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exceptionalism than American linkages or commitments to rights. Other
human rights organizations may opt for a different balance between the
various aspects of the complex American encounter with the international
human rights regime. The point in highlighting this particular video, how-
ever, is not to endorse its approach entirely but to put forth an intriguing
example of an attempt to present a more multidimensional and accurate por-
trayal of the American relationship with the human rights paradigm than
the one that emerged in the Gonzales con¬rmation and McCain amendment
initiatives presented in chapter 2.
Similarly, the post“September 11th era has crystallized the imperative
of premising calls for American human rights leadership on the United
States™ actual compliance with international norms at home and abroad,
not any ascribed essence. As laid out in chapter 4, although riddled with
inconsistencies and double standards, American diplomatic interventions
and promotion initiatives are not without the potential for tangible positive
impact. Whether it is out of an internalization of the identity constructions
being reinforced or out of the normative pressure to square American behav-
ior with human rights appropriations, the United States™ involvement with
human rights in the region has opened up new avenues for the strengthening
of the regime in many parts of the Middle East. Continued American inter-
ventions in the form of diplomatic pressure, and to a lesser degree, funding
and resources can be of much needed assistance to local movements. Thus,
while it is often overstated, when it does actually take-on principled and
consistent policies, American human rights advocacy can have a uniquely
24 American Civil Liberties Union, 60th Anniversary of the Universal Declaration of Human
Rights, http://www.udhr60.org/ (last visited Aug. 6, 2008).
25 Id.
217
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


positive impact. In fact, there seems to be something highly persuasive in
the world™s only superpower abiding by human rights constraints. After
September 11th, one of the few instances in which American human rights
commitments were discussed positively in the Middle East was in relation
to the fact that it was American journalists who uncovered the Abu Ghraib
story and that was made possible by virtue of American freedom of expres-
sion. Even El Obaid El Obaid, the UN human rights program director in
Sana™a and Sudanese-Canadian legal scholar who argues that American lead-
ership is not necessary and currently counterproductive, concludes, “If the
Americans applied their own principles consistently I think the world would
be a better place.”26 Consequently, it is not only important, it is arguably
inevitable, given current political realities, to think in terms of American
political intervention or leadership in the human rights realm. Even so, pro-
ponents should strive to ensure American human rights leadership is treated
as an earned status not simply an ontological attribute. What makes this
argument most pressing is of course the United States™ overwhelming mil-
itary and economic power and demonstrated willingness to enlist human
rights to the aid of that power. Human rights INGOs are responsible for
the consequences of the way they formulate their arguments for American
human rights leadership and compliance. They must formulate their argu-
ments in a way that challenges, not propels, the constructions leading to
post“September 11th military interventions. What distinguishes American
human rights advocates™ use of identity constructions and frames from sim-
ilar efforts by human rights advocates throughout the world is that the
consequences of American human rights activists™ constructions extend far
beyond their borders, as they are fundamentally built on global hierarchies “
that is, the United States is granted a status superior to other, primarily non-
Western, states vis-a-vis human rights. Though it can be fraught with a
`
myriad of its own trappings, Islamic feminists™ forays into contests over
what rights or status of women are Islamic or un-Islamic rarely affect actors
other than themselves and the local women whose rights they seek to elevate.
Thus, if there is one overarching and glaring lesson to be learned from the
post“September 11th era, it is that the United States can neither be viewed
nor portrayed as human rights compliant simply because it is the United
States. Instead, human rights advocates must attempt to link their frames
more closely to American actions.


AMERICAN MILITARY INTERVENTIONS AND HUMAN RIGHTS

From the Middle Eastern perspective, U.S. military interventions in Afghan-
istan and particularly Iraq lied at the heart of the region™s post“September
26 Interview with El Obaid El Obaid, UNDP, Chief Technical Advisor, UNDP Human Rights
Project in Yemen in Sana™a, Yemen (Jan. 24, 2007).
218 AFTER ABU GHRAIB


11th human rights tragedies. The faces of Iraqi children with bloody ban-
dages wrapped around their heads, the rubble of Iraqi houses, the despairing
screams and weeping of Iraqis losing a family member, accounts of lack of
electricity, sanitation, and medical facilities by humanitarian workers, and
the stories of the estimated one to two million Iraqi refugees ¬‚eeing the
violence in Iraq were a constant ¬xture of Middle Eastern news coverage
and public consciousness. In Jordan and Yemen, the human rights advo-
cates I met uniformly condemned American military interventions in the
region, viewing both speci¬c American actions and the violence spurred by
the American use of force as exacting an astounding human toll. As a result,
most of the Middle Eastern human rights advocates I met were just as vocal
about the Iraq War, occupation, and policies affecting civilians as they were
about torture, Abu Ghraib, and Guantanamo.
In Yemen, however, I came across indications that arriving at this stance
was often a more complex undertaking than it may appear. In two interviews
I encountered a perception that although traditional normative routes of
dialog, shaming, and framing had some impact, it was ultimately the threat
of force by the United States that had served as the biggest impetus for
numerous Middle Eastern states™ willingness to present initial openings for
human rights and democratic reforms “ openings that advocates were then
able to exploit.
An interview with Mohammad al-Tayeb, the former minister and current
chairman of the committee for Human Rights, Liberties and Civic Orga-
nizations of the Shura Council (Upper House of the Yemeni Parliament),
drew out the dilemma faced by rights proponents in the region. He began by
explaining that although Yemen, Jordan, and Morocco were Middle Eastern
countries that had embarked on processes of democratization and human
rights improvements before September 11th, in Saudi Arabia and other parts
of the gulf region, human rights were labeled as Western ideas meant “to
colonize us.” After 9/11, when the United States began to preach human
rights and democratization, these countries began to “shake.” Then, when
the Iraqi invasion unfolded, many countries were “waiting to see who was
next,” thinking Iraq was only “the beginning.”27 This propelled them to
institute limited reforms. However, when later in the interview I asked him
what he thought of the United States™ designation as the world™s human
rights model, he was quick to criticize the American use of force in the
region, prompting a fascinating exchange:

A: The United States is not the model, but what we live in this part of the world is
far worse than anything one can imagine. So we are not looking for the ideal. The
mistake the United States is making is that they do not use the proper reference and

27 Interviewwith Mohamad al-Tayeb, chairman of the Human Rights, Liberties and Civic
Organizations Committee in Yemen™s Shura Council and former Yemeni minister, in Sana™a,
Yemen (Jan. 21, 2007).
219
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


way of introducing themselves. For example, they are now ¬ghting in Iraq. This is
costing them almost $2 billion a week. Can you imagine if they used this money to
help these principles, these governments, these people. They can achieve so much
without spilling blood, without destruction.
Q: But you said these changes were triggered by U.S. involvement.
A: Yes, it was triggered, but I™ll tell you something . . . when they misused their
power . . .
Q: But if [there was] no threat [of the use of force], just this money [for human
rights promotion]..?
A: The money plus the threat, but not the invasion would have . . .
Q: But you think the threat is necessary?
A: Yes, this part of the world is most resistant to democracy on the whole Earth.
I mean, if you look at our history, the openness came when the Turks came and
French came to Egypt. . . . I don™t know why we are resistant to these principles. It
does seem to me that this part of the world does need some shaking.
Q: But it wouldn™t work with the economic incentives?
A: Economic incentives are very important for Yemen or Morocco. So the Americans
can use this money to pursue these ideas and principles.
Q: And if you get the reform in a few countries, it wouldn™t spread?
A: Of course, if you set a model in the region, then the others will follow.28

Al-Tayeb™s instinct to condemn the violence of American military action due
to its clear human costs but at the same time view the threat of such military
intervention as necessary for prompting reforms “ taking what is essentially
an impossible and incoherent position “ speaks to the dilemma faced by at
least some rights proponents in the region.
The discussion of the United States military interventions also ¬gured
prominently in my interview with Amal Basha of the Sisters Forum for
Human Rights. Like al-Tayeb, she also initially seemed at a loss in reconcil-
ing the devastating human rights outcomes produced in Iraq with her sense
that American interventions had opened up new possibilities for human
rights advances in the region, including Yemen:

