. 4
( 9)


and contend with the regime by packaging and repackaging their policies in
international legal terms and justifying their infringements at every step. The
more effort and resources they devoted to this end, the more they became
entangled in the regime, particularly when confronted with domestic human
rights challenges. As Jamil Dakwar of the ACLU™s Human Rights Program
observed, “All of a sudden the U.S. government or Congress cite interna-
tional law “ even in a bad way. That™s an opening to develop mechanisms
and oversight.”80
Beyond this, promising signs of transformed American sensibilities sur-
rounding the notion of human rights also began to emerge. Human rights
were increasingly understood as something more than a replica or reiter-
ation of American civil liberties enshrined in the Constitution. There was
a nascent sense that the regime serves some purpose, and there was an
increased consciousness of the universality or “human” in the human rights
concept, as this exchange between CNN anchor Wolf Blitzer and Richard
Falkenrath, a former Bush administration aide at a Georgetown Law Cen-
ter forum also featuring Senator Arlen Spector and Congresswoman Jane
Harman, intimates.

Blitzer: Richard, this [detainee rights concerns] is a case where the government tries
to balance civil liberties and national security?
Falkenrath [former Deputy Assistant to George W. Bush]: There™s a question about
whether these individuals have civil liberties in the way that U.S. citizens do.

79 Testimony by Alberto Gonzales, nomination of Alberto Gonzales as U.S. Attorney General
before the Senate Judiciary Committee (Jan. 6, 2005).
80 Telephone interview with Jamil Dakwar, Director, ACLU Human Rights Program, DC (Jul.

10, 2008).

Blitzer: They are human beings (with emphasis).
Falkenrath: But Wolf, human rights is different than civil liberties, but here™s what
I™d like to say “
Blitzer (cutting Falkenrath off): Alright, so let me rephrase; so this is a case where
you balance human rights against national security.
Falkenrath: I agree with that. This is just a profoundly dif¬cult problem. Here, I
invite everyone to think back into the weeks after 9/11 and project in your mind
what the United States would be doing as a result of that attack. We would be
launching a global war against terror in which hundreds of thousands of individuals
detained all over the world, individuals of many different nationalities, some of
whom have current knowledge of current plots to kill other innocent civilians, many
of whom will go into action against us at the ¬rst opportunity . . . extremely hard
problem for which there was no pre-existing rules, there was no body of international
law, there was no world court, there was no prepackaged U.S. statutory regime and
the executive branch had to come up with something and there™s nothing easier than
to throw stones at Guantanamo.
Blitzer: Explain why the Geneva Conventions don™t apply.
Falkenrath: You should probably turn to a lawyer for this since I™m a non-lawyer,
but this category of combatants does not ¬t within a category of the Geneva
Conventions. . . . 81

A more formal example was provided in the Senate ¬‚oor debate on the
McCain amendment where Republican senator John Sununu makes the
following comment:

Second, I think we are sending an important message to our allies and our adversa-
ries “ a message that while the legal standards that are enshrined in the Consti-
tution do not apply to everyone in the world, our commitment to these basic
principles of life, liberty, and the pursuit of happiness, our commitment to basic
principles of human dignity and human rights do apply and we must ¬nd ways to
de¬ne these standards, to clarify this commitment, even in the area of interrogating
enemy combatants and interrogating potential terrorists, suspected terrorists, in the

However limited, tentative, and con¬‚icted the move toward a recognition
that the human rights paradigm in some way applies to American action, it
remains a notable development.
Running parallel to the increased sense that human rights are owed to
everyone (even to terrorists and other Muslims) was an increased ability to

81 Georgetown Law, The War on Terror: Exercise of Civil Defense or Violation of
Civil Liberties: A Georgetown Law Forum Discussion Focusing on Military Tri-
bunals and Domestic Wiretapping, Feb. 16, 2006, http://www.law.georgetown.edu/otp/
82 Senate ¬‚oor debate on McCain amendment (Oct. 5, 2005) (speech by John Sununu).

conceive of “American human rights violations” and place the United States
alongside other states in contravening human rights norms, in contrast to
previous understandings of human rights as simply means for condemning
the brutality of far-off dictators and “backward” cultures. In other words,
strides were taken in the direction of rejecting American human rights
exceptionalism. A column in The New York Times recounted the story of
the Sudanese al-Jazeera cameraman, Sami al Hajj, who was detained by U.S.
authorities ¬rst at the Bagram Air Force Base in Afghanistan and later in
Guantanamo, allegedly under torture and with little evidence of legitimate
charges against him. The column begins, “with the jailing of Mr. Hajj and
of four journalists in Iraq, the U.S. ranked No. 6 in the world in the number
of journalists it imprisoned last year, just behind Uzbekistan and tied with
Burma, according to the Committee to Protect Journalists.”83 Further, in
arguing for the provision of due process guarantees to “War on Terror”
detainees in his congressional testimony in hearings on the MCA, Rear
Admiral John Hutson following the cue of the Supreme Court in its Hamdan
v. Rumsfeld decision invokes standards of justice of “civilized people” and
goes on to detail how American policies fall short of those standards:

However, I believe that successful prosecution entails a full and fair hearing which
complies with the dictates of Common Article 3, to the extent that it is a regularly
constituted court that comports with the judicial guarantees recognized as indis-
pensable by all civilized peoples. I don™t believe that there is any part of that “ a
regularly constituted court or judicial guarantees recognized as indispensable by civ-
ilized peoples “ that the United States should or could try to avoid or evade in any

The reference to an American need to act in accordance with civilized stan-
dards captures an instance of the East/West geography of human rights being
turned on its head in the post“September 11th era, albeit an instance with
which some members of Congress who attended the session were quick to
take exception.
Finally, enlisting Abu Ghraib™s vivid images, the campaign was able, in
large part, to counter the momentum of policymakers™ and a surprising tide
of scholars™ abstract theoretical indulgences of torture and violations of other
international conventions as “necessary evils.” As Human Rights Watch™s
Tom Malinowsky explained, in the ¬rst two years following September 11th,
83 Nicholas Kristoff, Sami™s Shame and Ours, N.Y. Times, Oct. 17, 2006, http://select.nytimes

84 Statement by Rear Admiral John Hutson, United States Navy, Retired, Former Judge Advo-

cate General, U.S. Navy, hearing before the House Armed Services Committee on standards
of military commissions and tribunals (Jul. 12, 2006).

he constantly received invitations to debates on the pros and cons of resorting
to torture in the War on Terrorism in which “there would be a pro-torture
guy” and he would serve as the “anti-torture guy,” but that format has
largely disappeared in recent years. Still, this could be seen only as a partial
or short-lived gain. Although the debate over torture™s “necessity” subsided,
similar debate over “harsh interrogation techniques” and denials of due pro-
cess reemerged in 2007 with their championing by a number of Republican
presidential candidates.
Taken cumulatively, can these developments be regarded as the begin-
ning of a degree of internalization of international human rights norms?
The campaign clearly cultivated an increased awareness of international law
by policymakers. As one staffer who came into our interview with a copy of
a Congressional Research Service report brie¬ng policymakers on the Con-
vention Against Torture noted, international human rights law had become
an issue of extensive debate among legislators and their staffs, whereas
before it was rarely considered.85 Sitting in the Russell Senate building cafe-
teria, another staffer painted a more vivid picture, “If you asked people in
this building what the Convention Against Torture was before, maybe ¬ve
people would know and they would all be staffers.”86 At various junctures
following Abu Ghraib, American congressman, and particularly their staffs,
had occasion to actually read, learn about, and contemplate provisions of
the Geneva Conventions and the Convention Against Torture. As a result
of the process, they were introduced to an alternate legal framework (for
many, almost for the ¬rst time, even though they were lawyers) as well as to
American obligations under that framework. The introduction constituted a
necessary (though certainly not suf¬cient) step toward taking international
legal obligations out of the exclusive purview of State Department of¬cials
and a foreign policy and diplomacy designation into the realm of domestic
Despite their universal agreement on the existence of an increased aware-
ness of international human rights norms and instruments among legislators,
most campaign participants interviewed in 2006 did not consider themselves
to be in the midst of a new American engagement, consciousness, or com-
mitment to human rights. They pointed to the strategic motivations behind
the limited policy changes adopted as well as the past and present resistance
of administration of¬cials and their congressional allies to human rights“
consistent policies and practices. From their vantage point, any attention to
international norms was transitory and instrumental. Only one participant,
a congressional staffer, hinted at a more profound change by observing

