. 3
( 9)


Although the statement is a reference to reports of concerns over prosecution
preventing bin Laden™s capture by CIA agents during the Clinton presidency,
the way the argument is framed, by highlighting a scenario in which cap-
turing the guilty is sacri¬ced through the upholding of rights while omitting
the possibility of rights offering protection to potential civilians, is telling.
Those found “in a hut” are likely guilty through action or association. Even
if they are innocent, they can be sacri¬ced in furtherance of the larger aims
of the American mission.
In the documentary The Ghosts of Abu Ghraib, one of the soldiers
assigned to the prison states that when he ¬rst arrived in Iraq, he asked
a superior, “What are the rules of engagement?” According to his account,
the response he receives from a superior was as follows: “If it looks like the
enemy, shoot it.” Making another attempt to obtain clear instructions, he
responds, “I™ve never been out of the United States. Everything looks like

97 The White House, President Unveils “Most Wanted” Terrorists, Oct. 10, 2001. http://
98 See Theodore Olson, supra note 75.

the enemy to me.” Again he was told, “If it looks like the enemy, shoot
it.”99 In this manner, attributions of guilt are inevitably expanded because,
even if they are not terrorists, Arab and Muslim populations share the
terrorists™ physical attributes, adhere to the same religious beliefs and rituals,
and emerge from the same culture marked by violence and antimodernisms
(such as nonadherence to women™s rights and conservative views of sexual-
ity). Just as labels of enemy, terrorist, and human rights violator allow for
the swooping up of many innocents in one wide net in the detention context,
broader labels of culturally backward, violent, and irrational are imputed
to bystanders and civilians in the Middle East.
In the same manner, the violence that has swept Iraq is seen as emerging
in a vacuum “ the result of the inexplicable or inherent irrationality and
cultural traits of Iraqis. Missing is the backdrop and context of converging
trauma described by an Arab human rights activist I interviewed in Amman.
As she noted, Iraq has suffered from a combination of conditions; coping
with any one of these conditions is traumatic for a country. Iraqi society
has been shaken by three wars since the late 1970s, a devastating economic
embargo affecting wide segments of its population, military occupation, and
coming out of an oppressive regime with all of its legacies (disappearances,
mass grave, torture, and so on). Because consideration of this context is
largely absent from American soldiers™ and politicians™ understanding of
Iraqi society and the violence that has engulfed it, ontological distinctions
of civilized versus uncivilized, rational versus irrational, and good versus
evil take hold. As Cyra Choudhury has observed, “From this ontological
position, our [American] violence, which cannot be a violation of human
rights, is a therapeutic corrective applied to a people who must be ˜rescued™
from their ˜backwardness.™”100 This outlook renders the tremendous suffer-
ing of Middle Eastern civilian populations caught up in American military
interventions and counterterrorism operations susceptible to being written
off as collateral damage; not only are their rights dispensable relative to
those of Americans, their lives are virtually dispensable as they are plugged
into calculations.


As it was repeatedly articulated in justi¬cations for its interventions in the
Middle East, the United States embraces a universalist conception of human
dignity and human rights. The American president was adamant that the

99 Interview with Sergeant Ken Davis in the documentary ¬lm The Ghosts of Abu Ghraib
100 See Cyra A. Choudhury, supra note 80.

liberal principles of democracy and human rights are as applicable to Middle
Easterners and Muslims as they are to Western populations. He makes the
point most explicitly in his 2003 speech at the National Endowment for

And the questions arise: Are the peoples of the Middle East somehow beyond the
reach of liberty? Are millions of men and women and children condemned by history
or culture to live in despotism? Are they alone never to know freedom, and never
even to have a choice in the matter? I, for one, do not believe it. I believe every person
has the ability and the right to be free. Some skeptics of democracy assert that the
traditions of Islam are inhospitable to the representative government. This “cultural
condescension,” as Ronald Reagan termed it, has a long history.
More than half of all the Muslims in the world live in freedom under democratically
constituted governments. They succeed in democratic societies, not in spite of their
faith, but because of it. A religion that demands individual moral accountability and
encourages the encounter of the individual with God is fully compatible with the
rights and responsibilities of self-government.101

Yet, despite the asserted endorsement of universalism, in practice the Ameri-
can treatment of human rights in the post“September 11th era was unequiv-
ocally contingent in many key respects.
Without any apology, individuals and groups thought to be rogue ele-
ments marked by their violence, “ideology of hate,” disregard for human
rights, and civilian casualties were denied human rights protections. In
this way, post“September 11th policies were derived from constructions
of human rights as either reciprocal (i.e., owed only when the rights-barer
himself had adhered to human rights norms) or treatment to be bestowed,
earned, or deserved “ not derived from something inherent in the human
condition. Once an alleged terrorist stopped talking, “alternative or harsher
interrogation techniques” could be applied. As former CIA Head of Coun-
terterrorism Cofer Black stated in a congressional Intelligence Committee
meeting, at some point, “the gloves come off.” Human rights are universal
but also come with prerequisites.
From this point of departure, the Bush administration proceeds to con-
struct a body of law divorced from the spirit and universalist moral foun-
dations of the human rights regime. Human rights treatment is based in
legal doctrine and effects on discrimination against noncitizens and between
noncitizens through differential treatment and rights guarantees closely
linked to nationality, race, or religion.102 Detainees are widely deprived
of the rights protections provided in international instruments, yet they
101 See The White House, supra note 16.
102 See Anthea Roberts, supra note 53, at 721.

remain subject to prosecution for violations of international norms. Amer-
icans agents, however, are exempt from the international regime™s sanc-
tions but continue to have legitimate claim over rights protections derived
from it.
Further, although the rationale for American exceptionalism post“
September 11th was largely couched in material terms through the language
of security and assertions of American material power, the lines between
material and ideational arguments are also increasingly blurred. In other
words, security is progressively seen more in moral, cultural, ideological,
and sometimes religious terms.103 For example, on countless occasions the
so-called War on Terrorism has been associated with the cause of combating
the terrorists™ values such that they may never be imposed on Americans and
the rest of the world.104 As Jack Donnelly explains,

Washington™s tolerance for systemic human rights violations, and even state ter-
rorism, when responding to terrorism, has been facilitated by the tendency to see
anti-terrorism less as a material interest of U.S. foreign policy than as a crusade
against evil. In a struggle against evil in contrast to the pursuit of material interests,
victory is all that matters. As the struggle progresses, the end comes to be seen as
justifying a growing range of morally and legally problematic means.105

As much of the chapter has sought to portray, these American human rights
contingencies are in many respects borne out of constructions of American
action as presumptively rights adherent and Muslim and Arabs action as
presumptively averse to rights and civilization. The East/West geography
of human rights provided the United States with a pretext for a slew of
military, economic, and political forays into the Middle East, and the for-
mulation provided the global power with substantial universalist cover for
what in reality was its own contingent adherence to human rights. Again,
this dynamic is not absolute. Much of the rest of the book considers the rejec-
tion of the American formulations that emerged in the post“September 11th
period. However, when considered in relative terms, the American ability to
construct its identity, intentions, and actions as universalist and pro“human
rights was a real phenomenon, borne out of not only its material power but

103 Jack Donnelly speaks of the antagonism between human rights and national security when
security is seen in moral as opposed to material terms. Jack Donnelley, International Human
Rights: Unintended Consequences of the War on Terrorism, in supra note 8, at 105.
104 The White House, Radio Address by Mrs. Bush, Nov. 17, 2001, http://www.whitehouse

105 See Jack Donnelley, in supra note 8, at 103. It is also noteworthy that American human

rights interventions in the post“September 11th era take place within an American domestic
backdrop in which notions of religious and cultural considerations are at the core of the
Bush administration™s policies and large segments of the American populations™ arguments
for curtailing homosexual™s and women™s reproductive rights.

also its power to construct the contours and terms of global human rights
discourses and assumptions.
Finally, in arguing that these post“September 11th developments were in
many respects built on America™s pre“September 11th human rights dispo-
sitions, rather than standing in stark contrast to them, the chapter suggests
that the post“September 11th events being considered should not be viewed
as an event with a de¬ned temporal beginning and end. Instead, the Septem-
ber 11th era should be viewed as an opportunity to more closely examine
the potential impact and consequences of global power asymmetries in inter-
national human rights dynamics.

The Human Rights Challenge from Within

Much has been written about the American “road to Abu Ghraib.” This
chapter focuses on the road after Abu Ghraib. It sketches a composite of
an unprecedented American human rights campaign that slowly took shape
after the gripping images of torture and abuse at the notorious Iraqi prison
¬rst came to light. It begins by focusing on two early manifestations of the
campaign, the ¬rst being an impressive effort to challenge the con¬rmation of
Alberto Gonzales as Attorney General of the United States and the second
a mobilization around the passage of the so-called McCain Anti-Torture
Amendment to the 2006 Department of Defense Appropriation Act.1
Ultimately, Alberto Gonzales won con¬rmation and the human rights
achievements of the McCain amendment were stripped almost immediately
following its passage “ ¬rst by a tentative U.S. Congress through its coupling
of the amendment with a provision that limited habeas corpus appeals for
Guantanamo detainees, then by a president intent on preserving the torture
option through a signing statement, and later by the two branches in con-
cert through provisions of the Military Commissions Act (MCA). Despite the
seemingly bleak outcome, the initiatives reshaped American human rights
dynamics and laid an important foundation for human rights contests to
come. For this reason, beyond presenting the actors and strategies involved,
this chapter is largely devoted to evaluating the two early initiatives intro-
duced and exploring the subsequent evolution of the United States™ domestic
human rights landscape.


