. 2
( 9)


abandoned even in the American president™s primary speech addressing the
photos evidencing American soldiers™ abuse and torture of Iraqi detainees at
Abu Ghraib.18 American interventions thus held out the promise of freeing
the oppressed “ including those withering away in the Middle East™s prison
[A]nd, one day, from prison camps and prison cells, and from exile, the leaders of
new democracies will arrive. Communism, and militarism and rule by the capricious
and corrupt are the relics of a passing era. And we will stand with these oppressed
peoples until the day of their freedom ¬nally arrives.19

The discourse focused exclusively on the limitations of freedom and injustice
suffered at the hands of Middle Eastern culture, extremist renditions of
Islam, or the region™s repressive governments. There was no room for or
grasp of the connections between Middle Eastern aspirations for freedom,
justice, and rights and U.S. power and politics in the region.
It is dif¬cult to miss key elements of the preexisting American identity
constructions presented above in the new post“September 11th narrative put
17 U.S. Government Printing Of¬ce, George W. Bush, State of the Union Address, Jan. 29,
2002, http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html (last visited
Dec. 18, 2008).
18 The White House, George W. Bush, President, Outlines Steps to Help Iraq Achieve Democ-

racy and Freedom: Remarks by the President on Iraq and the War on Terror, May 24, 2004,
www.whitehouse.gov/news/releases/2004/05/20040524-10.html (last visited Aug. 1, 2005).
19 See U.S. Government Printing Of¬ce, supra note 17.

forth by the Bush administration. The era™s American military interventions
were presented as in essence part of a long tradition of “sacri¬ce for liberty,”
that, although “not always . . . recognized or appreciated,” is nonetheless
“worthwhile.”20 The United States™ power continued to be portrayed as
rooted in its superior values and good intentions. As the president would
frame it, America™s strength lies in its heart.21 As Stanley Hoffman has
observed, the “War on Terror”

. . . ¬‚attered the exceptionalists of all tendencies by emphasizing the indispensable
role of the United States, and it appealed especially to the more idealistic ones by
stressing that the defense against terror, America™s cause, was also the world™s cause;
self-interest and morality, power and values, and the sheriff and the missionary were
back together again.22

Further, the Bush administration clearly enlisted and evoked the human
rights geography critical scholars have mapped out, building on assump-
tions of inherent or ontological American commitments to universalism and
the furtherance of the human rights project as well as corresponding concep-
tions of Middle Easterners as inherently incapable of fully understanding or
achieving rights on their own. Thus, in the ¬nal analysis, aware of the neg-
ative moral evaluation and lack of legitimacy stemming from the unmasked
employment of power and force, the United States enlisted morally rooted
human rights and democracy norms to legitimate its various interventions
in the region. Although, as later chapters detail, this instrumentalization
of human rights did not stand unchallenged, it was nonetheless in large
part facilitated by the preexisting East/West geography of human rights. Its
place atop the hierarchy created by the prevailing human rights geography
afforded the United States considerable relative access to human rights dis-
courses, meaning it was more acceptable and natural for the United States
to frame geopolitical con¬‚icts and its own role in them using human rights
discourses than for a state like Iran, Syria, or Egypt to do so. This privileged
position vis-a-vis human rights discourses in turn could more easily be used
to facilitate human rights™ instrumentalization in furtherance of American


As Julie Mertus has noted in reference to invocations of human dignity and
freedom in George Bush™s 2003 State of the Union address, in identifying
America™s calling, the American president clearly placed the impetus for

20 Id.
21 See The White House, supra note 16.
22 See Stanley Hoffman, supra note 15, at 122.

U.S. interventions in an inherent (at times religiously ordained) American
character, not international human rights law:

Deploying military troops based on a sense of a “calling” and of being “blessed” with
“God™s gift to humanity” represents a departure from appeals to action based on a
sense of obligation grounded in international standards and enforced by multilateral

As the ensuing discussion lays out, in the post“September 11th era, at the
same time that American power is purportedly rooted in its adherence to
broad principles of upholding human rights, international human rights
institutions are constructed as a threat. Although the United States is an
exceptionally good and morally motivated nation in a ¬ght against “evil,”
“injustice,” and “tyranny,” forces “resisting freedom” have posed a constant
threat to the United States and could, at any time, use international norms
and institutions to engage in “asymmetrical warfare” against the United
States. A March 2005 Department of Defense National Defense Strategy
brief found that “our strength as a nation-state will continue to be challenged
by those who employ a strategy of the weak using international fora, judicial
processes, and terrorism.”24
Additionally, U.S. military and government of¬cials frequently argued
that al Qaeda“trained detainees would either take advantage of the American
tradition of upholding certain rights guarantees (i.e., by assuming they would
not be tortured, would be provided with a lawyer, etc.) or would wrongfully
claim human rights violations, such as torture and abuse, to taint American
operations. In this way, human rights came to be seen as an instrument of the
terrorists. This view of human rights as a threat or unnecessary constraint
on the broader post“September 11th American mission comes through in a
speech by the U.S. president of¬cially announcing the CIA™s use of “alterna-
tive interrogation techniques” against high-value terrorism suspects:

We knew that Zubaydah had more information that could save innocent lives, but he
stopped talking. As his questioning proceeded, it became clear that he had received
training on how to resist interrogation. And so the CIA used an alternative set of
procedures. These procedures were designed to be safe, to comply with our laws,
our Constitution, and our treaty obligations. The Department of Justice reviewed
the authorized methods extensively and determined them to be lawful. I cannot
describe the speci¬c methods used “ I think you understand why “ if I did, it would
help the terrorists learn how to resist questioning, and to keep information from us
that we need to prevent new attacks on our country.25
23 Julie Mertus, Bait and Switch: Human Rights and U.S. Foreign Policy, 52 (2004).
24 National Defense Strategy of the United States of America, Department of Defense (Mar.
25 The White House, President Discusses Creation of Military Commissions to Try Suspected

Terrorists, Sept. 2006, http://www.whitehouse.gov/news/releases/2006/09/20060906-3

In tandem with the view of international human rights constraints as a
threat, characterizations of international human rights law as ill-equipped,
outdated, and inferior to the domestic legal order were used in turn to justify
weakening human rights limits and restrictions on American action.
Detailed below are a sampling of post“September 11th attempts to
thwart, reinvent, and marginalize international human rights norms, primar-
ily by considering arguments devised in the now infamous web of memos
and reports drafted by White House, Department of Justice, and Department
of Defense of¬cials, lawyers, and advisors. Collectively, the memos sought
to place American action beyond the reach of any law or court “ domestic or
international “ and eliminate any liability for U.S. agents involved for war
Translating their constructions of international law and human rights
norms into of¬cial and unof¬cial policy on behalf of the United States, the
Bush administration claimed the authority to unilaterally designate “enemy
combatants,” denying them POW status and the accordant protections for
humane treatment under the Geneva Conventions, inde¬nitely imprison any
foreign national it deemed necessary, operate secret prisons in which ghost
detainees would be held with no record of their presence in such U.S. cus-
tody, practice “alternative” and “coercive” interrogation techniques, send
individuals to countries known to torture through “extraordinary rendi-
tions,” and do all of this through either grossly unfair procedures or no
internationally sanctioned due process procedures at all.
The series of “counterresistance” interrogation techniques considered by
the Department of Defense in the fall of 2002 included the following:

a. Category I techniques. . . .
(1) Yelling at the detainee (not directly in his ear or to the level it could
cause physical pain or hearing problems)
(2) Techniques of deception:
(a) Multiple interrogator techniques.
(b) Interrogator identity. The interviewer may identify himself as a
citizen of a foreign nation or as an interrogator from a country
with a reputation for harsh treatment of detainees.
b. Category II techniques. . . .
(1) Stress positions (like standing), for a maximum of four hours.
(3) Use of the isolation facility for up to 30 days
(5) Deprivation of sound and auditory stimuli
(6) The detainee may also have a hood placed over his head during
transportation and questioning. . . .
(7) Use of 20 hour interrogations

(8) Removal of all comfort items (including religious items)
(10) Removal of clothing
(11) Forced grooming (shaving of facial hair, etc.)
(12) Using detainees individual phobias (such as fear of dogs) to induce
c. Category III . . . These techniques required for a very small percentage of
the most uncooperative detainees (less than 3 percent).
(1) The use of scenarios to convince detainee death or severely painful
consequences are imminent for him and/or his family.
(2) Exposure to cold weather or water (with appropriate medical moni-
(3) Use of a wet towel and dripping water to induce misperception of
(4) Use of mild, non-injurious physical contact such as grabbing, poking
in the chest with the ¬nger, and light pushing.26

A Department of Defense legal brief deemed all techniques legal, advising
caution only in the use of threats of imminent death because the act was
stipulated in the U.S. statute implementing the UN Convention Against
Torture. The American secretary of defense approved the Category I and II
techniques as well as the use of mild physical contact on December 2, 2002,
adding a handwritten note, “I stand for 8 to 10 hours. Why is standing
limited to 4 hours”? On January 15, 2003, he rescinded his approval, yet
many of the techniques had already made their way into the culture of
American detention facilities from Guantanamo to Abu Ghraib to Bagram
and many stops in between. The blurred line between of¬cial and unof¬cial
policies, as well as the pervasive climate in which they materialized, is best
captured in the following description of Camp Nama in The New York

The Black Room was part of a temporary detention site at Camp Nama, the secret
headquarters of a shadowy military unit known as Task Force 6-26. Located at
Baghdad International Airport, the camp was the ¬rst stop for many insurgents on
their way to the Abu Ghraib prison a few miles away. Placards posted by soldiers at
the detention area advised, “NO BLOOD, NO FOUL.” The slogan, as one Defense
Department of¬cial explained, re¬‚ected an adage adopted by Task Force 6-26: “If
you don™t make them bleed, they can™t prosecute for it.”27

26 Memorandum from Diane Beaver, Staff Judge Advocate, Department of Defense, Joint
Task Force 170, Guantanamo Bay, Cuba, to General James T. Hill, Commander, Joint
Task Force 170 (Oct. 11, 2002), reprinted in The Torture Papers: The Road to Abu
Graib 227“228 (Karen J. Greenberg and Joshua L. Dratel eds., 2005).
27 Eric Schmitt and Carolyn Marshall, Before and After Abu Ghraib, A U.S. Unit Abused

Detainees, N.Y. Times, Mar. 19, 2006.