Without this vigorous American intervention for democracy, those systems are not
going to allow democracy. We need the intervention because these leaders have been
resisting democracy . . . they are not going to allow real transformation. But at the
same time, there is this conduct [the American intervention in Iraq]. It™s really a
dilemma.29

28 Id.
29 Interview with Amal Basha, director, Sister™s Forum for Human Rights in Sana™a, Yemen
(Jan. 22, 2007). Manar Rishwani had made a similar point in Jordan, asserting that “If the
United States decided to stop talking about democracy, everything will vanish.” Interview
with Manar Rishwani, columnist for Al Qad Newspaper in Amman, Jordan (Jun. 6, 2006).
220 AFTER ABU GHRAIB


When I asked Basha what she thought would be the effect of the United States
stepping out of the picture and local human rights advocates being left with
human rights and civil society initiatives from countries like Denmark and
Canada, she speculated that the pace of reform and civil society development
would be signi¬cantly slower.30
However, in the end, although she recognized that a large part of the
Yemeni government™s responsiveness to American calls for reform stemmed,
at least to some degree, from the post“September 11th threat of force, Basha
simply could not validate the American use of force in the region:

We need the support of the U.S. and the West for building our capacities. By having
this dialog with the government, we need Western pressure. But when it comes to
military interventions, we are against military intervention, because in the end the
cost is too high. As civil society, human rights organizations we are against any type
of violence and any military intervention; it will come with it. We are not ready to
bargain with (inaudible) . . . we have to have a civil start, with all the support from
the outside.31

Taken together al-Tayeb and Basha™s re¬‚ections are quite revealing. At the
same time that they are instinctively critical of American exercises of power
through force and violence, their post“September 11th experiences seem to
provide evidence that these same realpolitik prescriptions have aided the
advancement of human rights goals in much of the region. However, in the
end neither can endorse American military action. Al-Tayeb, who is not a
human rights advocate but a politician with an apparent desire to see the
human rights project advanced in the region, attempts to sidestep the dif¬cult
choice posed by opting for only the threat of American force. Basha, who is
a seasoned human rights advocate, ultimately chooses an unequivocal rejec-
tion of American military interventions and is clear about the consistency of
that position with her human rights agenda. Once she considers alternative
paths (albeit promising less dramatic results) and weighs the costs of relying
on American uses of force, she simply cannot justify condoning American
military interventions such as the Iraq War.
El Obaid El Obaid expands on the stance of Middle Eastern human rights
advocates:

Most of the positive effects of this [American military threat as catalyst for reform]
are offset by the very strong reaf¬rmation of what I think in an eternal truth now.
That is, you cannot spread human rights through the use of force. So in that sense,
in an immediate country you may have a degree of change but in the normative
sense, the negative effect is a lot more in terms of actually to the extent that the
average person may associate any talk of human rights with an incredible, excessive,
arrogant use of force.32

30 See Amal Basha, supra note 29.
31 Id.
32 See El Obaid El Obaid, supra note 32.
221
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


Put differently, there is an ultimate recognition that the more human rights
are imbued with power the less persuasive they become. Despite the yearning
for American leadership on all sides and recognition of the mixed effects of
American military interventions, in the ¬nal analysis it is not the American
human rights package (whether through military interventions or co-opting
of the language of rights) that is able to sell the human rights project in the
Middle East. Instead, human rights is embraced because of its emanicpatory
potential and the avenues for challenging local and international impositions
of power it presents.
A ¬nal observation by Mohammad al-Tayeb speaks further to the pitfalls
of relying on American power through force:

Frankly speaking, those countries who did this [instituted reforms] against their
internal will, they are happy with what is happening now in Iraq, with the American
big dilemma in Iraq. So now the American government has already lowered their
rhetoric or their support to those ideas. They are no longer saying it as they used
to say as strongly as in the past. So this puts those governments at ease. Now some
of them are betting on the American failure in Iraq . . . some Arab countries who
feel that it™s better to have the Americans out with total failure than to have them
succeeding. So this is the problem. The problem is that it is the superpower that
ignited these ideas.33

Thus, as al-Tayeb articulates, a further problem with reliance on American
“human rights leadership” through force is that, in addition to sometimes
being hollow, it can disappear as quickly as it appeared.
The primary point brought out by these series of interviews is that
although American military interventions have had contradictory human
rights outcomes “ producing devastating results in Iraq but potentially con-
tributing to some openings in other parts of the region “ the immense human
toll and larger implications of such mass-scale violence set off by the war
simply cannot justify support for such military operations that are, at their
core, not humanitarian or otherwise legitimately grounded in the letter or
spirit of international norms and in fact provide the grounds for openly
challenging such military action.
In the United States the human toll of the Iraq War to Iraqi civilians
has hardly made a dent in American public consciousness or political dis-
courses. The little mainstream media coverage of the humanitarian crisis
in Iraq that has been produced has largely been limited to sanitized or
embedded forms that rarely provide a true sense of the war™s considerable
humanitarian toll. But perhaps most troubling for the purposes of this study
has been the leading U.S.-based human rights INGOs™ treatment of Ameri-
can military interventions and their human costs in the post“September 11th
era. Despite the repeated blurring of American military action and a human
rights, women™s rights, and humanitarian mission in Afghanistan as well
33 See Mohamad al-Tayeb, supra note 33.
222 AFTER ABU GHRAIB


as important cues that human rights and humanitarian discourses could be
deployed to (at least in part) legitimate the American military intervention
in Iraq, American human rights INGOs challenged neither the questionable
international law grounds on which the intervention lied nor the insertion
of human rights and humanitarian discourses into the mix of rationales pro-
vided for the intervention in the wake of the Iraq War. Instead, they took
the route of maintaining a neutral position on the war while insisting on
American adherence to international humanitarian law within the con¬‚ict.
Here I take a limited look at the leading American INGO, Human Rights
Watch™s stance vis-a-vis the Iraq War and its human rights dimension by
`
presenting (1) an interview with Joe Stork, the Deputy Director of Human
Rights Watch™s Middle East Division, in August 2008 and (2) a 2004 Human
Rights Watch statement on the subject. I ¬rst lay out the organization™s
position as I discern it from these two sources and leave my analysis of the
position and its implications for the end.
My interview with Stork was revealing in the contrast in tone and per-
spective to those of activists in the Middle East it brought to the fore. When I
asked him about how the Iraq War has affected discussions of human rights
in the Middle East, Stork offered what is in part a critique of Middle Eastern
advocates™ inability to pose a well-developed human rights challenge to the
war and in part a dismissal of the general Middle Eastern view of the war
and its human rights connections:
Of course, the rights groups in the region “ to the extent that they say anything at
all about this “ it tends to be pretty abstract and rhetorical and demagogic, frankly,
and so, it™s sort of “all the problems are the occupation” and “it™s a human rights
violation,” which is not how we see it. It™s all very black and white. I mean, I am
exaggerating slightly. I mean, I don™t know of any group in the region that in any
serious way has taken up the war . . . or the occupation for that matter . . . some of
them have exposed the massacres and so forth. I don™t know of any that have done
thinking about positioning themselves or trying to address it in a systematic way.
“Occupation bad,” full stop.34

Stork also indicates that there was never any serious consideration given to
opposing the Iraq War at Human Rights Watch:
There are always discussions, but our organizational position is that it is beyond our
mandate, so I wouldn™t say this war represented any particular strong push to kind
of modify that mandate. Most of us think it is pretty convincing. Now individuals
in the organization are free to “ and certainly did “ voice their own concerns but not
as Human Rights Watch.35

Elsewhere he provides further insight: “Look, there were people within our
organization who were not opposed to the war and some of us, and I include
34 Interviewwith Joe Stork, deputy middle director, Human Rights Watch, in Washington,
DC (Aug. 4, 2008).
35 Id.
223
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


myself here, who had spent some time working on Iraq . . . I™ve got to say it™s
a tough call when you are looking at that particular government.”36
When asked whether there had been any discussions within the organiza-
tion about countering American appropriations of human rights discourses
as justi¬cation for the Iraq War, Stork submitted that Human Rights Watch
did speak out against such appropriations, referring to the 2004 statement
I discuss in considerable detail below. He also added the following:

We did actually put out a couple of reports on Iraq during the Saddam era in
the period just before the war and these are things that had kind of been in the
making. . . . so these could be read and I™m sure some people did read them as at least
providing the intellectual underpinning or whatever you want to call it. I don™t think
it™s true. That is not why the war was fought, and I don™t think “ look, we don™t
hold things back just because of the political conjecture that we fear things may be
misused or used for purposes which we are certainly not intending.37

Human Rights Watch cannot control what different political parties, fac-
tions, or interests make of their work, he concluded. The organization™s job
was to put out information about violations “as factually, as dispassionately,
as honestly” as they could.38
The next set of questions I posed to Stork surrounded the level of Human
Rights Watch™s advocacy and efforts relating to the humanitarian conditions
arising from the Iraq War compared to the organization™s efforts in relation
to Guantanamo, secret prisons, and torture issues. Stork™s answer was that
the organization had done as much reporting and investigating of human
rights and humanitarian conditions as had been possible given the safety
constrains with which it was faced. Because their methodology was based
on interviewing victims in the ¬eld and, for most of the duration of the Iraqi
War, it was impossible for the organization to visit Iraq safely, the organi-
zation™s engagement with the Iraq War was inevitably more limited in scope
compared with their coverage of detainee rights and torture issues.39 This
lack of access to the ¬eld and reporting in turn prevented the organization
from taking on greater efforts to pressure the United States government in
relation to human rights violations stemming from the war in a comparable
manner:

We don™t lobby except where we have done work and done investigations. So it™s
not like we lobby on abstract issues. We lobby on the issues we researched and
documented and published on. So, for instance, we™ve done a lot of lobbying on the
issue of detainees, the legitimacy of certain kinds of detentions of Iraqis and so forth.
Probably that is the issue since 2004 we™ve had the most to say and we also did a
big report on abuses by the armed groups in Iraq targeting civilians. Again, that was

36 Id.
37 Id.
38 Id.
39 Id.
224 AFTER ABU GHRAIB


based on statements of the groups and so forth and to some extent getting testimony
from people who have left Iraq . . . but I™d say in terms of the occupier side of it,
probably the detainee issue has been [inaudible] because those are matters of law.40

When I clari¬ed that I was interested in their work in Iraq beyond detainee
issues, such as conditions faced by Iraqi civilians, Stork provided this
response:
Well, that™s the area “ we are not out there. What do we have to say that we can
use our authority on? We look for opportunities. Particularly back in the ™04“™05
period, we did raise certain issues, for instance, the siege of Falluja, but, you know,
again, when we are not there . . . we have to be able to answer the line of, in this case
the U.S. government, which is saying “we took every precaution . . . and there is this
going on and that going on and we don™t really know” and it™s true, we don™t really
know what™s going on and we are not in a position to do an investigation. And when
we do, for instance, the report we did on checkpoint casualties in Baghdad . . . we
showed a pattern of a serious problem “ sort of “shoot ¬rst, ask questions later” “
but we couldn™t go back and do that again. . . . When we can, we would certainly
like to get back in there and take up these issues. But when there is a bombing or
an air assault or whatever kind of an assault out there in Haditha or wherever, and
there are reports of civilians killed, the most we can do is say we are concerned
by these reports and the warring parties have to take all precautions to protect
civilians . . . that doesn™t add too much. We are not in a position to say this was an
indiscriminate attack.41

A number of the arguments put forth by Stork in his interview were devel-
oped several years earlier in Human Rights Watch™s statement on the topic.
First, it is worth noting that it was not until 2004 that the leading Ameri-
can human rights organization addressed the issue of humanitarian justi¬ca-
tions for the Iraq War. Early in the policy statement, Kenneth Roth, Human
Rights Watch™s executive director, iterated the INGO™s general policy on
wars. Like Stork, Roth began by stating that Human Rights Watch takes no
position on questions of whether a state should go to war because “the issues
involved usually extend beyond our mandate, and a position of neutrality
maximizes our ability to press all parties to a con¬‚ict to avoid harming non-
combatants.”42 The only exception he pointed to is the instance in which
the INGO will af¬rmatively support or advocate for military intervention
for humanitarian purposes.
Roth then went on to explain that the reason Human Rights Watch did
not advocate for the Iraqi intervention was that “the Iraq war was not
mainly about saving the Iraqi people from mass slaughter and because no
such slaughter was then ongoing or imminent”:43
40 Id.
41 Id.
42 Ken Roth, War in Iraq Not a Humanitarian Intervention, Human Rights Watch World
Report (2004).
43 Id.
225
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


A humanitarian rationale was occasionally offered for the war, but it was so plainly
subsidiary to other reasons that we felt no need to address it. Indeed, if Saddam
Hussein had been overthrown and the issue of weapons of mass destruction reliably
dealt with, there clearly would have been no war, even if the successor government
were just as repressive. Some argued that Human Rights Watch should support a
war launched on other grounds if it would arguably lead to signi¬cant human rights
improvements. But the substantial risk that wars guided by nonhumanitarian goals
will endanger human rights keeps us from adopting that position.44

He also clearly develops the case for Bush administration policies being
appropriations of the human rights and humanitarian lexicon, far removed
from the administration™s primary motivations:

Over time, the principal justi¬cations originally given for the Iraq War lost much
of their force. More than seven months after the declared end of major hostili-
ties, weapons of mass destruction have not been found. No signi¬cant prewar link
between Saddam Hussein and international terrorism has been discovered. The dif-
¬culty of establishing stable institutions in Iraq is making the country an increas-
ingly unlikely staging ground for promoting democracy in the Middle East. As time
elapses, the Bush administration™s dominant remaining justi¬cation for the war is
that Saddam Hussein was a tyrant who deserved to be overthrown “ an argument of
humanitarian intervention. The administration is now citing this rationale not simply
as a side bene¬t of the war but also as a prime justi¬cation for it. Other reasons are
still regularly mentioned, but the humanitarian one has gained prominence.45

Thus, as the leading American human rights INGO reads it, the Iraqi war
was never a legitimate humanitarian intervention and the use of human
rights rationales was overwhelmingly instrumental.
The statement is primarily concerned with the impact of the military
intervention in Iraq on the legitimacy and credibility of the humanitarian
interventions in the future. “[A]t a time of renewed interest in humanitarian
intervention, the Iraq War and the effort to justify it even in part in humani-
tarian terms risk giving humanitarian intervention a bad name. If that breeds
cynicism about the use of military force for humanitarian purposes, it could
be devastating for people in need of future rescue,” Roth laments.46 The
statement goes on to outline a set of criteria for determining whether a war
can be considered a humanitarian intervention. These criteria include (1)
whether humanitarian intervention is the last available option, (2) whether
the intervention is guided primarily by a humanitarian purpose, (3) whether
every effort is made to respect international human rights and humanitar-
ian law within the intervention, (4) whether it is reasonably likely that the
humanitarian intervention will do more good than harm, and (5) whether
the preferred route of seeking UN Security Council or other multilateral
44 Id.
45 Id.
46 Id.
226 AFTER ABU GHRAIB


support was taken. The report concludes that the Iraqi military intervention
fails to meet the bar on all counts.
Post“September 11th events provide an important opportunity to more
closely examine the response of a U.S.-based human rights INGO like
Human Rights Watch toward American militarism. This topic was not
initially a central focus of the research and emerged only as the project
progressed. Thus, I do not lay any claim to either dealing with the subject in
any kind of a comprehensive or conclusive way or presenting the full scope of
either Middle Eastern or American perspectives. Instead, I bring to the fore
only a number of questions pertaining to American human rights INGOs™
treatment of the Iraq War and occupation that emerge from the research but
that I believe have to date been largely absent from post“September 11th
human rights discussions. Should American human rights INGOs ever chal-
lenge their government™s military interventions? Should American human
rights INGOs challenge their government™s appropriations of human rights
or humanitarian rationales for military interventions? What kind of respon-
sibility should an American human rights organization have for investigat-
ing, publicizing, and lobbying the U.S. government with regard to abuses
stemming from an American war? Finally, is it time for a broader concep-
tion of human rights that better incorporates the human costs of wars? In
brie¬‚y taking up each of these questions in turn, I offer only my thoughts on
the Human Rights Watch position laid out above, cognizant of the limited
and preliminary nature of the research on which they are based but hope-
ful that the discussion may provoke more extensive debate, research, and
introspection on the topic.
Answering the question of whether a human rights organization should
ever take up the task of designating particular military actions as unjust
or unjusti¬able in relation to their potential human toll is clearly not an
easy undertaking. The rationale behind the Human Rights Watch position
that entering the fray of military strategy and decision making should be
beyond a human rights NGO™s mandate is understandable. Human rights
advocates may not always be quali¬ed to make such determinations and,
if they do, they risk being completely shut out by the government they
seek to in¬‚uence. However, the most central feature of a human rights
NGO™s mandate is monitoring, publicizing, and preventing human rights
violations and, as the Human Rights Watch statement acknowledges, much
of the human rights costs of war are largely foreseeable. Moreover, there
was a near international consensus that American orchestration of the war
was not justi¬ed and, as a preemptive war not authorized by the Security
Council, violated established use of force doctrines under international law.
Accordingly, American human rights INGOs had ample grounds to depart
from their mandate and challenge the Iraq War as the drumbeats for war
grew louder and louder.
227
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