The Cumberland Times-News, the local newspaper of the nearest Maryland
town housing the reserve military unit implicated in the Abu Ghraib abuses,

1 McCain Amdt. S.AMDT. No. 1977 amends H. R. Rep. No. 2863 (2005).


wrote in an editorial published days after the photos of abuse at the notorious
Iraqi prison came to light: “Visiting journalists search in vain for some dark
local element that gave birth to the monstrous actions in Abu Ghraib. We are
America, for better and worse.”2 Similarly, Susan Collins, a Maine Senator
stated at one of several congressional hearings on Abu Ghraib:

Worst of all, our nation, a nation that, to a degree unprecedented in human history,
has sacri¬ced its blood and treasure to secure liberty and human rights around the
world now must try to convince the world that the horri¬c images on their TV
screens and front pages are not the real America, that what they see is not who we

As each of these statements betray, Abu Ghraib forced Americans to rec-
oncile the considerable gulf between their self-image as deploying benign
power in the service of rights and freedom and incontrovertible evidence
of American power instead engendering its opposite, amid an unmistakable
backdrop of racism and cultural hierarchy.
Abu Ghraib also (temporarily) froze the mounting prescriptions for tor-
ture as “necessary evil” by pushing the issue out of the realm of the abstract,
theoretical, and hypothetical into the realm of the stark, explicit, and real.4
The images were so profoundly unsettling that they did not permit obser-
vation from a safe, aloof distance. It was reported that when members of
the U.S. Senate received a private showing of all 1,800 images depicting
sexual abuse and torture, the pictures caused gasps.5 Inevitably, the photos
drew in the viewer and forced a conclusion that the victims in the pictures
possessed a humanity that had been violated. As one human rights advo-
cate put it, “no one could look at the pictures and say, ˜Well those are
bad guys. It™s not pretty but that was necessary.™ Nobody said that. They
couldn™t say it when confronted with the pictures, whereas [members of
the administration] are saying it about the exact same conduct that™s not
depicted in pictures.”6 When summoned to testify before the Senate Armed
Services Committee, even Donald Rumsfeld, the characteristically stoic U.S.
2 Cumberland News-Times (May 9, 2004) and transcript of May 11, 2004, News-
hour available at http://www.pbs.org/newshour/bb/middle_east/jan-june04/prisoners_5-11
3 Comment by Senator Susan M. Collins, Senate Armed Services Committee hearing on Abu

Ghraib prison (May 7, 2004).
4 The point that Abu Ghraib moved the torture question from the abstract to the concrete

was made by Tom Malinowsky. Interview with Tom Malinowsky, Washington Advocacy
Director for Human Rights Watch, in Washington, DC (Mar. 16, 2006).
5 Kathy Kiely and William M. Welch, Abu Ghraib Photos Cause Gasp in Congress, USA

Today, May 12, 2004, available at http://www.usatoday.com/news/world/iraq/2004-05-
6 Interview with American human rights NGO representative, in Washington, DC (Feb. 24,


Secretary of State who, in his review of abusive interrogation techniques,
had previously objected to a four-hour limit on forced standing of prison-
ers, stated “I feel terrible about what happened to these Iraqi detainees. They
are human beings.”7 (The American comedian Jon Stewart later showed a
clip of the U.S. Secretary of Defense™s pronouncement, satirically deeming it
the announcement of a major Bush administration policy shift.)
Following Abu Ghraib, it was equally evident to most outside the Bush
administration that the policy that had laid the foundation for the degrada-
tion being witnessed was, at its core, deeply ¬‚awed. Accordingly, for many
Abu Ghraib spurred an important realization “ that it was increasingly
impossible for Americans to credibly profess an authoritative commitment
to human rights based solely on their adherence to the domestic constitu-
tional/civil rights order reserved exclusively for Americans while shunning
the international regime. In line with constructivist accounts, to varying
degrees, the crisis prompted a rejection of previous norms that cast interna-
tional law as outdated, weak, and ineffective and created a demand for a
new set of norms encompassing a more expansive and universal conception
of human rights and the international legal order built around it.8 One of
countless editorial and op-ed pieces calling for American compliance with
international law in the months following the Abu Ghraib revelations read,
“Senators have an opportunity to begin laying the foundation for a new
policy, one that reaf¬rms America™s commitment to international agree-
ments that remain relevant in a dangerous world.”9 Throughout the politi-
cal spectrum, one witnessed widespread condemnation of the violations and
rhetorical acceptance of the substance and legitimacy of international norms
violated, which stood in stark contrast to its previous characterizations as
irrelevant and quaint.
Abu Ghraib also mobilized American human rights proponents and sym-
pathizers, moving key legislators, journalists, and even human rights organi-
zations to take up detainee rights issues to an extent that was unprecedented
before Abu Ghraib. Avi Cover of Human Rights First expanded on this

What Abu Ghraib revealed or con¬rmed was if this was going on, then there™s other
stuff out there. So what do you know? What can you share with us? What do you
know about Abu Ghraib? How did Abu Ghraib happen? How do we stop another
Abu Ghraib from happening? Abu Ghraib changed things for everyone. It may have

7 Testimony of Secretary of State Donald H. Rumsfeld before the Senate Armed Services
Committee (May 7, 2004), available at http://armed-services.senate.gov/statemnt/2004/
8 Martha Finnemore and Kathryn Sikkink, Taking Stock: The Constructivist Research Pro-

gram in International Relations and Comparative Politics, 4 Am. Rev. Pol. Sci. 391, 407
9 Steve Andreason, Beyond the Roots of Abu Ghraib, Washington Post, Sept. 7, 2004.

been one of Susan Sontag™s last pieces, but people have written about the power of
that visual image being so arresting and being such a catalyzing factor. I think it™s
true on all fronts, the media, even NGOs. On some level, NGOs were uncovering
only so much of that and it was a wakeup call for NGOs too, certainly for Congress,
and even for the Defense department, even though they have a lot more ¬xing
to do.10

Beyond a new sense of the magnitude and urgency of the human rights sce-
nario they confronted, the gripping images also provided important openings
and discursive spaces from which they could articulate arguments for Amer-
ican compliance with international human rights norms “ an opening that
did not previously exist. Virtually every policy discussion, public forum, or
media piece discussing American detainee policy since May 2004 carried
the Abu Ghraib imprint by making some reference to the infamous pictures,
with many using the episode as a primary point of departure. It was this
extensive exposure to the existence of American abuses that facilitated a
public debate in which new frames surrounding values, identity, and the
signi¬cance of international human rights norms could be evoked.


As detailed in chapter 1, beyond his own January 2002 memo advising
the American president to deny al Qaeda and Taliban detainees Geneva
Conventions status, Alberto Gonzales largely oversaw the process of redef-
inition and marginalization of international human rights law emerging
from the White House and Justice Department. When George Bush nomi-
nated him as Attorney General at the onset of his second term, American
human rights forces began mobilizing an unprecedented campaign against
his nomination based almost exclusively on his position on the applicabil-
ity of international human rights norms in the “War on Terror.” Through
this campaign, human rights forces made critical inroads toward successfully
challenging Bush administration attempts to circumvent international norms
and reignited the American debate on torture and detainee rights issues after
an extended period (including the 2004 presidential campaign season) in
which the topic had virtually disappeared from political discourse.
The McCain amendment was the ¬rst viable legislative initiative brought
forth to challenge Bush administration legal doctrines and policies relating
to abuse and torture of foreign nationals detained by the United States in
the post“September 11th era. The amendment comprised two key provi-
sions. The ¬rst limited interrogation techniques to those stipulated in the

10 Telephone interview with Avi Cover, Senior Associate at Human Rights First (Jan. 27,

Army Field Manual, which was assumed to stand largely in compliance with
key obligations of the Geneva Conventions. The second provision banned
cruel, unusual, and degrading treatment as de¬ned in American reserva-
tions, declarations, and understandings entered on rati¬cation of the United
Nations Convention Against Torture (CAT). The provision was essentially
the reinstitution of a preexisting international legal obligation under the
CAT through new domestic legislation. To counter Bush administration
contentions that its CAT obligations do not apply extraterritorially, the
provision stipulates that the ban on cruel, inhumane, and degrading treat-
ment is not geographically limited. The amendment states:

(a) IN GENERAL. “ No person in the custody or under the effective control of the
Department of Defense or under detention in a Department of Defense facility shall
be subject to any treatment or technique of interrogation not authorized by and listed
in the United States Army Field Manual on Intelligence Interrogation.
(c) CONSTRUCTION. “ Nothing in this section shall be construed to affect the
rights under the United States Constitution of any person in the custody or under
the physical jurisdiction of the United States.
(a) In General. “ No individual in the custody or under the physical control of the
United States Government, regardless of nationality or physical location, shall be
subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction. “ Nothing in this section shall be construed to impose any geo-
graphical limitation on the applicability of the prohibition against cruel, inhuman,
or degrading treatment or punishment under this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment De¬ned. “ In this section,
the term “cruel, inhuman, or degrading treatment or punishment” means the cruel,
unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and
Fourteenth Amendments to the Constitution of the United States, as de¬ned in the
United States Reservations, Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment done at New York, December 10, 1984.