Human rights organizations later uncovered evidence that the methods listed
as Category III were used by the CIA in its network of secret prisons, so-
called CIA black sites. On the ground, the line between of¬cial and unof¬cial
policy was increasingly blurred. In February 2006, Human Rights First put
out a report documenting ninety-eight deaths of detainees in U.S. custody
in Iraq and Afghanistan, forty-¬ve of which were con¬rmed or suspected
homicides and at least eight of which were cases of detainees being tortured
to death.28 Details of the torture endured by those transferred to countries
like Syria, Jordan, and Morocco included brutal beatings, use of electric
shock, and cutting of the genitals.
Through the military commissions it eventually instituted and Congress
approved, the administration sought to try select detainees for war crimes
in a legal process in which detainees could be convicted based on secret evi-
dence they were not permitted to see or evidence obtained through torture
or so-called coercive means, yet detainees™ recourse for appeal was limited
to ¬ndings of law, not ¬ndings of fact that would exclude consideration of
evidence supporting their guilt or innocence beyond the military commis-
Although previous administrations had gone to great lengths to simul-
taneously maintain American privilege, preference, and in¬‚uence in inter-
national norm development and to marginalize and carve out American
exceptions once they were developed, by and large, on the surface, they
proclaimed deference to international law. The Bush administration, on the
other hand, was more openly hostile to international norms and institutions,
a disposition that was evident before September 11, most notably in Bush
administration decisions to withdraw the United States from both the Kyoto
Protocol and the Rome Statute of the International Criminal Court. After
September 11th, the trend only intensi¬ed. Still, despite their deviations
from the traditional American posture toward international human rights
law, it is important to recognize that the Bush administration policies did
not develop in a vacuum. As the ¬nal part of this section argues, they were
simply built on the foundation of American exceptionalism already ¬rmly
in place.

Exceptional Times
A fundamental pillar of the Bush administration™s justi¬cation for their
blatant violations of established international human rights law was that
the War on Terrorism was a new or “novel” type of con¬‚ict, presenting
exceptional or unprecedented circumstances for which the existing human
rights paradigm and the international legal order institutionalizing it was

28 Human Rights First, Command™s Responsibility: Detainee Deaths in U.S. Custody in Iraq
and Afghanistan, Feb. 2006, http://www.humanrights¬rst.org/command.

ill equipped. In an interview with journalist Tim Russert a few days after
September 11th, the American vice president ¬rst signaled the need to tran-
scend previously held human rights constraints and commitments stating,
“We also have to work, through, sort of the dark side, if you will. . . . That™s
the world these folks operate in. . . .” He went on to more explicitly paint
his vision of the place of human rights within the dangerous new post“
September 11th world:

MR. RUSSERT: There have been restrictions placed on the United States intelligence
gathering, reluctance to use unsavory characters, those who violated human rights,
to assist in intelligence gathering. Will we lift some of those restrictions?
MR. CHENEY: Oh, I think so. I think the . . . one of the by-products, if you will, of
this tragic set of circumstances is that we™ll see a very thorough sort of reassessment
of how we operate and the kinds of people we deal with. There™s “ if you™re going
to deal only with sort of of¬cially approved, certi¬ed good guys, you™re not going
to ¬nd out what the bad guys are doing. You need to be able to penetrate these
organizations. You need to have on the payroll some very unsavory characters if,
in fact, you™re going to be able to learn all that needs to be learned in order to
forestall these kinds of activities. It is a mean, nasty, dangerous dirty business out
there, and we have to operate in that arena. I™m convinced we can do it; we can do
it successfully. But we need to make certain that we have not tied the hands, if you
will, of our intelligence communities in terms of accomplishing their mission.29

It would not take long for the “exceptional times and cirumstances”
argument to push American foreign policy and its approach to international
law into an even more unilateral, direction This trend was perhaps most
famously exempli¬ed in a January 25, 2002, memo from then“White House
Counsel Alberto Gonzales, when he advised the U.S. president not to extend
Geneva Convention protections to al Qaeda and the Taliban:

As you have said, the war against terrorism is a new kind of war. It is not the tradi-
tional clash between nations adhering to the laws of war that formed the backdrop
for GPW [Geneva Convention III on the Treatment of Prisoners of War]. The nature
of the new war places a high premium on other factors such as the ability to quickly
obtain information from captured terrorists and their sponsors in order to avoid fur-
ther atrocities against American civilians and the need to try terrorists for war crimes
such as wantonly killing civilians. In my judgment, this new paradigm renders obso-
lete Geneva™s strict limitations on questioning of enemy prisoners and renders quaint
some of its provisions requiring that captured enemy be afforded such things as
commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and
scienti¬c instruments.30

29 The White House, The Vice President Appears on Meet the Press with Tim Russert, Sept.
16, 2001, http://www.whitehouse.gov/vicepresident/news-speeches/speeches/vp20010916
30 Memorandum from Alberto Gonzales, White House Counsel to George W. Bush (Jan. 25,

2002), reprinted in supra note 26, at 119.

In this memo Gonzales contends that “it is dif¬cult to predict the need and
circumstances that could arise in the course of the war on terrorism.”31 Thus,
he recommends not affording Geneva Conventions protections to al Qaeda
and Taliban ¬ghters, because such a policy “preserves ¬‚exibility” and avoids
“foreclosing options for the future, particularly against non-state actors.”32
On February 7, 2002, following Gonzales™s counsel, in a memo to high-
ranking of¬cials in his government, Bush declared that the Geneva Conven-
tions apply only to states, and that “terrorism ushers in a new paradigm”
requiring “new thinking on the laws of war.”33 This insistence on the post“
September 11th era™s exceptionalism was widely invoked by Bush admin-
istration of¬cials throughout the era. I also encountered it in an interview
with an of¬cial at the U.S. embassy in Yemen:

The Guantanamo situation in particular is a dilemma. The new threat to the world
order or American national security comes from an international network with which
the international world order has not learned to cope yet. There is no way to stop a
bin Laden with a group of Arabs camped out in Afghanistan plotting an attack on
New York. Under which law do you try them? Where do you incarcerate them and
what are the rules of engagement? It™s a new threat and it requires new laws, new
procedures, a new political arrangements. The UN comes from WWII arrangements.
Today we are witnesses a new global con¬guration that may require a new adjusting
of the tools that we have.34

The argument that international law is ill suited to confront the new ter-
rorism challenge often coincided with attempts to delegitimize (question the
hard law quality of) and effectively marginalize international human rights
norms and treaty obligations. Depictions of international human rights law
as not real law, more speci¬cally as na¨ve, advisory, and irrelevant (or, in
Alberto Gonzales™s words, quaint and obsolete) were increasingly part of
the post“September 11th landscape.35 In a House Armed Services Commit-
tee hearing on military commissions to try Guantanamo detainees in which
American obligations to comply with Common Article III of the Geneva
Conventions ¬gured prominently, Committee Chair Duncan Hunter states,
“We won™t lower our standards; we will always treat detainees humanely,
but we can™t be naive, either.”36 Within the context of the hearing™s
31 Id. at 120.
32 Id. at 119.
33 Memorandum from George W. Bush to the Vice President, the Secretary of State, the

Secretary of Defense, Attorney General, Chief of Staff to the President, Director of CIA,
Assistant to the President for National Security Affairs, and Chairman of the Joint Chiefs
of Staff (Feb. 7, 2002), reprinted in supra note 26, at 134.
34 Interview with a senior U.S. embassy of¬cial, in Sana™a, Yemen (Jan. 23, 2007).
35 Memorandum from Alberto Gonzales, White House Counsel to George W. Bush (Jan. 25,

2002), reprinted in supra note 26, at 119.
36 Transcript of the Hearing on Military Commissions and Tribunal, House Armed Services

Committee, 109th Cong. (July 12, 2006).

discussions, the clear implication of his words is that complying fully with
the Geneva Convention protections could be considered proceeding with
naivet´ .
The Bush administration similarly marginalized international human
rights law by repeatedly asserting that it was composed of various legal
obligations that were vague or unde¬ned. For example, Common Article III
of the Geneva Conventions provides that:
Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without
any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth,
or any other similar criteria.37

