Last week, Sir Ken Macdonald, a veteran prosecutor, spoke to the British Criminal Bar Association. He offered words of caution that thundered as a warning to the world.
"I believe an abandonment of Article Six (of the European Convention on Human Rights) fair trial protections in the face of terrorism would represent an abject surrender to nihilism," he said.
In recent history, the canon of Western self-perception has hinged on the idea that our societies have made the greatest strides in establishing good government by way of institutionalizing protection of the individual against arbitrary rule and disproportionate punishment. The concept of human rights justifies these protections. The U.S. Declaration of Independence enshrined the statement "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Moreover, the Ninth and Tenth Amendments to the Constitution declare that the government does not grant rights but rather is granted rights by the people, who form the base of its legitimacy. The judicial system is the primary instrument for safeguarding and defending these rights.
Over the past six years, people around the world have watched with trepidation as the U.S. government has publicly sought to justify limitations to these rights. On Jan. 18, Attorney General Alberto Gonzales publicly asserted before the Senate Judiciary Committee that the right of habeas corpus does not effectively exist. On Jan. 11, Cully Stimson, deputy assistant secretary of defense for detainee affairs, attacked all legal firms whose lawyers represent Guantanamo detainees. He indirectly called on major U.S. companies to boycott these firms, saying, "CEOs are going to make those law firms choose between representing terrorists or representing reputable firms."
Such statements from Bush administration officials are not surprising given the administration's repeated argumentation that certain people ("al-Qaida and al-Qaida look-alike detainees," in the words of Lawrence Wilkerson, Colin Powell's chief of staff from 2002 to 2005, are not deserving of rights - meaning protection from governmentally-meted injustice. It took a Supreme Court decision - Hamdi v. Rumsfeld in 2004 - to uphold the right of habeas corpus for all U.S. citizens, including those being held at Guantanamo Bay.
But this decision alone was not enough to discourage the administration from conferring upon itself the power to further violate individual rights by spying on the communications of U.S. citizens without a warrant. The potential for abuse of such a system became painfully evident in the case of American lawyer Brandon Mayfield, who was erroneously linked to the Madrid train bombings through a mistake in fingerprint matching. The Spanish government expressed doubts that Mayfield was correctly identified, but the U.S. government wiretapped his phone conversations, secretly searched his home and office and jailed him. It took two and half years to clear his name. The New York Times quoted Mayfield, "I personally was subject to lockdown, strip searches, sleep deprivation, unsanitary living conditions, shackles and chains, threats, physical pain and humiliation." After his innocence became apparent, the U.S. government granted him $2 million in damages - an unprecedented gesture which has not been afforded to the hundreds of other Americans wrongfully jailed and mistreated during the time of their incarceration.
Despite the novelty of the war on terror, this is not the first time that the U.S. government has overstepped its authority to the detriment of individual rights. We need only remember some of the projects undertaken by Cold War-era COINTELPRO - false media stories, perjured testimony, broken marriages, harassment, break-ins, surreptitious searches, beatings and assault - to realize that the protections we cherish as U.S. citizens are constantly under attack.
In COINTELPRO's case, the legislative branch eventually stepped in to curb the excesses of the executive via the Church Commission's oversight and recommendations. Today, the measures we take must be more sweeping and more public. Bad news spreads fastest, and information about the U.S. government's denigration of human rights becomes global knowledge in the blink of an eye. As one of the few countries that has enshrined human rights in our legal system, the U.S. represents a crucial stronghold for rights in a world where governments often deny them. We are still an international model, and the political and military chaos of the last few years demonstrates that if we err, other countries will more openly err with us.
Natalie Smolenski '07 sees the necessity of a morally ordered world.