Given the relative substance and signi¬cance of the McCain amendment at
the time, media and human rights forces quickly organized a subsequent
initiative to compel passage of the amendment. This second mobilization
turned out to be equally critical in shifting the discursive landscape even

further such that it became increasingly acceptable and common to invoke
international law and evaluate American policies and practices within the
parameters of a human rights framework.
In each instance, efforts by human rights NGOs, members of the elite
media, and select congressional leaders converged to form the core of a
domestic campaign to compel greater American observance of human rights
norms in torture and detainee treatment policies within the Bush administra-
tion™s declared “War on Terror.” Although the three forces™ linkages were
informal and ad hoc, they frequently interacted, collaborated, and adopted
overlapping strategies. Human rights activists and journalists often forged
personal and professional relationships. They might exchange information
and discuss administration policies while visiting Guantanamo or other sites
of alleged abuses.11 In other instances more active efforts at getting human
rights groups™ own editorials published or persuading editorial boards to
take up detainee rights issues took place.12 For example, in an editorial crit-
icizing the practice of rendition and highlighting the 2003 abduction and
rendition of Abu Omar in Milan by CIA operatives, the Houston Chronicle
cited a visit by the U.S. Chairman of Amnesty International one day prior
to the article™s publication.
Similarly, human rights groups and the of¬ces of members of Congress
taking the lead in challenging the Bush administration™s torture policies
also developed close ties. Congressional staffers frequently relied on human
rights organizations for information, particularly pertaining to speci¬c vio-
lations and interpretations of international law as well as for providing
“cover” by enlisting political heavyweights such as high-ranking military
of¬cials as allies.13 Two human rights groups in particular, Human Rights
First and Human Rights Watch, maintained very close contact with Senator
John McCain™s of¬ce while the McCain amendment was being considered,
deliberating on developments and providing extensive legal assistance. At
the height of the struggle over the measure, McCain™s staffers spoke with
associates from these groups every day, sometimes several times a day and
sometimes in the middle of the night.
Finally, congressional leaders braving the political mine¬eld of the cam-
paign depended on the media to keep the issue at the fore of public conscious-
ness and political discourse. One striking example of the ties between the
media and congressional leaders was seen in the November 21, 2005, issue
of Newsweek, which featured John McCain™s picture with the words “The
Truth about Torture by Sen. John McCain” on its cover. The magazine™s

11 Id.
12 The Italian Job: The CIA™s Capture and Transport of Terrorist Suspect Must End, Editorial,
Houston Chronicle, Jun. 28, 2005, 8.
13 During the Gonzales con¬rmation process, congressional staffers of allied congressmen
relied on human rights groups to assist them in formulating questions to be posed in the

decision to feature a several-page essay by an American politician advocating
a particular policy position was extraordinary.
Before detailing the course taken by the campaign, a brief introduction
to each actor™s point of entry and distinct role within the mobilization is
presented. The sketches are meant to lend context vital to understanding the
campaign™s composition, signi¬cance and limitations.

Human Rights NGOs
Throughout the world, domestic human rights NGOs are generally known
for their attempts to pursue social justice agendas by weaving together inter-
national and domestic norms and discourses. Placing American social justice
and advocacy groups in the “domestic human rights NGO” rubric can be
challenging. Prior to September 11th, most domestic “civil rights” advo-
cacy groups, largely as a result of their experience with the boundaries of
the domestic landscape in which they operated, iterated their rights claims
using the American constitutional rights framework almost exclusively. At
the same time, U.S.-based human rights groups focused predominately on
rights violations occurring abroad and traditionally lobbied the U.S. govern-
ment less in relation to American human rights violations than in relation to
human rights conditions in other countries within a foreign policy context.
In response to critiques posed by Asian and African human rights advocates
in the 1990s, these international nongovernmental organizations (INGOs)
increasingly lent scrutiny to American human rights practices, taking up
campaigns highlighting violations in U.S. prisons or the rise of racial pro¬l-
ing in America. Still, the scope of their efforts were generally limited because
of what was largely viewed as an international mandate and an underly-
ing sense that the most pressing human rights violations took place beyond
American borders. Thus, prior to September 11th, inwardly focused (civil
rights) NGOs were less inclined to engage with the international human
rights framework and human rights INGOs were less invested in engaging
with the American political landscape and domestic discourses in relation
to American practices than human rights NGOs in other parts of the world.
Despite this starting point, since September 13, 2001, when a coalition of
civil rights and human rights groups gathered in a meeting called “In Defense
of Freedom” to discuss their new terrain and the challenges it posed, the two
groups coalesced around a domestic rights agenda that increasingly incor-
porated the international human rights framework.14
A number of American civil rights groups joined U.S.-based INGOs in
either opposing or publicly raising questions about Alberto Gonzales™s nomi-
nation for Attorney General based primarily on his position on international

14 CarnegieCouncil on Ethics and International Affairs, U.S. Civil Liberties in September
11th™s Wake: A Roundtable Discussion with Jamie Fellner, Elisa Massimino, and Michael
Ratner (2002), http://www.cceia.org /viewMedia.php/prmTemplateID/8/prmID/807.

law and the rights of foreign detainees located abroad. Their decision is
notable because Gonzales™s nomination as the United States™ ¬rst Latino
Attorney General and his moderate record on traditional civil rights issues
relative to other Bush nominees to judicial positions, and relative to his pre-
decessor, otherwise rendered him an acceptable candidate at the time. These
groups, which included the Leadership Conference on Civil Rights (LCCR),
the Alliance for Justice, and the American Civil Liberties Union (ACLU),
put out numerous press releases, reports, and Internet alerts to mobilize
their grassroots membership and push Democratic Senators to challenge the
Gonzales nomination.15 On November 29, 2004, thirty civil society groups,
ranging from the National Council of Jewish Women to the National Coun-
cil of the Churches of Christ of the United States and the United Steel-
workers of America to the National Association for the Advancement of
Colored People, signed a letter to the chairman and ranking member of the
Senate Judiciary Committee to raise concerns about the Gonzales nomina-
tion and to ask the committee to closely scrutinize his record on detainee
policies in Iraq and Afghanistan.16 These groups coordinated similar let-
ters, signed by religious groups and legal professionals, while Human Rights
First embarked on a groundbreaking collaboration with high-ranking retired
military leaders who signed a letter opposing the nomination and proclaim-
ing their support for American compliance with the Geneva Conventions.
As Avi Cover of Human Rights First observed, the impact of the INGOs
and domestic advocacy groups™ efforts was to de¬ne the Gonzales con-
¬rmation as a referendum on the Bush administration™s detainee rights

When his name was announced, his name had not been identi¬ed in the way we were
able to identify it with the torture policies. What was critical was that it became a
debate about these issues. It essentially became a hearing about these issues and do

15 Generally, these publications started with a declaration of support for the nomination of a
Hispanic for the position, but then went on to discuss in some detail Gonzales™s record on
torture and detainee rights policies within the administration.
16 CivilRights.org, Letter from thirty human rights and civil rights organizations to Orrin

Hatch, Senate Judiciary Committee Chairman, and Patrick Leahy, Senate Judiciary Com-
mittee Ranking Member (Nov. 28, 2004), http://www.civilrights.org/issues/enforcement/
details.cfm?id=26423. The ¬rst substantive point made in the letter reads as follows:
Mr. Gonzales™ role in setting the administration™s policy on detention, interrogation, and
torture: As White House Counsel, Mr. Gonzales oversaw the development of policies that
were applied for handling prisoners in Afghanistan, Iraq, and elsewhere. He wrote a memo
disparaging the Geneva Conventions and arguing that they do not bind the United States
in the war in Afghanistan. He was warned by U.S. military leaders that this decision would
undermine respect for the law in the military, but he advised the President to reject that
advice, with catastrophic results. He requested and reviewed legal opinions that radically
altered the de¬nition of torture and claimed U.S. of¬cials were not bound by laws prohibiting
torture. Changes made as a result to long-established U.S. policy and practice paved the
way for the horri¬c torture at Abu Ghraib.

we want this to be our policy and how does the administration defend these policies.
That was an important conversation to have.17

The media quickly picked up the debate, and more and more Democratic
Senators followed suit.
Although domestic civil rights groups played an important role in the
Gonzales con¬rmation processes, when it came to the McCain amendment,
they maintained a lower pro¬le. Instead, two prominent American human
rights INGOs led social justice groups™ efforts to push for the antitorture leg-
islation. The smaller of the two, Human Rights First, was more inclined to
take on engaging with domestic discourses and enlisting domestic interme-
diaries. The other leading player, Human Rights Watch, also pursued these
avenues but to a lesser degree, displaying more of a tendency to engage in
traditional INGO strategies of shaming and centering arguments around
international legal obligations.
Throughout the campaign, the ACLU™s extensive and relentless efforts
to force the release of FBI, Department of Defense, and Army documen-
tation that shed further light on the scope of abuses and lack of account-
ability through Freedom of Information Act requests and litigation and
the Center for Constitutional Rights™ groundbreaking lawsuits on behalf of
Guantanamo detainees were also very instrumental.

