A Lawless State

There's a paradox at the heart of U.S. foreign policy: As the Bush administration asserts unilateral global power, the influence and respect of the United States hits rock bottom, and as the United States professes its desire to expand democratic rights around the world, its actions undermine its stated goals. No issue in this political year is more urgent than addressing this disastrous contradiction. Restoring America's commitment to the rule of law would be a good way to start.

In the Bush war on terrorism, Washington has shown a reckless disregard for basic principles of international human-rights law like the Geneva Conventions, the Convention Against Torture, and the International Covenant on Civil and Political Rights. It has created a climate of lawlessness in which foreign detainees in U.S. custody overseas have been brutally abused, thousands of foreign citizens are held as “enemy combatants” indefinitely without being accorded the status of prisoners of war, and repressive regimes around the world get a green light to crack down on political dissidents and religious and ethnic minorities in the name of fighting terrorism. The result has been a drastic increase in the number of people convinced that America is their enemy and stepped-up recruiting by terrorist groups throughout the Muslim world and beyond.

As several articles in this collection demonstrate, the lawlessness in the administration's foreign policy is also reflected in disdain for civil liberties at home. Thousands of men with foreign backgrounds have been held secretly in U.S. prisons and detention centers without charges for months at a time. The Justice Department has claimed unprecedented authority to arrest U.S. citizens in the United States without charges and deny them legal counsel on the mere assertion that they are enemy combatants. On June 29, the U.S. Supreme Court invalidated this breathtaking assertion of executive power, with one of its most conservative members, Justice Antonin Scalia, reminding the administration that “[t]he very core of our liberty … has been freedom from indefinite imprisonment at the will of the Executive.” Longstanding principles of privacy that reflect colonial America's antipathy for the hated secret searches of King George III have been eroded by Congress' hasty enactment in 2001 of legislation drafted by the administration with the ironically Orwellian title USA PATRIOT Act.

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The United States is squandering one of its greatest assets: its commitment to human rights and the rule of law. At the G8 summit in June 2004, President Bush called for the transformation of authoritarian regimes in the Middle East into open, democratic societies. The president's appeal met with disdain in Arab countries, not because there is a lack of appetite for reform in the region but because the Bush administration has undermined the moral authority of the United States by trying to impose democracy through the unilateral and preemptive use of force in Iraq. In the Middle East, local reformers on the ground report that they no longer dare use the words “democracy” and “human rights” in their own communities. On the Arab street, these terms are now synonymous with U.S. military occupation, high civilian casualties, and the abuse of prisoners.

All over the world today, people see little connection between their own aspirations for freedom and security and the rhetoric and actions emanating from Washington. Sweeping aside more than a half-century of international law (and the institutions and alliances within its framework created by bipartisan American leadership), the Bush administration has weakened our values and our capacity to project them.

In the past, the United States scored major diplomatic victories for human rights and freedoms by working, with allies, within a framework of international law. The drafting of the Universal Declaration of Human Rights by the fledgling United Nations under the prodding of Eleanor Roosevelt launched the modern era of human-rights advocacy. President Jimmy Carter mobilized democratic governments to press for the release of political prisoners held by repressive regimes, Ronald Reagan invoked the Helsinki Accords to champion the cause of dissidents in the Soviet Union, and George Bush Senior joined with western European governments to provide assistance to the fledgling democracies of post–Cold War central and eastern Europe. During the administration of Bill Clinton, the United States worked with NATO to end the human-rights catastrophe in Bosnia and prevent genocide in Kosovo. Each of these successes was grounded in human-rights law.

The lawlessness in American foreign policy today emanates from the top. In a January 2002 memorandum reporting a decision by the president, White House Counsel Alberto Gonzales wrote that the war on “terrorism renders obsolete [the Geneva Conventions'] strict limitations on the questioning of prisoners.” His only rationale for that sweeping assertion was that “terrorism is a new type of warfare not contemplated when the conventions were framed.” But despite new 20th-century challenges such as guerrilla war and nuclear war, until George W. Bush, no American president had questioned the basic rules of international humanitarian law, including, notably, Presidents Lyndon Johnson and Richard Nixon during the Vietnam War and Bush Senior during the Gulf War.

The reasons for following humanitarian law are abundantly clear, and they were spelled out inside the Bush administration by Secretary of State Colin Powell. Responding to the Gonzales memo, Powell warned in his own memorandum to the president that “revers[ing] over a century of U.S. policy and practice” would “undermine the protections of the law for our troops,” provoke “negative international reaction, with immediate adverse consequences for our conduct of foreign policy,” and diminish “public support among critical allies, making military cooperation more difficult to sustain.” Brushed aside at the time like the law itself, Powell's memo today reads like a prophetic prediction.

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To repair the damage done over the last four years to American credibility around the world, we need to restore the rule of law to American foreign policy.

First, the president should announce that the United States will apply as a matter of policy and practice the Geneva and Torture conventions, the International Covenant on Civil and Political Rights, and all other international human-rights and humanitarian instruments that have been ratified and adopted as part of our domestic law. This would help rebuild American influence with potential allies and provide protection to American soldiers and civilians abroad.

Second, the United States should work to strengthen international law on terrorism. By leading an effort to stigmatize terrorism as a crime against humanity, the United States would enhance its ability to forge alliances to isolate terrorists as outlaws while strengthening international human-rights law.

Third, the United States should protect human rights at home to demonstrate to the world the values it stands for. The highest U.S. law-enforcement official, Attorney General John Ashcroft, denigrated these values by warning that “those who scare peace-loving people with phantoms of lost liberty … only aid terrorists.” But security depends on liberty. Citizens in an open society have the freedom to separate good policies from bad, and correct errors.

Fourth, the United States should resume its leadership in strengthening the system of international law that it helped create. It should rejoin international negotiations on such critical issues as climate change, nonproliferation of weapons of mass destruction, and international justice, and move to ratify human-rights treaties long pending before the Senate, most notably on rights of women and of children.

Fifth, the United States should actively support those seeking to promote the rule of law, democracy, and human rights in their own societies. Because repression breeds hate by closing off avenues for peaceful dissent, and because hate fuels terrorist movements, human-rights reformers are shock troops in the struggle against terrorism. But democracy cannot be delivered through the barrel of a gun. Assistance to those who are working to build their own democratic societies must be carefully targeted and planned, sustained over time, and based on an understanding of the unique circumstances and profound differences among countries, cultures, and religions.

Finally, the United States should work with other nations and the United Nations to reassert America's leadership role in preventing or stopping humanitarian catastrophes in failed states. During the 1990s, a doctrine of humanitarian intervention was developed under U.S. leadership and was invoked to stop the genocide in the former Yugoslavia. Because the Iraq intervention was unilateral, preemptive, and poorly planned, it has given humanitarian intervention a bad name and destroyed U.S. credibility on human rights. As a result, in Liberia, Haiti, Sudan, and other failed states, war criminals once again are terrorizing civilian populations while the United States and the international community stand idly by.

It's time to end America's lawless state and restore its role as a beacon of freedom and a builder of alliances within the rule of law. Otherwise, tyrants and terrorists will continue to flourish in a world of diminished American leadership.

John Shattuck, the assistant secretary of state for democracy, human rights, and labor from 1993 to 1998, is the author of Freedom on Fire: Human Rights Wars and America's Response. He is now CEO of the John F. Kennedy Library Foundation in Boston.

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