Is Combatting terrorism compatible with human rights?

In the Universal Declaration of Human Rights (1948), 30 fundamental rights and freedoms were asserted by the delegates to the United Nations. In recent years, three of these rights, right to privacy, right to not be tortured and right to not be held without charge are considered to be under threat due to the policies the Bush and Obama administrations have employed in combatting terrorism. Some attempts have been made to reconcile anti-terror policies with human rights, but so far none have stood up to scrutiny.

One of the articles of the UN Declaration was a declaration of right to privacy. Attempts to combat terrorism after the 9/11 terrorist attacks have resulted in increased reliance on mass surveillance in order to catch potential terrorists. Though the American public were under the impression the NSA’s surveillance was targeted, in reality the 2013 Edward Snowden leaks revealed there was no discrimination or oversight in NSA mass surveillance, with millions of people having their right to privacy combatted for no good reason other than they may turn out to be a terrorist. Additionally, Apple have been instructed by a judge to decrypt the Iphone of one of the San Bernardino killers, an action requiring the creation of a new tool which would be used by the government at any time to decrypt anyone’s Iphone. All of the 2016 Presidential candidates in both parties stand with the judge, meaning that right to privacy is a right considered somewhat subject to compromise across the American political spectrum. Thus it is clear that, under both Bush and Obama, and whomever should succeed Obama in January 2017, Americans right to privacy is under threat primarily due to anti-terror policies.

To defend this seemingly undefendable government overreach, one would have to look to the precise wording of the UN charter. The charter said that men should be free of “attacks upon his honour and reputation”, the implicit subtext of that wording being that the right to privacy is not violated if the government does not release this information in such a way which would damage the reputation of it’s owner. Since government rarely does this,  and since the majority of the bulk-data on people’s phone records and emails is collected and never viewed, it can be argued that nobody’s right to privacy is being viole government does not release data on millions of people it releases, so arguably it is not a violation of human rights.

A more controversial right being violated is the right to be free from torture. Practices at the US detention facility at Guantanamo bay where since 2001 779 inmates have been detained have raised questions as to whether the US, the supposed arbiter of right and wrong in a unipolar world, is  fully complying with this human rights tenets. Details of the December 2014 Senate report on torture would suggest not. Waterboarding, the act of stimulating the sensation of drowning on a suspect in order to garner information, was frequently used on most serious inmates at Guantanamo bay, an act of what the otherwise hawkish Senator John Mccain and the otherwise hawkish intellectual Christopher Hitchens  both have called torture. One man close to Osama Bin Laden,  Khalid Sheikh Mohammed, was waterboarded 183 times in a row, leading to important intelligence about the whereabouts of Osama Bin Laden, the perpetrator of the 9/11 attacks, which led to the succesful operation in May to kill him. The fact that waterboarding was effective, and the fact that it does clearly violate the human right not to be tortured, presents a moral quandary to proponents of the War on Terror, as it is clear that waterboarding was integral to the anti-terrorism strategy of the USA under the Bush administration, and while Obama disapproved of waterboarding, much of the intelligence he used during his presidency was obtained by waterboarded inmates at Guantanamo.

However some proponents of the War on Terror, notably George W Bush have argued that waterboarding isn’t torture. The definition of torture is clear in this case- it is “the action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something”. As waterboarding (if done correctly) does not inflict pain on anybody, it is not torture in the strictest sense of the term in the way electrocution or the use of blowtorches would be considered torture.  Thus, defenders of the George W Bush administration would point to waterboarding not being torture, only “enhanced interrogation”, and this does not violate international human rights law.

The final right under discussion here is the right to habeas corpus, a right to review the legality of your arrest. This right was suspended between 2002-2008 when 779 people were held in Guantanamo bay without charge or right to legal recourse. Eventually in 2008 the Supreme Court ruled in Boumediene v. Bush that foreign terrorism suspects held at Guantanamo Bay have constitutional rights to challenge their detention (request a writ of habeas corpus) in United States courts. While the litigator of that case, Lakhdar Boumediene, was released along with four others, standards of evidence were tightened after 2010 meaning only 8% of requests for habeas corpus submissions were won- meaning despite the Supreme Court case, the right of habeas corpus for the remaining 91 detainees in Guantanamo bay are being violated.

The simple way to counter this point is that under the international law pertaining to war, the detainees held at Guantanamo Bay are “illegal enemy belligerents,” not prisoners of war with constitutional rights. This argument was mainly employed by the Bush administration in fighting the Taliban in Afghanistan in 2001, where rather than treating the soldiers of the Taliban as soldiers of a conventional army- they were treated as  “illegal enemy belligerents,”. Thus they forfeit rights to habeas corpus when they (allegedly) commit acts of guerilla warfare.  

In conclusion, while there have been noble attempts to defend US policy during the War on Terror, none of these defences fully stand up to scrutiny as most resort to strained or questionable reasoning. In order to justify countering-terrorism in a way compatible with human rights, scholars such as Michael Ignatieff have suggested that human rights have to generally be seen as less Universal than the Declaration of 1948 would seem to suggest.  

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