You never know about culture shock. The panic’s existential but the trigger can come from any quarter. I had no prior inkling when it hit me worst. The place was enough of a hardship post, an up-country town in Sierra Leone, no running water, nothing much to eat but sweet potatoes of great carminative potency. My partner would not stop playing with the kids and as she became a celebrity I did too, like a troubled starlet decompensating in pitiless limelight. Heads peeped in every window all the time. By holding their breath they could look over my shoulder, inches away, without my knowing. When I was alone, by some fluke, the malaria medicine allowed me to discern distinct, expressive faces in rumpled clothes, tree trunks, or bush, though that was not at all unsettling to me. Our house cracked in half. But then disorientation is half the fun of travel. Culture shock comes later, I thought, when boredom sets in, and drinking cures it. As it happened, though, when the strangest thing about the place finally hit me, it demolished my sense of self for good.
It took a while to sink in. We were doing human rights work there. Perhaps you’ll say I should have seen it coming – it’s obvious in retrospect but I was, after all, an unfledged volunteer. I had not thought things out so very deeply. Besides, knowing something doesn’t help you when you finally get it. I was sitting reading, idly tweaking mouse turds and it hit me: war-torn Africans have more rights than I do.
It’s true. Their government can’t push them around. The policemen are gracious and kind. Their wartime commanders end up in the dock for their crimes. The state accepts limits. After the country’s ten-year civil war the EU, UN, and aid agencies swathed the country with civil-society assistance, building it anew with meticulous attention to the world’s strictest standards of governance, the International Bill of Human Rights. People know their rights. They can organize in ways that don’t involve waving signs. In a country like America, where cigarette companies once dodged accountability by mass-mailing the Bill of Rights on antiqued stock for framing, it’s hard to grasp the depth of civic discourse in Sierra Leone.
My government had signed some of the same human rights treaties but I forgot. The knowledge had sunk down to the place where you keep big benders or awful childhood traumas. In my American cognitive miasma I had put away awareness of my innate human rights with long-forgotten foreign-affairs abstractions like irredentism or the Resorgimento, whatever that is, because it doesn’t apply in America, they’re not my rights, they’re not allowed.
At the same time I resented what I could not have. I had left the country with a one-way ticket in George Bush’s second term and, in a lame simulacrum of Lear’s blasted heath, angled for developing-country volunteer work while rusticating in a Tuscan hill town run by commies. Their wonderful socialist life softened me so badly that I turned down the first African billet but I thought again, intrigued by the idea of being in a place where people see the point of human rights.
Of course, Sierra Leone has been through hell, and states are more apt to adopt human rights agreements if extremism threatens their democratic stability. Human rights may be a luxury for stable, peaceful nations, but not for states in the shadow of failure. Sierra Leone knows how pervasive corruption spawns popular resistance. It has seen how scorched-earth opposition can channel reform demands into factional terror. That shadow is behind them.
Sierra Leone has adopted most elements of the International Bill of Human Rights. Two they have in common with America: The Universal Declaration of Human Rights (UDHR) and The International Covenant on Civil and Political Rights (ICCPR). The UDHR, though accepted as customary international law, is still something of a wish list. The ICCPR, by contrast, is a self-improvement regimen for states. The center that we worked for fanned out to the villages, taking elders and activists through each article of the pacts, grounding examples of their human rights in daily village life. The center mediates disputes and reports abuses with the same principles.
The US Agency for International Development (USAID) offered aid there too. As human rights were touchy in America then, in G.W. Bush’s second term, USAID had concocted something they called civic participation. Sounded like Fourth of July picnics to me but it finessed any awkwardness for them. I helped hit them up for funding with some bureaucratic bumf but perversely, I translated their jargon into human-rights terms, relating each civic participation objective to treaty provisions with particular attention to the articles that America most blatantly breached. It probably cost my boss some grant money. I feel bad about it now but I couldn’t help it. The treaties are simple and clear, written to be understood by everyone everywhere. Their categorical heft can damage the delicate traceries of obscurant statist cant.
