0521767539 cambridge university press after abu ghraib exploring human rights in america and the middle east apr 2009

Exploring Human Rights in America and the Middle EastThis book traverses three pivotal human rights struggles of the post–September11th era: the American human rights campaign to challen

Exploring Human Rights in America and the Middle East

This book traverses three pivotal human rights struggles of the post–September11th era: the American human rights campaign to challenge the Bush adminis-tration’s “War on Terror” torture and detention policies, Middle Eastern efforts

to challenge American human rights practices (reversing the traditional West toEast flow of human rights mobilizations and discourses), and Middle Easternattempts to challenge their own leaders’ human rights violations in light ofAmerican interventions This book presents snapshots of human rights beingappropriated, promoted, claimed, reclaimed, and contested within and betweenthe American and Middle Eastern contexts The inquiry has three facets: First, itexplores intersections between human rights norms and power as they unfold inthe era Second, it lays out the layers of the era’s American and Middle Easternencounter on the human rights plane Finally, it draws out the era’s key lessonsfor moving the human rights project forward

Shadi Mokhtari is an independent scholar and human rights attorney She rently works with a domestic violence nonprofit organization in the Washington

cur-D.C area and serves as the managing editor of the Muslim World Journal of Human Rights She holds PhD and LLM degrees from Osgoode Hall Law School,

York University; a JD from the University of Texas School of Law; a master’s ininternational affairs from Columbia University; and a BA from American Uni-versity She has taught as an adjunct professor at Osgoode Hall Law School and

has contributed chapters to books, including Islamic Law and International Law

(“The Iranian Search for Human Rights within an Islamic Framework”) (2007),

Islamic Feminism and the Law (“Towards a New Agenda for Islamic Feminism: Clearing the Human Rights Minefield”) (2008), and Migrant Women’s Search for Social Justice (“Migrant Women’s Interests and the Case of Shari’a Tribunals

in Ontario”) (2009) In 2006, she was selected as a “new voices” panelist at theAmerican Association of International Law Conference and was awarded hon-orable mention for the John Peter Humphreys Fellowship from the CanadianCouncil on International Law

Cambridge Studies in Law and Society aims to publish the best scholarly work

on legal discourse and practice in its social and institutional contexts, combiningtheoretical insights and empirical research

The fields that it covers are: studies of law in action; the sociology of law;the anthropology of law; cultural studies of law, including the role of legaldiscourses in social formations; law and economics; law and politics; and studies

of governance The books consider all forms of legal discourse across societies,rather than being limited to lawyers’ discourses alone

The series editors come from a range of disciplines: academic law; socio-legalstudies; sociology; and anthropology All have been actively involved in teachingand writing about law in context

Series editors

Chris Arup Monash University, Victoria

Martin Chanock La Trobe University, Melbourne

Pat O’Malley University of Sydney

Sally Engle Merry New York University

Susan Silbey Massachusetts Institute of Technology

Books in the Series

Diseases of the Will

Mariana Valverde

The Politics of Truth and Reconciliation in South Africa

Legitimizing the Post-Apartheid State

Richard A Wilson

Modernism and the Grounds of Law

Peter Fitzpatrick

Unemployment and Government

Genealogies of the Social

William Walters

Autonomy and Ethnicity

Negotiating Competing Claims in Multi-Ethnic States

Yash Ghai

Constituting Democracy

Law, Globalism and South Africa’s Political Reconstruction

Heinz Klug

The Ritual of Rights in Japan

Law, Society, and Health Policy

Eric A Feldman

Continued on page following the index

EXPLORING HUMAN RIGHTS IN AMERICA AND THE MIDDLE EAST

Shadi Mokhtari

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,

São Paulo, Delhi, Dubai, Tokyo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-76753-8

ISBN-13 978-0-511-58073-4

© Shadi Mokhtari 2009

2009

Information on this title: www.cambridge.org/9780521767538

This publication is in copyright Subject to statutory exception and to the

provision of relevant collective licensing agreements, no reproduction of any partmay take place without the written permission of Cambridge University Press

Cambridge University Press has no responsibility for the persistence or accuracy

of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain,

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eBook (NetLibrary)Hardback

Guiti Assadi, for their burning passion for the realization of justice and human dignity in their native Iran, in their adopted United States, and

throughout the world.

Acknowledgments pageviii

ONE American Imaginings of Human Rights and the

THREE The Middle Eastern Gaze on American Human Rights

FOUR American Imprints and the Middle East’s New Human

FIVE From the Ashes of the Post–September 11th Era:

vii

I am greatly indebted to family, friends, colleagues, and mentors for theirsupport and assistance in the completion of this book First and foremost, Iwould like to thank Susan Drummond for her enduring encouragement andinvaluable input throughout the process At every point at which I felt theproject was simply too ambitious and impossible to complete, it was Susanwho convinced me to get back in front of my computer and start the nextchapter I also thank Obiora Okafor and Annie Bunting for their guidanceand feedback throughout my tenure at Osgoode Hall Law School.

I must also express my gratitude to all the people who assisted methroughout my fieldwork This project would not have been possible with-out the tremendous insights provided by the American and Middle Easternhuman rights activists, journalists, and government officials who graciouslyoffered me their time, experiences, and perspectives I would also like tothank Anbara Abu Ayyash, David Cole, Gregory Dean Johnson, Galil Noa-man, Wendy Patten, and Charles Schmitz, who each provided valuable leadsand assistance with some aspect of the field research My work in Yemenalso benefited immensely from the interpretation assistance of Baraa Shiban.Finally, I would like to thank my husband, Peyman Khalichi, for hisimmense enthusiasm for my work and for his willingness to always engagewith the issues and ideas encompassed in this project I am also grateful forthe support of my brother Rohmteen Mokhtari, who never ceases to amaze

me with wisdom beyond his years His spirit serves as inspiration for theoptimism and hope weaved into this work

viii

ACLU – American Civil Liberties Union (American NGO)

CAT – Convention Against Torture

CEDAW – Convention on the Elimination of All Forms of Discrimination

IAF – Islamic Action Front (Jordanian Islamist Party)

ICRC – International Committee of the Red Cross

INGO – international nongovernmental organization

IO – international organization

LCCR – Leadership Conference on Civil Rights (American NGO)

MCA – Military Commissions Act

MEPI – Middle East Partnership Initiative

NAACP – National Association for the Advancement of Colored People NCHR – National Center for Human Rights (Jordanian

quasi-governmental organization)

NGO – nongovernmental organization

NPR – National Public Radio

PDF – Political Development Forum (Yemeni NGO)

SAF – Sisters’ Arab Forum for Human Rights (Yemeni NGO)

UNDP – United Nations Development Programme

ix

If the post–September 11th era is to bear the imprint of a succession ofsetbacks to the human rights paradigm epitomized by Abu Ghraib’s arrest-ing images, the era should also be marked by human rights’ reemergence

at the fore of local and global contests and consciousness This study verses three pivotal human rights struggles of the era: the American humanrights campaign to challenge Bush administration “War on Terror” tor-ture and detention policies, Middle Eastern efforts to challenge Americanhuman rights practices (in effect, reversing the traditional West-to-East flow

tra-of human rights mobilizations and discourses), and Middle Eastern attempts

to challenge their own leaders’ human rights violations in light of Americanpost–September 11th interventions in the Middle East The snapshots thatemerge are of human rights repeatedly being appropriated, invoked, pro-moted, claimed, reclaimed, and contested within and between the Americanand Middle Eastern contexts By placing these deployments side by side andhighlighting the myriad of contradictions they encompass and produce, thisbook brings to light human rights’ role as both an emancipatory and hege-monic force following September 11th There are thus several facets to thepresent inquiry First, it explores the era’s key intersections between inter-national human rights norms and power as they unfold in post–September11th era Second, it lays out the many interconnections and layers of theera’s American and Middle Eastern encounters within the human rightsrealm Finally, it draws out the primary lessons of post–September 11thdevelopments for moving the human rights project forward

THE FIELD

This largely empirical study incorporates field research conducted in ington, DC, Amman, Jordan, and Sana’a, Yemen Semistructured inter-views of American and Middle Eastern human rights advocates, government

Wash-1

officials, and journalists are combined with content analysis of select mediacoverage, governmental records, human rights nongovernmental organi-zation (NGO) reports, and public forums and conferences The researchextends through more than one locale to capture not just a sense of humanrights dynamics within one country but the transnational linkages and inter-relationships encompassed.

