REPAIRING OUR HUMAN RIGHTS REPUTATION

Hubert H. Humphrey Institute University of Minnesota Minneapo lis, Minneso tta

Dean Harold Hongju Koh, Yale Law School November 13, 2007 Minnesota and Human Rights 30 Years Ago, Carter-Mondale Placed Human Rights at the Forefront of U.S. Foreign Policy “Because we are free we can never be indifferent to the fate of freedom elsewhere. Our moral sense dictates a clearcut preference for these societies which share with us an abiding respect for individual human rights.” --Pres. Carter 1977 Inaugural Address “{T]he demonstration of American idealism [is] a practical and realistic approach to foreign affairs, and moral principles [are] the best foundation for the exertion of American power and influence.” --Carter, Keeping Faith Vice President Walter Mondale and International Human Rights

• As Vice President, Mondale met with M ondale and the Constitution Vorster of South Africa in May, 1977 and M ondale’s career demonstrated respect for the constitution in several different ways. Both as a mem ber of Congress and as Vice President (w hich is, I believe, part of the Executive branch unless one believes form trumps substance) he was concerned that government behavior re f lectold t a n ap p rop him r iate allocatio that n o f p o wSouth er w h ich gen erally Africa m e ant that d uhad rin g the tim to es in wgive h ic h up he served he worked to make presidents more accountable in part by pushing Congress to assert its po w e rs. H e a lso w a s in vo lv ed in im p o rtan t stru gg les to m ake th e cr im ina l ju stice system wwork o rkapartheid fa irly and to give g ive m eaningean in g to th e Equal E q u al P ro tectio n Clause C la use. W hat follows are a few snapshots, with m uch left out.

Pre-Vice• Presidency In June, 1979, Mondale intervened to M o nd ale p la yed a n im p ortan t ro le in so m e co nstitu tio n al issu es b efo re h e w as V ice P residpersuade e nt w h ich are w o rth y oCarter f no te. and our allies to involve 1) G ideon v. W ainwright– He spearheaded an effort by the state Attorney Generals o f ne ar ly tw o do zen state s ( inc lu d in g T h o m a s F . E a g le to n o f M isso uri) to file an am icus b rief in su p poAlA rt omerican f G id e o n’s claim th atvesse he h ad a co nstituls tioin na l rigrescue ht to co un sel. Seoperations e A ntho n y L ew is, f or G ideon’s Trumpet, pp. 145-48.

2) H e p la yed a lead ing ro le o n the S ena te S elec t C o m m ittee o n Inte llig ence A c tivVietnamese itie s (C hu rch C o m m ittee) w h icboat h in vestiga tedpeople, ab uses in in telligenc to e activincrease ities and w ro te th eU.S. FISA legislation which Congress passed in 1978. Mondale had withdrawn from the 1976 p resid ential ra ce and rea lly threw h im se lf in to th e w ork o f the C hu rc h C o m m ittee. financial3 ))g During the aid debates,,pg onand the Eag letoto n A macce end m en t pto et nd moreth e b o m b ing ofrefugees. Cambodia on June 29, 1973, Mondale made a relatively novel suggestion as to how Congress co u ld assert its co n stitutio na l p o w er to end u n la w fu l pre s ide n tial m ilitary actio n. Y o u w ill recall that in June, 1973 N ixon vetoed a supplemental spend ing measure because it contained the Eagleton• Amendment When which Mondale would forbid not only wentthe use of funds to appropriated Indonesia, in that measure he to bomb Cambodia but also any other funds previously appropriated. Eagleton then put the am end m en t o n th e leg isla tio n to ra ise th e deb t c eiling and o n th e co n tin u in g reso lu tio n. F u lbr igh t worked out a comprom ise whereby such a restriction would not take effect for 45 days which N ixopersuaded n agreed to sig n. T he d o ves Suharto sp lit, w ith F u lbrigh t,to S ym inrelease gto n , M cG o vern ,100,000 C hurch , case, Javits, Nelson, pastore, etc. supporting the compromise and Eagleton, Mondale, M ansfield, M uskie, Kennedy opposed. Church argued that the opponents of the war had no choice because they could not override N ixon’ s vveto eto (especially (esp ecia lly in th e House) H o use) and th e refo re any legis la tio n w ith the Eagletonpolitical Am endm ent wasprisoners a non-starter. M ondale m ade the point that Church was wrong; C o ng ress co u ld s im p ly no t p ass an y leg isla tio n in w h ich case N ixo n w o uld hav e no m o ney w ith Vice President Mondale and Human Rights

