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NGO, the group had largely adopted a universalist human rights dispo-
sition in the civil and political rights sphere, even vis-a-vis Islamist forces
`
with which they identi¬ed politically. For example, when a leading member
of Islah™s radical faction brought forth a case against a journalist responsi-
ble for republishing the controversial cartoons of the prophet Mohammed
that were ¬rst printed in a Danish newspaper, HOOD took up the journal-
ist™s defense. The opposing lawyers (with the assistance of the Government,
according to Allaw) attempted to paint the HOOD team as foreign agents.
“This is actually very dangerous because we were labeled as people defend-
ing the people who insulted the prophet. So if anyone would kill us, he would
think he would kill us to get closer to God,” Allaw had stated with a hint
of satire.74 It was revealing that Allaw found himself in the same precarious
predicament as secular human rights activists and in response articulated
the same complaint against Islamist action that secular rights activists in the
region typically put forth.
At the Guantanamo gathering, the language employed by the handful of
Human Rights NGO representatives (including HOOD) was for the most
part con¬ned to the standard fare of secular transnational human rights
lexicon. Yet al-Asadi, the recently released Guantanamo detainee, and the
detainee families present clearly did not conform to the secular, middle- to
upper-class, elite pro¬les one is accustomed to seeing in such human rights
gatherings in the Middle East. I was reminded of the religious worldview
from which he entered the forum when I approached the former Guan-
tanamo detainee to express regret for his ¬ve-year ordeal. I was some-
what caught off-guard when met with a bowed head, lowered gaze, and
a murmured acknowledgment of my comment delivered indirectly through
Khaled Alanesi, the HOOD lawyer overseeing the event. If distracted by
the signi¬cance of the occasion and disoriented by the familiar transna-
tional culture of the human rights NGO setting, I had forgotten about the
bounds of prevailing gender rules to which those with al-Asadi™s disposition
ascribed, he had not. And yet, through his presence and various invoca-
tions of international norms, the twenty-four-year-old who had traveled to

74 See Mohammad Naji Allaw, supra note 56.
185
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


Afghanistan “for jihad” prior to being detained by the Americans was medi-
ating an entrenched religious grounding within a new secular terrain. This
was apparent, for example, in his characterization of the suffering taking
place at Guantanamo as a “violation of every law of men and God” and
his conclusion that the United States was not upholding the Geneva Con-
ventions after accusing the prison™s of¬cials of hindering detainees™ prayers,
cutting their beards, and stepping on the Quran.75
The impact of this melding of religious consciousness with human rights
tropes extends far beyond those directly affected, such as al-Asadi. Because
within religious circles the American “War on Terror” detainees came to
serve as the ultimate symbols of the injustice being endured by Muslims
in the post“September 11th era, a detainee™s act of claiming and invoking
human rights norms lends legitimacy, authority, and a new emancipatory
air to the discourse, drawing in the larger religious communities. In the
same way that in the United States high-ranking military of¬cers served
as compelling spokespeople for the human rights idea within conservative
circles, Guantanamo detainees served as compelling proponents for human
rights among Middle Eastern religious communities.
At the same time, increasingly closer interactions and ties between more
formal Islamist organizations such as the Islah Party and local, generally
secular, human rights actors and discourses constituted a signi¬cant emerg-
ing trend in Yemen. As Amal Basha of the Yemen-based Sisters Forum
for Human Rights explained, when the government crackdown on religious
groups ¬rst began after September 11th, human rights activists did not know
what to do because traditionally the two forces™ had been in con¬‚ict, with
Islamists relegating many human rights provisions to the realm of the West-
ern and un-Islamic and human rights defenders perceiving Islamist political
and legal gains as among the most formidable human rights challenges they
faced. In the end, to varying degrees, most Yemeni human rights advo-
cates decided to openly condemn American and Yemeni rights violations
against religious forces and this allowed the two sides to coalesce around
post“September 11th rights issues. With the relationship™s point of entry set
by a consensus surrounding torture and denials of due process as human
rights violations, human rights forces were able to forge dialogs and engage
Islamists on more contentious rights issues such as internationally recognized
women™s rights. Basha drew a picture of the dynamic that emerged:

It™s like a bargain. You need our support as women™s groups in political rights or
civil rights, which we totally agree “ whether you are religious, extremist, it™s your
right to be protected, to have a fair trial. This is our belief. This is our principle. At
the same time, equality is also an issue and they started to see it that way. OK we

75 Kawkab al-Thaibani, HOOD, Families Demand Closure of Guantanamo, Yemen
Observer, Jan. 19, 2007.
186 AFTER ABU GHRAIB


want the support of this group for our demands, our issues, our ¬ghts. To be on our
side, we have to give them something.76

Whether borne out of a bargain, as Basha intimates, a gradual buildup of
trust between the two forces, or their combination, nearly all Yemeni human
rights activists interviewed referred to both the unprecedented Islamists pres-
ence in their workshops, trainings, and forums, and to Islamist forces new
openness to engage with the very rights issues that previously rendered the
two groups™ encounters so contentious, particularly in the women™s rights
¬eld. Receiving me in the NGO™s spacious new Sana™a of¬ce, accented with
ornate furniture and a large-screen television, Sa™ad al-Gedsi, director of the
Women™s Forum for Research and Training, describes the altered landscape
for her women™s rights activism vis-a-vis Yemeni Islamists:
`
The other positive thing is that, as women™s rights activists, we started to talk on
topics we were not able to talk about. Last year we ¬nished a three-year program
called “women™s human rights in Islam.” In this project . . . we start talking about
some topics that nobody would address before. Let™s say hijab, people started saying
its not rokn (pillar) of Islam. . . . Also, a researcher did a research for us entitled “Ten
Obstacles for Women™s Human Rights in Islam.” They made a fatwa against this
person and the youth within Islah posed a challenge to the older generation and they
fought each other. We were not able to do that before “ all the people were together
against women™s issues. Those people also began to listen. Before they don™t listen
and they don™t come to our activities. They became less confrontational. We also
started to invite them and there was good relations established with these groups
which are not terrorist, but they thought that this is Islam. We started to bring them
more in step with us.77

The picture painted by al-Gedsi™s is further dissected by the UNDP™s El
Obaid El Obaid:
You may be surprised, here in Yemen their [human rights forces] defending Guan-
tanamo detainees is not necessarily ideological commitment to these who are there.
It™s a combination of both that and also having a safe opportunity to demonstrate a
commitment to human rights . . . exploiting this opportunity to gain legitimacy and
also not suffer any Western conspiracy or Eastern conspiracy by saying those rights
have to be guaranteed by international conventions, because this was not an oppor-
tunity that was available to them before 9/11. On the contrary, the people who used
to rely on that [international conventions] were called puppets of the West . . . or at
least secular.78

From El Obaid and al-Gedesi™s descriptions emerge a fundamental third
dimension of human rights defenders™ increased space. Not only have
Yemeni human rights forces bene¬ted from increased space for pursuing
76 See Amal Basha, supra note 7.
77 Interview with Sa™ad al Gedsi, director, Women™s Forum for Research and Training, in
Sana™a, Yemen (January, 17 2007).
78 See El Obaid El Obaid, UNDP, supra note 34.
187
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


their human rights agenda as a result of international pressures on their
governments and openings presented by the greater popular resonance of
human rights as a result of American abuses, but also, through the new rela-
tionship with Islamists, advocates have secured the space to invoke human
rights with less of a threat of being targeted or delegitimized as Western
agents or un-Islamic by Islamists. At the same time, they achieved greater
liberty to invoke international human rights norms or legal instruments with-
out necessarily having to couch their arguments within Islamic discourses “
something that was previously considered a prerequisite for promoting
human rights by advocates in many parts of the region.
While taking advantage of their expanded space to employ human rights
norms via secular, internationalist tropes, a number of Yemeni human rights
groups also chose to pursue (or continue pursuing) engagements with Islamic
discourses, symbols, and jurisprudential and textual interpretations, as well
as enlist religious intermediaries. For example, Sa™ad Gedsi of the Women™s
Forum for Research and Training noted that the NGO often invites Islamic
feminists and scholars rooting human rights and women™s rights norms
within the Islamic tradition from Tunisia, Egypt, and Morocco to help the
group lead its seminars. In addition, through a Women™s Human Rights
in Islam Program, the group trained sixty imams in eight governorates to
incorporate women™s rights in their sermons at mosques. “Last year we
reached 45,000 people through them,” Gedsi is pleased to relay.79
The turn to (or continued engagement with) the Islamic framework are
clearly borne out of a sense that this increased liberty to invoke interna-
tional norms without resorting to Islamist discourses in relation to civil and
political rights does not necessarily translate into an absolute liberty to do
the same in the context of rights traditionally contested by Islamists. Fur-
ther, now that they have ¬nally attracted the attention of Islamist groups
and religious communities, human rights (and particularly women™s rights)
advocates do not want to squander this rare opportunity to embark on a
more rooted, cultural project. According to Amal Basha:

So we, the human rights groups in a country like Yemen, we try to base our argu-
ments on Islamic discourses and interpretations. We say our Islamic legacy is like a
basket. If you put your hand in you can bring out jewels or snakes. Just leave the
snakes inside the basket and let™s try to get out the jewels. Let™s enhance human
rights and base it on religion. This is development. This is modernization. You can™t
pursue fourteenth-century context. There are different issues. There are different
challenges. We have to be up to the challenges as a Muslim society. You cannot
ignore religion . . . you are still tied to the rules of your religion. If you say, “I™m
not going to base my discussion on it,” so you are alienated. You are not accepted.
You are socially rejected. So we try to maneuver.80

