In the United States, the era of rights began with the Supreme Court's decision in May 1954 in Brown v. Board of Education holding that school segregation violated the right to equal protection of the laws; and with the Montgomery bus boycott several months later that forced the city to desegregate public transportation. The first signified the readiness of the federal courts to uphold rights even when this meant overturning established political arrangements. It inspired many others—among them, women, gays, prisoners, mental patients as well as members of other racial minorities—to turn to the courts to vindicate their own rights. The second also had profound consequences. Many Americans who considered that they were denied their rights learned to band together so as to use their political, economic and moral clout to bring about changes.

George E.C. Hayes, left, Thurgood Marshall, center, and James M. Nabrit, the lawyers who led the fight before the U.S. Supreme Court for abolition of segregation in public schools, descend the court steps in Washington, D.C., on May 17, 1954. The Supreme Court ruled that segregation is unconstitutional. (AP Photo)

Within the United States, the era of rights reached its highest point with the ouster of Richard M. Nixon from the presidency in 1974 for his violations of rights and with the dismantling of the country's political surveillance system—which Nixon's excesses put into bad odor—over the next several years. Up to then, an array of federal agencies, from the Federal Bureau of Investigation to the State Department's Passport Office to the United States Army compiled political dossiers on many millions of Americans. These were more than matched by the files compiled by the "red squads" of urban police departments—a million in New York City, four hundred thousand in Chicago and so forth. Their files had been painstakingly gathered since the early years of the twentieth century. They resembled those of the Stasi in East Germany and the StB in Czechoslovakia both in the kinds of information recorded and in their thoroughness. Yet when lawsuits were brought against them in the post-Watergate climate of the late 1970s, police departments rushed to destroy them before the courts ordered—as happened in a few cases—that the files should be disclosed to their individual subjects.

In the past two decades, there has been a substantial decline in judicial receptiveness to claims of rights. Certain rights have been badly battered under the assault from twin forces: the war on crime and the war on drugs. Increased racial profiling, diminishing protection against search and seizure, grossly inadequate legal representation of indigent criminal defendants, more frequent use of the death penalty and a four-fold increase in incarceration have been among the consequences. Thus far, however, there has not been a significant erosion of political freedom. The rights of Americans to speak, assemble and protest seem well established. And, before September 11, there was no sign of a resurrection of the system of political surveillance.

Moreover, there were even indications that headway was being made against some of the depredations against civil liberties resulting from the crime and drug wars. Some police departments were agreeing to end racial profiling. A referendum in California required that state to offer those arrested for drug possession treatment instead of prison. The case of the lawyer who slept while his client was tried for murder embarrassed the state of Texas. With DNA evidence proving that many capital sentences were mistakes, the number of executions began to decline. The steep rate of increase in imprisonment has been halted and, in a few places, is being reversed. These developments suggest that even the Rehnquist Court (Rehnquist is Nixon's principal legacy) could not, on its own, end the era of rights in the United States.

The International Era of Rights

With news that President Nixon will resign, the New York Post is read on the corner by some people waiting for a bus in midtown New York City, August 8, 1974. (AP Photo)

Internationally, the era of rights began about the time it was reaching its zenith in the United States. Nixon's forced resignation, demonstrating that the most powerful official on earth had to pay a price for violating rights, was one of several events in widely separated parts of the world in the mid-1970s that helped give birth to the international human rights movement. Other developments that played a part were international outrage over Pinochet's 1973 coup in Chile (as it happens, on September 11 of that year) and the torture and killings that accompanied his seizure of power; the humiliating end of the war in Vietnam and America's search for a new basis for foreign policy that would recapture the moral high ground; the formation of the Moscow Helsinki Group six months after the signing of the Helsinki Accords in August 1975, demonstrating that the rights cause had adherents at the heart of the Soviet totalitarian system; the Soweto riots of 1976 and the murder of Steve Biko the following year, turning the spotlight of international attention on the apartheid system in South Africa; and the bestowal of the 1977 Nobel Peace Prize on Amnesty International, the first time it was given for the human rights cause.