• WhenM ondale and the the Constitution Carter

M o nd a le’s ca reer d em o n stra ted respe ct fo r the co nstitu tio n in se veral d iffe rent w ays. Both as a member of Congress and as Vice President (which is, I believe, part of the Executive branch unless one believes form trumps substance) he was concerned that government behavior re f lecCabinet t a n ap p rop r iate allocatio n o f p o w ermet w h ich ge n e rally mfor ea nt that d u rinthe g the tim es in lastw h ic h he served he worked to make presidents more accountable in part by pushing Congress to assert its pow po w erse rs. HHe e aalso lso wwas a s in vo lv ed in im p o rta n t struggles stru gg le s to make m ake th e cr im ina l ju stice system w o rk fa irly and to g ive m ean in g to th e Eq u al P ro te ctio n C lause . time,W hat follows are a fewVP snapshots, withMondale m uch left out. made Pre-Vice Presidency

M ondale played an important role in some constitutional issues before he was V ice P resid e nt w h ich are w o rth y o f no te .

1)Gid1) Gideon v. WiW a inwri ihtHg ht– H e sp earh hddead e d an eff fftbthort b y th e st ttAtta t e Attorney Generalsthis toast: “ We kept the of nearly two dozen states (including Thomas F. Eagleton of M issouri) to file an amicus brief in su p po rt o f G id eo n’s cla im th at he h a d a co nstitu tio na l rig ht to c o un se l. See A ntho n y L ew is, G ideon’s Trumpet, pp. 145-48.

2) H e p laye d a lea d ing ro le o n the S enate S e lect C o m m ittee o n Inte llig ence A c tivpeace, itie s (C hu rc h C o m m ittee ) wwe h ich in ve stigated told ab use s in in tellige the nce activ ities truth,a nd w ro te th e FISA legislation which Congress passed in 1978. Mondale had withdrawn from the 1976 presidential race and really threw himself into the work of the C hurch C omm ittee.

3) During the debates on the Eagleton Amendment to end the bombing of Cambodia on June 29, 1973, Mondale made a relatively novel suggestion as to how Congress co u ld assert its co n stitutio nal p o w e r to end u n law fu l pres iden tial m ilitary a ctio n. Y o u w ill recall that inwe June, 1973 No ixon bbdvetoedeye a supplementald spend th ing measuree becausell”aw. it contained” the Eagleton Amendment which would forbid not only the use of funds appropriated in that measure to b o m b C am b o d ia b u t also a n y o ther fu nd s p re v io usly ap p rop r iated . E a g le to n th en p u t th e am end m en t o n th e leg islatio n to ra ise th e deb t ce iling and o n th e co n tin u in g reso lu tio n. F u lbr igh t worked out a comprom ise whereby such a restriction would not take effect for 45 days which N ixo n a gre ed to sig n. T he d o ve s sp lit, w ith F u lbr igh t, S ym in gto n , M cG o ve rn , C hurch , ca se, Javits, Nelson, pastore, etc. supporting the compromise and Eagleton, Mondale, M ansfield, MMuskie, uskie, Kennedy opposed. C hurch argued th that at th the e opponents of the war had no choice because they could not override N ixon’s veto (especially in the House) and therefore any legislation w ith the Eagleton Amendment was a non-starter. M ondale made the point that Church was wrong; C ongress could simp ly not pass any legislation in w hich case N ixon w ould have no m oney w ith TWO QUESTIONS

