. 1
( 9)



>>

This page intentionally left blank
AFTER ABU GHRAIB

Exploring Human Rights in America and the Middle East

This book traverses three pivotal human rights struggles of the post“September
11th era: the American human rights campaign to challenge the Bush adminis-
tration™s “War on Terror” torture and detention policies, Middle Eastern efforts
to challenge American human rights practices (reversing the traditional West to
East ¬‚ow of human rights mobilizations and discourses), and Middle Eastern
attempts to challenge their own leaders™ human rights violations in light of
American interventions. This book presents snapshots of human rights being
appropriated, promoted, claimed, reclaimed, and contested within and between
the American and Middle Eastern contexts. The inquiry has three facets: First, it
explores intersections between human rights norms and power as they unfold in
the era. Second, it lays out the layers of the era™s American and Middle Eastern
encounter on the human rights plane. Finally, it draws out the era™s key lessons
for moving the human rights project forward.

Shadi Mokhtari is an independent scholar and human rights attorney. She cur-
rently works with a domestic violence nonpro¬t organization in the Washington
D.C. area and serves as the managing editor of the Muslim World Journal of
Human Rights. She holds PhD and LLM degrees from Osgoode Hall Law School,
York University; a JD from the University of Texas School of Law; a master™s in
international affairs from Columbia University; and a BA from American Uni-
versity. She has taught as an adjunct professor at Osgoode Hall Law School and
has contributed chapters to books, including Islamic Law and International Law
(“The Iranian Search for Human Rights within an Islamic Framework”) (2007),
Islamic Feminism and the Law (“Towards a New Agenda for Islamic Feminism:
Clearing the Human Rights Mine¬eld”) (2008), and Migrant Women™s Search
for Social Justice (“Migrant Women™s Interests and the Case of Shari™a Tribunals
in Ontario”) (2009). In 2006, she was selected as a “new voices” panelist at the
American Association of International Law Conference and was awarded hon-
orable mention for the John Peter Humphreys Fellowship from the Canadian
Council on International Law.
CAMBRIDGE STUDIES IN LAW AND SOCIETY

Cambridge Studies in Law and Society aims to publish the best scholarly work
on legal discourse and practice in its social and institutional contexts, combining
theoretical insights and empirical research.
The ¬elds that it covers are: studies of law in action; the sociology of law;
the anthropology of law; cultural studies of law, including the role of legal
discourses in social formations; law and economics; law and politics; and studies
of governance. The books consider all forms of legal discourse across societies,
rather than being limited to lawyers™ discourses alone.
The series editors come from a range of disciplines: academic law; socio-legal
studies; sociology; and anthropology. All have been actively involved in teaching
and writing about law in context.

Series editors
Chris Arup Monash University, Victoria
Martin Chanock La Trobe University, Melbourne
Pat O™Malley University of Sydney
Sally Engle Merry New York University
Susan Silbey Massachusetts Institute of Technology

Books in the Series
Diseases of the Will
Mariana Valverde
The Politics of Truth and Reconciliation in South Africa
Legitimizing the Post-Apartheid State
Richard A. Wilson
Modernism and the Grounds of Law
Peter Fitzpatrick
Unemployment and Government
Genealogies of the Social
William Walters
Autonomy and Ethnicity
Negotiating Competing Claims in Multi-Ethnic States
Yash Ghai
Constituting Democracy
Law, Globalism and South Africa™s Political Reconstruction
Heinz Klug
The Ritual of Rights in Japan
Law, Society, and Health Policy
Eric A. Feldman

Continued on page following the index
After Abu Ghraib
EXPLORING HUMAN RIGHTS IN
AMERICA AND THE MIDDLE EAST


Shadi Mokhtari
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521767538
© Shadi Mokhtari 2009


This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009


ISBN-13 978-0-511-58073-4 eBook (NetLibrary)

ISBN-13 978-0-521-76753-8 Hardback




Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
To my father, Rahim Mokhtari, and my mother,
Guiti Assadi, for their burning passion for the
realization of justice and human dignity in their
native Iran, in their adopted United States, and
throughout the world.
Contents




Acknowledgments page viii
Abbreviations ix

1
Introduction

American Imaginings of Human Rights and the
ONE
Middle East 21

TWO The Human Rights Challenge from Within 63

THREE The Middle Eastern Gaze on American Human Rights
Commitments 113

FOUR American Imprints and the Middle East™s New Human
150
Rights Landscape

FIVE From the Ashes of the Post“September 11th Era:
Lessons for the Human Rights Project 200

Conclusion 237

Bibliography 245
Index 249




vii
Acknowledgments




I am greatly indebted to family, friends, colleagues, and mentors for their
support and assistance in the completion of this book. First and foremost, I
would like to thank Susan Drummond for her enduring encouragement and
invaluable input throughout the process. At every point at which I felt the
project was simply too ambitious and impossible to complete, it was Susan
who convinced me to get back in front of my computer and start the next
chapter. I also thank Obiora Okafor and Annie Bunting for their guidance
and feedback throughout my tenure at Osgoode Hall Law School.
I must also express my gratitude to all the people who assisted me
throughout my ¬eldwork. This project would not have been possible with-
out the tremendous insights provided by the American and Middle Eastern
human rights activists, journalists, and government of¬cials who graciously
offered me their time, experiences, and perspectives. I would also like to
thank Anbara Abu Ayyash, David Cole, Gregory Dean Johnson, Galil Noa-
man, Wendy Patten, and Charles Schmitz, who each provided valuable leads
and assistance with some aspect of the ¬eld research. My work in Yemen
also bene¬ted immensely from the interpretation assistance of Baraa Shiban.
Finally, I would like to thank my husband, Peyman Khalichi, for his
immense enthusiasm for my work and for his willingness to always engage
with the issues and ideas encompassed in this project. I am also grateful for
the support of my brother Rohmteen Mokhtari, who never ceases to amaze
me with wisdom beyond his years. His spirit serves as inspiration for the
optimism and hope weaved into this work.




viii
Abbreviations




ACLU “ American Civil Liberties Union (American NGO)
CAT “ Convention Against Torture
CEDAW “ Convention on the Elimination of All Forms of Discrimination
against Women
CERD “ Convention on the Elimination of All Forms of Racial
Discrimination
HOOD “ The National Organization for Defending Rights and Freedoms
(Yemeni NGO)
IAF “ Islamic Action Front (Jordanian Islamist Party)
ICRC “ International Committee of the Red Cross
INGO “ international nongovernmental organization
IO “ international organization
LCCR “ Leadership Conference on Civil Rights (American NGO)
MCA “ Military Commissions Act
MEPI “ Middle East Partnership Initiative
NAACP “ National Association for the Advancement of Colored People
NCHR “ National Center for Human Rights (Jordanian
quasi-governmental organization)
NGO “ nongovernmental organization
NPR “ National Public Radio
PDF “ Political Development Forum (Yemeni NGO)
SAF “ Sisters™ Arab Forum for Human Rights (Yemeni NGO)
UNDP “ United Nations Development Programme




ix
Introduction




If the post“September 11th era is to bear the imprint of a succession of
setbacks to the human rights paradigm epitomized by Abu Ghraib™s arrest-
ing images, the era should also be marked by human rights™ reemergence
at the fore of local and global contests and consciousness. This study tra-
verses three pivotal human rights struggles of the era: the American human
rights campaign to challenge Bush administration “War on Terror” tor-
ture and detention policies, Middle Eastern efforts to challenge American
human rights practices (in effect, reversing the traditional West-to-East ¬‚ow
of human rights mobilizations and discourses), and Middle Eastern attempts
to challenge their own leaders™ human rights violations in light of American
post“September 11th interventions in the Middle East. The snapshots that
emerge are of human rights repeatedly being appropriated, invoked, pro-
moted, claimed, reclaimed, and contested within and between the American
and Middle Eastern contexts. By placing these deployments side by side and
highlighting the myriad of contradictions they encompass and produce, this
book brings to light human rights™ role as both an emancipatory and hege-
monic force following September 11th. There are thus several facets to the
present inquiry. First, it explores the era™s key intersections between inter-
national human rights norms and power as they unfold in post“September
11th era. Second, it lays out the many interconnections and layers of the
era™s American and Middle Eastern encounters within the human rights
realm. Finally, it draws out the primary lessons of post“September 11th
developments for moving the human rights project forward.


