Thank God for the Supreme Court, or at least for the six members who ruled clearly that the president's claims of wartime powers do not trump the rule of law.
The court has now exposed the authoritarian nonsense of the administration's claim that a detainee who has not been tried can be held captive as an indefinite menace, simply because the Pentagon asserts it. The entire basis of our system of law rests on the right of an accused person, no matter how heinous the alleged crime, to rebut those accusations before an impartial judge. Strip that away, and you have a dictatorship.
It is shocking to have to say so, but it is also fortunate that an earlier generation of Americans had the foresight to commit the United States to international conventions on the treatment of prisoners. When the United States signs and ratifies a treaty, the provisions become a binding part of domestic law.
When the United States signed the Third Geneva Convention, the understood purpose was to protect future American prisoners of war from brutal treatment by lawless foreign nations. How ironic that the convention on the treatment of prisoners has become a principal bulwark restraining the lawlessness of an American administration.
Bush's legal advisers were forced to invent preposterous fictions that were necessary only because the United States is a signatory. Hence, the lunatic claim, since ridiculed by the Supreme Court, that the United States does not govern Guantanamo or that there are permissible gradations of torture or exempt categories of prisoner. The convention, of course, makes no such distinctions, just as the U.S. Constitution guarantees due-process protections for "persons" and not just for citizens.
The American record of signing and adhering to international human rights conventions is checkered, at best. Ever since the Senate refused to ratify the Treaty of Versailles in 1919, the American right has been nervous about subjecting U.S. human-rights practices to international scrutiny. In the 1940s and 1950s, segregationists in Congress went to great lengths to keep the United States from signing international human rights agreements, lest our own systematic racial discrimination come under greater scrutiny and embarrassment.
Despite the end of official segregation, the right continues to resist international human rights compacts. As a result, many global human rights initiatives sponsored and championed by the United States have never been ratified. It took us decades to ratify even the convention against genocide.
We have still not agreed to many agreements on labor standards. We failed to approve the Kyoto Protocol on Climate Change or the International Criminal Court. We never ratified the Convention to Eliminate Discrimination Against Women, which was drafted with the active leadership of the United States and signed a quarter century ago by President Jimmy Carter.
Professor Harold Hongju Koh, the new dean of the Yale Law School, observes that the United States often proposes different rules for itself and the rest of the world.
America's ambiguous record on international human rights has turned into a plain disgrace under the Bush administration. The White House made an all-out diplomatic effort (with good reason, it turned out) to have the UN Security Council exempt American soldiers from war crimes prosecutions. Thanks to the revelations of torture at Abu Ghraib, that effort is now dead.
The Bush administration, rejecting international human-rights entanglements out of concern for "sovereignty," has been all too willing to undercut U.S. sovereignty and domestic laws protecting consumers and workers, via the World Trade Organization and NAFTA, when the beneficiaries are its corporate clients.
On the whole, the United States has a better human rights record than scores of the world's nations. But its recent record under Bush has undercut America as a force for good in the world.
Lately, there has been a movement to create a caucus of democratic nations that respect human rights. That strikes me as a very good idea, not just because I'd like to see human rights advanced in places like Sudan and North Korea, but because the United States needs more international scrutiny.
I'd like to see a team of international observers make sure that the next election is not stolen. And if it is stolen (again), that three-judge Supreme Court minority, who defended Bush's dictatorial claims, will likely be the core of a new court majority.
This nation is the cradle of constitutional government. Who would have thought that the United States would need the court of global opinion and the shelter of global human rights treaties to protect Americans from our own leaders?
Robert Kuttner is co-editor of The American Prospect. This column originally appeared in The Boston Globe.