85 See congressional staffer, supra note 20.
86 See congressional staffer, supra note 18.

that it was no longer taken for granted that Americans lead and do not
follow on international law. It is the convergence of the two outlooks (of
continuity and change) that best describes the moment being captured in the
interviews. American policy remained far from strict compliance with inter-
national human rights norms; however, modest but signi¬cant gains had
been made in shrinking the divide between American identity and interest
constructions and international norms. The con¬dence and consensus in the
idea that international human rights norms were irrelevant to the American
experience had been shaken, but the entrenched notion was still far from
displaced in the American imagination.
It was the campaign™s ability to lay a foundation for an altered American
engagement with human rights propelled by a new international awareness
and lexicon that constitutes its greatest achievement. Although concrete evi-
dence of gains in the direction of a more rooted human rights consciousness
seemed elusive at the conclusion of the initiatives pro¬led here, it would
materialize later through the changed discourse employed in the debates on
the MCA and political dynamics following the 2006 congressional elections
in which the Democrats took over the U.S. Congress. In the days leading
up to the passage of the MCA, the American media provided unprece-
dented coverage to the issues of torture, detainee treatment, and the United
States™ international legal obligations. What was striking within much of
the coverage was the centrality and legitimacy accorded to the Geneva Con-
ventions and international human rights norms. The Geneva Conventions
increasingly were presented and invoked in a self-standing manner. Although
nationalistic and militaristic frames and discourses were not absent; in many
instances, they were relegated to the debates™ peripheries or, at the very least,
they no longer seemed to be human rights advocates™ only viable point of
entry into mainstream discussions of detainee rights issues.
Following the November 2006 congressional elections, debates surround-
ing human rights within the “War on Terror” mantra continued to evolve
toward legitimation of international norms, although corresponding legisla-
tive action was yet to materialize in the New Congress preoccupied with
challenging the Iraq War and unveiling Bush administration scandals that
held promise of more domestic traction than Muslim and Arab detainees™
rights. Nonetheless, Democrats increasingly found themselves in an envi-
ronment in which it was relatively safe to invoke human rights and interna-
tional norms more freely and expansively. For instance, in one speech, the
new chairman of the Senate Judiciary Committee, Patrick Leahy, ventured
to link Guantanamo and Abu Ghraib with the Bush administration™s with-
drawal from the Rome Statute of the International Criminal Court and went
on to criticize not only the U.S. president™s decision to not sign on to a perti-
nent UN treaty prohibiting governments from holding individuals in secret
detentions but also the administration™s refusal to join an accord banning

the use of child soldiers.87 During the summer of 2008, the House Judiciary
Committee held a ¬ve-part series of Hearings called “From the Department
of Justice to Guantanamo Bay: Administration Lawyers and Administration
Interrogations Rules.” Challenges to the Justice department™s interpretation
of international legal obligations were posed throughout the hearings and
were particularly prominent in the questioning of leading torture memo
author John Yoo.
Given such developments, the biggest achievements of the Gonzales con-
¬rmation and McCain amendment initiatives were not to be found in their
immediate results; rather, they have been and will continue to be seen in how
they set the stage for ensuing human rights struggles in the United States.
By 2008, some advocates were more willing to entertain the notion that
they were in the midst of a promising transformation. For example, Wendy
Patten of the Open Society Institute accepted that human rights advocates
were witnessing some overall change in attitudes toward international law
in the United States Congress but was quick to note that conservatives hos-
tile to American adherence to the international regime remained a vocal

A New Human Rights Infrastructure
Emerging from of the early formation of the American human rights
campaign introduced in this chapter and circumstances both related and
coincidental to September 11th were a number of small, but signi¬cant,
building blocks for an American human rights infrastructure. Namely,
American NGOs made important strides toward embracing and promot-
ing the international human rights regime internally. Some of the most
prominent U.S.-based INGOs shifted their focus and resources to American
human rights practices in unprecedented ways. Although in many instances,
the dominant focus started out centered around post“September 11th vio-
lations, as time progressed, there were promising signs that these groups
are not only expanding but also broadening their focus on domestic human
rights violations. Human Rights Watch in particular began positioning its
United States program as one of its primary divisions and its U.S. advocacy
encompassed investigations into harassment of homosexual teens, prisoners™
abuse, women™s rights, and labor rights. Although the seeds for the program
were sown prior to September 11th, the era™s developments helped place
the leading INGO™s U.S. program front and center in the organization™s
agenda. Global Rights, which has largely not taken on post“September 11th

87 Senator Patrick Leahy, Address at the Samuel Dash Conference on Human Rights: Constitu-

tional Checks and Balances in the Post-9/11 Era: Revitalizing Congress™s Role, Georgetown
University Law Center (Feb. 5, 2007).
88 Interview with Wendy Patten, senior policy analyst, Open Society Institute, in Washington,

DC (Jul. 25, 2008).

torture and detainee rights issues, has also developed a substantial U.S.
human rights project focusing on racism, poverty, and domestic workers
among other issues.
Equally signi¬cant are initial steps toward recognizing and contending
with the culturally rooted dimensions of American human rights violations.
Mirroring the cultural approach a Middle Eastern NGO might take by
engaging local television programmers regarding the human rights implica-
tions of gender-based stereotypes, roles, and violence depicted in television
shows. Human Rights First undertook a major initiative to counter portray-
als of torture as an acceptable and effective device by heroes foiling terrorist
plots in popular television dramas, a portrayal that the organization claims
U.S. soldiers have emulated on more than one occasion. The campaign has
encompassed meetings with TV executives and soldiers “ both mediated by
the organizations™ cadre of high-ranking retired military allies. The initiative
is promising in that it provides further evidence that American INGOs have
committed to approaching American human rights violations in a rooted and
multifaceted way and that (whether consciously or unconsciously) they are
countering the misguided delineations of the cultural relativism/universalism
dichotomy of the East/West human rights geography.
At the same time, the post“September 11th era has also been marked by
domestic “civil rights” groups gradually revisiting the international human
rights framework and viewing the regime as a viable resource. Perhaps the
most striking example of this is to be found in the American Civil Liberties
Union™s treatment of international human rights in the post“September 11th
era. The ACLU had looked into incorporating the human rights framework
into its work at various periods throughout its history, but the idea had
never materialized in a signi¬cant way. As a result, prior to September 11th,
the leading American advocacy organization had no in-house human rights
experts. Anthony Romero, who had become the organization™s executive
director one week before September 11th, had joined the ACLU with an
interest in some day making human rights more of a priority at the orga-
nization. Soon after September 11th, the ACLU developed an International
Human Rights Working Group within its “Free and Safe” initiative, and, in
2004, the ACLU launched its Human Rights Program with a staff of three:
two attorneys and a legal assistant.
According to the program™s director in 2008, Jamil Dakwar, applying
international human rights norms and enforcement mechanisms to American
action, was the program™s primary objective: “We only take up human
rights issues focusing on the United States. We will only engage if the U.S.
is going to be on the spot,” he explained.89 Four major initiatives formed

89 Telephone interview with Jamil Dakwar, director, ACLU Human Rights Program (Jul. 10,

the core of the project™s efforts: (1) national security; (2) women™s rights,
namely, traf¬cking, domestic violence, and detention of girls; (3) immigrant
rights such as employer abuses of migrant workers; and (4) racial inequality,
encompassing a heavy emphasis on the death penalty and justice system
The advocacy methods the program adopted included some of the litiga-
tion the ACLU is best known for. It pursued lawsuits against George Tenet
and other CIA of¬cials for extraordinary renditions and (along with Human
Rights First) Donald Rumsfeld for “War on Terror” torture and abuse poli-
cies. The program also took cases in which the United States Supreme Court
ruled unfavorably to the Inter-American Court of Human Rights, includ-
ing one regarding domestic violence victims™ right to have restraining orders
enforced.90 Despite these efforts, the crux of the ACLU Human Rights initia-
tive lay beyond litigation. The program began appearing before international
human rights treaty bodies; educating other domestic advocacy groups, its
constituents, and the public about the relevance and uses of the international
framework; facilitating fact-¬nding visits by UN human rights rapporteurs
to the United States; advocating U.S. rati¬cation of additional international
human rights instruments such as the Convention on the Elimination of All
Forms of Discrimination against Women; and, increasingly, undertaking the
type of documentation of abuses and issuance of reports typical of human
rights NGOs.
Speci¬c initiatives of the ACLU human rights program shed further light
on the shape and scope of the leading domestic advocacy group™s entry into
the international human rights fray. Although the United States is one of two
countries that has not rati¬ed the United Nations Convention on the Rights
of the Child, in 2002 it became party to the Optional Protocol to the Con-
vention on the Rights of the Child on the Involvement of Children in Armed
Con¬‚ict. According to Dakwar, the United States “most likely joined so they
could press countries like the Congo on their use of child soldiers.”91 Regard-
less of its motives in doing so, joining the protocol meant the United States
was obligated to appear before the Committee on the Rights of the Child and
report on its implementation of the Optional Protocol. The ACLU decided
to make full use of the United States™ 2008 appearance. In their shadow
report to the committee, they presented an investigation and full report on
abusive tactics used by the Pentagon in recruiting underage soldiers in the
United States. They also took advantage of the American appearance to
argue that there was a real need for the United States to ratify the Conven-
tion on the Rights of the Child. In making their case, they highlighted three
areas in which they contended that children™s rights were being violated in