THE FIELD

This largely empirical study incorporates ¬eld research conducted in Wash-
ington, DC, Amman, Jordan, and Sana™a, Yemen. Semistructured inter-
views of American and Middle Eastern human rights advocates, government

1
2 AFTER ABU GHRAIB


of¬cials, and journalists are combined with content analysis of select media
coverage, governmental records, human rights nongovernmental organi-
zation (NGO) reports, and public forums and conferences. The research
extends through more than one locale to capture not just a sense of human
rights dynamics within one country but the transnational linkages and inter-
relationships encompassed.
Jordan and Yemen present fascinating case studies. Both countries were
(at least of¬cially) engaging with human rights discourses prior to September
11th and both governments were less likely to label human rights norms
as Western or foreign impositions than other governments in the region,
particularly those in the Persian Gulf. Both countries also maintained close
relations with the United States throughout the post“September 11th era,
albeit for slightly different reasons. Beyond these similarities, however, the
two locales stand largely in contrast to each other.
Jordan™s human rights discourses are highly in¬‚uenced by its geogra-
phy. The country™s location between Israeli-occupied Palestinian lands and
American-occupied Iraq colors the worldviews of the population and even
human rights forces. In the same manner, its sizable Palestinian population
and growing Iraqi refugee population affect human rights discourses and
consciousness signi¬cantly. Its reputation as a stable and Western-friendly
country whose monarch frequently espouses a commitment to human rights
(at least in rhetoric) has attracted many international human rights and
humanitarian initiatives targeting the Middle East region. The state™s con-
trol reaches deep and wide in Jordan. Despite leaders™ propensity to adopt
human rights discourses and assemble various royal human rights initiatives
(mostly limited to women™s rights and children™s rights), civil and political
human rights violations such as torture and detentions spurred by criticism
of the state are regularly reported, and there is universal consciousness of
the existence of red lines around speech and opposition, even as the lines are
continuously being redrawn. International human rights groups have also
uncovered numerous cases of torture and illegal detentions emerging from
Jordanian assistance in American “War on Terror” rendition cases.
I chose to conduct ¬eld research in Jordan to gain insight into the
Hashemite Kingdom™s own intriguing human rights trajectory following
September 11th and to get a small window into Iraqi human rights develop-
ments from the considerable presence of Iraqi activists, refugees, and of¬cial
delegations either exiled in or frequently traveling to Jordan following the
U.S. invasion of Iraq. I arrived in Amman at the end of May 2006. Just a few
days into my trip, news of the wanton killings of twenty-four Iraqi civilians
by U.S. Marines in Haditha and its cover-up by high-ranking U.S. marine
of¬cials broke.
Before arriving, I had collected a handful of names and phone numbers
of Jordanian, Iraqi, and American activists involved in various human rights
3
INTRODUCTION


initiatives and I had scheduled an interview with the director of the Amman
Center for Human Rights Studies, a Jordanian NGO that from its relatively
extensive Internet presence seemed like a major player. I had made a contact
at the NGO and hoped it could serve as my primary source for further
contacts. After a very frank and elucidating interview with Nizam Assaf
(presented extensively in chapter 4) on my ¬rst full day in Amman and after
obtaining a valuable list of contacts from the Amman Center for Human
Rights Studies™ staff, I ran into some unexpected obstacles. My contact at
the NGO resigned soon after I had arrived, and after a few days of digesting
my line of interview questions that had focused extensively on U.S. human
rights practices and promotion policies in the Middle East, Assaf had become
somewhat suspicious that I might be more than just an innocuous researcher,
prompting him to refuse me permission to sit in on the NGO™s activities.
A few minutes after sitting in on a training session for Iraqi human rights
activists who were in the midst of a heated discussion about the impact of
the Haditha massacre on their work, Assaf asked me to leave, explaining,
“these are sensitive topics.” He later refused to extend an invitation to a
regional conference on criminal justice the center was hosting.
Although I was disappointed to miss these events, which no doubt would
have enhanced my research, the experience did in some ways underscore
the level of apprehension of both domestic and foreign sources with which
Middle Eastern human rights activists have come to operate. Fortunately,
I did not provoke as much suspicions in further contacts and successfully
secured a number of revealing interviews with other Jordanian human rights
activists, journalists specializing in human rights coverage in Jordan™s major
reform-oriented media, associates of the quasi-governmental National Cen-
ter for Human Rights, UN of¬cials, several Iraqi activists exiled in Jordan,
and Americans involved in various human rights promotion projects. I left
Amman on July 1, 2008, just a few days after the U.S. Supreme Court had
announced what was considered one of its landmark detainee rights deci-
sions in Hamdan v. Rumsfeld1 and a few days before the start of the war
between Hezbollah in Lebanon and Israel.
Whereas in Jordan the state is strong, in Yemen it is weak. The country
is also by far the poorest in the region and the tenth poorest country in the
world. This makes all sectors (governmental and nongovernmental) highly
reliant on foreign aid. As a result, the government has been particularly
responsive to American interventions, on the one hand revolving around who
it should detain and with what semblance of due process within the context
of the “War on Terror,” and on the other hand revolving around pressure
to adopt and institute various human rights and democratization reform
measures. For most of the September 11th period, Yemen has had the second

1 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
4 AFTER ABU GHRAIB


largest number of Guantanamo detainees and by the time I visited, human
rights advocates sarcastically joked it had gained the honor of achieving the
number one ranking. The con¬‚uence of pressure and aid to institute human
rights reforms with American treatment of Yemeni detainees in Guantanamo
and pressure for corresponding treatment of suspected terrorists at home has
bred fascinating discourses and consciousness around human rights amid
international power asymmetries.
Assisting with the United States™ counterterrorism efforts was not much a
matter of choice but one of necessity. Particularly, in the period immediately
following the September 11th attacks, the Yemeni government™s “cooper-
ation” was propelled by a real fear that if it did not, it could suffer the
same fate as Afghanistan. In recent years, with growing popular anger at
American policies in the region, the government has occasionally put forth
scathing criticism of the United States but has failed to act by changing
its relationship with the global power. As one American embassy of¬cial
put it, “From time to time, the government will organize a demonstration
or march from one innocuous location to another innocuous location to
protest American policies.”2
Interestingly, Yemeni human rights discourses are among the most rooted
in the region and certainly predate September 11th. The reuni¬cation of the
country following a drawn-out civil war provided important openings for the
institutionalization of certain human rights norms, for example, a mandate
for multiparty elections and the articulation of a number of key rights in
the constitution. The initial growth of Yemeni human rights NGOs began
in 1999, and most human rights activists consider the past seven years a
very productive era for the development of Yemeni civil society. As a result,
Yemen is considered one of the region™s most progressive in its upholding
of civil and political rights and democratic reforms.
I had not considered Yemen as a possible site for ¬eld research when
I embarked on this project in May 2004. However, several months after
beginning the research, my interest in the unique Middle Eastern locale was
sparked after hearing the country™s then-human rights minister and several
researchers speak. As I heard them describe Yemen™s complex relationship
with the United States within the post“September 11th human rights context
and the centrality of the country™s 100-plus Guantanamo detainees within
its vibrant human rights engagements, I realized how valuable a Yemeni
case study might be. I arrived in Sana™a in early January 2007, just after
the eid al-adha (the Muslim festival of sacri¬ce at the conclusion of the haj
pilgrimage to Mecca), which had this year coincided with the execution of
Saddam Hussein in Iraq. A few days following my arrival also marked the
¬fth anniversary of the arrival of the ¬rst prisoners at Guantanamo Bay.

2 Interview with U.S. embassy of¬cial (I), in Sana™a, Yemen (Jan. 23, 2007).
5
INTRODUCTION


Again, I entered the country with a list of contacts gleaned from various
sources and the hopes that HOOD (The National Organization for Defense
of Rights and Freedoms), the Yemeni NGO active in both local human rights
issues and Guantanamo detainee cases, would serve as a primary contact. I
also met a U.S.-based physician on my ¬‚ight to Sana™a who took an interest
in my research and offered to assist me in making government contacts.
As a result, I had an interview with the foreign minister on my ¬rst full
day and a meeting two days later with the Supreme Court justice who had
received considerable Western media attention for his faith-based dialogs
with Islamic extremists imprisoned in Yemen.
The interviews (particularly the former) offered little that added sub-
stantively to my research. By contrast, an extensive interview with the
two primary lawyers at HOOD, Mohammad Najji Allaw, the experienced
head of the organization, and Khaled Alanesi, its amicable director, proved
extremely valuable and is presented in pieces throughout much of the
book. At one point during the interview, Allaw, who posed an extremely
cogent third-world critique of global human rights dynamics but occasion-
ally slipped into conspiracy theories, mentioned that he never knows when
a foreign visitor posing as a human rights activist or researcher like me is
actually there for intelligence purposes. But judging from the duo™s fairly
warm reception, they did not plan to hold the possibility against me. After
the interview Alanesi supplied me with a lengthy list of names to contact.
Another highly revealing interview was one conducted with Amal Basha,
the spirited and re¬‚ective director of the Sisters™ Forum for Human Rights
who was referred to me by an American women™s rights contact working
in Jordan. Like Basha, virtually every other Yemeni activist and journalist I
encountered was extraordinarily open about the challenges, opportunities,
and enigmas of Yemen™s post“September 11th human rights predicament.
The director of the American Institute for Yemeni Studies also assisted me
in making a contact at the U.S. embassy in Sana™a and, after a number of
e-mail exchanges, I was able to arrange interviews and discussions with sev-
eral of¬cials with varying ranks at the embassy. I left Sana™a™s enveloping
mountains, stunning ancient architecture, traditional attire, and immense
poverty at the end of January 2007.
Both case studies provide a wealth of insight into the ¬‚ux of American
and Middle Eastern human rights dynamics in the post“September 11th era;
however, the post“September 11th paths of other Middle Eastern countries
have also contained abundant material relevant to the present inquiry. Egypt
has always been a pivotal player in the region, has a civil society with broad
and deep, yet still limited, roots, and has been ¬‚agged and funded as a key
American ally in the region. It experienced smatterings of progress in the
realm of political reforms but whatever inroads were made were quickly
pushed back. The Persian Gulf states such as Saudi Arabia also present a
6 AFTER ABU GHRAIB


