POLICY SPEECH: ICCPR

Nate’s speech is organized a little differently—with inherency first, then his proposal, then advantages to the proposal with significance and solvency for each advantage.

His speech also a few too many quotations; he is a quick speaker.

Into/Inherency

In 1994, the United States Congress ratified the International Covenant on Civil and Political Rights – a human rights treaty, crafted by 140 different nations, that provides rights to every person in that nation. The Senate, however, conditioned ratification on the condition that it was “non-self executing” which meant that it could not be enforced until implemented, leaving people without judicial recourse against violations of their rights under the ICCPR.

I support the following plan: that the United States Congress should implement the International Covenant on Civil and Political Rights.

There are two advantages to implementing the ICCPR –

First, If the U.S. were to implement the ICCPR it would end detention on the basis of Enemy Combatant Status.

Enemy Combatant Status is the classification used by the Bush administration to detain terrorists at Guantanamo Bay.

The term is arbitrary and undefined by international law, constructed by the Bush administration to hold enemy combatants without interference

James Fitzpatrick, Counsel for Hamdi, a detained enemy combatant, in the case “Hamdi vs. Rumsfeld,” where Hamdi contended that his detention as an enemy combatant was illegal

“The Government’s contrived classification of Mr. Hamdi as a so-called “enemy combatant” is flawed because “enemy combatant” is not a “status under international law.” The Third and Fourth Geneva Conventions, ratified and thus binding on the United States,8 create protected legal status for certain detainees, but do not establish a classification of “enemy combatants.”

Hamdi’s detention itself illustrates the consequences of arbitrary detention, and the dangerous of being held “outside” the law.

Hamdi was held indefinitely in solitary confinement because he was a national security threat, only to be suddenly and unexplainably returned home

Dahlia Lithwick, Senior Editor of Slate Magazine

“If you've followed the government's claims in the Yaser Esam Hamdi case, you would think the guy was some unstoppable, lethal killing machine, the Taliban's own Hannibal Lecter—a man so evil, he requires permanent warehousing down a bottomless hole. So the Bush administration's decision to release Hamdi is stunning, given that only months ago he was so dangerous that the government insisted in front of the U.S. Supreme Court and the world that he could reasonably be locked up for all time, without a trial or criminal charges.”

Other prisoners may not have been so lucky, but Hamdi’s release is evidence of the arbitrary nature of Bush’s detention practices.. Hundreds have reported that abusive interrogation techniques were used, and others claimed to be tortured.

Regardless of whether or not those accusations are true, one thing is certain: These reports have dramatically undermined America’s image around the world.

Jeffrey K. Cassin, Lawyer at Cardozo University

“The effectiveness of the United States in foreign affairs is diminished by its weakened moral authority. Anti-American sentiment increases as the United States abuses detainees in the name of the war on terror. n94 World anger over abusive detentions is reflected in the response of humanitarian organizations. n95 Surveys have found that foreign nationals no longer associate the United States with the principles it promotes”

POLICY SPEECH: ICCPR

The United States can’t afford to tie itself to abusive detention practices – these actions, and the corresponding rise in Anti-American sentiment, have undermined our ability to combat terrorism

Human Rights Watch’s 2007 World Report

“abuses committed in the name of counterterrorism have only aggravated the terrorist threat. The use of torture and arbitrary detention spurs terrorist recruitment in communities that identify with the victims. It alienates those communities from law enforcement officials who are trying to reach out to them for tips about suspicious activity—a far more important source of intelligence”

Fortunately – ratifying the ICCPR would ban enemy combatant status, it specifically prohibits arbitrary detention

James Fitzpatrick, Counsel for Hamdi, a detained enemy combatant, in the case “Hamdi vs. Rumsfeld,” where Hamdi contended that his detention as an enemy combatant was illegal

“neither Quirin nor any other source of law – U.S. or international – appears to provide Mr. Hamdi or this Court with any definition of “enemy combatant.” The Executive’s failure to provide Mr. Hamdi with notice of the legal basis for his detention is arbitrary and unlawful under the ICCPR.”

This means that after implementing the ICCPR, Bush could no longer hold people without trial as enemy combatants; detainees would have to be charged legally under international law and given military tribunals.

Second, Implementing the ICCPR would strengthen human rights, and America’s credibility, around the world

The U.S. has attempted to promote human rights internationally for decades – but our failure to implement the ICCPR is broadly seen as hypocritical.

This double standard, where the U.S. pressures nations to comply with norms that it ignores, has destroyed the credibility of the United States.