90 Castle Rock v. Gonzales, 545 U.S. 748 (2005).
91 See Jamil Dakwar, supra note 89.

the United States: (1) the sentencing of juveniles to life without parole, (2)
the allowance of high levels of incarceration of juveniles, and (3) the linkages
between the failure of the U.S. education system and juvenile incarceration.
Finally they also pressed the United States on post“September 11th deten-
tions of minors beyond American borders, and as a result the United States
government revealed that there had been 2,500 minors in U.S. custody after
When I asked Dakwar about the ACLU Human Rights Program™s biggest
accomplishments, he stated that he generally did not speak in terms of “com-
plete victories” but gave another intriguing example of how the program™s
efforts where making inroads. In 2006, the program learned of racial pro-
¬ling taking place along the U.S./Mexico border by a local sheriff who did
not have the authority for such action. The incident arose around the same
time that the ACLU was preparing its shadow report to the UN Human
Rights Committee charged with assessing the compliance of states party to
the International Covenant on Civil and Political Rights. The ACLU Human
Rights Program decided to include the El Paso border incident in the shadow
report it was preparing. To further raise awareness, the report was launched
publicly in El Paso. Soon thereafter, a local newspaper headline read “El
Paso Sheriff Taken to United Nations.” In Geneva a Human Rights Com-
mittee member questioned the American representative on the incident and
the issue was incorporated into the Committee™s recommendations to the
United States government. The report reached a Texas senate committee
hearing and the El Paso Sheriff eventually agreed to suspend the practice.93
Although the ACLU Human Rights Program presents perhaps the most
dramatic example of American rights-based and social justice groups engag-
ing with the international human rights framework, according to Wendy
Patten of the Open Society Institute, as the era progressed many other
domestic advocacy groups also began displaying a greater openness to inte-
grating the international human rights framework into their work and it
became more and more common to see such groups identify themselves as
both civil and human rights organizations.94 Facilitating American social
justice groups™ movement toward international human rights was the inau-
guration of several domestic human rights networks devoted exclusively
to the advancement of the human rights regime within the United States.
One example was the Bringing Human Rights Home Initiative run out of
Columbia Law School that in 2007 consisted of a network of 80 lawyers
attempting to promote and develop tools for the increased use of interna-
tional human rights norms in domestic legal processes. A larger effort was to

92 See Jamil Dakwar, supra note 89.
93 See Jamil Dakwar, supra note 89.
94 See Wendy Patten, supra note 88.

be found in the US Human Rights Network, composed of over 200 NGOs,
grassroots organizations, and institutes invested in social justice or rights-
based agendas ranging from countering sexual violence to upholding edu-
cation rights.
Although the US Human Rights Network was also formed in the post“
September 11th era, the coalition™s relationship to the era is complex. Much
of the impetus for the effort had little to do with September 11th and was
merely the progression of domestic social justice movement™s attempts to
¬nd new avenues for pushing forth their agendas beyond the domestic civil
rights litigation framework, which they found to be yielding fewer and
fewer tangible results. However, the coalition™s creation was not entirely
divorced from post“September 11th events either. It drew support from
rights groups concerned about the domestic impact of post“September 11th
policies (namely, in the immigrant rights and racial pro¬ling ¬elds) and
perhaps more signi¬cantly it drew momentum from the renewed political
and public interest in human rights stemming from “War on Terror” rights
debates. Post“September 11th era abuses became an important device for
shining the spotlight on domestic rights conditions. For example, in June
2008, the US Human Rights Network introduced an initiative to highlight
torture and cruel, inhumane, and degrading treatment within the United
States. The project was titled “Beyond Abu Ghraib and Gitmo: Stop Tor-
ture in the US” and promotional materials for the campaign put forth the
statement “torture does not begin or end outside US borders.”95
The US Human Rights network™s stated mandate was to “support col-
laborative efforts by human rights groups, develop and disseminate tangible
models for the practical application of the human rights framework domesti-
cally, and promote capacity building and information sharing among mem-
ber organizations.”96 Prominently featured on the Network™s Web site in
2007 was the question, “Why a US Human Rights Network?” to which the
response read as follows:

Underlying all human rights work in the United States is a commitment to challenge
the belief that the United States is inherently superior to other countries of the world,
and that neither the US government nor the US rights movements have anything to
gain from the domestic application of human rights. Network members believe that
the US government should no longer be allowed to shield itself from accountability
to human rights norms and the US civil, women™s, worker, immigrant, LGBTQ,
prisoner and other rights movements that stand to bene¬t, perhaps now more than
ever, from an end to US impunity in this regard.97

95 BYOaudio, promotional video, http://www.byoaudio.com/playv/WbQ6tk0s (last visited
Jul. 27, 2008).
96 US Human Rights Network, Web site, http://www.ushrnetwork.org/ (last visited May 1,

97 Id.

The statement reveals an explicit commitment to challenging American
exceptionalism and adherences to East/West dichotomies, and at the same
time presents a noticeable contrast with the essential identity“invoking strat-
egy adopted by the antitorture campaign and the INGOs involved with it.
Through such coalitions, American NGOs forged an unprecedented effort
to prepare NGO shadow reports to be presented at the United States™ appear-
ance before the United Nations™ Human Rights Committee and Commit-
tee Against Torture bodies charged with the task of evaluating state par-
ties™ compliance with corresponding treaty obligations. As Eric Tars of the
National Law Center for Poverty and Homelessness (a member of the US
Human Rights Network) explained, larger NGOs accustomed to maneu-
vering within the international regime connected with the grassroots groups
who were grappling with issues such as prisoners™ rights, economic rights,
immigrants™ rights, and so on, on the ground but were not necessarily famil-
iar with the international framework. The central organizers of the shadow
report process were Global Rights, the US Human Rights Network, the
ACLU, Penal Reform International, the American University Washington
College of Law Center for Human Rights and Humanitarian Law, and the
Bringing Human Rights Home Network. Through e-mails and conference
calls, they assembled a group of 142 organizations that would participate in
the process. In May 2006, a delegation of twenty advocates attended the
Committee Against Torture proceedings, and the following July a delega-
tion of sixty advocates attended the Human Rights Committee proceedings,
which Tars pointed out “was certainly a greater interest than had ever been
expressed from the United States.”98
Although the groups with domestic human rights agendas clearly had to
share the spotlight with INGO partners focusing on American policies per-
mitting torture and curtailing due process rights in the proclaimed American
“War on Terror” (and it was these highly charged issues that attracted the
greatest interest in the proceedings, even among members of the UN com-
mittee), according to Tars, the domestic groups were able to generate more
interest, attention, and coverage of their issues than they had anticipated.
More importantly, the process brought a number of small, local, grassroots
groups into “the human rights tent.”99 Jamil Dakwar of the ACLU Human
Rights Program also spoke of subtle changes in the American government™s
disposition as civil society groups continued engaging the international pro-
cesses. According to Dakwar, the United States representatives conceded
more in the Convention on the Elimination of all Forms of Racial Discrimi-
nation (CERD) proceedings held in 2008 than they had in the earlier CAT

98 Telephone interview with Eric Tars, human rights attorney, National Law Center on Home-

lessness and Poverty, in Washington DC (Feb. 15, 2007).
99 Id.

proceedings. “The U.S. was more straightforward in acknowledging fail-
ures. They admitted that all migrants should have human rights. It may be
a statement with no follow-up, but that is what you start with.”100
Another major hurdle domestic activists traditionally faced was that the
State Department was the only U.S. governmental body engaging with the
international framework, and their efforts took place in a virtual vacuum.
In other words, except for limited contact to gather information to compile
in US reports for UN bodies, the State Department took few steps by way of
coordinating or communicating with other agencies within the government
regarding how the international rights regime and strategies for its domestic
implementation. Following the two initial UN proceedings, the coalition
was able to secure an unprecedented meeting:

We asked them to bring together all the different agencies who had participated in
giving the information into the US report and we could have an initial conversation
and, more importantly, get introduced to the people in each of those agencies, who
would at least not look at us like we were totally crazy when we were telling them that
they have human rights obligations under these treaties. It was just really getting the
contacts that was the most important part. We had a short two-hour conversation.
We brought up issues that were sort of highlighting the concluding observations that
we found particularly relevant and try to ¬gure out who would be the best people to
talk to, to work further. Now we are working on individual meetings with individual
agencies. Criminal justice and police brutality oriented groups are meeting with the
Civil Rights division of the Department of Justice. The committee recommended the
federal government put out federal guidelines on the use of tasers, which is now
completely up to the state or even locally based police of¬cers. They recommend
the use of the UN minimum standards for prisons . . . in many ways its things that
the federal government wouldn™t even object to doing. It™s just a matter of actually
pushing them to do it and to perceive it as a need and as a problem. This process
can really be useful in that aspect because it gives a little bit more legitimacy to the
claims of the activists and gives us an opportunity to bring it up and push it at the
federal level.101

For many of the government bureaucrats involved the meeting was a learning
process. As Tars recounts, one of the activists from New Orleans working
on Hurricane Katrina“related issues was pushing for Federal Emergency
Management Agency (FEMA) to recognize and follow the UN Guiding
Principles on Internal Displacement. Having the principles institutionalized
would address an array of pertinent subissues. The FEMA representative
attending the meeting sat and listened. Then, the activist asked her directly,
“are you aware of the UN Guiding Principles” and she said “no.”102 She
did, however, also express interest in looking at it, now that she had become
aware of the international instrument.
100 See Jamil Dakwar, supra note 89.
101 See Eric Tars, supra note 98.
102 Id.