The Media
In virtually every interview, the centrality of the media™s role was under-
scored. Many of the actors interviewed believed that without the media™s
extensive coverage of the abuses taking place and forceful editorials to carry
and maintain detainee rights issues in the public sphere, it would have been
impossible to get the McCain amendment off the ground.18 As one congres-
sional staffer emphasized, the week-in/week-out media reports of prisoner
abuse in Guantanamo Bay, Iraq, the CIA black sites, and Bagram served
as a major catalyst for Senate leaders™ decisions to take up the antitorture
Because the Bush administration had gone to such lengths to withhold
information about detainee policies from Congress, legislators relied almost
exclusively on the media for information with which to put the pieces of the
puzzle together.20 Media articles, particularly coverage by the The Wash-
ington Post and The New York Times, were regularly referred to in congres-
sional proceedings and debates. One by one, aided by internal dissenters, the
media exposed policy documents the administration had withheld. Alberto

17 See Avi Cover, supra note 10.
18 See human right NGO representative, supra note 6; interview with congressional staffer, in
Washington DC (Feb. 24, 2006).
19 Interview with congressional staffer, in Washington, DC (Feb. 17, 2006).
20 See congressional staffer, supra note 19.

Gonzales™s January 25, 2002, memo to George W. Bush regarding Geneva
Conventions protection for al Qaeda and Taliban members was ¬rst made
public by Newsweek in the weeks following the release of the Abu Ghraib
photos.21 The August 1, 2002, Justice Department memo in which the
de¬nition of torture had been limited “to pain equivalent in intensity to the
pain accompanying serious physical injury such as organ failure, impairment
of bodily function or even death” was ¬rst made public by the The Wash-
ington Post.22 Finally, particular media outlets were relentless in exposing
behind-closed-doors political maneuvering by administration of¬cials and
congressional allies designed to undermine the McCain amendment.23
Despite, human rights NGOs™ increased credibility following Abu Ghraib,
the media™s coverage of the various human rights violations associated with
“the war on terrorism” still had a far more signi¬cant impact, both reaching
a substantially larger audience and bene¬ting from a greater assumption
of independence and neutrality. For example, Human Rights Watch put
out a report about “ghost detainees” being held in secret facilities in Octo-
ber 2004;24 however, it was not until the The Washington Post broke the
story through their own sources that the issue provoked elaborate domestic
and international responses and outcry.25 As Katherine Newell Bierman of
Human Rights Watch described, “The media was able to report the story in
a way that made the story new and more pressing for people than if it had
been us.”26 For the same reasons of perceived independence, the media had
access to sources human rights NGOs did not. Thus, in the CIA secret deten-
tion facilities story, for example, The Washington Post was able to reference
CIA informants rather than human rights organizations and that made the
story more credible and thus more politically salient. The increased access
also meant that the media were sometimes in a better position to uncover
human rights violations than the human rights organizations themselves.
Beyond shedding light on administration human right policies and mak-
ing the case for reform, the media made repeated references to international
law and accorded the international framework increasingly greater legit-
imacy and authority, regularly placing it on par with the domestic legal

21 Michael Isikoff, Memos Reveal War Crimes Warnings, Newsweek, May 19, 2004,
22 Dana Priest, Justice Dept. Memo Says Torture May Be Justi¬ed, Washington Post, Jun.

13, 2004, http://www.washingtonpost.com/wp-dyn/articles/A38894-2004Jun13.html.
23 See, for example, Liz Sidoti, House GOP May Try to Weaken Detainee Rules, Associated

press, October 7, 2005.
24 Human Rights Watch, The United States™ “Dissapeared”: The CIA™s Long-Term Ghost

Detainees (October 2004), http://www.hrw.org/backgrounder/usa/us1004/.
25 Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post, Nov. 2,

2005, at A01.
26 Interview with Katherine Newell Bierman, Counterterrorism Council, U.S. Program,

Human Rights Watch, in Washington DC (Feb. 1, 2006).

order. Finally, since the Abu Ghraib scandal unfolded, the media began to
introduce, describe, and reprint provisions of international human rights
instruments for American policymakers and the public.27
Although the media effort to uncover American human rights violations
and related administration policies was primarily led by the elite media,
namely, The Washington Post and, to a lesser extent, The New York Times,
at the height of the debate over the McCain amendment, media coverage of
the issue became extremely widespread. The issue prompted national net-
work and cable news coverage and was picked up by a wide range of local
newspapers. According to a list provided by McCain™s of¬ce, between July
26, 2005, and August 5, 2005, editorials in favor of the McCain amendment
appeared in The Salt Lake City Tribune, the Minneapolis Star Tribune, the
Lansing State Journal, the Palm Beach Post, The Baltimore Sun, the Milwau-
kee Journal Sentinel, The State (South Carolina), The Houston Chronicle,
the St. Petersburg Times, The Oregonian, the Bangor Daily News, The
Patriot-News, the Louisville Courier-Journal, and The Barre Montpelier
Times Argus.

Congressional Leaders
A small group of Republican senators, several with elaborate military
credentials, posed a considerable challenge to the Bush administration™s
detainee rights policies and put their weight behind the McCain amendment.
Undoubtedly the most central ¬gure in the group was John McCain him-
self. His reputation as both a hawk and a principled “maverick” combined
with the fact that he had endured torture as a POW during the Vietnam War
positioned him as a rare spokesperson with an “in-group” status essential to
facilitating processes of persuasion and deliberation with other Republicans
in power. At a time when congressional Republicans had fully consolidated
their power with the Bush administration, such a challenge to the White
House would have been unimaginable without the leadership of McCain
and the handful of other Republicans taking on the issue.
McCain and other congressional leaders could hardly be credited with any
consistent, comprehensive, or unwavering allegiance to the broader human
rights project. Their commitment to securing human rights outcomes was
instead partial and ¬‚uid. Their motivations were rooted in the desire to,
on the one hand, uphold what they viewed as American ideals rooted in
a tradition of rights and, on the other, safeguard American interests and
power they considered to be tied to and bolstered by these ideals. Within the
¬rst realm, the senators™ apprehensions about administration abuses were
clearly normative as they were born out of a concern with how the United

27 JohnBarry, Michael Hersh, and Michael Isikoff, The Roots of Torture, 163:21 Newsweek
12 (2004) in which provisions of the Geneva Conventions are introduced.

States was perceived and evaluated through moral standards, particularly
human rights norms and norms associated with democratic societies. For
example, as one interviewee noted, McCain had “the idea that Americans
are a nation of ideals and the fear of losing that and the impact that would
have on our ability to make the world a better place was very key.”28 At the
same time, they were not only concerned about the nation™s reputation but
also clearly troubled by the disrepute that Abu Ghraib and other revelations
of torture and prisoner abuse had brought to the United States military as
an institution that to them was a symbol of national pride. Intertwined with
the sense of loss of ideals was the fear that declined moral stature would
result in a decrease in America™s in¬‚uence and ability to pursue foreign
policy objectives and, on the military front, negatively affect the military™s
recruitment numbers and the safety of troops currently in combat.
Accordingly, international interactions played a prominent role in devel-
oping the senators™ sense of urgency for gravitating toward international
human rights norms. In every trip abroad, particularly to Europe or the
Middle East, the senators were confronted by questions and harsh criticisms
of American human rights practices in Iraq and Guantanamo.29 The ques-
tioning pursued by Lindsay Graham, another key Republican senator and
former Air Force Judge Advocate, at the Gonzales con¬rmation hearings, is

Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of
the members of the Senate, and I can tell you it is a club that our enemies use, and
we need to take that club out of their hands. Guantanamo Bay “ the way it™s been
run has hurt the war effort. So if we™re going to win this war, Judge Gonzales, we
need friends and we need to recapture the moral high ground.30

In short, as much as the Bush administration™s apparent indifference to
international evaluations of its human rights policies was an anomaly given
constructivist precepts, other congressional leaders™ clear concern about how
the world perceived them, their country, and the institution with which they
had close ties ¬t into the constructivist calculus.


The strategies pursued by the campaign in the Gonzales con¬rmation and
passage of the McCain amendment were, to a large extent, colored and

28 See human rights NGO representative, supra note 6.
29 See congressional staffer, supra note 18.
30 Questions and comments by Lindsay Graham, nomination of Alberto Gonzales as U.S.