Jordan and Yemen present fascinating case studies Both countries were(at least officially) engaging with human rights discourses prior to September11th and both governments were less likely to label human rights norms

as Western or foreign impositions than other governments in the region,particularly those in the Persian Gulf Both countries also maintained closerelations with the United States throughout the post–September 11th era,albeit for slightly different reasons Beyond these similarities, however, thetwo locales stand largely in contrast to each other

Jordan’s human rights discourses are highly influenced by its phy The country’s location between Israeli-occupied Palestinian lands andAmerican-occupied Iraq colors the worldviews of the population and evenhuman rights forces In the same manner, its sizable Palestinian populationand growing Iraqi refugee population affect human rights discourses andconsciousness significantly Its reputation as a stable and Western-friendlycountry whose monarch frequently espouses a commitment to human rights(at least in rhetoric) has attracted many international human rights andhumanitarian initiatives targeting the Middle East region The state’s con-trol reaches deep and wide in Jordan Despite leaders’ propensity to adopthuman rights discourses and assemble various royal human rights initiatives(mostly limited to women’s rights and children’s rights), civil and politicalhuman rights violations such as torture and detentions spurred by criticism

geogra-of the state are regularly reported, and there is universal consciousness geogra-ofthe existence of red lines around speech and opposition, even as the lines arecontinuously being redrawn International human rights groups have alsouncovered numerous cases of torture and illegal detentions emerging fromJordanian assistance in American “War on Terror” rendition cases

I chose to conduct field research in Jordan to gain insight into theHashemite Kingdom’s own intriguing human rights trajectory followingSeptember 11th and to get a small window into Iraqi human rights develop-ments from the considerable presence of Iraqi activists, refugees, and officialdelegations either exiled in or frequently traveling to Jordan following theU.S invasion of Iraq I arrived in Amman at the end of May 2006 Just a fewdays into my trip, news of the wanton killings of twenty-four Iraqi civilians

by U.S Marines in Haditha and its cover-up by high-ranking U.S marineofficials broke

Before arriving, I had collected a handful of names and phone numbers

of Jordanian, Iraqi, and American activists involved in various human rights

initiatives and I had scheduled an interview with the director of the AmmanCenter for Human Rights Studies, a Jordanian NGO that from its relativelyextensive Internet presence seemed like a major player I had made a contact

at the NGO and hoped it could serve as my primary source for furthercontacts After a very frank and elucidating interview with Nizam Assaf(presented extensively inchapter 4) on my first full day in Amman and afterobtaining a valuable list of contacts from the Amman Center for HumanRights Studies’ staff, I ran into some unexpected obstacles My contact atthe NGO resigned soon after I had arrived, and after a few days of digesting

my line of interview questions that had focused extensively on U.S humanrights practices and promotion policies in the Middle East, Assaf had becomesomewhat suspicious that I might be more than just an innocuous researcher,prompting him to refuse me permission to sit in on the NGO’s activities

A few minutes after sitting in on a training session for Iraqi human rightsactivists who were in the midst of a heated discussion about the impact ofthe Haditha massacre on their work, Assaf asked me to leave, explaining,

“these are sensitive topics.” He later refused to extend an invitation to aregional conference on criminal justice the center was hosting

Although I was disappointed to miss these events, which no doubt wouldhave enhanced my research, the experience did in some ways underscorethe level of apprehension of both domestic and foreign sources with whichMiddle Eastern human rights activists have come to operate Fortunately,

I did not provoke as much suspicions in further contacts and successfullysecured a number of revealing interviews with other Jordanian human rightsactivists, journalists specializing in human rights coverage in Jordan’s majorreform-oriented media, associates of the quasi-governmental National Cen-ter for Human Rights, UN officials, several Iraqi activists exiled in Jordan,and Americans involved in various human rights promotion projects I leftAmman on July 1, 2008, just a few days after the U.S Supreme Court hadannounced what was considered one of its landmark detainee rights deci-

sions in Hamdan v Rumsfeld1 and a few days before the start of the warbetween Hezbollah in Lebanon and Israel

Whereas in Jordan the state is strong, in Yemen it is weak The country

is also by far the poorest in the region and the tenth poorest country in theworld This makes all sectors (governmental and nongovernmental) highlyreliant on foreign aid As a result, the government has been particularlyresponsive to American interventions, on the one hand revolving around who

it should detain and with what semblance of due process within the context

of the “War on Terror,” and on the other hand revolving around pressure

to adopt and institute various human rights and democratization reformmeasures For most of the September 11th period, Yemen has had the second

1Hamdan v Rumsfeld, 126 S Ct 2749 (2006).

largest number of Guantanamo detainees and by the time I visited, humanrights advocates sarcastically joked it had gained the honor of achieving thenumber one ranking The confluence of pressure and aid to institute humanrights reforms with American treatment of Yemeni detainees in Guantanamoand pressure for corresponding treatment of suspected terrorists at home hasbred fascinating discourses and consciousness around human rights amidinternational power asymmetries.

Assisting with the United States’ counterterrorism efforts was not much amatter of choice but one of necessity Particularly, in the period immediatelyfollowing the September 11th attacks, the Yemeni government’s “cooper-ation” was propelled by a real fear that if it did not, it could suffer thesame fate as Afghanistan In recent years, with growing popular anger atAmerican policies in the region, the government has occasionally put forthscathing criticism of the United States but has failed to act by changingits relationship with the global power As one American embassy officialput it, “From time to time, the government will organize a demonstration

or march from one innocuous location to another innocuous location toprotest American policies.”2

Interestingly, Yemeni human rights discourses are among the most rooted

in the region and certainly predate September 11th The reunification of thecountry following a drawn-out civil war provided important openings for theinstitutionalization of certain human rights norms, for example, a mandatefor multiparty elections and the articulation of a number of key rights inthe constitution The initial growth of Yemeni human rights NGOs began

in 1999, and most human rights activists consider the past seven years avery productive era for the development of Yemeni civil society As a result,Yemen is considered one of the region’s most progressive in its upholding

of civil and political rights and democratic reforms

I had not considered Yemen as a possible site for field research when

I embarked on this project in May 2004 However, several months afterbeginning the research, my interest in the unique Middle Eastern locale wassparked after hearing the country’s then-human rights minister and severalresearchers speak As I heard them describe Yemen’s complex relationshipwith the United States within the post–September 11th human rights contextand the centrality of the country’s 100-plus Guantanamo detainees withinits vibrant human rights engagements, I realized how valuable a Yemenicase study might be I arrived in Sana’a in early January 2007, just after

the eid al-adha (the Muslim festival of sacrifice at the conclusion of the haj

pilgrimage to Mecca), which had this year coincided with the execution ofSaddam Hussein in Iraq A few days following my arrival also marked thefifth anniversary of the arrival of the first prisoners at Guantanamo Bay

2 Interview with U.S embassy official (I), in Sana’a, Yemen (Jan 23, 2007).

Again, I entered the country with a list of contacts gleaned from varioussources and the hopes that HOOD (The National Organization for Defense

of Rights and Freedoms), the Yemeni NGO active in both local human rightsissues and Guantanamo detainee cases, would serve as a primary contact Ialso met a U.S.-based physician on my flight to Sana’a who took an interest

in my research and offered to assist me in making government contacts

As a result, I had an interview with the foreign minister on my first fullday and a meeting two days later with the Supreme Court justice who hadreceived considerable Western media attention for his faith-based dialogswith Islamic extremists imprisoned in Yemen

The interviews (particularly the former) offered little that added stantively to my research By contrast, an extensive interview with thetwo primary lawyers at HOOD, Mohammad Najji Allaw, the experiencedhead of the organization, and Khaled Alanesi, its amicable director, provedextremely valuable and is presented in pieces throughout much of thebook At one point during the interview, Allaw, who posed an extremelycogent third-world critique of global human rights dynamics but occasion-ally slipped into conspiracy theories, mentioned that he never knows when

sub-a foreign visitor posing sub-as sub-a humsub-an rights sub-activist or resesub-archer like me isactually there for intelligence purposes But judging from the duo’s fairlywarm reception, they did not plan to hold the possibility against me Afterthe interview Alanesi supplied me with a lengthy list of names to contact.Another highly revealing interview was one conducted with Amal Basha,the spirited and reflective director of the Sisters’ Forum for Human Rightswho was referred to me by an American women’s rights contact working

in Jordan Like Basha, virtually every other Yemeni activist and journalist Iencountered was extraordinarily open about the challenges, opportunities,and enigmas of Yemen’s post–September 11th human rights predicament.The director of the American Institute for Yemeni Studies also assisted me

in making a contact at the U.S embassy in Sana’a and, after a number ofe-mail exchanges, I was able to arrange interviews and discussions with sev-eral officials with varying ranks at the embassy I left Sana’a’s envelopingmountains, stunning ancient architecture, traditional attire, and immensepoverty at the end of January 2007