David Cole, professor of law at Georgetown Law

The root complaint of this anti-Americanism is that our nation acts as if it need not adhere to the same rules that govern the rest of the world. In the international arena, we have eschewed international agreements … we have employed a double standard: one set of rules and laws for “us:’ and another set of rules and laws for “them.” …our credibility on matters of international law and human rights is at a low ebb, and that has greatly hampered our ability to build and maintain the coalitions we need

Without those coalitions the U.S. has been unable to solve major problems.

We need allies and cooperation in order to deal with issues like disease, the environment, terrorism, and the economy

Dr. Daniel Hamilton, Professor Director, Center for Transatlantic Relations Paul H. Nitze School of Advanced International Studies Johns Hopkins University.

“Few great goals in this world can be reached without America, but few can be reached by America alone. The American people are unlikely to support an approach to the world that makes every problem our problem and then sends our warriors to conduct our foreign policy. In this era of shadowy networks and bioterrorists, failed states and recession, the only way we can share our burdens, extend our influence, and achieve our goals will often be by banding together with others, particularly our core allies”

POLICY SPEECH: ICCPR

The only way to remedy this problem is to implement the ICCPR, and conform to the same principles that we promote

Jeffrey C. Goldman, Executive Editor, Duke Law Journal

“recognition of this equivalence [between treaties] would give [the courts] an axe to wield that it cannot carry into interpretative battles regarding other treaties.10 This axe can restore the balance of power between the executive, legislative, and judicial branches and ensure that the United States, which has led the world in recognizing and promoting human rights, retains its high moral ground.”

Implementing the ICCPR would be a crucial step towards shielding the U.S. from accusations of exceptionalism, would end arbitrary detention, and would help the U.S. confront the most important challenges of the 21st century.

RESPONSE: DETENTION KEY TO WAR ON TERROR

First, implementing the ICCPR would help combat terrorism in two key ways –

1st, it would end arbitrary detention – which is used by terrorists to justify recruitment,

and alienates Muslims who have the intelligence necessary to prevent attacks

2nd, it would alleviate accusations of U.S. hypocrisy, which undermines our ability to build coalitions, which are necessary to deal with transnational threats like terrorism.

Enemy Combatants, if in fact dangerous, would be re-classified as unlawful combatants, who would have legal protections and required to be charged with violating international law

Joanna Woolman, JD, University of San Francisco School of Law

The government could have chosen to designate Hamdi and Padilla as "unlawful combatants" instead of "enemy combatants." …if the government had instead decided to declare these men "unlawful combatants," it would still be required to provide the chance for a hearing to challenge their designation as an "unlawful combatant" or a trial in front of a military tribunal. "

The most objective studies have also shown that most enemy combatants are not dangerous

The Washington Times March 20, 2006

in meticulously documented studies, both the nonpartisan National Journal and Seton Hall School of Law discovered - based entirely on analyses of [DOD] Department of Defense data on detainees it designates as "enemy combatants" - the actual nondangerous nature of most of the detainees. Reported the National Journal: Only eight percent of the Guantanamo prisoners have been connected to al Qaeda. And the Seton Hall Law School study reported that "55 percent of the detainees are not determined to have committed any hostile acts against the United States

RESPONSE: DOESN’T SOLVE ALL INTERNATIONAL LAW

That’s true. It doesn’t end all U.S. exceptionalism. That doesn’t change that these double standards are bad, and that the U.S. should act to reduce those double standards, because it undermines our image, and undermines our credibility.

Ratifying the ICCPR is in itself a good idea – it provides the basis for legal challenges of oppression across the board

ACLU, 2008

The ICCPR obligates countries who have signed the treaty to protect and preserve basic human rights such as the right to life and to human dignity, equality before the law, freedom of speech and association, freedom from torture and arbitrary detention, equality between men and women, fair trial and minority rights.

RESPONSE: INTERNATIONAL LAW DESTROYS THE CONSTITUTION

The U.S. already treats numerous treaties as domestic law, like the Geneva convention – the question is whether or not we should actually follow the agreements that we sign

Given the way that U.S. law is constructed, it’s very difficult for treaties to usurp sovereignty

Yuval Shany, Chair in Public International Law, Hebrew University, Jerusalem

“this argument carries little weight in jurisdictions such as the United States and most civil law legal systems, where virtually all branches of government are involved in the process of treaty ratification and incorporation. The executive negotiates the treaty and submits it for ratification; the legislative branch is free to give or withhold its consent; and the judiciary is invested with the authority to oversee the implementation of international instruments within the domestic legal system. 142 The checks and balances inherent in the process seem to facilitate the maintenance of the pre-existing institutional equilibrium. 143”

In this case – any loss of sovereignty that would occur would be a good thing. It would give rights to citizens and non-citizens alike, and it helps our credibility internationally.