79 See Sa™ad al Gedsi, supra note 77.
80 See Amal Basha, supra note 7.
188 AFTER ABU GHRAIB


Although, in a later section, I lay out how I believe the new associations
and interactions between Islamist groups and human rights forces (both
domestic and international) have spurred greater human rights conscious-
ness among Islamists, here I would brie¬‚y note that there is undoubtedly a
¬‚ip side to the new relationship, one that its advocates acknowledge:

But you know we become selective. If religion is supporting this, we have to use the
religious discussion. But it™s dangerous. If one case religion is going to support you,
you use religion. You will get the support of the conservative society. If you don™t use
religion and you go to the rural areas promoting CEDAW and the rural women say,
“what is CEDAW?” . . . it™s very challenging. It™s like you are walking on landmines.
You have to be careful where you put your foot and when to step and when to take
it out.81


As Basha clearly recognizes, embedding human rights within an Islamic
framework is fraught with its own risks, limitations, and trappings. Clearly,
advocates cannot pursue theologically based frames and strategies to solidify
religious forces entry into the human rights tent without those human rights
discourses being in some way transformed in the process. Despite the obvious
bene¬ts of, for example, having a human rights message heralded by an
imam in a mosque, it is likely that the message is still being delivered within
a context or alongside provisions that are inconsistent with the human
rights project. Perhaps more importantly, human rights forces risk ceding
considerable authority to religious laws, discourses, and ¬gures in what
Anthony Chase has called, “the tail wagging the dog”:

Instead of whether the rights regime makes sense given the political and legal context
of Muslim states, the question becomes whether or not there are convincing doctrinal
arguments regarding the place of human rights. This accepts, in essence, the need
for liberalist religious justi¬cation of human rights, making an argument for rights
a dispute over religious doctrine “ a dispute that takes place on an Islamic ¬eld of
meaning on which reformers have little claim to institutional authority and human
rights scant normative power.82


Yemeni human rights proponents, like their American counterparts who
invoke national security arguments and enlist military intermediaries, can
stretch their strategies so far that they risk stripping the human rights regime
of an autonomous moral authority and, as Chase argues, its normative

81 Id.
82 Anthony Chase, The Tail and the Dog: Constructing Islam and Human Rights in Political
Context, in Human Rights in the Arab World: Independent Voices (Anthony Chase
and Amr Hamzawi eds., 2007).
189
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


power.83 In other words, the conversation becomes one of military strat-
egy, foreign policy, or national interest in the American context, or one of
furthering religious doctrine and prescriptions in the Middle Eastern con-
text, rather than one ¬rmly centered around upholding human dignity. In
deriving justi¬cations for human rights from Islamic sources, human rights
advocates risk contributing to the hegemony of the politicoreligious estab-
lishment and its discourses surrounding gender, ethnic minorities, criminal
sanctions, and sexual minorities, which, though evolving, remain unmistak-
ably power laden and problematic from a human rights standpoint.
Chase also argues that theological arguments for human rights have not
borne out their promise. This proposition is dif¬cult to conclusively estab-
lish. In many instances, human rights arguments incorporating religious ref-
erences succeed in promoting tolerance and challenging conservative ortho-
doxies. In fact, it is not uncommon to see reformers within Islamist parties
positing the same arguments for human rights™ compatibility with Islamic
precepts that were ¬rst made by human rights or women™s rights advo-
cates. Two indicators may be key to how effective such efforts are. First, the
more the relationship between human rights activists and religious forces is
characterized by trust, mutual respect, and a sense of (at least some) com-
mon purpose rather than con¬‚ict and suspicion, the more persuasive human
rights advocates framing can be. Second, the extent to which such efforts
produce human rights results depends on the extent to which advocates are
willing to challenge problematic orthodoxies rather than accommodate or
avoid them. Finding the right balance between the two criteria is essential.
As Sally Engle Merry has observed, “Rights need to be presented in local
cultural terms to be persuasive, but they must challenge existing relation-
ships of power in order to be effective.”84 Thus, instead of rejecting human
rights advocates™ engagement with Islamic frameworks categorically, it is
perhaps more important to highlight the dangers of stretching the practice
beyond its limits or relying on it too much, especially now that advocates
enjoy greater liberty to step outside the bounds of the religious framework
and can bene¬t from increased level of trust between the two forces. In the
end, the ¬ne line may simply be one of permitting a religious (or military)
argument for human rights to take on center stage versus simply identifying
common ground.

83 This argument is complicated by the fact the contemporary human rights regime was borne
in many ways out of a natural law tradition deeply rooted in religion and religious morality.
However, since the regime™s inception, religion, and particularly religious doctrine, has had
less and less to do with the substantive development of human rights™ contemporary legal
regime. In fact, emerging areas, such as reproductive rights, directly challenge dominant
Christian doctrine.
84 Sally Engle Merry, Human Rights and Gender Violence 5 (2006).
190 AFTER ABU GHRAIB


I did not notice increased trust, engagement, or collaborations between
Islamists and secular human rights forces in Jordan. One human rights advo-
cate I interviewed appeared hostile to the Islamic Action Front (IAF) and
even baf¬‚ed by why Western researchers visiting Jordan were so intent on
interviewing IAF members. Another activist said that her human rights orga-
nization™s only interaction with Islamists stemmed from members seeking
assistance in cases of abusive detentions or torture. In an article discussing
the impact of IAF coalitions with secular opposition parties on the Islamist
party™s position of several women™s rights initiatives proposed by the gov-
ernment, Janine A. Clark describes the IAF™s continued hostility toward and
disinterests in collaborating with human rights advocates:

What is interesting from the perspective of cooperation is that IAF opponents to the
draft amendment also raised several important concerns that were shared by many
secular lawyers and human rights activists in Jordan. Despite these commonalities,
however, the IAF was unwilling to cooperate with these activists “ precisely because
their response was a secular one. . . . In public debates, the IAF pitted itself against
human rights activists who similarly condemned Article 340 but were proponents
of amendments to Articles 97 and 98. The IAF refused to engage with these secular
laws, arguing that the problem of honor crimes could not be solved until Islam is
applied in society and to the legal system.85

Although this demonstrates that the move toward greater alliance with local
human rights actors and discourses has not materialized in Jordan the way it
has in Yemen (and this can be attributed to the disparate social and political
composition of the two states), it is not inconceivable that the IAF™s increased
turn to secular human rights discourses in the political and civil rights realm
(discussed below) will move the group toward new bargains with human
rights forces.

Shifting International Relationships
The same type of “bargain” and ensuing engagement that took shape in the
Yemeni domestic realm also materialized between Islamist groups through-
out the region and international human rights forces. Increasingly recog-
nizing that foreign governments™, NGOs™, and international organizations™
(IOs) calls for democratization provided them with vital protection and
avenues through which to vie for political power, many Islamist groups
revisited their stance on the human rights paradigm and altered the nature of
their interactions with international human rights forces. Although Islamist
engagements with these discourses are rooted in the adoption of a more
pragmatic politics dating back to the 1990s, September 11th developments
further underscored the strategy™s imperative for Islamist groups. At the
85 Janine A. Clark, The Conditions of Islamist Moderation: Unpacking Cross-Ideological
Cooperation, 38 Int. J. Middle East Stud. 539, at 553“554 (2006).
191
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


same time, United States™ post“September 11th calls for democratization
presented important opportunities for the strategy producing more concrete
gains. As Mohammad al-Tayeb, chairman of the Human Rights, Liberties
and Civic Organizations Committee in Yemen™s Shura Council, observed:

Now let™s go back to the Islamists, actually after September eleventh they experienced
those ideas and they found that they can make the most of those ideas. If there is a
democracy, they think they will win. That™s what happened in Palestine and partially
in Egypt and partially in Yemen. People are saying, “As long as democracy is going
to help us get to power, so just embrace it.” And they know the sensitivity of
the international community to the idea of extremism. Most of them are trying to
introduce themselves to the rest of the world as moderate, progressive.86

In the human rights realm this meant that Islamist criticism of the human
rights paradigm, Western governments, and Western-based NGOs promot-
ing liberalization became noticeably less pronounced and, in some moments,
was even absent. Instead, Islamists demonstrated a greater willingness to
legitimate, collaborate with, and engage in dialogs with American and other
Western-based initiatives in the ¬eld of rights promotion.
A telling illustration of Islamists new reliance on and openness to Western-
based INGOs took place in Jordan in June 2006. Several members of par-
liament (MPs) from Jordan™s leading Islamist party, the IAF, were detained
on charges of “fueling national discord and inciting sectarianism” after they
offered condolences to the family of al Qaeda leader Abu Mussab al-Zarqawi
and praised him as a martyr. Except for the Arab Organization for Human
Rights (AOHR), local human rights groups generally declined to take up
the case publicly. However, Human Rights Watch, which was in a position
to take up the issue without fearing direct repercussions from the Jordanian
government, clearly condemned the detentions as a violation of freedom
of expression. Other than the Islamic Action Front™s own objections, the
Human Rights Watch rebuke was the primary challenge to the Jordanian
government™s actions re¬‚ected in the media. Indicative of Islamists™ embrace
of the INGOs backing, a report on the Muslim Brotherhood™s Web site
invoked the authority of the Human Rights Watch statement in the Zarqawi
condolences case. The Human Rights Watch intervention was consistent
with its 2007 World Report, which focused its coverage of rights violations
in Jordan predominately on violations against Islamists.
Neither the existence of INGOs™ objections to rights violations commit-
ted against Islamists nor the fact that Islamists availed themselves of inter-
national human rights groups™ defense were unique to the post“September
11th era. However, previously these dynamics sat uneasily alongside the con-
stant tension between Islamists and transnational human rights advocates.