Among the acts it speci¬cally prohibits are “outrages upon personal dignity,
in particular, humiliating and degrading treatment.” This provision was
frequently rejected by Bush administration lawyers on the grounds that it
was open to interpretation. In the previously mentioned memorandum to
the president, Alberto Gonzales posited as follows:
First, some of the language of the GPW is unde¬ned (It prohibits, for example,
“outrages upon personal dignity” and “inhumane treatment”), and it is dif¬cult to
predict with con¬dence what actions might be deemed to constitute violations of the
relevant provisions of GPW.38

Similarly, in an August 1, 2002, memo to Gonzales, Deputy Assistant Attor-
ney General John Yoo refers to the “amorphous concept of mental pain and
suffering” adopted in the Convention Against Torture.39
Another American strategy to counter the constraints posed by interna-
tional human rights law consisted of reconstituting established international
legal doctrine and interpretations. Amy Bartholomew refers to the United
States™s disturbing “self-proclaimed right to unilaterally de¬ne and to state
international law “ to constitute it monologically” and an inclination to
treat international law “as derivative of its will as a global sovereign.”40
This reconstitution and reinterpretation of international law has taken place
at several junctures throughout the post“September 11th era. Perhaps one
of the most blatant American attempts to recon¬gure international law lies
37 Geneva Convention Relative to the Treatment of Prisoners of War art. 3(1), Aug. 12, 1949,
6 U.S.T. 3316, 75 U.N.T.S. 135 available at http://www.unhchr.ch/html/menu3/b/91.htm.
38 Memorandum from Alberto Gonzales, White House Counsel to George W. Bush (Jan. 25,

2002), reprinted in supra note 26, at 120.
39 Memorandum from John Yoo, Deputy Assistant Attorney General, U.S. Department of

Justice, Of¬ce of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1,
2002), reprinted in supra note 26, at 220.
40 Amy Bartholomew, Empire™s Law and the Contradictory Politics of Human Rights, in

Empire™s Law: The American Imperial Project and the War to Remake the
World, 162 (Amy Bartholomew ed., 2006).

within the realm of use of force. The UN charter recognizes the legitimate
use of force only in instances of self-defense or when the use of force is
authorized by the Security Council. Yet, as Krisch observes in recent years,
the United States has breached prevailing use of force doctrine on several
The US and its allies have advanced claims for new rights to use force in three
main areas: a right to unilaterally enforce security council authorizations in the
interventions in the Former Yugoslavia and Iraq; a broadened right to exercise self-
defense against terrorist attacks in the missile attacks on Sudan and Afghanistan and
later the war in Afghanistan; and a bold right to pre-emptive self-defense, so far only
cautiously invoked in the War in Iraq.41

Among the areas Krisch delineates, the resort to preemptive war without
Security Council authorization has been the most troubling and consequen-
tial in the post“September 11th era.
The Bush administration also engaged in a reordering of international
norms in denying al Qaeda members Geneva Conventions protections,
maintaining that the treaty applies “to con¬‚icts with regular foreign armed
forces” and not “to a con¬‚ict with terrorists.”42 Accordingly, the adminis-
tration adopts a policy that applies the Geneva Conventions to the con¬‚ict
with Afghanistan but holds that none of the provisions of the Geneva Con-
ventions apply to the American con¬‚ict with al Qaeda ¬ghters who are
categorized as “unlawful combatants” and not afforded POW status. Con-
trary to the Bush administration™s rendition, the Geneva Conventions were
drafted to provide minimal levels of protection to all persons involved in
international armed con¬‚icts. Even if al Qaeda detainees were to be consid-
ered nonprivileged or enemy combatants, they would still be covered by the
Fourth Geneva Convention Relative to the Protection of Civilians in Time
of War. The Geneva Conventions further require that detainees be presump-
tively considered and treated as prisoners of war (i.e., privileged or lawful
combatants detained by an opposing army) until determined otherwise in
proceedings held by a competent tribunal in which each detainee™s case is
considered separately.
Finally, the Bush administration™s tendency to reinvent international
human rights norms is also manifested in the de¬nition of torture it adopts “
a de¬nition so limited in scope, it effectively strips the concept of its estab-
lished meaning. Article 1 of the UN Convention Against Torture offers the
following de¬nition of torture:
Torture means any act by which severe pain or suffering, whether physical or mental,
is intentionally in¬‚icted on a person for such purposes as obtaining from him or a
41 SeeNico Krisch, supra note 7, at 369, 403.
42 Memorandum from Alberto Gonzales, White House Counsel to George W. Bush (Jan. 25,
2002), reprinted in supra note 26, at 220.

third person information or a confession, punishing him for an act he or a third per-
son has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is in¬‚icted by or at the instigation of or with the consent or
acquiescence of a public of¬cial or other person acting in an of¬cial capacity. It does
not include pain or suffering arising only from, inherent in or incidental to lawful

Upon ratifying the Convention Against Torture in 1994, the United States
entered some fourteen reservations, declarations, and understandings. Incor-
porating these stipulations, the de¬nition of torture subsequently adopted in
the legislation implementing the Convention, 18 U.S.C. § 2340, states that
“˜torture™ means an act committed by a person acting under the color of law
speci¬cally (emphasis added) intended to in¬‚ict severe physical or mental
pain or suffering (other than pain or suffering incidental to lawful sanctions)
upon another person within his custody or physical control.” Taking vast
strides further away from the de¬nition of torture under international law,
in a now-infamous August 1, 2002, memo to Alberto Gonzales, Assistant
Attorney General Jay Bybee concludes:
For an act to constitute torture as de¬ned in Section 2340, it must in¬‚ict pain that is
dif¬cult to endure. Physical pain amounting to torture must be equivalent in intensity
to the pain accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death. For purely mental pain or suffering to amount
to torture under Section 2340, it must result in signi¬cant psychological harm of
signi¬cant duration, e.g. lasting for months or even years . . . the statute, taken as a
whole, makes plain that it prohibits only extreme acts.44

The memo also states that “because Section 2340 requires that a defendant
act with the speci¬c intent to in¬‚ict severe pain, the in¬‚iction of such pain
must be the defendant™s precise objective.”45
Finally, in a March 2004 memo, Jack Goldsmith, a United States assistant
attorney general in the Of¬ce of Legal Council and conservative international
law scholar, ¬nds that Article 49 of the Geneva Conventions, which prohibits
the deportation or forced transfer of protected persons in an occupation,
does not preclude the transfer of detainees from Iraq to other countries for
interrogation purposes:
We now conclude the United States may, consistent with article 49, (1) remove
“protected persons” who are illegal aliens from Iraq pursuant to local immigration
law; and (2) relocate “protected persons” (whether illegal aliens or not) from Iraq
43 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, G.A. Res. 46, U.N. Doc. A/39/51, at 1(1)(1984) available at http://www.unhchr
44 Memorandum from Jay Bybee, Assistant Attorney General to Alberto Gonzales, Counsel

to the President (Aug. 1, 2002), reprinted in supra note 26, at 172.
45 Id. at 174.

to another country to facilitate interrogation, for a brief but not inde¬nite period, so
long as adjudicative proceedings have not been initiated against them.46

Part of the legal rationale for this conclusion was that the original intent
behind the Geneva provision was to counter mass deportations and transfers
akin to those undertaken by the Nazis and Japanese in World War II. The
limited construal of the provision in effect provides legal cover for subjecting
individuals detained in the Iraqi con¬‚ict (a con¬‚ict to which the United
States has agreed the Geneva Conventions do apply) to the “extraordinary
rendition” policy adopted by the administration in the immediate aftermath
of September 11th.

A Selective Privileging of Domestic Law
A subsequent approach adopted by the United States to limit the reach
of international law on U.S. action in the “War on Terror” included the
deployment of justi¬cations for violations of international human rights law
based on domestic law. Again, drawing on pervasive American identity con-
structions and beliefs, political elites argued that the United States had little
need for international human rights safeguards, as its domestic safeguards
themselves suf¬ciently enshrined the values of which international norms
are, and should be, comprised. Discussions surrounding the legality of acts
such as detentions and torture were then largely con¬ned to the realm of U.S.
constitutional analysis to the exclusion and marginalization of international
legal analysis.
Bush administration memos presented the idea of an overriding presiden-
tial power to order torture, collapsing the issue of detainee treatment into
the U.S. president™s constitutional powers to direct military operations.47
The Bybee torture memo went so far as to equate detention and inter-
rogation decisions to directing troop movement on the battle¬eld, ¬nding
that neither the Convention Against Torture nor Congress could restrict the
American president™s authority in “War on Terror” detention and interro-
gation ¬elds.48 It concludes that prosecution under the U.S. statute imple-
menting the Convention Against Torture “may be barred because enforce-
ment of the statute would represent an unconstitutional infringement of
the President™s authority to conduct war.”49 This warped analysis held that
46 Memorandum from Jack Goldsmith III, Assistant Attorney General, Of¬ce of Legal Coun-
sel, to William H. Taft IV, William J. Haynes II, John Bellinger, and Scott Mueller (Mar.
19, 2004), reprinted in supra note 26, at 368.
47 Memorandum from John Yoo, Deputy Assistant Attorney General, U.S. Department of

