The Wages of 9/11

The war on terror may be over, but it's left behind a terrible human rights legacy -- and Barack Obama has done very little about it.

I felt a surge of shame earlier this week when I read an account of the 5-to-4 U.S. Supreme Court decision authorizing prison officials to strip-search any of the 13 million people arrested every year. The case was brought by Albert W. Florence, who had been mistakenly arrested for failing to pay a court fine which he had, in fact, paid -- and then was forced to squat naked and cough in front of guards. The infraction could have been even flimsier: Justice Stephen Breyer pointed out that one person had been subjected to this humiliating invasion of privacy after "riding a bicycle without an audible bell." Justice Anthony Kennedy, who wrote the majority decision, rebutted this objection by noting that "people detained for minor offenses can turn out to be the most devious and dangerous criminals."

Florence was not, of course, a suspected terrorist, but the case was a reminder of how America's crackdown on crime over the last generation has converged with the atmosphere of fear and suspicion produced by 9/11 to make the United States a terribly harsh and forbidding place for anyone who falls afoul of the law. Indeed, the Washington Post noted that the court's decision "continued a trend that began after the Sept. 11, 2001 attacks of giving jailers more leeway in searching those picked up even for the most minor offenses." And Kennedy's reasoning -- better to subject an entire population to degrading treatment than to overlook one dangerous actor -- is precisely the logic that led the Bush administration to detain vast numbers of perfectly innocent people on suspicion of terrorist activity after 9/11, or to subject millions of visitors to the United States to an exhaustive grilling by customs officials lest a terrorist slip through the net.

As a candidate, Barack Obama insisted that the United States was paying a heavy reputational price for violating international standards of human rights. "We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary," he promised in one campaign speech. Obama is not, of course, responsible for the Supreme Court's conservative majority, which carried the day on Florence. But he has not, with a few exceptions, changed the practices, or the underlying logic, that make the United States such an outlier in the West. Obama has not done nearly as much as he expected, and his supporters hoped, to restore the damage incurred by the Bush administration. This has been one of the great failures of his time in office.

I asked Alison Parker, director of U.S. programs for Human Rights Watch, how she graded the Obama administration on reforming abusive human rights practices at home. On criminal justice matters, she said, Obama deserves credit for reducing mandatory sentences for crimes involving crack cocaine, where the defendants are mostly black, which had been far longer than those for powder cocaine, where they are mostly white. On the treatment of immigrants, she said, "It's been mostly a steady state from what we experienced under Bush." And on counterterrorism, it's more mixed: The administration has banned torture; promised to end the practice of transferring prisoners captured on the battlefield to countries that might torture them (but is still relying on dubious official assurances from those allies); and has failed to close Guantánamo, end military tribunals, or prohibit indefinite detention. What's more, the Obama administration, like its predecessor, has refused to grant the U.N. Rapporteur on Torture access to Guantánamo. It would be a middling record, and perhaps defensible -- if Obama hadn't promised such a decisive break.

There is of course no crisp answer, mathematical or metaphysical, to the question of how far the state may deprive an individual of his or her dignity, or even selfhood, in the name of protecting the larger community. But the balance in the United States is very different from what it is elsewhere in the West. The New York Times recently ran an eye-opening article noting that the United States has imposed solitary confinement on at least 25,000 prisoners, and perhaps many more, often for years or even decades at a time. And that doesn't even include Guantánamo, where some detainees are held in solitary for years on end.

In a 2011 report, Juan Mendez, the U.N. Special Rapporteur on Torture, noted that prolonged solitary confinement has become a favored instrument of the war on terror around the globe. Mendez detailed the psychological devastation wrought by even short spells of solitary, and concluded that any period exceeding 15 days increased the risk of grave harm "that may constitute cruel, inhuman, or degrading treatment or punishment, or even torture." Countries like Kazakhstan figured prominently in the report -- as, of course, did the United States. Fine company, indeed. Perhaps this helps explain why the Obama administration has refused to grant Mendez unimpeded access to the prisoners at Guantánamo.