In an astonishingly brief period, the international human rights movement became a factor in world affairs. By the 1980s, it played a part in the downfall of military regimes in several Latin American countries and, to a somewhat lesser extent, in transformations in East Asia (the Philippines, South Korea and Taiwan). By the end of the decade, it also figured in the most momentous transformation of the era: the collapse of the Soviet empire and the emergence of democratic governments in most of the countries of Central and Eastern Europe. In subsequent years, the international human rights movement has acquired a foothold in all but a handful of the most repressive countries on earth. Today, only the environmental movement matches it in institutional development and organizational sophistication among citizens' groups operating worldwide.

Though they are only a small part of the movement, American groups promoting human rights internationally have made a significant contribution. This is because, at times, they have been able to exert influence on American foreign policy, thereby helping to affect the way that the power and purse of the United States are deployed in international affairs. Even when American human rights groups have been sharply at odds with the administration in Washington, as was the case during the Reagan administration, they were able to have an effect. Despite its affinity for authoritarian regimes allied with it in the worldwide struggle against communism, the Reagan administration played a role in the removal of such dictators as Marcos in the Philippines, Duvalier in Haiti and Pinochet in Chile. This would not have happened were it not that American human rights groups generated pressure to make Reagan comply with his own expressed commitment to promote democracy worldwide.
Another contribution of the American-based groups is that they were often able to make their own government intercede when human rights activists in other parts of the world were threatened with or suffered reprisals for their activities. By zealously rising to the defense of their counterparts worldwide, the American groups helped make it possible for the global movement to develop and to flourish.

In labeling the past quarter of a century the era of rights internationally, I do not mean to suggest that rights were widely respected during that period. Obviously, a great many people worldwide, starting with the one-fifth of the world's population living in China, are unable to exercise rights in a meaningful way. Many millions more in other parts of the world were victims during that period of severe abuses of rights. It was, however, a period of heightened rights consciousness; a period in which concern with rights of people in other countries became an accepted part of the foreign policy of a number of governments; and a period in which efforts to enhance the protection of rights became a force for political change. Some of the ways in which efforts are made to alleviate the misery of those suffering the ravages of armed conflicts are undertaken in the name of rights. Where previously, for example, the norms of international humanitarian law were treated primarily as a concern of professional military forces, today, they are regularly invoked in setting forth the rights that noncombatants should enjoy when they are caught up in conflict. They have also become central to the jurisprudence of a number of international tribunals established in the hope of making effective their prohibitions of war crimes.

The Impact of September 11

This approach to international humanitarian law, as well as a lot of other thinking about rights, has been under attack since September 11. The questions about international humanitarian law arose in connection with President Bush's order that suspected al-Qaeda members or supporters should be tried before military commissions and the decision to send several hundred men captured in Afghanistan and elsewhere to a U.S. military base at Guantanamo, ostensibly for trial before such commissions. As time passes with no charges against any of those held at Guantanamo and without the formation of such commissions, the suspicion arises that there may never be trials for most of those held there. Increasingly, it appears that those at Guantanamo will simply be detained indefinitely. Their captors take the view that, because they have been designated by the United States as "unlawful combatants," they have no rights.

Apologists for the Bush Administration in the media have echoed this view. An editorial in The New Republic notes that the International Committee of the Red Cross "maintains that the Geneva Conventions require that in cases of doubt ‘a competent tribunal' decide whether captives are entitled to POW status." To this, TNR ripostes that "the ICRC is not the only arbiter of what the Convention entails" and goes on to cite Ruth Wedgwood, a law professor at Yale who may be counted upon to justify whatever the Bush Administration proposes. Wedgwood is quoted by TNR as saying: "If you stipulate that these detainees are members of the Taliban and al-Qaeda, then there is no fact specific question for a tribunal to decide." I had to read this sentence two or three times to make sure I had not gotten it wrong. In the first place, who stipulated? The prisoners? Or their captors? In the second place, is it appropriate to lump together combatants for the Taliban and members of al-Qaeda? Is anyone who fights for an enemy of the United States automatically an unlawful combatant? In the third place, what about the extensive jurisprudence, including a number of decisions by the United States Supreme Court in cases involving the Smith Act—the 1940 law that made it a crime to be a member of a group that advocates forcible overthrow of the government of the United States—that addresses the question of whether membership in a criminal conspiracy by itself constitutes a crime? Does Wedgwood's imaginary stipulation encompass a waiver of American constitutional principles?