Justice and Robert J. Delahunty, Special Counsel, U.S. Department of Justice, to William J.
Haynes II, General Counsel, Department of Defense (Jan. 9, 2002), reprinted in supra note
26, at 64.
48 Memorandum from Jay Bybee, Assistant Attorney General to Alberto Gonzales, Counsel

to the President (Aug. 1, 2002), reprinted in supra note 26, at 207.
49 Id. at 173.

because information obtained through interrogations “may prevent future
attacks from foreign enemies,” efforts to apply laws prohibiting torture “in
a manner that interferes with the President™s direction of such core war
matter as the detention and interrogation of enemy combatants” would be
unconstitutional. Another memo held that the United States was not bound
by customary international law because the Supremacy Clause of the U.S.
Constitution does not recognize it:

In other words, customary international law has not undergone the dif¬cult hurdles
that stand before the enactment of constitutional amendments, statutes, or treaties.
As such it can have no legal effect on the government or on American citizens because
it is not law. Even the inclusion of treaties in the Supremacy Clause does not render
treaties automatically self-executing in federal court, not to mention self-executing
against the executive branch.50

In each of these formulations, highly questionable domestic legal arguments
(for example, interpreting the executive power delegated to the president
in Article II, Section 1, of the American Constitution as vesting sweeping,
virtually unchecked, authority in the realm of national defense and warfare)
are posited to place U.S. action outside the purview of international human
rights law.
Invoking allegiance to the Constitution provided the Bush administration
and its allies with a shield against internal criticism: it could be used to pro-
duce normative associations with the American tradition of upholding rights
to deny noncitizens human right protections. Thus, a systematic attempt to
bar detainees from any domestic rights protections accompanies the use of
domestic legal analysis to preclude international rights protections. First,
the choice of Guantanamo Bay as a primary location for “War on Terror”
detentions was an unmistakable attempt to present jurisdictional hurdles for
domestic challenges through litigation. Second, a February 26, 2002, memo
from Jay Bybee to William Haynes undertook an extensive domestic law
analysis of why U.S. constitutional and, particularly, Bill of Rights protec-
tions (e.g., Fifth Amendment protection against self-incrimination, Miranda
warnings, Sixth Amendment right to counsel prior to initiation of judi-
cial proceedings) do not apply to aliens.51 That constitutional protections
could not be extended to noncitizens was treated merely as a regrettable but
unalterable fact by administration of¬cials, who concurrently went to great

50 Memorandum from John Yoo, Deputy Assistant Attorney General, U.S. Department of
Justice, and Robert J. Delahunty, Special Counsel, U.S. Department of Justice, to William J.
Haynes II, General Counsel, Department of Defense (Jan. 9, 2002), reprinted in supra note
26, at 72.
51 Memorandum from Jay Bybee, Assistant Attorney General, Department of Justice, to

William Haynes II, General Counsel, Department of Defense (Feb. 26, 2002), reprinted
in supra note 26, at 165“171.

lengths to foreclose detainees™ ability to put forth writ of habeas corpus
petitions in American courts.
Although they were interested in applying constitutional arguments for
why international law was to be abrogated, American of¬cials were clearly
not willing to provide many of the most basic rights protections derived
from domestic law that served as the basis for American claims to being
the world™s champion for human rights. Joshua Dratel observes that the
lawyers and policymakers involved seemed to fear their own federal courts,
an independent judiciary “ a legitimate, legislated, established system of
justice designed to promote fairness and accuracy.52 Yet, throughout the
exercise, there is little sense of a contradiction in the American claim to
human rights leadership and its current practice of discrimination based
on citizenship, nationality, race, or religion in the rights guarantees it is
willing to provide.53 In fact, as the following exchange at a congressional
hearing on detainee rights illustrates, providing domestic rights guarantees,
typically portrayed as the universal model for others to follow, is, in the
post“September 11th era, considered by many conservatives in power to be
providing “a weapon” to the enemy:

REP. TAUSCHER: But that™s the challenge of the asymmetry of this ¬ght.
MR. DELL™ORTO: Exactly. And we can™t let him use our process, our due process,
our legal system, as one of his other weapons as he carries on this ¬ght.

Equally troubling was the emergence of a post“September 11th main-
stream debate in the media, among policymakers outside the Bush adminis-
tration, and within some academic circles over whether the absolute prohibi-
tion on torture was appropriate when dealing with the new counterterrorism
terrain, with increasing numbers of pundits and experts justifying the use
of torture in “the War against Terrorism” as a “lesser evil.”54 As Amy
Bartholomew observed, the emerging legal and political discourse threat-
ened “to move torture from the despicable, subterranean, illegal action to
which a state responding to crises might illegitimately resort, to one that has
legal standing with terrible implications for the rule of law not to mention
human rights.”55 On the one hand, there was a near-consensus or assump-
tion that Americans would never engage in the type of torture and inhumane
treatment that occurs in other countries. On the other hand, once the Abu
Ghraib photos and Guantanamo Bay accounts provided incontrovertible
52 Joshua L. Dratel, The Legal Narrative, in supra note 26, at xxi.
53 For a discussion of the divide between notions of citizens™ rights and human rights as well
as the formulation of various hierarchies in U.S. policies post“September 11th, see Anthea
Roberts, Righting Wrongs or Wronging Rights? The United States and Human Rights
Post-September 11, 15 Eur. J. Int™l L. 721 (2004).
54 Jim Rutenberg, Torture Seeps into Discussion by News Media, N.Y. Times, Nov. 5, 2001.
55 See Amy Bartholomew, supra note 40, at 5.

evidence to the contrary, mainstream America quickly made the transition
to assuming the role of the good cop who had to resort to rough meth-
ods to mete out global justice. Aided by Hollywood depictions of “ticking
time-bomb” scenarios and FOX News interviews with experts and even aca-
demics making the case for torture as a necessary evil, large parts of the U.S.
population rapidly gravitated toward the notion that unsavory means may
be required to win the ¬ght against evil and tyranny.
In this climate, raising human rights concerns or invoking international
law was stigmatized and equated with weakness or with being unpatriotic,
and it had a silencing effect on individual policymakers or media voices
who may have otherwise raised reservations. Similarly, the voices of human
rights advocates were marginalized by both the government and the media.
Although they were accorded signi¬cant legitimacy with regards to their
accounts of human rights violations abroad, in their criticisms of American
counterterrorism policies they were labeled as do-gooders who, in blind
enthusiasm for defending terrorists, exaggerated the scope and seriousness
of U.S. infringements of human rights. As John Sifton of Human Rights
Watch recounted, human rights defenders are also frequently painted as
na¨ve about the real risks involved in ¬ghting the “War on Terror”:

According to the appeasement view, human rights defenders are naive. We don™t
understand the reality: that circumstances may arise where torture may be
needed. . . . Also, we who oppose torture are supposed to be apologetic for our posi-
tion. We™re making the world less safe, and we owe it to the rest of our community
to admit this.56

This situation prompted articles in which members of the American human
rights movement contemplated strategies for getting their voices heard.57

Exceptional Nation
Again, there is a tremendous degree of continuity between the legal and
political discourse of the Bush administration and the legal and political
discourses surrounding human rights that prevailed before September 11th,
namely, the reproduction of the East/West geography and its various roles
and assumptions. Not only were these exceptional times, the United States
was an exceptional nation. Its historical and identity-based commitment to
rights entitled it to a presumption of compliance “ if not to the letter of
international human rights law, then within the spirit of the human rights
ideals it had historically embraced. In the ¬nal analysis, the narrative being
advanced held: if the United States™ objective was to sustain its own and
56 E-mail from John Sifton, senior researcher at Human Rights Watch, to author (May 2,
2006) (on ¬le with author).
57 See, for example, Juan Mendez and Javier Mariezcurrena, Prospects for Human Rights

Advocacy in the Wake of September 11, 2001, 22 Law & Ineq. 223 (2004).

further others™ rights, freedom, and democracy, then it must be assumed
that either American means will also be moral and good or, alternately, its
means should not be at issue, in light of its purported ends.58 Robert Keohane
and Anne-Marie Slaughter describe what amounts to an ontologically based
assumption of adherence to human rights in an International Herald Tribune
op-ed following Abu Ghraib:

President George W. Bush™s efforts to build democracy in Iraq are underpinned by a
misguided view of America™s own democracy. He believes that American democracy
works because Americans are innately good people, believing in values of tolerance
and respect for others and guided by religious faith. In his view, Americans don™t need
checks and balances so much as reminders of basic American values and America™s
overriding moral mission to bring freedom to the world. Similarly, abuses of power,
as at Abu Ghraib prison and beyond, do not represent the failure of the system, but
rather the deviant behavior of a few bad people.59

The excerpt™s concluding reference to the common attribution of exercises
of power to “a few bad apples” within the dominant construction is also
taken up in a commentary by Phillip Kennicott:

Among the corrosive lies a nation at war tells itself is that the glory “ the lofty goals
announced beforehand, the victories, the liberation of the oppressed “ belongs to
the country as a whole; but the failure “ the accidents, the uncounted civilian dead,
the crimes and atrocities “ is always exceptional. Noble goals ¬‚ow naturally from
a noble people; the occasional act of barbarity is always the work of individuals,
unaccountable, confusing and indigestible to the national conscience. This kind of
thinking was widely in evidence among military and political leaders after the emer-
gence of pictures documenting American abuse of Iraqi prisoners in Abu Ghraib
prison. These photographs do not capture the soul of America, they argued. They
are aberrant.60

