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Vice-President Dick Cheney, advocate of the so-called “War on Terror” made the following statement regarding would-be terrorists found within the borders of the US government, ‘These people are criminals illegally entering into the United States, killing our citizens. They do not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.’1 Cheney’s remarks embody the idea of ranking the value of individuals as lower than that of security. In the War on Terror suspects have been labelled as undeserving of the ‘normal judicial process’ and human rights. Many terror suspects have found themselves locked away without formal charges, their rights subordinated to this idea of American security. In the context of terrorism and security this paper will address this change in value ranking and subsequent consequences for the rights of the undeserving. This topic will be approached by successively analyzing the developments in US value ranking before and after 9/11, the continuance of post-9/11 value ranking, and its place in the ongoing War on Terror. Analysing value ranking in the context of security throws important light onto how life is valued and ranked in the political arena. The intrinsic value of human life is fundamental to liberal democracies. This basic foundation is enshrined in the Universal Declaration of Human Rights. Articles one and three state that human beings are ‘born free and equal in dignity and rights’, therefore having an intrinsic claim on ‘life, liberty, and security of person.’2 Ranking the value of a person’s life, or claim to liberty and security over another’s, questions this very basis of intrinsic value. When terror suspects are arbitrarily deemed undeserving of rights they are drained of intrinsic value. Such value ranking reframes individuals’ dignity and rights as means to others’ security.3 The greatest problem with giving such prominence to security is that it tramples the right to life, thereby undermining liberal principles, which has led to the violation of the prohibition of torture. The context of security also draws a clearer picture of more consistent principles and ideology that act as a basis for value ranking, whereas the day-to-day value ranking of individual actors is somewhat more arbitrary and not as adherent to a specific value system, but a patchwork of everyday choices and activities. Broadly speaking, the value ranking of security actors has a greater impact on criminal suspects and human rights generally. The
Dick Cheney, quoted in Randall P. Peerenboom, ‘Human Rights and Rule of Law: What’s the Relationship?’ Georgetown Journal of International Law 36, (2005): 136. 2 ‘United Nations Universal Declaration of Human Rights,’ United Nations Documents, http://www.un.org/en/documents/udhr/ [accessed 3 April 2010]. 3 Amanda R. Beattie, ‘Security and Insecurity: Intrinsically Valuing Life & the Threat of Terrorism,’ presented at the International Studies Association, 17 March 2004, 3.
Chris Davey Legal Problems of Human Rights security concerns emerging from the wake of the 2001 terror attacks on the US demonstrate this type of value ranking. Value in a Time of Terror Falling towers in New York and a smouldering Pentagon spurred seizures of emotion and scrambles for policy and retribution on the part of many American people and politicians. Within a month of the attacks the Bush administration started fulfilling the heavily worded warnings of Vice-President Cheney. The administration authorized the use of military courts as a method of trying the burgeoning ranks of suspected terrorists. These special courts were closed to the US domestic judicial system and those to stand trial, if they did, were restricted from access to evidence and charges on grounds of national security.4 The securing of these prisoners became centred in Guantanamo Bay where initial reporting showed that within a year of 9/11 nearly six hundred foreign nationals from forty-three countries were being detained without charges.5 Crafting the War on Terror with the framework of extra-judicial processes and military courts, trampled almost instantly the international norms of rights to equality before the law, recognition of personhood before the law and the right to a fair trial. Increasing numbers of suspects picked-up during military campaigns in Afghanistan and Iraq, not to mention the undisclosed extraordinary renditions, only serve to multiply these problems.6 The declared intention of President Bush that enemy combatants were to be held until succession of fighting further closed the prison door on hundreds of suspects. 7 The inflation of security concerns in the US came at the cost of the value previously placed in equal rights before the law. These measures place the security of American subjects above those of other nationalities including even American citizens suspected of terrorist activity. Following this trend, the Patriot Act authorized extra-warrant police activities against American citizens. This legislation sought to increase surveillance powers, enabling the government to investigate and act without the constraint of reasonable suspicion to prevent terrorism and capture more so-called combatants.8 Questioning the balancing of liberty and security, Jeremy Waldron describes these legal measures as resulting only in ‘symbolic
Laura Dickinson, ‘Legal Processes to Fight Terrorism: Detentions, Military Commissions, International tribunals, and The Rule of Law,’ The Southern California Law review 75 (2002): 1410. 5 Katharine Seelye, ‘Guantanomo Nay Faces Sentence of Life as Permanent U.S. Prison,’ NY Times, 12 Sept. 2002. 6 See Articles 6, 7 and 8 of the Universal Declaration of Human Rights (UNDHR). These declared rights serve as a starting point for international norms regarding the basic duties that establish obligations of due-process. 7 The Economist, ‘The Freedom Paradox,’ Special Report: September 11th 2001, Civil Liberties, 9 Feb. 2006. 8 ‘The Freedom Paradox.’
