The Tina Turner Syndrome: "What's Law Got to Do With It?"

Fifty lawyers, diplomats, and human rights professionals gathered on October 30th at Patton Boggs Law firm in Washington, DC to hear Yale Law School Dean and former human rights adviser to Bill Clinton, Harold Koh. He calls the current situation under Bush the ‘Tina Turner syndrome’ of international human rights: “What’s Law Got to Do With It?”Ambassador Kakouris of Cyprus, Ambassador Smith of the Bahamas, and former Ambassador Courtney of Georgia and Kazakhstan were among the diplomats in the crowd who came to hear human rights czar Harold Koh present his views on a long-standing and controversial topic in U.S. politics: “International Human Rights and Rule of Law: A Blueprint for the Next Administration.”Dean Koh began by stating that the challenges that faced the old administration started with Iraq and ended with the economy. He then outlined how the U.S. relationship to human rights, which began with the notion of universalism and Franklin Delano Roosevelt’s Four Freedoms speech in 1944, went from one of “zero tolerance to zero accountability.” He argued that the greatest human rights challenge facing the new administration is the need to restore the rule of law, and proceeded to name the four greatest human rights mistakes of the Bush administration.“Abu Ghraib, torture, Guantanamo (GTMO), and the perception that law is the problem,” he said, pausing to let the idea sink in with his audience. His belief stems from the notion that “in important respects, international law is part of our law.” Koh is part of the U.S. human rights camp that believes strongly in the use of international law and universal jurisdiction to regulate human rights issues in the United States. He resists the U.S. trend of using an executive order as a law unto itself. He quotes Kissinger to point out the dangers of this action: “The illegal we do immediately. The constitutional takes longer.” To Koh, it is the Bush administration that is the problem, not the international laws.The U.S. under George W. Bush has had an inconsistent human rights record. According to Koh, the pre 9/11 era was one of global optimism for human rights, while the post 9/11 era has been one of global pessimism.For instance, just before leaving office President Bill Clinton had signed the International Criminal Court Rome Statute that makes the U.S. accountable to international human rights standards. Within a year of his presidency Bush reversed course and has since continued to fight against the use of the ICC and universal jurisdiction to regulate human rights abuses, much to the chagrin of Koh and human rights advocates.The mistakes of Abu Ghraib, Guantanamo, and the use of torture have all since been at the forefront of the U.S. human rights agenda. The Guantanamo detention facility continues to spark controversy from all sides. Bush has repeatedly stated that Guantanamo will continue to exist so long as it needs to exist, although few prisoners have been found guilty. To Koh, the 2002 torture opinion that existing rules on detainees do not necessarily apply to Al-Qaeda or Taliban members was “watered-down,” and the U.S. continues to shun responsibility for the tortures that occurred inside Abu Ghraib as well.Koh’s ‘Blueprint for the Next Administration’ outlines eight steps necessary to improve U.S. credibility on human rights.Step one: the immediate closure of the GTMO Bay facility and the prosecution, extradition, repatriation or resettlement of prison detainees. Step two: an executive order issued by the new President to close GTMO. Step three: a revamped national security legislation, such as the revision of the 2008 FISA Amendments Act (Foreign Intelligence Surveillance Act) to amend, modernize, and streamline the 1978 FISA. Steps four through eight include increased U.S. respect for international law and organizations, re-signing the ICC treaty, the appointment of a 9/11 truth commission, and immediate action on the crisis in Darfur. As Koh sees it, “if the next administration doesn’t stand for human rights, the U.S. does not know its identity anymore.”He acknowledged that the new President will have a full platter of foreign policy concerns to deal with in addition to human rights. “The next eight years are so important. The last eight years are far less important,” he said, hoping that the new President will keep his promise to end torture, close Guantanamo, and reconsider a more multilateral approach.Koh chuckled as he recounted a near impossible assignment in 2001 as Under Secretary for Democracy, Human Rights, and Labor. He had all of thirty seconds to brief Secretary of State Colin Powell on the U.S. human rights situation. He views the challenges of the upcoming administration to uphold international human rights standards as similarly difficult.And yet, with the dawn of a new administration on the horizon, Koh sees possibilities for a new era of U.S. adherence to international human rights: “If the U.S. says yes to the ICC and closes down Guantanamo by 2009, other countries too will see a new era…and the post-post cold war will again be a time of global optimism.”

Harold Hongju Koh is Dean of the Yale Law School and a Professor of International Law. He has served in both republican and democrat administrations as Under Secretary for Democracy, Human Rights, and Labor from 1998-2003. Dean Koh has written 80 articles and 8 books.

Patton Boggs LLP is a Washington DC-based international law firm, specializing in Public Policy and Lobbying, Regulatory, Litigation, Business and Intellectual Property law. The firm is celebrating its 80th anniversary this year.