The United States is exceptional not only in the use of solitary confinement, but in the willingness to subject juveniles to this excruciating form of punishment. A recent Human Rights Watch report on the 2,570 youth offenders currently serving life sentences without the chance of parole -- yes, you read that right -- found that many are placed in "segregation" units, sometimes for years. One prison official explained the logic: "When you come in at a young age with life without [parole], there's not a whole lot of light at the end of the tunnel." The initial abuse of life without parole, that is, provokes behavior that in turn leads to the subsequent abuse of segregation. International law prohibits the imposition of life sentences on minors, and Mendez declared that the imposition of solitary confinement of any duration on juveniles constitutes "cruel, inhumane, or degrading treatment."

Oh, and one more thing: The United States and Somalia are the only two countries to have failed to ratify the U.N. Convention on the Rights of the Child. In 1995, when the United States signed the treaty, conservatives argued that it would allow children to sue their parents for mistreatment, and objected to a clause prohibiting capital punishment for minors. President Bill Clinton never submitted the treaty for ratification. In a 2008 debate, Obama said, "It's embarrassing to find ourselves in the company of Somalia" and promised to "review" the decision. That review is apparently still pending. And it's still embarrassing to find ourselves in the company of Somalia.

Mitt Romney, Obama's likely opponent in November, often alleges that the president does not believe in "American exceptionalism." It's a specious claim, but the truth is that America is exceptional -- in some ugly as well as admirable ways. Obama wanted, in effect, to restore the true American exceptionalism by putting an end to its uglier forms. Like so many of his other aspirational goals -- like "changing the culture of Washington" -- this has proved much harder than he thought. It is easier to argue that America under Obama has become a better citizen of the international community than it is to argue that it has become a more rights-regarding nation at home.

Of course, Obama inherited a conservative Supreme Court, Supermax prisons, Gitmo, and a politics infused with what he once called "the color-coded politics of fear." He inherited all that in the same way that he inherited two wars and something close to a depression. If he's made winding down the wars and warding off economic catastrophe rather than signing U.N. conventions his priority -- well, for that we can forgive him. But let's hope that setting an example to the world of treating your own citizens with the dignity they deserve will make it on to his list of things to do in his hypothetical second term. So yes, we can cut the president some slack on this one. But let us not forget how shameful it is to be classed with Kazakhstan, not to mention Somalia.

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Terms of Engagement

The Least Bad Option

Let's face it, there are no good solutions to the mess in Syria.

Are you okay with where you're at on Syria? I know that I'm not. A senior State Department official told me that the Obama administration isn't either. Almost everyone I've spoken to about Syria in the last few days has thrown up their hands and said, "There's no good solution." It may be that the only people who are comfortable with their position are the cynics in Russia and China who are prepared to let Syrian President Bashar al-Assad grind the opposition to powder, and Senator John McCain, who wants NATO to take out Damascus.

It's so much easier to say what won't work in Syria than what will. The Libya intervention-style air campaign that McCain advocates is a bad idea for reasons which a great many people, myself included, have enumerated. In any case, it's not going to happen, because no one who could do it -- the United States, Europe, even Turkey or the Gulf states -- has any appetite for a second Libya. If you haven't heard a syllable recently out of Samantha Power, the chief advocate in the White House for humanitarian intervention, it's probably because such an intervention is simply not in the cards.

But what is in the cards? Diplomacy? Many of us who favored intervention in Libya, but not Syria, have hoped that diplomatic pressure might tip the scales inside Syria and force Assad to step down. The Obama administration backed a U.N. Security Council resolution which would have compelled Assad to step down, transferring power to an interim regime and initiating a political dialogue with all elements of Syrian society. Russia and China vetoed the resolution, though Damascus would almost certainly have shrugged off the demand in any case. Now the U.N. has backed a new diplomatic effort by former Secretary General Kofi Annan, and Assad has formally accepted the terms, which require him to impose a cease-fire and embrace an "inclusive, Syrian-led political process" to address the demands of the opposition. But Syrian security forces have continued firing on civilians in direct contradiction of the Annan plan's terms; it's clear by now that Assad will leave office only if he feels sure that the alternative is a bullet in his head. The real danger is that he will comply with the peace plan just enough to further divide the international community.