fascinating wrinkle; despite their close political and economic ties to the
United States, their ¬nancial independence allows them to answer Ameri-
can calls for reforms differently than an impoverished country like Yemen.
Within the Gulf, Kuwait and Bahrain are notable both for their dynamic
struggles for political reform and their elaborate state and civil society efforts
to free Guantanamo detainees. Morocco, which is a bit further removed (at
least geographically) from post“September 11th events (notwithstanding its
involvement with American renditions and its extremist pockets), is another
fascinating study in light of its institution of at least some notable human
rights and women™s rights reforms in recent years. Thus, to the extent possi-
ble, post“September 11th developments emerging from other Middle Eastern
locales are also woven into the study via secondary sources.
The American case study serves as the fulcrum of this book, as most of
its analysis is set against some aspect of American governmental or non-
governmental action. Because the complex American disposition toward the
human rights paradigm and the international framework institutionalizing
it serve as the backdrop for the larger study in this way, chapter 1 is devoted
entirely to the subject. The choice of the United States as a central site of ¬eld
research was the most obvious given both the United States™ overwhelming
power and central role in post“September 11th human rights discourses
and contests. I spent most of my time between January 2006 and January
2009 in Washington, DC. Most of my interviews of American human rights
activists, congressional staffers, and journalists took place in the winter of
2006. I was rather surprised to ¬nd some of the American human rights
activists I sought to interview highly inaccessible “ standing in contrast to
most Middle Eastern activists™ eagerness to discuss their experiences with
post“September 11th human rights developments, but perhaps also re¬‚ect-
ing the seeping of Washington™s “most powerful city of the most powerful
country in the world” culture into the human rights sector. Still, because of
my extended stay in the locale, I was able to eventually secure interviews
with a majority of the American actors I hoped to reach. I also relied heavily
on observation at forums and secondary sources in the American case study.
However, tying down the case study proved a formidable task. There was
simply so much activity “ so many congressional debates, so many inter-
views with key actors in publications, ranging from The New York Times to
Esquire, and so many conferences and forums “ that from the onset it was
clear that I could incorporate only a small sampling in the study. The same
can be said of the Middle Eastern side of the research as well. As a result, the
book lays no claim to being exhaustive in its ethnographic inquiry. Instead, it
simply lays out different layers and dimensions of the post“September 11th
human rights problematic in order to inaugurate the line of inquiry. This
is done with the hope that this project can offer new analytical tools and
7
INTRODUCTION


insights for others to take up and further develop, expand, and complicate
in the future.


INTERNATIONAL HUMAN RIGHTS AND POWER

It is important to note from the onset that in this project power is conceived
in particularly broad terms as the capacity to shape outcomes impacting
individuals™ or groups™ predicaments. The de¬nition encompasses a range of
both material and constitutive manifestations of power, including economic
pressure, military force, imprisonment, and subjection to violence within
detention, as well as the production, constitution, and deployment of norms
and knowledge. Although what is known within the social science literature
on power as “power over,” namely, through the imposition of one™s will
over others, is central to the book™s analysis, gradients of “power to” are
implicit in discussions of resistance to power over and the role of social
forces. Finally, power is presented as generally relative rather than abso-
lute, multidimensional, ¬‚uid, dynamic, and capable of being possessed by
individuals, movements, institutions, or states.
The view of human rights adopted is equally expansive and multifaceted.
It is one that weaves back and forth between, and integrates, the paradigms™
interconnected normative, political, and legal dimensions. At its core, human
rights are a set of norms laying out a particular emancipatory vision. Legal-
ization within the international legal framework is considered an important
means for realizing that vision, ostensibly by infusing human rights norms
with greater authority and capacity to bind states. Yet, since its inception,
the international human rights framework has been confronted with ques-
tions regarding the regime™s ability to ful¬ll its emancipatory promise in
the face of both state power and powerful states. Legal positivists discount
human rights law because of the lack of any sovereign power charged with
its enforcement and rationalists associate human rights norms with material
pursuits of “power” or “interests,” viewing them as no more than instru-
ments strategically deployed by actors to further or justify interests.
The post“September 11th era appeared only to solidify critics™ skepticism
and human rights advocates™ anxieties about international human rights™
captivity to power. The era has been, to a large extent, de¬ned by “extraor-
dinary renditions” that often sent suspects to be interrogated in countries
known to have few qualms or real restrictions on torture, the graphic depic-
tions of humiliation, abuse, and torture at Abu Ghraib, the real prospects of
inde¬nite detention without the most basic of due process guarantees faced
by detainees at Guantanamo Bay, Bagram, and other detention facilities,
the “disappearing” of suspects the United States deemed of high value into
8 AFTER ABU GHRAIB


the abyss of secret CIA black sites, Bush administration efforts to reshape
domestic and international law prohibition on torture, and few prospects
of high-ranking of¬cials being directly held accountable for any of these
policies.
At the same time, during this period the United States also consistently
enlisted and co-opted human rights norms by linking justi¬cations of its
various military and political interventions in the Middle East to pervasive
oppression and authoritarianism in the region. The human rights lexicon
presented the United States with the opportunity to veil pursuits of interests
and power with the veneer of nobility, sacri¬ce, morality, and justice. It pro-
ceeded to deploy human rights norms in such instrumental ways by tapping
into and reproducing categories that designated the United States as a human
rights promoter and Middle Eastern governments, cultures, and religions as
human rights violators. Middle Eastern governments in turn often followed
(or continued) suit, both through their use of counterterrorism as renewed
license for curtailing rights and through calculated forays into the reform,
democracy, and human rights lexicon.
As these dynamics unfolded, decades-old questions surrounding interna-
tional law and particularly the human rights regimes™ capacity to constrain
states™ (and especially militarily and economically powerful states™) behavior
in accordance with the normative framework, resurfaced. Observers revis-
ited questions of whether the framework should be considered autonomous
or subservient to international power asymmetries and whether it was disin-
genuous to continue designating international human rights law as “inter-
national” or as “law.”3 In short, the era was gripped by an overwhelming
sense that human rights norms and the international legal regime that cod-
i¬ed it were in the midst of an existential crisis in the face of American
power and its post“September 11th global policies. With no apparent force
to compel compliance and damage from the delegitimizing effects of human
rights norms™ instrumentalization on such a grand scale, the human rights
project was increasingly considered “weak” and its future uncertain.
As revealing as they were, however, post“September 11th developments
could provide only a partial account of the operation of power vis-a-vis the
`
international human rights regime. There were invariably other layers to the
Abu Ghraib story as there were to the Guantanamo epic and efforts to co-opt
human rights by American and Middle Eastern governments alike. Viewed
through different lenses, each of these post“September 11th human rights
phenomena also revealed the elusiveness, clumsiness, and vulnerability of
power, the way it is apt to trap itself through its reliance on the morality

3 Doris
E. Buss, Keeping Its Promise: Use of Force and the New Man of International Law, in
Empire™s Law: The American Imperial Project and the War to Remake the World
87 (Amy Bartholomew ed., 2006).
9
INTRODUCTION


of the human rights regime, the way it is trapped by human rights forces
it seeks to co-opt, and the way it is resisted from within and abroad. Such
dynamics stand as testament to the proposition that although governments
could go to great lengths to veil their intentions to abide by human rights
standards, there is no guarantee that they will succeed, laying the foundation
for challenging power through a framework that it had already designated
as legitimate.
Thus, a central thesis of this study is that in the post“September 11
era, human rights have simultaneously manifested and transcended power
and international hierarchies. The era is not necessarily exceptional in its
positioning of human rights between hegemony and emancipation. Several
recent studies considering earlier periods have recognized that international
law or human rights are neither entirely paralyzed by power nor entirely
divorced from it but occupy a complex space in between.4 The era does,
however, provide a wealth of material for a rich empirical study, because of
the concentration and sheer volume of discourse, funding, and contestation
centered around human rights it has engendered. In this sense, it presents a
unique opportunity to add depth and nuance to understandings of human
rights as simultaneously manifesting and transcending power relations or,
as Amy Bartholomew has observed, conceptualizing human rights as a “site
of struggle.”5
The empirical research undertaken draws from and brings together two
emerging literatures within the international law and human rights scholar-
ship. The ¬rst is the Third World Approaches to International Law (TWAIL)
literature and corresponding critical scholarship that highlight the ways in
which power relations among states, cultures, races, or “civilizations” can be
assembled around and built into international human rights dynamics. The
second is the international law and compliance, particularly constructivist-
inspired scholarship, which tends to focus on the potential of norms and
identities to foster compliance with human rights standards, notwithstand-
ing power. Each framework illuminates important aspects of the human
rights dynamics at play but takes the analysis only so far before it displays
its limitations. The two optics are of greatest value when applied in concert
as one™s strengths often serve to remedy the other™s limitations.
Adopting a research agenda in which power or hegemony ¬gures so
prominently can be fraught with its own trappings as it leaves an impression

