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China Hits U.S. Rights Hypocrisy

By Ivan Eland
March 13, 2007

Editor's Note: George W. Bush and his "war on terror" have taken the United States so far from its founding concepts of "unalienable rights" that Washington invites derision when it chastises repressive nations for denying such fundamental liberties to their own people. Rather than the shining city on the hill, the United States has become the proverbial glass house from which stones are thrown.

In this guest essay, the Independent Institute's Ivan Eland notes how even the Chinese government has managed to lob a few human rights salvos back at Washington:

In its newly released annual report on the status of human rights around the world, the U.S. State Department disparages a long list of nations about their violations of individual freedoms.

The report notes that countries in which power is concentrated in the hands of unaccountable rulers, whether totalitarian or authoritarian, continue to be the world’s most systematic human rights violators. These countries include North Korea, Iran, Burma, Zimbabwe, Cuba, China, Belarus, and Eritrea.

“We are recommitting ourselves to call every government to account that still treats the basic rights of its citizens as options rather than, in President Bush’s words, the non-negotiable demands of human dignity,” said Secretary of State Rice in releasing the report.

The authoritarian government in China gleefully responded to the U.S. censure of its policies with return fire on the Bush administration’s abysmal record on civil liberties.Things are getting bad when an autocracy chastises a republic for its human rights abuses and the criticism has merit.

The Chinese condemned U.S. practices of kidnapping, torture, and indefinite detention without the opportunity for legal challenge. They also pinged the U.S. government for increased spying on American citizens. Of course, these are the same abuses that the U.S. government has criticized the Chinese government of perpetrating.

China also cited Martin Sheinin, U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms, as saying that parts of the U.S. Military Commissions Act violate the Geneva Conventions.

In 2004, the U.S. Supreme Court ruled that habeas corpus—the ancient right of a prisoner to challenge his or her detention—could not be denied to detainees at the U.S. prison at Guantanamo, Cuba, simply because they were not being held on U.S. territory.

Despite this ruling, in late 2006, the Republican Congress passed, at the urging of President Bush, the aforementioned Military Commissions Act, which prohibited federal courts from hearing habeas petitions from prisoners at Guantanamo and elsewhere.

The denial of habeas corpus rights for these prisoners—despite a February 2007 ruling by the D.C. Circuit Court of Appeals upholding the act—is clearly unconstitutional. The Constitution clearly states that the writ of habeas corpus shall not be suspended, except in times of rebellion or invasion—neither of which applies in this case. In addition, no exception is made for non-citizens or persons held by the U.S. government outside U.S. territory.

The Chinese criticism has merit. If habeas corpus can be so denied, the U.S. government can kidnap people off the streets anywhere in the world, declare them “enemy combatants,” and hold them secretly and indefinitely without being charged, having access to legal counsel, being able to challenge their detention, and having a trial. In fact, foreigners have been kidnapped, sent to foreign countries for torture, and are now rotting in perpetuity in Guantanamo and other secret prisons around the world.

At Guantanamo, some prisoners have already been held for five years without proper due process.

Some would say that legal niceties, such as habeas corpus, impede the war on vile terrorists. But for the battle against al Qaeda to succeed, the right people must be apprehended.

The purpose of habeas corpus is to catch mistakes the government might make in detaining the wrong person. A person accused of a heinous terrorist attack might not be guilty, while the actual perpetrator runs free and attacks again.

And the government snaring the wrong person is not a rare event—especially when the U.S. government offered large monetary rewards for terrorism suspects in the poor nation of Afghanistan, motivating people to turn in innocents to get the cash. As a result, a significant number of prisoners at Guantanamo were arrested by mistake and are not terrorists.

Thus, suspects of even the most atrocious crimes need a court to review their habeas corpus petitions. The U.S. Congress should pass the bill introduced by Democrat Patrick Leahy of Vermont and Republican Arlen Specter of Pennsylvania that would restore habeas corpus rights for detainees.

The Chinese were also right about President Bush’s flagrant disregard of the law in conducting domestic spying without court approved warrants. Again the Bush administration tried to remove a judicial check on executive branch activities—a principle at the core of the U.S. Constitution. Under public pressure, the administration pledged to obtain warrants, but may still try to minimize judicial scrutiny.

Similarly, the draconian USA PATRIOT Act, pushed through Congress by the administration during the post-9/11 hysteria, expanded the use of “National Security Letters.” Using these unconstitutional letters, federal law enforcement authorities can obtain telephone, e-mail, credit, and financial records without applying for a court-issued warrant.

Even worse, records can be obtained for people who are not even suspected terrorists. FBI field office chiefs can approve acquiring the information from anyone, as long as the data are “relevant” to a terrorism or spy case.

The Justice Department’s own Inspector General recently found that the FBI was “seriously misusing” the letters and also attempting to get around even the minimum safeguards against abuse by pleading a dubious “emergency.” What a surprise, a law enforcement bureaucracy stretching even permissive laws to expand its power and abuse the liberty of its citizens. This sounds like something that would happen in…well…China.

Governments behave much the same everywhere—they seek to expand their jurisdiction, authority, and resources with which to exercise it. What is supposed to make America unique is a government divided into independent branches, which scrutinize and constrain each other’s power.

Unfortunately, that system of checks and balances has now been seriously eroded.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute and Assistant Editor of The Independent Review. Dr. Eland has been Director of Defense Policy Studies at the Cato Institute, Principal Defense Analyst at the Congressional Budget Office, Evaluator-in-Charge (national security and intelligence) for the U.S. General Accounting Office, and Investigator for the House Foreign Affairs Committee.

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