The situation is illustrative of the lack of any government infrastruc-
ture for disseminating or informing government agencies of international
obligation or resources. Such meetings have the potential to provide advo-
cates with avenues to counter the existing structure. As Tars pointed out, the
group was pushing the State Department out of their comfort zone of merely
going through the formalistic motions of reporting to UN bodies. Although
much of the meeting focused on domestic issues apart from the torture and
detainee treatment contests, it can be indirectly linked to September 11th.
Undoubtedly, at some level it materialized as a strategic concession born out
of the need to quell the extensive shaming and criticism of US human rights
commitments in the post“September 11th era.
Another small but potentially promising inroad toward American human
rights institutionalization emerged from the creation of a new Senate Judi-
ciary Subcommittee on Human Rights and the Law. In 2006, with little
fanfare and almost as an afterthought in the end of a speech almost exclu-
sively dedicated to Bush administration rights infringements in the post“
September 11th era, Patrick Leahy, the soon-to-be chairman of the Senate
Judiciary Committee, announced his intention to create a Human Rights
Subcommittee. Neither Leahy nor Dick Durbin, the Illinois senator whom
Leahy has appointed to chair the body, described it as a forum to take up
US human rights violations. Durbin, however, exhibited an inclination to
at least incorporate some scrutiny of US violations by indicating that, in
addition to hearings on the situation of child soldiers in Africa or genocide
in Darfur, the subcommittee was considering hearings on the United States™
frequent post“September 11th resort to the practice of “extraordinary rendi-
tions” “ the US policy of sending detainees to countries known to have little
qualms with torture for interrogations. On September 21, 2007, as chairman
of the Subcommittee on Human Rights and the Law, Dick Durbin also held
a Capitol Hill brie¬ng on torture and “enhanced interrogation techniques,”
considering a joint report by Human Rights First and Physicians for Human
Rights entitled “Leave No Marks: Enhanced Interrogation Techniques and
the Risk of Criminality.”
This limited and tentative opening for considering American human rights
violations committed abroad seemingly holds little promise for expanding
the reach of international human rights norms inside American borders, at
least in the foreseeable future. When I asked Durbin why he thought the
international human rights framework was not being applied to domes-
tic social justice and rights issues, such as American prison conditions, he
seemed confused by the question. Assuming that I was asking simply about
why prisoners™ rights were not considered more seriously in America, he
offered his “trashcan theory” “ that people want to put what they con-
sider society™s trash on the curb and not worry about it. I clari¬ed that I
was not so much interested in American attitudes toward prisoners but the
prospects of applying the international framework domestically. Grasping

the question, the senator shook his head, “No, we should, but we are still far
from that.”103 In a similar vein, Leahy revealed that many of his colleagues
questioned him about the need to create a human rights subcommittee in
the Judiciary Committee (which because of international law™s traditional
marginalization is viewed as purely a domestic institution) instead of the
Foreign Relations Committee where they thought it would be more appro-
priately placed. Thus, the subcommittee™s establishment at once captures the
rootedness and persistence of American exceptionalism and power vis-a-vis
international human rights norms and presents new possibilities for tran-
scending the same. After all, the United States Senate does now have a new
Human Rights and the Law Subcommittee on one of the most in¬‚uential
“domestic” committees within the powerful institution.
There are also a few isolated signs of the institutionalization of human
rights within the American media. For example, in fall 2007 The Washington
Post created and began regularly featuring on its Web site a blog called
“Rights Watchers” led by Keneth Roth and Reed Brody of Human Rights
Watch. The blog posed a variety of international human rights questions,
many of which revolved around American human rights practices “ primarily
“War on Terror” related but occasionally also inwardly focused. Topics
have included, “should administration of¬cials be prosecuted for torture,”
“are US contractors getting away with murder [in Iraq],” and “US sex
offender laws may do more harm than good.” A July 28, 2008, post about
an International Court of Justice ruling on a Texas capital punishment case
was titled “Death Row Dilemma: Is It OK for American States to Ignore
International Law?” Interestingly, many of the reader comments to the post
make direct references to the American treatment of international law in the
post“September 11th era.
Finally, there is a sense of newfound relevance and engagement with
international law in American courts and law schools alike. Many of the
prominent detainee rights and torture cases that made their way through
American courts fused questions of constitutional and international human
rights or humanitarian law. American judges and lawyers had to consider
questions of executive and commander-in-chief power of the president under
the Constitution alongside US treaty obligations under the Geneva Conven-
tions and the Convention Against Torture. The questions presented forced
constitutional and international lawyers into unprecedented dialog and col-
laborations with each other. Consequently, international law that was pre-
viously viewed as a separate legal ¬eld with limited relevance to core legal
issues in the United States increasingly found its place in the center of
American legal contests and institutions. As Wendy Patten pointed out,
American law schools that had previously treated international law and

103 Interview
with Dick Durbin, Chairman, Senate Judiciary Committee Subcommittee on
Human Rights and the Law, in Washington, DC (Feb. 27, 2007).

human rights as a boutique, elective, or specialty ¬eld of study followed
suit.104 In 2006, Harvard Law School introduced a reform of the required
¬rst-year curriculum for its students; one of three new courses of study
adopted was international and comparative law.105
Each of these areas of American human rights infrastructure development
hold signi¬cant long-term promise provided they endure and continue to
evolve. Perhaps the most important among them has been the new inward
focus of American human rights NGOs. As Julie Mertus has noted,

The impact of the Bush administration on human rights at home has been devastating,
but it has served as a wake-up call to many US-based human rights advocates who
have previously paid little attention to the abuses at their doorstep. From the largest
and most mainstream organizations to the smallest and most radical, human rights
organizations are ¬nally moving at least some of their activities closer to home.
The US human rights and civil rights movements may have emerged on separate
paths, but now they are forging new linkages with one another, and with broader
international movements.106

Alongside this assessment of the campaign™s achievements, including the
signi¬cant strides taken by the campaign toward overcoming the East/West
geography of human rights and the power dynamics inscribed within it, a
number of critiques also emerge.


In large part, the strategies pursued by the torture campaign accomplished
the improbable feat of compelling consequential change within a domestic
environment imbued with nationalist sentiment and militarism as foremost
analogy for America™s global preeminence. Yet despite their various suc-
cesses on the domestic front, the road traveled also held wider implications “
both promising and troubling. Although constructivism recognizes the mobi-
lization of domestic norms and discourses as empirically pivotal to human
rights campaigns, the literature has to date not ventured into substantial nor-
mative analysis of the frames deployed and their larger implications, beyond
speci¬c and immediate human rights objectives. In other words, because it
has a tendency to assume the domestic arguments, coalitions, and frames
used to further human rights agendas are either normatively neutral or nor-
matively consistent with human rights paradigms (i.e., not power laden) as
long as they espouse a pro“human rights end, constructivism offers little
direction for more critically assessing or weighing the strategies pursued.
104 See Wendy Patten, supra note 88.
105 Harvard Law School, Harvard Law School Faculty Unanimously Approves First Year Curri-
cular Reform, Oct. 6, 2006, http://www.law.harvard.edu/news/2006/10/06_curriculum.php.
106 Julie Mertus, Human Rights and Civil Society in a New Age of American Exceptionalism,

in Human Rights in the “War on Terror” (Richard A. Wilson ed., 2005).

Framing and shaming strategies adopted are thus rarely dissected to bet-
ter understand their effects on global hierarchies. For this reason, I turn
to insights from critical human rights theory in laying out two intertwined
My aim is to approach evaluating the impact of campaign strategies from
another angle “ one that transcends the here and now. Where appropriate,
I also hope to highlight instances of activists™ own internalization of the
human rights hierarchies challenged in this book. At the same time, I am
acutely aware of the innumerable dilemmas, limited choices, and invariable
trade-offs with which the campaign was forced to contend. Thus, I attempt
to ground and qualify the critique with context and countervailing con-
siderations as much as possible. I ¬nd it most ¬tting to direct the critical
assessment toward American human rights NGOs and, to a lesser degree,
the media. This is because it is assumed that they have more vested in pro-
moting human rights as an emancipatory enterprise and, as a result, bear
a particular responsibility for considering the longer-term and global con-
sequences of their strategies. If they are persuaded, it is up to them to lead
campaign partners in adopting a revised approach.
Finally, themes closely related to the two critiques presented here are
further developed in chapter 5, which focuses on the post“September 11th
era™s lessons for advancing the human rights project. The discussion at
hand formulates the critiques most directly stemming from the initiatives
presented in this chapter. Its intent is to introduce examples of key dilemmas
and tensions brought out during the post“September 11th era to allow the
reader to keep the themes in mind as they work their way to the ¬nal chapter
where they are taken up more broadly.