Further, by relying on the same assumptions of American behavior as a pri-
ori in line with human rights, the Bush administration is largely successful in
promoting the use of euphemisms such as “harsh” or “coercive interrogation
techniques” to the same behavior it (and the American public) label as tor-
ture when conducted in other countries. Although recharacterizing human
rights violations in more innocuous terms is hardly unique to the United
States, the Bush administration™s attempt to do so was aided considerably by
the prevailing societal assumptions of American human rights compliance.
As a result, throughout the post“September 11th era, within mainstream
discourse, there is never a ¬rm consensus that the American government has
58 Jack Donnelly, International Human Rights: Unintended Consequences of the War on
Terrorism, in supra note 8, at 103.
59 Robert O. Keohane and Anne-Marie Slaughter, Bush™s Mistaken View of US Democracy,

Int™l. Herald Trib. Jun. 23, 2004.
60 Phillip Kennicott, A Wretched New Picture of America: Photos from Iraq Show We Are

Our Worst Enemy, Washington Post, May 5, 2004, at C01.

in fact committed torture. Instead, debates surround questions of whether
speci¬c techniques (e.g., water-boarding) constitute torture. The normative
force that propelled the debates over whether acts traditionally understood
as torture were to be in fact understood as torture, when committed by
Americans, was the embedded belief in the United States™ good intentions
vis-a-vis upholding human rights.
The discursive case for American exceptionalism and ontological commit-
ment to human rights easily translates to the legal formulations for carving
out exceptions for American human rights violations devised by the Bush
administration. Namely, based on an assumption of American adherence
to human rights, the United States should be trusted to act in accordance
with human rights norms. Thus, in the post“September 11th era, the United
States takes previously asserted prerogatives to create a human rights order
parallel to the international human rights regime to new heights, availing
itself of even greater liberty to administer and adjudicate human rights from
beyond the international human rights regime. The trend was ¬rst mani-
fested in the Bush administration™s decision to deny Taliban and al Qaeda
detainees POW status under the Geneva Conventions but unilaterally decree
that the prisoners will be treated in a manner consistent with the Geneva
Conventions. The stance gives the United States the space to qualify its
bestowal of rights “to the extent appropriate and consistent with military
necessity,” as Secretary of Defense Donald Rumsfeld does in a January 19,
2002, memo.61 In the same spirit, Alberto Gonzales notes the argument put
forth by those advocating that the United States should afford Geneva Con-
ventions protections to al Qaeda and Taliban detainees: “concluding that
the Geneva Conventions does not apply may encourage other countries to
look for technical ˜loopholes™ in future con¬‚icts to conclude that they are not
bound by the GPW either.”62 He, however, goes on to dismiss the scenario,
¬nding that:

It should be noted that your policy of providing humane treatment to enemy detainees
gives us the credibility to insist on like treatment for our soldiers. Moreover, even
if GPW is not applicable, we can still bring war crimes charges against anyone who
mistreats U.S. personnel.63

The ¬nal sentence of Gonzales™s analysis unveils the administration™s more
astounding claim that it should be trusted not only to act in a manner consis-
tent with universally recognized norms without taking on any legal obliga-
tion to that effect but also to mete out justice through its own prosecutions
61 Memorandum from Donald Rumsfeld, Secretary of Defense, to the Chairman of the Joint
Chiefs of Staff (Jan. 19, 2002), reprinted in supra note 26, at 80.
62 Memorandum from Alberto Gonzales, White House Counsel, to George W. Bush (Jan. 25,

2002), reprinted in supra note 26, at 120.
63 Id. at 121.

based on the same international legal norms to which it refuses to be legally
subjected. In his January 2002 memo, Deputy Attorney General John Yoo
found that the United States™ treatment of applying the Geneva Conventions
“as a matter of policy, not law” permits the United States to prosecute based
on the Geneva Conventions as customary international law:

To say that the speci¬c provisions of the Geneva and Hague Conventions do not
apply in the current con¬‚ict with the Taliban militia as a legal requirement is by
no means to say that the principles of the law of armed con¬‚ict cannot be applied
as a matter of U.S. Government policy. The President as Commander-in-Chief can
determine as a matter of his judgment for the ef¬cient prosecution of the military
campaign that the policy of the United States will be to enforce customary standards
of the law of war against the Taliban and to punish any transgressions against those
standards. Thus, for example, even though Geneva Convention III may not apply,
the United States may deem it a violation of the laws and usages of war for Taliban
troops to torture any American prisoners whom they may happen to seize. The U.S.
military thus could prosecute Taliban militiamen for war crimes for engaging in such
conduct. A decision to apply the principles of the Geneva Conventions or of others
laws of war as a matter of policy, not law, would be fully consistent with the past
practice of the United States.64

He goes on to conclude as follows:

Although customary international law does not bind the President, the President may
still use his constitutional warmaking authority to subject members of al Qaeda or
the Taliban militia to the laws of war. While this result may seem at ¬rst glance to be
counter-intuitive, it is a product of the President™s Commander-in-Chief and Chief
Executive powers to prosecute the war effectively.

We do not believe that these courts (American Military tribunals) should lose juris-
diction to try members of al Qaeda or the Taliban militia for violations of the laws
of war, even though we have concluded that the laws of war have no binding effect “
as federal law “ on the President.65

The same “trust us” spirit underpins Bush™s description of the CIA Secret
Detention program in which torture is widely believed to have been prac-

Many speci¬cs of this program, including where these detainees have been held and
the details of their con¬nement, cannot be divulged. Doing so would provide our
enemies with information they could use to take retribution against our allies and
harm our country. I can say that questioning the detainees in this program has given

64 Memorandum from John Yoo, Deputy Assistant Attorney General, U.S. Department of
Justice, and Robert J. Delahunty, Special Counsel, U.S. Department of Justice, to William
J. Haynes II, General Counsel, Department of Defense (Jan. 9, 2002), reprinted in supra
note 26, at 62.
65 Id. at 76.

us information that has saved innocent lives by helping us stop new attacks “ here
in the United States and across the world.66

Again, the premise of the argument is that the United States is at liberty
to determine both the amount of information regarding its treatment of
detainees to be divulged and when and to what extent human rights pro-
tections are necessary or appropriate. Its action can be shrouded in secrecy
because that is what the exigencies of the “War on Terrorism” require and
because it is the United States. As the president states, “We do not condone
torture. I have never ordered torture. I will never order torture. The values of
this country are such that torture is not a part of our soul and our being.”67
In other words, given its identity rooted in rights, it will always intend to
further human rights and human dignity. If it pushes the bounds of existing
rights regimes, it must be understood that it does so out of some absolute
In addition to making full use of American identity constructions desig-
nating the United States as human rights compliant, the Bush administration
makes use of legal products of pre“September 11th exceptionalism, namely,
American reservations to the limited number of international human rights
instruments to which the United States is a party. The entering of reserva-
tions to human rights treaties has always been an issue of great debate and
controversy among human rights promoters. Under the Vienna Convention
on the Law of Treaties, reservations are allowed “to modify the legal effect
of certain provisions of the treaty in their application to that State” unless
the treaty explicitly either limits or prohibit reservations or the reservation
being entered is contrary to the object and spirit of the treaty.68 Many inter-
national human rights lawyers hold the view that although such provisions
for reservations may be appropriate in relation to most other treaties, they
are not appropriate or valid in the context of human rights treaties, as most
reservations stand contrary to the object and purpose of the conventions.
Nonetheless, reservations are often accepted as an undesirable but neces-
sary trade-off for bringing into the regime countries that have demonstrated
that they would otherwise likely not join. Thus, historically, human rights
treaty bodies have accepted a myriad of sweeping reservations (often made
with varying levels of bad faith) to human rights instruments from countries
reluctant to fully or seriously take on international human rights obligations,
including the United States.

