State Power and Abuse: The Impact of Absolute and Sovereign Immunity from a Human Rights Perspective

Human Rights and Executive Power 

by Ahmed E. Souaiaia

Those who believe in top-down paradigm for the promotion of human rights norms are given another good example of the misplaced expectations as the new US administration tackles the legacy of abuse and human rights violations. I have consistently argued that legislating through executive order does not necessarily promote the long-term health of a human rights regime. When considering the fact that human rights abuses are primarily carried out by governments, it becomes evident that entrusting the protection of human rights to a government amounts to asking violators to look after the wellbeing of the victims: individuals, minority, and vulnerable groups.

Although the Obama administration, through a series of executive orders, intended to end the abusive and illegal practices such as torture and indefinite detention of suspects: In Guantanamo prison alone, a total of 779 people were detained for years, only to release 538 of these people without ever being charged of crime. Additionally, the extrajudicial spying on citizens conceived and practiced by the Bush administration was never fully addressed. Ultimately, the Obama’s executive orders rendered many pending or future court interventions in many of these matters moot. Not giving the courts an opportunity to issue a legal ruling regarding the extent of executive authority will deprive future victims from a powerful legal precedent on the one hand, and leave the door open for future administrations to reverse these executive orders or initiate a new regime of abusive and illegal practices.

Moreover, when the Obama administration conspicuously offered CIA (and some other intelligence and military officers) immunity, it unnecessarily undermined the very foundation that supported human rights redress. Given that governments, not other entities, perpetrate human rights abuses, the possibility of enforcing human rights laws and preventing human rights abuses becomes exceedingly difficult. For this reason, it is a fundamental principle that neither ignorance of humanitarian laws nor being a subordinate could free a person from responsibility. Human rights lawyers and activists worked hard to establish a consensus regarding the extent of culpability: anyone involved in violations of human rights—be he a commanding officer, an authorizing politician, and/or unranked officer or agent of the state—must be held accountable.

With this proposed immunity, not only will lower ranking (or unranked) agents receive virtual immunity, but even lawyers who provided the legal cover for violating the U.S. Constitutions and International Law, like John Yoo, may escape any significant legal inquiry. It is especially important that ambitious lawyers like Mr. Yoo are held to account for their uncritical and biased reading of the law to meet political goals. Their legal cover jeopardized the standing of the Constitution and compromised this nation’s commitment to civil and human rights. It can be argued that lawyers who are ideologues are just as much a threat to the Constitution as any enemy (foreign or domestic) and for this reason, they should be held responsible for their carelessness with the law which resulted in the undertaking of criminal acts such as torture.

Equally disturbing is the Obama administration’s decision to block the release of all documents related to torture and inhumane treatment of prisoners. As a presidential candidate, Barack Obama took issue with the argument advanced by other politicians that certain things ought to be kept “secret.” He adopted the view held by many other legal scholars that argued that, in a mature democracy, citizens could and citizens should be trusted and allowed access to information that would allow them to vote on substance not just style. Given this initial position, I can only surmise that party interests and political considerations are behind this change. There is no outright convincing argument that would justify blocking the release of all documents related to cases of torture and abuse of POWs. The pictures that were released already provide a good context to the extent of abuse and classifying the rest of the documents could, in fact, open the door to speculations and assumptions. In short, given that the public is now aware that illegal activities were sanctioned and practiced, only full disclosure and full transparency can help close this terrible chapter.

For the long term interest of the country, for the interest of keeping the hope for millions of victims of human rights abuses around the world, for the preservation and protection of a culture of respect to human dignity, this administration—more than any other—is asked to empower the institutions that have been the heartbeat of the human rights traditions: courts, NGOs, watchdog entities, civil society institutions, and free and independent press. This is accomplished by allowing the public full and unfettered access to critical information. Government actions about these matters in the form of executive orders are as temporary as Band-Aids; they mask the real wounds that must be treated properly, appropriately, and by the appropriate institutions.

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Prof. Souaiaia, faculty member at University of Iowa, teaches and writes on human rights.

Source: HUQUQ Journal