Both case studies provide a wealth of insight into the flux of Americanand Middle Eastern human rights dynamics in the post–September 11th era;however, the post–September 11th paths of other Middle Eastern countrieshave also contained abundant material relevant to the present inquiry Egypthas always been a pivotal player in the region, has a civil society with broadand deep, yet still limited, roots, and has been flagged and funded as a keyAmerican ally in the region It experienced smatterings of progress in therealm of political reforms but whatever inroads were made were quicklypushed back The Persian Gulf states such as Saudi Arabia also present a

fascinating wrinkle; despite their close political and economic ties to theUnited States, their financial independence allows them to answer Ameri-can calls for reforms differently than an impoverished country like Yemen.Within the Gulf, Kuwait and Bahrain are notable both for their dynamicstruggles for political reform and their elaborate state and civil society efforts

to free Guantanamo detainees Morocco, which is a bit further removed (atleast geographically) from post–September 11th events (notwithstanding itsinvolvement with American renditions and its extremist pockets), is anotherfascinating study in light of its institution of at least some notable humanrights and women’s rights reforms in recent years Thus, to the extent possi-ble, post–September 11th developments emerging from other Middle Easternlocales are also woven into the study via secondary sources

The American case study serves as the fulcrum of this book, as most ofits analysis is set against some aspect of American governmental or non-governmental action Because the complex American disposition toward thehuman rights paradigm and the international framework institutionalizing

it serve as the backdrop for the larger study in this way,chapter 1is devotedentirely to the subject The choice of the United States as a central site of fieldresearch was the most obvious given both the United States’ overwhelmingpower and central role in post–September 11th human rights discoursesand contests I spent most of my time between January 2006 and January

2009 in Washington, DC Most of my interviews of American human rightsactivists, congressional staffers, and journalists took place in the winter of

2006 I was rather surprised to find some of the American human rightsactivists I sought to interview highly inaccessible – standing in contrast tomost Middle Eastern activists’ eagerness to discuss their experiences withpost–September 11th human rights developments, but perhaps also reflect-ing the seeping of Washington’s “most powerful city of the most powerfulcountry in the world” culture into the human rights sector Still, because of

my extended stay in the locale, I was able to eventually secure interviewswith a majority of the American actors I hoped to reach I also relied heavily

on observation at forums and secondary sources in the American case study.However, tying down the case study proved a formidable task There wassimply so much activity – so many congressional debates, so many inter-

views with key actors in publications, ranging from The New York Times to Esquire, and so many conferences and forums – that from the onset it was

clear that I could incorporate only a small sampling in the study The samecan be said of the Middle Eastern side of the research as well As a result, thebook lays no claim to being exhaustive in its ethnographic inquiry Instead, itsimply lays out different layers and dimensions of the post–September 11thhuman rights problematic in order to inaugurate the line of inquiry This

is done with the hope that this project can offer new analytical tools and

insights for others to take up and further develop, expand, and complicate

in the future

INTERNATIONAL HUMAN RIGHTS AND POWER

It is important to note from the onset that in this project power is conceived

in particularly broad terms as the capacity to shape outcomes impactingindividuals’ or groups’ predicaments The definition encompasses a range ofboth material and constitutive manifestations of power, including economicpressure, military force, imprisonment, and subjection to violence withindetention, as well as the production, constitution, and deployment of normsand knowledge Although what is known within the social science literature

on power as “power over,” namely, through the imposition of one’s willover others, is central to the book’s analysis, gradients of “power to” areimplicit in discussions of resistance to power over and the role of socialforces Finally, power is presented as generally relative rather than abso-lute, multidimensional, fluid, dynamic, and capable of being possessed byindividuals, movements, institutions, or states

The view of human rights adopted is equally expansive and multifaceted

It is one that weaves back and forth between, and integrates, the paradigms’interconnected normative, political, and legal dimensions At its core, humanrights are a set of norms laying out a particular emancipatory vision Legal-ization within the international legal framework is considered an importantmeans for realizing that vision, ostensibly by infusing human rights normswith greater authority and capacity to bind states Yet, since its inception,the international human rights framework has been confronted with ques-tions regarding the regime’s ability to fulfill its emancipatory promise inthe face of both state power and powerful states Legal positivists discounthuman rights law because of the lack of any sovereign power charged withits enforcement and rationalists associate human rights norms with materialpursuits of “power” or “interests,” viewing them as no more than instru-ments strategically deployed by actors to further or justify interests.The post–September 11th era appeared only to solidify critics’ skepticismand human rights advocates’ anxieties about international human rights’captivity to power The era has been, to a large extent, defined by “extraor-dinary renditions” that often sent suspects to be interrogated in countriesknown to have few qualms or real restrictions on torture, the graphic depic-tions of humiliation, abuse, and torture at Abu Ghraib, the real prospects ofindefinite detention without the most basic of due process guarantees faced

by detainees at Guantanamo Bay, Bagram, and other detention facilities,the “disappearing” of suspects the United States deemed of high value into

the abyss of secret CIA black sites, Bush administration efforts to reshapedomestic and international law prohibition on torture, and few prospects

of high-ranking officials being directly held accountable for any of thesepolicies

At the same time, during this period the United States also consistentlyenlisted and co-opted human rights norms by linking justifications of itsvarious military and political interventions in the Middle East to pervasiveoppression and authoritarianism in the region The human rights lexiconpresented the United States with the opportunity to veil pursuits of interestsand power with the veneer of nobility, sacrifice, morality, and justice It pro-ceeded to deploy human rights norms in such instrumental ways by tappinginto and reproducing categories that designated the United States as a humanrights promoter and Middle Eastern governments, cultures, and religions ashuman rights violators Middle Eastern governments in turn often followed(or continued) suit, both through their use of counterterrorism as renewedlicense for curtailing rights and through calculated forays into the reform,democracy, and human rights lexicon

As these dynamics unfolded, decades-old questions surrounding tional law and particularly the human rights regimes’ capacity to constrainstates’ (and especially militarily and economically powerful states’) behavior

interna-in accordance with the normative framework, resurfaced Observers ited questions of whether the framework should be considered autonomous

revis-or subservient to international power asymmetries and whether it was genuous to continue designating international human rights law as “inter-national” or as “law.”3 In short, the era was gripped by an overwhelmingsense that human rights norms and the international legal regime that cod-ified it were in the midst of an existential crisis in the face of Americanpower and its post–September 11th global policies With no apparent force

disin-to compel compliance and damage from the delegitimizing effects of humanrights norms’ instrumentalization on such a grand scale, the human rightsproject was increasingly considered “weak” and its future uncertain

As revealing as they were, however, post–September 11th developmentscould provide only a partial account of the operation of power vis- `a-vis theinternational human rights regime There were invariably other layers to theAbu Ghraib story as there were to the Guantanamo epic and efforts to co-opthuman rights by American and Middle Eastern governments alike Viewedthrough different lenses, each of these post–September 11th human rightsphenomena also revealed the elusiveness, clumsiness, and vulnerability ofpower, the way it is apt to trap itself through its reliance on the morality

3Doris E Buss, Keeping Its Promise: Use of Force and the New Man of International Law, in

Empire’s Law: The American Imperial Project and the War to Remake the World

87 (Amy Bartholomew ed., 2006).

of the human rights regime, the way it is trapped by human rights forces

it seeks to co-opt, and the way it is resisted from within and abroad Suchdynamics stand as testament to the proposition that although governmentscould go to great lengths to veil their intentions to abide by human rightsstandards, there is no guarantee that they will succeed, laying the foundationfor challenging power through a framework that it had already designated

as legitimate

Thus, a central thesis of this study is that in the post–September 11era, human rights have simultaneously manifested and transcended powerand international hierarchies The era is not necessarily exceptional in itspositioning of human rights between hegemony and emancipation Severalrecent studies considering earlier periods have recognized that internationallaw or human rights are neither entirely paralyzed by power nor entirelydivorced from it but occupy a complex space in between.4 The era does,however, provide a wealth of material for a rich empirical study, because ofthe concentration and sheer volume of discourse, funding, and contestationcentered around human rights it has engendered In this sense, it presents aunique opportunity to add depth and nuance to understandings of humanrights as simultaneously manifesting and transcending power relations or,

as Amy Bartholomew has observed, conceptualizing human rights as a “site

of struggle.”5

The empirical research undertaken draws from and brings together twoemerging literatures within the international law and human rights scholar-ship The first is the Third World Approaches to International Law (TWAIL)literature and corresponding critical scholarship that highlight the ways inwhich power relations among states, cultures, races, or “civilizations” can beassembled around and built into international human rights dynamics Thesecond is the international law and compliance, particularly constructivist-inspired scholarship, which tends to focus on the potential of norms andidentities to foster compliance with human rights standards, notwithstand-ing power Each framework illuminates important aspects of the humanrights dynamics at play but takes the analysis only so far before it displaysits limitations The two optics are of greatest value when applied in concert

as one’s strengths often serve to remedy the other’s limitations

Adopting a research agenda in which power or hegemony figures soprominently can be fraught with its own trappings as it leaves an impression

4See, for example, Nico Krisch, International Law in Times of Hegemony, 16:3 Eur J Int’l L 369 (2005), or Oona Hathaway, Between Power and Principle: A Political Theory

of International Law, 71 U Chi L Rev (2005) The argument is also generally basic to

constructivism, although constructivists tend to place greater emphasis on emancipatory openings.