TNR goes on to mock the idea that it might be in America's interest to respect the Geneva Conventions lest our adversaries mistreat American prisoners in future conflicts. What we do will make no difference in their conduct, TNR asserts, adding: "A contempt for not only international law but also criminal norms is, after all, the one characteristic most American adversaries share." The irony of that line in an editorial justifying American contempt for the Geneva Conventions was apparently lost on its authors.¹

Charles Krauthammer, a columnist for The Washington Post, repeats the assertions about unlawful combatants not being entitled to the protection of the Geneva Conventions and neglects to mention the question of who determines whether someone is an unlawful combatant and how. Perhaps he too thinks this has been stipulated. But Krauthammer adds a point overlooked by The New Republic. He says that those who argue about the law "deeply misunderstand the purpose of the capture of these prisoners. It is not to ‘bring them to justice' as we would domestic bank robbers, but to prosecute an ongoing war by finding out what they know about how al-Qaeda works and what future massacres it is planning…. We should do whatever it takes to get from them whatever information we need to win that war." After a sentence like that, some adherents of the views of the Bush Administration add the disclaimer that they do not mean torture. Not Krauthammer. Instead, he goes on to attack the European Union's Chris Patten for expressing concern that America is "losing the moral high ground." What matters, according to Krauthammer is "the strategic high ground of military intelligence—the advantage we gain in combating terror with the knowledge we glean from these prisoners." ²

An Attack on the Geneva Conventions

The application of the Geneva Conventions to alleged Taliban and al-Qaeda members is attacked from a somewhat different vantage point by Jeremy Rabkin in The National Interest. Rabkin, who the magazine says "teaches international law and American constitutional history in the government department at Cornell University" suggests that the Conventions should be reinterpreted so that they only apply reciprocally. As Rabkin sees it "systematic violations by one side release the other side from its obligations." By this standard, when the Japanese were torturing and murdering prisoners of war, as happened on a large scale during World War II, the allies would have been justified in treating Japanese prisoners the same way. And when American forces occupied Japan at end of the war, they would have been within their rights if they committed mass rape and murder in replication of what the Japanese did at Nanking. Or to take a more contemporary example, Israeli or Palestinian war crimes would each be justified by the crimes of the other.

As is evident, the possibility that international humanitarian law could limit the horrors of war would quickly vanish if it is not considered unilaterally binding on all combatant forces. The accepted view is that all such forces have an independent duty to respect international humanitarian law. Indeed, the Conventions themselves repeatedly refer to "each party to the conflict" and explicitly prohibit reprisals. For example, Article 13 of the Third Geneva Convention provides that "Measures of reprisal against prisoners of war are prohibited." Hence, as those captured in Afghanistan must be treated as prisoners of war until a competent tribunal holds that they are not entitled to such status, failure by the Taliban or al-Qaeda to respect the rules of armed conflict may not be a factor in denying them their rights under the Convention.

Because the International Committee of the Red Cross considers the Geneva Conventions to be unilaterally binding, Rabkin denigrates the Swiss organization as an "advocacy group" out to "reclaim leadership with public denunciations" over newer groups such as Amnesty International, Human Rights Watch and Medecins sans Frontieres. He even holds out the specter that the ICRC will mobilize those detained at Guantanamo to trigger a prosecution of the United States for war crimes before the new International Criminal Court; and writes that "The court would also have jurisdiction over crimes of ‘aggression' and broadly defined ‘war crimes', so American decisions to strike at terrorist bases or the countries harboring them could also trigger indictments." Among the many errors here that this teacher of international law and American constitutional history failed to discover are that the International Criminal Court will not have jurisdiction over Guantanamo because neither Cuba nor the United States has ratified the treaty for the court, and neither has any intention to do so; what we know of American conduct at Guantanamo does not meet the definition of war crimes in the ICC statutes; and that the ICC neither has jurisdiction over aggression nor is it ever likely to acquire such jurisdiction.