The UN General Assembly unanimously adopted the ICCPR in 1966. The US Senate ratified it 26 years later. It wasn’t torpor that accounted for the glacial pace but pitched, seesaw struggle. After World War II, as the United Nations articulated its charter in a series of international compacts, American Bar Association President Frank Holman led a fight against “eastern seaboard internationalists” and the treaties they might use to impose a socialist world government. Holman joined Senator John Bricker’s campaign for a constitutional amendment to curtail treaty powers. The amendment drew support from professionals, veterans, evangelicals, and bluebloods. The eastern seaboard barely turned the tide: in 1954 President Eisenhower and Lyndon Johnson intervened to avert Senate adoption of the Bricker Amendment by one vote.
The debate took a shape that would abide. Pro: treaty powers are crucial if America is to lead the free world. Contra: some treaty with India could prohibit me from butchering my cow. Individual liberty was pitted against America’s international prestige. Individual liberty figured differently in the actual calculus of support. Amendment supporters of both parties feared for the Jim Crow laws. The state’s desired strictures on blacks were at risk if treaty law mandated human rights. The logic did not hinge on mere racial animus but on remorseless geopolitical undercurrents. The Soviets would exploit America’s racial cleavage for subversion, just as they had exploited the misery of Chinese peasants. Historian Rick Perlstein documents the murky auguries of the right: maps of the planned Negro Soviet Republic on printed postcards mailed to warn the Congress; panic over African Negro cannibals skulking in Fort Stewart, Georgia, ostensibly training in counterinsurgency but secretly staging a UN coup. When you know the secret it all makes sense. The UN is a Soviet plot to instill human-rights sedition by treaty. Race is the chink in the fortress and human rights the pry bar.
Provincials and Southerners mobilized against Eleanor Roosevelt and the One-Worlders. Starting in 1959 the John Birch Society blanketed the nation with “US out of UN” polemics. Factional propaganda and immersive indoctrination produced an archetype that Jung would recognize. It survived the collapse of the Soviet Union by virtue of a remarkable syncretic tizzy that thrust new world-federalist puppetmasters into the breach: the Rothschilds, the Rockefellers, the Bilderberg cabal, the Illuminati, the Antichrist, or the zeta reticuli grays, who presumably concluded they were not getting anywhere ripping cows apart. Our folkways preserve the mythos today. The Hutaree militia, recently disbanded by militarized internal-security shock troops, was a ragtag band of Christian maniacs who hoped to ambush and murder their hometown police, melt away into the trailer parks, and then bomb more police who would gather at the victims’ funerals. Among other artifacts, the Hutaree produced a video of their maneuvers that gave me poignant, sensate memories of my duck-and-cover childhood. The pretend soldiers had an observation post just like the treehouse that my grandpop made for me. As they did, I prodded the ones who pretended to die with my rifle and hid in the woods, though in my day we had to make do with plastic guns and pew-pew vocalizations. Most endearing was the climax and objective of their make-believe assault. It brought back my daily duty as a cold-war captain of the Safety Patrol, Flag Detail: the intimate synchrony of the march, the coarse nubby stuff of the flag drawn tight in recursive folds, the clinking hardware that had to be secured each night. Just so, with cub-scout gravity, the Hutaree commandos secured their victory over the Antichrist. Ringed by doughty sentries warding off the outside world, they took down the enemy flag and raised their own. I did not recognize the Hutaree colors but I knew the enemy flag even as the flames consumed the olive branches strangling our globe on the sky-blue ground of the UN.
The factional game of capture the flag climaxed as the cold war lost its steam. President Carter signed the ICCPR before he plunged into the abyss and left ratification to Reagan, who lost no sleep over it. By 1992 more than 100 states had acceded to the covenant including Nicaragua, Libya, Zimbabwe, Lebanon, and Equatorial Guinea – but not the leading nation of the free world. It was getting embarrassing. The Senate finally ratified it for George H.W. Bush in 1992, the last year of his term. That November the covenant’s curse would claim another one-term president.