86 See Mohamad al-Tayeb, supra note 45.
192 AFTER ABU GHRAIB


INGOs were generally alarmed by the religious speci¬city claimed and privi-
leged position accorded to Islamic jurisprudence by Islamists. Islamists were
repelled by the secular commitment of the human rights project and INGOs™
reifying and sensationalist accounts of their religious prescriptions. More
often than not, it was the element of discord and its mutual apprehension
that de¬ned the two sides™ relationship rather than the instances in which
the two sides found common cause. In the post“September 11th era, human
rights INGOs treated American and Middle Eastern abuses waged within
the counterterrorism context with a new sense of urgency and placed them
centrally within their Middle East agendas. This new emphasis on “War
on Terror” abuses often overshadowed the Shari™a-based disputes that had
been previously so contentious. Mirroring the dynamics transpiring between
Islamists and domestic human rights forces, the new mutual focus on polit-
ical and civil rights violations opened new, albeit still somewhat tentative,
paths for collaboration and engagement.
Islamists also forged closer ties with Western-based and generally (U.S.-
funded) political development INGOs who promoted rights agendas through
training, education, and deliberations. In Yemen, Islah worked closely with
the U.S. government“funded National Democratic Institute (NDI) in the
run-up to the 2006 presidential elections, participating in the NGO™s tech-
nical training courses in capacity building, platform development, candidate
development, negotiation and con¬‚ict management, and election observing.
Mohammad Kahtan, the Islah spokesman with whom I met, was unequivo-
cal in maintaining that the programs were of great bene¬t to the party and
had no complaints, even when prompted.
At the same time, Islamists also increased their participation in interna-
tional debates and dialogs surrounding rights issues. For example, following
a number of face-to-face dialogs and deliberations between Islamists and its
analysts, the Carnegie Endowment for International Peace, a Washington-
based think tank, put out a paper called “Islamist Movements and the
Democratic Process in the Arab World: Exploring the Gray Zones.” The
paper identi¬es six areas in which mainstream Islamist parties displayed
persistent ambiguities in their positions, despite their assertions of moderate
stances: civil and political rights, women™s rights, implementation of Shari™a
law, religious minority rights, political pluralism, and the use of violence.
Carnegie reports that it received considerable formal and informal feedback
from Islamists throughout the region. Abdul Momen Abdul Futouh, a mem-
ber of the Guidance Bureau of the Egyptian Muslim Brotherhood, provided
a formal response that was placed both on the Carnegie and Brotherhood
Web sites. In February 2007, the Carnegie team of Middle East analysts put
out a subsequent paper in response to Islamist critiques of their initial publi-
cation in which they presented their case for continuing ambiguities and
193
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


inconsistencies in Islamist positions through a case study of the Egyp-
tian Muslim Brotherhood. As Mohammad al-Tayeb argued, Islamists who
engaged in such international exchanges developed a consciousness and
approach that diverged from those of Islamists who did not have such
encounters:

Yes, I do see some changes. I personally have participated in several conferences “
international conferences “ to which some fundamentalist groups were invited. I
could notice that the people coming to these conferences are people who are willing
to learn. When they come back to their countries, they know exactly how to talk to
the international community and it seems to me that this is very educative for them.
They usually make use of this and they are different from those who do not have
these interactions. Dr. Ariyani “ head of Muslim Brotherhood in Egypt. Very nice
guy, very open-minded. Very good interaction. He presented the Muslim group in a
very moderate way. We usually see some of his other colleagues on the TV saying
something different. This shows that those who do not interact with the world retain
their previous extremism.87

Finally, traditionally Islamists put forth several reasons to justify their
wholesale denunciation of American policies and interventions: the support
of many of the regions™ repressive regimes, overwhelming support for Israel,
and the spread of morally corrupt cultural values, which they sometimes
considered to be licensed via women™s rights and freedom of expression
rights. In the post“September 11th era where the United States demon-
strated at least some willingness to pressure regional allies, some Islamists
became more re¬ned and strategic in their indictments of the United States.
In Yemen, Islah™s Mohammad Kahtan stated that although he regrets that
the United States™ always sides with Israel in the Palestinian/Israeli con-
¬‚ict and ¬nds that the United States has failed in its ¬ght against terrorism
because it has abandoned its commitment to human rights, he considers
American reform and democratization efforts in Yemen and elsewhere in
the region to be positive. The intense tone of indignation and resentment
of American hegemony I witnessed in the voices of many of the (predomi-
nately secular) NGO representatives I interviewed in both Jordan and Yemen
was surprisingly absent in his voice. He simply called for continued Amer-
ican pressure on the Yemeni government to prevent the rolling back of the
liberties that have been achieved. Although Kahtan™s posture was likely tai-
lored to me as an American researcher questioning him on Islah™s human
rights commitments and does not exactly match the populist rhetoric against
American policies propagated by Islamists throughout the region (including
Islah), it may nonetheless signal a fascinating new ¬‚exibility in Islamist
dispositions.

87 See Mohamad al-Tayeb, supra note 45.
194 AFTER ABU GHRAIB


The Impact of Post“September 11th Human Rights Engagements
In the post“September 11th era, some Islamist movements have inched away
from questioning human rights and closer toward embracing important
parts of the regime “ even serving as the political force behind select human
rights campaigns. In the battle over Jordan™s new antiterrorism law, it was
the IAF that stood against the measure along with local and international
human rights groups. It was not the fact of their opposition that was of sig-
ni¬cance; rather, it was the fact that they overtly based their opposition on
human rights grounds, even making direct references to international human
rights law, which was exceptional. In the lengthy parliamentary debate that
transpired, the IAF consistently referred to the legislation as contravening
human rights, with IAF MP Nedal Abadi calling the measure a “viola-
tion of the country™s agreements on human rights with the international
community.”88 The Jordanian Bar Society, headed by an Islamist lawyer,
had also been advocating extensively that the legislation contravened both
the Jordanian constitution and international human rights treaty obliga-
tions. In June 2007, Ali Abul Sukkar, the head of the IAF™s Public Freedoms
Committee, announced that it would put out a report on the state of public
freedoms and human rights in Jordan by the end of the year. He took the
opportunity to call for the abolition of the state security courts, the preser-
vation of Islamists™ rights to compete in elections, the assessment of Jordan™s
prison conditions in response to concerns raised by human rights groups, and
the release of IAF members being detained. Similarly in Yemen, activists and
politicians af¬liated with Islah stood with secular activists and journalists
in weekly protests (sometimes incorporating prayers) organized in oppo-
sition to new government restrictions on press freedoms and pressure on
journalists.
Despite the prevalent element of pragmatism and instrumentalism behind
the Islamist gravitation toward the human rights project, as with the region™s
authoritarian leaders, the more Islamists have reached for and employed the
language of human rights either to display “moderation” or to pose critiques
of their rulers™ or American policies and practices, the more they themselves
became entangled in the human rights venture. Put differently, once lead-
ers decided that they would engage the human rights framework rather
than reject the regime™s inherent legitimacy or universality with regard to
traditional forms of torture, due process, freedom of political expression,
or election rights “ no matter how instrumental the move in the human
rights direction was “ they had to contend with inconsistencies and con-
tradictions presented by their entry into the human rights ¬eld. Through

88 IRIN, Jordan: Parliament Endorses Anti-Terror Law, Aug. 28, 2006, http://www.irinnews
.org/report.aspx?reportid=60568.
195
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


internal debates and contests, Islamist parties were forced to deliberate on
which parts of the human rights corpus they would accept, which ones they
would reject, and how they could justify their positions to both their tra-
ditional conservative constituencies and the international and local human
rights, democratization, and reform partners with whom they forged new
alliances. For example, when the IAF decided to support a restrictive press
and publication law proposed by the government because it also contained
provisions penalizing journalists for religious defamation, the move was
criticized in an al-Ghad commentary as the movement™s abandonment of
its asserted commitment to reform.89 Equally signi¬cant has been religious
groups™ potential acculturation of human rights norms through their entry
into human rights processes (such as compiling reports) and development
of their own human rights institutions (such as the IAF™s Public Freedoms
Committee). The outcome of the road some Islamists have traveled in the
post“September 11th era has been a combination of concessions fostered
by strategic considerations and genuine consciousness-raising, often in that
order.
Carrie Wickham™s interviews of Jordanian and Egyptian Islamists pro-
vide a glimpse into Islamists™ increasingly complex and multifaceted new
human rights consciousness. The Islamists she interviews condemn Amer-
ican human rights abuses in Guantanamo and Abu Ghraib, protest the
introduction of human rights education in school curricula on grounds that
they represent concessions to the United States and erosions of traditional
values, and demonstrate a willingness to engage with and accept signi¬cant
portions of the human rights framework “ all at the same time.90 Two of her
interviewees had participated in a human rights seminar with the U.S.-based
Carnegie Corporation. One of them, Abd al-Mun™em Abu-l-Futuh, states
the following:

The Carnegie delegation wanted us to accept all the provisions of global human
rights documents. We agree with most points, but disagree on a few issues. Why do
American analysts always focus on the few points of disagreement rather than on
the 90% on which we agree?91

In asserting acceptance of substantial parts of the human rights paradigm
while at the same time raising concerns about the erosion of traditional
values (no doubt in reference to women™s rights norms being introduced),

89 Al-Ghad, Arab Reform Bulletin, Mar. 2007, http://www.alghad.jo/?article=5837.
90 Carrie Wickham, The Problem with Coercive Democratization: The Islamist Response to
the U.S. Democracy Reform Initiative, 1:1 Muslim World J. Hum. Rts. (2004), http://
www.bepress.com/mwjhr/vol1/iss1/art6.
91 Id. at 7.
196 AFTER ABU GHRAIB


