Another Way in Which 9-11 “Changed Everything”

I appreciate the invitation to speak with you this morning about the ways in which counterterrorism and security legislation have been used and abused in the three years since the attacks of September 11 to make more difficult the already challenging work of those on the front lines of the defense of human rights around the world. As I stand here in the presence of non-governmental advocates like Shirin Ebadi and governmental advocates like Odd Einar Dorum, I must acknowledge the sad fact that my own government, in its response to the despicable violence wrought by hijacked planes three years ago, has often fallen far short of its own best traditions and acted in contravention, bordering on contempt, of international law.


In American political and cultural discourse of late it is common to talk of the attacks of September 11 as having “changed everything.” While that is a considerable overstatement—I live less than a mile from the fallen World Trade Centers, whose ashes floated into my back yard that sunny September afternoon, and the remarkable thing about such a cataclysm, a fact affirmed over and over again in sites of violence and horror around the world from Sarajevo to Kigali, is how resilient human normalcy is. But it is certainly true that September 11 changed a lot with respect to human rights—almost entirely for the worse.


It’s important to acknowledge at the outset that virtually all governments chafe at the constraints of law, seek more power and less accountability, crave less scrutiny of their actions, and rankle at those who would check that power, insist on accountability and focus scrutiny. It has always been so, and the victories of citizens seeking to claim their rights against national governments are advances of only the last few centuries. International recognition of those rights is younger still—the last half-century, for all practical purposes.


From the minute an international human rights system was put in place, governments found excuses to evade their obligations. For the first forty years after World War II, the principal excuse was the “global struggle against communism,” and much of what I have to say in the next few minutes will sound very familiar to the slightly older members of the audience—that is to say, my age and above—who lived through the Cold War. We have only to recall the anti-Communist witch hunts and loyalty oaths in the United States—not to mention the vast FBI and CIA domestic surveillance and disruption abuses of the Vietnam War period—or the brutal violence with which military dictatorships in Latin America extinguished opposition movements and with which the South African apartheid regime suppressed the ANC until justice finally won the day.


It is in this context, in this shameful history, that what is going on now must be assessed. Here is a brief travelogue, drawn from the work of my human rights colleagues all across the world:


  • In Indonesia, President Megawati Sukarnoputri told soldiers not to “be afraid of abusing human rights” in Aceh, where the army’s longstanding effort to suppress insurgents has now been “recast” in the words of my Human Rights First colleague Neil Hicks, as part of the “global war against terrorism.” Indeed, Rachland Nashidik of the Indonesian Human Rights Monitor has argued that “what we struggled for thirty years to obtain, and partially achieved after 1998 … to push the military away from internal security and toward working as a defense power only” was used after the Bali and Marriott bombings as momentum “to get back its traditional power, based on the idea that the police force in Indonesia is incapable of combatting acts of terrorism.”
  • In India shortly after September 11, 2001, the deputy prime minister urged speedy passage of a new Prevention of Terrorism act, warning opponents that opposition would “wittingly or unwittingly help terrorists.”
  • In Nepal, according to Mandira Sharma, executive director of the Advocacy Forum, lawyers who take cases involving alleged terrorists are beaten or accused of being terrorists or supporters themselves.
  • In Bulgaria, attorney Ivan Ivanov of the European Roma Rights Center asserts that “after September 11, the war against terrorism somehow legalized police brutality against Roma people…the only argument of the police officials is that the Roma are the same color as the terrorists.”
  • In Turkmenistan, Vitaly Ponomarev of the Central Asian Human Rights Society cites increased “repression of dissidents under the pretext of a war on terrorism,” and in Uzbekistan, “under the pretext of a war on Islamic fundamentalists… charges brought against Islamic groups.” In Russia, an Uzbeki citizen was arrested just for publicly condemning Russian security forces’ crackdown on an Islamic organization.
  • In Zimbabwe, the Public Order and Security Act of 2002, repressive legislation that according to Arnold Tsunga, executive director of the Zimbabwe Lawyers for Human Rights, “sounds the same language that is being used in America in terms of fighting terrorism,” if four people assemble without police permission, it is considered a “threat to public order and security.”


