Europe Leads on Rights, Part III.

Part II examined the significance of the ECHR’s Masri ruling within the broader contours of Western constitutional jurisprudence, critically examined the words vs. the deeds of the Obama administration on justice, and, further examined how Europe has led in protecting human rights in the world today.

Why has Europe led? Having experienced world wars on its soil, and the horrors of Hitler, Stalin, Mussolini and more, Europe is very different than America. Fascism and Communism have made Europeans more skeptical of ideology, whereas the less experienced Americans seem to favor ideology over empiricism. The post-communist world is more vigilant in the fight against the slow creep toward totalitarianism, especially well understood in the post-communist world, where people appreciate that imprisonment and guilt are quite different. Indeed, still today, in all corners of the world law enforcement uses coercive interrogation tactics which often result in false confessions (See “The Confessions”).

European literature (Tolstoy, Dostoyevsky, Camus, Kafka) reflects a deep-seated awareness of the vulnerability of the individual to the powers of an unjust state. Kafka’s The Trial begins “Someone must have been telling lies about Joseph K.” Yet we see in this literature that the truth is irrelevant. Prosecutions and trials were for show for much of European history, and remain so in parts of the world today. Significantly, several of the judges on the ECHR panel ruling in the Masri case grew up under Communism, which helps us to appreciate their vigilant dedication to truth as the primary aim of law (see especially the concurring opinion of the Dec. 13 Judgment).

Human rights lawyer and scholar Scott Horton, underscores the relationship between the ECHR ruling, America’s judicial response to abuse claims, and truth: “The El-Masri ruling is a watershed event principally because it reflects the first high-profile, binding judicial determination that the CIA used torture practices in connection with its renditions program. Thus far, litigation of the issue in the United States has failed as federal courts — deferring to the executive’s attempts to avoid scrutiny of well-documented and severe human rights abuses by invoking secrecy — have generally refused to allow cases to proceed to trial. In the El-Masri case, the government mounted similar defenses based on national-security concerns and secrecy, but the [European] Court refused to prioritize these over well-documented claims of torture…The decision also focuses attention on the fact that the perpetrators of El-Masri’s torture have not been held to account under criminal law. According to an investigation run by the Associated Press, CIA officer Alfreda Frances Bikowsky played a key role in El-Masri’s abusive treatment, ignoring his protests because her “gut told her” he was a terrorist. Bikowsky was quickly promoted following the El-Masri incident, and she now occupies a senior counterterrorism post, from which she exercises great influence on sensitive operations. In view of Attorney General Eric Holder’s announcement of official impunity for torture-related crimes involving CIA agents during the war on terror, the Court’s judgment boils down to this question: What nation will step up to the plate, conduct a proper investigation, and bring charges? It points a finger toward two loyal U.S. allies: Germany and Macedonia. Macedonia was complicit with the CIA, while Germany buckled to U.S. diplomatic pressure and stopped its criminal probe. The Court makes clear that criminal investigation and prosecution must now follow.”

Horton pointedly conveys that the ECHR has challenged Europe to lead on rights, as America has lagged. Without truth there can be no accountability. Without accountability there can be neither reconciliation nor progress. A search for the truth requires objectivity, curiosity and open-mindedness. American exceptionalism (AE), the often-invoked rationale of US decision-makers to act forcefully and unilaterally based on the belief that America is different than all other states and has a unique mission to spread liberty and democracy in the world, stands as an impediment to honest inquiry and sound reasoning. AE, a successor to the 19th century belief that it was America’s “manifest destiny” to acquire new lands, helps us to understand why the US has lost standing/moral authority in the global community.

AE serves as nationalist ideology, based on beliefs rather than reason. It sets America apart from the rest of the international community in its policies on so many issues – military expenditures, capital punishment, guns, stem cell research, the role of regulation in financial markets and economic equity, healthcare, the respective roles of science and religion in public policy, the proper role of and response to torture, the role of foreign and international law in adjudication, and more.

Take guns. No other country in the world has a pro-gun culture or a ratio of guns to people that America has. America is the only country in which senseless acts of mass violence taking the lives of young innocents happens again and again – and again. It is another case where ideology trumps reason. As one Czech told me after the Newtown massacre, “How do they not get it? They can look at every other country in the world and see less guns and less gun violence. How can they ignore that?” The NRA response to the Newtown massacre, to put guns in every school, is patently absurd.