66 See The White House, supra note 25.
67 Remarks by the president and Prime Minister Medgyessy of Hungary in photo opportunity
(Jun. 22, 2004).
68 Vienna Convention on the Law of Treaties, UN Doc. A/Conf.39/27, at available at

2(1)d (1969), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/

The Bush administration™s view of previous American reservations to the
Convention Against Torture as an accessible avenue to thwart the regulation
of the international human rights regime is evidenced in an August 1, 2002,
memo by John Yoo to Alberto Gonzales. In this memo, Yoo cites and
defends an understanding entered by the Reagan administration that adopts
de¬nitions of torture (particularly the level of intent required to constitute
it) as well as mental pain and suffering that depart from those found in the
international instrument:

Under international law a reservation made when ratifying a treaty validly alters or
modi¬es the treaty obligation. . . .
Thus, we conclude that the Bush administration™s understanding created a valid and
effective reservation to the Torture Convention. Even if it were otherwise, there is no
international court to review the conduct of the United States under the Convention.
In an additional reservation the United States refused to accept the jurisdiction of
the ICJ. . . . Although the Convention creates a committee to monitor compliance, it
can only conduct studies and has no enforcement powers.69

As Yoo is all too happy to report, even if one reservation is invalid, another
reservation forecloses any possibility for accountability under the interna-
tional regime.
In his con¬rmation hearings for Attorney General, Alberto Gonzales
invoked another reservation to argue that the Convention Against Torture
did not apply to noncitizens. This time the American reservation in question
was one that limits the United States™ obligations under the convention™s
Article 16 prohibition of cruel, inhumane, or degrading treatment “only
insofar as the term ˜cruel, inhuman or degrading treatment or punishment™
means the cruel, unusual and inhumane treatment or punishment prohibited
by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of
the United States.” Gonzales maintained that because long-standing U.S.
jurisprudence and policy confer no constitution rights to foreign nationals,
the United States has no legal obligation to ensure that aliens do not suffer
cruel, inhuman, and degrading treatment by American authorities.
Similarly, in her October 11, 2002, memo for the Commander of Joint
Task Force 170 regarding the Department of Defense™s proposed “Counter-
resistance” strategies cited above, Diane Beaver notes that in ratifying the
International Convention on Civil and Political Rights, the United States
registered a reservation on Article 7 of the convention prohibiting inhuman
treatment, stating that it was bound only to the extent that the U.S. Consti-
tution prohibits “cruel and unusual punishment.” She goes on to state that
there is no existing jurisprudence on the Eighth Amendment in the context
69 Memorandum from John Yoo, Deputy Assistant Attorney General, U.S. Department of
Justice, Of¬ce of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1,
2002), reprinted in supra note 26, at 220.

of interrogations but ¬nds that in other contexts, “ultimately the 8th amend-
ment analysis is based primarily on whether the government had a good faith
legitimate governmental interest, and did not act maliciously and sadistically
for the very purpose of causing harm.”70 From this premise, she concludes
that because there is a legitimate government objective in obtaining infor-
mation and as long as no severe pain is in¬‚icted or prolonged mental harm
intended, the techniques are legally permissible.
It can certainly be argued that the Bush administration™s treatment dis-
torts American reservations. For example, in a letter to Patrick Leahy,
Abraham Sofaer, a State Department legal advisor at the time when the Rea-
gan administration signed the Convention Against Torture, challenges the
Gonzales interpretation of the U.S. reservation on Article 16 of the Con-
vention Against Torture, stating that the reservation was meant only to
alter the de¬nition of “cruel, inhumane and degrading” punishment being
applied and not limit its application exclusively to territories under U.S.
jurisdiction.71 Still, the larger point is that both the existence and particu-
larly permissive formulation of many of the U.S. reservations entered in the
previous administration assisted the Bush administration™s agenda to exempt
its human rights violations from the constraints posed by international law.
The Bush administration gladly took previously entered reservations carving
out exceptions to international human rights law™s regulation of American
behavior as a point of departure for claiming further exceptions to the same.72


Nico Krisch argues that the practice of creating categories of states or indi-
viduals to which international law does not apply has historically been a
common approach adopted by powerful states to circumvent the principles
of sovereign equality and universalism embedded in the international legal
order. He goes on to brilliantly lay out the United States™ use of this strategy
in the post“September 11th era:

Today we can observe a somewhat similar phenomenon: a division of the world into
a sphere of peace, in which individual rights and democracy ¬‚ourish, and an area of

70 Memorandum from Diane Beaver, Staff Judge Advocate, Department of Defense, Joint
Task Force 170, Guantanamo Bay, Cuba, to General James T. Hill, Commander, Joint
Task Force 170 (Oct. 11, 2002), reprinted in supra note 26, at 232.
71 Letter from Abraham Sofaer, Former State Department Legal Advisor, to Patrick Leahy,

Senate Judiciary Committee (Jan. 25, 2005), available at http://www.humanrights¬rst
72 A more elaborate discussion of how American reservations, declarations, and understand-

ings of international human rights instruments aided Bush administration torture policies
is undertaken by Jamie Mayerfeld. 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).

lawlessness, characterized by collapsed state structures, dictatorships and widespread
violations of human rights. On the level of theory, this is most prominently re¬‚ected
in John Rawls™ conceptions of a Law of Peoples, in which only outlaw states enjoy
very limited protection, but it ¬nds expression also in the ideas of “liberal interna-
tional law” that were advanced throughout the 1990s. In the practice of Western
states, we can observe such tendencies in the new emphasis on democracy and human
rights as conditions for full membership in the international community and for the
protection from foreign or international intervention. They are most obvious, how-
ever, in US attempts at creating a particular legal regime for so-called “rogue states”
who allegedly sponsor terrorism or develop weapons of mass destruction. . . . they
have also become the potential objects of pre-emptive self-defense. Similarly, certain
“rogue” individuals “ alleged terrorists and “unlawful combatants” “ have been
stripped of many of the rights they enjoy under international human rights and
humanitarian law. . . . the US has thus undertaken attempts to create different cate-
gories of states and individuals and to limit the reach of international law to some
of these.73

In its post“September 11th constructions, the United States created the cat-
egories of terrorist, enemy of the United States, and enemy of freedom
and human rights as categories to which any strict application of human
rights norms were inappropriate. Moreover, each of the three categories
was treated as either synonymous with the other or interchangeable. The
terrorists who stood as the United States™ enemies were thus ¬rst and fore-
most motivated by a disdain for rights and freedom “ also dubbed “the
American way of life.” In his speech advocating legislative approval for
military commissions, Bush asserts:

Free nations have faced new enemies and adjusted to new threats before “ and we
have prevailed. Like the struggles of the last century, today™s war on terror is, above
all, a struggle for freedom and liberty. The adversaries are different, but the stakes
in this war are the same: We™re ¬ghting for our way of life, and our ability to live in
freedom. We™re ¬ghting for the cause of humanity, against those who seek to impose
the darkness of tyranny and terror upon the entire world. And we™re ¬ghting for a
peaceful future for our children and our grandchildren.74

The melding of the inscriptions is also apparent in congressional testimony
from Bush administration Solicitor General and September 11th widower
Theodore Olson:

No issue, I believe, deserves more thoughtful consideration from our elected rep-
resentatives than ensuring that the American people are defended from a savage
terrorist enemy that deliberately targets civilian lives and mutilates our soldiers in an
effort to destroy our way of life.75

73 See Nico Krisch, supra note 7, at 369, 387.
74 See The White House, supra note 25.
75 Testimony of Theodore Olson, Former Solicitor General of the United States, Standards

of Military Commissions and Tribunals, before the House Armed Services Committee
(Jul. 12, 2006).

Further inquiry into the three interconnected components of the categories
employed “ the dehumanization of detainees, their positioning outside of the
purview of legal norms, and the assignment of imputed guilt to those asso-
ciated with terrorism and in more diffuse ways to the civilian populations
and societies of the Middle East who cultivate them “ proves illuminating.

Constructing the Enemy as Beyond Human Rights
Representations and categorizations of the enemy as violent and averse to
human rights were deployed to dehumanize “War on Terror” detainees to
the extent that arbitrary denials of international human rights guarantees
would seem natural and justi¬able. Early on, the Bush administration inces-
santly reinforced associations of the Taliban with their human rights and
women™s rights violations.
Ruling cabals like the Taliban show their version of religious piety in public whip-
pings of women, ruthless suppression of any difference or dissent, and support for
terrorists who arm and train to murder the innocent.76

Not only did the focus on the Taliban™s human rights violations contribute to
legitimating the American intervention in Afghanistan, it served to demonize
and dehumanize Taliban ¬ghters and sympathizers to the extent that depriv-
ing them of basic due process rights or internationally sanctioned guarantees
against torture and inhuman treatment took on a less objectionable air.
Characterizations of al Qaeda and Iraqi insurgents™ violence and terrorism
serve the same function. In the House Armed Services Committee hearings
on military commissions, after prefacing her statement with the information
she is one of the few members of the House without a college degree but she
considers herself a re¬‚ection of “middle America,” Representative Candice
Miller transforms “War on Terror” detainees to the uncivilized and by impli-
cation, subhuman while taking exception to any characterization of Ameri-
can actions as falling outside those normally adhered to by civilized nations:
And I will tell you, listening to the Supreme Court ruling, it just struck me as being
incredibly counterintuitive. And when we think about the type of enemy that we™re
facing today, a new type of enemy, one that hides in the shadows, one that preys
on the innocent, one that wants to kill us, and they™ve been categorized as how we
need to be civilized, these people do not meet the basic standards of civilized human
beings. I think it™s very dif¬cult for us as Americans to even get our mind around the
concept of a suicide bomber, teaching a young person to be a suicide bomber and
what that means. I mean, I don™t consider that to be civilized behavior.77

The sentiment is echoed by Theodore Olson in the same proceedings:
The point that I think is important is that when you are ¬ghting an enemy like this
one, that de¬es all civilized rules, that intends to be as savage as possible to the most
76 See The White House, supra note 16.
77 Testimony of Candice Miller, Republican Representative, Standards of Military Commis-
sions and Tribunals, before the House Armed Services Committee (Jul. 12, 2006).

vulnerable people in the world, and that has no scruples or principles, and that will
go back every time to the battle¬eld “ but not to the battle¬eld, but to a synagogue
or a school bus “ we have to have some ¬‚exibility built into the system so that the
president, as commander in chief, and military of¬cials down the line have some

