Last week, George W. Bush gave a speech admitting, for the first time, the CIA's secret detention program. A fuller description of the kind of torture comitted in this detention program is contained in John le Carre's new novel. Called The Mission Song, the novel includes an extended description of torture that takes up several pages of text.
President Bush spared the nation such excruciating details. He spoke vaguely and euphemistically of an "alternative set of [interrogation] procedures" - "tough" and "necessary" tactics that made uncooperative detainees talk.
Although he was conspicuously reticent about the methods used, he spoke at length about the results. In defending the CIA's approach to interrogation, he gave a detailed, though suspect, listing of detainees captured, testimonies obtained, and terror plots foiled.
Anyone familiar with the methods that the CIA has been employing, knows that Bush defended torture. Numerous intelligence officials have leaked information about abusive tactics to the media, and former CIA detainees like German citizen Khalid el-Masri have spoken out about them.
It was an ugly speech, and one made at a profoundly opportunistic moment. Most cynically of all, perhaps, was that the President justified his administration's use of "alternative" methods as part of a "struggle for freedom and liberty." We're "fighting for the cause of humanity," he reminded his audience at the speech's end, seemingly oblivious to the contradiction between means and ends.
President Bush was able to deny that the U.S. uses torture because his working definition of the term is so indefensibly narrow. Although the Administration did finally repudiate its 2002 claim that only interrogation methods that caused pain equivalent to that associated with organ failure constitute torture, it still defends methods that cause severe pain.
Last year, for example, former CIA director Porter Goss endorsed water-boarding, a form of mock execution in which the victim feels he is drowning. Goss called it a "professional interrogation technique," implicitly lending support to leaked allegations that the CIA has subjected a number of detainees to the practice.
Bush did not mention water-boarding in his speech, nor did he mention any other specific abusive practice. He explained that if he were to do so, it would help the terrorists learn how to resist questioning. But this explanation is nonsense: The tactics are known and the terrorists already expect them.
What probably kept him quiet about the specifics was either the political risk of going too far, or - one hopes -- a modicum of propriety. It is one thing to consider abuse in an abstract and euphemistic way, but another thing to defend its specific manifestations -- the brutality, the pain, and the damage to the human spirit. Few Americans would feel proud if they had to witness the interrogations that took place at secret CIA prisons; even many veteran CIA agents were appalled.
But by leaving the details unsaid, Bush omitted a crucial part of the story. At least when law professor Alan Dershowitz defended torture, he had the honesty to describe exactly what he was proposing (a sterilized needle under the fingernails was his favored technique).
President Bush wants it both ways: to justify torture, and to pretend that he's not.
The President's Draft Legislation
Besides defending past CIA practices, President Bush's speech had very specific ends. He closed his address by pressing for legislation that would reinstate the military commissions struck down by the Supreme Court, and decriminalize forms of abusive treatment of detainees.
The details of the draft legislation he is proposing may seem tedious, but the end result is of enormous concern. Not satisfied with upending the rules by itself, the Administration now (spurred by Supreme Court losses) wants Congress to help it.
But to call the tribunals that Bush is advocating "military commissions" is nearly as euphemistic as calling torture "alternative procedures." Military lawyers have disowned them, and penal experts all over the world have expressed dismay.
Whatever the president might argue, torture and kangaroo courts are not going to solve the problem of terrorism.
After threatening a veto, the Bush administration has finally acquiesced to the passage of the McCain Amendment, aimed at protecting detainees in U.S. custody from torture and other abuse. The measure, named for its sponsor, Senator John McCain, is likely to pass Congress this week and be signed into law.
That's the good news.
The bad news is that the McCain Amendment was part of a larger package that takes some dismaying steps backward in the treatment of detainees. Think of the Detainee Treatment Act of 2005 as McCain plus anti-McCain: protection plus protection-stripping. Think of it, in other words, as a self-contradictory political compromise.
Via provisions that bar detainees from bringing suits against torture and abuse, the bill stops them from enforcing the very rights that the McCain amendment is supposed to protect. And it undercuts the McCain protections in another important way, as well: by permitting statements obtained coercively to be relied upon in quasi-judicial proceedings.
The United States has never before legally endorsed the use of testimony obtained via torture or other coercive methods. But in a worrying precedent, the new detainee bill implicitly allows review boards at Guantanamo to rely on such evidence in determining whether prisoners should be classified as "enemy combatants."
The bill's language on this question is somewhat oblique. It does not specifically state that statements obtained coercively are admissible before combatant status review tribunals. Rather, it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.
If the statements were obtained coercively, the boards are instructed to assess the "probative value" of those statements.
The bill's reference to the probative value of statements obtained coercively - i.e., through torture or other abuse - points to a well-known problem: When torture is used, the resulting testimony is unreliable: people will often say anything to stop the abuse.
But the bill does not definitively bar statements obtained under torture or other abuse. Instead, it leaves open the possibility that a review tribunal will find that a statement obtained coercively is nonetheless reliable. And by leaving the possibility open, it indicates that such statements may be used.
Waterboarding for Testimony
News headlines over the past eighteen months have made it clear that there is nothing hypothetical about the scenario that the bill envisions. Many detainees in U.S. custody have been physically abused; some have been tortured, and a few have apparently been beaten to death.
And yes, some of the terrorism suspects in U.S. custody have talked. Khalid Sheikh Mohammed, whom the 9/11 Commission called "the principal architect" of the September 11 attacks, was allegedly subject to waterboarding, a form of simulated drowning, while in CIA custody. His statements, said to be voluminous, have probably already been by combatant review boards.
Statements by him and by other detained al Qaeda suspects will also likely provide much of the factual basis for the military commission prosecutions.
So why not allow such statements, if the court or administrative body takes their origins into account? First, as mentioned above, statements obtained under torture are untrustworthy. A court or administrative body might be tempted to rely on them in the absence of opposing evidence, but the risk of a wrongful outcome is high.