Given the countervailing considerations presented, the of¬cial Human
Rights Watch position is not in and of itself at the crux of this critique.
What I ¬nd more problematic is the level of serious deliberation given to
the course of opposing the Iraq War by the organization in the lead up to
the war and the soundness of the decision thereafter. There seems to have
been few occasions before or after the Iraqi invasion at which the organi-
zation seriously considered modifying its position that taking a stance on
wars (or American wars) should always remain beyond its mandate. The
2004 statement addressed only criticism that Human Rights Watch should
have endorsed the war, and its primary indictment of the Iraq War was
that the war risked giving humanitarian intervention “a bad name.” Nei-
ther the questionable international legal underpinnings nor potential/actual
human costs appear to have triggered a more potentially course-changing
discussion. The Iraq War experience should at least raise the question of
whether it still makes sense for American INGOs to maintain “neutrality”
(effectively silence) on American military interventions unless they are af¬r-
matively advocating for what they consider to be a genuine humanitarian
intervention.
The second question, that of whether American human rights organi-
zations should take on U.S. government appropriations of human rights
discourses to justify military action, is, I would contend, more straightfor-
ward. After September 11th, the American government (and particularly
the Bush administration) deployed unde¬ned notions of freedom and lib-
erty to justify American foreign policy while using tyranny, stoning, and
rape rooms to demonize and dehumanize its enemies. Although the Bush
administration did increase its reliance on human rights rationales for the
Iraq War as the weapons of mass destruction rationale fell apart, given the
United States™ history (and, in the case of “Operation Enduring Freedom”
in Afghanistan, very recent history) of entwining human rights and human-
itarian rationales with national security or geopolitical motivations for its
interventions, U.S.-based INGOs could have been looking for more than
just exclusive assertions of a humanitarian mission to place the American
war under scrutiny.
Simply identifying the Bush administration™s various human rights appro-
priations in relation to the Iraq War a year and a half after the invasion is
not enough. The case can easily be made that the human rights cause would
have been better served by U.S.-based INGOs actively challenging, even the
most “subsidiary” deployments of human rights justi¬cations for war. This
does not mean staying silent on Iraqi human rights violations because they
may be co-opted, as Stork suggests. It does, however, entail making every
effort to give voice to the argument that although the Iraqi violations in
question are deplorable and require various forms of action and response,
they should not be used to further the case for military action.
228 AFTER ABU GHRAIB


The third question posed revolves around U.S.-based INGOs™ coverage
of human rights violations stemming from U.S. military action in Iraq.
Although the Human Rights Watch statement refers generally to the high
human toll of war (as reason to limit humanitarian interventions to only
the most dire humanitarian crisis), and speci¬cally to the profound human
toll of the American war in Iraq several times, the organization™s cover-
age of and activism surrounding the humanitarian crisis faced by Iraqis as
a result of the American military action displays a de¬ciency in empha-
sis and tone. Throughout the post“September 11th period while elaborate
mobilizations brought the detainee rights and torture policies to the fore of
American political contests and public consciousness, initiatives highlighting
the human rights and humanitarian costs of the U.S. military intervention
in Iraq were relatively few and far between.
Further, although adhering to a methodology that requires ¬rsthand
accounts and spotless ¬eld research to maintain its credibility and effec-
tiveness is vital, it is not dif¬cult to envision such a formidable international
human rights organization demonstrating greater resourcefulness and ¬‚ex-
ibility, namely, by seeking out alternative ways of verifying human rights
conditions in Iraq and then more aggressively pressing for changes in U.S.
policies accordingly. Certainly, the organization did not have open access to
secret CIA prisons but was able to uncover important information nonethe-
less. Given all that was known about conditions in Iraq, perhaps Human
Rights Watch and other INGOs could have been more aggressive in ¬nding
avenues to hold the American government accountable and less inclined to
give it the bene¬t of the doubt in relation to the war.
Addressing the fourth question may also shed further light on the dis-
crepancy in coverage and emphasis on the various American policies in the
post“September 11th era. Much of the impetus for the post“September 11th
era American human rights mobilizations surrounding torture and detainee
rights was a sense that the United States was taking part in acts traditionally
associated with repressive Eastern/Southern states™ behavior “ a clear step
backward in its human rights commitments. However, while mobilizing in
response to patterns of what they associated with Eastern forms of violence
materializing in a Western context, they continued to largely decenter the
military violence being committed by their own government, further illumi-
nating Western blind spots in conceptions of human rights relativism and
universalism discussed above. Cyra Choudhury provides a useful descrip-
tion of what a more universalist outlook would entail in the post“September
11th context:

To put it simply, the discussion should not be limited to whether or not torture is
legal and should be undertaken in the “ticking bomb” context or any other scenario
or to what constitutes torture, how much “pressure” ought to be placed on the “bad
229
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


people” during interrogation. But rather it should be expanded to include critical
appraisals of our bombings, detention, the lack of security, the demolition of houses,
collective punishment, and it ought to take into consideration the fact that civilians
in Iraq are suffering physical and psychological harms that may rival torture in their
magnitude. Ultimately, it must account for the fact that Iraqis are losing their lives.
Without such an expansion of the discussion, the resulting failure to encompass all
violence against Iraqi civilians will continue to cut sharply against liberals™ claims of
support for universal human rights.47

In other words, as Middle Eastern activists and populations (as well as a
number of domestic American rights NGOs) clearly saw, the human toll
of the Iraq War, including those cited by Choudhury, and reported death
tolls of over 100,000 Iraqi civilians and four million displaced refugees
should be viewed as grave human rights violations and treated with the
same level of urgency, mobilization, and outrage as American detention and
torture policies. Dismissing Middle Eastern conceptions of what has tran-
spired throughout the Iraq War as human rights violations by designating
them as “abstract” or “not law” may betray a constrained vision of the
human rights project.
Again, although American INGOs frequently do report on and wage cam-
paigns on the civilian toll of speci¬c American operations within the war
by invoking international humanitarian law, there is a glaring de¬ciency in
their emphasis and tone.48 Further, as international lawyer Naz Modirzadeh
remarked at the closing session of the 2006 American Society of Interna-
tional Law Annual Meeting, there is a lot the United States has done in Iraq
that is deeply problematic yet perfectly legal under international humani-
tarian law. Although a discussion of reforming international humanitarian
law is well beyond the scope of this study, it is important to ask whether
American INGOs™ stance re¬‚ects a human rights outlook that is con¬ned
and overly legalistic “ conceptually divorced from broader, more integrated,
views of the project of advancing human dignity.
It could be that there is more to the disposition of Middle Eastern human
rights groups than abstractness and demagogy and an inability to grasp what
is and what is not law. At least one example, that of Amal Basha™s struggle
with and ultimate resolution of the contradictions posed by U.S. use of force
in Iraq, would suggest so.
Each of the four areas brie¬‚y explored here coupled with U.S.-based
human rights INGOs™ engagements with national security discourses and
the enlistment of top-ranking military generals in their post“September 11th
campaigns, as detailed in chapter 2, raise important questions about whether

47 SeeCyra A. Choudhury, supra note 22.
48 At least one notable exception to this trend has been Human Rights Firsts™ elaborate
campaign to highlight the plight of Iraqi refugees.
230 AFTER ABU GHRAIB


these INGOs have taken an overly accepting position toward American mil-
itarism during the era. They should now take the opportunity presented by
post“September 11th developments to begin a conversation about whether
a new approach to American militarism is in order.