5 Amy Bartholomew aptly uses the term in her work on human rights following September

11th Empire’s Law and the Contradictory Politics of Human Rights supra note 3, at 180.

of a totalizing conception of power However, the focus on human rights’emancipatory potential is intended to signal a willingness to look beyondpower to its unsettling through internal contradictions and to the variousother social and political phenomena with which it intersects In other words,this book is equally concerned about the relevance of power in the humanrights context as it is with the irrelevance of power to the same If the anal-ysis takes as its starting point the many ways in which power is manifestedthrough human rights, it concludes with a discussion of recommendationsfor further enhancing the emancipatory potential of the human rights frame-work.

The New Era’s Inherited East/West Human Rights Geography

To understand the operation of power through human rights in the post–September 11th era, it is critical to identify one of the key ways in whichpower had been infused into global human rights dynamics long beforeSeptember 11th Since the regime’s inception, the human rights project hasbeen imbued with an entrenched hierarchy Because of its unmistakable geo-graphic demarcations, the hierarchy is referred to as the “East/West geog-raphy of human rights” in this project At its core, the geography assumesWestern liberal contexts’ commitment to universalism and the furtherance

of the human rights project while it conceives of non-Western countries, tures, and races as inherently incapable of fully understanding or achievingrights on their own

cul-In recent years, a body of critical scholarship, much of it articulated withinTWAIL literature, has mapped out the key elements of the East/West geog-raphy of human rights This scholarship has interrogated the bifurcation

of countries or cultures into human rights champions/guardians/leaders andhuman rights nightmares/burdens/projects and brought to light the designa-tions’ linkages to power, particularly in its constitutive or knowledge-basedforms Makau Mutua has written of the “savage-victim-savior” metaphor ofhuman rights, in which non-Western states and/or cultures are cast in the role

of savages, their population or segments of their populations (often women)are cast as victims, and Western liberal states and institutions take on the role

of saviors.6Similarly, Obiora Okafor and Shedrack Agbakwa have written

of three problematic constitutive orthodoxies of mainstream human rightseducation promoted by international organizations and international non-governmental organizations (INGOs): (1) a “heaven-hell” binary in whichthe West is presumed a model of human rights compliance while the devel-oping world is presumed to be a human rights nightmare,” (2) “a consequent

6Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv.

Int’l L J 201 (2001).

unidirectional traffic of human rights teaching from the West to the Rest,”and (3) the existence of an abolitionist paradigm that locates the source ofthe developing world’s human rights predicament in its culture, which it

in turn targets.7Powell has offered valuable insights about similar cies in the cultural relativism versus universalism debate so central to globalhuman rights politics, identifying several false underlying assumptions First,Western states are culturally neutral and thus devoid of the primitive cul-tural practices that lead to human rights violations in non-Western states.Second, relativism cannot be ascribed to the behavior of Western states inthe way it can be ascribed to that of non-Western states Finally, “the onlyrelativism which poses any real threat to universalism is cultural relativism,

tenden-in contrast to other relativisms that are reflected tenden-in the selective enforcementand invocation of human rights in and by Western and non-Western statesalike.”8

The East/West geography of human rights encompasses important facets

of the notion of orientalism developed by the renowned Arab-Americanliterary theorist Edward Said As Said sketched the phenomenon emergingfrom centuries of Western imperialist forays into the East, orientalism is aWestern tendency to imagine and to construct the East (Orient) in ways thatallow it to define itself in favorable contrasting terms.9The approach encom-passes a Western license to judge, scrutinize, study, represent, enlighten, andgovern the East Although orientalism is clearly characterized by a powerrelationship and web of hierarchies between the orient and occident, theWest’s power over the East is taken for granted as scientific truth Each ofthese elements has been widely present in global human rights dynamicsthroughout the regime’s tenure

Several insights emerging from the TWAIL and corresponding critical erature are particularly relevant to the analysis that ensues First, the hierar-chy at the root of the East/West geography renders Western violations invis-ible or easily dismissible as mere aberrations, whereas it makes non-Westernviolations ever present and highly visible, often through demonizing, sensa-tionalist, and decontextulized accounts Second, the construction lends itself

lit-to Western states (which are so inclined) lit-to appropriate the moral authority

of international human rights norms to justify military or economic ventions Third, the categories have a semiotic relationship with racism andcultural hierarchy When the stigma of human rights violations is associated

inter-7Obiora Chinedu Okafor and Shedrack C Agbakwa, Re-Imagining International Human Rights Education in Our Time: Beyond Three Constitutive Orthodoxies, 14 Leiden J Int’l

with the dark-skinned and “backward” cultures of the East, in a circularfashion it can serve as a justification for violating those populations’ rights.For example, what is viewed as a particular race, religion, or culture’s inca-pacity to grasp notions of rights serves to dehumanize its population in away that make the deprivation of their rights more acceptable in the eyes of aWestern soldier, politician, or citizen Finally, conceptualizations of humanrights violations flowing from the geography tend to coalesce around inter-nal sources of oppression and injustice and overlook international sources.Mapping this East/West human rights geography from the onset is criti-cal because much of the analysis presented in the rest of the book relates tohow this geography comes to be simultaneously reinforced and challengedthrough the unfolding of post–September 11th dynamics For example, bothtrends are seen in the strategies and arguments posited by human rights advo-cates challenging the Bush administration’s torture and detention policies.

It is necessary to note that the geography has become so engrained thateven Middle Eastern human rights advocates who are attuned to it, andinclined to pose challenges to it on one front, are also prone to reproduce

it on another front For example, at one point in our interview, HOOD’sKhaled Alanesi facetiously asserted that Western human rights experts oftenviewed Yemeni counterparts as “monkeys” to be trained in the language ofhuman rights without an independent capacity to determine what humanrights policies are best for their societies Extending the analogy, Alanesi alsonoted that these same Western experts often praised Yemen through com-parisons to neighboring Somalia or Saudi Arabia rather than countries withbetter human rights records, something he saw as an underlying tendency toapply lower human rights standards to the Middle Eastern contexts or to seeall non-Western countries as the same in their capacity to achieve rights Yet

at the same time that he criticized the presence of some East/West humanrights delineations, roles, and hierarchies, he clearly adhered to others:About the question of who learns from who, now I see that the West is learning fromthe developing countries In a negative way, they have learned how to violate humanrights The human rights violations that happened in the U.S., Britain, or Australiathey picked it up from the Arab world; the Arab intelligence have been capable ofinfluencing the Western intelligence forces on how to violate human rights So theWest is learning how to violate human rights from the East Not only in the practice

of violations but also in their law.10

Although the assertion is made as part of a tongue-and-cheek rebuke ofMiddle Eastern governments’ undeniably deplorable human rights practicesand is even on some level factually correct,11the fact that Alanesi frames the

10 Interview with Khaled Alanesi, executive director, HOOD, in Sana’a, Yemen (Jan 15, 2007).

11The New York Times has reported that the CIA consulted Egyptian and Saudi intelligence

officials in developing their interrogation techniques Scott Shane, David Johnston, and

rebuke in terms that portray Western states as essentially unknowledgeable

of even how to go about committing human rights violations while Arabstates are their traditional architects is indicative of the extent to which thehuman rights geography unearthed by critical scholars has been internalized

by governmental and nongovernmental forces, Western and Middle Easternalike

Still, although TWAIL and related critical scholarship play a pivotal role

in alerting those promoting the human rights enterprise to the operation ofpower through human rights and its contemporary hierarchies, they gener-ally offer little beyond this important critique By placing such substantialemphasis on manifestations of power and injustice embedded within humanrights dynamics, scholars often either overlook or choose not to considerthe many ways in which power can in fact be challenged, curtailed, or tran-scended through the same human rights enterprise Moreover, although it israrely explicitly articulated, some of the literature can leave one with a sensethat the only way to escape the human rights regimes’ failings is to aban-don the framework altogether, an unattractive prospect given the regimes’formidable achievements and the lack of viable alternatives in the foresee-able future These shortcomings are in large part remedied by integratingthis critical scholarship with a constructivist outlook