Second, their use in court and administrative proceedings is illegal under international law. Article 15 of the Convention Against Torture, a treaty that the United States has ratified, requires that governments ensure "that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings." (The treaty has an exception, however, for the statement's use in the trial of the person accused of committing the torture.)
But most importantly, torture is abhorrent to fundamental values and its use in judicial proceedings shames a democratic state. Just two weeks ago, Britain's highest judicial body forcefully reaffirmed this notion, ruling that evidence obtained under torture may not be relied upon by British courts. Unsurprisingly, several of the law lords hearing the case referred directly to U.S. practices at Guantanamo Bay.
As one law lord explained, the use of torture "corrupts and degrades the state which uses it and the legal system which accepts it."
"Torture is not acceptable," another law lord stated categorically. "This is a bedrock moral principle in this country."
Until recently, one would have thought that it was a bedrock moral principle in ours, as well.
"Trust but verify," Ronald Reagan once said, describing his approach to Soviet arms reduction efforts. The unspoken corollary to his admonition was that promises alone are worthless.
But even empty promises are tempting when the recipient wants to believe them. And so it is with the U.K. government, which has been making arrangements for the return of security suspects to countries that practice torture. Last week, the British signed an agreement with Jordan that affirmed that deportees to the latter country would not be mistreated. It is believed to be negotiating with nine other countries, including Egypt and Algeria, to obtain similar pledges.
Still reeling from recent terrorist attacks, the U.K. is seeking easy ways to deport foreigners perceived as security threats. But its zeal to be rid of unwanted guests should not blind it to the dangers of its current approach.
Jordan, like Egypt and Algeria, is a country in which prisoner abuse is a serious risk. The "Memorandum of Understanding" that the U.K. and Jordan signed last week will not fix this problem. Nor should such paper assurances convince the British government that any deportees it sends to Jordan will be safe.
International law establishes an absolute prohibition against torture. The prohibition includes, specifically, an obligation not to send a person to a country where he or she is at risk of ill-treatment.
At present, despite some recent improvements, the risk of torture in Jordan remains real. In its 2004 report, the National Center for Human Rights, an official body, stated that it had logged more than 250 prisoner complaints alleging torture or ill-treatment. Last September the Center announced that a detainee had died in Juwaida Prison as a result of torture.
The "diplomatic assurances" that the U.K. just obtained -- Jordan's formal guarantees that it will treat returned persons in accordance with its human rights obligations -- do not obviate this risk. Diplomatic assurances have already been tried by several other European countries. The record so far gives few reasons to believe that they work.
Reviewing the recent use of diplomatic assurances in Sweden, Austria, Germany and Turkey, among others, Human Rights Watch found them to be ineffective in preventing torture. In an April 2004 report, the organization detailed cases where persons returned based on diplomatic assurances were in fact tortured or ill-treated.
As Human Rights Watch has explained, diplomatic assurances are based on trust, and on trust that itself lacks a firm basis. Governments in states where torture is practiced almost always hide the problem, denying its existence. Where such official assurances are unreliable as a general matter, they will probably also be unreliable in any given case. And it defies common sense to presume that a government that routinely flouts its binding obligations under international law can be trusted to respect those obligations for reasons of diplomatic courtesy.
The Agiza Case
The case of Ahmed Agiza and Mohammad al-Zari is instructive. In December 2001, the two men were expelled from Stockholm to Cairo even though the Swedish authorities had previously determined that the men had a well-founded fear of persecution if returned to Egypt. The government ordered their expulsions based on assurances from the Egyptian authorities that the men would not be subject to the death penalty, torture or ill-treatment, and that they would receive fair trials.
It was subsequently revealed that the men were handed over to U.S. operatives at Bromma Airport in Stockholm; hooded, shackled, and drugged; placed aboard a U.S. government-leased plane; and transported to Cairo. They were held in incommunicado detention for a full five weeks before the Swedish ambassador to Egypt visited them.
The men have credibly alleged that they were tortured and ill-treated in those five weeks and that the abusive treatment continued even after Swedish diplomats began monitoring them. A classified Swedish government report from January 2002 indicated that the men told the Swedish authorities about this abuse, but the Swedish government took no action and in fact omitted these allegations from its public reporting on the cases.
While al-Zari was finally released from prison without charge, Agiza was put on trial in April 2004. (He had been tried in absentia in Egypt in 1999 and sentenced to 25 years of hard labor.) The trial was conducted in a special military court, and the proceedings were flawed by serious violations of the right to a fair trial. In the course of the proceedings, Agiza told the court that he had been tortured in prison and requested an independent medical examination, which the court denied.
The Swedish authorities were denied access to the first two of the four trial hearings, and did not take action on Agiza's claims that he was tortured. But they did finally acknowledge that Agiza's trial was unfair.
In May, the U.N. Committee Against Torture ruled that Sweden had violated the ban on torture by expelling Agiza to Egypt. The committee concluded that the procurement of diplomatic assurances from Egypt, which included no mechanism for enforcement, were insufficient to protect against the manifest risk of torture.
"Prompt and Regular Visits"
The Memorandum of Understanding that the U.K. signed with Jordan purports to have a mechanism for post-return monitoring of detainees. It includes a provision for detainees to have "prompt and regular visits" from a representative of an independent body nominated by the two countries. And it stipulates that such visits "will include the opportunity for private interviews with the returned person."
But this monitoring mechanism provides little additional safeguard against abuse. First, it should be noted, neither Jordan nor the U.K. has any incentive to expose violations. Jordan, of course, could be implicated in torture or ill-treatment, and the U.K. could be implicated in violating the prohibition against returning people to a country in which they face torture.
Second, it is difficult to ensure that detainees will feel confident enough to report any abuse. Terrified prisoners often do not report mistreatment because they may have to face their torturer as soon as the prison visitor leaves.
And perhaps most importantly, the agreement lacks an effective mechanism to secure compliance. It does not establish a penalty for failure to abide by its terms, nor does it even provide that the abused prisoner would be returned to the U.K.
As an agreement based on trust, it reflects wishful thinking where, instead, a healthy skepticism is appropriate.