“This Is about Us, Not about Them,” Revisited
The “this is about us, not about them” message of the campaign was not
only a frame it could also be considered a rather precise depiction of much of
the American debate surrounding torture and detainee rights issues. Those
engaged posed questions of how the pictures and policies behind them re¬‚ect
on American values, their potential for endangering American POWs in
the future, how they compromised American interests by fostering further
anti-American sentiment, and whether torture is an effective interrogation
method. In other words, the concerns raised were limited to the conse-
quences of the administration™s policies for Americans and their interests,
perpetuating orientalist and dehumanizing portrayals of the Arab or Muslim
victims of American human rights violations.
Particularly, when invoked by congressional leaders, the Orientalism
implicit in “it™s about us, not about them” and similar formulations such as
“we have become them” were dif¬cult to miss. As it was constructed, the
argument maintained that rights are to be upheld not because detainees are
entitled to inherent rights and respect of their dignity but because Americans

lay claim to a superior tradition and must not be led astray from it. In
other words, many of the voices challenging Bush administration policies
appeared to be more preoccupied with the betrayal of Western values than
the injustices suffered by detainees. Other tropes designated average Amer-
ican soldiers as the primary victims of the injustice stemming from Bush
administration policies. Ultimately an American soldier like Ian Fishback
proved to be a more compelling victim than a nameless Iraqi or Afghan who
may have been wrongfully detained or subjected to torture and abuse. Often,
conservatives who invoked “this is about us, not about them” con¬‚ated
depictions of detainees whose innocence or guilt had yet to be determined
with “a bunch of rouge thug murderers.”107
Although the disposition of both the media and NGOs was more re¬ned,
save a few notable exceptions, they cannot be credited with taking suf¬-
cient steps toward countering the discourses that rendered “War on Terror”
detainees the faceless and dehumanized Other. It should be noted, however,
that as human rights discourses slowly gained in legitimacy and standing,
it became “safer” and more commonplace for advocates and the media to
re¬‚ect victims™ voices and stories. For example, a 2006 NPR report featured
the voices of several Guantanamo detainees attempting to defend themselves
at their Combatant Status Review Tribunals.108
Finally, the “this is about us, not about them” formulation and other
appeals to a distinct American identity or set of values tied up in rights
served as a double-edged sword in one more important respect. Although it
was a useful device for linking human rights norms with existing domestic
norms, by invoking it so extensively, the campaign was not entirely success-
ful in breaking free from a narrative that placed the United States above
other, particularly non-Western, states as a global “human rights leader.”
The underlying premise of the formulation was that the United States™ human
rights concerns are limited to the post“September 11th period and foreign
detainee issues. The disregard for international norm was exceptional, a mere
aberration. Having been led astray from its essential self, the country would
be able to redeem the lost identity simply by repudiating the Bush adminis-
tration™s assault. As Human Rights Watch™s Tom Malinowsky noted:

The myth that we are perfect at home is a useful myth when it comes to convincing
people to do the right thing about Guantanamo or torture in Iraq, because you can
say “well, this isn™t who we are.” Well, actually it is, but that™s not helpful.109

107 See Lindsay Graham, supra note 30. It is important to note that other actors, including a
number of Democratic members of Congress and certainly human rights NGOs, as well
as the media, voiced concern for detainees™ rights. Further, the adoption of the Orientalist
discourse can be a function of meeting political pressures from the dominant discourse or
constituents as well as personal beliefs held.
108 National Public Radio, NPR News, Tapes Provide First Glimpse of Secret Gitmo Panel,

Nov. 21, 2006, http://www.npr.org/templates/story/story.php?storyId=6514923.
109 See Tom Malinowsky, supra note 4.

In the last sentence, Malinowsky reference was to the occurrence of abuse
in American prisons similar to that which occurred in Abu Ghraib, pointing
to an important domestic trapping of the message beyond its international
implications “ by invoking the frame, advocates tend to foreclose avenues
through which they could promote the use of the international regime in
approaching domestic rights issues, such as conditions of rape and abuse
and even cases of torture in domestic prisons. In several interviews, activists,
including those representing Human Rights First and Human Rights Watch,
indicated that they did not see many openings for using “War on Ter-
ror” abuses occurring abroad as back-door routes for approaching human
rights violations taking place within the United States. Eric Tars echoed the
sentiment in response to a question on the impact of September 11th devel-
opments on the efforts of the US Human Rights Network with which he
was involved:
The language of human rights was actually being used more, talking about torture,
the Geneva Conventions, talking about the Convention Against Torture. . . . That
kind of stuff is actually helpful. The fact that the Geneva Conventions were being
mentioned on a regular basis and legislation was being put forward the terms of
the treaty. That conversation was useful and I think it has helped the movement. It
helped people start to realize that human rights are applicable to the United States,
but at the same time, much of the focus has been on abuses abroad and Abu Ghraib,
Guantanamo, and there™s still certainly not any type of public consensus that the
same type of standards that we™re trying to apply to Guantanamo or Abu Ghraib,
should be applied in domestic prisons. I think there is a general assumption that
American prisoners are treated more humanely and if they aren™t it™s a domestic
policy problem and the international standards wouldn™t necessarily have anything
to do with it. But that™s kind of the leap we are trying to make and we™ve been
trying to make. So it™s a moving target. It™s something we™re working on, but we™re
de¬nitely not there yet.110

The “this is about us, not about them” formulation presents a major obstacle
for the realization of precisely the leap Tars, his colleagues, and even the
INGO advocates invoking the frame aspire to make.
All of these concerns of course stand against the reality that invoking
a sense of pride in a dominant identity or promising a return to a lost
essential identity are among the few effective avenues available to activists
for bringing human rights discourses into settings where opposing norms
pervade social and political consciousness. For example, it is common for
Middle Eastern human rights or women™s rights activists to call for a return
to principles of justice and human dignity as the essence of Islam, to contest
conservative visions of Islam or Islamic values, or assert that human rights
principles are rooted in Islam as a means of furthering their rights objectives.
As I will take up in chapter 4, there are always risks and trappings to
such strategies; yet those who adopt it often do so because they see few
110 See Eric Tars, supra note 98.

alternatives. Whether the same argument can be made in the present case is
debatable. It is dif¬cult to say with any degree of certainty that the campaign
would have been able to penetrate American consciousness to the degree that
it did had “it™s not about them, it™s about us” not been so strongly asserted.
I will defer the dif¬cult task of balancing these opposing factors until it is
more broadly reexamined in chapter 5.

The Trappings of Entwining Human Rights and Military Agendas
A subsequent critique involves revisiting the campaign™s close alliance with
high-ranking retired military of¬cials. It is common for human rights
activists to invite sympathetic or reform-minded members of governments,
political parties, social groups, or religious, civil, or state institutions respon-
sible for rights violations to advocate a human rights position to their
respective groups on behalf of human rights forces. Again, this strategy
is frequently pursued by Islamic feminists and other women™s rights activists
in Muslim societies, who enlist the voices and authority of male clerics
espousing moderate or modernist interpretations of Islamic jurisprudence
to advocate positions that can advance their women™s rights agendas. Their
reasons for seeking out such interventions are clear. First, the intermediaries
approach those committing violations from a considerably greater position
of power relative to the rights activists and, second, those with the power
to decide whether human rights norms will be upheld are more likely to be
persuaded by someone they consider an insider or authoritative leader with
shared ideological commitments or aims. In particular, persuading authori-
tative voices from within military, security, or law enforcement apparatus to
endorse human rights practices or positions has been a key objective of innu-
merable human rights campaigns worldwide because of these institutions™
enormous power and propensities to carry out rights abuses. Viewed within
these parameters, the American Campaign™s turn to high-ranking military
leaders willing to publicly advocate a human rights position seems unex-
ceptional, much less objectionable. What better way to move international
law from the realm of the “weak” to a position of strength than to have the
force of military voices widely accorded legitimacy within prevailing identity
politics behind it? Finally, after the McCain and Gonzales initiatives, mili-
tary allies have proved to be invaluable partners for human rights advocates
continued efforts, more so than most of the congressional leaders who took
part in the ¬rst two initiatives. Human Rights First has enlisted the active
participation of their military network in meetings with television producers
responsible for glorifying depictions of torture, in producing antitorture
training and awareness materials for soldiers, and in initiating dialogs with
2008 presidential candidates on American torture and detainee treatment
policies. Moreover, when Barack Obama signed his executive orders to have
the Guantanamo Bay detention facility shut down and to reverse much of

the Bush administration™s torture and detainee treatment policies, it was this
group of retired military of¬cials who stood in the background behind him
and later advocated the new policies in the media.
Viewed from yet another angle, the generals™ act can also be tagged
as confronting power. Large numbers of military of¬cials (particularly JAG
lawyers) advocating the implementation of Geneva Conventions protections
and denouncing gradual introduction of torture and cruel and inhumane
treatment into military protocol had been repeatedly overruled, marginal-
ized, and silenced by the Bush administration. Thus, this group of military
leaders™ highly unlikely and unanticipated de¬ance of the Bush administra-
tion could be interpreted as an act of agency “ a challenge to precisely the
type of action devoid of agency demanded by the civilian leaders who send
them to war and ascribed to them by society once they put on military
uniforms. The generals were, after all, traversing a considerable terrain in
advocating a human rights position within a dominant culture that con-
structed them in starkly contrasting terms. Further, ¬gures such as Rear
Admiral John Hutson, whose congressional testimony is presented in Chap-
ter 1, were at times highly effective in making the legal and rights-based case
for upholding humane standards of detainee treatment.
Despite all of these layers of context, the human rights/military associa-
tion of the Gonzales con¬rmation and McCain amendment battles warrants
further scrutiny because of the existence of one more key layer of context.
The alliance took shape in an era colored by a strong nexus between the
domestic hegemony of militarism within American culture, American global
military dominance, and profound human suffering resulting from American
misadventures with war. Human rights groups sought to challenge speci¬c
policies (in part) borne out of this nexus; yet, by invoking the very symbols,
metaphors, and institutions of American power and preeminence, they also
risked perpetuating it.
Threading together references to the alliance from several ¬eld interviews
provides a glimpse into the dynamics at play. In explaining why the inter-
ventions from the former generals were so persuasive, one congressional
staffer informed me, “These are not bleeding heart liberals. These are, by
and large, Republican, hawkish, military-mindsets and they are out there
saying we™ve got to have this. That™s persuasive to a lot of people.”111 Avi
Cover™s description of how the collaboration came to fruition was similarly

So, we, for a long time, were cultivating these individuals and it really began with
¬nding one, just one, and through his network of contacts, we gain some credibility
and they can vouch for us and say, “this isn™t some crazy fringe group. If you put
your name together with them you™re not going to be losing your credibility in the

