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Stirring the Human Rights Revolution

by harold hongju koh

AS THE NASCENT HUMAN RIGHTS MOVEMENT WAS RISING FROM the ashes of the Great Depression and World War II, a young priest in Boston was coming of age. His name was Robert Frederick Drinan.

 

As he embarked on what would become a lifelong commitment to the human rights movement, Father Drinan worked to make real his simple, radical dream: universal acceptance of the idea that every person is endowed with human rights simply by virtue of being born human; that these rights are in alienable and unconditional; that human rights are held by all, against all; and that governments must be organized to respect and protect these rights.

 

Father Drinan was right there at every stage in the development of international human rights law. During the first age of post war human rights, what I call the Era of Universalization (1941–1956), President Franklin D. Roosevelt identified four freedoms worth waging war for: freedom of speech, freedom of religion, freedom from fear, and freedom from want. As a young United Nations pledged its commitment to human rights, Bob Drinan was a young student and priest studying the religious roots of human rights law in medieval Christianity and absorbing the teachings of St. Thomas Aquinas, John Locke, and Jean-Jacques Rousseau.

 

During the Cold War, an Era of Institutionalization for human rights organizations (1956–1976), the world witnessed adoption of the first human rights treaties and governmental and nongovernmental bodies. During those years, as a fiery law dean and congressman from Massachusetts, Bob Drinan was shepherding legislation through Congress that conditioned foreign and military aid on compliance with human rights, and participating in such human rights organizations as Helsinki Watch and the National Interreligious Task Force on Soviet Jewry.

 

During the third postwar phase of human rights law, the Era of Operationalization of human rights law through institutional action (1976–1989), national and international systems began to emerge for protecting and enforcing human rights. In Washington, Congressman Drinan became an outspoken champion of human rights around the world. He spurred the enactment of legislation establishing the Human Rights Bureau of the US State Department (now the Bureau of Democracy, Human Rights, and Labor), and successfully advocated for US court jurisdiction over claims of foreign human rights violations brought by victims of human rights abuse.

 

During the decade after the Cold War, an Era of Global Optimism (1989–2001), Bob Drinan returned to the academy and his teaching and writing as a professor of human rights law at Georgetown Law School. As freedom swept through Latin America, South Africa, Central and Eastern Europe, and Africa, as courts for adjudicating and advancing international human rights grew and expanded, and as the US saw a revival in its global human rights policies, Bob Drinan pressed for a broader understanding of what human rights encompass through his scholarship and public advocacy. In The Mobilization of Shame, he argued for recognition of a right to food, the establishment of international tribunals for human rights, human rights of prisoners, and the need for an independent judiciary. He opposed the death penalty as contrary to “customary” international law, and he helped to forge connections between the human rights movement and the labor movement and the environmental movement, drawing these emerging networks into the human rights realm.

 

Today, wherever a dictator is called to account for crimes against humanity; wherever political heat is brought to bear on an American president to forgo expediency in favor of the rule of law; whenever a student is called to pursue not merely the good life, but a life lived for the good; whenever an activist saves a life through passionate argument, Father Drinan’s fingerprints are there. Father Drinan’s Revolution, the Human Rights Revolution, pervades the work of an emerging international civil society.

 

And yet today, we find that the fruits of that revolution are at risk. Since September 11, 2001, the United States has fallen into an Era of Global Pessimism. In the preceding half century, the US had operated under an international vision that placed a premium on using diplomacy, backed by force only as a last resort. Our country’s human rights policies were based on principles of universalism and FDR’s four freedoms. Our democracy-promotion policy sought to build democracy from the bottom up. And in using diplomacy, we applied an approach based on strategic multilateralism and tactical unilateralism.

 

But September 11 turned this vision upside down. In responding to the terrorist threat, America began to choose force first—preemptive strikes and wars of choice—over diplomacy. Our policies now reject universalism and treat freedom from fear as the overriding value. Increasingly, we seek to impose democracy from the top down rather than build it from the bottom up. Our diplomacy has shifted toward strategic unilateralism and tactical multilateralism, exhibiting antipathy to international law and indifference to global cooperation. Our president insists on freedom to authorize torture, domestic spying, and to modify enacted statutes through presidential signing statements. And we have created extra-legal zones, such as Guantanamo, extra-legal courts, such as military commissions, extra-legal people, whom we call “enemy combatants,” and extra-legal practices, such as extraordinary rendition, all exempt from meaningful legislative and judicial oversight. Our Congress has largely acquiesced, permitting executive infringement of civil liberties based in vague legislative mandates, and our policies increasingly treat aliens as second-class citizens.

 

How to repair the damage and reestablish human rights as an American priority?

 

We saw a flicker of light with Hamdan v. Rumsfeld (2006), in which the US Supreme Court held in a 5-3 decision that President Bush lacked the constitutional and legal authority unilaterally to establish a system of Military Commissions, which violated not only the Uniform Code of Military Justice, but also Common Article Three of the Geneva Conventions.

 

Closely read, Hamdan prescribes a blueprint for the way we should conduct the war on terror and for the future of human rights law. Hamdan says that the president’s authority is limited by congressional exercise of its war powers. It says that a person is entitled to the protection of legal standards and procedures, and that the US is subject to the obligations of the Geneva Conventions, a defense of human rights universalism. It says that, absent explicit congressional approval, the president cannot deprive even suspected enemy aliens of their rights. Broadly applied, Hamdan’s reasoning would also undermine the president’s freedom to authorize torture, to conduct domestic spying, and to try suspected terrorists in courts that fail to meet the standards of domestic and international law.

 

In short, steady application of the principles of Hamdan by the courts, Congress, the President, and civil society could restore Father Drinan’s vision.

 

Yet instead, what we have seen since is a legislative repudiation of the Court’s ruling. In the Military Commissions Act of 2006, Congress passed legislation that, among other things, sought to eliminate judicial review in matters pertaining to enemy combatants and prohibited enemy combatants from invoking rights guaranteed by the Geneva Conventions. Congress sought to undo the Supreme Court’s ruling by statute, placing us on the wrong side of our own law, international law, and international opinion, and running the risk that its new legislation will once again be struck down by the courts.

 

At this writing, several key cases are currently wending their way through the courts contesting the legislative stripping of habeas corpus rights. But these are unlikely to reach the Supreme Court before next year. Only recently, some members of the newly Democratic Congress have begun talking about new legislation to revise the Military Commissions Act and to restore the right of habeas corpus to the prisoners on Guantanamo.

 

Can Father Drinan’s revolution be rescued? Ultimately, the answer to that question rests on four others: Is our executive branch willing to rely on diplomacy and compliance with international law over force and threats of force, to promote global cooperation?

 

Is our legislative branch willing to ensure that our government and foreign governments play by global human rights rules?

 

Will our civil society—citizens groups, media, bar associations, the church, the academy—monitor our government and hold our leaders accountable for human rights conduct?

 

Is our judicial branch willing to ensure that we continue to pay what the Declaration of Independence called “decent respect to the opinions of humankind?”

 

What Father Drinan taught us is that protecting human rights and law in an age of globalization is far too important a task to be left to governments and government officials. It is a challenge for all thinking twenty-first century citizens, lawyers, and law schools.

 

What Father Drinan told us, in effect, is that the fate of his human rights revolution is in our hands. And what history teaches is that Father Drinan’s revolution is one worth winning.

 

This article is based on remarks Dean Koh made at the inauguration of the Father Robert F. Drinan SJ, Professorship in International Human Rights Law at Georgetown Law School in the fall of 2006.