Ahmed Abu Ali, a 23-year-old Northern Virginia man, is being held without charges in Saudi Arabia. Arrested in June 2003, he has spent 18 months in custody but has yet to see a lawyer.
Omar Abu Ali, Ahmed's father, says that after his son was arrested in Saudi Arabia, he and his wife turned to the U.S. State Department for help. Publicly, the State Department proclaims that one of its "most essential tasks" is to provide assistance to U.S. citizens incarcerated abroad. Because detainees in Saudi Arabia often face torture and other abuse, Abu Ali's parents must have imagined that U.S. efforts could be critically important in protecting their son.
As the weeks went by, Abu Ali's parents received worrying reports that their son was indeed being tortured. They claim that an eyewitness informed them that Ahmed's hands were in such pain that he was unable to pick up a pen.
But perhaps more shocking than what Abu Ali's parents learned about their son's treatment, was what they discovered about its causes. A U.S. district court ruling issued last week cites evidence suggesting that U.S. officials initiated their son's arrest, that the U.S. government is behind their son's continued detention, and that the reason the U.S. is keeping their son in Saudi Arabia is to avoid the scrutiny of the federal courts.
In short, far from trying to protect Abu Ali, the American government may have simply outsourced his abuse.
Torture on Demand
Abu Ali is a U.S. citizen, born and raised in this country. Having graduated as valedictorian of his high school class in Virginia, he was in Saudi Arabia for university studies at the time of his arrest.
The arrest, according to evidence presented by Abu Ali's parents in federal court, was orchestrated by the United States. Within days of the arrest, they claim, FBI agents were attending Abu Ali's interrogations, and within a week, another group of agents had raided their home in Virginia, seeking evidence of a terrorist conspiracy.
Saudi officials have reportedly described the detention as an American concern and have said that they would release Abu Ali if the U.S. requested it. According to Abu Ali's parents, U.S. State Department and embassy officials have said that their son would be freed as soon as the U.S. Justice Department's investigation was done.
In its most recent country reports on human rights, the U.S. State Department mentions credible claims that the Saudis have "abused detainees, both citizens and foreigners." Abu Ali's parents presented evidence suggesting that their son was tortured during interrogations with the knowledge of U.S. officials.
Responding to the parents' petition in federal court, Justice Department attorneys asserted that the courts lack jurisdiction over cases involving U.S. citizens in foreign custody – no matter how deeply involved the U.S. government is in their arrest, detention or abuse.
"This position is as striking as it is sweeping," said District Judge John D. Bates in the opinion that accompanied his ruling. It would, the judge warned, allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."
Quoting a landmark 1957 case, the judge rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." Without ruling definitively on the question of jurisdiction, he ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu Ali's arrest and detention.
"We Send Them to Other Countries"
Last week's ruling was another defeat for the Bush administration's efforts to detain people outside of the law. As with the Supreme Court's decision last summer in a case involving detainees in indefinite custody on Guantanamo, the court found that claims involving the violation of fundamental rights should not be lightly dismissed on jurisdictional grounds.
It is probably no coincidence that Abu Ali's parents filed suit in federal court exactly a month after the Supreme Court issued its landmark ruling in the Guantanamo case. In that case, similarly, the administration deliberately chose a detention center that it hoped would put the detainees beyond the reach of the U.S. courts.
Abu Ali's situation may not be unique, or even so unusual. The United States has developed a whole host of practices since the Sept. 11 terrorist attacks that appear to be designed to evade judicial scrutiny of the detention and interrogation of suspected terrorists.
Indeed, in December 2002, the Washington Post described the transfer of suspected al-Qaeda members from U.S. custody to countries such as Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were tortured or otherwise mistreated.
As an unnamed U.S. official told the Washington Post at the time: "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." It is up to the courts to stop these abuses.
No one stamped our passports when we entered Darfur, in western Sudan. There were no Chadian patrols at the border to stop our two-car convoy from crossing and, more importantly, no Sudanese troops on the other side to detain us. For many miles, there were simply no human beings at all, just desert, empty villages, and the occasional corpse of a camel or a sheep.
It was late July, and we had snuck into what the rebel groups that control the area like to call liberated territory. But the barren and depopulated landscape we saw before us suggested defeat rather than victory. It took a few hours of driving before we came upon people: a weary group, mostly women, with babies on their backs and random household goods on their heads, making the long trek toward Chad and safety.
Over the past year and a half, since the Sudanese government and allied militia began their scorched earth campaign against the black African population of Darfur, more than 1.5 million civilians have fled their villages. On July 22, the day that two colleagues and I crossed the border into Darfur to investigate human rights abuses, the House and the Senate passed concurrent resolutions declaring the atrocities committed there to be genocide.
By their estimate, based on UN figures, some 30,000 civilians had already been killed.
* * *
When I was young, our middle-aged translator said as we drove through the desert, this area was thick with trees. You couldn't travel through here; it was impossible to cut a path.
The link between desertification and the conflict in Darfur is much disputed. As the Sudanese government explains it, Darfur is a tribal conflict provoked by drastic environmental change. It is the Sahara's inexorable advance southward-turning forest into savannah and savannah into desert that has, in this view, intensified competition for land and water, and caused latent ethnic rivalries to explode into all-out warfare.
By focusing on geography and ethnicity, the government seeks to distance itself from the violence and to feign powerlessness. Yet a visit to the region reveals the speciousness of its account. As in southern Sudan, where a civil war raged for decades, ethnic militias are not independent actors but are used by the government as a proxy force. Villages studded with craters attest to the government's repeated bombing attacks. Unexploded ordinance dropped from airplanes and helicopters offers further proof. And while locals relate atrocities committed by camel-riding Arab tribesmen, they say the men on camels are frequently accompanied by army soldiers in government vehicles.
Stopping at an abandoned village near the town of Farawiye, we spoke to an elegant, white-robed, seventy-year-old man – the area's last remaining inhabitant. His three wives and thirteen children had escaped to Chad, but he had stayed behind in hopes of tracking down the surviving livestock from their herd.