ARE INTERNATIONAL HUMAN RIGHTS CAPTIVE TO POWER?

Through the composite of the American campaign to counter the United
States™ “War on Terror” human rights violations presented in chapter 2,
it becomes apparent that American power is not beyond the in¬‚uence of
the international human rights regime in any absolute sense. The human
rights proponents involved simultaneously added to and drew from the
legitimacy of international human rights norms. Eventually, the campaign
was successful both in posing constraints on American power and policy
options and in disturbing the mainstream American narrative about the
United States™ relationship to the international human rights order. Several
of the campaign™s participants elaborated on how speci¬cally the presence
of an international legal framework aided their efforts. In response to a
question regarding the importance of international law as a tool in the
development and passage of the McCain amendment, one Congressional
staffer provided the following observation:

I think it™s critical because it gives everybody something to look at and say, “Here is
the standard and we™re not following it . . .” rather than saying we have no standards
and we are just going to make it up. The fact that we could say, all we™re trying to
do, is close a loophole, done by the CAT, that was already rati¬ed by the Senate, it
has meaning under the Constitution, it™s from a United States reservation under the
CAT, all these other countries have signed up to it, no other country claims a legal
right to engage in cruel, degrading, and inhumane treatment except the United States
and the Europeans can sort of push the same way. It provides a semiclear framework
that you can try to converge toward. Basically, you™d have to invent it, if it didn™t
already exist.49

A human rights advocate otherwise highly skeptical of the ability of inter-
national human rights norms to constrain American behavior during the era
did ¬nd that at some level the existence of international legal norms aided
their human rights agenda:

That™s where it [international law] did make a difference. We had the starting point
of the Geneva Conventions, we had the starting point of the Convention Against
Torture. It meant something that we were parties to those treaties. It meant some-
thing that we had embraced those obligations. It meant that we had promised. It
meant that we had evaluated ourselves and that we would hold ourselves to those
49 Interview with congressional staffer, in Washington, DC (Feb. 24, 2006).
231
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


standards “ that those values were our values. The existence of international law and
treaties was the prerequisite to having those obligations.50

In this account, the advocate often con¬‚ates how international law was more
widely understood (i.e., what U.S. policymakers understood their interna-
tional legal obligations to mean) with the types of arguments advocates
could make by referencing the international human rights regime (i.e., what
U.S. obligations should mean to American policymakers). Nonetheless, this
account, like the one presented before it, sheds light on a fundamental point:
despite the fact that existing American identity constructions marginalized
international law through nationalist discourses and a sense of American
preeminence and power, when an opening was presented, international
human rights norms entered American civil society/governmental contests
over human rights policy and proved effective both as a key frame of refer-
ence and a normative in¬‚uence.
Although the types of international challenges and mobilizations against
American human rights practices in the post“September 11th era were not
without signi¬cant impact, in the end, it was the domestic initiative that
made the most headway in challenging American attempts to thwart inter-
national human rights norms. Compliance (or movement in the direction of
compliance) with international human rights law was clearly less a matter of
vertical enforcement from above and beyond American borders than a prod-
uct of domestic contests and mediation in overlapping legal, political, and
social terrains. This is true not only when enforcement is conceived in tradi-
tional terms but also when enforcement is thought of as rooted in normative
in¬‚uences. Thus, although the case study demonstrates the potential impact
and effectiveness of international human rights norms when channeled
through constructivist processes of shaming, framing, and persuasion, these
processes bare their greatest fruits as they play out inside the United States.
In the Middle Eastern context, human rights also frequently served as a
tool for checking both American and local rulers™ exercise of power. It was in
relation to its proclaimed mission to spread liberty and democracy that the
United States encountered some of its greatest obstacles. Although invok-
ing a “human rights guardian” identity construction allowed the United
States to legitimate its exercises of power, the certitude of the legitimacy was
not a given. First, it became increasingly clear that United States could not
determine the legitimacy of its actions alone; the legitimacy it sought was
ultimately a product of its interactions with global (and, for the purposes
of the present analysis, Middle Eastern) leaders, journalists, human rights
activists, and populations. The key to greater license to pursue its agendas
through appropriating human rights was perpetually proving a genuine com-
mitment to spreading human rights norms through its actions to a skeptical
50 Interview with human rights NGO representative, in Washington, DC (Feb. 24, 2006).
232 AFTER ABU GHRAIB


Middle Eastern and global audience “ in essence a catch-22 and near impos-
sible feat. As Nico Krisch has explained, “International law is important to
powerful states as a source of legitimacy. But in order to provide legitimacy,
it needs to distance itself from power and has to resist its mere translation
into law.”51 This is in line with constructivist assertions that at some point
actors appropriating human rights norms, no matter how instrumentally,
will feel compelled to either conform to the norms or take steps to resolve
its inconsistencies. They do so to avoid stigmatized charges of hypocrisy
and deployment of raw power. This in effect is the power of morally rooted
norms such as human rights. The point has also been aptly made by Andrew
Arato in the democratization context:
The language of democratization, though mobilized for an imperial purpose, thus
lands the bearers of the discourse in an international legal ¬eld that does not allow
democracy to be openly replaced by its opposite. The democratic justi¬cation binds,
at least to some extent, even those who use it in bad faith.52

In the post“September 11th period, domestic and international human rights
proponents have frequently made use of this phenomenon and demanded
the United States government live up to its assumed identity construction as
the promoter of democracy, freedom, and human rights. Overlooking the
ways in which such pressure has impacted human rights outcomes in the
Middle East would be to leave out a key dimension of post“September 11th
human rights dynamics. At various junctures, the Bush administration has
been moved to put some pressure on its authoritarian allies in the Middle
East to adopt democratic measures, uphold rights, and open space for local
rights advocates to operate. Although it can certainly be argued that such
progress is inadequate or incomplete, particularly given the magnitude of the
human rights challenges at hand, it is important to recognize that American
human rights appropriations are not without their own trappings and can
sometimes be subverted.
In Yemen, I attended a ceremony celebrating the conclusion of a U.S.-
funded girls™ leadership project that had offered young Yemeni women an
opportunity to work in various Yemeni government ministries. I learned at
the ceremony that the Girls™ World Communication Center (the local NGO
facilitating the project) also conducted a year-long human rights training
introducing international human rights instruments to Yemeni women. In
a conversation with Iman al-Tawqi the Coordinator of the NGO™s human
rights program, I inquired about the challenges the group faced in con-
ducting the trainings. She told me that when the trainers are presenting the
international instruments, they constantly have students ask, “What is the
51 Nico Krisch, International Law in Times of Hegemony, 16:3 Eur. J. Int™l L. 369, 369
(2005).
52 Andrew Arato, Empire™s Democracy, Ours and Theirs, supra note 21, at 223.
233
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


point? These instruments are not implemented, especially when it comes to
the powerful.” The answer she said she gives in these instances is “Well,
it™s better to have them (international human rights instruments) than to
not have them. Like our constitution, it is not always implemented, but
it™s better to have one than not at all.”53 Although it is not articulated in
this way, the answer reveals a recognition that not unlike the operation
of domestic law in the Middle East (and indeed everywhere), international
law™s ability to constrain power is partial and less than guaranteed. Yet,
at the same time, its emancipatory potential makes its worth clinging to.
In the ¬nal analysis, it is the principles of universal human dignity as well as
the equality of states, cultures, races, religions and individuals enshrined in
international human rights norms which give expression to Middle Eastern
aspirations, and hold out the promise of challenging abuses of power by
American and local rulers alike. In essence, the increased Middle Eastern
turn to human rights in the post“September 11th era is testament to this
recognition. Were it not understood as an emancipatory force that can be
used to hold the powerful to account, it would not have any appeal or
legitimacy. It was through the aid of the legitimacy of international human
rights discourses that American/Middle Eastern power relations were, from
time to time, turned on their heads. Even if the reversals were momentary or
miniscule in their scale, they were frequently not without consequence. The
point is made eloquently by Amy Bartholomew, referencing the March 2005
Department of Defense National Defense Strategy and ¬nding that Ameri-
can strength “will continue to be challenged by those who employ a strategy
of the weak using international fora, judicial processes, and terrorism.”54
As she elaborates:
All of this goes some way towards bolstering the contention that the defense and
reform of law™s empire and the further legalization of international and global rela-
tions may hold the promise “ even if it is distant “ of ˜constraining™ and possibly even
˜attacking™ imperial power. In this one regard, the Bush administration is right, not
deluded, international and cosmopolitan law are strategies of and for “the weak.”55

