May 27, 2005,
Amnesty International’s 2005 “Report” on worldwide human rights was released this week, and its contents have justly outraged Americans who support U.S. efforts in the war on terror including the Washington Post which noted that Amnesty had “lost its bearings” and joined “in the partisan fracas that nowadays passes for political discourse.” Among other things, the report accuses the United States of “war crimes,” and openly compares the detention facility at Guantanamo Bay, Cuba, with the Gulag Archipelago. In addition, the executive director of Amnesty International USA has called on foreign governments to seize and prosecute American officials traveling abroad, just as a Spanish judge attempted to prosecute former Chilean dictator Augusto Pinochet in 1998. In fact, the report says much more about the nature of Amnesty International and the agenda of similar left-wing nongovernmental organizations (NGOs) than it does about the human-rights record of the United States.
The Rule of Amnesty LawFirst and foremost, Amnesty’s report is emphatically not an honest assessment of American compliance with international law. Rather, it is an assessment of how well the United States complies with Amnesty International’s political and ideological agenda equivalent to the grading of individual members of Congress by domestic advocacy groups. This is obvious from the report’s three fundamental measures of a good human-rights record, which are applied to every included state: (1) whether the death penalty has been retained; (2) whether the International Criminal Court treaty has been ratified; and (3) whether the U.N. Women’s Convention, and its Optional Protocol, has been ratified. All of these criteria involve controversial political issues where there is fundamental disagreement between right and left and from Amnesty’s perspective George Bush’s America fails on all counts. This, of course, is what you would expect, since the president is a conservative, elected by increasingly conservative American voters.
With respect to the war on terror, Amnesty’s principal complaint is that “[h]undreds of detainees continue to be held without charge or trial at the US naval base in Guantanamo Bay, Cuba.” This, of course, is the installation that Amnesty’s secretary general, Irene Khan, characterized as “the gulag of our times.” Khan is either profoundly ignorant of the actual gulag, where Communist regimes “re-educated” political dissidents through murderous hard labor, starvation diets, and exposure to the elements, or engaging in highly improvident hyperbole. It is most likely the latter. (As the Washington Post editorialized, the “modern equivalent” of the gulag can be found not at Guantanamo Bay, but in Castro’s Cuba, North Korea, China and, until recently, Saddam Hussein’s Iraq.) In a calmer moment, Khan might reflect that comparing American policies with which she disagrees to genuine atrocities committed by some of the most vicious and repressive regimes in history effectively trivializes the actions of those regimes.
We're At WarOf course, the men held at Guantanamo Bay are not political dissidents. They are captured enemy combatants. Under the laws of war, they can be detained until the conflict, or at least actual hostilities, are concluded. This has been the practice of the United States, and of every other major power in Europe and elsewhere, for centuries. It is not illegal; it is not immoral. In fact, this rule is one of the first and most important humanitarian advances made in warfare. The right to detain is the necessary concomitant of the obligation to give quarter on the battlefield, to actually take prisoners alive.
To be fair, Amnesty International knows this. (Indeed, it restated the traditional rule in the report’s chapter on Morocco, which notes that the rebel Polisario Front was obliged “[u]nder international humanitarian law” to release its government prisoners when hostilities ended in 1991.) What Amnesty is really saying is that, in its view, America’s fight against al Qaeda is not an armed conflict, to which the laws of war apply, but a criminal-enforcement matter where the rights to a speedy, civilian trial are applicable. This is evident in the report’s description of the Guantanamo detainees as individuals “held without charge or trial . . . on the grounds of possible links to al-Qa’ida or the former Taleban government of Afghanistan.” Despite the fact that the vast majority of detainees at Guantanamo were captured on the battlefield, in arms against the United States or its allies, this “criminal enforcement” view is widely held on the Left. It is also a historical and legally incorrect.
The American military was deployed against al Qaeda, and its Taliban allies, in accordance with a specific congressional authorization (dated September 18, 2001) for the use of force. As the Supreme Court recognized as early as the 1798-1801 “undeclared” or “quasi” naval war with France, the United States can be at war without a formal declaration. In addition, as the Court also ruled in cases dealing with Indian tribes the United States can be at war with a non-state. Both of these rules are fully consistent with the requirements of international law. States can be engaged in an “armed conflict” with non-state actors.
Indeed, Amnesty’s insistence on applying a criminal-law model to captured al Qaeda and Taliban members is particularly ironic, since similar advocacy groups, like the International Committee of the Red Cross, spent much of the later 20th century promoting rules that applied the laws of war to non-state actors, albeit with special privileges and advantages for irregular forces. Their goal at the time was precisely to avoid the criminal trial and punishment, including imposition of the death penalty, on captured members of “national liberation movements.” For its part, the United States properly resisted efforts to grant special privileges to guerillas and terrorists. It remains fully entitled to rely on the customary law of war in combating al Qaeda and in classifying that group as “unprivileged” or “unlawful” combatants who do not qualify for prisoner of war (POW) status upon capture.