The bombing started six months before Ramadan, he told us. Sudanese troops later attacked the village, and Janjaweed stole the animals. All 70 families that had lived there fled. There were no rebels near the village, he claimed; nothing to justify a military attack.
The air offensive that the old man described took place in about May 2003. It was just one month after the Sudan Liberation Army, a nascent rebel group, made a daring and successful attack on the North Darfur capital of El Fasher. Small and little known before the Fasher raid, the SLA quickly gained strength. The Khartoum government, afraid of losing control of the region, began arming and supporting Arab tribal militias. Known as Janjaweed (variously translated as armed men on horseback, evil horsemen, and outlaws), these militias offered the government the foot soldiers it needed to combat the insurgency.
With dark skin and African features, the Arab nomads of Darfur are physically akin to the region's other inhabitants. But as they claim Arab descent and an Arab cultural identity, they make a convenient local ally for the Arabist government in Khartoum.
The Janjaweed have gotten tangible financial rewards from their partnership with the government, even beyond money and weapons. Attacking civilian villages and killing or driving out their inhabitants, the militias have stolen countless herds of livestock: camels, goats, sheep and cows. And what they don't steal, they often kill.
During a visit to Khartoum in September, we tracked down and interviewed Musa Hilal, a notorious Janjaweed leader. We met him at an enormous home in an upscale neighborhood; everything about him spoke of money and power. Toward the end of our interview, we asked how many camels he owned. It is difficult to say exactly, he responded, unhappy with the question. The whole wealth of the tribe is mine.
* * *
Stripped of their land, their animals, and their livelihood, the impoverished civilians of Darfur now face hunger and disease. Until last May, the government obstructed humanitarian aid to the region, and even now aid agencies are slow to reach civilians in rebel-held territory.
Although a few agencies had carried out assessment missions to gauge the number of people living there and the level of need, international aid had yet to reach any of the people we met during our trip through North Darfur. Many were skinny and listless, and some were sick. Women said that their breast milk had gone dry. They offered up crying babies in the hope that we could treat them. One tiny infant had a red, monstrously swollen hand; others had bulging stomachs and burning fevers.
We found many displaced people living in ramshackle shelters scattered about the hills. Some had little more than a blanket draped over a bush to shield themselves from the wind, the rain and the relentless desert sun. Others hid under canopies woven from branches. With no land to farm and no livestock, many resorted to eating makhet, a small, pea-like wild food that grows on trees.
It's poisonously bitter, the locals complained, we have to soak it in water for three days before it's even edible.
Stopping in a village that was almost entirely abandoned, we met a group of women and children who had walked for days in search of water. They were angry and desperate. We have no animals, they told us, We don't know how we will live.
* * *
What was most striking about most of the displaced families we met was what they didn't include: men. Some men had joined the SLA, and some had stayed in their villages while sending their families to safety in the hills, but many were dead. In Um Laota, a village deep inside North Darfur, we spoke with a group of ten women, mostly widows. A young woman with a baby told us that her husband was killed a year ago, when their daughter was only a few days old. Janjaweed executed him while attacking her village together with Sudanese government troops.
His body is still exposed, she said. No one could go to bury it.
* * *
Survivors of Janjaweed raids recalled the racially-charged language that militias used. Many told us that their assailants yelled kill the Nuba or kill the slaves while carrying out attacks.
We spoke to a group of women in late July who had been assaulted by Janjaweed just a week before. 'You are abid (slaves),' they said that the Janjaweed had told them. You will work for us.'
An old woman who was hit in the mouth by a Janjaweed attacker, losing a tooth, said he called her a dirty black. I wasn't fast enough to run away, and he caught me, she said, twisting the fabric of her ragged dress. 'Why are you still here?' he shouted, 'You blacks must leave.' That was over a year ago, and she had not returned to her village since.
Some trace the underpinnings of this hatred to a nationalist movement known as the Arab Gathering. Formed in the late 1980s, the Arab Gathering consists of Arab intellectual and political leaders in Darfur who have endorsed an explicitly Arab supremacist agenda. In a 1987 public letter, the group described the Arab race as being responsible for the creation of civilisation in this region, and argued that Arabs deserved greater political power. A later series of documents attributed to the group went further. Speaking of the Zurga (a term that literally means black, but has the additional connotation of slave), they advocated encouraging disputes among Zurga tribes, destabilizing Zurga areas, and killing Zurga leaders.
They have a 40-year plan to establish an Arab state here, a Darfurian intellectual who claims to have read their documents told me. But the so-called moderates among them say that any Zurga who cooperate will be treated well: we'll be Arabized.
* * *
So what is to be done? Although the UN Security Council has insisted that the violence in Darfur stop, its latest resolutions on the crisis have been weak. The Chinese and the Russians, among others, are clearly determined to block meaningful action. But the failure of international will is partially due to the fact that the United States, which has led the way in calling attention to the Darfur crisis, is at a low point in its international credibility. A telling moment was the palpable skepticism abroad that greeted Secretary of State Colin Powell's announcement that the violence in Darfur constitutes genocide.
Still, there is little doubt that how the human rights and humanitarian crisis in Darfur is resolved will depend as much on international pressure as on the country's internal dynamics. Carry the message to your country, the widows in Um Laota insisted, when we spoke to them in late July. We wait for your help.
Chief Justice William Rehnquist is battling thyroid cancer. Three of his colleagues on the Supreme Court are over seventy. There is no doubt, over the coming presidential term, that George W. Bush will have the chance to name justices to the Court.
The only questions worth asking now are who, how, and how many.
The most obviously pressing question, given the possible chief justice vacancy, is who President Bush's nominees will be. During the 2000 presidential campaign, in a telling comment, Bush named Antonin Scalia and Clarence Thomas as the Supreme Court justices he most admired. While Thomas would be an unlikely choice for chief justice – he's not an intellectual leader, to put it mildly – many believe Scalia is the man to beat for the job.