Chris Davey Legal Problems of Human Rights gains’.9 Pitting liberty against security in a balancing act of security epitomizes the problem of value ranking. The inherent value and liberty of individuals is taken out of the foundation of liberal democracy and put into the bricks and mortar of society. Citizens accommodated the trade-off of certain liberties for the administration’s claims of security. By doing so Americans were not conscious of the warning that, ‘we should be careful about giving up our commitment to the civil liberties of a minority, so that we can enjoy our liberties in greater security.’10 Such laws continued to add to the metamorphosis of value ranking that the growing Bush Doctrine of security offered. Thus the dichotomy of seeking this kind of security and “fighting for liberty” arises. By accepting these ‘symbolic gains’, potentially the people themselves become the means to safety and security not the ends that they should be, thereby lowering the value that US officials placed in their own people in general, let alone that of foreign nationals suspected of terrorism.11 This problem becomes further complicated with incidences of domestic terrorism such as the recent foiled attack in New York’s Times Square.12 Historic examples of US wartime security value ranking demonstrate a pattern of denigrating the value placed in the lives of human beings, even her own citizens. As a foreshadowing of post-9/11 politics, following the attack on Pearl Harbour, many Japanese immigrants and Japanese Americans were detained and held upon suspicion of being threats to national security.13 The War Relocation Authority also interned many Americans of German and Italian descent for the same reason.14 The military campaign in the Pacific theatre of World War Two was also fraught with US servicemen, encouraged by popular sentiment and propaganda, who considered the lives of their enemy to be of significantly lower value. The valuing was characterized by the military posters that encouraged the sentiment that the only good “Jap” was a dead one. 15 In Vietnam the infamous My Lai massacre, perpetrated under orders to ‘search and destroy’ those in the village demonstrates
Jeremy Waldron, ‘Security and Liberty: The Image of Balance,’ The Journal of Political Philosophy 11, no. 2 (2003): 209. 10 Waldron, 210. 11 Ibid... 12 BBC, ‘Times Square bomb suspect in court on terrorism counts,’ BBC 18 May 2010, http://news.bbc.co.uk/2/hi/americas/8690981.stm [accessed 25 May 2010]. 13 Todd T. Kunioka and Karen M. McCurdy, ‘Relocation and Internment: Civil Rights Lessons from World War II,’ Political Science and Politics 39, no. 3 (2006): 503. 14 Kunioka and McCurdy, 506. 15 Office for Emergency Management, ‘Stay on the job until every murdering Jap is wiped out! 19411945’ National Archives, http://arcweb.archives.gov/arc/action/ShowFullRecordLinked/ [accessed 25 April 2010]. This particular item calls for servicemen to respond blood for blood in retaliation for the infamous Bataan Death March of 1942.