Remembered as Nixon’s patrician UN ambassador, Bush might have been suspect, but as President, Bush acquitted himself of any world-federalist perfidy. His administration combed the treaty with great care. They weren’t guarding your notional freedoms, or mine, they were looking for provisions that encroached on the prerogatives of state. The result was a package of Reservations, Declarations and Understandings, the mother of all signing statements – that apple didn’t fall so far from the tree, it seems. Eleven Western nations objected to our special pleading. A few highlights, along with their implicit implications:
- Regarding the covenant’s pervading squeamishness about the death penalty: your government reserves the right to kill you, and that means killing teenagers too.
- Torture. They had to tighten up Article 7 a bit, too wooly, apt to cause no end of trouble. No torture, it read, nothing cruel, inhuman or degrading. Your government undertook to restrict the sense to constitutionally-prohibited cruel and unusual atrocities. Our usual rigors are sacrosanct since our routine cruelty is free of unusual wrinkles. Inhuman? Degrading? What’s that supposed to mean? The government of America will brook no foreign interference with its coercive capacity.
- Child prisoners, child soldiers, either way, there’s another sticking point. While one could see how it might be a problem, what we do here in America is after all a far cry from bloodthirsty Africans kidnapping and brutalizing children. The world depends on America’s protective hegemonic umbrella, and the linchpin of its readiness is recruiting, luring adolescent misfits into the ranks with a kind word and a chin-up bar. These are not child soldiers, they’re the troops.
- About the various anti-discrimination provisions: treaty or no treaty, the American state will choose to discriminate when discrimination is justified – and it’s not discrimination if it happens to have a disproportionate effect on certain unregenerate groups, so don’t go counting nappy heads in our prisons.
- Like all civilized nations, the government of America deplores unlawful arrest or detention or miscarriage of justice. Redress is assured by domestic law. Compensation, that’s another matter. Our domestic law will take precedence here, to protect the authorities’ rights. Errant authorities are naturally made to pay: how and when, that’s America’s affair. We’ll have none of your foreign standards.
- And Article 10, regarding persons deprived of their liberty, Where to begin? That’s not the way we do things here in America. Unconvicted persons will be treated as such, unless we can see that they’re dangerous. And when we lock them up we’re not just going to rehabilitate them, we’re going to punish them and deter them and incapacitate them too, if we want.
- As for Article 47, which asserts the “right of all peoples to enjoy and utilize fully and freely their natural wealth and resources,” it comes across as vague and somewhat bolshy. America will subordinate that article to the precedent of past agreements that have served the state so very well. The government of the United States is, understandably, a bit wary of expropriation by indigenes.
- The government accepts the competence of the Human Rights Committee, insofar as other states – but not American citizens – may call the government to account if it shirks its treaty obligations. The government opts out of the protocol that lets the treaty’s Human Rights Committee consider individual complaints. The American government’s subjects may appeal only to the government itself. No external checks and balances, thank you, we’ve got enough at home.
- And what’s this about war propaganda?
In a tour de force of willful obtuseness, the administration objected to the Article 20 prohibition on war propaganda as an unacceptable restriction on free speech, as though a state threatened by America’s annihilative might will enlist the UN to oppress every flabby gun nut crying war on his couch. Article 5 states that the ICCPR cannot be used to restrict existing rights. The reservation blurs the distinction between respecting the right in all government actions and protecting the right from actions of private parties. Article 20 is a constraint on our government, not us. And there’s the rub. It’s almost as though Bush worried that a successor, perhaps even his son, might need to fabricate evidence for a higher cause. Because you never know, as a statesman, when you might need to fake cloak-and-dagger terror summits, commission inept forgeries from Italian brownshirts, attack dissenters with sensitive government information, suborn journalists or put them on the payroll, set critics up as blackmail-ready deviants or pedophiles, or tell whoppers about shipments of something like tennis ball cans. The unacceptable idea was that citizens ought not to be stampeded into war.