†How Has the U.S . Response to 9/11 Affected the U.S. Human Rights Reputation? †What Steps Can th e UUS.S. Tak e to Restore That Reputation? September 11, 2001 THE INTERNATIONAL VISION 1. Diplomacy backed by force as a last resort 2. Human rights policy based on universalism and FDR’s “Four Freedoms” speech (freedom of speech, freedom of religion, freedom from want, and freedom from fear) 3. Democracy-pppyromotion policy that builds democracy from the bottom up 4. Diplomatic approach based on “strategic mulilltilaterali sm and tact ical unilaterali sm:” UiUsing Global Cooperation Among Global Democracies to Solve Global Problems November 2007 A WORLD TURNED UPSIDE DOWN: The Int’l Vision 1. Force First, acceppgppting preemptive strikes and wars of choice 2. Human rights policy that rejects universalism and treats Freedom From Fear as the overriding value; 3. Democracy-promotion that builds democracy from top down 4. Diplomatic approach based on “strategic unilllateralism an d tactica lllll multilateralism,” wit h antipathy to international law and indifference to global cooperation What are the Core Elements of U.S . Human Rights Policy?

†Telling the Truth †Following Universal Standards †Consistent Approach to Past, Present, and Future „Past: Accountability „Present: Curbing Ongoing Abuses „Future: Preventing Abuses through ‡Preventive Strategies ‡Democracy-Building ‡PbliPublic-PiPrivate Partnershi ps But the United States is Not Following its own Human Rights Policy Principles †Not Telling the Whole Truth †Pushing for Double Standards in Human Rights †Pursuing Human Rights Disasters of its own: at Abu Ghraib, Guantanamo, Black Sites †Attacking international human rights institutions: „the International Criminal Court „the United Nations „UNU.N. H. Rts Council Abu Ghraib and the Problem of USU.S. Torture From Zero Tolerance to Zero AbiliAccountability † Low-level prosecutions † Multiple Military Investigations producing no puniishment † Overly Narrow Definition of Torture † Use of Euphemisms (“Migration of Extreme Practices”) † IiIncreasing PPbliublic Acceptance th at Torture is Inevitable and Justified in a War on Terror The Impact of Popular Culture (See New Yorker magazine) † Before 9/11 there was an average of 4 torture scenes on TV each year; since 9/11, the average has risen to at least 100 torture scenes a year. † In "24," torture occurs every week, and U.S. government officials are now regularly depicted as justifiably committing war crimes † "24" averages fifteen million viewers a week in America, and is said to be the single most exported show via dvd sales to Morocco and Egypt. Justice Antonin Scalia’s Response on “24” (Globe and Mail 6/16/07)

†JJ()ustice Scalia in Ottawa (6/07): “Are you going to convict Jack Bauer?’... Is any jury going to convict Jackdhkk Bauer? I don’t think so. So the question is whether we believe in these absolutes.” Attorney General Michael Mukasey on Waterboarding

† “These techniques seem over the line or, on a persona! basis, repugnant to me … But hypotheticals are different from real life, and in anyyg legal op inion the actual facts and circumstances are critical. If …I determine that any technique [actually being used] is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the techni que.” † But as AG, will he press for legislation to outlaw waterboarding or for prosecutions of responsible U.S . officials? Guantanamo: A Human Rig hts Disaster * 3 Pending Cases; 1 Guilty plea 300+ Detainees, down from 700+, 15 “high- value” from 40 countries (esp. Saudi Arabia, Afghanistan, Yemen) Cost: High-security facilities: $54 m Annual Operating cost ~ $100 million Military commission building ~ $11 million 4 Suicides + 41 attempts 300 Habeas corpus petitions filed(starting Jan. 2002) “GTMO should be closed:” Pres. Bush, Secy Gates, AG Mukasey, 8 Dem. Pres. Candidates, 2 Repubs, Britain, France, Germany

* Bowker & Kaye op-ed, NYT, 11/10/07 Guantanamo has Harmed the USU.S.’s Reputation for Lawfulness And the U.S. Leadership Position on Human Rights While the U.S. Struggles to maintain the Moral High Ground What Impact Has This Had on Our Human Rights Reputation?*

†America’ s global image has slipped; Favorable opinions of the United States has fallen in most of the 15 countries surveyed, which include our closest allies †U.S. presence in Iraq is cited at least as often as Iran – and in many countries much more often – as a danger to world peace. †America’s image has declined sharply in such major allies as Spain, Inddddia and Indonesia, even t hhAhough Americans and those allies share common concerns about Iran, North Korea, Palestine, etc. *Pew Global Attitudes Report: June 2006: SO THE QUESTION

HOW TO REPAIR OUR TARNISHED HUMAN RIGHTS REPUTATION? Who Can Promote a Process of Restoration?