4 See, for example, Nico Krisch, International Law in Times of Hegemony, 16:3 Eur. J.
Int™l L. 369 (2005), or Oona Hathaway, Between Power and Principle: A Political Theory
of International Law, 71 U. Chi. L. Rev. (2005). The argument is also generally basic to
constructivism, although constructivists tend to place greater emphasis on emancipatory
openings.
5 Amy Bartholomew aptly uses the term in her work on human rights following September

11th. Empire™s Law and the Contradictory Politics of Human Rights supra note 3, at 180.
10 AFTER ABU GHRAIB


of a totalizing conception of power. However, the focus on human rights™
emancipatory potential is intended to signal a willingness to look beyond
power to its unsettling through internal contradictions and to the various
other social and political phenomena with which it intersects. In other words,
this book is equally concerned about the relevance of power in the human
rights context as it is with the irrelevance of power to the same. If the anal-
ysis takes as its starting point the many ways in which power is manifested
through human rights, it concludes with a discussion of recommendations
for further enhancing the emancipatory potential of the human rights frame-
work.

The New Era™s Inherited East/West Human Rights Geography
To understand the operation of power through human rights in the post“
September 11th era, it is critical to identify one of the key ways in which
power had been infused into global human rights dynamics long before
September 11th. Since the regime™s inception, the human rights project has
been imbued with an entrenched hierarchy. Because of its unmistakable geo-
graphic demarcations, the hierarchy is referred to as the “East/West geog-
raphy of human rights” in this project. At its core, the geography assumes
Western liberal contexts™ commitment to universalism and the furtherance
of the human rights project while it conceives of non-Western countries, cul-
tures, and races as inherently incapable of fully understanding or achieving
rights on their own.
In recent years, a body of critical scholarship, much of it articulated within
TWAIL literature, has mapped out the key elements of the East/West geog-
raphy of human rights. This scholarship has interrogated the bifurcation
of countries or cultures into human rights champions/guardians/leaders and
human rights nightmares/burdens/projects and brought to light the designa-
tions™ linkages to power, particularly in its constitutive or knowledge-based
forms. Makau Mutua has written of the “savage-victim-savior” metaphor of
human rights, in which non-Western states and/or cultures are cast in the role
of savages, their population or segments of their populations (often women)
are cast as victims, and Western liberal states and institutions take on the role
of saviors.6 Similarly, Obiora Okafor and Shedrack Agbakwa have written
of three problematic constitutive orthodoxies of mainstream human rights
education promoted by international organizations and international non-
governmental organizations (INGOs): (1) a “heaven-hell” binary in which
the West is presumed a model of human rights compliance while the devel-
oping world is presumed to be a human rights nightmare,” (2) “a consequent

6 Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv.
Int™l L. J. 201 (2001).
11
INTRODUCTION


unidirectional traf¬c of human rights teaching from the West to the Rest,”
and (3) the existence of an abolitionist paradigm that locates the source of
the developing world™s human rights predicament in its culture, which it
in turn targets.7 Powell has offered valuable insights about similar tenden-
cies in the cultural relativism versus universalism debate so central to global
human rights politics, identifying several false underlying assumptions. First,
Western states are culturally neutral and thus devoid of the primitive cul-
tural practices that lead to human rights violations in non-Western states.
Second, relativism cannot be ascribed to the behavior of Western states in
the way it can be ascribed to that of non-Western states. Finally, “the only
relativism which poses any real threat to universalism is cultural relativism,
in contrast to other relativisms that are re¬‚ected in the selective enforcement
and invocation of human rights in and by Western and non-Western states
alike.”8
The East/West geography of human rights encompasses important facets
of the notion of orientalism developed by the renowned Arab-American
literary theorist Edward Said. As Said sketched the phenomenon emerging
from centuries of Western imperialist forays into the East, orientalism is a
Western tendency to imagine and to construct the East (Orient) in ways that
allow it to de¬ne itself in favorable contrasting terms.9 The approach encom-
passes a Western license to judge, scrutinize, study, represent, enlighten, and
govern the East. Although orientalism is clearly characterized by a power
relationship and web of hierarchies between the orient and occident, the
West™s power over the East is taken for granted as scienti¬c truth. Each of
these elements has been widely present in global human rights dynamics
throughout the regime™s tenure.
Several insights emerging from the TWAIL and corresponding critical lit-
erature are particularly relevant to the analysis that ensues. First, the hierar-
chy at the root of the East/West geography renders Western violations invis-
ible or easily dismissible as mere aberrations, whereas it makes non-Western
violations ever present and highly visible, often through demonizing, sensa-
tionalist, and decontextulized accounts. Second, the construction lends itself
to Western states (which are so inclined) to appropriate the moral authority
of international human rights norms to justify military or economic inter-
ventions. Third, the categories have a semiotic relationship with racism and
cultural hierarchy. When the stigma of human rights violations is associated

7 Obiora Chinedu Okafor and Shedrack C. Agbakwa, Re-Imagining International Human
Rights Education in Our Time: Beyond Three Constitutive Orthodoxies, 14 Leiden J. Int™l
L. 563 (2001).
8 Catherine Powell, Locating Culture, Identity, and Human Rights, 30 Colum. Hum. Rts.

L. Rev. 201 (1999), at 202“4.
9 Edward Said, Orientalism (1979).
12 AFTER ABU GHRAIB


with the dark-skinned and “backward” cultures of the East, in a circular
fashion it can serve as a justi¬cation for violating those populations™ rights.
For example, what is viewed as a particular race, religion, or culture™s inca-
pacity to grasp notions of rights serves to dehumanize its population in a
way that make the deprivation of their rights more acceptable in the eyes of a
Western soldier, politician, or citizen. Finally, conceptualizations of human
rights violations ¬‚owing from the geography tend to coalesce around inter-
nal sources of oppression and injustice and overlook international sources.
Mapping this East/West human rights geography from the onset is criti-
cal because much of the analysis presented in the rest of the book relates to
how this geography comes to be simultaneously reinforced and challenged
through the unfolding of post“September 11th dynamics. For example, both
trends are seen in the strategies and arguments posited by human rights advo-
cates challenging the Bush administration™s torture and detention policies.
It is necessary to note that the geography has become so engrained that
even Middle Eastern human rights advocates who are attuned to it, and
inclined to pose challenges to it on one front, are also prone to reproduce
it on another front. For example, at one point in our interview, HOOD™s
Khaled Alanesi facetiously asserted that Western human rights experts often
viewed Yemeni counterparts as “monkeys” to be trained in the language of
human rights without an independent capacity to determine what human
rights policies are best for their societies. Extending the analogy, Alanesi also
noted that these same Western experts often praised Yemen through com-
parisons to neighboring Somalia or Saudi Arabia rather than countries with
better human rights records, something he saw as an underlying tendency to
apply lower human rights standards to the Middle Eastern contexts or to see
all non-Western countries as the same in their capacity to achieve rights. Yet
at the same time that he criticized the presence of some East/West human
rights delineations, roles, and hierarchies, he clearly adhered to others:
About the question of who learns from who, now I see that the West is learning from
the developing countries. In a negative way, they have learned how to violate human
rights. The human rights violations that happened in the U.S., Britain, or Australia
they picked it up from the Arab world; the Arab intelligence have been capable of
in¬‚uencing the Western intelligence forces on how to violate human rights. So the
West is learning how to violate human rights from the East. Not only in the practice
of violations but also in their law.10

Although the assertion is made as part of a tongue-and-cheek rebuke of
Middle Eastern governments™ undeniably deplorable human rights practices
and is even on some level factually correct,11 the fact that Alanesi frames the
10 Interview with Khaled Alanesi, executive director, HOOD, in Sana™a, Yemen (Jan. 15,
2007).
11 The New York Times has reported that the CIA consulted Egyptian and Saudi intelligence
of¬cials in developing their interrogation techniques. Scott Shane, David Johnston, and
13
INTRODUCTION


rebuke in terms that portray Western states as essentially unknowledgeable
of even how to go about committing human rights violations while Arab
states are their traditional architects is indicative of the extent to which the
human rights geography unearthed by critical scholars has been internalized
by governmental and nongovernmental forces, Western and Middle Eastern
alike.
Still, although TWAIL and related critical scholarship play a pivotal role
in alerting those promoting the human rights enterprise to the operation of
power through human rights and its contemporary hierarchies, they gener-
ally offer little beyond this important critique. By placing such substantial
emphasis on manifestations of power and injustice embedded within human
rights dynamics, scholars often either overlook or choose not to consider
the many ways in which power can in fact be challenged, curtailed, or tran-
scended through the same human rights enterprise. Moreover, although it is
rarely explicitly articulated, some of the literature can leave one with a sense
that the only way to escape the human rights regimes™ failings is to aban-
don the framework altogether, an unattractive prospect given the regimes™
formidable achievements and the lack of viable alternatives in the foresee-
able future. These shortcomings are in large part remedied by integrating
this critical scholarship with a constructivist outlook.