These quibbles were of minor import, though, because the administration took the guarantees of citizens’ rights and deemed them not “self-executing,” even though that’s for the treaty to say, or the courts. A non-self-executing treaty is still binding. But in practice, here in America a non-self-executing treaty means that you the citizen have no judicial redress for violations of your rights unless and until Congress makes a law circumscribing these putative rights to its satisfaction. If particular legal strictures don’t meet the human-rights standards of the supreme law of the land, the courts have nothing to say about it. So much for checks and balances. To be sure, the courts in their sovereign majesty are free to consider foreign ideas in their deliberations, but you the citizen get no rights enforceable in court. Your universal human rights are not so universal after all.
G.H.W. Bush drafted the package of qualifications hand in glove with the Senate Foreign Relations Committee. Bush’s unctuous collaboration with the Senate helped smooth the way, a bit. Tensions emerged in committee hearings at which Jesse Helms, Senator No, was permitted to speak first, out of order. He decried hasty ratification of a treaty that had been balked for a quarter century. Indeed, Helms observed, by virtue of such long delay the treaty had been overtaken by events and was unneeded, and nothing but an entering wedge for despotism. Helms’ holding action was supported by Professor Ronald Rotunda, whose partisan bona fides would later qualify him as an advisor to Special Prosecutor Kenneth Starr. Rotunda fleshed out Helms’ fears that the ICCPR would empower foreign tyranny. Privacy protections and propaganda curbs could be exploited to justify censorship abroad. That children must be registered and named at birth meant not just birth certificates but national identity cards. Restrictions on hate speech would lead to book banning. Anti-discrimination would scotch affirmative action. Helms himself, always alert for invasive depravity, questioned whether Article 18 might permit drug use as religious praxis.
Industry weighed in as well. The Foreign Relations Committee heard the censorship concerns of the World Press Freedom Committee, which had been formed to counter a UNESCO study of transnational media concentration. The Council for International Business feared an upset of US labor laws – Article 22 recognized a bit too much freedom of association, and might embolden the many working people who had relinquished their right to organize for protection of their interests.
Other groups wished to let the treaty take effect and expand the scope of authorized traditional rights. Having changed with the times, the American Bar Association called the covenant “a modern Magna Carta.” A buoyant Amnesty International acclaimed a treaty that “preserves the important achievements of today’s governments against the retrogressions of tomorrow’s.” As advocates for a treaty that benefits individuals rather than nations, Human Rights Watch warned, “We leave our children vulnerable to abuse by future governments when we deny to them the full range of protections envisioned by the treaty.”
Senator Helms decorated the treaty with a proviso of great sentimental value: a vestigial Bricker Amendment. In the event, the Foreign Relations Committee voted unanimously for the ratification resolution.
The ratification vote was choreographed with none of the spats and histrionics of domestic lawmaking. They were on their best behavior, even Helms. Perhaps they felt like statesmen. Diplomacy had lost some of its sissy taint after our first war with Iraq, when George H.W. Bush managed to combine statecraft with war and death in a most beguiling manner. And of course Bush had gone to great lengths to gut the pact.
George Mitchell, Senate Majority Leader, introduced the resolution to ratify with the executive’s poison pills and cut off further tinkering. Then Claiborne Pell rose to cajole the Senate. Pell chaired the Foreign Affairs Committee. They called him the Senator from Mars, and on that day he did yeoman work for America’s alien overlords. In soothing terms he compared the covenant to our ‘traditions and values.’ Pell used the word consistent, neatly sidestepping the sore point that it gives citizens more protections than the Constitution does. He shamed the Senate mildly for lagging the bandwagon despite unanimous UN adoption, blaming Reagan for the long delay. It didn’t look good in the wider world, he said, and until we signed on, we wouldn’t be able to hector other nations from the pulpit of the Human Rights Committee. This prospect had taken on new allure since the Soviet Union’s collapse, with many new nations to mentor and mold in our image. Pell defended the Bush administration’s exceptions to the pact and likened them to Carter’s. Their illogic and blatant negation of the pact sweetened the bitter pill for the Senate’s aspiring autarchs.