Beyond the Middle Eastern response to American power detailed in this
book, the global move to reclaim human rights and its egalitarian tenets is
notable. The more the Bush administration assaulted human rights norms,
the more the emancipatory embodiment of human rights was claimed, fur-
thered, and embraced globally. There was in fact a global movement to
reclaim the emancipatory essence of the regime and reject the transparent
53 Interview with Iman al-Tawqi, coordinator, Girl™s World Communication Center, in Sana™a,

Yemen (Jan. 22, 2007).
54 United States Department of Defense, National Defense Strategy of the United States of
America, (Mar. 2005), http://www.defenselink.mil/news/Mar2005/d20050318nds1.pdf.
55 Amy 21 Bartholomew, Empire™s Law and the Contradictory Politics of Human Rights,

supra note, at 178.
234 AFTER ABU GHRAIB


infusion of power the United States was attempting. This was accomplished
in virtually every demonstration, sit-in, and letter-writing campaign carried
out. Pressure on local governments to resist American human rights viola-
tions spanned from Indonesia to Europe to Ecuador.
The signi¬cance of the global protest and backlash against both the United
States™ instrumental uses of notions of human rights and freedom to justify
the Iraq War, and its rights violations of Arab and Muslim detainees held in
conjunction with the War on Terrorism cannot be discounted. The protests
suggest that even when American of¬cials go to extensive lengths to appro-
priate human rights discourses, many people are equipped with the tools
and consciousness to see through such appropriations or that the essentially
emancipatory tenets of the discourse itself provide the tools and conscious-
ness to evaluate such appropriations, particularly when they are so blatant.
Along the same lines, Anthony Chase has argued that post“September
11th developments have reshaped expectations of state obligations, noting
that Abu Ghraib“style torture is “historically unexceptional” in terms of
“its general violence,” but “now causes general revulsion.” As he explains,
the recent trend
epitomizes a shifting normative environment; analogous acts in previous eras were
either taken as inevitable or, even, celebrated, but in today™s normative environment
publicity over such events is a substantive defeat, reducing an actor™s ideological
legitimacy and, hence, ability to pursue its agenda. Bush, as well as his top generals,
explicitly term abu Ghraib the U.S.™s biggest defeat in Iraq. There are, in other
words, strong political-normative incentives to abide by human rights law. Just
as the Bush administration paid a realpolitik price for ¬‚outing human rights (and
humanitarian) law, states that act within the constraints of the rights regime reap
tangible bene¬ts. More generally, these sorts of normative shifts are what have
both constituted and further stimulated the legal-political construction of the human
rights regime, creating the sorts of incentives that have made it a viable part of
contemporary politics, rather than just an idealistic sideshow.56

The normative shift of which Chase speaks is more ¬tting when viewing
global developments rather than developments in the United States where
the shift has simultaneously gone in the direction of human rights promotion
and its opposite “ toward increased acceptance of torture and war as a
means of safeguarding American interests and “freedom.” Still, his larger
contention that human rights have been deployed to check American power
and have served as a barrier to unfettered American power is apt. It is also
important to recognize that part of the reason Abu Ghraib and Guantanamo
garnered such a large-scale global reaction to human rights violations that
do occur throughout the globe regularly was the conducts™ roots in American
56 Anthony Chase, The Transnational Muslim World, the Foundations and Origins of Human
Rights, and Their Ongoing Intersections, 4:1 Muslim World Journal of Human Rights, 8
(2007), http://www.bepress.com/mwjhr/vol4/iss1/art1.
235
FROM THE ASHES OF THE POST“SEPTEMBER 11TH ERA


power “ both in the form of unapologetic contraventions of international
human rights law and its appropriations of human rights discourses.
All of these facets of the unfolding of post“September 11th era events
belie the point that international human rights law cannot be viewed as
intrinsically captive to power, a tendency Fuyuki Karasawa has called
“anti-imperialist absolutism” within the context of humanitarian and
human rights interventions.57 It frequently maintains some dimension of
autonomous emancipatory presence with the potential to challenge power,
even as power attempts to co-opt it and strip it of its potential. As Kurasawa
contends, and the case studies undertaken in this text demonstrate, assess-
ments of the extent to which human rights either manifests or transcends
power must be circumstantial, an admittedly dif¬cult undertaking particu-
larly when the two conditions are as intertwined as they have been in the
post“September 11th era. Amy Bartholomew™s contention that “empire™s
law” and “law™s empire” should be viewed as “points on a spectrum rather
than distinctly separate entities” is also helpful. Ultimately it is a relative
and shifting conception of human rights™ relationship to power that best
captures all of the internal, intercultural, and transnational American and
Middle Eastern interactions revolving around human rights policies, prac-
tices, and discourses that have transpired in the post“September 11th era.


CONCLUSION

This book has put forth the argument that the contemporary human rights
project simultaneously constrains and manifests power. Yet recognizing that
contemporary human rights dynamics lie between hegemony and emanci-
pation should not prevent advocates from actively pursuing a course that
pushes the human rights project farther away from the former and closer to
the later.
In his inaugural address, Barack Obama, the successor to George Bush,
declared “we reject as false the choice between our safety and our ideals,”
signaling a departure from the eight years that preceded his ascendance to
power. He also af¬rmed that “America is a friend of each nation and every
man, woman, and child who seeks a future of peace and dignity, and that
we are ready to lead once more.” From this declaration, it was dif¬cult to
know how precisely Obama envisioned American leadership, as inherent or
earned? Another statement coupled with a slew of new policies two days
into his administration was encouraging. After signing three executive orders
revoking Bush administration Guantanamo, torture and detainee treatment

57 FuyukiKurasawa, The Uses and Abuses of Humanitarian Intervention in the Wake of
Empire, supra note 21.
236 AFTER ABU GHRAIB


policies, Obama stated “America™s moral example must be the bedrock and
the beacon of our global leadership.” As promising as some of Obama™s
stances may be, it would be a mistake for human rights advocates to view
Barack Obama™s presidency as simply the end of a nightmare or aberration
in American history. From within the crushing human rights crises of the
post“September 11th era and the myriad of civil society attempts to chal-
lenge them, important lessons for American human rights advocacy emerged,
foremost among them, that neither American human rights compliance nor
leadership can be viewed as a given. Human rights advocates should take
every opportunity to engage with and incorporate these lessons in their
work. Obama may have stronger human rights commitments than his pre-
decessor, but even under an Obama administration innumerable American
human rights struggles remain to be won- both domestically and inter-
nationally. Just one early example of this has been Obama™s reluctance to
endorse prosecutions or investigation commissions to hold those responsible
for post-September 11th era human rights violations accountable for their
actions. More importantly, human rights advocates must take advantage
of any openings from an administration relatively more inclined toward
upholding human rights and taking on international legal obligations in
order to build a stronger foundation for human rights norms™ regulation
of the actions of future American leaders more inclined towards the Bush
administration™s worldview. The lessons of the post“September 11th era are
crucial to both endeavors. Thus, if those committed to human rights seize
on its opportunities for introspection and change, the dwindling era will be
left with a legacy of human rights™ enrichment alongside its various human
rights tragedies.
Conclusion