The Human Rights Challenge to Power
An underlying premise adhered to in this book is that power should not
be conceived of in static or zero-sum terms. Categories of powerful and
powerless are ¬‚uid and dynamic, not discrete or absolute. It is not that
these categories do not exist, particularly in relative terms. In fact, the
operation of power relations within American/Middle Eastern human rights
dynamics is a key analytic adopted in the study. Instead, it is best argued
that the dichotomy is untidy and porous. The research presented illustrates
how domestic forces come to challenge American policies from within, how
Middle Eastern forces can challenge and subvert American attempts to co-
opt human rights, and how local civil society forces exploit cleavages and
contradictions to challenge Middle Eastern states from within during the
post“September 11th period. Each instance demonstrates how emancipa-
tory manifestations of the human rights framework envisioned by human
rights proponents can overlap, meet, or eclipse hegemonic manifestations
deployed by American and Middle Eastern governments. No doubt, those
with power attempt to at once co-opt and contravene human rights and in

James Risen, Secret US Endorsement of Severe Interrogations, N.Y. Times, Oct. 4, 2007,
http://www.nytimes.com/2007/10/04/washington/04interrogate.html?_r=2&pagewanted=
print&oref=slogin&oref=slogin. For a discussion of American involvement with torture
prior to September 11, see Jamie Mayerfeld, Playing by Our Own Rules: How U.S.
Marginalization of Human Rights Led to Torture, 20 Harv. Hum. Rts. J. 89 (2007).
14 AFTER ABU GHRAIB


many ways they do so successfully. However, they can exploit the moral
regime for only so long and to only such lengths before they are in some
way answerable to it. Thus, in the post“September 11th era, at the same
time that human rights serve to structure and de¬ne American and Mid-
dle Eastern power relations (through state as well as nonstate hierarchies),
they also serve to mediate, restructure, and rede¬ne these very relationships,
frequently turning them on their heads.
Within the international law and compliance literature, constructivist the-
ory provides a useful analytical framework for understanding human rights™
potential to transcend power in these ways. The theory™s major strength
lies in its capacity to go beyond top-down models of coercive enforcement
and strict notions of compliance in shedding light on the effectiveness and
potential impact of international legal norms. The theory can emphasize
human rights™ importance as a normative order with the capacity to shape
policymakers™ and other relevant actors™ views of appropriate behavior.
This outcome is realized when human rights advocates engage those reluc-
tant to comply through debate, dialog, persuasion, deliberation, and sham-
ing. Applied to questions of international human rights norms™ effectiveness
and potential impact, constructivism™s core assertions include the follow-
ing. First, leaders™ decisions regarding whether to uphold human rights are
shaped not only by material considerations relating to power or interests but
also by many subjectivities, including beliefs, understandings, knowledge,
expectations, and norms.12 Second, the norms and normative frameworks,
like human rights are particularly critical because they encompass a sense of
“shared moral assessment” or evaluation of what good people or good states
ought to do.13 Thus, leaders can become attuned to the stigma and negative
judgment encompassed in human rights violations because they care about
their reputation and will accordingly try to distance themselves from the
“human rights abuser” label. Finally, identities, interests, and even power
are dynamic and “socially constructed products of learning, knowledge,
cultural practices and ideology”;14 they are not determined or ¬xed. This
12 Martha Finnemore and Kathryn Sikkink, Taking Stock: The Constructivist Research Pro-
gram in International Relations and Comparative Politics, 4 Am. Rev. Pol. Sci. 391 (2001),
at 392“3.
13 Martha Finnmore and Kathryn Sikkink, International Norm Dynamics and Political

Change, 52 Int™l Org. 887 (1998); and Thomas Risse and Katheryn Sikkink, The Socializa-
tion of International Human Rights Norms into Domestic Practices: Introduction, in The
Power of Human Rights 8 (Thomas Risse, Stephen Ropp, and Kathryn Sikkink eds.,
1999). Constructivists widely hold that ideational factors (including international norms)
are intersubjective, meaning that, at some level, they are shared or commonly held and
understood.
14 Harald Koh, Why Do Nations Obey International Law? Book Review of The New

Sovereignty: Compliance with International Regulatory Agreements by A. Chayes and A.
Handler Chaynes, and of Fairness in International Law and Institutions by T. M. Frank,
106 Yale L. J. 2599, 2650 (1997).
15
INTRODUCTION


fact presents human rights activists with opportunities to promote identity
constructions as well as notions of interests and power that are compatible
with the observance of human rights, for example, by arguing that torture is
un-American or that Islamic notions of justice encompass gender equality.
As noted, the theory places particular emphasis on communicative pro-
cesses social interaction, including persuasion, argumentation, deliberation,
framing, and shaming. The post“September 11th era has encompassed innu-
merable occasions for such interactions “ when Condoleezza Rice addresses
students at the American University in Cairo and the audience questions
her about Abu Ghraib, when the State Department brings Middle Eastern
human rights advocates to the United States to learn from the American
model for upholding rights and participants request access to Middle East-
ern detainees, when a Bush administration of¬cial is challenged by rights
advocates at an American law school forum, when a secular women™s rights
activist and an Islamist who have come together in their opposition to Amer-
ican policies in Guantanamo then proceed to tackle divergences surrounding
women™s personal status laws, and when a U.S.-based human rights INGO
communicates with an Islamist Party whose members have been detained
by the local government. All of these interactions and countless others have
provided opportunities for human rights to gain ground within American
and Middle Eastern consciousness, demonstrating the regime™s normative
impact.
A relevant debate within the constructivist ¬eld surrounds the question
of whether the most important interactions are those taking place interna-
tionally or domestically and whether it is other governments, international
organizations, INGOs, or domestic actors who have the greatest capacity
to in¬‚uence governments™ human rights attitudes and policies. The tradi-
tional state-centric approach considers interactions between states in the
international plane to be most signi¬cant. A second strand of constructivist
scholarship privileges the role played by liberal Western governments and
networks built between transnational advocacy groups and domestic social
movements.15 Recently, a third model, premised on how human rights norms
are incorporated primarily through the efforts of domestic human rights
advocates bridging international and domestic norms, discourses, and iden-
tity constructions, has also sprung up.16

15 See Risse & Sikkink, supra note 13.
16 See, for example, Obiora Chinedu Okafor, The African Human Rights System, Activist

Forces and International Institutions (2007); Balakrishnan Rajagopal, The Role
of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from
the Normada Valley Struggle in India, 18 Leiden J. Int™l L. 345“87 (2005); and Shadi
Mokhtari, A Constructivist Analysis of the Impact of International Human Rights Norms:
The Case of Women™s Rights under Islamic Law in Iran (2005) (unpublished LLM thesis,
York University).
16 AFTER ABU GHRAIB


Clearly, none of the interactions privileged in each model is mutually
exclusive, and, often, they work in tandem to reinforce each other. More-
over, which interaction is most signi¬cant will vary from cases to case. In
the study of the American engagement with human rights in relation to
its torture and detainee treatment policies, the most vital interactions are
those that occur at the domestic realm and between domestic actors, mainly
because nationalist discourses and identity constructions tend to marginalize
and delegitimize foreign critics. This is best captured by the “we must be
doing something right if we™ve got the French upset” caricature alluded to by
an American human rights advocate interviewed.17 But this disposition has
slowly changed over time. As it turns out, international interactions were
in some respects quite pivotal in the United States following Abu Ghraib.
In the Middle East, the picture is just as complex. International interac-
tions and pressure have varying levels of impact. When governments have
close ties with the United States or other Western countries, international
pressure can be more effective than domestic pressure, particularly in rela-
tion to civil and political violations committed by the state. However, these
same governments can also join governments like Iran™s to exploit converg-
ing nationalist, anti-imperialist, and Islamist discourses to justify skirting
international human rights standards.
Despite its signi¬cant contribution to uncovering the normative ways in
which international law can reign in state power, the core constructivist
literature is largely blind to the ways in which power relations among states
can also be assembled around and built into international norm dynamics.18
Mirroring assumptions of the East/West geography detailed by critical schol-
ars, within much of the constructivist literature the West™s commitment to
universalism and furtherance of the human rights project is largely assumed,
and it is widely accepted that the most serious human rights challenges lie
beyond Western borders. For example, the most important constructivist
work on human rights, The Power of Human Rights, edited by Thomas
Risse, Steven C. Ropp, and Kathryn Sikkink, develop a model that places
Western-based human rights INGOs and Western liberal governments as
agents of human rights promotion in non-Western states.19 Not surpris-
ingly, of the ten case studies presented in the book, none are of Western
contexts.
Further, constructivism has faced criticism that its emphasis on the con-
stitutive power of norms favors “good norms,” such as the promotion of