The Bush Administration's Record

It would be easy to dismiss The New Republic, Ruth Wedgwood, Charles Krauthammer and Jeremy Rabkin were it not that their views are more or less representative of the Bush Administration. The extent of its hostility to the International Criminal Court, a body established mainly to prosecute large scale and grave violations of international humanitarian law, is mind-boggling. Applying pressure to other governments not to ratify the treaty for the Court has become a leading focus of American foreign policy. The United States has also threatened to jettison all United Nations peacekeeping missions worldwide unless the seven hundred or so American troops serving with such missions are formally exempted from the vanishingly remote possibility of prosecution. And, the Bush Administration is at swords' points with America's erstwhile European allies over the ICC at a moment when such alliances are urgently needed by Washington to prosecute the global war on terrorism and to counter the storm of international outrage that will almost certainly arise when our government launches its well-advertised preemptive strike against Iraq.

Since September 11, the Bush Administration has also mounted a campaign to rebuild the edifices of political surveillance that crumbled following the Nixon era abuses. As early as October 2001, it persuaded Congress, with only one dissenting vote in the U.S. Senate (by Russell Feingold, D. of Wisconsin), to adopt the USA Patriot Act granting broad new powers to the Attorney General to detain individuals suspected of aiding terrorism. Criticism of the legislation has focused on the vagueness of the definition of the terrorism; the tenuousness of the relationship of the activities that could lead to detention and the actual commission of a crime; and the lack of judicial oversight of detentions. Equally important, however, is the political information gathering that is legitimized by the law in the effort to discover who warrants detention. In the same month, acting unilaterally, Attorney General John Ashcroft announced that the Justice Department has the authority to eavesdrop on conversations between defendants and their lawyers. Those who oppose such measures, Mr. Ashcroft told a U.S. Senate hearing last December, "only aid terrorists." Subsequently, Ashcroft has been at work devising other schemes to curtail civil liberties such as a plan derided by some on the Republican right because of its resemblance to Soviet methods—to get truckers and others to report on suspicious activities.

In the wake of September 11, many of the world's repressive governments have found it opportune to characterize their violations of rights as part of the war on terrorism. Where the United States was once in the forefront of those denouncing such practices, its voice has now been muted in the case of governments such as Russia, China, Malaysia, Pakistan and Uzbekistan, with which it is now making common cause in its own war on terrorism. When the United States does speak out, the impact seems to be diminished because of awareness in other countries that the human rights issue is not high on Washington's agenda. The Indonesian government knows very well that its gross crimes in Aceh are a low priority when it gets a visit from Secretary of State Colin Powell or Deputy Secretary of Defense Paul Wolfowitz. Similarly, Hosni Mubarak of Egypt knows full well that if an American official brings up the seven year prison sentence imposed last July on sixty-three year old sociologist and democracy advocate Saad Ibrahim, it is strictly pro forma.

How Advocates of Rights Can Still Have Influence

Though these are difficult times for proponents of rights, it may be too soon to ring the death knell on the era of rights. Despite the best efforts of the Bush Administration, the treaty for the International Criminal Court was ratified far more rapidly than anyone predicted. Before it issues its first indictment, it now seems likely that more than one hundred countries will ratify. In the interim, despite many deficiencies, the ad hoc tribunals for ex-Yugoslavia and Rwanda are making steady headway and the tribunal for Sierra Leone is getting underway. Many Americans are disturbed by encroachments on domestic civil liberties, and public enthusiasm for John Ashcroft is waning. The international human rights movement is well organized and may flourish in a period of adversity.

Indeed, adversity has often served rights movements well in the United States. Without Nixon, the protections for individual privacy incorporated in several federal laws of the mid-1970s would never have been adopted; and the nation's political surveillance system might still be intact. Without Reagan's battles with the international human rights movement, that movement would not have acquired its present strength and the broad bipartisan support its cause enjoys in the U.S. Congress.

In the atmosphere created by September 11, it is difficult to see how the domestic and international rights movements can prevail in their struggles with the Bush Administration. Yet it was also difficult when domestic civil liberties advocates clashed with Nixon and when proponents of international human rights took on Reagan. Those struggles demonstrated that there is a core of commitment to rights among Americans. Without that commitment, there never would have been an era of rights. From time to time, Americans also demonstrate a readiness to give up rights in the interest of security. At this moment it would be foolish for rights advocates to argue that their cause takes precedence over security. Their chance to succeed, I believe, lies in demonstrating that an America that stands for rights is not more vulnerable, and perhaps is more secure, than one that abandons that commitment.

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2 Charles Krauthammer, "The Jackals Are Wrong" The Washington Post, January 25, 2002.