There could be no better way for Bush to acknowledge the "moral values" vote – that blinkered segment of the electorate that, the polls say, gave him the presidency – than to nominate Scalia to the post. An anti-abortion, anti-gay-rights, pro-school prayer Catholic, Scalia has precisely the record that Bush's red-state constituents want.
Which brings us to the question of how. Scalia is not a moderate conservative, or even a disagreeable but tolerable conservative; he is an extremist. Given the power of the chief justice to shape the Court's decision-making process, as well as the position's symbolic importance, Scalia's nomination would be vigorously opposed.
The Democrats in the Senate would no doubt filibuster to block a vote on the nomination, as they did with unacceptable judicial nominees during Bush's first term. But Republicans, who now have a majority of fifty-five members in the Senate, might seek to change Senate rules to allow them break a filibuster and allow a confirmation vote to proceed. If this last check on conservative extremism were to give way, a multitude of ideologues could be set loose on the courts.
And so finally to the depressing question of how many justices Bush will appoint. This one is hard to predict, but it is perhaps the most crucial of all. The difference between an extremist minority – i.e., Rehnquist, Thomas and Scalia – and an extremist majority is just a couple of seats. If President Bush appoints three or even four new justices, as many believe likely, he could radically change the course of the law.
As paleo-conservative Patrick Buchanan just announced, triumphantly: "The last best chance to overturn Roe v. Wade is at hand."
And it's not just Roe. While the right to choose is no doubt the most prominent target of the Republican majority, other rights are also at risk. If, in four years, a true Scalia Court exists, a number of important rulings might well be overturned.
A glance at cases in which Justices Scalia and Thomas have dissented offers a preview of what to expect. The subjects of their outrage range from affirmative action – stigmatized as racial discrimination – to campaign finance laws, environmental protection regulations, and gun restrictions, among others. They have tried to limit the rights of certain groups – sodomizing adults, suspected criminals, women who need abortions, prisoners, the poor, religious dissenters, detainees on Guantanamo, to name a few - and enlarge the privileges of others.
What is the worst that would happen during the tenure of the Scalia Court? The wall between church and state would crumble if not collapse. Cattle, mining, coal and timber interests would trump environmental concerns. Gays and lesbians would be forced back into the closet. Innocent defendants would face criminal incarceration or long-term detention as due process rights were cut back. Women would face death or permanent injury by getting back-street abortions. No one would have the right to remain silent.
And talk of "moral values" aside, the death penalty would get a big boost.
So we are back to how: how to stop this from happening. Bush has won the election, but it is the battles that will be fought over the next four years that will determine the character of the Court.
The dangers are clear, and the response should be obvious: save the filibuster, block the judicial extremists, and toast the health of the remaining Supreme Court moderates!
Roe v. Wade, the landmark Supreme Court opinion whose 31st anniversary falls today, was not yet a decade old when I became pregnant. I was 17, living on my own, and the pregnancy was unwanted.
Since graduating from high school I had passed through a succession of menial, low-paying jobs: selling women's clothing at a store in the local mall, working as a waitress, and the most mind-numbingly tedious of all, making rubber skateboard wheels in a machine shop. My savings were nil. With my pay stubs, proof of residence, and the dismaying results of a pregnancy test, I paid a visit to the welfare office and qualified for emergency Medi-Cal, California's program for the public funding of medical care.
The abortion procedure was fast and relatively painless. I faced a couple of anti-abortion protesters in the parking lot when I arrived that morning -- they held up pictures of fetuses for my inspection -- but they were gone by the time I left. My recovery from the procedure was quick and without complications.
The enormous sense of relief I felt after the operation has, over the years, ripened into gratitude. I was lucky that legal abortion was available and doubly lucky that the state of California was willing to fund it. Today not every woman facing an unwanted pregnancy is so fortunate.
Even though, as the Supreme Court said in 1992, "an entire generation has come of age free to assume Roe's concept of liberty," the right to a safe and legal abortion remains under threat. According to NARAL Pro-Choice America, 335 anti-choice measures have been enacted since 1995. President Bush has openly endorsed the goal of banning abortion, and some of his federal judicial picks have been anti-abortion zealots, a worrying indicator for his possible future nominees to the Supreme Court.
Publicly funded abortion is not available in most states, except in narrow cases of rape, incest, or life endangerment. Since 1977, federal law has prohibited Medicaid from paying for the abortions of low-income women in most circumstances. Because fewer than half of all states offer supplemental funding that goes beyond these federal limitations, the possibility of abortion is foreclosed to many poor women.
Mandatory parental consent or notification rules, which exist in more than 30 states, deter many teenagers from exercising their constitutional right to a legal abortion. Minors with abusive parents may risk physical or emotional harm if required to disclose their pregnancies. Judicial bypass procedures, which the Supreme Court has ruled must be included in parental consent and notice laws, may be ineffective when the reviewing judge is hostile to abortion.
Numerous procedural restrictions continue to impede women's access to abortion. Now, in 20 states, women seeking abortion face mandatory delays in obtaining the procedure, a requirement that is often paired with the obligation of receiving state-dictated informational materials designed to discourage abortion. Such rules particularly burden women who live long distances from abortion providers, or whose transportation arrangements are difficult. Other state laws target doctors who perform abortions, imposing complicated regulatory schemes.
The latest effort to hobble reproductive rights has been to redefine what constitutes an abortion, via legislation like the federal Partial-Birth Abortion Ban Act. Although the Supreme Court struck down the most restrictive of these laws, adopted in Nebraska, others have passed lower court scrutiny. Although they are supposed to cover only late-term abortions, the imprecise and unscientific language of such laws means that their scope threatens to extend far beyond the situations cited by their supporters.
In campaigning to limit or deny reproductive rights, anti-abortion activists have devised not only new strategies but also new justifications. No longer focused solely on fetal rights, the anti-abortion lobby now professes concern for "post-abortion victims" -- that is, women who have undergone abortions. Abortion, in this view, causes inevitable emotional trauma. The denial of abortion has accordingly been recast as a means to save women from a lifetime of psychic pain and regret.