A Process of Interaction Among †Media (e.g. Abu Ghraib) †Civil Society (e.g . Librarians and Patriot Act, 9/11 litigants, Law Professors and Deans) †Career Military (Torture and Geneva Conventions) †Career Executive Branch (e.g., DOJ Inspector General) †Congress (post 11/06 midterm election) †Courts A Turning Point? Hamdan v. Rumsfeld: 5-3, (6/29/06) (Roberts C.J. recused) Transnationalists: Breyy,er, Souter, Stevens, Ginsburg

Kennedy, J.: Provided Fifth vote

Nationalists: Alito , Thomas (dissent on merits), Scalia (dissent on jurisdiction) Hamdan v. Rumsfeld (Invalidating Military Commissions) (6/29/06) †President’s Nov. 2001 Military Commissions Order Was Not AAhiduthorized by Command er-in-Chie f Power or Sept. 2001 Authorization of Use of Military Force Resolution ((UM)AUMF) †Military Commissions Violate: „ Uniform Code of Military Justice (UCMJ), which calls for military commissions to be as much like statutory courts- martial as “practicable” „ Common Article 3 of the Geneva Conventions of 1949, which set minimum universal standards for treatment of detainees, and calls for detainees to be tried before “regularly constituted courts,” not ad hoc military tribunals Lessons from Hamdan

†Hamdan teaches that when the President is responding to a war on terror, he should not go it alone, citing a broad constitutional theory and vague blank -check st at ut es that do not gi ve specific authorization. †Ra ther, he must fit his acti ons withi n the fab ri c of preexisting law, i.e. enacted statutes, such as the UCMJ, and treaties that the U. S. has ratified, like Common Article 3 of the Geneva Conventions. Hamdan’s Broader Significance

†Hamdan contains within it an approach that can take us a long way toward setting the wor ld of public law right †If properly followed by the courts, Congress, and the EEtixecutive , Hamda n can take us “back to the future.” HAMDAN’s REASONING CAN TAKE US BACK TO THE FUTURE 1. Rejecting the Law/War Dichotomy 2. Return to Human Rights Universalism: no law-free zones, practices, courts or persons 3. Foreign Affairs Power based on Steel Seizure’s vision of Shared Power 4. No infringement of civil liberties without clear legislative statement 5. Respect for International Law 1. Rejecting the Law/War Dichotomy

†Rejecting the Government’s attempted dichotomyy, between law and war, the Court required consistent application of the law of war to Hamdan’s case. †As Justice Kennedy put it, “If the military commission at issue is illegal under the law of war, then an offender cannot be tried ‘by the law of war’ before that commission.” 2. Restoring Human Rights Universalism †The Court acknowledged that even enemy aliens have rights. †The C ourt rejected th e Government’s claim that that Hamdan was a person outside the law, held in an extralegal zone (Guantanamo), who could be subjected to the jurisdiction of a non- court (a military commission) 3. Restoring A Vision of Shared Powers †The Court roundly rejected the Administration’s extreme constituti onal theory of executive power. Instead, all of Justices who addressed the merits placed the case within the framework of shared institutional powers set fhforth in Justice Jack son’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer. †Hamdan: “ Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” 4. Requiring Clear Legislative Statements Before Infringing Rights †Following established precedent, the Court ddddemanded a clear congress ilional statement bfbefore the Commander-in-Chief could try a suspected alien terrorist bbfefore a military commissi on. †Said Justice Breyer, in his concurrence for four Justices, “[t]he Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’” in the AUMF. 5. Restoring Respect for International Law †The Court treated as binding a universal treaty obligation-- Common Article 3 of the Geneva Conventions. What if terrorists have not signed Common AAtilrticle 3? Bu t whales also have no t signe d the Whaling Convention! Common Article 3 is not aout giving terrorists POW status. It is about giving them a right to minimal humane treatment that we give any detainee. †Common Ar ticle 3 is not about them and who they ar e. I t is about us and who we are and how we're obliged to treat them, however they behave. As a matter of universal principle, we give all detainees basic humane treatment. The Key Constitutional Battleground: The Courts