Attorney General before the Senate Judiciary Committee (Jan. 6, 2005), available at

shaped by the con¬nes of the post“September 11th era™s climate, which
was dominated by militarism, nationalism, and a sense of perpetual threat
from the world that lay beyond American borders. Consequently, campaign
strategies weaved together arguments and symbols rooted in legality and
morality with evocations of patriotism and American preeminence, or, as
Avi Cover of Human Rights First offered, they embarked on a project to
“cite the law, but as a point of principle and honestly sing apple pie, the
star-spangled banner and baseball, to some extent.”31 Tom Malinowsky
was even more direct about what lay at the heart of the strategy pursued:
“our side had to wrap itself in the ¬‚ag.”32

Shaming is the quintessential tool of human rights advocacy worldwide. A
form of social sanction, it endeavors to associate an individual™s or govern-
ment™s behavior with the stigma of violating a morally rooted normative
order. In their efforts to counter torture and abuse policies, human rights
NGOs and the media make extensive use of this strategy, although Repub-
lican congressional leaders pushing the McCain amendment largely stayed
clear of overt forms of shaming because of their party ties with the admin-
istration. Given that, prior to Abu Ghraib, outside of human rights NGOs
and the military, most elites largely overlooked and disregarded the interna-
tional legal order, the resort to human rights norms and international law
as a primary normative framework used to stigmatize Bush administration
policies is striking.
Naturally, shaming ¬gured prominently in the campaign against Alberto
Gonzales™s nomination as Attorney General. An editorial in The Washing-
ton Post following his testimony at the con¬rmation hearings typi¬es the

Mr. Gonzales was clearer “ disturbingly so, as it turns out. According to President
Bush™s closest legal adviser, this administration continues to assert its right to indef-
initely hold foreigners in secret locations without any legal process; to deny them
access to the International Red Cross; to transport them to countries where torture is
practiced; and to subject them to treatment that is “cruel, inhumane or degrading,”
even though such abuse is banned by an international treaty that the United States
has rati¬ed. In effect, Mr. Gonzales has con¬rmed that the Bush administration is
violating human rights as a matter of policy.33

The editorial then goes on to say, “Senators who supported the amendment
consequently face a critical question: If they vote to con¬rm Mr. Gonzales
as the government™s chief legal authority, will they not be endorsing the
31 See Avi Cover, supra note 10.
32 See Tom Malinowsky, supra note 4.
33 Editorial, A Degrading Policy, Washington Post, Jan. 26, 2005, A20.

systematic use of ˜cruel, inhumane and degrading™ practices by the United
States?”34 In the same way, a series of editorials written as the political
struggle over the McCain amendment progressed attempted to shame mem-
bers of the Bush administration by identifying them as supporters of abuse
and torture. On October 10, 2005, The New York Times featured a column
titled, “Who Isn™t against Torture?” asserting:
Some people get it. Some don™t. Senator John McCain, one of the strongest supporters
of the war in Iraq, has sponsored a legislative amendment that would prohibit the
“cruel, inhuman or degrading treatment” of prisoners in the custody of the U.S.
military. Last week the Senate approved the amendment by the overwhelming vote
of 90 to 9. . . . Joining Senator McCain in his push for clear and unequivocal language
banning the abusive treatment of prisoners were Senator John Warner of Virginia,
the Republican chairman of the Armed Services Committee, and Senator Lindsey
Graham of South Carolina, a former military lawyer who is also a Republican and
an in¬‚uential member of the committee. Both are hawks on the war. Also lining up
in support were more than two dozen retired senior military of¬cers, including two
former chairmen of the Joint Chiefs of Staff, Colin Powell and John Shalikashvili.
So who would you expect to remain out of step with this important march toward
sanity, the rule of law and the continuation of a longstanding American commitment
to humane values? Did you say President Bush? Well, that would be correct. The
president, who has trouble getting anything right, is trying to block this effort to
outlaw the abusive treatment of prisoners.35

Finally, perhaps one of the most forceful examples of the media employ-
ing shaming was evidenced by an editorial in The Washington Post enti-
tled, “Vice President for Torture,” that condemned Dick Cheney™s repeated
attempts to prevent the passage of the McCain amendment:
Vice President Cheney is aggressively pursuing an initiative that may be unprece-
dented for an elected of¬cial of the executive branch: He is proposing that Congress
legally authorize human rights abuses by Americans. “Cruel, inhuman and degrad-
ing” treatment of prisoners is banned by an international treaty negotiated by the
Reagan administration and rati¬ed by the United States. The State Department annu-
ally issues a report criticizing other governments for violating it. Now Mr. Cheney
is asking Congress to approve legal language that would allow the CIA to commit
such abuses against foreign prisoners it is holding abroad. In other words, this vice
president has become an open advocate of torture.36
34 Id.
35 Bob Herbert, Who Isn™t against Torture? N.Y. Times, Oct. 10, 2005, http://query.nytimes
.com/gst/fullpage.html?res=9F03E2D61F30F933A25753C1A9639C8B63. Another edito-
rial, in the Washington Post, employed a similar shaming technique:
Let™s be clear: Mr. Bush is proposing to use the ¬rst veto of his presidency on a defense
bill needed to fund military operations in Iraq and Afghanistan so that he can preserve the
prerogative to subject detainees to cruel, inhuman and degrading treatment. In effect, he
threatens to declare to the world his administration™s moral bankruptcy.
Editorial, End the Abuse, Washington Post, Oct. 7, 2005, at A22.
36 Editorial, Vice President for Torture, Washington Post, Oct. 26, 2005, at A18.

Although it did not prompt the American vice president to budge in his
staunch support for the American executive to reserve a right to engage in
torture and seriously curtail detainees™ due process rights, in a subsequent
interview, he refers to the “vice president for torture” designation with
disdain “ a sign that it did not entirely escape his attention.
Not surprisingly, Human Rights NGOs used similar shaming techniques
in which the stigma of being “a human rights violator” or an “advocate
of torture” was used to in¬‚uence policymakers™ positions.37 However, as
the backlash from many American politicians and facets of the media to
Amnesty International president Irene Khan™s labeling of Guantanamo as
the “gulag of our times” revealed that shaming strategies had their limits.38
In the end, much of the task before advocates involved maintaining a delicate
balance between often opposing normative forces, a task pursued even more
vigorously through the framing strategies that formed another major pillar
of the campaign™s efforts.


In accordance with constructivist precepts highlighting attempts by those
pressing a human rights agenda to communicate arguments, persuade, and
deliberate, any analysis of the emergence of the American campaign must
consider how international norms are fashioned by domestic proponents. As
Cortell and Davis suggest, “in situations where the match between interna-
tional norms and the prevailing domestic understandings is partial, propo-
nents of the international norm face a political and rhetorical struggle that
will require them to argue convincingly for the priority of one set of domestic
understandings over others.”39 This is largely accomplished through fram-
Norm entrepreneurs are critical for norm emergence because they call attention to
issues or even “create” issues by using language that names, interprets and dramatizes
them. Social movement theorists refer to this reinterpretation or renaming process as
“framing.” The construction of cognitive frames is an essential component of norm
entrepreneurs™ political strategies, since, when they are successful, the new frames
resonate with broader public understandings and are adopted as new ways of talking
about and understanding issues. In constructing their frames, norm entrepreneurs
face ¬rmly embedded alternative norms and frames that create alternate perceptions
of both appropriateness and interest. . . . new norms never enter a normative vacuum,

37 See Human Rights Watch, Introduction, World Report 2006 Jan. 1, 2006, available at
38 See, for example, the Washington Post editorial criticizing the analogy; Editorial, American

Gulag, Washington Post, May 26, 2005, at A26.
39 Andrew Cortell and James Davis, Understanding the Domestic Impact of International

Norms: A Research Agenda, 2 Int™l. Studies Rev. 65, 77 (2000).

but instead emerge in a highly contested normative space where they must compete
with other norms and perceptions of interest.40

Further, persuaders frequently frame norms in ways that connect emerging
norms with existing and established norms to bolster the credibility of their
Framing became the most important component of the rights coalition™s
overall strategy, particularly with regard to persuading tentative senators.
Over coffee in a Senate building cafeteria, one staffer explained the impera-
tive of the approach:

There™s a million good reasons why you should not torture people, but it™s critical
you choose the right ones when you™re trying to persuade people. That™s something
that our friends in Europe have not understood very well. The Germans, for example,
we agree with them on the substance of (the idea that) we should stick to interna-
tional law . . . , but that doesn™t cut it in the United States, you can™t make those
arguments . . . politically because people don™t put a whole lot of faith in interna-
tional law qua international law. Ask the average person on the street and he says,
“well, there™s no enforcement mechanism and international law doesn™t even matter
and the United States is the most powerful country in the world and plus we are
exceptional; we can do things that other countries can™t.”42

The view was reiterated by an activist who held that what made all the
difference in the campaign was whether human rights norms were framed
as constraints in responding to terrorism or as lying at the core of American
values and standing in opposition to terrorists™ values.43
The use of framing by human rights NGOs, the media, and congressional
leaders took several forms. To varying degrees, each invoked American
identity constructions, existing symbols of nationalism and patriotism, and
utilitarian arguments relating to interests and security to make the case for
American adherence to human rights norms.