Chris Davey Legal Problems of Human Rights the ferocity with which enemy combatants and their suspected supporters were treated.16 These events were all imbued with racism and a willingness to subordinate the rights of US citizens and foreign nationals for apparent gains in security. Prior to 9/11 this trend had not become a matter of policy but more a result of culture and tradition. Developments in the US as part of the War on Terror entrenched this historical trend into law legalising patterns of preventative action based upon suspicion and low value ranking. Similarly, the Abu Ghraib incident brought to light by the media haunts the noble cause of security and freedom. This event coalesces with the more recent approach to security and crime management known as ‘risk control’. Rising to prominence in the 1970s, this practise of law enforcement aims to reduce risk by targeting suspected groups and their behaviour with preventative measures.17 However, this risk-centred approach has dire The racism that has been prevalent consequences for those within suspect groups.
throughout the history of the US further adds to the endangering of minorities, such as Muslims, who are increasingly viewed with suspicion as the target group from which terrorists derive. Performed with impunity, the actions at Abu Ghraib targeted those imprisoned on suspicion of terrorism. The actions of a few servicemen displayed in graphic terms the consequences of combining lower-value ranking of suspected terrorists, risk control management, and the prejudice that has often been present in US war efforts.18 Abu Ghraib brings this analysis to the practise and policy that has most undermined individual value and liberal democracy: torture. Those considered the most undeserving of terror suspects have been caught in the net of politicized and legal wording that has created new norms of torture in US policy. It is this aspect of the war that holds the most challenging problem of value ranking. Two key legal documents known as the Haynes and Bybee memorandums for use by the US Justice Department supported crossing the traditional boundaries and violation of the absolute right that prohibits torture.19 These official guidelines served to place even lower value on terror suspects. Not only were legal rights being bypassed through detainment but these endorsements of torture, or “intensive interrogation techniques”, trampled on the personhood and the dignity of the individual that the prohibition of torture seeks to protect.20
16 ‘The My Lia Massacre,’ The American Experience, PBS, http://www.pbs.org/wgbh/amex/vietnam/trenches/my_lai.html [accessed 17 April 2010]. 17 Anastassia Tsoukala, ‘Security, Risk and Human Rights: A Vanishing Relationship?’ CEPS Special Report, Sept 2008. 18 Amnesty International USA, ‘Human dignity denied: Torture and Accountability in the “War on Terror”,’ 27 October 2004, http://www.amnestyusa.org/document.php? lang=e&id=9DEF4263FC2E35CA80256FE7004FE4C0 [accessed 17 April 2010]. 19 Barbara Hudson, ‘Justice in a Time of Terror,’ British Journal of Criminology 49, (2009): 707. 20 Hudson, 707.
Chris Davey Legal Problems of Human Rights Barbara Hudson discusses the justification for such techniques and how the logic of torture falls short of reality. Many supporters of the War on Terror claim the “ticking time bomb” scenario demonstrates that in order to save the lives of many the lives or dignity of few, or even one, must be abused in order to uncover “the bomb” before greater harm occurs. Hudson describes the main problem with this scenario is that it ‘cheats’ by making assumptions that are taken for fact: the actual existence of the bomb, and that the captive knows and is willing to disclose where the bomb is under a certain amount of pressure. Additionally, there is the question of how many suspects one will torture to find the illusive bomb, If there is a group of captives and one or some of them might know something, should they all be tortured, even with the risk that only one or only a few of them might know and so some are being tortured who have no knowledge? How many lives must potentially be saved to justify the torture of one captive?21 This is precisely the point when considering the problems of value ranking imposed upon suspects by this level of security reasoning: how many rights must be trampled before suspicion is answered or safety is assumed secure? Torturing for information regarding terror attacks or intelligence produces more harm by way of direct abuse upon suspects, than upon the possible indirect security and safety. Low value ranking of the lives and dignity of suspects is morally costly and produces little in the way of concrete outcome. Post Bush Politics: Outcomes and Risks of Value Ranking This section will briefly address a broad the problems that the above developments of value ranking in the War on Terror pose for the principles of liberal democracy, current developments under the Obama administration, and the ripples that the War on Terror has created for the future of security and warfare beyond the US. Michael Ignatieff readily summarizes the challenge faced by liberal democracies because of post-9/11 developments in security value ranking, ‘When (torture is) committed by a state, (it) expresses the state’s ultimate view that human beings are expendable. This view is antithetical to the spirit of any constitutional society whose raison d’etre is the control of violence and coercion in the name of human dignity and freedom.’22 Degrading the value of those deemed undeserving not only hampers the purpose for liberal democracies in fighting terrorism, but ultimately serves to undermine liberal legitimacy. Hudson adds that,
Ibid., 709. Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh: Edinburgh University Press, 2004), 143.