Islamists mediate between their traditional commitments and new forays
into the human rights paradigm.
The human rights engagements of Yemen™s Islah Party similarly illus-
trate both the complex human rights engagements the era has produced and
Islamists™ new openness to large segments of the human rights project. In
an interview in the Islah Party headquarters in Sana™a, Mohammad Kahtan,
the Islamist party™s spokesperson, posits that most of Islah™s activities are
human rights“related in substance, although they may not always label them
as such, except when they are discussing women™s rights and international
instruments. He points out that there are several chapters in the party plat-
form dedicated to economic, political, and social rights and that, prior to
our interview, the party had hosted two rights-centered conferences: one on
the subject of achieving rights and freedom peacefully and one on women
serving as members of Parliament and as ministers.
Within the party, forging a position on women™s rights has proved par-
ticularly contentious. “We have a debate on women™s rights, but on men™s
rights, we all agree,” Kahtan offered.92 The statement would ¬t squarely into
darker feminist satire were it not for the additional (and somewhat redemp-
tive) context lent by the rest of the picture Kahtan goes on to paint. Although
the statement provides insight into the vast gulf between the human rights
commitment to gender equality and the Islamist starting point and propen-
sity to view women™s rights as conceptually separate from “men™s rights,” it
tends to obscure the party™s complex and evolving encounter with interna-
tional norms. Kahtan makes clear that the party rejects certain international
women™s rights prescriptions such as the prohibition of polygamy and provi-
sions for equal inheritance for male and female heirs, the latter forming the
basis for Islah™s objection to the UN Women™s Convention. However, after
an extended internal deliberations and dialog on women™s political partici-
pation, the party voted for women serving as MPs or ministers, announced
it would have female candidates running in the next parliamentary election,
and later elected thirteen women to serve on the party™s central consulta-
tive committee. According to Kahtan, those who opposed women™s political
participation have ultimately come to comprise a small minority, although
he also notes that it may take another seven years of dialog for the party
to formally adopt a position that supports women™s competency to serve as
president.
When asked about previous Islamist convictions that human rights were
un-Islamic or Western concepts, he argues that Islah will never accept some-
thing that is un-Islamic, but human rights and democracy are notions rooted

92 Interview with Mohammad Kahtan, Islah Party spokesman, in Sana™a, Yemen (Jan. 20,
2007). It should be noted that the translation provided might be overly literalist and what
is meant by “men™s rights” is, in fact, “human rights.”
197
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


within Islam. In response to a subsequent question regarding whether he
views Islamic precepts as capable of adapting to changes in time and place, he
justi¬es a quali¬ed endorsement of dynamicism in interpretations of Islam by
turning to a line of argument traditionally posited by Islamic reformists and
human rights advocates “ embedding the human rights framework within
Islamic discourses as a means of extending the currency of their message:

Humanity is what unites us all. So absolutely there is space to move within Islam,
within the basic principles. I am in Yemen and you are in America. Humanity
unites us both. Justice unites us both. Freedom unites us both. So, Islam is an
invitation to open up to the world, not for Muslims to be alone or a state on its own.
Unfortunately, some Muslims have this vision that they should be isolated from the
whole world.93

When asked if Western criticisms of Yemeni human rights violations are
legitimate, Kahtan echoes the sentiment of Abd al-Mun™em Abu-l-Futuh
cited above, stating that the areas of divergence are limited to issues such
as polygamy and equal inheritance for men and women but that there is
mutual agreement on the core. Again, it is telling what is considered the
core and what is considered minor or peripheral, though that has long been
a feminist critique of the international legal order and is not limited to
Yemen™s Islamists.
Political scientist Janine Clark describes earlier developments in Jordan™s
IAF party surrounding women™s participation that seem to roughly parallel
the course taken by Islah:

Relative to many other parties in Jordan, the IAF boasts a large female membership
and a substantial number of women in leadership positions. The IAF has some 300
female members, which, according to the party leadership, constitutes approximately
ten percent of the total membership. A women™s sector, headed by a committee of
ten women, represents women within the party and recruits new female members.
To this end, it hosts educational programs on women™s rights in Islam and organizes
activities on political issues of concern to women.94

Clark™s focus, however, is on the ways this progress is tempered by the
fact that women™s involvement is often linked with husbands™ or fathers™
associations to the party, that women are not represented in the party™s
highest decision-making body, that in practice women are discouraged from
running for public of¬ce, and that in a rare case where a women was nom-
inated as an MP candidate, it was for strategic reasons. Although these
dynamics are clearly at play, they do not preclude the prospects of mean-
ingful advances in women™s rights and gender-consciousness stemming from
women™s increased presence in the party. In other words, regardless of the
93 Id.
94 See Janine A. Clark, supra note 85.
198 AFTER ABU GHRAIB


patriarchal and strategic reasons behind their entry into Islamist party pol-
itics and the political sphere within which they operate in general, as they
experience limitations from patriarchal structures while at the same time
being exposed to more emancipatory ideas about gender equality through
their interactions with local and international activists, their consciousness
can come to diverge from that of the party™s male elite to whom they may
increasingly pose challenges. This is illustrated by Clark™s own report that
although the IAF™s male leadership rejected the implementation of quotas for
female members of Parliament, women inside the party embraced a quota
policy.
Whether it is in the realm of civil and political rights or to less acclaim in
the realm of women™s rights and participation, the willingness of Islamists
to engage with the human rights framework and negotiate its terms is a
dramatic progression from previous positions that were more likely to take
the relativist stance as their starting point. Both because key Islamist leaders
have recognized the strategic importance of working with the framework
and because human rights™ logic and underlying prescriptions of justice
increasingly converged with Islamists own worldview and contemporary
experiences, the Islamist view of the international human rights order as
unauthentic, imposed, or imperialist was to a signi¬cant extent unsettled.
Instead, Islamist discussions on human rights were marked by a new tone,
one that rendered human rights a subject of discussion and deliberation.
Such a shift, in turn, increased the concepts™ internal presence, autonomy,
and legitimacy.


CONCLUSIONS

This chapter does not purport to present an assessment of the success or
failure of the human rights project in the Middle East following September
11th. Instead it attempts to highlight the many layers of the Middle East-
ern encounter with human rights in the post“September 11th era. American
human rights violations in Iraq and beyond, as well as the tremendous
human suffering directly or indirectly attributed to the American military
intervention in Iraq, were seen as indicative of both Middle Eastern disem-
powerment, dispossession, and tragedy vis-a-vis American hegemony and
`
human rights powerlessness to meaningfully challenge it. At the same time,
“the Iraqi theater” led to an unprecedented resonance of the human rights
ideal, which gave expression to their plight and aspirations for justice even
as its realization and practice lagged behind. At the same time, outside the
Iraqi context, American human rights promotion initiatives provided impor-
tant (though often circumspect or unintended) openings for the furtherance
of the human rights project. Consequently, the post“September 11th era
199
THE MIDDLE EAST™S NEW HUMAN RIGHTS LANDSCAPE


has offered a unique moment in contemporary Middle Eastern history in
which Middle Eastern governments, populations, and Islamists simultane-
ously adopted and engaged with human rights discourses to varying degrees.
Even those who invoked the norms instrumentally were not entirely immune
from also being either attracted by its promise or gripped by its normative
and evaluative in¬‚uences, resulting in a transformed knowledge, conscious-
ness, and discourse.
FIVE




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




In the post“September 11th era, the international human rights project has
been faced with formidable challenges, arguably even crises. Although link-
ages between human rights and hegemonic discourses can hardly be consid-
ered unique to this era, their manifestations have rarely been so transpar-
ent and centrally positioned in global affairs. Middle Eastern governments™
violations of a full array of internationally recognized rights persist. Amer-
ican violations have included torture, egregious denials of due process,
and, even more troubling the suffering and denials of human dignity stem-
ming from war that often do not even appear on global human rights
radars.1
Despite these concerning trends, developments since September 11th
demonstrate that power dynamics can hardly be reduced to a simple
one-dimensional calculus of domination and resistance. They can also be
subverted and entrapped by their own con¬nes. Accordingly, the post“
September 11th era has also seen Arabs and Muslims returning the human
rights gaze after Abu Ghraib, a Yemeni human rights nongovernmental
organization (NGO) calling on the U.S. Supreme Court to restore Amer-
ican adherence to the rule of law, Americans seeking refuge in relativism
and Middle Easterners seeking refuge in universalism, and both societies
engaging with human rights in new and unprecedented ways. Perhaps more
importantly, it has provided key lessons for rights advocates about how
emancipatory and hegemonic human rights currents are intertwined and
revealed the need for the interrogation of old assumptions and strate-
gies. Thus, this last chapter is devoted to a ¬nal assessment of the ques-
tion: “What are the era™s key lessons for moving human rights advocacy
forward?”