17 Interview with human rights NGO representative, in Washington, DC (Feb. 24, 2006).
18 To the extent that international power asymmetries are taken into account, it is through the
assertion that powerful states and their leaders are not beyond the reach of international
norms™ in¬‚uence.
19 See Risse & Sikkink, supra note 13.
17
INTRODUCTION


peace and human rights rather than the rise of antithetical norms such as mil-
itarism or anti-Muslim sentiment. More important, constructivist accounts
rarely dissect the composition of frames and arguments employed to fos-
ter compliance with international human rights norms to identify whether
they contain any problematic or power-laden elements. Instead, it is often
assumed that the framing and shaming deployed by human rights advocates
are consistent with the aims of the human rights project. As Michael Barnett
and Raymond Duvall have noted, “Although constructivists have empha-
sized how underlying normative structures constitute actors™ identities and
interests, they have rarely treated these normative structures themselves as
de¬ned and infused by power, or emphasized how constitutive effects also
are expressions of power.”20 Thus, it is important to combine the construc-
tivist insight that production of knowledge, identities, and status around
compliance with international human rights norms can be an indispens-
able tool for advancing the human rights project, with critical human rights
scholars™ warnings that such productions can also be intimately linked to
the (re-)production of international power asymmetries.


HUMAN RIGHTS DIMENSIONS OF THE AMERICAN/MIDDLE
EASTERN ENCOUNTER

Middle Eastern and American human rights conditions are traditionally
viewed as occupying separate spheres. Academics or activists who are gen-
erally specialists in Middle Eastern or American rights issues rarely cross
over into each other™s terrain, even while working within the same insti-
tutions. There are many reasons for this compartmentalization, including
the widespread belief that Middle Eastern human rights violations stem
exclusively from internal factors and a corresponding notion that American
human rights dynamics are so exceptional that they have little connection to
what lies beyond American borders or the West. However, in presenting the
American and Middle Eastern contexts side by side and in interaction, this
study attempts a departure from this traditional insular approach. In essence,
it endeavors to paint a canvas, recount a narrative, dissect a dialectic, and
trace the two contexts™ interwoven trajectories. As the reader (whether he
or she was drawn to the book as a result of a commitment to American or
Middle Eastern human rights trajectories) works his or her way toward the
conclusion of the book, he or she should gain a greater sense of the many
linkages, parallels, and entanglements of the two contexts and their human
rights predicaments.

20 MichaelBarnett and Raymond Duvall, Power in International Politics, 59 Int™l Org. 39
(Winter 2005).
18 AFTER ABU GHRAIB


The text also endeavors to go beyond the often decontextualized and
essentializing portrayals of the era™s American/Middle Eastern encounter by
highlighting both actual points of contention and the vast array of demar-
cations invoked that are in essence constructed. To accomplish this, the
analysis considers prevailing identity constructions, often formed in oppo-
sition to the other, contrasting narratives and lived experiences and some-
times divergent and sometimes convergent sensibilities surrounding notions
of justice, morality, and human suffering. In posing and juxtaposing each
of these elements, the study places a primary focus on the various forms of
“othering” inscribed within and around post“September 11th era human
rights discourses and contests. Further, the case studies presented also bring
out the overlap between identity constructions and beliefs about “the other”
ascribed to by government of¬cials, human rights advocates, and other social
forces, demonstrating their continuity and symbiotic relationships.
Although most of the analysis is built around American/Middle Eastern
engagements and sense of self in relation to the other, international law, and
post“September 11th dynamics, this work also recognizes that an in¬nite
number of other, mainly internal factors have also impacted human rights
outcomes in each context but will inevitably be left out of the analysis pre-
sented here. Still, despite the obvious fact that American/Middle Eastern rela-
tional politics and perceptions were not the sole determinant of how human
rights dynamics unfolded in each context, this focus is adopted because these
relational aspects of post“September 11th human rights dynamics remain
underexplored relative to their widespread presence within the era.


STRENGTHENING THE HUMAN RIGHTS PROJECT

At the same time that the text considers the impact and in¬‚uence of human
rights norms in a post“September 11th context, it is also heavily invested
in exploring the implications of post“September 11th developments for
advancing the human rights project. To this end, a central aspect of the book
is a critical assessment of human rights advocates™ achievements and short-
comings in contending with the era™s profound human rights challenges. A
critique of traditional human rights assumptions and strategies forms much
of chapter 5™s analysis of the human rights lessons of the post“September
11th era as in many respects, it draws to a close with the assumption of
the U.S. presidency by Barack Obama. Among the key lessons of the era
identi¬ed are that human rights forces should part with identity construc-
tions and frames that portray the United States as ontologically committed
to upholding rights and they must re¬ne the terms for seeking out American
human rights leadership.
19
INTRODUCTION


At several key junctures, the analysis approaches the relativism/uni-
versalism debate that has occupied human rights promoters and detrac-
tors alike since the regime™s inception. Within this project, human rights is
treated as a regime largely constructed through human agency but rooted in
principles with potential for broad universal appeal. The research presented
demonstrates this by detailing instances in which Middle Eastern groups
traditionally inclined to dismiss human rights as Western impositions turn
to the discourse to counter abuses they endure following September 11th.
Still, it is clear that the meaning accorded to human rights by the myriad of
actors invoking the language between and within the two contexts are varied
and at times in con¬‚ict. Finally, this argument that the human rights frame-
work has some universal appeal does not imply that recourse to the human
rights framework is devoid of power dynamics or that human rights does
not frequently serve, as critical scholars contend, as a hegemonic discourse.
In many ways, it has traditionally been the only accessible emancipatory dis-
course because Western governments and Western activists have designated
it as such. However, this fact precludes neither the regime™s potential eman-
cipatory effects nor the existence of agency on the part of those invoking it
outside of the West.
The content of the international human rights regime and within the
existing regime, what rights are emphasized and which are relegated to the
realm of “aspirations,” has also been an extremely contentious issue often
taken up by critical human rights scholars. Although it is not a central focus,
the analysis touches on contemporary debates surrounding what is desig-
nated an actionable or enforceable human rights violation and what is not.
Clearly, the primary human rights discourses of the post“September 11th
era have revolved around torture and due process rights, both falling within
the civil and political rights category long privileged by Western states. At
a few junctures, the book also touches on the implications of September
11th developments for local efforts to promote social and economic rights
through the human rights rubric. It also makes an argument for the adoption
of an expanded human rights vision that takes the human rights dimensions
and consequences of American militarism, beyond the torture and detainee
rights struggles so prominently placed on Western human rights agendas in
the post“September 11th period, more seriously.


THE BOOK FROM HERE

As has already been foreshadowed, the book is organized to move the reader
through the post“September 11th era not chronologically but thematically.
chapter 1 lays out the contours of the American disposition toward the
20 AFTER ABU GHRAIB


international human rights regime in the post“September 11th era. In so
doing, it underscores the tremendous continuity between the United States™
legal, political, and ideological treatment of human rights before and after
the era and brings to light the many elements of the East/West geography of
human rights encompassed in the American disposition. chapter 2 presents a
composite of an unprecedented American human rights campaign challeng-
ing administration policies in two speci¬c instances: the Senate con¬rmation
of Alberto Gonzales (a chief facilitator of the administration™s “War on
Terror” torture and detainee rights policies) as Attorney General and the
so-called McCain Anti-Torture Amendment legislation designed to reassert
international law obligations prohibiting torture by the United States gov-
ernment. It then goes on to assess the human rights gains of the campaign,
including the increased legitimacy and presence of the international human
rights framework within American political discourses and consciousness,
as well as offer a critique of the more power-laden aspects of the strate-
gies employed by the campaign. Serving as a bridge between the Middle
Eastern and American case studies investigated in the book, chapter 3 pre-
sents the various Middle Eastern mobilizations and challenges to U.S. human
rights practices that emerge during the era. chapter 4 focuses on the impact of
American post“September 11th era experiments with both human rights vio-
lations and human rights promotion in the Middle East on the region™s own
human rights landscape. A discussion of the era™s key lessons for advancing
the human rights project forms the focus of chapter 5.
ONE




American Imaginings of Human Rights
and the Middle East




The post“September 11th era provided an extraordinarily lucid view of the
many intersections of American power with human rights. Thus, it is only
¬tting to begin the book™s analysis by laying out and linking the most power-
laden aspects of American interactions with the human rights paradigm fol-
lowing September 11th. Although the chapter draws considerably from the
host of invaluable reports, investigations, and articles dedicated to dissect-
ing the American “road to Abu Ghraib,” its intent is not simply to recount
the facts and legal formulations at the heart of the Bush administration™s
human rights practices and policies. Instead, it hopes to move the discus-
sion further by incorporating two additional dimensions of the American
treatment of human rights after September 11th. First, it seeks to shed light
on the ways in which the East/West geography of human rights facilitated
American power during the era. Second, it attempts to highlight the conti-
nuity of the Bush administration™s legal, political, and ideological doctrines
vis-a-vis human rights, with human rights™s place in the American imagina-
`
tion prior to September 11th. Within the overall layout of the book, this
chapter™s positioning of American power serves as the backdrop to the var-
ious challenges and mobilizations against American post“September 11th
human rights policies as well as the traditional operation of the East/West
geography to be taken up in subsequent chapters.