Chris Davey Legal Problems of Human Rights Liberal democratic values cannot be discarded when convenient for the state to preserve its liberal democratic nature. If they mean anything and are taken seriously, rights and freedoms need to be defended when they are endangered by terror, and by states’ self-defensive reactions to terror. States need to defend liberal values against the temptations of nihilism.23 The changes in policy and strategy by the Bush administration have proved to be results of a consequentialist approach. Individual lives, being expendable, are assigned value according to their ability to bring security not for their inherent dignity and rights. 24 War on Terror has sought to protect. President Obama’s security policies have ebbed and flowed regarding this matter. Despite the hope raised by the promises of closing the Guantanamo Bay prison, the continuance of the War on Terror in Afghanistan and restrictions of legal rights to terror suspects show little renewal of respect for the rights of the undeserving. Obama’s first Executive Order called for the closure of Guantanomo as soon as was ‘practicable’.25 The order cites the need for investigation into pending cases, possible transference of detainees, and includes a recognition of habeas corpus for all interned in the camp.26 However, more than a year after this announcement the camp still functions in its original capacity holding 196 inmates imprisoned awaiting further trial or release.27 Casting a looming shadow over the plans for closing Guantanamo is the expanding Bagram detention centre in Afghanistan. This location holds more than a thousand suspects, who it is reported, have been subjected to the continuance of the Bush policies of torture and denial of legal rights.28 The continued devaluing of the rights and dignity of terror suspects under the Obama administration only serves to further replace human rights norms with post-9/11 security value ranking. In the battlefield of Afghanistan the value of human life is pushed increasingly into the footnotes of the War on Terror. Two issues are important here in considering the pursuit of the War in Afghanistan: the drone missile attacks and long term military operations in
Hudson, 712. Beattie, 3. 25 Barack Obama, ‘Closure of Guantanamo Detention Facilities,’ The White House, 22 Jan. 2009, http://www.whitehouse.gov/the_press_office/closureofguantanamodetentionfacilities/ [accessed 15 April 2010]. 26 Obama, ‘Closure of Guantanamo.’ 27 BBC News, ‘Q&A: Closing Guantanamo,’ BBC, 23 Jan 2010, http://news.bbc.co.uk/2/hi/americas/7844176.stm [accessed 15 April 2010]. It should also be noted that since suspects were initially held in Guantanamo only three out of the 775 inmates have been convicted by military tribunal. 28 Stephen Foley, ‘Obama denies terror suspects right to trial,’ The Independent, 22 Feb 2009, http://www.independent.co.uk/news/world/politics/obama-denies-terror-suspects-right-to-trial-1628958.html [accessed 17 April 2010].
safety have been accorded a higher ranking than the individual freedom and liberty that the
Chris Davey Legal Problems of Human Rights combating terrorism. During the summer of 2009 six drone operations led to the deaths of over 175 Afghans.29 While these attacks were aimed at high-ranking Taliban and militant suspects, collateral damage was unavoidable. However, UN Special Rapporteur on Extrajudicial Executions, Philip Alston, has claimed that such attacks represent a danger to US compliance with international humanitarian law.30 These summary executions of Taliban suspects are carried out with the accepted deaths of bystanders. Bystanders are therefore assumed complicit in terrorist activity; extending the value ranking of generally confirmed Taliban actors to these individuals in a manner akin to the application of risk control. Targets are eliminated along with non-combatant members of the target group; making collateral deaths a direct result of the value assigned to combatants in the War on Terror. The use of missile drones is ongoing within the War on Terror, a war that is swiftly becoming a long term military conflict. The Department of Defence’s 2006 Quadrennial Review cites Mr. Bush as stating that Afghanistan will amount to ‘a lengthy campaign, unlike any other we have ever seen.’31 The Review extrapolates on this general comment claiming that the US has now proven itself capable of inland and global operations necessary for continued war against terrorism.32 Ambassador to Afghanistan Richard Holbrooke has confirmed this long war approach as part