1 Amid all of this, larger-scale global crises such as the AIDS epidemic and genocide in Darfur
have been overshadowed.



200
201
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


REVISITING THE EAST/WEST GEOGRAPHY OF HUMAN RIGHTS:
RECOGNIZING AMERICAN RELATIVISMS AND MIDDLE
EASTERN UNIVERSALISMS

Although the contentious debates surrounding cultural relativism versus
universalism that consumed global human rights politics and theory in the
1980s and 1990s have evolved (even died down to a large degree), the demar-
cation has endured, structuring post“September 11th human rights dynamics
through a ¬rm embeddedness within the con¬nes of the East/West geogra-
phy of human rights. In other words, even as the relativism/universalism
labels have fallen into relative disuse and many have in theory accepted
the need for more nuanced analytical tools, the binary™s core divisions and
assumptions survive. Taking an anthropological view, Jane Cowan, Marie-
Benedicte Dembour, and Richard Wilson contend that “universalism and
relativism cannot in themselves do justice to reality. The two terms are
umbrella terms for a range of different and changing political, moral and
legal positions.”2 Moreover, quoting Abdullahi An-Naim, the prominent
Western-based scholar of human rights in the Muslim world, “no coun-
try either fully accepts or fully rejects the universality of human rights.”3
Accordingly, this section™s focus on “American relativisms” and “Middle
Eastern universalisms” does not stem from any notion that either label can
be applied exclusively to one context or the other; rather, it is an attempt to
shed light on the inaccuracy of traditional assignment of universalism to the
United States and relativism to the Middle East. A second reason the univer-
salism/relativism dichotomy is invoked here is to argue for a reassessment of
prevailing distinctions between justi¬cations for human rights contingency
and noncompliance based on who invokes them and how they are packaged.
The vastly differing treatment of justi¬cation for rights violations viewed as
stemming from culture and religion in the Eastern context and justi¬cations
for rights violations presented as security and political imperatives recog-
nized by Western states requires thorough reexamination. Put differently, a
crucial lesson emerging from the post“September 11th era is that much of
what passes as universalism or a temporary aberration from universalism
is, in actuality, indistinguishable from what is considered relativism in other
contexts or the distinctions that are put forth and largely accepted are often
dif¬cult to justify.

2 JaneK. Cowan, Marie Benedicte Dembour, and Richard Wilson, Introduction, in Culture
and Rights 30 (Jane K. Cowan, Marie Benedicte Dembour, and Richard Wilson eds.,
2001).
3 Abdullahi A. An-Naim, Introduction: “Area Expressions” and the Universality of Human

Rights: Mediating a Contingent Relationship, in Human Rights and Diversity: Area
Studies Revisited 3 (David P. Forsythe and Patrice C. MacMahon eds., 2003).
202 AFTER ABU GHRAIB


The contention that American adherence to human rights can be highly
contingent, not universal, has been made by numerous scholars. Noted
human rights scholar David Forsythe has commented that “the U.S. endorses
international human rights in the abstract but practices a human rights pol-
icy that re¬‚ects cultural relativism and national particularity.”4 Equally,
An-Naim has cited U.S. assertions of national sovereignty as just as relativis-
tic as those posited by China or Iran.5 It is the post“September 11th era™s
whirlwind of human rights violations, legal contests, and American/Middle
Eastern interactions, however, that have brought out the perceptiveness of
these contentions. When the United States™ posture toward human rights“
related international legal obligations so closely resembles that of more
repressive states, it can hardly be surprising that American human right
practices can come to mirror those of repressive states, given conducive
leadership and circumstances. This is precisely what has transpired in the
post“September 11th era. A preexisting contingent legal disposition gives
way to increasingly contingent human rights practices.
The following two news accounts, one of American complaints to Saudi
Arabia regarding the imprisonment of three individuals who had urged the
Saudi government to adopt a constitutional system and the second detailing
Kuwaiti complaints of American Guantanamo detentions, demonstrate just
how much American and Middle Eastern human rights discourses and prac-
tices converge. The ¬rst account is of an exchange following a June 2005
speech in Cairo in which the U.S. secretary of state had criticized the Saudi
action through a universalist premise that the acts prompting arrests of local
activists “should not be a crime in any country.”6 The Washington Post
reports:

In Riyadh, the Saudi capital, Rice met with Crown Prince Abdullah, the kingdom™s de
facto ruler, and other of¬cials. She later told reporters that she had raised the issue
of the three jailed petitioners with the crown prince, reiterating that their actions
“should not be a crime.” But the foreign minister, Prince Saud Faisal, responded that
they had broken Saudi laws and that the matter was therefore in the “hands of the
court.” Saud, who said he had not read a transcript of Rice™s Cairo speech, asserted
that Saudi Arabia would undertake reform at its own pace and in accordance with
its traditions.7


4 David P. Forsythe, U.S. Foreign Policy and Human Rights in an Era of Insecurity: The
Bush Administration and Human Rights after September 11th, in Wars on Terrorism
and Iraq: Human Rights, Unilateralism and U.S. Foreigh Policy 91 (Thomas G.
Weiss et al. eds., 2004).
5 See Abdullahi A. An-Naim, supra note 4, at 3.
6 Glenn Kessler, Rice Criticizes Allies in Call for Democracy, Washington Post,

Jun. 21, 2005, at A01 http://www.washingtonpost.com/wpdyn/content/article/2005/06/20/
AR2005062000468.html?referrer=emailarticle.
7 Id.
203
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


The second account is of an exchange that takes place just three months
later between the Kuwaiti and American foreign ministers following reports
of widespread hunger strikes among Guantanamo detainees and subsequent
forced feedings by prison authorities. Here, an AFP article reports

Kuwait™s foreign minister has urged the United States to resolve the issue of hundreds
of Muslim detainees imprisoned at Guantanamo Bay, Cuba. Sheikh Mohammad al-
Sabah said he told U.S. Secretary of State Condoleezza Rice that “Guantanamo
represents a moral and legal challenge to the United States.”
....
I told Secretary Rice about reports on the health condition and the hunger strike
by the inmates and that this was unacceptable to GCC (Gulf Cooperation Council)
states.8

When coupled with repeated assertions by Bush administration of¬cials
that Guantanamo detainees are dangerous men who have committed war
crimes and will be tried accordingly, it is dif¬cult to qualitatively distinguish
between American and Middle Eastern charges of human rights violations
against each other and corresponding defenses rooted in relativism.
An exchange between the International Court of Justice™s Roslyn Higgins
and U.S. Secretary of State Condoleezza Rice at the 2006 American Society
of International Law annual meeting provides further parallels between the
American disposition and the type of relativism ascribed to Middle East-
ern contexts. When confronted with the contradictions between the United
States™ asserted universalist stance and its thwarting of the international
human rights legal framework in practice, Rice directly invokes cultural rel-
ativism. The exchange is cited at length because, when dissected, it provides
a wealth of material relevant to the current discussion:

Roslyn Higgins: I think it is very important to try and avoid, if it™s at all possible,
the impression in international relations that one is keen on human rights and other
people being made accountable but not opening oneself up to scrutiny. [Applause]
And most of the great allies of the United States have found these treaties quite livable
with and put up with the periodic investigations on their behavior under them. And
of course in my country it™s absolutely routine to be told by the Strasburg Court
you™ve got it wrong, that was not lawful, kindly change something, and it™s no big
deal. We do so. The culture is profoundly different.
Condoleezza Rice: Well, that™s the point, though. The culture is profoundly differ-
ent. The United States is a very different entity. With all due respect, we broke from
Europe. So the United States is different. [Applause] And the United States, of course,
has a very, very free press so it™s not as if human rights issues in the United States and
American behavior and behavior of the government is not very often up to scrutiny.
We also do have a separation of powers . . . there is congressional scrutiny of what is

8 Kuwait Chastises US over Guantanamo, Agence France Presse, Sept. 21, 2005, at XX.
204 AFTER ABU GHRAIB


done, there is legislative scrutiny through the judicial branch at all levels of the United
States. So it™s not as if the United States can somehow hide in a corner what we are
doing. But we have a very different culture, we have a very different history, and I
think that has to be respected. I would never say to Europe don™t pursue incitement
laws because we think that that would be a problem for freedom of speech. You
have a different tradition. And so we have to recognize that countries with different
traditions are going to view these things differently and I don™t think that it is the
purpose of international law or of international relations to simply agree for the sake
of comity.9

Again, this is an extremely rich exchange. Higgins is clearly troubled by
the impression of insincerity, hierarchy, and double standards in the West™s
application of international human rights norms left by U.S. policies, but,
at the same time, her concern comes across as being more focused on the
appearance of these elements than with their actual existence. Nonetheless,
she engages in the type of shaming American government of¬cials have
encountered throughout the post“September 11th era, and as a result, Rice
is forced to stray from the of¬cial universalist script and admit to subscrib-
ing to a contingent conception of human rights. The exchange provides the
perfect occasion for a reevaluation of the ingrained categories and assump-
tions within mainstream human rights discourses, namely, by revealing that
countries cannot be so neatly placed into relativist or universalist camps and
that there is a lot missed by starting out with assumptions of relativism in
Eastern contexts and universalism in Western contexts.
The series of exchanges also bring to light the overlapping terrains and
gray zones between cultural relativism and politically rooted motivations
for not adhering to human rights norms. In the Middle Eastern context,
much of what is labeled as cultural or religious relativism has less to do with
culture or religion and more to do with political and ideological agendas
expressed through cultural or religious discourses. In other words, appro-
priation of culture and cultural relativism have been a ¬xture of Middle
Eastern human rights violations and the appropriations have traditionally
been frequently obliged and accepted at face value by global human rights
forces anticipating the formulation. In the same manner American human
rights relativisms display intertwined political and cultural dimensions.
Militarism, glori¬cation of violence as the inevitable blunt instrument of
those ¬ghting the good ¬ght, and constructions of masculinity and sexual-
ity combine with neoconservative ideology and political power struggles to
produce the post“September 11th era™s array of human rights violations.
Ultimately, the outcome is that in their human rights dispositions Ameri-
can and Middle Eastern governments come to share many habits of human
rights relativism and contingency. The United States invokes the suf¬ciency
9 Conversation with U.S. Secretary of State Condoleezza Rice, American Society of Interna-
tional Law Annual Meeting (Mar. 29, 2006).
205
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


