MIDDLE EAST INITIATIVE: POT AND KETTLE?

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By William Fisher

Critics of The US State Department’s recently released Human Rights Report for 2003 are charging that the Report fails to address human rights abuses in the United States. Some believe that this omission exposes a current American double standard, and raises the question of whether the US has the credibility to launch its Greater Middle East Initiative.

The Initiative, expected to be proposed at the G8 summit in June, is a key element of President Bush’s effort to ‘democratize’ the Middle East. It has been widely criticized by Arab governments in the region as a neo-colonialist effort to impose an American model of democracy on a group of widely differing sovereign states. Now, some Arab spokesmen – as well as a number of US human rights groups – are asking whether the pot should be allowed to call the kettle black.

The double-standard accusation stems from measures taken by the US in the ‘war on terror’ since 9/11. It includes the Government’s enforcement of some of the provisions of the Patriot Act, particularly sneak-and-peek search and surveillance, indefinite detention of US citizens without charge or access to lawyers, rounding up of hundreds of Muslims on suspicion of immigration violations, rules announced by the Pentagon for its upcoming Military Tribunals, and treatment of detainees at Guantanamo Bay.

Detention of US citizens is seen by human rights groups as a particularly egregious breach of Constitutional protections. Two citizens, Jose Padilla and Yasser Esam Hamdi, have been classified as enemy combatants and held incommunicado in US military brigs for nearly two years. While the Administration had previously insisted that national security would be harmed if the military’s interrogation of Hamdi and Padilla were interrupted by visits from lawyers, it recently decided that this danger no longer existed, and granted the men access to their attorneys. At the same time, the Administration is taking their case to the Supreme Court, where it will claim that there are no legal limits to its power over terrorist suspects. The Court is being asked to rule on whether US citizens can be subject to unconstrained executive authority.

However, even in granting the two men access to counsel, the Pentagon emphasizes that it is doing so “as a matter of discretion and military authority.” It contends that neither domestic nor international law compels such access. According to Jamie Fellner, Director of the US Program for Human Rights Watch, “under the restrictive rules imposed by the Pentagon, the legal visits are nothing more than an empty façade… Although the two men can see and speak with their lawyers, they cannot consult with them in any meaningful way.”

The reason, Fellner says, is that “under the Pentagon’s rules, the meetings between lawyers and these particular clients are not confidential. Rather than the customary attorney-client privilege, which protects the secrecy of discussions between lawyers and the people they represent, these meetings are completely open to the military. Indeed, a military official is present at each meeting, and everything is videotaped and audio-recorded….” Complicating matters further, under the Pentagon’s restrictions, every word Hamdi says to his lawyer is classified. After holding a ninety-minute meeting under these restrictions, Frank Dunham, Hamdi’s lawyer, says he still does not know his client’s version of the facts – and cannot ask with military representatives present.

The Pentagon indicated to Dunham that anything Hamdi revealed would not be used against him in a criminal prosecution. But Hamdi is not being prosecuted—and anything he says could affect the military’s determination as to whether his continued detention is warranted. The Pentagon’s rules cripple Dunham’s ability to build a case for Hamdi’s release from detention.

The Pentagon has also refused to allow three leading human rights groups to attend and observe military commission trials of detainees at Guantanamo Bay
In a letter to US Secretary of Defense Donald Rumsfeld, Amnesty International, Human Rights First (formerly the Lawyers Committee for Human Rights) and Human Rights Watch, protested their exclusion from the proceedings and urged the US government to rethink its position. In its written response, the Department of Defense refused to allow Human Rights Watch and Amnesty International to attend the military commissions on the basis of “limited courtroom seating and other logistical issues.”

“These space constraints are being used as a pretext to keep out groups who have been critical of the commissions,” said Elisa Massimino, Washington Director of Human Rights First. “The Pentagon used its promise that the trials would be open to the public to reassure people that the trials would be fair. But now it appears ‘open’ doesn't really mean open. It means ‘open only to hand-picked press and not to anyone who’s been critical.’”

The rights groups acknowledge that the size of the courtroom, or any overflow room with video access, is a limiting factor in any trial. However, they charge that space factors are being used “as a pretext to exclude a whole category of observers with internationally recognized expertise in trial monitoring. Even acknowledging the unique difficulties caused by holding the commissions at the US naval base in Cuba -- a problem of the Bush administration’s own making -- the government should not be allowed to select observers in an effort to control coverage of these internationally significant trials. “

“The US, in the State Department’s Reports on Human Rights, annually criticizes other governments for failing to accommodate trial monitors,” said Alex Arriaga, director of government relations at Amnesty International USA. “Allowing media coverage while pleading insufficient space for human rights groups smacks of fear of informed criticism, and will only fuel the perception that tribunals will be show trials.”