torture, mutilation, and execution.29 For over two years he was denied access to a lawyer. As the Supreme Court was considering whether to review the legality of his indefinite detention, the government transferred him to the criminal justice system. No longer charged with the dirty bomb plot, he was instead accused and convicted of conspiring to murder, kidnap, and maim people outside the United States.30 His repeated attempts to sue those responsible for his torture have been thrown out of court.31
In March 2002 Abu Zubaydah, a Saudi Arabian citizen who helped administer a jihadist military training camp in Afghanistan, was captured by U.S. agents in Pakistan. Described by President Bush as “al Qaeda’s chief of operations” and “one of the top three leaders in al Qaeda,”32 Abu Zubaydah became a test subject for the CIA enhanced interrogation program. He was kept naked, subjected to extreme cold, deprived of solid food, denied pain medicine for wounds received in his capture, kicked and beaten, shackled in uncomfortable positions, slammed into walls, blasted with loud music, confined in a small box (causing his wounds to reopen), prevented from sleeping (once for over two weeks), and waterboarded eighty-three times in one month.33 In September 2006, he was transferred to Guantanamo. In habeas corpus proceedings in 2009, the government dropped its earlier claims that he was a member of Al Qaeda and that he had helped plan the attacks of September 11.34 His lawyer has reported that Abu Zubaydah’s “mental grasp is slipping away,” partly because of a head injury suffered in the 1990s and partly because of his treatment by the CIA.35 Abu Zubaydah remains in Guantanamo, having never been charged with a crime by the U.S. government.
How could the United States, following 9/11, institute a policy of torture, and even maintain it after the secret was revealed? This question will require years of empirical and intellectual detective work. We need to understand not only the individual decisions and bureaucratic and legal maneuvers that constructed the policy but also the background conditions that made it possible. Though several outstanding journalistic, scholarly, and investigative works have been written,36 the question needs vastly more attention. One obstacle to full engagement is the still widespread assumption, even among those who acknowledge the fact of officially sponsored torture, that the United States is a rights-respecting polity. “This is not who we are” is a common response to revelations of U.S. torture. (In President Bush’s words: “The values of this country are such that torture is not a part of our soul and our being.”)37 Because the self-image of the United States as a non-torturing nation is preserved, Americans seem to feel less need to understand the program’s underlying causes.38
As I show in Chapters 4 and 5, one of the major contributing factors—though of course not the only one—was the U.S. marginalization of international human rights law. As it turns out, legal choices previously made by executive, legislative, and judicial officials in furtherance of the self-exemption policy made a direct and decisive contribution to the U.S. authorization of torture; they facilitated the task of Bush administration officials charged with authorizing “enhanced interrogation techniques.” The pre-9/11 legal choices that smoothed the subsequent path to torture included the substantive exceptions attached to U.S. ratification of the Torture Convention and International Covenant on Civil and Political Rights; the decision to block U.S. judges from enforcing U.S. treaty obligations; the general unwillingness to implement human rights treaty obligations through congressional legislation; the position taken by the executive branch and federal appeals courts that a policy decision by the president or a cabinet-level official overrides customary international law; and the refusal to ratify or domestically incorporate the Rome Statute of the International Criminal Court.
U.S. marginalization of international human rights law must therefore figure into an explanation of the U.S. torture policy, a policy that in the words of the U.S. Senate Armed Services Committee “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”39 Because the self-exemption policy remains in effect, the return of “enhanced interrogation techniques” cannot be excluded.40 The price for American exceptionalism is paid in terms of other human rights violations, not just torture. (I shall give some attention to rights violations committed in the U.S. criminal justice system.) Yet the torture program reveals the cost of American exceptionalism with special clarity.
The Effectiveness of International Human Rights Law
The embrace of international human rights law has inhibited human rights violations in Europe, while its marginalization has facilitated human rights violations in the United States. These findings, elaborated in Chapters 3 through 5, are powerful evidence for the practical value of international human rights law. Obviously, international human rights law does not stop all abuses (and some governments seem quite indifferent to their own international human rights promises), but when used well it can exert a significant restraint. Constitutional democracies should employ it as one device among others to prevent the abuse of power.
In recent years, studies have appeared claiming that ratification of international human rights treaties is not correlated with improved respect for human rights.41 On the basis of these studies, it is sometimes asserted that international human rights law is ineffective—that it makes little or no meaningful contribution to the protection of human rights.42 However, this inference is unwarranted for several reasons.
First, several studies report a statistical correlation between human rights treaty ratification and improved respect for human rights under certain conditions. For example, Beth Simmons reports such a correlation among the large group of countries that are neither stable democracies nor stable autocracies.43 Other studies report such a correlation for democratic states,44 a result consistent with my argument that international human rights law strengthens respect for human rights in constitutional democracies.
Second, it now appears likely that the negative statistical findings are the result of misleading social science datasets. Because the principal datasets report an overall stationary or slightly declining respect for human rights, and because of the large increase in human rights treaty ratifications, it is fairly easy to demonstrate a noncorrelation between treaty ratification and respect for human rights. But the datasets are derived from yearly reports by human rights monitors (primarily Amnesty International and the U.S. State Department) that over time have been able to obtain more information about human rights violations and have defined such violations more broadly. This results in a stricter standard of accountability, such that actual improvements are underreported in the datasets.45 The pattern is accentuated in states genuinely committed to the respect of human rights, since such commitment entails openness to human rights scrutiny.46 The existence of a “changing standard of accountability” is confirmed by the political science methodologist Christopher Fariss, who shows statistically that it offers the best way to make sense of a wide array of human rights information sources.47 He goes on to show that once the social science datasets are corrected for the changing standard of accountability, they reveal a positive correlation between ratification of major human rights treaties and respect for physical integrity rights.48
Third, the skeptical statistical studies use an overly simple test to measure the adoption of international human rights law. They check whether a country has ratified one or another human rights treaty, but as I emphasize in the following chapters, adoption of international human rights law involves much more than treaty ratification.49 A country like the United States may ratify human rights treaties and then undercut ratification through reservations, understandings, declarations, and other actions. Beyond ratification, the adoption of international human rights law includes measures such as legislative implementation of human rights treaty provisions, authorization for the enforcement of human rights treaty provisions by domestic courts, screening of proposed legislation for compliance with international human rights commitments, the establishment of national human rights institutions,50 and respect