of “American values” and its constitutional tradition of rights to place the
United States™ actions above international human rights law. Middle East-
ern governments or Islamist leaders may similarly contend that Muslims
are answerable only to God, not a secular international order, and that
the moral guidance provided by the Islamic tradition is suf¬cient safeguard
against injustice. Both have traditionally had a reluctance to take on interna-
tional legal obligations beyond abstract odes to freedom and human dignity;
when they have taken on international legal obligations, both American and
Middle Eastern governments have constructed their obligations such that
they amount to little more than a commitment to obey existing domestic
laws. Finally, as the post“September 11th era has made abundantly clear,
Middle Eastern and American governments have demonstrated a contingent
adherence to rights in practice, through a shared willingness to deprive par-
ticular individuals labeled as “the enemy” of due process rights and subject
them to torture or cruel, inhumane, and degrading treatment.
Many would consider it a stretch to compare American human rights
practices with those of Middle Eastern contexts. In fact, it can hardly be
denied that the United States has a strong tradition of protecting rights. I
was reminded of the rooted nature and substance of the American commit-
ment to observing rights in perhaps the most unlikely of places “ a restroom
at the American embassy in Yemen that was fully accessible to people with
disabilities, an observance of rights that was far removed from what I would
otherwise encounter in Yemen. Moreover, there clearly are greater levels of
civil and political rights, such as freedom from torture and arbitrary deten-
tion, accorded to an American citizen who seeks to exercise speech and
association rights from within. Thus, in comparing traditional political and
civil rights practices toward citizens, the United States can be seen as rel-
atively, though by no means absolutely, freer than many other countries
in the world. Yet, like almost any other country, American rights guaran-
tees have holes, contradictions, and inconsistencies and some of the United
States™ biggest rights achievements have emerged from decades of struggle
and oppression. More importantly, the American tradition and practice of
rights internally cannot capture the entire picture of American approaches
to human rights “ past or present. In fact, a comparison of American treat-
ment of its own citizens with repressive Middle Eastern countries™ treatment
of their citizens is full of distortions if one takes the notion of human rights
seriously. Instead, it is imperative to juxtapose each country™s treatment
of human beings, regardless of nationality or citizenship. Once one con-
siders American treatment of noncitizens to that of Middle Eastern states™
treatment of their citizens, American human rights violations in the post“
September 11th period are easily comparable and arguably worse, given the
human toll and impact of the war in Iraq, cases of torture or rendition to
torture, and the deprivations of liberty among the untold innocents among
206 AFTER ABU GHRAIB


the more than 83,000-plus individuals detained. As rendition victim Maher
Arar powerfully concludes in his testimony before American Congress, the
distance between human rights adherence and egregious human rights viola-
tions by those who espouse human rights commitments can be much shorter
than many have come to expect:

In sharing my story and experiences with you today, I hope that the effects of
torturing a human being will be better understood. I also hope to convey how fragile
our human rights have become and how easily they can be taken away from us by
the same governments that have sworn to protect them.10

Middle Eastern universalisms are equally important to recognize. The Mid-
dle East is often imagined as a third-world locale mired in cultural and
religious relativisms and inherently prone to violence and political dysfunc-
tionality. Yet a closer look reveals that, in many respects, Middle Eastern
popular aspirations lie in the realization of some form of universal rights
and not the exceptionalism and denial of internationally recognized rights
that has marked their history. In fact, because it emerges from their own
lived experiences of local and international abuses of power, the yearning
for the genuine achievement of human rights is quite arguably “ at speci¬c
moments throughout the post“September 11th era, at least “ more widely
and deeply felt by Middle Easterners than by the Americans mired in social
and political debates over when it is appropriate to dispense with human
rights guarantees. Polls gauging American views during the post“September
11th era have repeatedly shown that a sizable number of Americans oppose
the absolute prohibition of torture mandated under international human
rights law.11 Perhaps most fascinating is a 2006 BBC poll that surveyed cit-
izens of twenty-seven countries and found that in the United States 58 per-
cent of those polled believed there should be clear rules against torture while
36 percent believed some degree of torture should be allowed. The same sur-
vey found that, in Iraq, the numbers were 55 percent for strict rules against
torture to 42 percent for some allowance of torture and in Egypt they were
65 percent for strict rules against torture and 25 percent for some allowance
of torture.12 The fact that the percentage of Americans willing to accept
some practice of torture is lower than the percentage of Egyptians with the
same view and not leaps and bounds higher than the percentage of Iraqis
with the same view, despite the level of insecurity and chaos in Iraq, is telling.
10 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)
http://judiciary.house.gov/hearings/hear_101807.html.
11 See, for example: Poll Finds Broad Approval of Terrorist Torture, The Associated Press,

Dec. 9, 2005, http://www.msnbc.msn.com/id/10345320.
12 World Public Opinion.org, World Citizens Reject Torture, BBC Global Poll Reveals,

Oct. 18, 2006, http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/
261.php?nid=&amp;id=&amp;pnt=261&amp;lb=bthr.
207
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


Given these parameters, the post“September 11th era brings out an acute
need for the reconceptualization of the de¬nitions of culture, relativism, and
universalism adopted within the human rights paradigm. To the extent that
relativism (particularly in its most opportunistic and co-opting forms) is to
be stigmatized and countered as an unacceptable form of violating interna-
tional human rights norms, all of its manifestations should be treated with
the same level of skepticism and scrutiny. There should be a conscious effort
on the part of human rights advocates to avoid the tendency to emphasize
deviations attributed to Eastern culture or religion and in fact tolerate their
invocation as rationales for outside intervention while using less damming
criteria in assessments of “national security” and “¬ght for freedom” ratio-
nales for thwarting international law. If universalism is understood as the
ideal human rights behavior occupying the opposite end of the spectrum,
then the understanding of the bar for recognizing universalism should also
be expanded, such that it encompasses not just the violations emphasized
by Western “human rights promoters,” including the United States, but
those more comprehensively correlating with the lived experiences of pop-
ulations on the other end of global and local power dynamics. As a later
section will take up, within the current discussions this means seeing and
challenging the profound human rights consequents of American wars and
militarism.
Beyond the need for reconceptualized visions of relativism and univer-
salism, a broadened and more complex understanding of culture must be
adopted. There is now a strong case to be made for understanding culture
as Sally Engel Merry and other anthropologists have described it: dynamic,
unbounded, contested, multifaceted, intertwined with power relations, and
equally present in Eastern and Western contexts.13 Key to considerations of
culture and its compatibility with rights in the Eastern as well as Western
contexts is moving beyond equating culture with long-standing traditions
and customs thought to be stagnant. Such a disposition allows for activists
to focus on the cultural roots of violence and patriarchy and its linkages
to post“September 11th human rights developments not only in the Middle
Eastern context but also in the American context.
This process of linking American human rights violations and culture
brie¬‚y surfaced in both liberal and conservative media outlets in the immedi-
ate aftermath of Abu Ghraib. This commentary in the conservative American
magazine The National Review is quoted at length because of its elaborate
engagement with the rights and culture nexus in the American context:
So it is that in Abu Ghraib and its aftermath we see some of the seamy undercurrents
of America magni¬ed in a horrifying fashion “ in particular, the celebration of cruelty,
the ubiquity of pornography, and a cult of victimhood. Any society, of course, will

13 SallyEngle Merry, Human Rights Law and the Demonizing of Culture (and Anthropology
along the Way), 26:1 Pol.Legal Anthropology Rev. 55 (2003).
208 AFTER ABU GHRAIB


produce weak and malicious people, and prison abuses are nothing new. . . . But the
distinct echoes of Abu Ghraib in our culture are unmistakable.
Consider the iconic ¬lm of the 1990s, Quentin Tarantino™s Pulp Fiction. It includes
a scene of the rape of a man imprisoned and kept as a sexual slave, which prompted
laughs in theaters. The victim, “The Gimp,” became a ¬gure of fun. Tarantino™s
latest, the Kill Bill movies, present the same romance of power and violence, arbi-
trarily and stylishly wielded. Cruelty, Tarantino tells us, can be fun.
This is not to say that the ¬lmmaker, or anyone besides those who committed and
condoned the acts, is in any way responsible for Abu Ghraib. It™s just that Tarantino “
and he™s not the only one “ touches something within us that enjoys exalting the
strong and humiliating the weak. And not just on movie screens. Large men forcibly
sodomizing smaller men in U.S. prisons is widely made light of in America.
So, it was shocking to see a large gloved man smiling in a picture with his arms
crossed as he stood over a pile of naked Iraqi detainees, but there was something
familiar about it too. The apotheosis of the strong. There was something familiar in
the picture of Lynndie England, with a cigarette dangling from her lips, pointing her
¬nger at the genitals of a naked detainee. We know what she™s doing in that picture “
she™s trying to seem cool. She thinks that cruelty is a game, that the strong engage in
it casually.
Then, there is the very fact of the pictures. The American jailers, who live in a country
where pornography is a $10 billion-a-year business, became amateur pornographers.
They videotaped themselves having sex with one another. One of the of¬cers dis-
ciplined at Abu Ghraib allegedly took pictures of female soldiers showering. The
Americans sexually humiliated Iraqi prisoners, forcing them to masturbate, to wear
women™s underwear, and to commit (or feign committing) unnatural acts, and cap-
tured it on ¬lm. If they had done this stateside in different circumstances, they might
be very rich and perhaps even up for an Adult Video Award.14