111 See congressional staffer, supra note 18.

military.” It™s a very interesting dance because a lot of these military guys, they work
now . . . in the private military industrial complex, so they can™t be perceived as some
wacko lefty or it would impair their current livelihood.112

It is also worth noting that Cover was re¬‚ective but not particularly troubled
when pointing out that even though his organization arranged for the for-
mer military of¬cials™ various letters, Human Rights First™s name remained
largely absent from publicized versions. Finally, Tom Malinowsky™s asser-
tion that “particularly with people with a military background, what worked
was appealing to their identity, what made them proud of what they were
doing” was also revealing.113
There are no doubt consequences of U.S.-based human rights INGOs
inviting military “hawks” to serve as the public face of their initiatives or
permitting the antitorture position to be presented as a matter of military
strategy and pride rather than as a human rights imperative (as the absence
of Human Rights First™s name on the military letters drafted tends to do). It
is dif¬cult to invoke pride in what the American military does to persuade
leaders to reject torture without also further solidifying or promoting the
celebration of militarism constantly infused into American culture and con-
sciousness by political elites, the media, movies, sports events, and so on.114
Thus, another face of the human rights partnership with the cadre of retired
military leaders is one of NGOs not only failing to challenge but also playing
a role in furthering domestic constructions and culture legitimating, privi-
leging, or promoting American militarism, albeit in forms compliant with
particular provisions of human rights and humanitarian law. Meaning is fre-
quently constituted by symbolism. Aligning with and invoking the status of
individuals so closely linked with an institution so synonymous with projec-
tions of American power and preeminence at some level conveys at best a fail-
ure to challenge and at worst an unspoken acceptance of both the hegemony
of militarism within American culture and American military hegemony
abroad. The reliance on the military of¬cials seemed to concede that support
for war is patriotic and then goes on to clarify that it is not American wars to
112 See Avi Cover, supra note 10.
113 See Tom Malinowsky, supra note 4.
114 Ken Cunningham, Permanent War? The Domestic Hegemony of the New American Mili-

tarism, 24:6 New Pol. Sci. (Dec. 2004). As Ken Cunningham contends, militarism should
be understood in structural, material, and cultural terms: “It is a set of practices, policies
and institutions and an array of material instruments and artifacts (bombs, tanks, planes,
bases, uniforms), and it is a set of attitudes, beliefs and values (i.e. a cultural complex).” He
goes on to catalog a number of common notions that accompany militarism:

. . . uncritical patriotism, simplistic, Manichean thinking (e.g. “good” v. the “evil-doers”),
patriarchy, political “Realism,” and techno-instrumental thinking (e.g. that dif¬cult, com-
plex social/political problems can be solved by the “correct” application of technology “
“more bombs” “ and instrumental rationality “ improved “cost-bene¬t analysis,” better
“deployment of force structure,” more ef¬cient utilization of intelligence assets,” etc., etc.).

which human rights forces object; rather, it is the use of torture and denial
of due process within those wars that are problematic. A move in this direc-
tion has on occasion been even more explicitly made. For example, among
the honorees at Human Rights First™s 2007 annual awards ceremony were
the retired military leaders with whom the INGO had closely collaborated
on various torture initiatives. A media press release publicizing the awards

The retired generals and admirals, including speakers Gen. Joseph Hoar and Rear
Adm. John Hutson, were recognized for their leadership in bringing prisoner treat-
ment back into line with the Geneva Conventions and ensuring that torture is never
again a part of U.S. policy. In April 2007, they began meeting individually with pres-
idential candidates to discuss the need for policies that honor the values American
servicemembers ¬ght to protect.115

The last seven words of the statement concede and perpetuate the very con-
struction advanced by American political elites that the American military™s
overarching purpose is to further rights and freedom in the world.
Further questions arise surrounding the impact of the coalition on human
rights NGOs™ own culture, priorities, and advocacy. Only one of the cam-
paign participants interviewed revealed that she had grappled with rights
groups™ turn to “national security” discourses and symbols, and her concern
was largely borne out of discussions undertaken through her work with
a coalition of domestic grassroots groups prior to joining Human Rights
Watch. The overall absence of noticeable unease and introspection over the
potential negative effects of the considerable reliance on military of¬cials
during the campaign is signi¬cant. As I will discuss in chapter 5, American
human rights and civil rights advocates have come together and mounted
an impressive campaign to confront the Bush administration™s torture poli-
cies; yet relative to this effort, they have been more reserved in challenging
the horrors and denial of human dignity resulting from Iraqi civilians™ lived
experience of war. This is in part attributable to how human rights man-
dates have traditionally been delineated. Even so, it is fair to ask whether
military coalitions of the nature of those forged during the Gonzales and
McCain initiatives can have any impact on a human rights INGO™s ability
to highlight the human toll of American wars, for example, through the
need to establish non““crazy fringe group” credibility to sustain the rela-
tionship? Put differently, does the human rights NGO/military coalition run
the risk of moving participating human rights groups toward complacency
or acceptance of the normalization of American wars?

115 Human Rights First, HRF Honors Iranian Women™s Leader, TV™s “Criminal Minds”
and Retired Military Leaders at Annual Awards Dinner, Oct. 16, 2007, http://www

This critique does not challenge American human rights NGOs™ decision
to elicit the aid of military of¬cials categorically. If, as constructivist analysis
would af¬rm, human rights agendas are well served when advocates cooper-
ate and engage with government of¬cials who currently wield substantially
greater power in shaping both human rights policies and waging war, then
working closely with military forces should be equally appropriate. Further,
as all of the campaign members cited above make clear, bringing in military
of¬cials as intermediaries was a very effective and innovative strategy at a
time when human rights voices were largely marginalized. Thus, it is not
so much the association in and of itself but the nature and boundaries of
the relationship that presents the most pressing need for re-examination.
The critique is invariably tied up with a question regarding the degree to
which American human rights NGOs should become entangled in the spirit,
symbolism, and dominant rationales for American militarism.


In the post“September 11th era, a full-scale American human rights cam-
paign focused exclusively on American human rights practices took shape.
The mobilization and collaboration among American human rights NGOs,
the media, and select congressional leaders on a domestic human rights front
was unprecedented in recent times. Though it did not achieve its immediate
legislative and policy goals, the American human rights campaign canvassed
played a critical role in bringing human rights norms and international
law into American political consciousness and discourses. The understand-
ing of international human rights norms in the American imagination as
intended largely for others was in many ways unsettled. This evolution in
discourse and consciousness gave way to the development of a limited Amer-
ican human rights infrastructure with the potential to continue countering
American exceptionalism in the human rights ¬eld even after the dust from
Bush administration “War on Terror” human rights practices has settled.
Still, despite its formidable gains, in several key respects, the campaign con-
tinued to reinforce American power and exceptionalism vis-a-vis human
rights, demonstrating an imperative for human rights advocates to more
critically reassess key elements of the strategies they pursued.

The Middle Eastern Gaze on American
Human Rights Commitments

Five years after September 11th, vast quantities of ink and analysis had been
devoted to Western-based efforts to either uncover or challenge American
exercises of power in the Middle East. Yet the other side of the equation “
the various forms of Middle Eastern resistance to the era™s Abu Ghraibs
and Guantanamos on the one hand and deployments of human rights and
democracy rhetoric as pretext for military interventions in the region on the
other “ has largely gone unnoticed. Despite being at times entangled in local
governments™ or opposition forces™ more self-serving rebukes of American
policies, currents within Middle Eastern civil society endeavored to pose a
variety of challenges to the United States™ contradictory human rights course
in the post“September 11th era. As a result, for the ¬rst time in their recent
history, Americans were conscious of an intense returned Middle Eastern
gaze in the human rights ¬eld. Through its focus on the Middle Eastern
answer to American human rights transgressions and appropriations, this
chapter provides a glimpse into yet another dimension of the recon¬gur-
ing of global human rights™ geography that has been onging since Septem-
ber 11th “ the addition of mobilizations, challenges, and critiques directed
from the Middle East to the United States to the preexisting West to East