Identity Politics, American Values, and the “This Is about Us,
Not about Them” Formulation
A large portion of the campaign™s efforts was invested in bringing out the
cognitive dissonance caused by Bush administration policies that violated
detainee rights and a widely held self-image as global human rights leader,
without being labeled “anti-American.”44 Thus, all three forces involved
elected to frame the debate as one centered around the essence of American
40 Martha Finnmore and Kathryn Sikkink, International Norm Dynamics and Political
Change, 52 Int™l. Org. 887, 897 (1998).
41 Id. at 887, 908 (1998).
42 See congressional staffer, supra note 18.
43 See human rights NGO representative, supra note 6.
44 Id.

values and identity. John McCain™s assertion, “This is about us, not about
them” becomes the essential message of the campaign:

Let me close by noting that I hold no brief for the prisoners. I do hold a brief for the
reputation of the United States of America. We are Americans. We hold ourselves to
humane standards of treatment of people, no matter how evil or terrible they may be.
To do otherwise, undermines our security, but it also undermines our greatness as a
nation. We are not simply any other country. We stand for something more in the
world, a moral mission, one of freedom and democracy and human rights at home
and abroad. We are better than these terrorists, and we will win. The enemy we ¬ght
has no respect for human life or human rights. They don™t deserve our sympathy.
But this isn™t about who they are; this is about who we are. These are the values that
distinguish us from our enemies.45

The argument adopts the fundamental premises of the East/West human
rights dichotomy. However, instead of appropriating human rights to jus-
tify American interventions as the Bush administration is apt to do, it invokes
the American tradition of rights to make the case for increased American
compliance with human rights obligations. For example, McCain adopts the
Bush administration™s “they hate us for our freedom” rhetoric by saying “it
(the proposed legislation) is consistent with our laws and, most importantly,
our values. Let™s not forget that al-Qaida sought not only to destroy Ameri-
can lives on September 11, but American values, our way of life, and all we
cherish.”46 Another common variation of this line of argument is re¬‚ected
in a column in The New York Times:

Some argue that since our actions are not as horrifying as Al Qaeda™s, we should not
be concerned. When did Al Qaeda become any type of standard by which we measure
the morality of the United States? We are America, and our actions should be held
to a higher standard, the ideals expressed in documents such as the Declaration of
Independence and the Constitution.47

45 190 Cong. Rec. 17, 147 (daily Ed. Oct. 5, 2005) (statement of John McCain)
available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2005_record&
docid=cr05oc05-19. This line of argument appeared immediately in response to the Abu
Ghraib photos and was made throughout the debate over Gonzales™s con¬rmation. For
example, during those con¬rmation hearings, Senator Patrick Leahy made the following
We are the most powerful nation on Earth “ actually the most powerful nation Earth has
ever known. The country that is great promise. We are blessed with so much. And we™re a
country that cherishes liberty and human rights. We™ve been a beacon of hope and freedom
to the world. Certainly, it was that hope and freedom that brought my grandparents to
this country not speaking a word of English, but coming here for that peace and freedom.
We face vicious enemies in the war on terrorism. But we can and will defeat them without
sacri¬cing our values or stooping to their levels.
46 Id.
47 See Bob Herbert, supra note 35.

The appeal to a more morally attuned, more authentic, essential American
self is also made in an exchange between Lindsay Graham and Alberto
Gonzales during Gonzales™s con¬rmation hearings:

GONZALES: I would respectfully disagree with your statement that we™re becoming
more like our enemy. We are nothing like our enemy, Senator. While we are strug-
gling, mightily, trying to ¬nd out what happened at Abu Ghraib, they are beheading
people like Danny Pearl and Nick Berg. We are nothing like our enemies, Senator.
GRAHAM: Can I suggest to you that I didn™t say that we are like our enemies; that
the worst thing we did when you compare it to Saddam Hussein was a good day
there? But we™re not like who we want to be and who we have been. And that™s the
point I™m trying to make, that when you start looking at torture statutes and you look
at ways around the spirit of the law, that you™re losing the moral high ground. And
that was the counsel from the Secretary of State™s of¬ce that once you start down this
road that it™s very hard to come back. So I do believe we have lost our way. And my
challenge to you as a leader of this nation is to help us ¬nd our way without giving up
our obligation and right to ¬ght our enemy.48

Human rights groups also largely adopted the “it™s about us” message but
generally delivered it with less of an air of cultural and civilizational hierar-
chy than did congressional leaders.
Despite their disparate starting points and worldviews, a key factor that
generally linked the three forces within the campaign was that, to varying
degrees, they ascribed to the “this is about us” values argument. In other
words, although they consciously crafted it as an effective rhetorical device,
most also adhered to it as a deeply held conviction and personal identity
construction. I have already referred to the dynamic in relation to the con-
gressional leaders involved, but it was also apparent in my interviews with
Dana Priest, the reporter for The Washington Post who won the Pulitzer
Prize for her story uncovering the existence of CIA black sites, Jackson Diehl,
the member of the editorial board of The Washington Post who was largely
responsible for the newspaper™s scourging editorials condemning torture and
other detainee rights abuses, and several of the human rights advocates inter-
viewed. All of them shared a sense that the policies they were challenging
were quintessentially un-American.

Fashioning International Law as Not Un-American
Similarly, to set the foundations for the argument that the United States must
comply with international human rights norms and treaty obligations, advo-
cates recast international law as consistent with American values, identity,
and interests rather than a constraint on American interests and security.
Incorporating all of these dimensions, one senator argued, “We instill in our
people as much as possible that, ˜You™re to follow the law of armed con¬‚ict,
48 See Lindsay Graham, supra note 30.

because that™s what your nation stands for, that™s what you™re ¬ghting for,
and you™re to follow it because it™s there to protect you.™”49 Another senator
linked the roots of the international human rights and humanitarian regime
with the American experience:
The prohibition on torture and other cruel treatment is deeply rooted in the history
of America. Our Founding Fathers made it clear in the Bill of Rights that torture and
other forms of cruel treatment are prohibited.
These principles have even guided us during the times of great national testing.
During the Civil War, President Abraham Lincoln asked Francis Lieber, a military
law expert, to create a set of rules to govern the conduct of U.S. soldiers in the Civil
War. The result was the Lieber Code. It prohibited torture and other cruel treatment
of captured enemy forces. It really was the foundation for the Geneva Conventions.
After World War II, the United States took the lead in establishing a number of
treaties that banned the use of torture and other cruel treatment against all persons
at all times. There are no exceptions to this prohibition.50

In a similar manner, John McCain argued in his Noverber 21, 2005,
Newsweek essay that international law enshrines American values.51
Although the argument is similar to preexisting American constructions
of the relationship between the Constitutional framework and the interna-
tional framework as commensurate, here it is invoked as a reason to comply
with international norms rather than a reason to dismiss them.

Centering Domestic Law
A related practice consisted of campaign members invoking domestic law
either in lieu of or in conjunction with international law to tap into the
greater authority and legitimacy accorded to the domestic legal framework
by those they sought to persuade. Although human rights groups always
invoked the authority of international law, in many cases, domestic and
military law was also invoked in parallel, depending on the audience. In
some cases, this was a conscious tactical decision, and in other cases, it
was an inevitable consequence of having to engage with dominant political
discourses. In either scenario, a largely pragmatic approach was adopted.
This is re¬‚ected in the views of Human Rights First™s Avi Cover.
If some individual is going to be more compelled by (the argument that) the Fifth
Amendment requires them to do this as opposed to Article 16 (of the CAT), in a lot
of respects, I™m OK with this. Obviously there™s the greater issue of saying we don™t
care what our treaty obligations are and that™s vastly problematic.52

49 Id.
50 Senate ¬‚oor debate on McCain amendment (Oct. 5, 2005) (speech by Senator Dick
51 John McCain, Torture™s Terrible Toll, 146:21 Newsweek 35 (Nov. 21, 2005).
52 See Avi Cover, supra note 10.

As I discuss in later sections, as the campaign progressed, international
norms became more and more self-standing, and it becomes increasingly
“safe” to invoke its authority without necessarily having to resort to parallel
domestic provisions.