Similarly, a column in The New York Times entitled “Jesus and Jihad” made
a connection between widely popular evangelical literature that glori¬es the
demise and torture of “in¬dels” and rights violations against Muslims:
No I don™t think the readers of “Glorious Appearing” will ram planes into buildings.
But we did imprison thousands of Muslims here and abroad after 9/11, and ordinary
14 Rich Lowry, Abu Ghraib and US: Don™t Judge Us by Those Photos, National Review,
May 11, 2004, http://www.nationalreview.com/lowry/lowry200405110847.asp. See also
Karin Chenoweth, Fallout from Abu Ghraib, N.Y. Times May 7, 2004, at A32, in which a
reader writes:
The treatment of the prisoners at Abu Ghraib raises the question of how much pornography
has permeated our culture. We as a society have turned a blind eye to the $4 billion
industry that turns mostly on sexual humiliation, because most of us consider it to be a
private matter that involves consenting adults. But when pornography is so pervasive that
I receive it unbidden in my e-mail, it has become part of what the late senator Daniel
Patrick Moynihan (D-N.Y.) described as “de¬ning deviancy down.” Photographing and
videotaping the sexual torture and humiliation of prisoners is a new twist. We must at least
consider the possibility that widespread, unutterably crude pornography has altered the
norms of behavior governing some Americans.
209
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


Americans joined in the torture of prisoners at Abu Ghraib in part because of a lack
of empathy for the prisoners. It™s harder to feel empathy for such people if we regard
them as in¬dels and expect Jesus to dissolve their tongues and eyes any day now.15

Although neither an indictment of violence and pornography within Amer-
ican society in a conservative publications such as The National Review
nor an indictment of evangelical extremism in a more liberal publication
like The New York Times are new, the linkages between American cultural
and religious phenomenon and the human rights violations they encompass
arguably are.
Beyond this initial foray into human rights and culture analysis among a
handful of columnists in the media following Abu Ghraib, American human
rights advocates came to recognize that a key dimension of their strategy
to combat “War on Terror” human rights violations necessarily had to
be cultural. With the most highly rated and acclaimed television dramas
regularly depicting and glorifying torture on American television and sales
of t-shirts that say, “I™D RATHER BE WATERBOARDING” in the post“
September 11th era, human rights was as much of a cultural transplant
to the United States as it was to the Middle East. As noted in chapter 2,
once American advocates recognized this, they began to embark on cultural
initiatives such as Human Rights First™s pioneering “Primetime Culture”
project that targeted the damaging depictions of torture in popular American
television dramas.
Advocates also increasingly began to contemplate coalition-building and
engagement with religious ¬gures and institutions. When a discussion of
human rights activists™ strategies in countering Bush administration poli-
cies erupted in November 2007 on one of many listservs subscribed to by
American human rights and civil rights advocates who consider questions of
post“September 11th detainee rights and torture issues, one of the group™s
leading voices suggested enlisting the aid of religious institutions. “I do think
there is one thing that could turn the debate around: churches,” he writes.16
He contends that if religious institutions such as the country™s churches,
synagogues, and mosques added the torture issue to their sermons in the
manner in which some of these religious institutions take on issues like
abortion, public opinion on the matter could be moved. This would in turn
create the impetus for the type of unequivocal action banning torture by CIA
interrogators American politicians are currently reluctant to take. “Unless
and until this becomes an outrage in religious communities nationwide and
the broader implications for treaty-compliance generally are appreciated,
I™m afraid there will be no inclination in Congress to bring a halt to the

15 Nicholas Kristof, Jesus and Jihad, N.Y. Times, Jul. 17, 2004.
16 Entry by American civil rights lawyer on listserv on post“September 11th torture policies
(Nov. 11, 2007; quoted with permission of the author).
210 AFTER ABU GHRAIB


program” he concludes.17 The parallel to the Women™s Forum for Research
and Training initiative to train sixty imams to educate mosque attendees
on women™s rights in Yemen (detailed in chapter 4) is striking. Although
recourse to such strategies of religious engagement remained minimal in the
post“September 11th campaigns waged to date in the United States, that
they are considered signals an increased awareness of the various intercon-
nections between religion and human rights not thousands of miles away
but in American human rights advocates™ own backyards.
Thus, the lessons to be drawn in the relativism/universalism realm that
has so occupied the international human rights project since its inception
are clear. In the ¬nal analysis, if it is to achieve greater success, advocates
have to reexamine the contours of the framework™s engrained dichotomous
discourses “ rights versus culture, East versus West, and relativism versus
universalism. Instead of obliging governments™ various appropriations of
culture, human rights, relativism, and universalism in the pursuit of political
agendas, human rights discourses should more effectively unveil and dissect
them.


REFINING HUMAN RIGHTS FRAMES

As chapter 1 laid out, in the post“September 11th era, ontological rights-
based identity constructions were widely deployed by the Bush administra-
tion to justify both American military interventions in the Middle East and
human rights violations committed within those interventions. Accordingly,
“America as leader of the free world and destined purveyor of rights and
democracy” comes to occupy the fore of the administration™s rhetoric justify-
ing post“September 11th interventions. At the same time, American human
rights advocates often adopted variations of the same ontological formula-
tions in their efforts to challenge existing American human rights violations
and compel American political pressure on Middle Eastern allies responsible
for egregious human rights practices. Calls for the United States to reassume
its human rights leadership position, frames of human rights violations as
inherently un-American, and deployments of “it™s about us, not about them”
carried strong undercurrents of predestined East/West hierarchy. The same
was true of widespread constructions of the harm of post“September 11th
American violations as primarily rooted in the global precedents they set
and the ways in which they undermined the work of human rights advo-
cates worldwide. Thus, for much of the post“September 11th era, many of
the identity and role constructions deployed by Bush administration of¬cials
and human rights advocates overlapped. For instance, both the U.S. Defense
Secretary Donald Rumsfeld and human rights advocates called Abu Ghraib

17 Id.
211
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


“un-American” and inconsistent with American values.18 Both George W.
Bush and human rights advocates framed global human rights promotion
as an essential American role. In each instance, the argument being made
started from the premise that the United States has an inherent commitment
to universalism and human rights promotion.
It is not dif¬cult to understand how calling on the United States to resume
its “natural” leadership role in the human rights ¬eld or return to its essen-
tial rights-promoting self is an attractive option for advocates attempting
to challenge American human rights practices within the precarious post“
September 11th climate. Linking human rights to existing norms and iden-
tity constructions is a key strategy employed by activists worldwide and ¬ts
squarely within the constructivist framework. Such frames undoubtedly hold
tremendous promise of fostering the internalization of human rights norms
and limiting the range of acceptable behavior by tapping into existing domes-
tic discourses. This is particularly important in cases where international
human rights discourses have little domestic resonance or have been affec-
tively delegitimized through a rise in domestic discourses such as nationalism
or, in third-world contexts, anti-imperialism. Certainly in the ¬rst few years
of the era, it seemed that human rights advocates had few available avenues
for challenging the legal interpretations, policies, and discourses being put
forth in the name of “national security” and “protecting freedom” in a way
that made substantial impact other than posing their arguments in terms of
essential American values and leadership. Further, although American-based
international nongovernmental organizations (INGOs) are likely to dispel
Middle Eastern identity constructions that justify human rights violations
in the name of Islamic values, they are less willing to really dissect Ameri-
can identity constructions and assertions of “distinctive values.” Again, the
tendency cannot be summed up in Orientalism. It is easy to see how human
rights NGOs would intuitively gravitate toward identity constructions built
around adherence to human rights.
However, there is ample reason to consider re¬ning such constructions.
Consider an exchange between Dana Rohrabacher, the ranking Republican
on the Subcommittee for International Organizations, Human Rights, and
Oversight of the House Committee on International Relations, and Maher
Arar, the Syrian-Canadian victim of an American rendition, during a U.S.
House of Representatives hearing held on the topic of extraordinary rendi-
tions and Arar™s case. After having likened the Arar case to a wide array of
incidents of unfortunate but inevitable “human errors,” including medical
mistakes and friendly ¬re, and recounting the extraordinary circumstances
presented by the September 11th attacks, Rohrabacher seeks an af¬rmation

18 United States Senate, Testimony of Secretary of Defense Donald H. Rumsfeld before the
Senate and House Armed Services Comittees, May 7, 2004, http://armed-services.senate
.gov/statemnt/2004/May/Rumsfeld.pdf.
212 AFTER ABU GHRAIB


that essential American values mitigate American culpability in cases like
Arar™s:

Rohrabacher: Do you think that what you went through re¬‚ects the values of the
American and Canadian people or do you accept the fact that this was a mis-
take “ the Canadians have already apologized, a lot of Americans have apologized,
but our government has yet to apologize. Do you accept that as a re¬‚ection that
we as a people really do not go along with the type of treatment that you went
through . . . for someone who is an innocent person and someone who is not engaged
in terrorism?
Arar: I would have believed this was an innocent mistake if this was not happening
to others. There seems to be a pattern where other “ the number we heard was 100 “
where people are being sent to other countries to be tortured, and this is regardless of
whether those people are true terrorists or not. To send people to torture under any
circumstances is wrong. We now know that most of the information the Americans
had was inaccurate or false, but even, even if all this information was true, it does
not justify sending me to Syria. I should have been sent back to Canada.
And what is troubling, even if you assumed that it was a mistake, a civilized country
like the United States, they should take action to try to remedy the situation. They
should not take the position they have been taking in courts to try to dismiss my
case, using state secrets claims. I call that abuse [that is] ongoing. They have not
allowed me to pursue justice in courts. When a person is wronged, the best place to
go is courts. But so far, unfortunately, I have not been able to establish trust in the
system.19

