an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Let's assume that the so-called Global War on Terrorism is more than a slogan cooked up by the Bush Administration to keep the public in a constant state of aggression and fear, and to justify the continuing string of lawless actions by an imperial presidency (committed in the name of defending the country in this new age war). These are large assumptions, of course, but many people apparently believe we are fighting a new kind of war, a 21st century war with a different set of rules, different kinds of battles, and different markers for victory and defeat.
If this view is to be taken seriously, we must recognize pivotal moments in the GWOT, which will take on unfamiliar guises. One such moment came last week in response to the issuance of the State Department's annual human rights report. As the New York Times reported, China's response was biting:
In a sharply worded response...China's cabinet said the American government should concentrate on improving its own rights record. "As in previous years, the State Department pointed the finger at human rights situations in more than 190 countries and regions, including Chnia, but kept silent on the serious violations of human rights in the United States," the Chinese report said.
The Russian government responded similarly:
"Even an initial analysis of the State Department report shows that it is full of distorted facts and appears to be a specimen of explicity double standards in assessing human rights," said a statement by the Russian Foreign Minister.
The U.S. has been accused of hypocrisy before, of course, but this time is different. This time the hypocrisy cannot be denied, with a government that openly flouts the law to spy on citizens, detains people indefinitely without charges, pursues a policy of torture, and twists intelligence to take the country into a war that has killed tens of thousands of people and maimed many more.
A key battle ground in the new Global War on Terror is the arena of international moral authority. There is no doubt that public opinion around the world overwhelmingly agrees with the reponse of China and Russian that we are hypocrites for pointing out their wrongs but not our own. Indeed, the U.S. government's excuses and justifications for its (for our) human rights violations sound strikingly like statements made by other guilty governments in defense of their conduct in the past.
Our country has suffered a major defeat in the GWOT. We has lost our moral authority in the eyes of the world. This is a defeat not just for the U.S., but also for the world. Never mind the snickering of cynics: the U.S. has been a force for good on many occasions in the past. We have enjoyed many admirers and supporters around the world. Our credibility right now, however, is zero.
The first step in recovering from this defeat is to halt our human rights violations: stop pursuing a policy of torture (really stop, not just claim that we don't do this), stop detaining without charges, and stop flouting the law.
But that alone is not enough. We must stop being hypocrites. We must acknowledge that we are wrongdoers as well. The State Department should issue forthwith an addendum to the report with a section on U.S. violations of humans rights last year, and the U.S. should be included in all future reports.
with a government that openly flouts the law to spy on citizens, detains people indefinitely without charges, pursues a policy of torture, and twists intelligence to take the country into a war that has killed tens of thousands of people and maimed many more.
Translating from Left-Wing to English:
with a government that openly flouts the law to spy on citizens,
with a government that surveils, in accordance with the Constitution, international phone calls of persons reasonably suspected of terrorist links,
detains people indefinitely without charges,
detains combatants in wartime, just as in every single other war ever fought,
pursues a policy of torture,
prohibits torture and punishes those who engage in it,
and twists intelligence to take the country into a war that has killed tens of thousands of people and maimed many more.
and uses the best available information to defend the country against potential threats and, in the process, liberates another country from a genocidal dictator, thereby saving the lives of countless thousands who would have otherwise been slaughtered by the genocidal dictator.
I hope this translation from Left-Wing into English has been helpful for everyone who would like to be part of the Reality-Based Community(TM)!