Prior to September 11th, American and Middle Eastern human rights
exchanges generally followed a set itinerary closely adhering to broad
precepts and assumptions of the East/West geography of human rights.
American-based INGOs investigated human rights conditions and allega-
tions of violations in Middle Eastern countries, sometimes through col-
laborations with local Middle Eastern NGOs. Seminars, lectures, and


conferences on particular human rights conditions in a Middle Eastern con-
text were held at American universities, NGOs, and policy forums, occa-
sionally featuring victims™ ghastly accounts of the injustices they endured.
From time to time, protests were organized in front of Middle Eastern
embassies and consulates in Western countries to highlight particularly egre-
gious human rights violations. American INGOs issued reports and put out
statements condemning the violations outlined, demanding that the Mid-
dle Eastern state in question comply with its international legal obligations
and recommending that United States compel compliance through various
diplomatic and/or economic pressures. U.S.-based NGOs attempted to stir
American public opinion to prompt American citizens to take up the par-
ticular human rights concerns with government representatives and insist
that the American government act in accordance with the human rights
INGOs™ recommendations. The American human rights groups themselves
spearheaded lobbying efforts to the same ends “ American interventions or
condemnations of the human rights violations taking place. Middle Eastern
human rights issues also received varying levels of coverage or investiga-
tion in American media. In the rare cases that the political space existed
for it, Middle Eastern media covered the reports issued by Western INGOs
regarding Middle Eastern rights violations. Middle Eastern government of¬-
cials in turn took up defending their practices and reiterating their sincere
commitment to upholding human rights.
Throughout the process, the human rights violations being detailed were
often explicitly or implicitly linked to Middle Eastern culture, whereas Amer-
ican culture was viewed as neutral, even nonexistent, based on a construal of
culture as rooted exclusively in ancient customs and traditions and divorced
from modernity. The Middle Eastern commitments to cultural and religious
relativism and the American commitment to rational universalism in applica-
tion of human rights were assumed. As a result, the interactions were highly
imbued with power dynamics surrounding who had the authority to wage
human rights criticisms of whom, who was answerable to whom, and whose
practices were open to scrutiny. Accordingly, Middle Eastern human rights
forces generally only looked inward toward domestic human rights condi-
tions and, although they did pose critiques of American appropriations and
alliances with repressive regimes in the region, they never took on organized
initiatives or mobilizations directed at American human rights practices. As
critical scholars have noted, the ¬‚ow of assessments, organizing, evaluation,
and judgment went in one direction.
In the post“September 11th era, this swarm of activity that had become
the staple of contemporary human rights activism also began to take shape
in the reverse direction. Although there remained a considerable discrepancy
in scale, Middle Eastern human rights advocates, media, and governments
took up the issue of American human rights violations, rendering human

rights a primary site of struggle during the era and the ensuing human rights
engagements an unprecedented two-way encounter.

Civil Society Mobilizations
In January 2007, the ¬fth anniversary of Guantanamo was met with a coor-
dinated round of global protests. In Yemen, a human rights advocate and
academic I was interviewing handed me a ¬‚yer for a press conference coor-
dinated by two of the country™s leading human rights NGOs, the National
Organization for Defending Rights and Freedoms (HOOD) and the Human
Rights Training and Information Center, to be held the next day, January
18th. After the interview, I called Khaled Alanesi, my contact at HOOD, to
ask if I could attend. “You are welcome,” he replied. Several NGO lead-
ers, a recently released Guantanamo detainee named Mohammad Ahmed
al-Asadi, the mother of a detainee still at Guantanamo, and the father of a
detainee released from Guantanamo but being held by Yemeni authorities
delivered passionate speeches, weaving together condemnations of American
policies, emotional appeals, and invocations of human rights and interna-
tional law. The family members held up large framed photos of their sons.
HOOD passed out a ¬‚yer containing information about the prison, the num-
ber of detainees it held, and mobilizations against the prison™s operation. A
representative of another NGO, the Democracy School, passed out a color
¬‚yer. On one side of the ¬‚yer were displayed various pictures suggesting
detainee abuse at the facility. On the other side were two depictions of the
Statute of Liberty; one was accompanied with an American ¬‚ag displayed
plainly and the words Freedom of Expression and the other accompanied
by an American ¬‚ag over which the electric wires of a prison fence were
transposed and the words freedom to torture. After the statements, scores
of reporters posed questions and conducted interviews. The commemora-
tion was only the most recent attempt by Yemeni civil society to chal-
lenge American human rights violations following September 11th. HOOD
and other Yemeni human rights organizations had in the past held numer-
ous press conferences, protests, and vigils, sometimes in front of the U.S.
embassy. A July 2006 protest in Sana™a had drawn over one thousand parti-
In April 2004, Sana™a had hosted the ¬rst of four international confer-
ences devoted to detentions and abuse taking place at Guantanamo Bay. The
conference was organized by Amnesty International and HOOD. This time,
American and other Western human rights lawyers and activists traveled to
the Middle East to convene and discuss strategies for mobilization against
American (not Middle Eastern) human rights infractions with Middle East-
ern counterparts and Guantanamo detainees™ families. Of the ¬ve themes on
the conference agenda, two pertained to af¬rming/upholding the universal-
ity of human rights, with the clear implication that American human rights

practices were rooted in relativism and exceptionalism. The conference™s
keynote speaker was the Yemeni human rights minister, Amat Al-Alim Al-
Soswa, who condemned American practices using opaque but nonetheless
unmistakable shaming devices:
Progress and civilization must not be measured only by scienti¬c, technological, and
military progress. They must be measured by the human conscience, the degree of
disapproval of human rights violations, and by what we can do to bring human
sufferings to an end.1

The outcome of the initial conference was the “Sana™a Appeal” issued by
Amnesty International and the creation of a Yemeni committee directed by
leading Yemeni human rights activists with a sole objective of investigating
U.S. abuses in Guantanamo and Abu Ghraib. The second conference along
the same theme was again held in Sana™a, a third was held in Bahrain, and
the ¬nal one was held in England. The conferences received coverage in local
Yemeni media. Beyond the fact of the coverage itself, the familiar human
rights devices and lexicon employed both by the media and human rights
activists they cited were noteworthy. One publication reported:
Human rights activists in Yemen condemned the USA™s military trial in Guantanamo
Bay of two Yemenis. The trial of four prisoners, also including a Sudanese, and an
Australian, started on Tuesday and is being widely criticized throughout Yemen for
not meeting the minimum standards of a fair trial.
“How can we expect the trial of Guantanamo prisoners to be legal if evidence is
not shown and defendants are not given the opportunity to hire lawyers?” asked
Khalid Al-Anisi of the National Organization for Defending Rights & Freedoms
(HOOD) in Sana™a. “We have been working closely with international human rights
organizations throughout the world to come up with a solid statement denouncing
such actions done in the name of justice. What justice is this?”2

What is remarkable about the article is its unequivocal assertion of a Yemeni
voice and authority to assess American Guantanamo policies and their corre-
spondence with “minimum standards of a fair trial.” It is the Yemeni human
rights lawyer who authoritatively condemns the actions of the United States
and expresses outrage over American human rights transgressions. Another
Yemeni media account of the series of conferences is equally revealing:
In liaison with Amnesty International, the Sana™a committee for the defense of Guan-
tanamo detainees is to organize a conference in London in December. Senior lawyers
and human rights activists will take part to discuss detainee conditions in Guan-
tanamo prison. Chairman of the committee, lawyer Mohammed Naji Allaw, told
1 Amnesty International, press release, End Human Rights Scandal in Guantanamo and
Other Places, Apr. 11, 2004, http://web.amnesty.org/library/Index/ENGPOL300172004?
2 Guantanamo Trial of 2 Yemenis Unfair, Yemen Times, Aug. 24, 2005, http://www


26 Sept.net that the conference would hear testimonies of released detainees. A pho-
tographic exhibition will also be held to portray the suffering of the detainees, he

The piece signals an approach that humanizes and privileges the detainees
and their stories, somewhat in contrast to the course taken by civil society
actors spearheading the American campaign domestically.
On various occasions, other Middle Eastern human rights organizations
similarly committed their efforts toward challenging American human rights
practices. For example, following the suicide of three Guantanamo Bay
detainees in June 2006, the Arab Organization for Human Rights called for
the immediate closure of the facility, condemned the United States Depart-
ment of Defense™s rejection of an independent probe into the incident, criti-
cized American of¬cials™ comments that the suicides were a publicity stunt,
and called for bringing to justice those responsible for abuses at Guantanamo
and other American detention facilities.4 The Bahrain Center for Human
Rights staged several public protests and vigils in Manama (which included
activists dressing in orange jumpsuits and wearing handcuffs), provided free
screenings to a documentary on Guantanamo, monitored and publicly com-
mented on judicial developments in U.S. courts, traveled to New York to
meet with American lawyers representing Bahraini detainees, and called
on international organizations and Bahraini authorities to urgently pursue
diplomatic efforts to free the detainees.
In addition to reporting on local NGOs™ activities, Middle Eastern media
often took up the issue of American human rights practices on their own.
Opinion pieces would evaluate American actions through an international
law rubric:

The issue is whether the ¬ghters should be treated in line with the requirements of
the Third Geneva Convention. That Convention is an example of the humanitarian
values that the US is ¬ghting to uphold. So it was shocking to learn that the US
Defense Department had decided to ignore it by classifying the captives not as
prisoners of war, but as “unlawful combatants.” This arbitrary decision has the
effect of depriving the prisoners of their rights.
But how can the US reach this conclusion, when Article 4Ai of the Convention
includes among POWs: “Members of the armed forces of a Party to the con¬‚ict, as
well as members of militias or volunteer corps forming part of such armed forces”?
This seems to cover both the Taliban and Al Qaeda.5

3 Sana™a Committee for Defense of Guantanamo Detainees to Hold Meet in UK in Dec.,
Yemen Observer, Jul. 30, 2005.
4 Arab Rights Body Calls for Immediate Closure of Guantanamo Bay Detention Center,

MENA, Jun. 15, 2006.
5 The Problem of the Taliban Prisioners, Doha Gulf Times, Jan. 17, 2002.