POW status, as defined in the 1949 Geneva Conventions, requires treatment in terms of food, clothing, shelter, and medical attention on a par with the detaining power’s own armed forces, along with an array of other privileges designed to make captivity as pleasant as circumstances permit. Captured unlawful combatants are not entitled to POW status because such men are associated with groups that do not comply with even the most basic law of war requirements such as the prohibition on targeting civilians. They do not enjoy special privileges under the Geneva Conventions, although customary international law provides that they must be treated humanely. That, of course, is exactly what President Bush ordered clearly and unequivocally.
To be sure, his orders have not always been obeyed. There have been instances of prisoner abuse, at Abu Ghraib and elsewhere. The armed forces are a human institution and, like any such institution, there are flaws. That is why we have an elaborate and highly responsive military-justice system. Investigations are ongoing, prosecutions have been brought, and some individuals have already been punished. In fact, the record of human-rights compliance so far compiled by the United States Armed Forces in the war on terror has been exemplary. Tens of thousands of individuals have been captured and processed by American forces. There have been a few hundred allegations of abuse, and only a few dozen documented cases.
Playing PoliticsIn light of this record, suggestions, like those made by Amnesty International and its U.S. executive director, that American officials should be prosecuted for war crimes are gratuitous, and show the left at its very worst at its most willing to criminalize political and policy differences. This is especially true with respect to Amnesty’s claims that the “US administration had sanctioned interrogation techniques that violated the U.N. Convention against Torture.” In fact, the administration has “sanctioned” only the use of stressful interrogation methods, such as standing, hooding, and sleep deprivation, at a level which does not constitute “torture,” under either the U.N. Convention or U.S. law.
As Amnesty International knows, the U.N. Convention defines “torture” as “severe pain or suffering.” That means that there is some level of pain and suffering, which is not severe, that does not constitute torture. So long as coercive interrogation methods do not cross that line, and are not otherwise “cruel, inhuman or degrading,” they are lawful. What constitutes “cruel, inhuman and degrading” treatment is not defined in the treaty. The meaning of these terms depends very much on the situation and individuals involved. The European Court of Human Rights, in a case dealing with British interrogation of IRA terrorists, concluded that a series of stress methods including hooding, stress positions, loud noise and sleep deprivation did not constitute torture, and were “inhuman” only when used together.
Overall, these are difficult exercises in line drawing, and reasonable minds can certainly differ. In discussing this question, however, the administration’s opponents especially among the “human rights” community distinctly fail to recognize or acknowledge that there are humanitarian imperatives on both sides of this question. The United States turned to the use of stressful interrogation methods because non-stressful methods were not producing the intelligence necessary to protect American forces, and especially American civilians at home, against attack by a group that has made plain its purpose and intent to kill as many American civilians as possible. This is the “security” interest that Amnesty International, and other NGOs, decry as having undercut human rights and civil liberties. They simply do not consider that the defense of the American population, and the vindication of each individual’s right to live without the threat or actuality of terrorist attack, is their problem and it is time they did.
Like too many other NGOs, Amnesty is trapped in a 20th-century mindset where the greatest threat to individual life and liberty stemmed from the actions of sovereign governments. That is simply no longer the case. Although the world remains full of repressive regimes, the most immediate threat to the civilian population in the United States and other democracies comes from pan-national terrorist movements who deliberately target non-combatants as a means of achieving their ends. Amnesty International, like other NGOs, must accept and start to address this new set of circumstances.
In the meantime, Amnesty International should reflect that its extravagant and unfounded claims that the United States has violated international law, and that its officials should be the subject of criminal prosecution, work to undercut its own mission. Amnesty claimed that “[w]hen the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a licence to others to commit abuse with impunity and audacity.” In fact, it is Amnesty International, and similar NGOs, who have granted that license. They have done this by failing to distinguish clearly between American interpretations of international law, including the Geneva Conventions and Torture Convention, with which they may disagree as a policy matter, and actual illegal conduct. It is hardly surprising that repressive regimes claim that the United States has violated the law, thus permitting them to follow suit, when groups like Amnesty persistently state that American policy at Guantanamo Bay is illegal even though this is simply not true.
The authors are partners in the Washington, D.C. offices of Baker & Hostetler LLP. They served in the Justice Department under President Reagan and George H.W. Bush, and are members of the U.N. Sub-commission on the Promotion and Protection of Human Rights. The views here expressed are their own.