The Human Rights Challenge to Power

An underlying premise adhered to in this book is that power should not

be conceived of in static or zero-sum terms Categories of powerful andpowerless are fluid and dynamic, not discrete or absolute It is not thatthese categories do not exist, particularly in relative terms In fact, theoperation of power relations within American/Middle Eastern human rightsdynamics is a key analytic adopted in the study Instead, it is best arguedthat the dichotomy is untidy and porous The research presented illustrateshow domestic forces come to challenge American policies from within, howMiddle Eastern forces can challenge and subvert American attempts to co-opt human rights, and how local civil society forces exploit cleavages andcontradictions to challenge Middle Eastern states from within during thepost–September 11th period Each instance demonstrates how emancipa-tory manifestations of the human rights framework envisioned by humanrights proponents can overlap, meet, or eclipse hegemonic manifestationsdeployed by American and Middle Eastern governments No doubt, thosewith power attempt to at once co-opt and contravene human rights and in

James Risen, Secret US Endorsement of Severe Interrogations, N.Y Times, Oct 4, 2007,

http://www.nytimes.com/2007/10/04/washington/04interrogate.html?_r =2&pagewanted= print&oref =slogin&oref=slogin For a discussion of American involvement with torture

prior to September 11, see Jamie Mayerfeld, Playing by Our Own Rules: How U.S Marginalization of Human Rights Led to Torture, 20 Harv Hum Rts J 89 (2007).

many ways they do so successfully However, they can exploit the moralregime for only so long and to only such lengths before they are in someway answerable to it Thus, in the post–September 11th era, at the sametime that human rights serve to structure and define American and Mid-dle Eastern power relations (through state as well as nonstate hierarchies),they also serve to mediate, restructure, and redefine these very relationships,frequently turning them on their heads.

Within the international law and compliance literature, constructivist ory provides a useful analytical framework for understanding human rights’potential to transcend power in these ways The theory’s major strengthlies in its capacity to go beyond top-down models of coercive enforcementand strict notions of compliance in shedding light on the effectiveness andpotential impact of international legal norms The theory can emphasizehuman rights’ importance as a normative order with the capacity to shapepolicymakers’ and other relevant actors’ views of appropriate behavior.This outcome is realized when human rights advocates engage those reluc-tant to comply through debate, dialog, persuasion, deliberation, and sham-ing Applied to questions of international human rights norms’ effectivenessand potential impact, constructivism’s core assertions include the follow-ing First, leaders’ decisions regarding whether to uphold human rights areshaped not only by material considerations relating to power or interests butalso by many subjectivities, including beliefs, understandings, knowledge,expectations, and norms.12Second, the norms and normative frameworks,like human rights are particularly critical because they encompass a sense of

the-“shared moral assessment” or evaluation of what good people or good statesought to do.13Thus, leaders can become attuned to the stigma and negativejudgment encompassed in human rights violations because they care abouttheir reputation and will accordingly try to distance themselves from the

“human rights abuser” label Finally, identities, interests, and even powerare dynamic and “socially constructed products of learning, knowledge,cultural practices and ideology”;14 they are not determined or fixed This

12Martha Finnemore and Kathryn Sikkink, Taking Stock: The Constructivist Research gram in International Relations and Comparative Politics, 4 Am Rev Pol Sci 391 (2001),

Pro-at 392–3.

13Martha Finnmore and Kathryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org 887 (1998); and Thomas Risse and Katheryn Sikkink, The Socializa- tion of International Human Rights Norms into Domestic Practices: Introduction, in The

Power of Human Rights 8 (Thomas Risse, Stephen Ropp, and Kathryn Sikkink eds., 1999) Constructivists widely hold that ideational factors (including international norms) are intersubjective, meaning that, at some level, they are shared or commonly held and understood.

14Harald Koh, Why Do Nations Obey International Law? Book Review of The New Sovereignty: Compliance with International Regulatory Agreements by A Chayes and A Handler Chaynes, and of Fairness in International Law and Institutions by T M Frank,

106 Yale L J 2599, 2650 (1997).

fact presents human rights activists with opportunities to promote identityconstructions as well as notions of interests and power that are compatiblewith the observance of human rights, for example, by arguing that torture isun-American or that Islamic notions of justice encompass gender equality.

As noted, the theory places particular emphasis on communicative cesses social interaction, including persuasion, argumentation, deliberation,framing, and shaming The post–September 11th era has encompassed innu-merable occasions for such interactions – when Condoleezza Rice addressesstudents at the American University in Cairo and the audience questionsher about Abu Ghraib, when the State Department brings Middle Easternhuman rights advocates to the United States to learn from the Americanmodel for upholding rights and participants request access to Middle East-ern detainees, when a Bush administration official is challenged by rightsadvocates at an American law school forum, when a secular women’s rightsactivist and an Islamist who have come together in their opposition to Amer-ican policies in Guantanamo then proceed to tackle divergences surroundingwomen’s personal status laws, and when a U.S.-based human rights INGOcommunicates with an Islamist Party whose members have been detained

pro-by the local government All of these interactions and countless others haveprovided opportunities for human rights to gain ground within Americanand Middle Eastern consciousness, demonstrating the regime’s normativeimpact

A relevant debate within the constructivist field surrounds the question

of whether the most important interactions are those taking place tionally or domestically and whether it is other governments, internationalorganizations, INGOs, or domestic actors who have the greatest capacity

interna-to influence governments’ human rights attitudes and policies The tional state-centric approach considers interactions between states in theinternational plane to be most significant A second strand of constructivistscholarship privileges the role played by liberal Western governments andnetworks built between transnational advocacy groups and domestic socialmovements.15Recently, a third model, premised on how human rights normsare incorporated primarily through the efforts of domestic human rightsadvocates bridging international and domestic norms, discourses, and iden-tity constructions, has also sprung up.16

tradi-15See Risse & Sikkink, supra note 13.

16See, for example, Obiora Chinedu Okafor, The African Human Rights System, Activist Forces and International Institutions (2007); Balakrishnan Rajagopal, The Role

of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Normada Valley Struggle in India, 18 Leiden J Int’l L 345–87 (2005); and Shadi Mokhtari, A Constructivist Analysis of the Impact of International Human Rights Norms: The Case of Women’s Rights under Islamic Law in Iran (2005) (unpublished LLM thesis,

York University).

Clearly, none of the interactions privileged in each model is mutuallyexclusive, and, often, they work in tandem to reinforce each other More-over, which interaction is most significant will vary from cases to case Inthe study of the American engagement with human rights in relation toits torture and detainee treatment policies, the most vital interactions arethose that occur at the domestic realm and between domestic actors, mainlybecause nationalist discourses and identity constructions tend to marginalizeand delegitimize foreign critics This is best captured by the “we must bedoing something right if we’ve got the French upset” caricature alluded to by

an American human rights advocate interviewed.17But this disposition hasslowly changed over time As it turns out, international interactions were

in some respects quite pivotal in the United States following Abu Ghraib

In the Middle East, the picture is just as complex International tions and pressure have varying levels of impact When governments haveclose ties with the United States or other Western countries, internationalpressure can be more effective than domestic pressure, particularly in rela-tion to civil and political violations committed by the state However, thesesame governments can also join governments like Iran’s to exploit converg-ing nationalist, anti-imperialist, and Islamist discourses to justify skirtinginternational human rights standards

interac-Despite its significant contribution to uncovering the normative ways inwhich international law can reign in state power, the core constructivistliterature is largely blind to the ways in which power relations among statescan also be assembled around and built into international norm dynamics.18Mirroring assumptions of the East/West geography detailed by critical schol-ars, within much of the constructivist literature the West’s commitment touniversalism and furtherance of the human rights project is largely assumed,and it is widely accepted that the most serious human rights challenges liebeyond Western borders For example, the most important constructivist

work on human rights, The Power of Human Rights, edited by Thomas

Risse, Steven C Ropp, and Kathryn Sikkink, develop a model that placesWestern-based human rights INGOs and Western liberal governments asagents of human rights promotion in non-Western states.19 Not surpris-ingly, of the ten case studies presented in the book, none are of Westerncontexts

Further, constructivism has faced criticism that its emphasis on the stitutive power of norms favors “good norms,” such as the promotion of

con-17 Interview with human rights NGO representative, in Washington, DC (Feb 24, 2006).