Perhaps the most prominent exponent of this new dogma is Norma McCorvey, the original plaintiff in Roe v. Wade. McCorvey, though, never obtained an abortion; the ruling she is known for came too late for that. And Roe, importantly, was a class action, litigated on behalf of an open-ended group of women seeking to end their pregnancies.
McCorvey may have changed her mind, but many of us who benefited from her legal fight have not. As a fortunate heir to the right she helped establish, I have no regrets about my choice. And I know there are many more women like me who will, on this anniversary, remember their debt to Roe.
Joanne Mariner is a human rights attorney and columnist for FindLaw.com.
Here are some numbers to consider: 14 million, 35.9 billion, and 1.
The first is an estimate of the number of people who will die of AIDS and other treatable diseases over the course of the coming year, most of them in the poor countries of the developing world.
The second figure represents the combined 2002 profits, in dollars, of the 10 biggest pharmaceutical companies listed in Fortune magazine's annual review of America's largest businesses.
The third figure corresponds to the number of countries that, last week, voted against a U.N. resolution on access to drugs in global epidemics such as HIV/AIDS, tuberculosis and malaria. The resolution emphasized that the failure to deliver life-saving drugs to millions of people who are living with HIV/AIDS constitutes a global health emergency. One hundred sixty seven countries voted in favor of the resolution. The single vote against it was cast by the United States.
Sadly, these numbers are closely related. To protect their exorbitant profits, drug companies are fighting the production and distribution of cheap generic versions of patented drugs. Unable to afford the medicines that could save their lives, millions of poor people around the world die of treatable illnesses every year.
And, as the recent U.N. vote exemplifies, the drug companies have a reliable ally. Not only does the U.S. government use its considerable economic power to bully developing countries into restricting access to low-cost generics, it continues to try to change the international rules that allow such generics to be made in the first place.
In their vulnerability to treatable diseases, the rich and the poor live in different worlds. Every year, millions of people in developing countries die of illnesses that they would likely have survived had they lived in Europe or the United States. A key factor in the enormous global disparities in death rates is poor peoples' lack of access to needed drugs.
Consider the case of HIV/AIDS. An estimated 42 million people are living with HIV/AIDS worldwide, 39 million of them in the developing world. India alone has at least 4.5 million people who are HIV-positive, and possibly many more.
In the United States and other rich countries, since the advent of anti-retroviral drug treatment, AIDS has become a manageable disease, not a death sentence. But for the millions living with HIV in the developing world, prospects for effective treatment remain dim.
At present, only a tiny minority of HIV-positive people in poor countries have access to anti-retroviral drugs. For the others, as well as some marginalized populations in rich countries, the cost of treatment remains prohibitively high.
Patent Protections and Profits
Nothing in the ingredients of anti-retroviral drug treatment makes it inherently expensive. Indeed, when a combination of generic drugs is used, treatment costs are about $600 per patient per year.
But companies that profit from drug sales prefer to keep drug costs artificially high. In the United States, the cost of anti-retroviral drugs is generally in the range of $10,000 to $15,000 per patient annually, and people with advanced cases of AIDS may pay far more. Relying on international patent protections, drug companies have been trying to maintain high drug prices globally by restricting the production and distribution of low-cost generic substitutes.
Global patent protections are tied to global rules on trade, specifically, the rules of the World Trade Organization. Although the WTO's strict intellectual property rules carve out exceptions for national health emergencies, they still go a long way toward limiting poor peoples' access to life-saving medicines.
And as Oxfam has shown in a paper titled "Patent Injustice," the problem extends beyond HIV/AIDS. Brand-name drugs for a number of major diseases cost several times more than their generic equivalents. The increasing drug resistance of endemic illnesses such as tuberculosis and malaria -- and the resulting need for access to new drugs -- means that the WTO's monopolistic pricing rules threaten many millions of the world's poor.
The Brazil Model
Despite the WTO's restrictions, some developing countries have made important steps in meeting their peoples' drug treatment needs.
In Brazil, notably, extensive prevention efforts combined with state-funded anti-retroviral treatment have reduced AIDS-related deaths by more than half since 1996. The cornerstone of Brazil's treatment program has been the local production of generic equivalents of brand-name anti-retroviral drugs, which has driven down the cost of treatment enormously.
But Brazil's successes, and those of countries like it, have been hard fought. The WTO rules have been a battleground on which Brazil and others have fought a series of high-stakes skirmishes with drug companies.
Backed by one of the world's richest and most politically influential industrial lobbies, the drug companies have enlisted the U.S. government as a loyal ally in the campaign against generics. Through the office of the U.S. Trade Representative, the United States has fought to advance the interests of the pharmaceutical industry, pressuring other governments on a bilateral basis and threatening to seek trade sanctions via the WTO.
The U.S. vote last Wednesday in the Third Committee of the U.N. General Assembly was not too surprising, given this record. Still, it was dismaying to find the United States willing to stand alone against 167 other countries -- as if it were a matter of principle to oppose a resolution calling for widespread public access to the drugs necessary to combat global epidemics such as HIV/AIDS, tuberculosis and malaria.
Future Trade Agreements
The U.N. vote is, moreover, a worrisome portent for the future. At present, the U.S. Trade Representative is negotiating a number of bilateral and multilateral trade agreements, including the proposed Free Trade Area of the Americas. Given U.S. advocacy on behalf of pharmaceutical companiesâ€š interests, these agreements are likely to go beyond the WTO's rules in protecting drug patents.
President George Bush, in a number of his most high-profile speeches, has expressed a rhetorical determination to assist in the global fight against HIV/AIDS. By allowing U.S. officials to lead the world in protecting the commercial interests of drug companies, he betrays his public commitment to this cause.
Joanne Mariner is a New York-based human rights attorney.
At ceremonies two years ago in honor of Earth Day, President George Bush stood beneath a giant sequoia and called for "a new environmentalism for the 21st century." As fleshed out by his administration, this new environmentalism prefers market-based incentives to government regulation and elevates property rights over wilderness and species protection. It is, in many ways, simply the environmental corollary to the administration's broader deregulatory views.