They also published scathing editorials employing the same shaming tech-
niques used in Western editorials condemning Middle Eastern human rights
violations, with titles such as “Contempt for Law,” “Torture Camps,” “Out-
sourcing of Torture,” and “Indictment.”
Middle Eastern newspapers not only told the personal stories of the
detainees and their families but also ran stories on American Supreme Court
decisions and legislative developments affecting detainees™ rights, such as
passage of the Military Commissions Act. The Saudi Arab News put forth
this sober assessment of the United States Supreme Court™s decision in Ham-
dan v. Rumsfeld, which was considered a relative human rights victory
among many observers in the United States because of its recognition of the
applicability of the Geneva Conventions to the United States in Guantanamo

The ruling is not about the treatment of the 450 or so detainees at Guantanamo,
80 of them Saudis. It does nothing to bring their release any closer or ensure the
camp™s closure. The ruling is simply about the powers of the president. President Bush
can therefore quite easily obtain the appropriate authority. All he has to do is ask
Congress to change the law. . . . Far more important is the Supreme Court™s decision,
as part of its ruling, that the Geneva Conventions apply to the detainees. . . . It could
even end up with the camp being forced to close “ although if it does, it will be
because it has become an embarrassment for Washington, not because it would be
considered illegal in any future Supreme Court ruling. If anything, Thursday™s ruling
implies that Guantanamo is legal under US law; it effectively said that the detainees
can be held, as prisoners of war, for as long as the war on terror continues but that
they have rights. Clearly if they are to be held, they have to be held somewhere.6

Finally, Middle Eastern media occasionally visited and reported on Guan-
tanamo. The London-based pan-Arab Al-Sharq al Awsat ran an eight-part
series on various aspects of the prison. From time to time Middle Eastern
media would also ask American of¬cials to justify their policies to Middle
Eastern audience in interviews. For example, Al-Sharq al-Awsat featured
an interview with John Bellinger, legal advisor to former Secretary of State
Rice, in which he is forced to justify the U.S. Guantanamo policy.7 Although
the article headlines with Bellinger™s “challenge” for critics to propose alter-
natives to Guantanamo, at one point, the article states, “Bellinger, however,
admitted that there is no set timeframe for the closure of the detention center
as there are tens of detainees who will not get the chance to be tried,”8 in
effect highlighting the American of¬cial™s admission of the contingency of
American human rights guarantees and commitments.

6 Ruling on Gitmo, Arab News, Jul. 1, 2006.
7 Rice™s Legal Adviser Says the States That Criticize Guantanamo Must Present an Alternative

Instead of Making Hollow Statements, Al Sharq Al Awsat, Nov. 7, 2006.
8 Id.

On rare occasions, Middle Eastern initiatives against American violations
made it through to mainstream media in the United States. On May 23,
2006, a story aired on American National Public Radio that pro¬led efforts
by Bahraini MPs and human rights activists to protest the United States™
detention of three Bahraini nationals in Guantanamo. The story featured a
gathering at the house of MP Sheikh Mohammad Khaled, at the conclusion
of which the group decided to form a committee designed to lobby the
Bahraini government to press its American ally to release the remaining
Bahraini detainees it holds at Guantanamo. The story featured a clip by
human rights activist Nabeel Rajab stating, “It™s a humanitarian issue. It™s
not a terrorism issue. It™s a violation of human rights committed by the
United States government.”9
A trace of Middle Eastern activism against American human rights prac-
tices even reached the United States Supreme Court. Among the numerous
amici curiae (friend of the court briefs) submitted to the U.S. Supreme Court
in the landmark Hamdan v. Rumsfeld case, was one submitted on behalf of
HOOD. It began with an introduction of the organization:

With the advent of the “War on Terror,” HOOD became involved in protecting
the rights of more than 100 Yemeni citizens held at the United States Naval Base
at Guantanamo Bay and sponsored international conferences, in association with
Amnesty International and other international human rights groups to focus atten-
tion on the Guantanamo detainees™ treatment by the United States. In particular,
the organization believes that Petitioner™s continued detention and trial by a military
commission present pivotal questions about the rule of law in the United States.10

Although from there the brief, drafted by American lawyers, is predomi-
nately centered around constructions of the United States™ role as a global
human rights leader and frames American policies as posing an obstacle
to the realization of human rights and democratization in the Middle East
(rather than as independently objectionable), the opening statement signals a
limited shake-up of the traditional rules surrounding who has the voice and
legitimacy to evaluate who in front of a leading American institution. What
was perhaps more groundbreaking was the fact that American lawyers tak-
ing the seminal case to the Supreme Court felt the need to invoke the voice
of Yemeni human rights actors (even it was painted as falling strictly within
the con¬nes of the East/West geography) to strengthen their case.

9 All Things Considered, Leaving Guantanamo: Bahrainis Protest Prison (National Public
Radio Broadcast May 23, 2006), http://www.npr.org/templates/story/story.php?storyId=
10 Hamdan v. Rumsfeld, 126 U.S. S.Ct. 2749 (2006). Brief of Yemeni National Organiza-

tion for Defending Rights and Freedom (HOOD) as Amicus Curiae Supporting Petitioner;
HOOD™s English-language Web site can be accessed at http://www.hoodonline.org/

Another key institution in which a Middle Eastern gaze was re¬‚ected was
the United States House of Representatives. Although within the dozens of
congressional hearings on Guantanamo, Abu Ghraib, and U.S. torture poli-
cies testimony was taken exclusively from American policymakers, military
of¬cials, and human rights advocates while the voices of former detainees
and victims were conspicuously missing, there was one late, yet notable,
exception. Maher Arar, the Syrian-Canadian man who had been detained
by U.S. authorities as he switched ¬‚ights in New York™s JFK airport and then
sent to Syria to endure thirteen months of torture, was a primary witness at
a joint hearing on the topic of extraordinary renditions held by the Interna-
tional Relations Committee™s Subcommittee on International Organizations,
Human Rights, and Oversight and the Judiciary Committee™s Subcommittee
on the Constitution, Civil Rights, and Civil Liberties.
Although Arar is a Canadian citizen who had not been to Syria since he
had been a teenager, his beard, accent, and religious commitment ensured
that he would be viewed as belonging more to the East than to the West.
Certainly the U.S. government™s decision to deport him to Syria rather than
Canada despite his pleas for the latter action spoke to such an outlook.
Arar™s appearance at the hearing was via video feed because he remained
on a U.S. government no-¬‚y list. He began his testimony by countering his
dehumanization, declaring his victimhood, and pointing to the immorality
of the American practice that had turned his life upside down. “Let me be
clear “ I am not a terrorist. I am not a member of al-Qaeda or any other
terrorist group. I am a father, a husband, and an engineer. I am also a
victim of the immoral practice of extraordinary rendition.”11 Continuing
to mirror testimonials of human rights violations that American lawmakers
were accustomed to hearing in relation to non-Western countries™ practices,
Arar went on to detail the denials of due process by the United States
government and months of incessant torture by Syrian of¬cials to whom the
United States had released him. Throughout the testimony and questioning
that followed, Arar was articulate and compelling, repeatedly pointing to the
immorality, injustice, and double standards of the treatment he had endured.
Additional pieces of his testimony will be taken up in the discussion in
chapter 5 of the post“September 11th era™s lessons for advancing the human
rights project.

Arab Governments Pressuring the United States
In much the same manner that human rights groups traditionally exerted
pressure on the United States government to press human rights issues with
11 Rendition to Torture: The Case of Maher Arar, Testimony before House Subcomm. on
International Organizations, Human Rights, and Oversight and House Subcom. on the
Constitution, Civil Rights, and Civil Liberties, 110th Cong. 1 (2007). (Oct. 18, 2007),

Middle Eastern of¬cials, in the post“September 11th era, some Middle East-
ern activists lobbied their governments to bring up the plight of Guantanamo
detainees in their high-level sittings with American counterparts. Although
it is almost impossible to know what really transpires behind closed doors
no matter which direction the human rights rebukes are slated to go, the
pressure from domestic actors often compelled Middle Eastern governments
to at least publicly demand accountability from or pronounce challenges
to the United States with respect to its detention policies. For example,
Jordan requested the United States provide it with the charges against its
citizens held at Guantanamo12 and in March 2007, the upper house of the
Bahraini Parliament urged the United States to either give the remaining
Bahraini detainees a fair trial or repatriate them.13 On numerous occasions,
Yemeni of¬cials made similar calls for either the provision of due process
or the release of Yemen™s over one hundred Guantanamo detainees. Despite
its many public pronouncements and criticisms, the American and Yemeni
advocates working on the cases were convinced that the Yemeni government
was not doing all that it could to secure the release of its detainees. HOOD
placed a letter from American lawyers to this effect on its Web site and an
ad hoc volunteer group of American lawyers later traveled to Yemen to meet
with Yemeni of¬cials and persuade them to take up the issue with American
counterparts more aggressively. The perception and/or reality that Middle
Eastern governments are more apt to act on the urging of Americans rather
than local attorneys is testament of how the East/West geography continued
to operate even within episodes notable for its unsettling on that of their own.
In some instances, it was clear that Middle Eastern governments™ refer-
ences to Guantanamo and Abu Ghraib were as instrumental and politically
motivated as the American government™s incessant referencing of Saddam
Hussein™s “torture and rape chambers” had been in the early days of the
Iraqi invasion. As I argue in chapter 4, highlighting American violations
were no doubt a convenient means of diverting attention from local human
rights failings and discrediting the entire human rights enterprise. Still there
were countless MPs and even of¬cials (usually with lower levels of in¬‚uence)
within Middle Eastern governments who (also) challenged American poli-
cies out of a sense of conviction and disdain for the contradictions inherent
in the path on which the Bush administration had embarked. For exam-
ple, a few months prior to her resignation, Yemeni Human Rights Minister


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