Because it was no longer acceptable to of¬cially denigrate particular races,
religions, or cultures as inferior or savage to justify denials of rights, Ameri-
can of¬cials justi¬ed discrimination in its application of human rights based
on individuals™ adherence to interpretations or ideologies viewed as in¬ltrat-
ing the Middle East and its broader religion and culture. In other words, the
savages and uncivilized undeserving of rights were those who perpetrated
violence and rejected notions of rights and freedom. The focus was not on
a culture but an “inhuman” subculture.
Another example of American of¬cials™ dehumanization of terrorist sus-
pects in its custody emerged in American military of¬cial™s characterization
of the three suicides, forty-one failed suicide attempts, and dozens of hunger
strikes by Guantanamo detainees as orchestrated attacks against the United
States. Rear Admiral Harry B. Harris, Jr., who commanded Guantanamo
Bay when two Saudi and one Yemeni national committed suicide in June
2006, stated the suicides were “not an act of desperation, but an act of
asymmetric warfare against us,” and General Bantz J. Craddock called the
detainees “a determined, intelligent, committed element” who “continue to
do everything they can . . . to become martyrs.”79 Again, it is an irrational
ideology and not their condition of inde¬nite incarceration without judicial
recourse that prompts the suicides.
Finally, the post“September 11th violence perpetrated by terrorist forces
is constructed as unprecedented and exceptional, having no connection to
other violent social movement or forms of violence that have materialized in
various moments and locales throughout the globe. There is no recognition
of any social and psychological dynamics similar or related to those at play
in violence undertaken, for example, by the Ku Klux Klan or Black Panthers
in the United States. There is also a sharp distinction made between the
terrorists and insurgents™ violence and its impact on civilians and American
violence. Cyra Choudhury describes the duality in place:

U.S. as ontologically civilized, humane, reasonable, and innocent in opposition to
Iraqis who resist the U.S. as terrorists and insurgents “ which should be read to mean
barbaric, irrational, uncivilized, and a priori culpable “ is used to justify the violence
that is done to them. This power of construction allows us to de¬‚ect attention away
from ourselves and towards the Other. Moreover, because we can construct victims

78 See Theodore Olson, supra note 75.
79 Josh White, Three Detainees Commit Suicide at Guantanamo, Washington Post,
Jun. 11, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/10/

as well, it gives us the ability to exclude from that status the vast majority of Iraqis
who suffer violence.80

Clearly, my argument is not that the Taliban did not commit egregious
human rights violations or that the violence perpetrated by al Qaeda and
other terrorist movements is not imbued with a slew of alarming implica-
tions. Rather, it is imperative to shed light on the ease with which shaming
and condemnation of violations of these norms by the United States is trans-
formed into a tool to exempt particular individuals or groups from what are
designated as universal human rights protections. In other words, particu-
larly when working from within the framework of the East/West geography
of human rights, the move from “they must be condemned for their human
rights violations and violence” to “they are barely human, they cannot
legitimately lay claim to human rights” turns out to be one that is easily

Positioning the “Lawless” beyond the Law
Similar dynamics are present in American post“September 11th legal for-
mulations. To deprive them of the human rights protections provided by
international human rights and humanitarian law, the Bush administration
categorized Afghanistan under the Taliban as a “failed state” to whom the
Geneva Conventions did not apply and the Taliban as a “militia.” Al Qaeda
was designated a “non-state actor” and therefore ineligible to be a signatory
to the Geneva Conventions. As discussed above, according to Bush admin-
istration lawyers, the Third Geneva Conventions did not apply to Guan-
tanamo detainees because they were “unlawful combatants.” As the era pro-
gresses, the “unlawful” in “unlawful combatant” takes on a life of its own in
the American political discourses. For example, in congressional testimony,
Daniel Dell™Orto, a Department of Defense lawyer puts forth the following:

What we have here are people who don™t wear uniforms, they don™t carry arms
openly, they don™t distinguish themselves from the civilian population in any way,
they don™t follow the laws of war; they are without any discipline in the way they
conduct their combat. They deliberately attack civilians. They behead people, they
mutilate people. And so they are, in theory, at all levels, unlawful combatants.81

In this manner, “Unlawful combatant” is transformed from a questionably
applied legal category to a rhetorical encapsulation of the enemy.
80 Cyra A. Choudhury, Comprehending “Our” Violence: Re¬‚ections on the Liberal Univer-
salist Tradition, National Identity and the War on Iraq, Muslim World Journal of Human
Rights, 3.1 Berkeley Elec. Press 2-1 (2006), http://www.bepress.com/mwjhr/vol3/iss1/
81 Testimony of Daniel Dell™Orto, Principle Deputy General Counsel, Department of Defense,

Standards of Military Commissions and Tribunals, before the House Armed Services Com-
mittee (July 12, 2006).

Further, part of the American mission is to counter the enemy™s lawless-
ness. The American president vows, “This nation, in world war and in Cold
War has never permitted the brutal and the lawless to set history™s course.
Now as before, we will secure our nation, protect our freedom and help
others ¬nd freedom of their own.”82 A White House report “assessing” the
progress of the ¬rst 100 days of the Iraqi invasion includes the following in
its list of “10 Ways the Liberation of Iraq Supports the War on Terror”:

Saddam Hussein would not uphold his international commitments, and now that
he is no longer in power, the world is safe from this tyrant. The old Iraqi regime
de¬ed the international community and seventeen UN resolutions for twelve years
and gave every indication that it would never disarm and never comply with the just
demands of the world.83

Paradoxically, a primary means of countering the enemy™s lawlessness is
to deprive them of the law, and this is rationalized using a notion of reci-
procity, in stark contrast to both the letter and the spirit of international
human rights law and its universalist philosophical underpinnings. This
stance is most pronounced in discussions of affording Geneva Conventions
protections to Guantanamo detainees. Acting Assistant Attorney General
Stephen Bradbury argues in front of the House Armed Services Committee:

Of course, the terrorists who ¬ght for al Qaeda have nothing but contempt for the
laws of war. They™ve killed thousands of innocent civilians in the United States and
thousands more in numerous countries around the world. They openly mock the rule
of law, the Geneva Conventions, and the standards of civilized people everywhere,
and they will attack us again if given the chance. When the Geneva Conventions
were concluded in 1949, the drafters of the Conventions certainly did not anticipate
armed con¬‚icts with international terrorist organizations such as al Qaeda.84

In the ¬nal analysis, it is their disregard for human rights and the rule of
law that places them squarely outside of both. They do not deserve the basic
protections of the law because they do not respect, follow, or comprehend

Detainees™ Ascribed Guilt versus American Innocence
The ¬nal element that facilitated the placement of “War on Terror” detainees
into a category standing outside human rights protections was a process of
ascribing guilt to them. As of November 2005, 83,000 foreign nationals had

82 The White House, Result in Iraq: 100 Days Towards Security and Freedom, Aug. 8, 2003,
83 Id.
84 Testimony of Steven Bradbury, Acting Assistant Attorney General, Of¬ce of Legal Council,

Department of Justice, Standards of Military Commissions and Tribunals, before the House
Armed Services Committee (July 12, 2006).

been detained by the United States.85 Numerous reports and investigations
have found that large percentages of those detained were either innocent
or guilty of signi¬cantly less serious crimes than portrayed by the Bush
administration. A February 2004 report by the International Committee of
the Red Cross (ICRC) stated that “Certain CF (Coalition Forces) military
intelligence of¬cers told the ICRC that in their estimate between 70 and
90 percent of the persons deprived of their liberty in Iraq had been arrested
by mistake.”86 Similarly, a 2006 report put out by Seton Hall Law School
provided the following statistics regarding Guantanamo detainees:

1. Fifty-¬ve percent (55%) of the detainees are not determined to have committed
any hostile acts against the United States or its coalition allies.
2. Only 8% of the detainees were characterized as al Qaeda ¬ghters. Of the remaining
detainees, 40% have no de¬nitive connection with al Qaeda at all and 18% have no
de¬nitive af¬liation with either al Qaeda or the Taliban.
3. The government has detained numerous persons based on mere af¬liations with a
large number of groups that, in fact, are not on the Department of Homeland Security
terrorist watchlist. Moreover, the nexus between such a detainee and such organi-
zations varies considerably. Eight percent are detained because they are deemed
“¬ghters for,” 30% are considered “members of,” and a large majority (60%) are
detained merely because they are “associated with” a group or groups the U.S. gov-
ernment asserts are terrorist organizations. For 2% of the prisoners their nexus to
any terrorist group is unidenti¬ed.
4. Only 5% of the detainees were captured by United States forces and 86% of the
detainees were arrested by either Pakistan or the Northern Alliance and turned over
to United States custody.87

The ¬nal point is crucial. As Human Rights Watch Advocacy Director Tom
Malinowsky explains in testimony before the U.S. Helsinki Commission,
while the United States derived a right to inde¬nitely detain individuals
at Guantanamo without due process from the laws of war, most Guan-
tanamo detainees “were not captured on anything resembling a traditional
battle¬eld, in a traditional war, in which it is easy to determine who is a
combatant and who is not.”88 As he goes on to explain, most were among
85 The Associated Press, U.S. Has Detained 83,000 in Anti-terror Effort, Nov. 16, 2005,
86 Report of the International Committee of the Red Cross (ICRC) on the Treatment by

the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva
Conventions in Iraq During Arrest, Internment and Interrogation, reprinted in supra
note 26, at 388.
87 Seton Hall Law, Mark Dembeaux and Joshua Denbeaux, Report on Guantanomo