18 To the extent that international power asymmetries are taken into account, it is through the assertion that powerful states and their leaders are not beyond the reach of international norms’ influence.

19See Risse & Sikkink, supra note 13.

peace and human rights rather than the rise of antithetical norms such as itarism or anti-Muslim sentiment More important, constructivist accountsrarely dissect the composition of frames and arguments employed to fos-ter compliance with international human rights norms to identify whetherthey contain any problematic or power-laden elements Instead, it is oftenassumed that the framing and shaming deployed by human rights advocatesare consistent with the aims of the human rights project As Michael Barnettand Raymond Duvall have noted, “Although constructivists have empha-sized how underlying normative structures constitute actors’ identities andinterests, they have rarely treated these normative structures themselves asdefined and infused by power, or emphasized how constitutive effects alsoare expressions of power.”20Thus, it is important to combine the construc-tivist insight that production of knowledge, identities, and status aroundcompliance with international human rights norms can be an indispens-able tool for advancing the human rights project, with critical human rightsscholars’ warnings that such productions can also be intimately linked tothe (re-)production of international power asymmetries.

mil-HUMAN RIGHTS DIMENSIONS OF THE AMERICAN/MIDDLE

EASTERN ENCOUNTER

Middle Eastern and American human rights conditions are traditionallyviewed as occupying separate spheres Academics or activists who are gen-erally specialists in Middle Eastern or American rights issues rarely crossover into each other’s terrain, even while working within the same insti-tutions There are many reasons for this compartmentalization, includingthe widespread belief that Middle Eastern human rights violations stemexclusively from internal factors and a corresponding notion that Americanhuman rights dynamics are so exceptional that they have little connection towhat lies beyond American borders or the West However, in presenting theAmerican and Middle Eastern contexts side by side and in interaction, thisstudy attempts a departure from this traditional insular approach In essence,

it endeavors to paint a canvas, recount a narrative, dissect a dialectic, andtrace the two contexts’ interwoven trajectories As the reader (whether he

or she was drawn to the book as a result of a commitment to American orMiddle Eastern human rights trajectories) works his or her way toward theconclusion of the book, he or she should gain a greater sense of the manylinkages, parallels, and entanglements of the two contexts and their humanrights predicaments

20Michael Barnett and Raymond Duvall, Power in International Politics, 59 Int’l Org 39

(Winter 2005).

The text also endeavors to go beyond the often decontextualized andessentializing portrayals of the era’s American/Middle Eastern encounter byhighlighting both actual points of contention and the vast array of demar-cations invoked that are in essence constructed To accomplish this, theanalysis considers prevailing identity constructions, often formed in oppo-sition to the other, contrasting narratives and lived experiences and some-times divergent and sometimes convergent sensibilities surrounding notions

of justice, morality, and human suffering In posing and juxtaposing each

of these elements, the study places a primary focus on the various forms of

“othering” inscribed within and around post–September 11th era humanrights discourses and contests Further, the case studies presented also bringout the overlap between identity constructions and beliefs about “the other”ascribed to by government officials, human rights advocates, and other socialforces, demonstrating their continuity and symbiotic relationships

Although most of the analysis is built around American/Middle Easternengagements and sense of self in relation to the other, international law, andpost–September 11th dynamics, this work also recognizes that an infinitenumber of other, mainly internal factors have also impacted human rightsoutcomes in each context but will inevitably be left out of the analysis pre-sented here Still, despite the obvious fact that American/Middle Eastern rela-tional politics and perceptions were not the sole determinant of how humanrights dynamics unfolded in each context, this focus is adopted because theserelational aspects of post–September 11th human rights dynamics remainunderexplored relative to their widespread presence within the era

STRENGTHENING THE HUMAN RIGHTS PROJECT

At the same time that the text considers the impact and influence of humanrights norms in a post–September 11th context, it is also heavily invested

in exploring the implications of post–September 11th developments foradvancing the human rights project To this end, a central aspect of the book

is a critical assessment of human rights advocates’ achievements and comings in contending with the era’s profound human rights challenges Acritique of traditional human rights assumptions and strategies forms much

short-of chapter 5’s analysis of the human rights lessons of the post–September11th era as in many respects, it draws to a close with the assumption ofthe U.S presidency by Barack Obama Among the key lessons of the eraidentified are that human rights forces should part with identity construc-tions and frames that portray the United States as ontologically committed

to upholding rights and they must refine the terms for seeking out Americanhuman rights leadership

At several key junctures, the analysis approaches the versalism debate that has occupied human rights promoters and detrac-tors alike since the regime’s inception Within this project, human rights istreated as a regime largely constructed through human agency but rooted inprinciples with potential for broad universal appeal The research presenteddemonstrates this by detailing instances in which Middle Eastern groupstraditionally inclined to dismiss human rights as Western impositions turn

relativism/uni-to the discourse relativism/uni-to counter abuses they endure following September 11th.Still, it is clear that the meaning accorded to human rights by the myriad ofactors invoking the language between and within the two contexts are variedand at times in conflict Finally, this argument that the human rights frame-work has some universal appeal does not imply that recourse to the humanrights framework is devoid of power dynamics or that human rights doesnot frequently serve, as critical scholars contend, as a hegemonic discourse

In many ways, it has traditionally been the only accessible emancipatory course because Western governments and Western activists have designated

dis-it as such However, this fact precludes nedis-ither the regime’s potential cipatory effects nor the existence of agency on the part of those invoking itoutside of the West

eman-The content of the international human rights regime and within theexisting regime, what rights are emphasized and which are relegated to therealm of “aspirations,” has also been an extremely contentious issue oftentaken up by critical human rights scholars Although it is not a central focus,the analysis touches on contemporary debates surrounding what is desig-nated an actionable or enforceable human rights violation and what is not.Clearly, the primary human rights discourses of the post–September 11thera have revolved around torture and due process rights, both falling withinthe civil and political rights category long privileged by Western states At

a few junctures, the book also touches on the implications of September11th developments for local efforts to promote social and economic rightsthrough the human rights rubric It also makes an argument for the adoption

of an expanded human rights vision that takes the human rights dimensionsand consequences of American militarism, beyond the torture and detaineerights struggles so prominently placed on Western human rights agendas inthe post–September 11th period, more seriously

THE BOOK FROM HERE

As has already been foreshadowed, the book is organized to move the readerthrough the post–September 11th era not chronologically but thematically.chapter 1 lays out the contours of the American disposition toward the

international human rights regime in the post–September 11th era In sodoing, it underscores the tremendous continuity between the United States’legal, political, and ideological treatment of human rights before and afterthe era and brings to light the many elements of the East/West geography ofhuman rights encompassed in the American disposition.chapter 2presents acomposite of an unprecedented American human rights campaign challeng-ing administration policies in two specific instances: the Senate confirmation

of Alberto Gonzales (a chief facilitator of the administration’s “War onTerror” torture and detainee rights policies) as Attorney General and theso-called McCain Anti-Torture Amendment legislation designed to reassertinternational law obligations prohibiting torture by the United States gov-ernment It then goes on to assess the human rights gains of the campaign,including the increased legitimacy and presence of the international humanrights framework within American political discourses and consciousness,

as well as offer a critique of the more power-laden aspects of the gies employed by the campaign Serving as a bridge between the MiddleEastern and American case studies investigated in the book,chapter 3pre-sents the various Middle Eastern mobilizations and challenges to U.S humanrights practices that emerge during the era.chapter 4focuses on the impact ofAmerican post–September 11th era experiments with both human rights vio-lations and human rights promotion in the Middle East on the region’s ownhuman rights landscape A discussion of the era’s key lessons for advancingthe human rights project forms the focus ofchapter 5

strate-American Imaginings of Human Rights

and the Middle East

The post–September 11th era provided an extraordinarily lucid view of themany intersections of American power with human rights Thus, it is onlyfitting to begin the book’s analysis by laying out and linking the most power-laden aspects of American interactions with the human rights paradigm fol-lowing September 11th Although the chapter draws considerably from thehost of invaluable reports, investigations, and articles dedicated to dissect-ing the American “road to Abu Ghraib,” its intent is not simply to recountthe facts and legal formulations at the heart of the Bush administration’shuman rights practices and policies Instead, it hopes to move the discus-sion further by incorporating two additional dimensions of the Americantreatment of human rights after September 11th First, it seeks to shed light

on the ways in which the East/West geography of human rights facilitatedAmerican power during the era Second, it attempts to highlight the conti-nuity of the Bush administration’s legal, political, and ideological doctrinesvis- `a-vis human rights, with human rights’s place in the American imagina-tion prior to September 11th Within the overall layout of the book, thischapter’s positioning of American power serves as the backdrop to the var-ious challenges and mobilizations against American post–September 11thhuman rights policies as well as the traditional operation of the East/Westgeography to be taken up in subsequent chapters