Security-Based and Utilitarian Arguments for Human
Rights Compliance
Along with the various frames referencing American values, the case for
taking American human rights obligations seriously were made through an
array of military, security, and interest-based arguments, many of which
had both ideational and material dimensions. For example, it was argued
that “standing up for the troops” meant giving them clear guidelines.53 This
would not only uphold their reputation and integrity but also ensure their
safety and security.54 The notion of reciprocity also ¬gured prominently in
congressional leaders™ attempts to persuade their colleagues: “What happens
in the next con¬‚ict when American military personnel are held captive by
the enemy and they make the argument, with some validity, that we have
violated the rules of war? What happens to our men and women in the
military then?”55 According to one interviewee, the turning point for the
McCain amendment came only when the issue was framed in these terms.56
Another line of argument asserted that American human rights violations
fostered greater anti-American sentiment worldwide and particularly among
Muslims, further endangering American national security. In McCain™s
words, “What should also be obvious is that the intelligence we collect must
be reliable and acquired humanely, under clear standards understood by all
our ¬ghting men and women. To do differently would not only offend our
values as Americans but undermine our war effort, because abuse of pris-
oners harms, not helps, in the war on terror.”57 In other words, there was
not only a moral imperative to refrain from cruel, inhuman, and degrading
treatment but also a (perhaps more pressing) strategic imperative to follow
such a human rights course.
Finally, the argument that torture had been proven ineffective because
a detainee subjected to it would say anything to end the mistreatment was
regularly ¬‚oated around along with the normative and morally based con-
tentions being advanced. Some human rights advocates made extensive and
proactive use of the utilitarian and security-based arguments regularly made
by congressional leaders, military intermediaries, and, to a slightly lesser
53 See supra note 45 (Statement by Lindsay Graham).
54 See supra note 30. Questions and comments by Joseph Biden.
55 See John McCain, supra note 45.
56 See human rights NGO representative, supra note 6.
57 See John McCain, supra note 45.

extent, the media.58 Others were less comfortable using the line of argu-
ments but were often drawn into and forced to engage with these argu-
ments, invoking them cautiously but generally attributing them to others.
Advocates believed that the arguments simply could not be ignored within
“an environment where people were feeling insecure.”59 Katherine Newell
Bierman of Human Rights Watch echoed this view:

I™ve seen debates over whether using the national security framework is overly accept-
ing of the administration™s position and that if you start from the standpoint that
these are national security issues, you™ve already sold out your ¬rst resistance, which
would be “no, this is not a national security issue, this is about our communities.”
A lot of the D.C.-based organizations say, you hear national security, that™s bad.
We don™t want national security. In the end Americans are concerned about national
security and Americans are afraid and if you™re not addressing that, then you are
not addressing the core barrier to your message. You™re not going to get through to

The statement poses revealing questions about how domestic NGOs are
forced to grapple with normative aspects of the strategies and means they
employ when they opt to enter the fray of domestic political discourse.

Enlisting the Military as Powerful Intermediary and Victim
Beyond shaming and framing, a third strategy adopted in the campaign was
that of enlisting intermediaries. Although domestic NGOs facilitated letters
from a number of civil society groups, including religious organizations
and legal professionals, by far the most important intermediaries recruited
were those af¬liated with the military. As is already evident, to a large
extent, after September 11th, mainstream political discourse had placed
detainee rights issues within the purview of national security and human
right groups were often marginalized by being labeled “out of touch” with
what was considered the era™s new security imperatives. Human Rights First
sought an intermediary who would be more compelling to the legislators they
were targeting. As a result, one of their most important strategies involved
convincing elite members of the U.S. military (as high up as a former Joint
Chiefs of Staff) to write letters to the Senate urging it to consider detainee
rights in its votes. The group started out by pursuing particular military
¬gures and once they had one member on board, they were able to tap into
his networks and have him vouch for Human Rights First as a legitimate
58 See, for example, Human Rights First Washington Advocacy Director Elisa Massimino™s
contribution on the future of human rights. Elisa Massimino, Fighting from Strength:
Human Rights and the Challenge of Terrorism, in The Future of Human Rights (William
F. Schultz ed., 2008).
59 See human rights NGO representative, supra note 6.
60 See Katherine Newell Bierman, supra note 26.

and politically safe af¬liation. Their letters and public positions taken by
the generals on the matter became a major focus both during the Gonzales
con¬rmation hearings and the ¬ght over the McCain amendment, changing
the tenor of both debates.61 “Anybody who didn™t want to appear soft on
terrorism could say, look, I™m just following the advice of all these military
guys.”62 This was largely applicable to Democrats in the case of the Gonzales
con¬rmation and Republicans in the case of the McCain amendment. One
human rights NGO representative referred to the letters as providing “cover”
and “ammunition.”63
Another military ¬gure brought into the public spotlight by human rights
groups and John McCain was Captain Ian Fishback. In contrast to the high-
ranking of¬cers appearing in the letter campaign, he represented the brave
and morally motivated servicemen forsaken by Bush administration policies
and, as such, also played a prominent role in the debate surrounding the
McCain amendment. Fishback™s letter to Senator McCain was repeatedly
referenced by supporters of the legislation in the Senate ¬‚oor debate. His
compelling story of a seventeen-month search for a clear answer regarding
which guidelines were to be followed in the treatment of detainees from his
superiors resonated widely and received considerable media attention.

Mediating Boundaries
All the actors involved in the debate were aware of the boundaries of
the existing political landscape and security-based normative framework.
Although they pushed the boundaries inch by inch, they were all also keenly
aware of a delicate balance that had to be maintained for their human rights
agenda to go forward. This often meant coordination between the various
actors involved around who would speak and who would stay in the back-
ground and, as already discussed, how arguments would be formulated.
Although they were instrumental in pushing the majority of Senate
Democrats to vote against Gonzales, when it came to the McCain amend-
ment, it was understood by many of the rights advocacy groups involved
that it was necessary for Human Rights First and Human Rights Watch to
take the lead publicly and for domestic civil rights traditionally viewed as
committed to the left to keep a lower pro¬le:
On the McCain amendment, we were very careful to make sure this didn™t look like
a left-wing driven agenda to embarrass the White House. People were very savvy.
[Human Rights First] was the only group that could mobilize the military of¬cials
like [it] did. . . . if you are focused on the result and not the credit, you have to be
strategic about what the public face of the initiative is. [For the McCain amendment],
the retired military felt very strongly about it and [Human Rights First was] able
61 See Avi Cover, supra note 10.
62 See congressional staffer, supra note 18.
63 See Avi Cover, supra note 10.

to help channel that feeling into something useful. Many of them would not have
felt comfortable if it had looked like an ACLU-driven agenda and even an Amnesty
International agenda. It™s neither right or wrong, it™s just the way it was.64

In many instances human rights groups themselves preferred to work behind
the scenes through a less public pro¬le. When they collaborated with other
legislators or military of¬cials, their names would generally not appear in the
public statements that resulted.65 When there was media coverage of their
investigations of detainee abuse, they tried to ensure the story was more
about the facts than about a human rights organization as the source.66
Because they were so concerned about avoiding labels of political partisan-
ship, they were extremely cautious in the framing and formulation of the
When we decided to oppose Gonzales, he was only the second cabinet appointee
we had decided to oppose. That in and of itself was a signi¬cant decision being
made. . . . We understood that as a very signi¬cant undertaking and an important
statement. . . . In everything we did and in all the advocacy work we did, we were not
going to be political and even though it would be perceived as a political statement
and we were entering the political fray, we™re going to be about substantively these
issues and not any other issues. . . . We were going to talk about enemy combatants
and not applying the law faithfully or fairly, denying the Geneva Conventions and
issues of torture. We™re not talking about his views on abortion. We™re not talking
about his views on criminalization of drug use, or the Patriot Act. And we remained
faithful to that.67

Not surprisingly, similar calculations were present on the Senate side of
the equation. Part of the overall (and, again, unspoken but understood)
strategy for garnering Republican support for the McCain amendment was
to keep Democrats off to the sides. Republican senators from conservative
states supporting the measure constantly had to establish that their hearts
were not bleeding for “the terrorists” to constituents and colleagues who
questioned their stance. This dynamic plays out in Lindsay Graham™s need
to assure his colleagues and constituents of his strength in a statement during
the Gonzales con¬rmation hearings: “Nobody wants to coddle a terrorist.
And if you mention giving rights to a terrorist, all of a sudden you™re naive
and weak. I can assure you, sir, I™m not naive and weak.”68
By and large, the strategic paths taken by the campaign were rooted in
pragmatism, a desire to obtain immediate and short-term results, and a per-
ception of the necessity to sometimes make less than palatable compromises
in what was largely seen as a crisis for global rights conditions and American
64 See human rights NGO representative, supra note 6.
65 See Avi Cover, supra note 10.
66 See Katherine Newell Bierman, supra note 26.
67 See Avi Cover, supra note 10.
68 See Lindsay Graham, supra note 30.

leadership within them. Given the myriad of real and perceived constraints
faced by the campaign as well as its virtually unprecedented nature, the
following assessment of the campaign™s gains and achievements produced a
mixed review.