† Habeas-stripping cases (Al Odah/Boumedienne (D.C . Cir.; expedited S.Ct. review in December); Al Marri (4th Cir. Habeas writ granted by panel; rehearing en banc heard 10/31) † Military Commissions (Khadr and Hamdan: “not unlawful enemy combatants; what are triable offenses and procedures?) † State Secrets (El Masri) † NSA Spying (6th Cir. ACLU v. NSA) † Immunityy( (Elmeg rahaby 2nd Cir.) † Torture (Rumsfeld and Arar cases) † Role of International Law in Interpretation of Domestic Law, esp. Geneva Conventions and Torture Convention and MCA How is the Supreme Court leaning? Boumediene v. Bush (11/07) †Boumedienne v. Bush (D.C. Circuit); Al Odah v. (D.C. Circui t) : af ter Court in it ia lllly den ie d expe dite d rev iew in 4/07; it granted review at end of term, with aaguergument schedu eduedled for De eecem ber 5 †Three Justices—SB, DHS, RBG– initially dissented from denial of review, while two others wrote separately about thdhe denial --Stevens anddd Kennedy. †When the case is argued in December, with diidecision lik liklely in June ’08 i, a Jsha ’08ky 5-4 ma itj or hkity 5 for detainees seems likely with Justice Anthony Kennedy as the swing vote Justice Kennedy’s Pivotal Role

-- Authored Keyyp opinions in numerous international cases (e.g Lawrence, Roper, Rasul) --Become increasingly vocal Transnationalist (ASIL, ABA/CEELI) -- Initiatives on China, E. Europe, Turkey -- Wrote for denial of cert. in Padilla --Provided 5th vote in Hamdan v. Rumsfeld (June 29, 2006) --Likely swing vote in Boumediene case Where Will the New Chief Justice Stand on these Issues? Where John Roberts Has Stood

--As Law Clerk to CJ Rehnquist (a leading Nationalist), worked on Iranian Hostages Case (Dames and M)Moore) -- As White House and DOJ lawyer, CJ Roberts strongly favored executive power in foreign affairs -- Judge Roberts questioned reach of federal legislative authority (Arroyo toad case) -- Judge Roberts joined DC Circuit majitjority in Ham dan What about JJgudge Samuel Alito?

† Distinguished Education and career in public service: Yale Law School, DOJ Atty (SG’s Office & DAAG Crim. Division; former US Atty, DNJ; more than a decade on the U.S. Ct Appeals for 3rd Circuit † Judge Alito's opinions (over the past 15 years)d) indicate t hhhhat he has ref erred to "international law" in four cases, and "foreigg;pn law" in 0 cases; some opinions on immigration, transnational drug-smuggling † Skeptical of international and foreign law at confirmati on heari ngs The Emerging Roberts CtCourt

Transnationalists: Breyy,er, Souter, Stevens, Ginsburg

Kennedy, J.: Swing Justice

Nationalists: Roberts, Alito , Thomas, Scalia Another Battleggground: Congress

† House/Senate: 51-48 (with status of Johnson, Craig unclear) „ Supreme CCtourt and EtiExecutive nomitiinations (e.g. MMkukasey 53-40) „ More Vetoes Likely; first Override last Thursday of water resources bill „ Legislation: ‡A Terror Court? (Feinstein rider on Appropriations?) ‡NSA surveillance approved for six months ‡Repeal or Modification of MCA ‡Levin: Extraordinary Rendition Practices ‡Leahy: Executive Privilege ‡DbDurbin: Human RhSbRights Subcommittee o fSJCf SJC ‡War Powers: Repeal of AUMF? Reassertion of War Powers Resolution The New Attorney General: Michael B. Mukasey

†Columbia, Yale Law ’ 67 †AUSA with Rudy Giuliani †Private litigator at Patterson Belknap †18 years as judge of SDNY; 6 as Chief Judge †Tried 1993 WTC bombing case pre 9/11 †Handled early stages of Jose Padilla case post-9/11 Three Questions for Attorney General Michael Mukasey

