Holding America Accountable

Eleanor Roosevelt, the mother of the international human-rights movement, famously said: “Where do universal human rights begin? In small places, close to home. So close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works.”

The human-rights treaties to which the United States is a party -- on civil and political rights, torture, and racial discrimination -- are intended to protect people “close to home” against government abuses of their rights. But most Americans have never heard of them. Neither have the domestic agencies that have -- or ought to have -- protection of these rights as part of their mandate. In the United States, human-rights matters begin -- and largely end -- in the State Department, where they are treated as a matter of foreign policy.

Perhaps the only welcome consequence of the Abu Ghraib prison scandal is that more Americans have now heard of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But they may well conclude that the treaty's main purpose is to protect unfortunate victims abroad and has nothing to do with them. Even more shocking than the brutality depicted in the Abu Ghraib photographs were the memorandums written by administration lawyers that tried to justify the conduct and create a legal theory to defend those caught in the act. These memos confirm what's been obvious to many since the early days of the administration: its deep cynicism toward international obligations and its shallow commitment to human rights.

The roots of this cynicism, though, stretch back farther than the current administration. The manner in which the United States undertakes these human-rights obligations in the first place reveals much about the place they hold in American law.

When the executive branch asks the Senate to ratify a human-rights treaty, it sends a companion package of reservations, understandings, and declarations designed to ensure that the treaty effects virtually no change in domestic law and practice. Lawyers at the State Department, with some help from the Department of Justice, go through the treaty's provisions, comparing its requirements to state and federal law and practice. If there is any conceivable contradiction, the United States exempts itself from compliance. For provisions where there's no outright contradiction, the United States complies only to the extent that the treaty is congruent with, but not broader than, existing U.S. law. Then, just for insurance, the United States declares that the treaty is “non–self-executing,” to avoid having the treaty create private rights enforceable in U.S. courts.

In the rare instance where a treaty absolutely requires changing domestic law, the United States has found ways to limit and pervert that implementation. In the case of the torture convention, for example, signatories are required to explicitly outlaw torture. So, although the Senate ratified the treaty in 1991, it took three years for Congress to pass a statute simply declaring torture to be a crime. Why? Because some members of Congress persisted in amending the anti-torture bill to add a death penalty. This prompted those who otherwise would have supported the bill to oppose it. Round and round it went until 1994, when the bill was finally passed, outlawing torture and setting a maximum penalty of life in prison. U.S. ratification of the treaty took effect; the human-rights community had a party. And, six months later, Congress amended the law to add back in the death penalty.

The law criminalizes torture, but only when it is committed outside the United States. Existing criminal laws -- against assault and battery, murder and manslaughter, kidnapping and abduction, false arrest and imprisonment, sexual abuse, and violation of civil rights -- were considered at the time sufficient to cover any act constituting torture. That's why the police defendants in the 1997 torture of Haitian immigrant Abner Louima in New York were charged not with torture but with violating his civil rights. But the current administration now relies on that jurisdictional limitation to argue that the Abu Ghraib abuses, because they took place in U.S.–occupied territory, are exempt from prosecution under the federal anti-torture statute. As Attorney General John Ashcroft testified in June, it's Congress' fault. “When the Congress enacted the torture statute,” he said, “it enacted a law that said it applied everywhere outside the United States. But when the Congress defined the United States, it's not simple: It will sometimes include military bases, it will sometimes include consular offices, it will sometimes include the residences or embassy offices. And when the Congress of the United States makes these definitions, that's what I have to live by.” Of course the treaty's ban on torture applies no matter where the conduct occurs, but Ashcroft's argument underscores the need to amend the anti-torture statute so that there are no gaps in criminal jurisdiction. Torture inside the United States is still torture.

Some treaty rights can be restricted in times of emergency that “threaten the life of the nation.” (However, the right to be free from torture is not among these.) The International Covenant on Civil and Political Rights includes a process under which countries can suspend certain rights, such as the right to be free from arbitrary arrest, and the right to a speedy trial, guaranteed in Article 9 of the covenant. Britain, whose new anti-terrorism law authorizes violation of these rights, has entered such a “derogation” with the United Nations. Shortly after President Bush issued the order authorizing military trials of noncitizens, I was meeting with senior human-rights officials at the State Department. I asked them whether they had taken steps to derogate from Article 9 of the treaty on civil and political rights. It was clear that they hadn't considered the question at all. The idea that these treaty obligations might in any way constrain U.S. action simply hadn't occurred to them.

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It doesn't have to be this way. There are other models of treaty ratification and implementation that take these obligations seriously and weave them into the fabric of domestic law and practice, through the political process and by public education. When Canada considers a treaty, for example, it engages in a lengthy process of consultation; provinces are invited to identify possible reservations to the treaty where it conflicts with local law. The process is used both to get buy-in from the provinces and to educate local officials about the treaty's requirements. Once ratified, jurisdiction over the treaty's implementation and monitoring shifts to Canada's department of justice, which deals with individual complaints about violations and vets proposed legislation for conformity. Australia, meanwhile, reaches out to its states through its Human Rights Working Group of the Standing Committee of Attorneys General; the Parliamentary Standing Joint Committee on Treaties in the federal parliament holds public hearings.

Suppose the United States decided to take these obligations seriously. What if, instead of the cynical process we have now, it went like this: The president decides its time to ratify the covenant on civil and political rights, but there's a prohibition on juvenile execution, and many states in the United States still execute juvenile offenders. The president's lawyers thus draft an exemption clause, preserving the right of the United States to execute children, but the president asks them to draft legislation banning juvenile execution for Congress to consider alongside the reservation. Congress then chooses among implementing the treaty through legislation, ratifying it with reservations, or holding off on ratification until the law can be changed to conform to the treaty.

Sound crazy? President Clinton broke new ground in this direction with his 1998 Executive Order 13107 on the Implementation of Human Rights Treaties, issued on the 50th anniversary of the Universal Declaration of Human Rights. If the Universal Declaration is the birth certificate of the human-rights movement, Executive Order 13107 is its diploma. The order created a structure designed to break the monopoly of the State Department on human rights and bring these obligations into the mainstream of the domestic agencies with primary jurisdiction over their subject matter.

The order also created an Interagency Working Group with broad membership and an expansive mandate to prepare treaty compliance reports to the United Nations; respond to complaints about human-rights violations; vet proposed legislation for conformity with treaty requirements; monitor and analyze state law and practice on human rights; educate the public about human rights; and conduct a yearly review of all U.S. reservations, understandings, and declarations to see whether they can be withdrawn or whether U.S. law should be altered to make them unnecessary.

The working group was in operation for two years. It made slow progress, primarily with officials from the Justice Department, the Department of Health and Human Services, and other domestic agencies who were initially reluctant -- and confused -- participants. Over time, though, through a process of education and shifting bureaucratic incentives, the working group began to change the way domestic agencies viewed their relationship to these treaties and created a structure to integrate human rights into the domestic-policy mainstream.

But the experiment was over before it really got off the ground. Under the Bush administration, the working group has withered, and human rights are back behind the State Department's fence.

This year, the United States is due to report to the United Nations on compliance with the torture convention. It will be only the second time in the 10 years since ratification that the United States has had to engage in this self-examination process. Its first report, filed in 1999, began with the words, “Torture does not occur in the United States except in aberrational situations and never as a matter of policy.” What will the report say this time?

Elisa Massimino is the Washington director of Human Rights First (formerly the Lawyers Committee for Human Rights).