As former U.S. President and Nobel Peace Laureate Jimmy Carter told a human rights defenders conference in Atlanta last year, “dictators have been emboldened to violate the human rights of their peoples under the guise of joining the fight against terrorism and … the same reason is used to deflect criticism from other powers regarding their human rights violations.” President Carter went on to lament that “in emerging and even established democracies, hard-won human rights principles are being eroded on these same ground of emulating new U.S. policies. The consequence is that many lawyers, professors, doctors, and journalists have been labelled as terrorists, often for merely criticizing a particular policy or carrying out their daily work.”


Hina Jilani of Pakistan, Special Representative of the U.N. Secretary-General on Human Rights Defenders, speaks of a “climate of retreat” from human rights commitments in the wake of the “war” against terrorism. “Our tolerance for exceptions is growing,” she warns. “I come from a part of the world,” Ms. Jilani reminds us, “where there is no denying the menace of terrorism. We are those who fought for the rights of women, minorities; trying to accommodate religious and ethnic pluralism, we actually experienced the violence of these terrorists. So we know all about it. But at the same time, it is very important that we fight this menace with the tools of human rights.”


Professor Said Eddin Ibrahim of Egypt, released from prison last year after international pressure, whose cause was strongly supported by the Bush Administration, nevertheless tells us that “every dictator in the world” has said: “Look, here is a United States that had for years reprimanded us for a violation of human rights; look what they are doing.”


While it is understandable, he acknowledges, that Americans would mobilize against terrorism after September 11, “it was not understandable at all that they should go to excess, and they engaged in draconian measures that remind us of the McCarthy era in an earlier decade in the United States.”


These words from brave partners who have fought for human rights in parts of the world where they must walk on the knife edge of terrorism, state-sponsored and otherwise, make an American who is angry at his government’s policies even angrier. What, you may ask, prompts their deep disappointment in a nation that has held itself out as a beacon of freedom and that even now claims to be waging war in the mideast to promote human rights and democratic values?


There is the misnamed USA Patriot Act, which permits law enforcement and intelligence agents to conduct secret searches of private homes and businesses without prior notice; which gives government agents easier access to personal information in the records of libraries, health insurers, bookstores, schools, business and non-governmental organizations; which eases wiretap laws to make it easier to monitor internet usage and e-mail; which tightens immigration laws to deny entry or deport many more non-citizens based on a broad new definition of “terrorist activity;” and which created a new category of crime called “domestic terrorism” that is broad enough to include groups such as Greenpeace or even anti-abortion groups.


When the U.S. Congress was considering the Patriot Act in the weeks after September 11, Attorney General John Ashcroft, doing his best to resurrect the ghost of Joe McCarthy, warned that the few lone voices raised against this rush to enact into law the “wish list” of police and prosecutors, most of which sat on the shelf for years waiting for the excuse provided by widespread and understandable fear brought on by September 11, were giving comfort to the enemy and conjuring up “phantoms of lost liberty.” Shamefully, only one Senator voted against the bill, which most of his colleagues could hardly even have read. Such was the climate in those fearful days. More voices have since been raised, including many of libertarian conservatives. President Bush, who seems unable to admit a mistake of any kind, wants the act extended and expanded. Senator Kerry, despite his vote for it, suggests some modifications are in order.


In case you think the Patriot Act has gone unnoticed in palaces and parliaments around the world, listen to what Malaysian Minister of Justice Dr. Rais Yatim had to say after he and Prime Minister Mahathir met with President Bush and Attorney General Ashcroft in 2002: “I believe that after the meeting there will be no more basis to criticize each other’s systems, specifically the (Malaysian Internal Security Act), because if they do that, then the Patriot Act, which is quite similar in nature to the ISA, could come into a position of jeopardy itself: Ashcroft seemed to understand the existence, need and the future of the ISA in as much as we understand the Patriot Act.” And indeed, there has been no subsequent public criticism of the ISA by the U.S. The U.S. has turned a blind eye as well on the brutal tactics of the Russian government in Chechnya, where President Putin is now citing “terrorism” as an excuse to consolidate his political power and weaken countervailing democratic institutions and the press. Countries like Colombia, Pakistan, Indonesia, the Philippines, and Uzbekistan, all of whom ride roughshod over human rights in counterterrorism campaigns, all received substantial increases in military assistance.