Several organizations sent letters for the record, including Amnesty International (AI), the United Nations Association (UNA), and the law schools of Florida and Yale. AI denounced the package of exceptions, suggesting some were void. The UNA came right out and said it: ICCPR was to be the single standard for all nations. This was something of a fart in church. No one in the chamber would have said so. The polite fiction was that the covenant’s purpose was to help other nations aspire to our shining example, that the pact was a set of training wheels for junior champions of the American way. The Florida professors complained about Bush’s exceptions but allowed that ratification should proceed anyway after our 40-year ‘ratification log-jam.’ Yale Law piled on, bemoaning the tin cans tied to the treaty’s tail. They suggested that Senators might express reservations of their own about the reservations or the declarations or the understandings or the proviso. Interestingly, Yale’s list of signatories included Harold Koh. Koh is now legal advisor to the Obama administration, simpering at our president’s drive to consolidate and extend the despotic powers arrogated by his predecessor George W. Bush. Still hoping for the best.
Daniel Patrick Moynihan rose to speak. He had lulled conservatives with jingoistic shoe-pounding as UN ambassador and tempted Nixon leftward back at home. In his remarks Senator Moynihan defended the administration’s exceptions as conscientious, even painstaking. His praise insinuated promise of internal reform into the record of the lawmakers’ intent.
“Moreover, it is possible to place a wholly different interpretation on the administration’s package of reservations. The administration has not taken a blanket, or catchall reservation. It has not said that our domestic practices, wherever they differ from the covenant, are always superior. Rather, it has undertaken a meticulous examination of U.S. practice to insure that the United States will in fact comply with the obligations that it is assuming. This can certainly be viewed as an indication of the seriousness with which the obligations are regarded rather than as an expression of disdain for the obligations… Far better to ratify with the firm intention of living up to the covenant’s terms.”
As the Hutaree know, the Antichrist mixes truth and lies in just that way. By pretending to take Bush’s nationalistic snook at face value, Moynihan sealed the world federalists’ deal. He knew better than most what they were getting into.
Mitchell called for an unusual standing vote. That meant individual votes were not recorded. The agents of unitary world domination would remain in the shadows. The Senate ratified the pact.
It seemed like a small step. The ICCPR restricted its scope to the easy parts of the Universal Declaration of Human Rights, which we’d already accepted. But scrutiny of the pact had focused on the rights, understandably, perhaps, since we’ve made a fetish of our own Bill of Rights. The real novelty of the ICCPR was not in the guarantees but in a process for gauging compliance. Our rulers looked forward to their enhanced role in shaming lesser states but no one broached the converse prospect. It must have been a blind spot corresponding to my own. Just as extraneous foreign rights seemed to have nothing to do with me as an American, human rights monitoring was bound to be a formality for America’s benevolent philosopher kings.
In ratifying the ICCPR the government accepted review by its monitoring body, the Human Rights Committee. The UN elects committee experts for two-year renewable terms based on merit. The eighteen members serve in their personal capacity and not as government representatives. Experts recuse themselves if their own state is under examination, or to avoid suspicion of impartiality. They act mainly by consensus rather than by vote, to speak with a global voice. States select members to equitably represent the world’s different regions, civilizations and legal systems. The committee reviews and questions governments on compliance, weighing shadow reports from advocacy groups along with reports from the state. Compliance may mean changes to local, state, or federal law. The committee also aspires to vet new laws before their introduction, to forestall treaty violations.
If the Senate expected only ringing affirmations of its freedoms, it was promptly disabused. Committee proceedings hide in plain sight on a web page, pointed questions asked and sometimes answered, intently ignored. A conspiracy of silence left the committee hallooing into the digital void, with members acknowledging that press coverage is minimal and interest is confined to private advocacy groups, “a matter that concerned only Geneva,” as one committee member put it. Though it’s not fit to print, our rulers are called to account – not randomly, by the sham of forced choice in rigged contests with new parties ruthlessly crushed, but by sovereign peers with apodictic standards. It’s imperceptible to our populace but an infuriating thorn in the side of the US regime. If something broke the seal of mass distraction, the appalling catalog of wrongs on view would do nothing for the legitimacy of a government that already leans heavily on propaganda and coercion. All sorts of Americans hate their government for varied incoherent reasons. Wait till they see the good reasons for reviling it.