So there won't be an intervention or, in all likelihood, a diplomatic deus ex machina. What's in between those two extremes? Last week, the Obama administration announced that, along with Turkey, it would ship communications equipment and other "nonlethal" gear to armed rebels inside Syria. (Saudi Arabia and Qatar have already begun to supply the rebels with weapons.) This is an important shift in policy, since the equipment would permit rebels militias to securely communicate with one another. Such gear may be nonlethal, but it's still military. How far is the White House prepared to go in helping the Free Syrian Army, as the military opposition calls itself? For the moment, it seems, not much further. Defense Secretary Leon Panetta and Secretary of State Hillary Clinton have both said that the Free Syrian Army and the civilian opposition, gathered under the umbrella of the Syrian National Council (SNC), must demonstrate far more unity and coherence in order to become a legitimate alternative to the Assad regime, and thus conduits for more substantial aid. At a recent meeting in Istanbul, the political opposition did unite behind the SNC -- except for the Kurds, who walked out.

The administration is right to insist that the militias inside Syria at least acknowledge the legitimacy of the political leadership, and that the SNC get its act together. In Libya, after all, NATO was able to intervene on behalf of the Transitional National Council, which functioned  as an inclusive, nonsectarian, secular government-in-exile. What's more, journalists and others had access to the Libyan rebels, and so could answer the question of just who they were -- which is not the case in Syria. Even so, the militias which fought the war in Libya began to behave like miniature sovereigns soon after Muammar al-Qaddafi was killed. A post-Assad Syria with no recognized political authority might prove even more violent and chaotic than Libya has, leaving the country carved up into sectarian fiefs.

But how much coherence is fair to require as a precondition for further help? A recent report by the Institute for the Study of War points out that "insurgencies are inherently decentralized" and argues that Syria's armed opposition "has shown a propensity for organization at the local level." The report concludes that "delaying policy decisions before the opposition has coalesced around a viable alternative government is tantamount to insisting that the revolution succeed fully before it receives practical or military assistance."

The Friends of Syria, an organization of over 60 nations seeking to resolve the conflict there, is meeting this weekend in Istanbul, and should work actively both to help the civilian opposition hang together and to bind the militias inside Syria to the SNC -- rather than waiting for these forces to gel. (Giving the rebels satellite phones is, of course, one way to do just that.) And then what? White House officials have not wanted to say what they would do once the opposition begins to present a united front -- perhaps in part because they don't know. But reports that the rebels are literally running out of bullets argue that if outsiders don't act fast, there will be no insurgency to support -- at which point, Assad will be able to crush his opponents with impunity.

One person I spoke to who does have a plan is a former government official with extensive experience in Syria. The opposition, he argues, needs not just weapons but "a comprehensive military and civilian battle plan" to defeat Assad. He envisions a multilateral effort in which the United States would provide not just communications technology but real-time military intelligence to help the rebels respond to government troop movements. Gulf states would provide the bulk of the weapons and funds; the Jordanians might provide special forces to work closely with the militia; Turkey would provide the staging ground itself as well as other forms of aid; and diplomats would give strategic guidance to the SNC.

Such an effort would look less like the bombing campaign in Libya and more like, well, the  CIA-sponsored campaign to arm and train the mujahideen who fought the Soviets in Afghanistan. This is, of course, not a terribly encouraging analogy, since yesterday's anti-Soviet warriors became today's anti-American Taliban. We need no better reminder of the unintended consequences of supporting foreign insurgencies. But he did not shy away from the comparison. "We need to do what we did under Reagan," he said, "which is to actively support these insurgencies." But, he adds, we need to know who we are working with, to set out clear standards of behavior and to condition our help on maintaining those standards -- as we did not do in Afghanistan. And we need to be careful that the international effort doesn't exacerbate the problem: The Saudis, for example, are likely to bring an overtly sectarian agenda to Syria. The effort would be better off with a bigger role for the Turks, and a smaller one for the Saudis.

The neo-mujahideen strategy has plenty of problems -- beyond the possibility of a Frankenstein insurgency. It will take months to organize, and Assad will keep targeting civilians in the meanwhile. Assad's security forces may respond to a more robust military opposition by further ramping up the killing machine. And providing a safe haven along the northern border with Turkey offers very little comfort to either civilians or rebels in western cities like Hama or Homs, which border on Lebanon, or southern ones like Deraa, which is close to Jordan. And neither of those countries is prepared to host the insurgency.

But there are no good solutions; only less bad ones. And Assad's evident willingness to kill his opponents, and his opponents' willingness to keep fighting, or even protesting, despite the likelihood of being killed, compels outsiders to urgently devise and implement a least-bad solution rather than wait for the opposition to demonstrate that it deserves support. I'm open to a better suggestion. Does anyone have one?

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