RESPONSE: ICCPR CONSTRAINS BUSH

First, that is a reason the ICCPR is a good thing. I would refer you to my speech on southern expulsion for more information on that/

Human Rights treaties like the ICCPR ICCPR wouldn’t don’t significantly effect the ability of the U.S. to conduct foreign policy

Michael P. Van Alstine, Professor of Law, The University of Maryland.

. Not all provisions of all treaties affect our nation's foreign affairs equally. 221 Treaties addressing core national defense or diplomatic matters may intrinsically carry important foreign policy implications, for they most often only create rights and obligations of nations inter se. But [human rights treaties] establish rights directly enforceable by private individuals that may affect foreign affairs only tangentially or episodically.

Implementing the ICCPR would aid U.S. foreign policy – both in terms of the war on terrorism, and in human rights credibility.

RESPONSE: MILITARY LAWSUITS

The ICCPR doesn’t require an increase in military lawsuits any more then any other law that provides legal protections to individuals does

We already have lawyers in place, and the military is well equipped to deal with legal demands

Shayana Kadidal, Center for Constitutional Rights Attorney

lawyers were near the front lines in the chaos of the Gulf War, vetting and checking off on choices of targets for bombing and artillery shelling. Similarly, over a thousand military court hearings were carried out in order to sort out the status of various civilians and prisoners of war swept up in the allied advance during that war. The modern military is set up to operate within the bounds of today’s increasingly refined notions of the law of war, and as a result it is well-equipped to deal with the demands of legal process

RESPONSE: CHANGE DOMESTIC LAWS, DON’T IMPLEMENT

First, changing domestic laws is the same thing as implementing. To implement the ICCPR is to essentially say that the text of the ICCPR is a law.

It’s symbolically important for this change in U.S. policy to occur as a result of implementing the ICCPR – only conforming with international law can solve the perception of double standards

RESPONSE: DEATH PENALTY BAD

The U.S. hasn’t ratified the second optional protocol to the ICCPR.

My proposal only calls for implementing the ICCPR, as per ratified by the U.S. in 1994

RESPONSE: WORLD COURTS BAD

The ICCPR wouldn’t cause American citizens or anyone in the U.S. to be tried in international tribunals. Once the ICCPR is implemented, it becomes US law, which means that enforcement of the treaty is a burden of the courts.

RESPONSE: TORTURE IS GOOD

Torture hurts U.S. efforts in the war on terror – it undermines our support among moderate Muslims and our allies.

Intelligence extracted from detainees is highly suspect – they lie, most are innocent, and the administration exaggerates the intelligence that we do get

Bruce Fein, partner in the consulting group of Fein & Fein, Congressional Hearing

There are three good reasons why there may be errors in detaining persons as enemy combatants. First: Ethnic, tribal, political or religious adversaries may supply the United States with false information. Further, terrorists routinely operate amidst the civilian populations. That loathsome tactic creates a nontrivial risk that American soldiers, in heat of battle, may mistake an innocent civilian for an Al Qaida member or supporter. Finally, the executive may exaggerate incriminating evidence and ignore the exculpatory for political effect.

RESPONSE: RIGHT FIELD

Also, don’t under estimate the importance to the U.S. of consistently applying treaties

Richard Butler, Executive Chairman of the United Nations Special Commission (UNSCOM), July 13, 2001, New York Times

The United States depends on international treaties for its own safety and prosperity…. Without them we would not have globalization and America would not, in all likelihood, enjoy its present prosperity or, indeed, its power. Until recent months, America has behaved largely as a good international citizen. Fulminating against the dark forces of "new" international law can only limit American influence in the international arena. The wiser course now would be for the United States to work to improve treaties where they are flawed and to put its muscle behind gaining universal acceptance of them, to deploy, not withdraw, its sovereignty. If this does not occur, we may well find ourselves at year zero -- on nuclear time.

Yes, he is implying that if we don’t commit to international law, that we will face nuclear war. We shouldn’t risk that. 

RESPONSE: RIGHT FIELD #2

Arbitrary detention is modeled in Africa, Latin America and South Asia

Nicholas W. van Aelstyn, Lee Professor of Law at the Marshall-Wythe Law School at the

College of William and Mary,

where countries make the sad transition to tyranny… Many of the rulers that go down that road justify their actions on the basis of national security and the fight against terrorism, and, disturbingly, many claim to be modeling their actions on the United States.

Continue repression weakens moderates AND causes terrorism in Africa, the Mid East and Asia

Tom Malinowski, Washington Advocacy Director Human Rights Watch

First, the aims of Al Qaeda and its allies are advanced by the actions of repressive regimes in the Muslim world, which stretches from Africa to the Middle East to Central, South and Southeast Asia. The terrorists' primary aim, we should remember, is to turn the hearts and minds of the people of this region against their governments and against the West, and to seize upon that anger to transform the region politically.