At first the committee took pains to flatter and coddle their prickly hegemon, but in their first meeting, in New York with the Clinton administration, they worried that qualifications and federalist foot-dragging might reduce the covenant to a dead letter. It didn’t help that due to the manifest perfection of American democracy the government had signed up in such a way as to stop the covenant from ever acknowledging more rights than domestic law allowed.
An awkward fracas overshadowed the committee’s quiet work. In 2001 the General Assembly voted to squeeze the US off the higher-profile Human Rights Commission, spurning America’s claim to a Western-country seat in favor of France, Austria and Sweden. After more than half a century on the panel, America had lost the right to sit in judgment there. This was wounding to our government, and became the thrust of a ferocious attack on the integrity of the commission. Press attention ignored the substance of the commission’s actions to focus on the lowlife tyrants that slandered us but the proceedings cast US positions in stark relief as contorted sophistries of a government caught dead to rights.
The contradictions mounted when the state undertook to rein in our rights after 9/11. It didn’t amount to redress but it was something to see foreign diplomats make fools of American officials. The process let perennial punching bags Sudan, China, Cuba, and Zimbabwe join the fun.
The Human Rights Committee continued to patiently goad America’s government into compliance with the ICCPR. Just as they would do on a mission to some failed despotic state, the transnational mandarins meticulously organized derelictions and malefactions in terms of the government’s solemn pledge, the supreme law of the land. If countries died and had to face Saint Peter at the gate, he would page to something like this in his book. As Americans, to read it is to flinch at the appalling gulf between our pretensions and our fraught, cowed, subject lives: The Katrina disgrace. Routine electrocution by taser. The factional emblem of civilians armed with lethal weapons. Medical experiments on soldiers and prisoners. Commercial penal colonies for migrants. Our multitude of disenfranchised convicts. A Detainee Treatment Act that lets the executive’s captive kangaroo courts weigh evidence extracted by coercion in our offshore torture gulags. Sham Indian trusts. The circus of the vegetative Terry Schiavo’s death. AIDS, pregnancy, and septic abortion in girls trained to abstinence. And much more. All these mortifying sins inflicted on us, tied together by a simple theme: breaches of a pact “protecting humans from the overreaching power of States.” An astounding idea, and a hopeful one, to unwrap our government’s shroud of patriotic bunting and to distinguish our country from our state.
The committee had only the feeblest powers: progress reporting and submission deadlines. Our government turned in its homework seven years late. Committee and government eventually met in 2006 at the Palais des Nations in Geneva. The interrogatory process was toothless by design and little help to the tortured or brutalized or disappeared, but it hinted at something never seen: our state called on the carpet by chapter and verse, pointed questions and directed answers that could not take place on native soil. These were not press-pool lickspittles, or grandstanding politicians, or faithful partisans in judicial sinecures. The committee routed the government’s cant like border collies giving eye to sheep. They insisted on knowing precisely how America’s laws comply with our human rights.
America’s defenders asserted the government’s sovereign right to slough off its obligations to its subjects. Their counterattack was, as the committee put it, “merely to insist that the United States had not violated the Covenant.” One bemused diplomat, feigning innocence of our government’s big-lie technique, remarked on its “dogged reaffirmations.” In lieu of results, America’s conservative champions placed great store by the magic of substantial budget allocations. They touted bitterly-fought Supreme Court decisions that brought US law in line with the covenant, prompting the response that now you can drop your reservations. It was as though they were left behind to writhe in the clutches of Nicolae Carpathia.
They fought the Beast with hermeneutic Shaolin Do, dialectical feats requiring the same indulgent suspension of disbelief as the leaps and twirls of martial-arts films. Remorseless exposure and dissection of absurdities at one point drove our government to quote Eleanor Roosevelt in a last-ditch fight to justify offshore torture. Digging through the travaux préparatoires, they found the guiding light of human rights worrying about displaced persons and pressed her into service to uphold disappearances, controlled drowning, anal rape, forced masturbation, and penis-slitting. Having demonstrated to their satisfaction that Mrs. Roosevelt didn’t care about torture abroad, the government vaunted its human-rights vigilance at home with stories of redress for a horrifying litany of domestic atrocities that make us sound like the city of Dis.
