s a lot easier for Russia to crack down harder in Chechnya, on the pretext that human rights can be sacrificed to national security, with the result that Chechnya has, in fact, increasingly become a breeding ground for people who use violence to achieve their ends.

I watched the debate about civil liberties in the war on terror unfold in the Bush administration over the last couple of years, and I fear that many of the responsible officials simply had no comprehension of the impact America’s domestic policies have had around the world; no idea how much they have hurt America’s image and authority as a champion of the rule of law and democratic values; no idea how badly they have undermined one of the Bush administration’s stated strategic initiatives in the war on terrorism—the effort to promote moderation, good government, and respect for human rights in the greater Middle East.
To me, all this is very sad, because I believe that, for better or worse, America leads by example, whether it does so consciously or not, and I want my country to set a good example. It is sad, perhaps especially so because it was all so profoundly unnecessary to the real work of fighting terrorism.
The good news is that I think the phase we’ve gone through is a temporary one. There is a healthy debate now in America about the need to protect basic liberties as we wage this war. The U.S. Congress is telling the administration that it won’t simply accept every restrictive proposal that comes its way. The pendulum is swinging back. I hope and pray and still have enough faith to believe that the damage will not be permanent.”

| page top