1. Will he urggppe the depopulation of Guantanamo? † Population cut in half; 11 more released 11/4. † If Guantanamo closes, then what? † Which detainees will be brought in, which released and which charged criminally in civilian courts? „ Will USG hold them as material witnesses? „ Or find other countries who will accept them for criminal trial? „ What about Diego Garcia? Rendition? Why was Guantanamo OdOpened in the First Pl?*Place?* 3 Pending Cases; 1 Guilty plea 300+ Detainees, down from 700+, 15 “high- value” from 40 countries (esp. Saudi Arabia, Afghanistan, Yemen) Cost: High-security facilities: $54 m Annual Operating cost ~ $100 million Military commission building ~ $11 million 4 Suicides + 41 attempts 300 Habeas corpus petitions filed(starting Jan. 2002) “GTMO should be closed:” Pres. Bush, Secy Gates, AG Mukasey, 8 Dem. Pres. Candidates, 2 Repubs, Britain, France, Germany

* Bowker & Kaye op-ed, NYT, 11/10/07 Attorney General Mukasey: Three Questions

2. Will he press for a Terror Court? † AG Mukasey's 8/07 WSJ op-ed, prompted by the resolution of the Padilla prosecution, argued that "current institutions and statutes are not well suited to even the limited task of supplementing . . . a military effort to combat Islamic terrorism." † AG Muk asey inst ead ad vocat ed for Congress, which "has the constitutional authority to establish additional inferior courts," to "turn [its] considerable talents to deliberating how to fix a strained and mismatched legal system." Attorney General Mukasey: Three Questions

3. Will he treat waterboarding as torture? Will he ppgress for legislation to outlaw waterboarding (cf. Sen. Schumer): Will he press for prosecutions of U.S. officials alleged to have committed waterbdboarding? Remember that the War on Terror is onlyyg Part of our Human Rights Agenda †North Korea †Iraq War †Israel-Hezbollah †Iran †Cuba †Global Health Issues (AIDs, Avian Flu) †Problems with Democracy: Russia, Thailand, Mideast †Relations between US and International Bodies To Get Back to the Future, We Must Reassert Core principles †Truthtelling †Following Universal Standards †Consistent Approach to Past, Present, and Future „Accountability „Curbing Ongoing Abuses „Preventing Future Abuses ‡Preventive Strategies ‡Democracy-Building ‡PbliPublic-PiPrivate Partnershi ps The State Dept’s H. Rts Reports No Longer Tell the whole truth † In the 2006 Syy,ria, Liby y,a, and Pakistan human rights reports, for example, the State Department now describes acts that it had previously described as “torture” under the broader linguistic category of “torture and abuse.” †The linguistic shift in the 2006 Reports suggests that the U.S. wants to preserve its fdfreedom –as well as t hfhe freed om o fhSf the Syri ans, Libyans, and Pakistanis--to commit “abuse” as part of the War on Terror. The U.S. State Dept no longer tells the whole truth The 2006 State Department Human Rights Country reports significantly underreport violations committed by such U.S. allies as : †Indonesia: no mention of possible human rights vio la tions committe d by the USU.S.-supportdted police anti-terrorism unit, Detachment 88. †Afghanistan: no mention of well-known U.S. detention center at Bagram Air Force Base, where over 600 individuals are believed to detained. †Iraq fails: no mention of numerous U.S .-run Multi- National Force detention facilities in Iraq, which as of October 2006 held approximately 14,000 detainees throughout the country. We no longer tell the whole truth