The U.S. Embassy in Nairobi originally refused even to consider proposals from the Kenyan Law Society concerning the Suppression of Terrorism Bill, which could have been used to ban the Kenyan Human Rights Commission itself.


Less well-known consequences of the Patriot Act and related Executive Orders, but particularly worrisome to human rights defenders, is the trend cited in a recent Los Angeles Times article by Paula Newberg, in which “large humanitarian providers and small human rights organizations alike are checking their overseas colleagues and funding recipients against ever-changing lists provided by the U.S. Treasury, the United Nations, the European Union and in some instances, Interpol.” Transformed into “policemen for public policy,” Ms. Newberg writes, NGOs must now “check political affiliations before they feed starving families,” and avoid dealing with “those who have been labelled by someone, somewhere as insurgents, terrorists or enemies of their states”—as Nelson Mandela, Jawarhal Nehru and Vaclav Havel were at one time.


In addition to the Patriot Act, there was the mass roundup of thousands of persons of apparent Arab or Islamic background, often held incommunicado for months on end. There is the prison camp on Guantanamo of hundreds taken into custody during the invasions of Afghanistan and Iraq, only now beginning to be tried in military tribunals that bear scant resemblance to due process of law.


As Human Rights Watch has noted, these actions are “particularly troubling, and the damage to the rule of law in the United States may be more lasting because it is hard to foresee an endpoint to the terrorist danger that the administration insists warrants its actions.” It is one thing to suspend basic liberties in normal wartime and restore them when hostilities cease; quite another to do so in a permanent war with no end in sight.


The right to counsel, and its erosion in the United States since September 11, strikes with particular force at the role of human rights defenders. One troubling trend has been the arrest and prosecution of lawyers and other defenders as “material witnesses” to terrorism. These include Lynne Stewart, attorney for Sheik Abdul Rahman, and the Guantanamo military Muslim chaplain James Yee, held in maximum security for months before being released because the flimsy evidence on which he was held—such as visiting Islamic websites on his computer, something you might expect a Muslim chaplain to do—proved baseless.


U.S. contempt for the rule of law has a heavy cost—not only because it is cited by dictators to excuse their own crimes, but because it removes a powerful positive example for those struggling against great odds to promote liberty. My Open Society Institute colleague James Goldston, writing in the International Herald Tribune last year, cited his work with “prosecutors in Romania, judges in Bosnia, antiapartheid activists in South Africa and human rights defenders in El Salvador who found succor in the perceived fairness of the U.S. justice system—even when they decried American foreign policy.” No more.


And then of course there is the war in Iraq itself, waged illegally from the outset and taking civilian lives in “collateral damage” each day. Abu Ghraib alone—the torture and humiliation of prisoners by those charged to protect them, in the very place where many of the most despicable abuses of Saddam himself took place – will take a generation or more to overcome, longer since the U.S. administration seems determined to avoid true accountability for it, or acknowledge the fact that these human rights crimes, far from being the acts of a rogue few, flowed directly from a culture and a policy of contempt for rights and international law.


In one of the great ironies of our time, a war whose principal justification, now that weapons of mass destruction have not been found, was to fight terrorism has undoubtedly created much more of it. As my Human Rights Watch colleague Ken Roth writes, “Because targeting innocent civilians is antithetical to the most basic rights, a strong human rights culture makes terrorist recruitment harder. But if the fight against terrorism undermines human rights standards, terrorist recruiters will have a field day.”


This is a distressing picture. It calls upon those of us fighting for human rights within the United States to redouble our efforts and act in concert with allies around the world like those in this room. Our government may not care much for multilateralism, but we must. We must take strength from and learn from human rights defenders in other parts of the world like my friend Martin O’Brien of Northern Ireland, who reminds us that “many of the repressive approaches spreading across the world …originated or at least have been practiced for many years in the place where I live. But there is conclusive evidence from the Northern Ireland situation and from others…that sacrificing human rights in the name of security does not work—if anything, it leads to an escalation in violence.”


Just as others around the world fighting for rights have drawn strength on occasion from U.S. law, support and tradition, it will have to work in the other direction as well in these difficult days.