Reminded that Article 6 ensures the right to life, the government briskly cited the laws that forbid its practices of assassination by executive decree, death by torture in secret concentration camps, and civilian massacres in occupied lands. Then it went on to rhapsodize about protection for the unborn.
Article 4 requires the government to notify other treaty parties if it declares a state of emergency. The article also keeps the lid on assassination, torture, deportation, and other acts even in a state of emergency so declared. Our government noted that in America we have national emergencies, of course, lots of them, such as the perennial emergency of 9/11, and emergency powers too – but no state of emergency as such. This is true, in an oblique sense. A state of emergency under Article 4 is a threat to the life of the nation. Our state’s wholesale withdrawal of global human rights – assassination, indefinite detention without charge, torture, arbitrary deportation, and illegal suspension of America’s patchwork privacy rights – all of it came in panicked response to the deft, humiliating pinprick of 9/11, an unrepeatable stunt carried out under the nose of a somnolent executive. An emergency of state prestige.
Infuriatingly for the haughty Americans, the government’s minders helpfully referred them to the UN’s standards: Minimum Rules for the Treatment of Prisoners; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; Guiding Principles on Internal Displacement (The latter might have been the last straw, likening Katrina’s unruly black ingrates to victims shown in third-world refugee relief appeals.) Treating America like any other state was insupportable lèse-majesté, but the blasé transnational technocrats calmly helped them to improve. To defuse their incongruous Perry Mason bluster the committee mildly noted that the panel was not a “quasi-judicial procedure.” No, it wasn’t, it was worse than that. It was exactly the sort of remedial civil-society tutelage that might be imposed on some bloodthirsty patrimonial satrap from a superstitious waste.
As the government blared its domestic propaganda Wurlitzer, the committee chided the “increasingly strident rejection of the relevance of international law and standard-setting by significant public figures in the United States such as judges and government officials.” America’s war on scrutiny spared the committee but felled its salient target, the Human Rights Commission. In 2006 the UN dissolved the commission and replaced it with a Human Rights Council. In the UN our government voted against the reorganization, as it preferred to be judged solely by countries that measure up to American standards. But the damage is done. The US is subject to human rights monitoring by outside observers selected by the world at large, like every other state. The reconstituted review process is called Universal Periodic Review. In instituting the Human Rights Council the UN slipped in a formal procedure for complaints that includes individuals and organizations, even American citizens. We now have recourse to an independent supranational body that checks state diktat against our rights, objectively defined.
In this threat to state diktat, cautious patriots fear a trap. The ICCPR might disrupt our tested and poised legal framework with UN mob rule of sovereign states: not just states that are fit to be our peers, but repressive pariah states, weighed equally in oppugnant scales of justice. What if the New World Order were to displace our unmatched American freedoms?
The changes might prove profound. Under traditional American due process, broad immunity and corrupt oversight give prosecutors unchecked police-state powers. They are free to investigate persons, not crimes; to taint jury pools with promiscuous leaks; to direct testimony under threat; or to pit family members, including minors, with extortionate threats of prosecution. The ICCPR might inconvenience prosecutors apt to run amok. Articles 9 and 14 might afford compensation for Henry Samueli, liberal enemy of the state, now that the courts have set his conviction aside for treatment “shameful and contrary to American values of decency and justice.” The same articles might provide judicial redress for political prisoner Don Siegelman. The G.W. Bush administration targeted Siegelman for prosecution as an electoral challenger for state office in Alabama, according to sworn testimony and a petition from 44 former state attorneys general. Under Article 7, Siegelman might compel examination of his solitary confinement in a maximum security prison.