America’s gun policy has global implications. The ability of weapons producers to manipulate American gun policy also enables America to sell half of the weapons sold in the entire world. Places with lots of weapons tend to have wars, which further begets the arms industry. See http://www.sipri.org/ and “De-based,” TNP Vol. 13 No. 1, Winter 2010.

Policies engendered by AE make the world less secure, less fair, and undermine potential progress for all. Consider the manner in which scientific findings have frequently been discounted, disregarded or subverted by officials for political purposes. See “Heating Up,”TNP Vol. 9 No. 1, Spring 2007, and “Climate of Doubt.” This threatens consumer safety, public health and ecology. Ideology and the pursuit of power trump empiricism and honest inquiry. On global warming it means pushing junk science.

Rhetoric subverts common sense. Consider free speech, where America has a proud tradition against state censorship or content-based restrictions of any kind. Indeed, America’s actual malice standard, whereby public figures must show more than mere falsity in order to recover damages for defamatory speech, is far better than the European standard which chills debate on matters of public concern, enabling politicians to wield libel law as a sword to silence critics, rather than a shield to protect their reputation.

American jurisprudence holds that more speech is always better than less speech since a vigorous and robust marketplace of ideas yields the optimal results. What seems an ideal way to promote public debate can be turned upside down by rulings like Citizens United, whereby Corporations under the guise of free speech are empowered to dominate and further corrupt political campaigns, distorting the marketplace of ideas. And, Obama’s prosecution of twice as many government leakers/whistleblowers for disclosing confidential information to the news media as all his predecessors combined undermines free speech values. Finally, it is worth noting that the ECHR Masri ruling received much less coverage in the US than it received in Europe. Censorship takes many forms.

Of course federalism challenges, democracy deficits and institutional governance flaws confront both Europe and America. The Euro-crisis, the so-called fiscal cliff, debt, decay, dysfunction, and paralysis abound in our ongoing experiments in self-governance. Less than perfect Unions are the reality on both sides of the Atlantic, but logic suggests that we should look to learn from the experience of others.

AE bolsters close-mindedness. In law, this means jurisprudential parochialism which undermines the development of the law – as evidenced most notably by the incendiary comments of former US UN Ambassador John Bolton. AE provides cover for US politicians to attack international treaties as a threat to American sovereignty, some going so far as to equate international law with terrorism. Only nine treaties have been ratified by the Senate under Obama, the fewest of any administration since WWII. See John Bellinger, “Obama’s weakness on treaties,” New York Times, 20-12-2012. This trend undermines American leadership on human rights. Further, in contrast to their foreign counterparts, US judges’ refusal, marked by outright hostility, to look to foreign law to inform their own rationale and rulings leaves American law in a bubble and out of touch.

American jurisprudence is atrophying. Consider the warning of a federal judge in New York in her January 2, 2013 ruling that the Justice Dept. cannot be compelled to disclose the memorandum providing the legal justification for the killing of US citizen Anwar al-Awlaki who was assassinated in a US drone strike in Yemen in 2011. Judge Colleen McMahon’s ruling was marked by skepticism and concern about the anti-terror policy that targeted Awlaki, and frustration with her role as a judge in keeping the legal rationale secret, writing: “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

In contrast with America, Europe is more skeptical of executive branch claims of privilege for secrecy, and has been proactive in addressing its complicity in abuse. European courts have led the way in promoting human rights in diverse subject areas, including: protecting privacy in the digital age, promoting gender equality, prohibiting the death penalty, developing principles and practices of universal jurisdiction for crimes against humanity, and acting to establish accountability for torture, genocide, and crimes against humanity. When the Britain’s highest court delivered its verdict against former Chilean President Augusto Pinochet in 1998 it was a watershed moment for international justice, affirming that no one is above the law. See “The Rising Clout of International Law,” TNP Vol. 8 No. 2, Summer 2006.

When we compare and contrast Europe and America on human rights in recent decades we see that words and deeds vary, and that for the most vulnerable people the law as applied matters more than law in theory. As applied by the Courts, Europe has for many years outpaced America in protecting rights. Part IV will conclude this series by suggesting some concrete steps which should be taken as we move forward following the ECHR Masri ruling in order to realize its potential for Europe to lead the world in the protection of individual human rights.

About the author:

The author, an attorney and constitutional law scholar, has written for TNP since 2006. He currently lectures at University of New York in Prague on law, ethics and critical thinking. His “Degradation of the rule of law in response to terrorism: a failed approach,” was published by Palgrave-Macmillan in 2011.

published: 27. 1. 2013