HUMAN RIGHTS, POWER, AND PARADOX IN AMERICAN IDENTITY POLITICS

Throughout the United States™ history, upholding individual rights and civil
liberties has been a central tenet of dominant American identity construc-
tions. Nationalist discourses are frequently built on a narrative of the United
States as unique in its commitment to the preservation of rights and freedom.
In this account, the United States is not just a member of a community of


21
22 AFTER ABU GHRAIB


states with an entrenched liberal rights-based tradition; it serves as a model
to which others generally aspire. Quoting Ian Johnstone, “US ˜nationalism™
is rooted not in land or people, but in a set of values that, in principle,
everyone can embrace. This is a de¬ning feature of American ˜exceptional-
ism™, and it has de¬ned the country™s relationship with the rest of the world,
situating the US as the ˜city on the hill™ for others to follow.”1
Accordingly, important aspects of American identity pertaining to human
rights are relational and dialogical. In the American imagination, serious
human rights violations are always to be found in non-Western locales
thought to be paralyzed by the grips of backward cultural and religious
contexts and perpetual political and economic crises. Thus, the United States™
inherent respect for universal rights is often conceptualized in opposition to
the East™s violence, chaos, and inherent disregard for notions of rights. The
convergence of nationalist and Orientalist discourses fosters the conception
of international human rights law as a regime largely designed to regulate
the behavior of developing states and not that of the United States. As
American activist Loretta Ross has written, the media, international human
rights organizations, and the American government all perpetuate the view
that international human rights are to be associated with the “the lack of
freedom in other countries. This portrayal often prevents the (Americans)
from seeing injustices in the United States as human rights violations.”2
Further, several critical scholars have pointed to the fact that American
rights-based identity constructions are viewed in ontological terms. This
tendency is brought out in the work of social theorist Susan Buck-Morss,
who lays out the essentialist assumptions at the core of American identity
formulations and self-image vis-a-vis human rights:
`

Because the U.S. is a civilized nation, it does not violate human rights.
The implication in this example is that whatever the U.S. does as a nation by de¬nition
cannot be a violation of human rights “ even if the same action done by an uncivilized
nation would be a violation. Here the truth-claim has left the (epistemological) realm
of judgment and moved to the (ontological) realm of identity. To be the United States
is to be civilized.3

In other words, something inherent in “ perhaps lying in the spirit of “ the
United States™ being renders its actions consistent with human rights ideals.
Thus, within the human rights realm, American behavior simply cannot be
judged through the same standards applied to other contexts.

1 Ian Johnstone, US-UN Relations after Iraq: The End of the World (Order) as We Know It?
15 eur. j. int™l. l 813, 817 (2004).
2 Loretta J. Ross, Beyond Civil Rights: A New Vision for Social Justice in the United States, 2:1

Hum. Rts. Dialogue (1999), http://www.cceia.org/resources/publications/dialogue/2_01/
articles/607.html.
3 Susan Buck-Morss, Thinking Past Terror: Islamism and Critical Theory on the

Left 64“65 (2003).
23
AMERICAN IMAGININGS OF HUMAN RIGHTS AND THE MIDDLE EAST


Closely linked to these relational identity constructions has been a dual-
istic view of culture. Although there are explicit and implicit assumptions
of Middle Eastern societies™ human rights “nightmares” being linked to
the trappings of a conservative religion and culture, the United States is
viewed as standing in a space that is essentially free of culture and reli-
gion or culturally and religiously neutral. Sally Engle Merry has argued that
in this equation, adherence to modernism, rationality, and capitalism are
seen in opposition to, rather than themselves manifestations of, culture.4
Yet American positions on international human rights instruments or treat-
ment of domestic rights issues often encompass the same cultural dimensions
attributed to human rights engagements in Eastern contexts. For example,
Deborah Weissman has discussed the way some conservatives™ opposition
to the United States™ rati¬cation of the UN Convention on the Elimination
of All Forms of Discrimination against Women has been based on concerns
that the instrument advanced a feminist agenda and threatened traditional
motherhood and child-rearing roles.5 These objections only serve to mirror
American discussion of women™s reproductive rights and the rights of sex-
ual minorities, both of which are deeply entangled in religious and cultural
discourses.
The American self-image relating to rights and liberties also colors the
way Americans understand their own power. Yes, America is powerful, but
this power is largely benign and rooted in idealism. If, through the deploy-
ment of its power, rough edges are displayed, they are not to be taken as
seriously or placed in the same category as the more vile and ill-intentioned
exercises of power witnessed throughout history elsewhere. This is because
at its core, beneath layers of what may be politics or even decision-makers™
incompetence, some underlying aspect of the American deployment of power
is in pursuit of freedom, liberties, and other moral ends. Thus, American
power is, in its essence or even in some teleological way, more benign than
other forms of power, and, as a result, there is less room for concern over
its exercise.
In relation to the international human rights regime, these constructions
have been invoked to paint international human rights norms as redun-
dant or irrelevant to the American experience. This worldview in turn has
provided a rationale for repeated refusals to take on international human
rights obligations in any meaningful way. Within American political and
legal discourses, the rights framework provided in the Constitution has rou-
tinely been portrayed as above and beyond that offered by the international
human rights regime, thus rendering America™s commitment to human rights

4 SallyEngle Merry, Human Rights Law and the Demonizing of Culture (and Anthropology
along the Way), 26:1 Pol. Legal Anthropology Rev. 55 (2003).
5 Deborah Weissman, The Human Rights Dilemma: Rethinking the Humanitarian Project,

35 Colum. Hum. Rts. L. Rev. 259, 326 (2004).
24 AFTER ABU GHRAIB


implicit in the sanctity accorded to its Constitution. The American jurist
Hans A. Linde has observed that

It is largely taken as an article of faith that the United States provides the best pro-
tection for human rights in the world. If there are any rights recognized in inter-
national law that are not recognized in U.S. law, [American] people may assume that
there is a good reason for that non-recognition.6

In other words, although the American rights regime has much to offer the
world, the international human rights regime has little worth considering to
offer the United States.
Further, American policymakers have traditionally not only subscribed
to realist/positivist understandings of international law as powerless because
of its lack of coercive enforcement mechanisms, particularly in relation to
American power and preeminence, but also actively strived to keep the inter-
national human rights legal regime, and their legal obligations under it, weak
to minimize the regime™s constraints on American power. As international
law scholar Nico Krisch has argued, in the case of international legal insti-
tutions applicable to the United States, successive American governments
have opted for more “¬‚exible” soft law rather than concrete legal obliga-
tions and “pushed for an international legal order with weak centralized
enforcement and adjudication.”7 In a manner that in essence mirrored the
approach taken by their Middle Eastern counterparts, American leaders have
largely performed a delicate dance of af¬rming human rights in principle but
registering broad reservations and exceptions in the name of autonomy in
legal, political, and security domains. Reservations to human rights instru-
ments such as the International Convention on Civil and Political Rights
(ICCPR) and the Convention Against Torture (CAT) have construed Ameri-
can obligation pursuant to the treaties as limited to de¬nitions and doctrines
existing in American law and refused the jurisdiction of the International
Court of Justice for settling disputes arising from its adherence to human
rights treaties. Accordingly, as human rights scholar David Forsythe has ob-
served, taken together, the reservations, declarations, and understandings to
the few international human rights instruments to which the United States
has legally bound itself “have amounted to a statement that the United States
would not change any of its existing practices.”8

6 Hans A. Linde™s comments on P. L. Hoffman, The Application of International Human
Rights Law in State Courts: A View from California, 18 Int™l. L. 16 at 77 (1984).
7 Nico Krisch, International Law in Times of Hegemony, 16:3 Eur. J. Int™l. L 369, 392

(2005).
8 David P. Forsythe, US Foreign Policy and Human Rights in an Era of Insecurity: The Bush

