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Remembering 9/11 and Reclaiming Accountability for Human Rights

U.S. counter-terrorism policies today often blur the distinction between the more permissive rules that regulate the use of force and treatment of fighters and civilians in theatres of war, and the more restrictive rules that apply in all other contexts.
Jamil Dakwar,
Director, ACLU Human Rights Program
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September 19, 2011

Many people in the United States and around the world remember the horrific events of September 11th, 2001 as some of the worst crimes against humanity of the last decade. These attacks savagely flouted the fundamental values of international human rights.

While the international community was united behind the U.S. call to bring those responsible to justice, the struggle against terrorism — hardly a new enterprise — took a wrong turn towards undermining the international legal frameworks and accountability mechanisms that were developed after World War II.

“In the last ten years, America has become an international legal outlier in invoking the right to use lethal force and indefinite detention against suspected terrorists outside battle zones.”

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U.S. counter-terrorism policies today often blur the distinction between the more permissive rules that regulate the use of force and treatment of fighters and civilians in theatres of war, and the more restrictive rules that apply in all other contexts. The U.S.-led ‘War on Terror’ has resulted in the erosion of hard-fought human rights achievements, including the absolute prohibition on torture, and undermined accountability mechanisms against governmental abuses of power.

We all remember that President Bush’s White House counsel Alberto Gonzales determined that the Geneva Conventions were “quaint” and “obsolete.” We also recall the legal memos crafted by the U.S. Department of Justice, which distorted the legal definition of torture and purported to redefine U.S. obligations under the Convention against Torture — justifying systemic cruelty and barbaric treatment in legal black holes like Guantánamo Bay and CIA “black sites.”

After 9/11, the U.S. engaged in policies in which anti-terror ends justified terrible means. In pursuit of such ends, the government justified racial and ethnic profiling, baseless surveillance of religious communities, warrantless wiretapping, unfair trials, indefinite detention, and the egregious use of torture. And Secret America became the rule rather than the exception.

Sadly, the post 9/11 anti-Muslim backlash continues to this date. In just the past year, more than twenty-five state legislatures have proposed (and some have enacted) measures designed to limit the role of “international” or “foreign” laws, including Sharia law, in state adjudication. These misguided and unconstitutional measures are largely driven by post-9/11 anti-Muslim rhetoric, which unfortunately seems to have become a national sport.

Commendably, the Obama administration has taken important steps to re-engage the international human rights community, including joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities and supporting U.S. ratification of Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. At the same time, however, the Obama administration has refused to provide accountability for torture by, for example, invoking the “state secret privilege” to deny torture victims their day in court, and it has continued, and even expanded, the Bush Administration’s targeted killing program in which killings are carried out without transparency or accountability. The Obama administration has also implemented federal programs that encourage racial and ethnic profiling rather than securing communities.

Combined, these conflicting attitudes risk perpetuating a disastrous double standard on human rights issues and undermine the U.S. government’s ability to hold foreign governments to account for their rights violations.

The Obama administration also has yet to issue an executive order to fully implement U.S. treaty obligations and create an accountable and transparent mechanism to integrate international human rights into domestic policy. While enforcement levels of some anti-discrimination laws have increased across the nation due to the hard work of the Justice Department’s Civil Rights Division, more needs to be done in order to bring U.S. laws and policies in line with international human rights norms.

The legacy of a post-9/11 world must be reshaped from a narrative of violations of the rule of law into one in which the United States embraces human rights principles consistent with both the U.S. Constitution and international law. Ten years later, it is not too late for the U.S. to turn things around and do the right thing by making it clear that human dignity is of paramount importance and that accountability for human rights is a U.S. national interest, not just another foreign policy tool.

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