And what of our First Amendment, that shining beacon of freedom, principal object of patriotic anxiety in its sacrosanct perfection? It might be supplanted by its counterpart, Article 19. The First Amendment hasn’t done much for the hapless journalists of Al Manar and Al Jazeera. President Obama retains the anodyne pluralists of Al Manar on a Terrorist Exclusion List that forbids their content to American viewers, though the Senate Intelligence Committee and CIA have failed to catch the network inciting any sort of terrorism. Al Jazeera fared no better, as America bombed its Kabul and Baghdad offices. Foreign suasion may have staved off worse, although Britain has censored state records bearing on President Bush’s intent regarding military attacks on Jazeera’s headquarters in US ally Qatar.
US resistance to Article 19 stemmed from press restrictions it permits. In contrast to America’s light touch with censorship and air strikes, Article 19 permits restrictions defined in law on four specific grounds: for respect of the rights or reputations of others; or for the protection of national security, or ordre public, or public health and morals. As currently interpreted, Article 19 requires that any restrictions on press freedom must be narrow and grounded in factual detail. Under Article 19 our Secretary of Defense might have been obliged to explain what, exactly, in Jazeera’s video footage of the siege of Fallujah made it “vicious, inaccurate, and inexcusable” – or what that has to do with the permissible grounds for restrictions. When the government divined marching orders for fanciful terror plots in Al Jazeera broadcasts, officials might have had to tell us more about the secret decoder ring they used, inasmuch as its results were impossible to replicate and were forcefully debunked by US and French intelligence. Suppression of Al Manar might call for something more than fabricated claims of televised bomb-making classes and President Bush beset by puppet assassins. Article 19 is universally interpreted to require a proportionality test for press restrictions. It is intriguing to speculate how bombardment of press offices, reportedly directed at the highest levels, meets proportionality tests.
Unlike the First Amendment, Article 19 guarantees not only expressive freedom but freedom to seek and receive information. Under the aegis of the First Amendment, in defiance of statutory whistleblower protections, the Obama administration made an example of Thomas Drake, who informed on felony eavesdropping and botched procurements at NSA. Under Article 19, the government’s prosecution of Drake breaches not only the right of free expression but the public’s right to know. Under America’s rule of law, worthless billion-dollar programs must remain state secrets.
Whereas American press freedom is absolute, where permitted, the ICCPR recognizes a complicating consideration: Article 17 guarantees the right to privacy. The press has long experience weighing privacy concerns. But recognition of this right would ravage America’s security panopticon. Under the remnants of our Fourth Amendment, the government uses private contractors to circumvent the Privacy Act, and these contractors in turn rely on the government to extract personal information that they sell on to marketing firms. Officials boast of indiscriminate and illegal warrantless surveillance, including domestic use of military and intelligence systems. Communications firms, having been exempted from the law, have made a lucrative business of surveillance on demand with no judicial oversight. In light of the vindictive breach of privacy that risked lives, disclosed state secrets, and exposed intelligence sources and methods, Valerie Plame might have been grateful for Article 17 protections against arbitrary government attacks.
If our state is to continue overreaching, it may have to engage the New World Order. The Obama administration has joined the Human Rights Council and a new review of our government’s record will begin this year, assisted by a three-state troika of rapporteurs selected by lot. The government sent an interagency group on a ten-city consultation tour and the State Department is soliciting written input to the US report. In interposing to channel its citizens’ voice and damp unwanted press, the state has kept a tight grip on awareness at home. Our leaders’ new approach is to defend the police state more urbanely. It remains to be seen whether the state can keep the process under its control. The Human Rights Council has issued its own public submission guidelines for stakeholder reports. The committee continues its work as before, adjuring compliance to the letter of the ICCPR. As we agreed in the treaty, we can’t withdraw. Adherence in good faith entails compliance with the views of the committee. There’s no going back.
The UN will be picking through the wreckage of a constitution tested to destruction, and shards of rule of law remade into a weapon of the state. Much of interest happens in Geneva, where older, humbler nations watch Sierra Leone emerge from shadow as we take our own oblique course toward eclipse in intractable corruption, scorched-earth opposition, and factional terror, threatening not chaos but sullen, safe oppression. We can only hope America’s foreign tormentors don’t relent.