It is dif¬cult to give a semblance of coherence to the storm of human rights
contests that have raged in the post“September 11th era. The era™s human
rights story was one of glaring failings, formidable challenges, unending
contradictions, unprecedented mobilizations, and new opportunities “ all
unfolding simultaneously. The deluge of stunning human rights develop-
ments came in such rapid succession and in such sheer volume that through-
out most of the era advocates would leave one crisis only to tend to the
next. There was virtually no time to step back and take a broader view of
all that had transpired “ the winding and crossing paths taken by American
and Middle Eastern forces, the ground forfeited and ground gained, and the
interconnections between actors and actions traditionally viewed as stand-
ing worlds apart. The juxtaposition of three key human rights struggles of
the era provides the opportunity for precisely such a global view and pause
for re¬‚ection.
Most visibly, the era stood stained by its array of human rights viola-
tions “ renditions to torture, sexual humiliation, hoods, dogs, cages, sensory
deprivation, waterboarding, black sites, inde¬nite detentions without trial,
patent racial and religious inscriptions, legal memos justifying and political
rhetoric euphemizing torture, categories invoking rights-based rationales to
justify the withholding of rights, and military air strikes made in the name
of furthering rights and freedom. Moreover, all of this played out amid the
backdrop of American policymakers and Middle Eastern autocrats shaking
hands and proclaiming a shared unwavering commitment to both ¬ghting
the War on Terrorism and bringing human rights and democracy to the
Middle East. Each news report unveiling a new batch of human rights trans-
gressions, a new convoluted legal doctrine paving the way for abuses, or
a new link to the government of¬cials, lawyers, and military of¬cers ¬rmly
seated at the top of existing power structures gave rise to a greater sense that
the emancipatory promise of the human rights paradigm was fading “ that
it had become once and for all apparent that the framework simply could

237
238 AFTER ABU GHRAIB


not withstand the weight of state power and especially of powerful states
determined to undermine and co-opt it.
The era was also marked by its innumerable contradictions. Middle East-
ern adversaries referred to American human rights abuses, violations of
international law, and media capitulation to state rhetoric. At the same
time, American government of¬cials highlighted repression and denials of
freedom in places like Iran while the Bush administration fought domesti-
cally to reserve its right to torture detainees in U.S. custody. Neither seemed
troubled by the inconsistencies of their position. The element of truth in each
assertion served to veil the abuses of power being justi¬ed and the abuses
of power served to corrupt the calls of human rights adherence being made.
And yet although these effects were realized to a considerable extent, they
were never quite realized absolutely. This was due to the era™s remarkable
mobilizations and campaigns designed to unveil American and Middle East-
ern governments™ human rights appropriations and preserve the essence of
the human rights idea.
In the Middle East, because they did not derive legitimacy from their pop-
ulations, authoritarian governments were compelled to respond to Amer-
ican pressure and take up both liberal reforms and illiberal “War on
Terror” detainee treatment policies as a means of ensuring their survival.
Such double-edged American pressure created both important openings and
new challenges for Middle Eastern human rights advocates. At the same
time, activists, intellectuals, and governments had to reconcile their con-
demnations of American interventions with the reality that they relied on
and in some cases actively sought those very interventions. Finally, both
Western and Middle Eastern advocates soon came to realize that in many
spots in the Middle East, it was Islamists with their long history of eschew-
ing human rights prescriptions who had become one of the most formidable
forces for resisting authoritarianism in the region.
Contradictions also abounded in the American context. Taking on the
role of the human rights teacher, American government of¬cials promoted
secular human rights prescriptions for Middle Eastern ills notwithstanding
their own proclivities to mix rights, religion, and politics and, more crit-
ically, their own unwillingness to uphold key international human rights
obligations. Accordingly the American government funded and visited Mid-
dle Eastern human rights initiatives as it continued to ¬‚out both the letter
and spirit of the international human rights legal regime. In the process,
it was repeatedly confronted with and forced to contend with the very
human rights norms it espoused, recognizing that it faced obstacles if it
failed to present itself as something more virtuous than the embodiment of
raw power. Emerging from the dynamic was a ¬rm rhetorical embrace of
the morally engrained language of human rights. However, the language
239
CONCLUSION


had the potential to constrain American action as much as it could enable
American action, revealing the ultimate vulnerability of power built on the
co-opting of morally based norms. Faced with mounting challenges from
within and without, the world™s sole superpower often found itself trapped
and often trapped itself. The predicament stemmed predictably from the
vast gap between its morally based rhetoric and its overt thwarting of the
international human rights project.
Perhaps just as remarkable as the era™s dizzying array of contradictions
have been the numerous parallels between Middle Eastern and American
human rights dynamics it has unearthed and the converging paths of Middle
Eastern and American human rights advocacy it has produced. In each of
their separate contexts, advocates began with international human rights law
lacking legitimacy amid political and social discourses imbued with nation-
alist sentiments. They faced governments that alternated between portrayals
of human rights as foreign impositions and idealistic prescriptions born out
of naivet´ . As a result American and Middle Eastern advocates pursued
e
(often strikingly similar) avenues for pushing the boundaries of prevailing
discourses and creating expanded space to bring human rights into main-
stream political contests and consciousness. The era™s successive human
rights failings created critical openings from which the argument for human
rights compliance could emerge. Abu Ghraib with its inescapable visual
representation of denials of human dignity reigned foremost among them.
As the era unfolded, American advocates also found themselves embarking
on cultural projects and contemplating religious engagements with striking
parallels to those long pursued by their Middle Eastern colleagues. Finally,
in both contexts, advocates found themselves soliciting the aid and authori-
tative voices of powerful domestic intermediaries “ the military brass in the
American case and religious forces in the Middle Eastern case. Although the
collaborations were understandably coveted, they also posed critical ques-
tions about the trade-offs encompassed and the hazards involved. As they
moved through the era, both American and Middle Eastern advocates took
signi¬cant strides toward making the human rights project more compelling
and pressing to their respective audiences, gradually transforming human
rights from a widely dismissed and marginalized paradigm eyed with suspi-
cion to a framework increasingly understood as having real political, social,
and legal clout and relevance. At the same time, a domestic human rights
infrastructure slowly took shape around them that in spite of its consider-
able shortcomings was more than what human rights forces had to work
with before the era began.
Despite their parallels and converging paths, in both American and
Middle Eastern discourses, the case for human rights compliance was fre-
quently made by some contrasting reference to the actions of the Other.
240 AFTER ABU GHRAIB


Embedded within the debates erupting on both sides was a sometimes
implicit, sometimes explicit, argument that there must be a change in course
because otherwise “We will have become like them.” However, even as a dis-
tancing from the other™s actions served as a catalyzing force for an increased
turn to human rights (the regime being disregarded by the other), strides
were simultaneously made in the opposite direction “ toward displacing the
hierarchies of cultures and peoples long entwined with the human rights
project. Witnessing the overt commission of human rights violations by the
United States often left activists and observers disoriented, feeling like they
had stepped into a strange new reality they barely recognized and nostalgic
for the days in which they could con¬dently know that the U.S. government
would not commit torture and, if it did, the American legal system would
put an immediate stop to it. Yet they were eventually forced to adopt new
parameters to make sense of the era™s unfolding human rights contests. This
often meant slowly moving away from engrained assumptions that West-
ern action would generally correlate with the progress and achievement of
rights and that American human rights transgressions (including violence
through war) would generally encompass an element of calculated rational-
ity or justi¬ed means to liberal ends. Thus, as the post“September 11th era
progressed, it became increasingly apparent that human rights could not be
neatly tied to a particular geography, place, or locale with the same degree
of certainty it had been in the past. It was now much more conceivable
that torture, denials of due process, and, by extension, other human rights
violations could take place anywhere. The once seemingly reliable demarca-
tions of the East/West geography of human rights now looked skewed and
unreliable. At the same time, the Middle Eastern eye on American human
rights transgressions in the post“September 11th era offered an alternative
con¬guration and mapping of the ¬‚ow of global human rights dynamics.
The creation of this altered terrain was less attributable to any conscious
decision to reassess traditional human rights equations on the part of advo-
cates and observers alike than to what may be more accurately understood
as the consonant dissonance produced by the Guantanamos, CIA black sites,
and torture memos of the era.