Peter Huber, a senior fellow at the Manhattan Institute, is one of the brains behind the administration's approach to the environment. His influential political tract, 'Hard Green: Saving the Environment from the Environmentalists,' was published in 2000 as a conservative counterweight to Al Gore's Earth in the Balance.
In 'Hard Green,' Huber lauds Teddy Roosevelt as the ultimate environmentalist role model. Roosevelt, famous as a hunter and safari enthusiast, once killed several hundred wild animals -- including a reported nine lions, five elephants, 13 rhinos and seven hippos -- during a single extended expedition in Africa. As Huber puts it, approvingly: "He loved wild animals. He particularly loved to shoot them."
Roosevelt's 'love them and kill them' approach is the obvious antecedent of a new endangered species policy that the Bush Administration announced this summer. As set forth in a draft document whose comment period expires on Friday, the Administration plans to begin allowing hunters, zoos, circuses and others to kill, capture, and import wildlife facing extinction in other countries.
An Open Door to Corruption
The new policy marks a dramatic break from past practice. Rather than interpreting the Endangered Species Act to protect foreign species from exploitation and slaughter, as previous administrations have done, Bush Administration officials assert that encouraging such actions can contribute to the species' ultimate survival.
Prominent defenders of species preservation disagree. "It stinks, quite honestly," said renowned primatologist Jane Goodall of the proposed change. "It's an open door to corruption. It's disgusting."
The Bush Administration insists that the new rule is consistent with the law's existing provisions. Passed in 1973, the Endangered Species Act was meant to protect wildlife species in danger of extinction. In a landmark 1978 case interpreting the scope of the law, the Supreme Court called it the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." The law now recognizes more than 1,700 threatened and endangered plant and animal species.
Besides protecting native plants and animals, the Endangered Species Act extends its coverage to wildlife in other countries. At present, 561 foreign species, nearly half of which are mammals, are listed as endangered or threatened under the act. Included among them are the snow leopard, the gorilla, and the South African mountain zebra.
To Enhance the Survival of the Species
In the past, officials of the U.S. Fish and Wildlife Service have interpreted the law to bar the commercial importation of endangered plants and animals to the United States. The clear reasoning behind this refusal was that U.S. demand would further deplete these species' already limited numbers.
The current administration, however, argues that the burgeoning U.S. market for sporting trophies, hides, pelts and other animal parts, as well as the demand for exotic pets and circus animals, could create positive conservation incentives. Section 10(1)(A) of the Endangered Species Act allows the Fish and Wildlife Service to grant exemptions to the law's ban on endangered species imports in order to "enhance the propagation or survival of the affected species." Invoking this section, the administration proposes to permit the importation of wildlife from countries with effective conservation programs.
Imports would be allowed, specifically, in cases where the country has a conservation plan by which the number of wildlife that are killed or captured is offset by increases in the target population. The overall net impact of such a plan should, theoretically, be positive.
The administration's draft policy is crowded with the language of incentive and sustainable use. Its promised benefits are speculative and long-term, however, while its risks are direct and immediate.
By opening up the American market to endangered species from abroad, the proposal creates direct incentives for the depletion of existing wildlife stocks. In contrast, the promised overall growth in endangered species populations will result only in those countries where the conservation plan is well thought out, where the authorities are genuinely interested in implementing it, and where the circumstances are such that implementation is actually possible. Given the corruption, disorganization, and competing priorities in many countries, it is doubtful that the proposed influx of American cash will have the desired effect.
In the end, what the change does is allow Fish and Wildlife Service officials to gamble with the future of foreign wildlife stocks. It substitutes a speculative weighing of incentives for a bright line rule.
Another aspect of the draft policy's reasoning that is worth examining, since it is so jarringly inconsistent with the Bush Administration's approach to other international problems, is its modesty. At several points in the draft policy, the use of market-based incentives is justified by reference to the U.S. government's limited ability to influence other countries' policies.
Here, where the goal is wildlife conservation, the U.S. government underscores the limited nature of its power to promote change in "other sovereign countries that have their own national laws and policies." Given such constraints, the administration argues, market-based incentives are among the "few available means" for encouraging conservation efforts abroad.
For an enlightening contrast, consider the "war on drugs." (Note the declaration of "war," for starters.) In its counter-narcotics efforts, the U.S. government has long eschewed market-based incentives in favor of a range of bullying tactics, which include blatant violations of other countries' sovereignty. The government's coercive measures have included invading a country and prosecuting its president (as with Panamanian strongman Manuel Noriega), abducting foreign citizens (as with Mexican physician Humberto Alvarez Machain, whose plight was eventually ruled on by the Supreme Court), and denying access to U.S. markets in retaliation for insufficient cooperation with U.S. counter-narcotics programs.
As the most powerful country in the world, the United States has enormous leverage in every realm. In approaching trade issues, the drug war, the counter-terrorism effort, or a number of other national priorities, one can be assured that U.S. policymakers are overly focused on their limited options for effecting change.
The Larger Context
It is worth remembering, in closing, that the recent proposals are part of a larger attack on the Endangered Species Act. With the administration's support, Republicans in Congress have been seeking to amend the law in order to weaken it. To achieve the same goal though other means, the administration has also consistently underfunded the endangered species program, creating a work backlog that undermines the Fish and Wildlife Service's ability to enforce the law's requirements.
Several of the administration's federal court nominees, such as Alabama Attorney General William Pryor and Texas Supreme Court Justice Priscilla Owen, have a history of hostility to the Endangered Species Act. Interior Secretary Gale Norton, the head of the department charged with enforcing the law, once filed a legal brief with the U.S. Supreme Court urging significant cuts in endangered species protections. Her assistant secretary for water and science is a former mining lawyer who once called for the abolition of the Endangered Species Act.
The overall picture is, in short, a gloomy one. It may be called the New Environmentalism, but it sounds a lot like the old anti-environmentalism. And Peter Huber is right: it makes Teddy Roosevelt look awfully good.
