We see our venerable leaders blithely going about the business of legalizing torture and indefinite and secret detention without lawyers or judges and tossing asunder fundamental principles dating from 1215 (Magna Carta). The United States has now become a pariah state to human rights proponents. But it is easy to forget that it was not always thus.
Scroll back the history pages to the end of WWII: Churchill and Stalin are calling for summary justice for the lead Nazi war crimes suspects, accused of some of the most heinous criminal acts in recorded history. Just line them against the wall and shoot. It is the US that insists on proper and fair trials, by independent judges,with guarantees of due process. Robert Jackson, a distinguished US Supreme Court Justice, was the United States Representative to the International Military Tribunal at Nuremberg during 1945-46. In his letter to President Truman of 7 October 1946, reporting on the outcome of the trials, he remarked:
"In a world torn with hatreds and suspicions where passions are stirred by the "frantic boast and foolish word," the Four Powers [The United States, Great Britain, France, the Soviet Union] have given the example of submitting their grievances against these men to a dispassionate inquiry on legal evidence. The atmosphere of the Tribunal never failed to make a strong and favorable impression on visitors from all parts of the world because of its calmness and the patience and attentiveness of every Member and Alternates of the tribunal. The nations have given the example of leaving punishment of individuals to the determination of independent judges, guided by principles of law, after hearing all of the evidence for the defense as well as the prosecution. It is not too much to hope that this example of full and fair hearing, and tranquil and discriminating judgment will do something toward strengthening the processes of justice in many countries."
Contrast that vision, with the reality of Guantanoma, Bagram, Diego Garcia, and untold places of secret detention around the world, hosted by various Pentagon and CIA departments and sub-departments, accountable only to the accountable to the unaccountable. Most of the detentions are arbitrary; and most do not likely involve persons who have committed serious crimes. Most detainees will not get a trial, see a lawyer, see a judge, or see family members. We don't even know who many of these people are; they are simply the disappeared.
Scroll back again to 10 December 1948, the Universal Declaration of Human Rights is adopted by the United Nations as "a common standard of achievement for all peoples and all nations." This magisterial document sets out the core rights principles that would later be enshrined in the great international and regional human rights treaties. It was a quantum advance and modernization of older rights codification, like the US Bill of Rights, which was wonderfully progressive for its age, but is now sorely antiquated. And remarkably, never known or long forgotten by most Americans, it was the US Delegate, Eleanor Roosevelt, who played the preeminent role the formulation and hard fought adoption of this instrument.
Despite its decidedly (half) Yankee origins, the Universal Declaration has suffered woeful neglect in the US. Yet the Universal Declaration is widely disseminated through primary education around the world. (On a trip to Sweden I noticed that the text adorned the opening pages of every telepohone book.)
More importantly, the progeny it has spawned in the form of the two International Human Rights Covenants, as well as the European Convention on Human Rights, the Inter-American Convention on human rights, the African Convention,and other human rights treaties, have left an impressive array of machinery to keep state power in check and provide substantial protection for over a billion people around the world.
But the writ of this machinery does not reach to the United States, which refuses to participate meaningfully in the international human rights protection system and so helps render the Guantanamo gulag a grim reality.
It would be impossible for any nation among the 45 member states of the Council of Europe, or most states in Latin America to effectuate policies of arbitrary detention such as those administered by the US in Guantanamo and elsewhere. The European Court or the Inter-American Court would easily find such practices a clear breach of those respective Conventions. Recently, the highest Court in Britain (the Law Lords) ruled that the detention without charge of 11 foreign nationals held under Britains anti-terror law was in violation of the European Convention; the Court did so in full awareness of the fact that had they not reached such a detention, the European Court in Strassbourg, would have done so in its stead.
Promotion of the right to a fair trial, even for the most vile Nazi murderers and the universalization of fundamental human rights standards: The US once developed and nurtured these protections. We now dismiss them in a way that other nations dare not. For while there are those which perpetrate human rights violations in practice, none so brazenly do so through invocation of pseudo-legal doctrine of the likes conjured by the likes of Alberto Gonzales.
With our abnegation of fundamental standards of human rights, we contrive to set a new debased standared for others to adopt, and thereby to obliterate the heart of the customary law of human rights.
Fortunately, the nations and people in Europe and Latin American have rejected our example. It is to them, not the US, that other nations in a position of transitional justice should and will look when making decisions as to their moral and legal architecture.