Detainees: A Pro¬le of 517 Detainees through Analysis of Department of Defense Data,
Feb. 2006, http://law.shu.edu/news/guantanamo_report_¬nal_2_08_06.pdf.
88 Testimony by Tom Malinowsky, Washington Advocacy Director, Human Rights Watch,

Guantanamo: Implications for US Human Rights Leadership before the U.S. Helsinki Com-
mission (June 21, 2006).

the thousands of foreign nationals ¬‚eeing Afghanistan following the Ameri-
can attack. Instead of being captured by American soldiers, they were often
sold for bounties by Pakistan or Afghan militias, whereas others were picked
up in places as far away as Bosnia, Thailand, and Gambia:
The United States government has not even claimed most of these men were even
¬ghting the United States; many are accused of little more than living in a house or
working for a charity linked to the Taliban. They are part of a broad, amorphous
universe of people who are suspected to have had some association with international
What the Bush Administration has done in Guantanamo has been to blur that
distinction [between combatants and civilians] “ to apply the highly permissive rules
governing a military battle¬eld to anyone anywhere in the world who is suspected
of having any association with terrorism.89

As Choudhury similarly contends, “it is unclear why precisely the prisoners
are incarcerated other than the of¬cial designation of criminality based on
an assumption that they were involved in some way with nefarious activities
that constitute ˜terrorism.™”90
Despite this predicament, detainees were assigned the “terrorist” or
“enemy” label without any semblance of what is generally considered a pin-
nacle of Western and international due process rights “ the presumption of
innocence until proven guilty. Yet, to many within the Bush administration
and among intelligence of¬cers on the ground, once an enemy was identi¬ed,
guilt was easily ascribed and often assumed. President Bush, his administra-
tion, and U.S. allies repeatedly imputed guilt to the detainees being held
at Guantanamo. The notion that those detained by the United States were
guilty was repeatedly invoked in speeches by Bush and his administration.
One such instance was in his speech promoting military commissions and
con¬rming the existence of CIA black sites:
It™s important for Americans and others across the world to understand the kind of
people held at Guantanamo. These aren™t common criminals, or bystanders acciden-
tally swept up on the battle¬eld “ we have in place a rigorous process to ensure those
held at Guantanamo Bay belong at Guantanamo. Those held at Guantanamo include
suspected bomb makers, terrorist trainers, recruiters and facilitators, and potential
suicide bombers. They are in our custody so they cannot murder our people. One
detainee held at Guantanamo told a questioner questioning him “ he said this: “I™ll
never forget your face. I will kill you, your brothers, your mother, and sisters.”91

Assumptions of guilt resulted in not only prolonged detentions but
also abuse and torture. In his sworn statement, taken in conjunction with
89 Id.
90 See Cyra A. Choudhury, supra note 80.
91 See The White House, supra note 25.

Abu Ghraib investigations, an American soldier who witnessed the abuse
recounts, “Every time I said something about how I was worried about the
treatment of the detainees, they would . . . say they are the enemy and if I was
out there they would kill me, so they don™t care.”92 In similar fashion, numer-
ous innocent individuals have provided compelling accounts of enduring
months of gruesome torture after being illegally detained and transferred by
American of¬cials to Middle Eastern countries for “interrogations” through
the United States practice of “extraordinary renditions.” Their ordeals have
frequently stemmed from mistaken identity or inaccurate perceptions of
the victim™s links to terrorists, among the most publicized cases being
those of Canadian citizen Maher Arar and German citizen Khalid el-Masri.
The military commissions the Bush administration instituted and that
Congress eventually authorized in 2006 were characterized by human rights
advocates as legal proceedings designed to produce a judgment of guilt. In
the House of Representatives hearings on the commissions, Rear Admiral
John Hutson, a retired Navy Judge Advocate General, correctly describes the
proposed commissions as attempts to “reverse engineer” justice by “assum-
ing that everybody is guilty, and then create a commission that is geared
to proving that point.”93 He goes on to artfully draw out the surreal due
process scenario presented by the commission™s rules and procedures.

Let me just say that I think it would be very, very dif¬cult for the United States of
America to say to anybody, “We know you™re guilty. We can™t tell you why, but
there™s somebody that says you™re guilty. We can™t tell you who, but we know they™re
reliable. We can™t tell you how we know that, but you™re guilty.”94

In response to questions and statements constantly equating the detainees to
terrorists, savages, and perpetrators of beheadings in a congressional hearing
held to consider legislation to determine detainees™ rights in prosecutions,
the Rear Admiral is forced to constantly remind hearing conveners of the
“innocent until proven guilty” principle purportedly enshrined in American
and international rights guarantees:

But if we decide that we™re going to prosecute them, then we have to afford them
those rights, which include not presuming that they™re cutting everybody™s head off,
and they™re suicide bombers, but that we just buy into this presumption of innocence
deal. And if we can do that, then we can create a system in which we will really be
able to prosecute.95

92 Sworn statement of Samuel Jefferson Provance, reprinted in supra note 26, at 482.
93 Testimony of Rear Admiral John Hutson, United States Navy, Retired, Former Judge Advo-

cate General, U.S. Navy, Hearing of the House Armed Services Committee on Standards of
Military Commissions and Tribunals (Jul. 12, 2006).
94 See Theodore Olson, supra note 75.
95 Id.

If Arab and Muslim detainees are afforded a presumption of guilt that places
them beyond the protections of human rights law, American soldiers and
operatives are afforded an automatic determination of innocence that posi-
tions them beyond the sanctions of human rights law. The American presi-
dent makes the following case for absolving American citizens, namely, CIA
agents involved in the “alternative interrogation techniques” from liability
in committing torture or war crimes:

In its ruling on military commissions, the Court determined that a provision of the
Geneva Conventions known as “Common Article Three” applies to our war with al
Qaeda. This article includes provisions that prohibit “outrages upon personal dig-
nity” and “humiliating and degrading treatment.” . . . And some believe our military
and intelligence personnel involved in capturing and questioning terrorists could now
be at risk of prosecution under the War Crimes Act “ simply for doing their jobs in a
thorough and professional way. This is unacceptable. Our military and intelligence
personnel go face to face with the world™s most dangerous men every day. They have
risked their lives to capture some of the most brutal terrorists on Earth. . . . America
owes our brave men and women some things in return. We owe them their thanks
for saving lives and keeping America safe. And we owe them clear rules, so they can
continue to do their jobs and protect our people. . . . I™m asking that Congress make
it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue
our personnel in courts “ in U.S. courts. The men and women who protect us should
not have to fear lawsuits ¬led by terrorists because they™re doing their jobs.96

In this formulation, CIA agents™ practice of inducing hypothermia or water-
boarding “ the practice of strapping a prisoner face up onto a table and
pouring water into his nose to create the sensation of drowning “ is a man-
ifestation of their professionalism and thoroughness in furtherance of the
dangerous mission taken on by the United States. They are unmistakably
“the good guys.” Prohibitions stemming from human rights law are con-
versely out of touch with the requisite exigencies of the undertaking as well
as the inherent location of guilt and innocence on which the mission is

Expanding the Enemy
Less than a month after September 11th, there were signs of the expanded
view of “the enemy” being conceived and promoted by the Bush administra-
tion. In a speech announcing a list of the twenty-two most wanted terrorists
at FBI headquarters on October 10, 2001, Bush held:

I say “the ¬rst 22” because our war is not just against 22 individuals. Our war is
against networks and groups, people who coddle them, people who try to hide them,
people who fund them. This is our calling. This is the calling of the United States of

96 See The White House, supra note 25.

America, the most free nation in the world. A nation built on fundamental values
that rejects hate, rejects violence, rejects murderers, rejects evil. And we will not tire.
We will not relent.97

Such verbiage, coupled with later references to “a terrorist underworld “
including groups like Hamas, Hezbollah, Islamic Jihad, Jaish-i-Mohammed”
operating “in remote jungles and deserts” and hiding “in the centers of
large cities,” revealed the unde¬ned and porous boundaries being used in
de¬ning the American enemy. First, the emphasis on terrorists hiding in or
in¬ltrating civilian populations renders every Arab or Muslim on the street
suspect if not of being a terrorist, of providing them moral or material
support, particularly in instances where resistance or resentment toward
American power is displayed. In this way, Middle Eastern faces come to
signify terrorist sympathizers and potential terrorists and the lines among
terrorists, Islamists, Muslims, and Middle Eastern civilians are easily blurred.
A sentiment implying that even those who have not committed any crime are
somehow not entirely innocent (or deserving of the protection ordinarily to
be afforded to the innocent) clearly emerges in American political discourse.
For example, Theodore Olson tells members of the House Armed Services
Committee in the hearings on military commissions the following:

I don™t want a soldier, when he kicks down a door in a hut in Afghanistan searching
for Osama bin Laden to have to worry about whether when he does so, and questions
the individuals he ¬nds inside, who may or may not be bin Laden™s bodyguards, or
even that individual himself, to worry about whether he™s got to advise him of some
rights before he takes a statement.98


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