By creatively deploying international human rights norms, domestic forces
in many respects transformed American human rights discourses and con-
sciousness and moved the country in a direction in which international
human rights norms were increasingly seen as posing constraints on Amer-
ican behavior and policy options, particularly relating to torture. Despite
the unprecedented openings it presented, however, the progress achieved
by the campaign has to date received scant recognition. There are several
reasons for this. First, the gains made remained in the seemingly distant
and intangible level of human rights discourses and infrastructure, whereas
advocates were naturally focused on the here and now of preventing Bush
administration attempts to carve out legal avenues for torture, closing down
Guantanamo, guaranteeing detainees meaningful due process rights “ none
of which materialized in any de¬nitive form. Second, the progress made var-
ied considerably in terms of how far it reached and how much it impacted
disparate forces. Thus, it was easy for the modest signs of change to be
overshadowed by the sometimes overwhelming signs of continuity, partic-
ularly those emanating from the Bush administration. Finally, indicators of
progress appeared as diffuse and scattered pieces; their signi¬cance becomes
apparent only once assembled together. In this section I attempt such a

Legislative and Policy Outcomes: Modest Inroads toward American
Human Rights Compliance
By August 2008, the campaign™s legislative and policy victories had been
modest and virtually every hard-fought gain of the campaign had quickly
been matched by a new Bush administration attempt to circumvent it. Still,
some of these modest victories are worth brie¬‚y recounting and their sig-
ni¬cance considered in light of the constructivist insight that incremental
concessions, no matter how seemingly insigni¬cant, can accumulate over
time and result in an eventual turning of the tide or “tipping point.”69
On December 30, 2004, just days before Alberto Gonzales™s con¬rmation
hearings were set to commence, the Department of Justice replaced the
controversial Bybee torture memo with a new memo written by Daniel
Levin. The new memo repudiated the earlier memo™s limited de¬nition of
69 See Finnmore & Sikkink, supra note 40, at 887.

acts constituting torture and its assertion that under certain circumstances
a torturer can escape criminal liability. The changed tone of the new memo
was notable. It began as follows:
Torture is abhorrent both to American law and values and to international norms.
This universal repudiation of torture is re¬‚ected in our criminal law, for example, 18
U.S.C. §§2340-2340A, international agreements; exempli¬ed by the United Nations
Convention Against Torture (the “CAT”); customary international law; centuries of
Anglo-American law; and the longstanding policy of the United States; repeatedly
and recently reaf¬rmed by the President.70
Moreover, the Senate vote on the Gonzales con¬rmation produced surpris-
ing results, with thirty-¬ve Democratic senators and one Independent sen-
ator voting against Gonzales™s nomination solely based on his involvement
with the Bush administration™s detainee rights and torture policies. Gonzales
received the fewest minority party votes for the Attorney General position
since 1925.71
Following the hearings, Senate Democrats renewed calls for the estab-
lishment of an independent commission to investigate detainee abuse. The
proposal received support from the elite media and ultimately served as
leverage to get some Republicans on board with the McCain amendment.72
On November 3, 2005, the Department of Defense issued a new directive
that instructed soldiers to treat detainees humanely and banned the use of
dogs in interrogations.73
Without a doubt the biggest success of the rights initiative considered in
this study was to be found in the developments surrounding the passage of
the McCain amendment. First, despite the threat of a presidential veto, the
amendment passed the Senate by a remarkable vote of ninety to nine. Few
involved in the process had imagined such a dramatic result. Second, despite
repeated efforts by Dick Cheney and congressional allies to abort or alter the
legislation in the conference committee, efforts by human rights groups,
the media, and congressional leaders ensured that the back-door dealings
were made as public as possible. Eventually, the measure was sent to the
White House in its original form and George Bush signed the legislation on
December 30, 2005, in a public ceremony with McCain at his side. How-
ever, the success was sobered by its coupling with legislation spearheaded
by Lindsay Graham (whose commitment to upholding detainee rights was
largely con¬ned to his stance against torture) to limit Guantanamo detainees™
access to habeas corpus appeals as well as news that Bush had signed the

70 Daniel Levin, Memorandum for James B. Comey (December 30, 2004), available at http://
71 Charles Babbington and Dan Eggen, Senate Con¬rms Gonzales 60 to 36, Vote Re¬‚ects

Concerns over Detainee Policy, Washington Post, Feb. 4, 2005, A01.
72 See Avi Cover, supra note 10.
73 Department of Defense, Directive No. 3115.09 (Nov. 3, 2005).

legislation with a presidential signing agreement that stripped the legislation
of its intended purpose.
Following the McCain amendment, one of the campaign™s biggest victo-
ries was a judicial one: the Supreme Court decision in Hamdan v. Rumsfeld
holding that Guantanamo military commissions violated the Geneva Con-
ventions. The decision left an opening for the military commissions the Bush
administration favored but required they be authorized by statute, forcing
another legislative battle just before the 2006 elections. The measure that
curtailed detainee due process rights on numerous fronts and left the door
open for the use of evidence obtained through torture ultimately passed, serv-
ing a major blow to the campaign whose congressional supporters, includ-
ing John McCain, largely de¬‚ected at the eleventh hour. However, given the
tone and unprecedented presence and legitimacy accorded to international
treaties and human rights considerations within the widespread debates over
the legislation, the measure could just have easily passed in a form that incor-
porated many of the human rights campaign™s demands. The reasons why
it did not are complex and largely attributable to factors beyond the cam-
paign™s control. Almost immediately after taking over Congress, a number of
Democrats developed legislation that attempted to reverse provisions of the
MCA and mandate compliance with international human rights obligations
and ban the practice of “extraordinary renditions.” However, none of the
efforts materialized as substantive human rights gains until Barack Obama
assumed the presidency in January 2009.

A New Era of American Human Rights Awareness, Engagements,
and Consciousness
Constructivists look at several indicators for evidence of a progressive dis-
placement of existing norms with emerging norms. Most relevant to discus-
sions of the emergence of international human rights norms are three stages
identi¬ed by constructivist scholars Thomas Risse and Kathryn Sikkink.
Noting that they do not necessarily follow sequentially and that overlap
is common, the authors point to (1) adaptation and strategic bargaining
that entail some strategic or instrumental concessions and the beginnings
of actors engagement with human rights discourse; (2) moral conscious-
ness raising that is characterized by processes of persuasion, argumentation,
dialog, and shaming, often leading to actor™s acceptance of human rights
norms in their discursive practices; and, ¬nally, (3) full institutionaliza-
tion and habitualization.74 Cortell and Davis add that the legitimacy and
salience of international norms within domestic contexts can be measured by
changes in overall national discourse, state institutions (e.g., norm con¬‚icting

74 Thomas Risse and Katheryn Sikkink, The Socialization of International Human Rights
Norms into Domestic Practices: Introduction, in The Power of Human Rights (Thomas
Risse, Stephen Ropp, and Kathryn Sikkink eds., 1999).

institutions being weakened or eliminated), state policies, certain behaviors
being ruled out of the set of acceptable alternatives, and actors feeling a
strong need to justify or apologize for violations.75 As the authors note
and the present case study displays, the entry of international norms into
domestic discourse is perhaps the most important of the indicators listed.76
Arguably, the most consequential advance of the American campaign
pro¬led stems from the moral consciousness-raising and overall changes in
American political discourse on international human rights norms it set in
motion. Increasingly, international norms and treaty obligations were intro-
duced into the public domain, accorded legitimacy, and referred to as bind-
ing law in political and civil society discourse. Many examples are found in
the materials presented above. The following statement by Lindsay Graham
was typical:

The Bybee memo was an effort by people at the Justice Department to take inter-
national torture statutes that we had rati¬ed and been party of and have the most
bizarre interpretation basically where anything goes. It was an effort on the part
of the Department of Justice lawyers to stretch the law to the point where the law
meant nothing. And early on in this process, those in uniform who happened to be
military lawyers stood up and spoke.77

Although references to international human rights treaties as “the law” are
not groundbreaking from a strictly legal or constitutional standpoint, they do
represent a modest discursive shift, a move toward ever-so-slightly reconsti-
tuting the balance between domestic law™s privilege and international law™s
Questions of international law became pivotal in many judicial and exec-
utive branch con¬rmations in a way that they had not before. Just one
glimpse into the transformation is illustrated by the questions regarding
international law in the Senate con¬rmation hearings of both of the Bush
administration™s Supreme Court nominees. Again, in the Senate ¬‚oor debate
on the McCain amendment, Graham recalls his questioning of John Roberts:

GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it
has been good for America to be part of that convention?
ROBERTS: I do, yes.
ROBERTS: Well, my understanding in general is it™s an effort to bring civilized
standards to conduct of war “ a generally uncivilized enterprise throughout history;
an effort to bring some protection and regularity to prisoners of war in particular.
And I think that™s a very important international effort.78

75 See Cortell & Davis, supra note 39, at 65, 70“71.
76 Id.at 71.
77 See Lindsay Graham, supra note 30.
78 See Lindsay Graham, supra note 30.

For a Republican to invoke international law in this way in a United States
Supreme Court nominee™s con¬rmation hearing breaks new ground in Amer-
ican political and legal dynamics, even if (or precisely because) it sits along-
side other Republicans™ attempts to secure nominees™ assurances that they
will not draw on foreign or international sources in their judgments. Evi-
dence of a new American discourse on international law was seen even
earlier in the numerous critical references and direct challenges to Alberto
Gonzales™s designation of international legal instruments as “quaint” and
“obsolete.” This position was so heavily criticized (and sometimes even stig-
matized) that Gonzales felt compelled to reject it in his opening remarks
by declaring that, “Contrary to reports, I consider the Geneva Conventions
neither quaint nor obsolete.”79 Despite the fact that the Bush administration
asserted they held international human rights standards in high esteem while
they made every attempt to circumvent them, some of their statements betray
an unstated perception that international law matters. Clearly, the adminis-
tration felt at least enough of international law™s normative force to engage


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