Administration and Human Rights after September 11th, in Wars on Terrorism and
Iraq: Human Rights, Unilateralism and U.S. Foreign Policy, 91 (Thomas G. Weiss
et al. eds., 2004).
25
AMERICAN IMAGININGS OF HUMAN RIGHTS AND THE MIDDLE EAST


Similarly, over the past three decades the United States has slowly moved
toward developing U.S.-based human rights mechanisms encompassing lit-
igation, evaluation, and sanction that are applied almost exclusively to the
rest of the world. The State Department™s Country Reports on Human Rights
Practices assess human rights conditions throughout the world. As noted by
Weissman, in and of itself, “the act of observation implies a hierarchy of
power.”9 Further, rules and regulations are implemented to in¬‚uence other
countries™ human rights practices. For example, the well-intentioned “Leahy
Law” prevents American aid to foreign military or security forces who have
committed gross human rights violations with impunity. As Krisch explains,
such regulations

often “ though by no means always “ mirror international legal rules, but through
unilateral application the US retains far greater control over their content and also
avoids being scrutinized itself. . . . [I]t is unsurprising that the US prefers the proactive
unilateral enforcement of human rights to the establishment of effective international
bodies.10

Finally, using domestic laws such as the Alien Torts Claims Act and the
Torture Victim Protection Act of 1991, American courts took up the adju-
dication of international human rights cases occurring outside of the United
States. In this way, “US courts assume the function of global appeals court,
especially in human rights matters.”11 Although American human rights and
civil rights activists have made numerous attempts to bring domestic litiga-
tion on international human rights law grounds, these efforts have made
little headway in American courts. Efforts to sue American companies oper-
ating abroad have been slightly more successful. The American tendency
to create mechanisms parallel to the international human rights regime to
monitor, regulate, and litigate human rights violations outside its borders
while refusing to apply international human rights standards domestically
have effectively placed large parts of American action above and beyond the
international human rights order.
When extended, these dynamics produce two critical paradoxes. First,
at the same time that the dominant narrative positions American behavior
beyond the province of the international human rights order, it quali¬es the
United States to assess other states™ adherence to human rights and, if deemed
necessary, intervene to further human rights and freedom beyond its borders.
Second, at the same time that dominant American identity constructions
marginalize the international human rights regime, important aspects of
American identity and self-image are tied up with an assumption of American
behavior adhering to human rights norms (at least within the civil and
9 See Deborah Weissman, supra note 5, at 259, 316.
10 See Nico Krisch, supra note 7, at 369, 403.
11 Id. at 369, 403“404 (2005).
26 AFTER ABU GHRAIB


political rights categories). Sitting in his of¬ce in Yemen™s Human Rights
Ministry, the Canadian-Sudanese law professor who moved to Sana™a to
head up the United Nations Development Programme (UNDP)™s primary
human rights initiative in the country, El Obaid El Obaid observed this
paradox, which he termed the United States™ “schizophrenic” disposition.
“There™s a sense of ˜we™ll do it our way™ on the one hand and [a] yearning
for some rubber stamping from the outside on the other hand.”12 In other
words, at some level the moral evaluations and international reputation to
which constructivist analysis gives so much weight does come to play in the
American context.
To varying degrees both American and Middle Eastern human rights
advocates adhere to these constructions despite also holding genuine aspira-
tions for the United States to join and comply with the international human
rights regime. In several interviews in Yemen, I encountered this internal-
ization of the notions that American action is inherently compatible with
human rights and that the American regime of rights was an unblemished
model for others to follow. For example, although he had no shortage of
criticism for the United States™ post“September 11th human rights prac-
tices, when the issue came up in our interview, Jamal Abdullah al Shami of
Yemen™s Democracy School explained to a young volunteer sitting in on our
meeting that the reason Americans do not need a Human Rights Ministry is
that rights are suf¬ciently enshrined in their Constitution.13 American advo-
cates™ propensity to adhere to notions that the United States is the world™s
natural human rights leader or guardian and that its human rights violations
are somehow not as tainted as similar violations committed by others are
discussed at the end of chapter 2.
The various facets of the paradoxical American disposition toward the
international human rights regime laid out have been examined extensively
in the vast literature on “American exceptionalism(s).” Sometimes calling
it “American exemptionalism,” scholars have attributed the phenomenon
to American culture, power, institutional makeup, and dominant strands of
political conservativism.14
Many of the constructions at the heart of the American disposition come
to the fore of political discourse in the post“September 11th period, where
they converged with new domestic norms and nationalist discourses centered
around what are termed “War on Terror” imperatives and national security,
on the one hand, and the American mission to spread freedom, human rights,

12 Interview with El Obaid El Obaid, Chief Technical Advisor of United Nations Development

Program Strengthening Human Rights Project, in Sana™a, Yemen (Jan. 24, 2007).
13 Interviewwith Jamal Abdullah al-Shami, Chairman of the Democracy School, in Sana™a,
Yemen (Jan. 23, 2007).
14 See Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in

American Exceptionalsism and Human Rights (Michael Ignatieff ed., 2005).
27
AMERICAN IMAGININGS OF HUMAN RIGHTS AND THE MIDDLE EAST


and democracy, on the other. The rest of the chapter details how the Bush
administration took these identity constructions and construals of human
rights and international legal obligations as a point of departure for its
post“September 11th human rights policies and practices. As a number of
scholars have observed, American exceptionalism after September 11th was
in many ways only a more extreme version of the American exceptionalism
in operation in prior periods.15


HUMAN RIGHTS AND THE MIDDLE EAST AS AMERICA™S CALLING

After September 11th, the human rights paradigm was positioned as an
important cornerstone of American interventions in the Middle East. As
the Bush administration styled it, the September 11th terrorist attacks had
demonstrated the imperative for America as “the leader of the free world”
to take up an agenda of promoting human rights, democracy, and liberty in
the ailing region. The Middle East clearly suffered from widespread tyranny,
oppression, and rights violations. These deprivations of rights and freedom
rendered the region a “breeding ground” for terrorists and their sympa-
thizers. Thus, as the American president declared in a 2003 speech at the
National Endowment for Democracy, American power was to be placed at
the service of freedom in the Middle East “ this was not only in America™s
strategic and security interests, it was “America™s calling”:

The advance of freedom is the calling of our time; it is the calling of our country.
From the Fourteen Points to the Four Freedoms, to the Speech at Westminster,
America has put our power at the service of principle. We believe that liberty is the
design of nature; we believe that liberty is the direction of history. We believe that
human ful¬llment and excellence come in the responsible exercise of liberty. And we
believe that freedom “ the freedom we prize “ is not for us alone, it is the right and
the capacity of all mankind.16

Thus, almost immediately following September 11th, the “War against
Terrorism,” American military intervention in the region, and amorphous
evocations of freedom, justice, and human rights became entwined, the
boundaries between each notion ¬‚uid and shifting. Examples of human
rights being deliberately linked to American militarism and geopolitical
ambitions abound. From the outset, the war in Afghanistan was named
Operation Enduring Freedom and the war in Iraq was named Operation
Iraqi Freedom by the U.S. government. In his 2002 State of the Union address
15 See, for example, Stanley Hoffman, Chaos and Violence: What Globalization,
Failed States and Terrorism Mean for U.S. Foreign Policy 120 (2006).
16 The White House, President Bush Discusses Freedom in Iraq and Middle East: Remarks by

the President at the 20th Anniversary of the National Endowment for Democracy, Nov. 6,
2003, http://www.whitehouse.gov/news/releases/2003/11/20031106-2.html.
28 AFTER ABU GHRAIB


(the same speech that introduced the term Axis of Evil), Bush put forth the
following while showcasing the new Afghan Minister for Women™s Affairs,
Sima Samar:
The last time we met in this chamber, the mothers and daughters of Afghanistan
were captives in their own homes, forbidden from working or going to school.
Today women are free, and are part of Afghanistan™s new government. And we
welcome the new Minister of Women™s Affairs, Doctor Sima Samar. Our progress
is a tribute to the spirit of the Afghan people, to the resolve of our coalition, and to
the might of the United States military. When I called our troops into action, I did
so with complete con¬dence in their courage and skill. And tonight, thanks to them,
we are winning the war on terror. The men and women of our Armed Forces have
delivered a message now clear to every enemy of the United States: Even 7,000 miles
away, across oceans and continents, on mountaintops and in caves “ you will not
escape the justice of this nation.17

Following a similar pattern, as the evidence of weapons of mass destruction
in Iraq failed to materialize, the Bush administration increasingly gravitated
toward an emphasis on Iraq™s mass graves and rape chambers under Saddam
Hussein. In fact, virtually every address or statement by Bush administration
of¬cials with regard to either the Afghan or Iraqi wars was accompanied by
direct or indirect references to Americans introducing the dawn of human
rights or women™s rights (usually both) to the region. The message was not

. 1
( 9)



>>