Commentary

Speech of Michael Posner to the American
Bar Association Center for Human Rights

by Michael Posner
Executive Director, Human Rights First.

Salt Lake City, Utah
February 14, 2005

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Full Version (PDF - 106KB)

Thank you for inviting me to speak at this inaugural lunch of the ABA’s Center for Human Rights. It is a special pleasure for me to be introduced by Jerry Shestack, a champion of human rights both within the ABA and around the world. As Jerry told you, he and Jim Silkenat hired me in 1978 to become the first Director of the Lawyers Committee for Human Rights, now Human Rights First, and I am grateful to both of them for giving me the opportunity to get involved in this work. Jerry has been a great friend over the years. He is a true public citizen -- a teacher, lawyer, bar leader, diplomat, and human rights activist. We are very lucky to have someone with Jerry’s remarkable energy and ability on our side.

I also want to say a special thanks to Steve Walther for inviting me here and for giving me an opportunity to address these issues before such a prestigious audience. Steve has worked long and hard with Jerry to create the ABA’s Center for Human Rights. He has a long-standing and passionate commitment to protecting human rights and has played a pivotal role in advancing many important human rights issues within the ABA over the years. Thank you, Steve.

I welcome the creation of the Center for Human Rights which helps to coordinate and reinforce the good work of the American Bar Association. Over the last 20 years, we have been privileged to work with many of you as the ABA has increased its involvement in these issues. Initially, we worked closely with a series of ABA Presidents to prepare “rule of law” letters, through which the ABA registered its concerns with foreign governments in cases where lawyers or judges face persecution and harassment for carrying out their professional duties. In the 1980’s, the ABA adopted its Goal VIII which formally acknowledged as one of its core commitments and goals to “advance the rule of law in the world.” In 1990, following the commencement of the remarkable transformation in Eastern Europe and the former Soviet Union, the ABA created the Central and East European Law Initiative, now known as the Central European and Eurasian Law Initiative (“CEELI”). Many people in this room, including Jerry, Steve, Bill Ide, and others, played a central role in CEELI’s development. Today, CEELI’s accomplishments are well recognized and appreciated by lawyers and others throughout Eastern Europe and the Former Soviet Union.

Globally, the ABA continues to speak out on the issues of the day. Most recently, for example, many of you helped lead the successful effort to adopt an ABA resolution on the Darfur crisis, which included a recommendation that the Darfur situation be referred to the International Criminal Court. On these and other critical global issues, the ABA plays a pivotal role in shaping our national debate.

On a parallel track, since the September 11 attacks, as our own country debated appropriate responses to the serious threat posed by Al Qaeda, the ABA has urged that this country maintain its commitment to human rights and the rule of law. Neal Sonnett, for example, who is here today, has played a very important public role in challenging procedural defects in the military commissions authorized by President Bush in late 2001. The ABA has also been outspoken on issues relating to enemy combatants, the Patriot Act, and U.S. detention and interrogation practices overseas. As a mainstream voice of the legal community, the ABA has been and continues to be a vital voice in these debates. There is no organization better placed to do so. I want to thank you for the leadership role you play. We need you.

My focus today is an assessment of the state of human rights and civil liberties in the U.S. three and a half years after the September 11 attacks. I aim to provide a snapshot of where things now stand on a range of related issues, and then to offer several suggestions on how the ABA can and should address these concerns in the future.

Let me start this discussion by recognizing that our world did change on September 11, 2001. The threats we face from Al Qaeda and other violent, extremist groups are very real. Al Qaeda, as we know, has developed a broad global network that is well financed and well organized. They have a long term strategy, a key element of which is to violently attack U.S. targets, both in this country and abroad. Al Qaeda and groups like it have adopted a Ju-Jitsu type of approach. They turn our modern systems of transportation, communication, and sophisticated weapons technology against us. And the results, as we have seen, can be devastating.

So it is vitally important for the United States Government to adopt an effective national security strategy that will reduce the threats we face from Al Qaeda and other similar groups. The Bush administration has taken a number of important measures to help ensure our security for which they deserve credit. In the last year, the Administration has helped create the National Counterterrorism Center, and in December worked with Congress to create a new senior government position, the Director of National Intelligence. The President’s FY 2006 budget includes significant new resources aimed at detecting and preventing the transportation of nuclear materials into the country, and the Administration has worked hard to encourage better sharing of intelligence information among government agencies.

Yet much remains to be done. The bi-partisan National Commission on Terrorist Attacks in the United States, the so-called 9/11 Commission, did an excellent job of identifying a number of areas where improvements must be made. These “rights-neutral” measures include the need for more extensive security measures for ports, trains, chemical plants, and our cyber-network, among other things. In particular, we need to do more to guard against biological and radiological attacks. And we need to devote greater financial and other support for our front-line responders - police, fire fighters, and emergency medical service workers. Enhancements in these areas are prudent and sensible, and pose no threat to out civil liberties, human rights, or the rule of law.

Assessing the New Normal

At the same time, the Administration has undertaken a number of policy changes which have drastically changed the relationship between the government and its people. I will focus today on some of these measures which have resulted in a loss of liberties have undermined the rule of law. Shortly after the September 11 attacks Vice President Cheney referred to these changes as part of a “new normalcy” that reflects “an understanding of the world as it is.”

Human Rights First has evaluated this “new normal” and its impact on human rights in four key areas: the detention and interrogation of security detainees; policies towards immigrants, non-citizens, and minorities; personal privacy; and openness in government. While the erosion of rights in these areas should concern everyone, they are central to what we stand for as lawyers.

The broad theory that underlies all of these changes is the Administration’s assertion that we are fighting a global “war against terrorism” that extends throughout the United States and to every nation in the world, and must be fought outside the constraints of law. To some in the Administration, even the mention of the rule of law belittles the threat we face and constrains the executive branch’s need for broad authority to wage this fight successfully. This was the view expressed last year by Alberto Gonzales, then White House Counsel, and now Attorney General. Speaking to the ABA’s Standing Committee on Law and National Security last February, Mr. Gonzales urged that criminal charges, access to legal counsel and trials are neither “necessary [n]or appropriate” in cases involving enemy combatants. Secretary of Defense Rumsfeld said that we are now operating under “different rules” which only the executive branch should determine and which “have to apply when the threat of terrorism arises.”

In the view of these and other senior Administration officials, there is law on the one side, war on the other. And when fighting the “global war on terrorism,” law becomes a luxury, not a necessity, which we may not be able to afford. In effect these officials have implied that the United States – and indeed, the rest of the world – is now in a permanent state of emergency, where traditional notions of human rights and civil liberties do not apply. Operating in that framework, some Administration officials have suggested that the detainees now being held at Guantanamo or in Afghanistan or Iraq are in "law-free zones” or the “legal equivalent of outer space.”

As lawyers, we must forcefully challenge these assertions at every turn. In a society rooted in justice and the rule of law, there can be no such thing as a law-free zone.


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