EMERGING OUT OF THE ERA

Some potentially promising consequences ¬‚ow from the transformed human
rights landscape taking shape as the post“September 11th era winds down.
First, although a time of tremendous international con¬‚ict, the post“
September 11th era has provided important opportunities for bridging
global divides between civil society forces. In many respects, American and
241
CONCLUSION


Middle Eastern journalists, lawyers, and NGOs took important strides
toward greater dialog, exchange, and collaboration on more equal terms dur-
ing the era. This comes through in a comment on the cooperation between
Yemeni and American lawyers on Guantanamo cases by HOOD™s Khaled
Alanesi:
And our American friends, they always contact us and in every accomplishment,
they say without you, we couldn™t have done it. We also say that without them we
couldn™t do anything. Guantanamo detainees™ cases showed that we unite on the
basis of freedoms and rights. In the case of the Guantanamo detainees, it shows that
we all agree on freedom and human rights because the people working on the case
are Muslims, Jews, Christians, rightist and leftist, believers and non-believers. They
belong to different groups. So this shows the idea of freedom and human rights.1

Second, the new human rights outlook may enable a greater inclination on
the part of both American and Middle Eastern populations to look inward
and rediscover the many overlooked denials of human dignity taking place
at their footsteps. Most important, however, has been the increased possi-
bility that co-opting human rights as license for military interventions not
genuinely rooted in humanitarian considerations will prove a more arduous
task than it was at the onset of the post“September 11th era. This potential
advance could be seen in the relative absence of emphasis on Iranian human
rights practices in discussions of military action against Iran in the United
States in 2008. As Trita Parsi of the National Iranian-American Council,
who has been involved lobbying efforts against U.S. military action in Iran,
observed:
There seems to be a deliberate attempt for U.S. advocates of military action in Iran
to not use human rights justi¬cations. It is not an argument the American public
¬nds attractive. There are two reasons for this: the failed experience in Iraq and the
lack of U.S. credibility on human rights after Abu Ghraib and Guantanamo.2

Two ¬nal episodes provide insight into the state of the human rights
project as the post“September 11th era draws to a close. On September 24,
2007, the scandal-prone Iranian president, Mahmood Ahmadinejad, was
invited to speak at Columbia University in New York City. The occasion
attracted an unusual mix of protestors. They included American Jewish
groups objecting to what they considered a major American university™s
inappropriate welcoming of a holocaust denier, free-speech supporters chal-
lenging the assertion that Ahmadinejad should not be allowed to address
the university, women™s rights and gay rights supporters highlighting the
1 Interview with Khaled Alanesi, executive director, HOOD, in Sana™a, Yemen (Jan. 15,
2007).
2 Telephone interview with Trita Parsi, president of the National Iranian-American Council
(Aug. 1, 2008).
242 AFTER ABU GHRAIB


repression suffered by women and homosexuals in Iran, and antiwar
protestors implicitly challenging the use of Ahmadinejad™s rhetoric and Ira-
nian human rights conditions as devices for advancing a war agenda with
Iran. Among the many handmade signs displayed by the disparate voices
assembled on the Columbia University campus was one that simply read
“Protecting Human Rights Begins at Home.” Six years after September
11th, the sign displayed was as perplexing and multifaceted as the era to
which it belonged. On one reading, the slogan could be interpreted as a mes-
sage to Americans ¬xated on Iranian human rights violations while turning
a blind eye to their own human rights de¬ciencies “ freedom of speech at
this forum, gay rights in the United States, or Abu Ghraib and Guantanamo.
Alternatively, the same sign could have been directed at Ahmadinejad, who
is apt to cite American human rights violations to obscure deplorable rights
conditions in Iran. The anecdote™s signi¬cance lies not in which of the two
interpretations served as the sign™s original inspiration; rather, its signif-
icance lies in the fact that either (or both) interpretation is now widely
imaginable. In this way, the sign comes to epitomize the evolution of human
rights equations at the end of the post“September 11th era.
Another event that took place three months earlier was equally notable.
On June 25, 2007, a group of graduating high school students selected as
Presidential Scholars was invited to the White House for a photo-op and
gathering with the U.S. president in honor of the prestigious award. They
took the occasion to pass George W. Bush a letter that was signed by 50 of
the 140 young awardees. The letter the president was forced to read silently,
as the students watched, stated the following:
Mr. President.
As members of the Presidential Scholars class of 2007, we have been told that
we represent the best and brightest of our nation. Therefore, we believe we have
a responsibility to voice our convictions. We do not want America to represent
torture. We urge you to do all in your power to stop violations of the human rights
of detainees, to cease illegal renditions and to apply the Geneva Convention to all
detainees, including those designated enemy combatants.
Signed, . . .

The American students™ initiative mirrors the efforts of Yemeni youth who
posed direct challenges to American embassy of¬cials regarding the United
States™ human rights policies recounted in chapter 3 and similar efforts by the
same group to promote human rights in their own way within Yemen. Thus,
despite the utter failure of so many of the era™s leaders (including those of
the “free world”) to apply international human rights norms in good faith,
these are promising signs that in the United States as in the Middle East and
beyond, a generation of future leaders has emerged from this tragic era with
243
CONCLUSION


a commitment to carry the human rights project forward. In other words,
as the era begins to burn out, emerging from the ashes of its many human
rights tragedies and tribulations is an af¬rmation of much of what lies at the
core of the human rights ideal. Such episodes provide considerable promise
that the emancipatory spirit of the human rights paradigm will remain a
formidable force for challenging the power-laden spirit of its co-option.
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Index




Amman Center for Human Rights Studies,
Abdul Futouh, Abdul Momen, 192, 195
2“3, 181
Abdullah II bin al-Hussein, 178
Ammannet, 138“140, 172
Abu Ghraib, 63“66, 74, 151, 156“158
Amnesty International, 68, 77, 115
Abuzayd, Francis, 135
An-Naim, Abdullahi, 201, 202
Agbakwa, Shedrack, 10
Arab Lawyers Union, 152
Ahmadinejad, Mahmood, 241
Arab News, 132, 164
Al-Ahram, 151, 157
Arab Organization for Human Rights, 117
Al-Akhbar, 131
Arato, Andrew, 232
al-Asadi, Mohammad Ahmed, 115, 184“185
Arrabyee, Nasser, 178“179
Al-Deraji, Mohammad, 158
Arrar, Maher, 56, 120, 206, 213
al Gedsi, Sa™ad, 131, 186, 187
Assaf, Nizam, 3, 159, 166, 168, 170, 171,
al-Ghad, 162, 172, 195
173, 180
al Hajj, Sami, 92
al-Hamdi, Khaled, 133
Bagram, 92
Al Jafr prison, 177, 178
Bahrain, 6, 121
al-Jazeera, 92, 173
Bahrain Center for Human Rights, 117
al-Odah, Khalid, 124, 125, 126, 129, 160,
Bak, Shaher, 132, 163, 175, 177
180
Barnett, Michael, 17
al-Ra™y, 172
Bartholomew, Amy, 36, 41, 153, 213, 233,
al-Sane™, Ibrahim, 135, 168, 172
235
al-Shami, Jamal Abdullah, 26, 123, 130,
Basha, Amal, 5, 123, 129“130, 136, 153,
133
156, 181, 185, 187, 219“220, 229
al-Sharq al-Awsat, 157, 161
Batar¬, Khaled, 132, 144
al-Tayeb, Mohammad, 166, 174, 191, 193,
Beaver, Diane, 47
218“219, 220, 221
Blitzer, Wolfe, 90
Alanesi, Khaled, 5, 12“13, 133, 138, 155,
Burlingame, Debra, 126“127
160, 182, 241
Boumediene v. Bush, 124
Allaw, Mohammad Najji, 5, 133, 136, 155,
Bringing Human Rights Home Initiative,
170, 182, 183“184
98
Al-Motawakel, Mohammed Abdul Malik,
Brunnee, Jutta, 158
181
Buck-Morss, Susan, 22
Al-Soswa, Amat Al-Alim, 116, 121
Bush, George W., 27, 29, 30, 35, 46, 49, 55,
American Bar Association (ABA), 135, 160
57, 59, 87, 126, 165, 211, 242
American Civil Liberties Union (ACLU), 70,
Bybee, Jay, 40
71, 90, 96“98, 215
Bybee torture memo, 39, 86
American exceptionalism, 92, 103



249
250 INDEX


Gonzales, Alberto, 34, 35, 36, 44, 47, 66,

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