HUMAN RIGHTS, POWER, AND PARADOX IN AMERICAN IDENTITY POLITICSThroughout the United States’ history, upholding individual rights and civilliberties has been a central tenet of dominant American identity construc-tions Nationalist discourses are frequently built on a narrative of the UnitedStates as unique in its commitment to the preservation of rights and freedom

In this account, the United States is not just a member of a community of

21

states with an entrenched liberal rights-based tradition; it serves as a model

to which others generally aspire Quoting Ian Johnstone, “US ‘nationalism’

is rooted not in land or people, but in a set of values that, in principle,everyone can embrace This is a defining feature of American ‘exceptional-ism’, and it has defined the country’s relationship with the rest of the world,situating the US as the ‘city on the hill’ for others to follow.”1

Accordingly, important aspects of American identity pertaining to humanrights are relational and dialogical In the American imagination, serioushuman rights violations are always to be found in non-Western localesthought to be paralyzed by the grips of backward cultural and religiouscontexts and perpetual political and economic crises Thus, the United States’inherent respect for universal rights is often conceptualized in opposition tothe East’s violence, chaos, and inherent disregard for notions of rights Theconvergence of nationalist and Orientalist discourses fosters the conception

of international human rights law as a regime largely designed to regulatethe behavior of developing states and not that of the United States AsAmerican activist Loretta Ross has written, the media, international humanrights organizations, and the American government all perpetuate the viewthat international human rights are to be associated with the “the lack offreedom in other countries This portrayal often prevents the (Americans)from seeing injustices in the United States as human rights violations.”2Further, several critical scholars have pointed to the fact that Americanrights-based identity constructions are viewed in ontological terms Thistendency is brought out in the work of social theorist Susan Buck-Morss,who lays out the essentialist assumptions at the core of American identityformulations and self-image vis- `a-vis human rights:

Because the U.S is a civilized nation, it does not violate human rights

The implication in this example is that whatever the U.S does as a nation by definition

cannot be a violation of human rights – even if the same action done by an uncivilized

nation would be a violation Here the truth-claim has left the (epistemological) realm

of judgment and moved to the (ontological) realm of identity To be the United States

is to be civilized.3

In other words, something inherent in – perhaps lying in the spirit of – theUnited States’ being renders its actions consistent with human rights ideals.Thus, within the human rights realm, American behavior simply cannot bejudged through the same standards applied to other contexts

1Ian Johnstone, US-UN Relations after Iraq: The End of the World (Order) as We Know It?

15 eur j int’l l 813, 817 (2004).

2Loretta J Ross, Beyond Civil Rights: A New Vision for Social Justice in the United States, 2:1

Hum Rts Dialogue (1999), http://www.cceia.org/resources/publications/dialogue/2_01/ articles/607.html.

3 Susan Buck-Morss, Thinking Past Terror: Islamism and Critical Theory on the Left 64–65 (2003).

Closely linked to these relational identity constructions has been a istic view of culture Although there are explicit and implicit assumptions

dual-of Middle Eastern societies’ human rights “nightmares” being linked tothe trappings of a conservative religion and culture, the United States isviewed as standing in a space that is essentially free of culture and reli-gion or culturally and religiously neutral Sally Engle Merry has argued that

in this equation, adherence to modernism, rationality, and capitalism areseen in opposition to, rather than themselves manifestations of, culture.4Yet American positions on international human rights instruments or treat-ment of domestic rights issues often encompass the same cultural dimensionsattributed to human rights engagements in Eastern contexts For example,Deborah Weissman has discussed the way some conservatives’ opposition

to the United States’ ratification of the UN Convention on the Elimination

of All Forms of Discrimination against Women has been based on concernsthat the instrument advanced a feminist agenda and threatened traditionalmotherhood and child-rearing roles.5These objections only serve to mirrorAmerican discussion of women’s reproductive rights and the rights of sex-ual minorities, both of which are deeply entangled in religious and culturaldiscourses

The American self-image relating to rights and liberties also colors theway Americans understand their own power Yes, America is powerful, butthis power is largely benign and rooted in idealism If, through the deploy-ment of its power, rough edges are displayed, they are not to be taken asseriously or placed in the same category as the more vile and ill-intentionedexercises of power witnessed throughout history elsewhere This is because

at its core, beneath layers of what may be politics or even decision-makers’incompetence, some underlying aspect of the American deployment of power

is in pursuit of freedom, liberties, and other moral ends Thus, Americanpower is, in its essence or even in some teleological way, more benign thanother forms of power, and, as a result, there is less room for concern overits exercise

In relation to the international human rights regime, these constructionshave been invoked to paint international human rights norms as redun-dant or irrelevant to the American experience This worldview in turn hasprovided a rationale for repeated refusals to take on international humanrights obligations in any meaningful way Within American political andlegal discourses, the rights framework provided in the Constitution has rou-tinely been portrayed as above and beyond that offered by the internationalhuman rights regime, thus rendering America’s commitment to human rights

4Sally Engle Merry, Human Rights Law and the Demonizing of Culture (and Anthropology along the Way), 26:1 Pol Legal Anthropology Rev 55 (2003).

5Deborah Weissman, The Human Rights Dilemma: Rethinking the Humanitarian Project,

35 Colum Hum Rts L Rev 259, 326 (2004).

implicit in the sanctity accorded to its Constitution The American juristHans A Linde has observed that

It is largely taken as an article of faith that the United States provides the best tection for human rights in the world If there are any rights recognized in inter-national law that are not recognized in U.S law, [American] people may assume thatthere is a good reason for that non-recognition.6

pro-In other words, although the American rights regime has much to offer theworld, the international human rights regime has little worth considering tooffer the United States

Further, American policymakers have traditionally not only subscribed

to realist/positivist understandings of international law as powerless because

of its lack of coercive enforcement mechanisms, particularly in relation toAmerican power and preeminence, but also actively strived to keep the inter-national human rights legal regime, and their legal obligations under it, weak

to minimize the regime’s constraints on American power As internationallaw scholar Nico Krisch has argued, in the case of international legal insti-tutions applicable to the United States, successive American governmentshave opted for more “flexible” soft law rather than concrete legal obliga-tions and “pushed for an international legal order with weak centralizedenforcement and adjudication.”7In a manner that in essence mirrored theapproach taken by their Middle Eastern counterparts, American leaders havelargely performed a delicate dance of affirming human rights in principle butregistering broad reservations and exceptions in the name of autonomy inlegal, political, and security domains Reservations to human rights instru-ments such as the International Convention on Civil and Political Rights(ICCPR) and the Convention Against Torture (CAT) have construed Ameri-can obligation pursuant to the treaties as limited to definitions and doctrinesexisting in American law and refused the jurisdiction of the InternationalCourt of Justice for settling disputes arising from its adherence to humanrights treaties Accordingly, as human rights scholar David Forsythe has ob-served, taken together, the reservations, declarations, and understandings tothe few international human rights instruments to which the United Stateshas legally bound itself “have amounted to a statement that the United Stateswould not change any of its existing practices.”8

6Hans A Linde’s comments on P L Hoffman, The Application of International Human Rights Law in State Courts: A View from California, 18 Int’l L 16 at 77 (1984).