of the continuing War on Terror and US military presence.33 Tragically, with the increased use of drone technology taking broad swipes at Taliban operatives and bystanders, a long term war in Afghanistan appears to be geared up to only expand the Bagram prison, increase collateral killings, and enhance the post-9/11 value ranking as part of a de-facto war strategy. Ripples throughout the globe have been felt as a consequence of US unilateralism and security value ranking. Countries like Russia and others in central Asia, with Islamic populations, have used the precedent of post-9/11 value ranking to more aggressively pursue their own terror suspects.34 This trend is particularly acute in Pakistan where the military has taken upon itself to subverting human rights and the authority of the civilian government of
D Suba Chandran and Kate Swanson, ‘Drone of War: American Strategies across the Durand Line,’ Institute of Peace and Conflict Studies 111, July, (2009), 1. 30 UN News Centre, ‘UN rights expert voices concern over use of unmanned drone by United States,’ UN News Service, 28 Oct 2009, http://www.un.org/apps/news/story.asp?NewsID=32764&Cr=alston&Cr1 [accessed 20 April 2010]. 31 Donald Rumsfeld, Quadrennial Defence Review Report, 6 Feb 2006, Pentagon, Washington D.C., 9. 32 Rumsfeld, 10-11. 33 Tom Hayden, ‘Holbrooke Projects Long Occupation of Afghanistan, Pakistan,’ Tom Hayden, 20 Aug 2009, http://tomhayden.com/articles/2009/8/20/holbrooke-projects-long-occupation-of-afghanistanpakistan.html [accessed 20 April 2010]. 34 Tanya Lokshina, ‘Human Rights in Russia Hearing May 6, 2010,’ North Caucasus Panel Testimony, Human Rights Watch Russia Office, http://www.hrw.org/en/news/2010/05/06/human-rights-russia-hearingmay-6-2010 [accessed 22 April 2010].
Chris Davey Legal Problems of Human Rights President Zardari. Human Rights Watch has reported that although the government acknowledged the disappearances of hundreds of suspects during the prior military rule, the armed forces continue to prevent investigation and searches for these disappeared individuals.35 The relatively new government has also begun to follow suit with the military in the face of continuing militant attacks. In October 2009, legislation authorized by President Zardari allows the ‘preventative detention’ of terror suspects; intelligence and military authorities then have a 90-day window within which to extract information that justifies their arrest. This extraction often results in torture.36 These actions along with continued drone bombing affecting hundreds of civilians in North-west Pakistan act in concert to conjure up a false sense of security by consistently lowering the value placed upon suspected terrorists and their neighbours.37 Conclusion US anti-terror and security policies have turned the War on Terror’s quest for upholding democracy against itself. Winston Churchill said the following regarding the intertwinement of society, prisons, and the so-called undeserving, ‘The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted criminal, a constant heart-searching by all charged with the duty of punishment.’38 Churchill here summarizes the customary and legal norms that have been trampled by post-9/11 value ranking. Through the devaluing of those Cheney labelled as undeserving the US government has led the public against those suspected of terrorist acts. The rights of those suspected are over-shadowed by the legislation and memorandums that have built-up the current practises of detainment and torture. The victims of post-9/11 value ranking are the US citizens and foreign nationals, guilty or not, suspected of criminal acts and the citizenry who are attracted by such theatrical gains in what Waldron referred to as ‘symbolic’ security. Most damaging, however, is the deconstruction of fundamental liberal democratic principles and human rights norms. If how we treat the criminals of society is a test of civilization, then the US government and security authorities are setting a failing standard.
Human Rights Watch, ‘Pakistan: Military Undermines Government on Human Rights,’ 20 Jan. 2010, http://www.hrw.org/en/news/2010/01/20/pakistan-military-undermines-government-human-rights [accessed 25 April 2010]. 36 HRW, ‘Pakistan: Military Undermines Government.’ 37 BBC News, ‘US drone attack in Pakistan kills 15,’ 17 Jan 2010, http://news.bbc.co.uk/2/hi/8464009.stm [accessed 25 April 2010]. 38 Winston Churchill, speech in House of Commons 20 July 1910, cited in Shami Chakrabarti, ‘Reflections on Zahid Mubarek Case,’ Community Care, July 2006.