Joanne Mariner is a FindLaw columnist and a human rights attorney.
Imagine having to decide between your country or your spouse. With the passage of Israel's new law on marriage and citizenship, thousands of Israeli Arabs now face this painful and unjust choice.
The law, passed on July 31, bars Palestinians who marry Israelis from becoming citizens or residents of Israel. It formalizes a policy that has been effect since September 2000, when the current violence in Israel began.
Israelis of Palestinian origin have long complained that they feel like second-class citizens. This new law could be a defining step toward making their second-class status official.
Israeli law already extends an absolute preference to Jews over members of all other ethnic or religious groups in obtaining Israeli citizenship. The Law of Return, together with the country's Citizenship Law, grants automatic citizenship to Jewish immigrants to Israel. Not only do the country's legal rules benefit Jews over other potential immigrants, they give Jews priority over Palestinians who fled or were driven from the country during the 1948 and 1967 wars.
The law that was just passed, however, goes an important step beyond the previously existing rules. Rather than granting a preference to Jews over all other groups, it specifically singles out Palestinians for adverse treatment.
The new law is thus racially discriminatory against persons of a single nationality. Aside from Palestinians, all other persons who marry Israelis are eligible for citizenship. But the law's discriminatory character extends beyond its impact on the Palestinians who are barred from obtaining citizenship. It is also discriminatory in its impact on Israelis.
The overwhelming majority of Israeli-Palestinian marriages are between Israeli citizens of Palestinian origin (known as Israeli Arabs), and Palestinians living in the West Bank and Gaza. By blocking the reunification of families split between Israel and the occupied territories, the law will have a devastating impact on the family life of Israeli Arabs.
Israeli Arabs who are married to Palestinians will now have to abandon Israel if they want to live with their families. Indeed, the prospect of their emigration may have helped spur the law's passage. As Israelis prepare for the establishment of a Palestinian state, nationalist legislators are anxious to ensure the geographic separation of Jews and Palestinians.
Security or Demography?
Nearly 20 percent of Israelis are of Palestinian origin: an estimated 1.2 million people. Given the Zionist ideal of Israel as the state of the Jewish people, and the demographic realities that this ideal presupposes, many Israeli Jews have watched the growth of Israel's Palestinian population with an anxious eye.
Until recently, the immigration of Jews to Israel more than outweighed increases in the population of Israelis of Palestinian origin. Benefiting from the Law of Return, some 2.7 million Jews immigrated to Israel between 1948 and 1998. At present, however, with the Jewish exodus from Russia having ended, the prospect of continued large-scale Jewish immigration to Israel seems unlikely. The demographic issues that alarm Jewish nationalists are now increasingly apparent.
Because of such concerns, it has never been easy for Palestinians from the occupied territories to obtain permission to join their spouses in Israel. But it was with the outbreak of violence in Israel in September 2000 that the issuing of residence permits to Palestinian spouses was effectively frozen. This de facto suspension of permits was ratified by the Israeli cabinet in May 2002, and was just now formalized into law.
Supporters of the new law, known as the "Nationality and Entry into Israel" law, justify it as a means to prevent terrorist attacks. According to Israeli government minister Gideon Ezra, a member of the right-wing Likud party, there have been some twenty lethal attacks in the last few years involving Palestinians who had gained entry to Israel through marriage.
Ezra also acknowledged, however, that over 100,000 Palestinians from the West Bank had obtained Israeli identity cards since the 1993 Oslo agreement. If the prevention of terrorist attacks were the goal, one would expect the government to seek out a more compelling surrogate for terrorist intent: 20 out of 100,000 people is hardly a close match. Nor is punishing thousands of people for the crimes of a few a very fair approach to stemming terrorism.
Discrimination and Citizenship under International Law
Under international law, Israel is not free to discriminate. The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of race, color, descent, and national or ethnic origin. Although the treaty does not generally apply to countries' legal rules on citizenship and naturalization, it does bar discrimination against particular nationalities.
In other words, while the treaty may not bar Israel from adopting citizenship rules that benefit a particular group -- as it did with the Law of Return -- it does bar Israel from discriminating against Palestinians specifically.
Recognizing the Israeli law's incompatibility with international norms, Human Rights Watch and Amnesty International sent a joint letter to the Israeli parliament in July to urge legislators to reject it. As the letter stated, in blunt terms, "The proposed law is discriminatory. It targets a category of individuals purely on the basis of nationality or ethnicity, and prevents them from living with their spouses and children."
Even Israel's most reliable supporters appear concerned about the law. Last week, U.S. State Department spokesman Philip Reeker was called on to comment on it. Although Reeker seemed reluctant to use the word "discrimination," he acknowledged that "the new law singles out one group for different treatment than others."
Perhaps more surprisingly, Abraham H. Foxman, the director of the pro-Israel Anti-Defamation League, issued a statement implicitly criticizing the new law. Noting that the law will expire after one year, Foxman said that the ADL hopes that Israel's parliament will review the law when it expires "and explore other methods to ensure Israel's security needs."
Lessons from History
Jews have good reason to oppose discriminatory citizenship laws, having historically been a target of them.
In European countries during the 18th and 19th centuries, Jews and other minority populations were often excluded from citizenship. It was only after the French Revolution that France became the first European country to extend full citizenship rights to Jews.
Adrien Jean François Duport, the Frenchman who proposed the motion on Jewish citizenship, spoke eloquently about the unfairness of singling out ethnic or religious groups for adverse treatment. Discussing the right to citizenship, he concluded: "Jews cannot alone be excluded from the enjoyment of these rights, when pagans, Turks, Muslims, even Chinese -- in short, men of all sects -- are granted them."
Last week, a legal organization for Arab minority rights challenged the constitutionality of the new Israeli law in a petition filed with Israel's High Court of Justice. In considering the law, perhaps the court will recognize that Palestinians, too, should not be excluded from rights that others enjoy.
Joanne Mariner is a human rights lawyer and columnist for FindLaw.com.