†The reppgyport on Egypt does not mention that Egyp t essentially constitutionalized the Emergency Law by enacting antiterrorism amendments to its Constitution to ggpgyp,ive the President permanent emergency powers, in what appears to have been a rigged vote. †The Reports on Pakistan and Morocco make scant mention of those country’s roles in detaining, interrogating, and transporting detainees, even though an EU parliamentary investigation and Human Rights Wa tc h have ch roni cl ed several cases of tort ure and abuse of terrorist suspects Failure to Endorse Universal Standards „U.S. Continuing Failure to Ratify the Treaty for EliiiElimination of DiiiDiscriminati on AgAiainst Women (CEDAW) and Convention on the Rights of the Child ((ywu)one of only two countries) „U.S. refused to join the International Convention on the Protection of All Persons from Enforced Disappearance ‡Or to participate meaningfully in the negotiation of the Convention on the Rights of Persons with Disabilities, even though we have significant expertise in this area, could have contributed importantly to the content and implementation of the Convention, and exhibit among thbhe best disa bility practiihices in the world . Accountability: from Hostility to Benign Support †For all of its anti-ICC rhetoric, the accountability policies of the second Bush term have begun to resemble the policies of the Second Clinton term „ ICC referral on Darfur „ Passive support of ICC prosecutions in Congo, Uganda „ Sierra Leone Tribbyunal and Charles Taylor „ U.S. prosecution of Chuckie Taylor „ Modest ppgrogress with Cambodian tribunal „ Support of Milosevic prosecution and Saddam prosecution and conviction (and awareness that in hindsight, Saddam’s execution seemed rushdhed and viidindicti ve) Curbingggg Ongoing Abuses

†Too little, too late in Darfur †Ineffectiveness toward abuses within the “Axis of Evil”: North Korea, Iran, post-Saddam Iraq plus Afghanistan †Undhdermining UN Mechanisms „ Failure to support Human Rights Council „ JhJohn B Blolton’s U nsuccessf flTul Term as UN UNAb Ambassad or „ No New US Ambassador „ Tens e rela tions hip w ith SG Anna n a nd as-yetet undefined relationship with new SG Ban Ki Moon Preventing Future Abuses

†Diminished Emphasis on Democracy-Building „ Weak Response on Pakistan „ Afghanistan „ Iraq and other parts of the Mideast „ Latin America „ Africa (esp. nascent African Union) †Private-public partnerships „ Blood Diamonds: Kimberley Process „ Extractives: Moderately successful „ Internet: Google/China „ Global Compact The U.S. Actions Have Blunted Its Ability to Criticize Others †How do we criticize Pakistan for illegal arrests and detentions? †Our Iran Report ironically criticizes „ Iranian “Security forces [who] monitored the social activities of citizens, entered homes and offices, monitored telephone conversations, and opened mail without court authorization,” „ “illegal detentions” and “severely abus[ing] and tortur[ing] ppprisoners in a series of ‘unofficial’ secret prisons and detention centers outside the national prison system” China and Russia are Taking Advantage of U.S . Rhetoric †Chinese Premier Wen Jiabao: “We urge the U.S. government to ackkldnowledge its own human righihts problems and stop interfering in other countries’ internal affairs under the pretext of human rights.” †Russia’s President Putin declared as early as September 12, 2001 that the US and Russia “have a common foe” because Osama Bin Laden’s people were connected to events in Chechnyyga. Within months the US government had added three Chechen groups to its list of foreign terrorist organizations. Challenge: How to Ensure that U.S. Human Riggyhts Policy is Not Subsumed under War on Terror †At dawn of 21st century, a viable global human rights strategy seemed to be emerging, balancing: „ Dippylomacy/Force: Dip pylomacy backed by force in service of human rights „ Power/Principle: Human Rights Principles as Source of Soft Power „ International/National, Public/Private Institutions Working Together on standard-setting and implementation of human rights and humanitarian norms „ Past/Present/Future: Accountability, Stopping Ongoing Abuse, Preventive Strategy and Democracy-Building But The Last Six Years Have Deeply Disrupted that Balance

†Shift from Diplomacy backed by Force to Force Backed by Diplomacy †The U.S. Has Used Hard Power at the Expense of its Commitment to Human Rights Principle as Source of Soft Power †Insufficient Steps have been taken to Tell the Truth, Stop Ongoing Abuses, Promote Accountability, or Strengthen Mullltilatera l an d Regiona l Institutions for imp lementation of human rights Some Concrete Steps: to Stop Ongoing Abuses by Others Immediate Action on Darfur: “the 4 Ps” 1. Peace Process 2. Peacekeepp(ers (recent Sudanese accep tance) 3. Protect People (Refugees and Internally Displaced) 4. Punish Perpetrators 1. ICC Accountability 2. Targeted Sanctions (recent Bush action) 3. Sanctions on Blood Oil Revenues Some Concrete Steps: Put U.S., Own House in Order