7Nico Krisch, International Law in Times of Hegemony, 16:3 Eur J Int’l L 369, 392

Similarly, over the past three decades the United States has slowly movedtoward developing U.S.-based human rights mechanisms encompassing lit-igation, evaluation, and sanction that are applied almost exclusively to therest of the world The State Department’s Country Reports on Human RightsPractices assess human rights conditions throughout the world As noted byWeissman, in and of itself, “the act of observation implies a hierarchy ofpower.”9Further, rules and regulations are implemented to influence othercountries’ human rights practices For example, the well-intentioned “LeahyLaw” prevents American aid to foreign military or security forces who havecommitted gross human rights violations with impunity As Krisch explains,such regulations

often – though by no means always – mirror international legal rules, but throughunilateral application the US retains far greater control over their content and alsoavoids being scrutinized itself. [I]t is unsurprising that the US prefers the proactive

unilateral enforcement of human rights to the establishment of effective internationalbodies.10

Finally, using domestic laws such as the Alien Torts Claims Act and theTorture Victim Protection Act of 1991, American courts took up the adju-dication of international human rights cases occurring outside of the UnitedStates In this way, “US courts assume the function of global appeals court,especially in human rights matters.”11Although American human rights andcivil rights activists have made numerous attempts to bring domestic litiga-tion on international human rights law grounds, these efforts have madelittle headway in American courts Efforts to sue American companies oper-ating abroad have been slightly more successful The American tendency

to create mechanisms parallel to the international human rights regime tomonitor, regulate, and litigate human rights violations outside its borderswhile refusing to apply international human rights standards domesticallyhave effectively placed large parts of American action above and beyond theinternational human rights order

When extended, these dynamics produce two critical paradoxes First,

at the same time that the dominant narrative positions American behaviorbeyond the province of the international human rights order, it qualifies theUnited States to assess other states’ adherence to human rights and, if deemednecessary, intervene to further human rights and freedom beyond its borders.Second, at the same time that dominant American identity constructionsmarginalize the international human rights regime, important aspects ofAmerican identity and self-image are tied up with an assumption of Americanbehavior adhering to human rights norms (at least within the civil and

9See Deborah Weissman, supra note 5, at 259, 316.

10See Nico Krisch, supra note 7, at 369, 403.

11Id at 369, 403–404 (2005).

political rights categories) Sitting in his office in Yemen’s Human RightsMinistry, the Canadian-Sudanese law professor who moved to Sana’a tohead up the United Nations Development Programme (UNDP)’s primaryhuman rights initiative in the country, El Obaid El Obaid observed thisparadox, which he termed the United States’ “schizophrenic” disposition.

“There’s a sense of ‘we’ll do it our way’ on the one hand and [a] yearningfor some rubber stamping from the outside on the other hand.”12In otherwords, at some level the moral evaluations and international reputation towhich constructivist analysis gives so much weight does come to play in theAmerican context

To varying degrees both American and Middle Eastern human rightsadvocates adhere to these constructions despite also holding genuine aspira-tions for the United States to join and comply with the international humanrights regime In several interviews in Yemen, I encountered this internal-ization of the notions that American action is inherently compatible withhuman rights and that the American regime of rights was an unblemishedmodel for others to follow For example, although he had no shortage ofcriticism for the United States’ post–September 11th human rights prac-tices, when the issue came up in our interview, Jamal Abdullah al Shami ofYemen’s Democracy School explained to a young volunteer sitting in on ourmeeting that the reason Americans do not need a Human Rights Ministry isthat rights are sufficiently enshrined in their Constitution.13American advo-cates’ propensity to adhere to notions that the United States is the world’snatural human rights leader or guardian and that its human rights violationsare somehow not as tainted as similar violations committed by others arediscussed at the end ofchapter 2

The various facets of the paradoxical American disposition toward theinternational human rights regime laid out have been examined extensively

in the vast literature on “American exceptionalism(s).” Sometimes calling

it “American exemptionalism,” scholars have attributed the phenomenon

to American culture, power, institutional makeup, and dominant strands ofpolitical conservativism.14

Many of the constructions at the heart of the American disposition come

to the fore of political discourse in the post–September 11th period, wherethey converged with new domestic norms and nationalist discourses centeredaround what are termed “War on Terror” imperatives and national security,

on the one hand, and the American mission to spread freedom, human rights,

12 Interview with El Obaid El Obaid, Chief Technical Advisor of United Nations Development Program Strengthening Human Rights Project, in Sana’a, Yemen (Jan 24, 2007).

13 Interview with Jamal Abdullah al-Shami, Chairman of the Democracy School, in Sana’a, Yemen (Jan 23, 2007).

14See Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in

American Exceptionalsism and Human Rights (Michael Ignatieff ed., 2005).

and democracy, on the other The rest of the chapter details how the Bushadministration took these identity constructions and construals of humanrights and international legal obligations as a point of departure for itspost–September 11th human rights policies and practices As a number ofscholars have observed, American exceptionalism after September 11th was

in many ways only a more extreme version of the American exceptionalism

in operation in prior periods.15

HUMAN RIGHTS AND THE MIDDLE EAST AS AMERICA’S CALLING

After September 11th, the human rights paradigm was positioned as animportant cornerstone of American interventions in the Middle East Asthe Bush administration styled it, the September 11th terrorist attacks haddemonstrated the imperative for America as “the leader of the free world”

to take up an agenda of promoting human rights, democracy, and liberty inthe ailing region The Middle East clearly suffered from widespread tyranny,oppression, and rights violations These deprivations of rights and freedomrendered the region a “breeding ground” for terrorists and their sympa-thizers Thus, as the American president declared in a 2003 speech at theNational Endowment for Democracy, American power was to be placed atthe service of freedom in the Middle East – this was not only in America’sstrategic and security interests, it was “America’s calling”:

The advance of freedom is the calling of our time; it is the calling of our country.From the Fourteen Points to the Four Freedoms, to the Speech at Westminster,America has put our power at the service of principle We believe that liberty is thedesign of nature; we believe that liberty is the direction of history We believe thathuman fulfillment and excellence come in the responsible exercise of liberty And webelieve that freedom – the freedom we prize – is not for us alone, it is the right andthe capacity of all mankind.16

Thus, almost immediately following September 11th, the “War againstTerrorism,” American military intervention in the region, and amorphousevocations of freedom, justice, and human rights became entwined, theboundaries between each notion fluid and shifting Examples of humanrights being deliberately linked to American militarism and geopoliticalambitions abound From the outset, the war in Afghanistan was namedOperation Enduring Freedom and the war in Iraq was named OperationIraqi Freedom by the U.S government In his 2002 State of the Union address

15See, for example, Stanley Hoffman, Chaos and Violence: What Globalization,

Failed States and Terrorism Mean for U.S Foreign Policy 120 (2006).

16The White House, President Bush Discusses Freedom in Iraq and Middle East: Remarks by the President at the 20th Anniversary of the National Endowment for Democracy, Nov 6,

2003, http://www.whitehouse.gov/news/releases/2003/11/20031106-2.html.

(the same speech that introduced the term Axis of Evil), Bush put forth the

following while showcasing the new Afghan Minister for Women’s Affairs,Sima Samar:

The last time we met in this chamber, the mothers and daughters of Afghanistanwere captives in their own homes, forbidden from working or going to school.Today women are free, and are part of Afghanistan’s new government And wewelcome the new Minister of Women’s Affairs, Doctor Sima Samar Our progress

is a tribute to the spirit of the Afghan people, to the resolve of our coalition, and tothe might of the United States military When I called our troops into action, I did

so with complete confidence in their courage and skill And tonight, thanks to them,

we are winning the war on terror The men and women of our Armed Forces havedelivered a message now clear to every enemy of the United States: Even 7,000 milesaway, across oceans and continents, on mountaintops and in caves – you will notescape the justice of this nation.17

Following a similar pattern, as the evidence of weapons of mass destruction

in Iraq failed to materialize, the Bush administration increasingly gravitatedtoward an emphasis on Iraq’s mass graves and rape chambers under SaddamHussein In fact, virtually every address or statement by Bush administrationofficials with regard to either the Afghan or Iraqi wars was accompanied bydirect or indirect references to Americans introducing the dawn of humanrights or women’s rights (usually both) to the region The message was notabandoned even in the American president’s primary speech addressing thephotos evidencing American soldiers’ abuse and torture of Iraqi detainees atAbu Ghraib.18American interventions thus held out the promise of freeingthe oppressed – including those withering away in the Middle East’s prisoncells:

[A]nd, one day, from prison camps and prison cells, and from exile, the leaders ofnew democracies will arrive Communism, and militarism and rule by the capriciousand corrupt are the relics of a passing era And we will stand with these oppressedpeoples until the day of their freedom finally arrives.19

The discourse focused exclusively on the limitations of freedom and injusticesuffered at the hands of Middle Eastern culture, extremist renditions ofIslam, or the region’s repressive governments There was no room for orgrasp of the connections between Middle Eastern aspirations for freedom,justice, and rights and U.S power and politics in the region

It is difficult to miss key elements of the preexisting American identityconstructions presented above in the new post–September 11th narrative put

17U.S Government Printing Office, George W Bush, State of the Union Address, Jan 29,

2002, http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html (last visited Dec 18, 2008).

18The White House, George W Bush, President, Outlines Steps to Help Iraq Achieve racy and Freedom: Remarks by the President on Iraq and the War on Terror, May 24, 2004,

Democ-www.whitehouse.gov/news/releases/2004/05/20040524-10.html (last visited Aug 1, 2005).

19See U.S Government Printing Office, supra note 17.