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Works Cited Amnesty International USA. ‘Human dignity denied: Torture and Accountability in the “War on Terror”.’ 27 October 2004. http://www.amnestyusa.org/document.php? lang=e&id=9DEF4263FC2E35CA80256FE7004FE4C0 [accessed 17 April 2010].
Chris Davey Legal Problems of Human Rights Beattie, Amanda R. ‘Security and Insecurity: Intrinsically Valuing Life & the Threat of Terrorism.’ Presented at the International Studies Association. 17 March 2004. Chandran, D Suba and Kate Swanson. ‘Drone of War: American Strategies across the Durand Line.’ Institute of Peace and Conflict Studies 111, July, (2009): 1-4. Churchill, Winston. Speech in House of Commons 20 July 1910. Cited in Shami Chakrabarti. ‘Reflections on Zahid Mubarek Case.’ Community Care. July 2006. Dickinson, Laura. ‘Legal Processes to Fight Terrorism: Detentions, Military Commissions, International tribunals, and The Rule of Law.’ The Southern California Law review 75 (2002): 1407-1489. Hayden, Tom. ‘Holbrooke Projects Long Occupation of Afghanistan, Pakistan.’ Tom Hayden. 20 Aug 2009. http://tomhayden.com/articles/2009/8/20/holbrooke-projectslong-occupation-of-afghanistan-pakistan.html [accessed 20 April 2010]. Hudson, Barbara. ‘Justice in a Time of Terror.’ British Journal of Criminology 49, (2009): 702-717. Human Rights Watch. ‘Pakistan: Military Undermines Government on Human Rights.’ 20 Jan. 2010. http://www.hrw.org/en/news/2010/01/20/pakistan-military-underminesgovernment-human-rights [accessed 25 April 2010]. Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror. Edinburgh: Edinburgh University Press, 2004. Kunioka, Todd T. and Karen M. McCurdy. ‘Relocation and Internment: Civil Rights Lessons from World War II.’ Political Science and Politics 39, no. 3 (2006): 503511. Lokshina, Tanya. ‘Human Rights in Russia Hearing May 6, 2010.’ North Caucasus Panel Testimony. Human Rights Watch Russia Office. http://www.hrw.org/en/news/2010/05/06/human-rights-russia-hearing-may-6-2010 [accessed 22 April 2010]. Obama, Barack. ‘Closure of Guantanamo Detention Facilities.’ The White House. 22 Jan. 2009. http://www.whitehouse.gov/the_press_office/closureofguantanamodetentionfacilities/ [accessed 15 April 2010]. Office for Emergency Management. ‘Stay on the job until every murdering Jap is wiped out! 1941-1945.’ National Archives. http://arcweb.archives.gov/arc/action/ShowFullRecordLinked/ [accessed 25 April 2010].
Chris Davey Legal Problems of Human Rights Peerenboom, Randall P. ‘Human Rights and Rule of Law: What’s the Relationship?’ Georgetown Journal of International Law 36, (2005): 1-152. Rumsfeld, Donald. Quadrennial Defence Review Report. 6 Feb 2006. Pentagon, Washington D.C. The Economist. ‘The Freedom Paradox.’ Special Report: September 11th 2001, Civil Liberties. 9 Feb. 2006. ‘The My Lia Massacre.’ The American Experience. PBS. http://www.pbs.org/wgbh/amex/vietnam/trenches/my_lai.html [accessed 17 April 2010]. Tsoukala, Anastassia. ‘Security, Risk and Human Rights: A Vanishing Relationship?’ CEPS Special Report. Sept 2008. ‘United Nations Universal Declaration of Human Rights.’ United Nations Documents. http://www.un.org/en/documents/udhr/ [accessed 3 April 2010]. UN News Centre. ‘UN rights expert voices concern over use of unmanned drone by United States.’ UN News Service. 28 Oct 2009. http://www.un.org/apps/news/story.asp? NewsID=32764&Cr=alston&Cr1 [accessed 20 April 2010]. Waldron, Jeremy. ‘Security and Liberty: The Image of Balance.’ The Journal of Political Philosophy 11, no. 2 (2003): 191-210.