†Close Guantanamo †Revise Military Commissions Act, restoring Habeas †Admit International Committee of the Red Cross into all U.S. operated or controlled Detention Facilities †Ban use of Torture and Cruel Inhuman or Degrading Treatment by U.S. Personnel and Contractors Everywhere in the World †Stop Extraordinary Renditions Some Concrete Steps:

†Send Special Envoy to UN Human Rights Council †Shift formally to Policy of Constructive Engagement with International Criminal Court †Reinitiate Human Righhlts Diplomatic Process with Regard to Iraq following Iraq Study Group Report †Support Communi ty of Democraci es, and Democrati c Transitions in particular countries, e.g. Cuba †PtPromote PPitrivate-PbliPublic Part nershi ps: iitnternet freedom and Human Rights Olympics in China, essential medicines and end of Blood Oil in Africa What are We Fighting For? Five Freedoms: A 21st Century Agenda †Freedom from conflict „ Regu lat ing the resources that fuel confli ct: oil , diamonds †Freedom from disease „ Treatment/ Prevention/Use of marketplace tools? †Freedom from poverty „ Poverty breeds terrorism; Debt relief, democracy promotion †Freedom from discrimination: Protecting invisible minorities (LGBT, People with Disabilities) †Freedom from tyranny: Right of self-government and polit ica l partici pati on as a human righiht (P(Pkiakistan) Conceptualizing Public Health as a Human Right

† Encomppygasses health care and underlying determinants of health „ medicines, vaccinations, clean water, sanitation, adequate food „ As well as social determinants of health, e.g., poverty, unemployment † Discrimination heightens vulnerability to disease † Disease is connected to violations of other rights „ arbitrary depri vati on of land , r ig ht to ed ucati on, politi cal violence, structural adjustment † Target areas „ Treatabl e diseases / access to medi ci nes „ Mental health and disabilities „ JJgudicial Enforcement as an economic, social and cultural right (see, e.g., South Africa) The Next Five Years: A Tale of Three Globalizations o Globalization of Governance (esp. with regardhdd to Human Rights and Humanitarian Law) o Globalization of Freedom o Globalization of Terror o The Continuing Challenge: How to Use the Globalization of Governance and Freedom (Global Cooperation Among Global Democracies) to Combat the Globalization of Terror. How to Bring the U.S. Back Into Compliance with the Rule of Law in the Age of Globalization? †Will Our Executive Branch Use Diplomacy and Compliance with International Law to Promote Global Cooperation? †Is Our Legislhlative Branch Willing to Ensure t hat Our and Foreign Governments Play By Global Human Rig hts Ru les ? †Will Our Judicial Branch Ensure that We Continue Pay “Decent Respect to the Op in ions o f Manki nd?” What if our new President quoted from Walter Mondale’s 1984 Acceptance Speech? “As president, I will reassert American values. I' ll press for human rights … And in my first hundred days, I will stop the illegal war … Why can't we reach agreements to save this earth? The truth is, we can. …We must never negotiate out of fear. But we must never fear to negotiate.” (Compare North Korea) The Biggest Question:

†Is Our Civil Society (Citizen Groups, Media, Bar Associ ati ons, Acad emi a) Willing to Moni tor our Government and Hold Our Leaders Accountable for Human Rights Misconduct? †Our Human Rights Reputation Defines Who We are a Nation and a People. †Restoring that Human Rights Reputation is Simply too important to be left to Politicians. Restoring our human rights reputation is the challenge for all thinking 21st Century citizens, lawyers, educators, and law students. Remember Langston Hughes: “Let America Be America Again”Again “Let America be America again. Let it bhdbe the dream it used to b e. … O, let my land be a land where Liberty Is crowned with no fflalse pattitiriotic wreath – The land that never has been yet-- And yet must be--the land where every man is free. …

We must take back our land again, America! ….We, the people, must redeem … And make America again!“ The End

Dean Harold Hongju Koh Yale Law School P.O. Box 208215 New Haven, CT 06520 [email protected]