Throughout Arar™s testimony one gets the sense that he at one time believed
and would like to be able to continue to believe in the “America as the
civilized beacon of human rights” narrative. Yet his own experience with
nearly a year of torture after rendition to Syria, an American government
that admits no wrongdoing in his or the slew of other rendition cases, and
his inability to achieve justice within the American judicial system leave
him little choice but to recognize its unreliability. Arar is accordingly forced
to challenge the American congressman™s attempt to justify a contingent
application of human rights by invoking essential American values as a sub-
stitute for human rights“consistent action. Arar™s response is tangential to
the immediate discussion. Rohrabacher™s attempt to erase American culpa-
bility by invoking essential American identity constructions suggests that
human rights advocates™ use of similar ontologically based arguments for
American human rights compliance may have serious limitations and coun-
terproductive outcomes. In other words, advocate™s construction of calls for
a resumption of essential American human rights identity often too closely
resemble, feed, or reinforce the nationalism, exceptionalism, and hierarchy
from which Rohrabacher™s and similar arguments justifying rights violations
¬‚ow. This is particularly true when such calls are not constructed carefully
19 See Maher Arar, supra note 10.
213
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


enough to compel human rights promotion and adherence while foreclosing
avenues for human rights appropriations.
In addition to explicitly making ontological “human rights violations are
un-American” claims, many human rights advocates™ calls for the resump-
tion of American human rights leadership roles are ¬rmly rooted in the same
underlying constructions. Consider, for example, this statement by Human
Rights First Washington director Elissa Massimino at a Georgetown Law
Center forum titled “War, Terror, and Human Rights”:
And as a human rights activist, I also have to say that the bigger reason for us that
is so critical: these policies undermine U.S. leadership in the world on human rights
and so I™m often asked, when I am in meetings with government of¬cials, “Why are
you focusing so much on these few problems that we™ve had when the U.S. is a leader
on human rights and all hell is breaking loose in Darfur. Look at North Korea. Don™t
you have something better to do?” And I wish with all of my heart that I could spend
more of my time like I used to, which was working on what the U.S. could do to
get Robert Mogabe in Zimbabwe back treating his citizens with respect for human
rights. But what we hear nearly every day from our colleagues from these countries
around the world . . . is “get your damn country back on track because it™s killing us
and we can™t do what we are trying to do on our own societies when our government
uses the example of the United States as cover for what they are doing.” But to solve
any of those problems, Darfur among them, we have to have the United States at its
most powerful in terms of its leadership on human rights. And if we can™t ¬x these
problems, we can™t get there and those problems can™t be solved. So this motivates
groups like me to spend so much time trying to make this better. Because until we
do, the United States won™t be able to play the role it™s been playing.20
Although, as chapter 4 lays out, it is true that American disregard for inter-
national standards presented tremendous challenges to the advancement of
human rights worldwide, viewing this fact as a primary rationale for human
rights advocates™ American campaign re¬‚ects a vision that at its core, the
human rights project is meant to correct the behavior of other, mainly third
world, countries and that the United States™ destined role is to lead not fol-
low. It can accordingly enjoy greater prerogative in determining when it is
necessary to intervene militarily based on human rights rationales. In other
words, as Amy Bartholomew has suggested, such prescriptions are akin to
calls for the United States to resume its role as “benevolent hegemon.”21
20 Presentation by Elisa Massimino at the 1st Annual Samuel Dash Conference on Human
Rights, Georgetown Law Center (Apr. 10, 2006).
21 Amy Bartholomew, Introduction, in Empire™s Law: The American Imperial Project

and the War to Remake the World 8 (Amy Bartholomew ed., 2006). Bartholomew
cites the following passage from an Amnesty International press release (Report 2005: A
Dangerous New Agenda, May 25, 2005):
The USA as the unrivalled political, military and economic hyper-power, sets the tone for
governmental behaviour worldwide. When the most powerful country in the world thumbs
its nose at the rule of law and human rights, it grants a license for others to commit abuse
with impunity and audacity. From Israel to Uzbekistan, Egypt or Nepal, governments have
openly de¬ed humanitarian law in the name of national security and ˜counter-terrorism™.
214 AFTER ABU GHRAIB


The form of power in operation is key to the argument. The use of mili-
tary force, imprisonment of tens of thousands of “War on Terror” detainees,
commission of acts of abuse and torture, and maintenance of close ties with
governments with egregious human rights practices are the more outwardly
apparent manifestations of American power. However, in many respects it
is the more constitutive manifestation of power that sets the stage for much
of these more overt exercises of power. The United States as inherent human
rights observer or inherent human rights leader is a powerful construction
that facilitates the more conventional forms of military and economic power
deployed. The inaccurate portrayals of American human rights practices and
commitments within prevailing identity and role constructions are danger-
ous because the more the construction is internalized, the greater the chance
that violations will be overlooked or dismissed and denials or justi¬cations
accepted. The more they have internalized the identity and role construc-
tion, the less vigilant or predisposed human rights advocates (much less an
American public on whose consent American military interventions would
depend) will be to identifying human rights violations or appropriations.
If ontologically based identity constructions are used uniformly by human
rights advocates and detractors alike, when the president declares freedom
and human rights to be America™s calling, governmental and nongovern-
mental actors as well as a less than skeptical public will be more inclined
to accept it. The constructions can thus enable the American governments
to exercise power in the name of human rights and democracy as the Bush
administration has in Iraq while obscuring American™s ability to see the
violence and denials of human dignity committed in their names and allow-
ing them to take comfort in their identities constructed as human rights
champions. As Cyra Choudhury observes:

Even in opposing the war, so eminent a statesman as Robert Byrd reiterated this
identity describing America as “a country which believes in justice, the rule of law,
freedom and liberty.”22 Such patriotic and wholesome formulations of who we are
leave little space to examine how we can fall far short of and act if not be exactly
the opposite of what we claim to be. And the rei¬cation of this identity forecloses
the possibility of considering our culpability in any serious manner. The converse
side of this identity equation, then, is the “Other.”23

In other words, placing the United States as the world™s a priori human
rights devotee or leader distorts the true image of American exercises of
power “ whether military interventions or human rights violations “ permit-
ting them to be more readily viewed as rooted in good intentions, benign, or

22 Cyra A. Choudhury, Comprehending “Our” Violence: Re¬‚ections on the Liberal Univer-
salist Tradition, National Identity and the War on Iraq, 3:1 Muslim World J. Hum. Rts,
9 (2006), available at: http://www.bepress.com/mwjhr/vol3/iss1/art2.
23 Id.
215
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


aberrant. In a related manner, when Americans and their values are por-
trayed as inherently compatible with human rights, they are accorded greater
authority and legitimacy to determine that they do not require international
human rights safeguards at home or abroad.
Because of the negative effects of invoking ontologically rooted Ameri-
can human rights identity constructions and roles, human rights advocates
should make every effort to link identity-based frames not to something
essential or ordained but to actual commitments, practice, and even asserted
values and history. The frames should be constructed such that in high-
lighting traditions, behaviors, or values consistent with the upholding of
rights and human dignity, they do not wipe out inconsistent behavior and
values “ both past and present. In other words, American human rights
forces should move away from arguments surrounding America™s essence
and focus on American behavior. Although American history and asserted
values remains relevant, they are not determinative. Simply put, American
advocates need not necessarily abandon all invocations of American iden-
tity and traditions of recognizing rights; rather, they should take great pains
to avoid perpetuating the ¬ction of a destined and spotless American com-
mitment to human rights. Further, American human rights actors should
make every effort to not replicate U.S. government presentations of Ameri-
can values as universal and synonymous with the international human rights
order; instead they should present convergences and divergences between the
American experience and global human rights principles. Finally, American
human rights proponents must take on the challenge of framing their argu-
ments for American compliance in a way that does not rely on or reify the
East/West human rights hierarchies. In the end, the distinctions that should
be made are extremely subtle and often hinge more on tone and context
than what is being actually articulated. The difference may lie in framing the
human rights issues involved as presenting questions of “who we want to
be,” “who we should be,” or “who we have been” at a particular moment
in time rather than “who we are” intrinsically.
Many of these prescriptions are captured in an ACLU video commemo-
rating the 60th Anniversary of the Universal Declaration of Human Rights
(UDHR) in 2008. The video begins by introducing the declaration and
Eleanor Roosevelt™s instrumental role in its coming into being. Clips of her
speeches at the United Nations and pictures of her engaged in the drafting of
the declaration are accompanied by commentary describing her pivotal role
and noble motivations. Mary Robinson, the former UN High Commissioner
for Human Rights, states:
It™s much more than a declaration; it™s a breakthrough for humanity. It happened
in a very fearful world in 1948 and it happened in the context of a relatively new
United Nations, a new Commission on Human Rights, chaired by an American
woman, Eleanor Roosevelt, who worked with a number of eminent jurists and
216 AFTER ABU GHRAIB


knew how to bus them into writing the Universal Declaration in straightforward
language.24

The video, however, does not simply project an idealized picture of Eleanor
Roosevelt and, by extension, the United States™ importance in the creation
of the UDHR to make a case for the international instrument™s relevance to
the United States. Two minutes into the piece, human rights scholar Cather-
ine Powel injects another layer into the message being developed: “One of
Eleanor Roosevelt™s less celebrated roles is the fact that she worked against
enforcement of the Universal Declaration of Human Rights to assuage the
concerns of segregationists in the South,” she explains.25 From there, the
video focuses primarily on the United States™ history of exceptionalism in its
treatment of human rights and the way activists are attempting to implement
international human rights standards at home.
Overall, because the promotional video is produced by the ACLU, which
has a long tradition of openly criticizing U.S. government action, the “UDHR
at 60” video tilts more toward highlighting American shortcomings and

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