Exceptionalism again: The bush administration, the "global war on terror" and human rights

Law and History Review

Volumn 26, Issue 3, 2008, Pages 707-725

  Foot, Rosemary ^a  

^a Department of International Relations ^*

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[No Author keywords available]

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EID: 60950618789     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000002625     Document Type: Article

References (50)

1. Secretary General, Kofi Annan, Harry S. Truman Library, at http://www.un.org/apps/ sg/sgstats.asp?nid=2357 (11 Dec. 2006)
2. statement by the UK Attorney General, "UK told US won't shut Guantanamo" at http://news.bbc.co.uk/l/hi/uk-politics/4759317.stm (11 May 2006).
3. Michael Ignatieff, ed., American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2005), 2.
4. The Human Rights Committee stated with reference to US signature of the ICCPR: "The Committee regrets the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted what is already the law of the United States." Quoted in William A. Schabas, "Spare the RUD or Spoil the Treaty: The United States Challenges the Human Rights Committee on Reservations," in The United Stales and Human Rights: Looking Inward and Outward, ed. David P. Forsythe (Lincoln: University of Nebraska Press, 2000), 111.
5. Andrew Moravcsik suggests that four forces are responsible for America's ambivalent and unilateralist human rights policy: the stability of its democracy; its geopolitical power; ideological conservatism; and political decentralization. See his "Why Is U.S. Human Rights Policy So Unilateralist?" in Multilateralism and U.S. Foreign Policy: Ambivalent Engagement, ed. Stewart Patrick and Shepard Forman (Boulder: Lynne Rienner, 2002), 345-76.
6. On different rules, see W. Michael Reisman who argues that America's role as the "ultimate custodian of international order" may require it "to act extra-legally or supra-legally with respect to those [international] institutions when an urgent issue of minimum world public order is at stake." "The United States and International Institutions," Survival 41 (Winter 1999-2000): 63-64.
7. On torture, see Rosemary Foot, '"Torture: The Struggle over a Peremptory Norm in a Counter-Terrorist Era," International Relations 20.2 (2006): 131-51;
8. and Tim Dunne, '"The Rules of the Game Are Changing': Fundamental Human Rights in Crisis after 9/11," in International Politics 44.2/3 (March/May 2006), esp. 276.
9. Stewart Patrick, "Multilateralism and Its Discontents," in Multilateralism and U.S. Foreign Policy, ed. Patrick and Forman, 18. Michael Lind sees this as more sectionalist than nationalist. George W. Bush represents, he states, the "unilateral militarism" of the Protestant Religious Right in Texas and in other southern states. See his Made in Texas: George W. Bush and the Southern Takeover of American Politics (New York: Basic Books, 2003).
10. John R. Bolton, "Should We Take Global Governance Seriously?" Chicago Journal of International Law 1 (Fall 2000): 206 and quoted in John Gerard Ruggie, "American Ex-ceptionalism, Exemptionalism, and Global Governance," in American Exceptionalism and Human Rights, ed. Ignatieff, 324.
11. Harold Hongju Koh, "America's Jekyll-and-Hyde Exceptionalism," in American Exceptionalism and Human Rights, ed. Ignatieff, 112.
12. Seymour Martin Lipset sees the classic emphases of exceptionalism as "liberty, egalitarianism, individualism, populism, and laissez-faire." In American Exceptionalism: A Double-Edged Sword (New York: Norton, 1996), 31.
13. Note also the title of chapter one of Anders Stephanson's book, Manifest Destiny: American Expansionism and the Empire of Right (New York: Hill and Wang, 1995): "Choice and Chosenness, 1600-1820." Stephanson argues that from the very beginning the United States "was a sacred-secular project, a mission of world historical significance." Ibid., 28.
14. Edward C. Luck, "American Exceptionalism and International Organization: Lessons from the 1990s," in US Hegemony and International Organizations, ed. Rosemary Foot, S. Neil MacFarlane, and Michael Mastanduno (Oxford: Oxford University Press, 2003), 27.
15. "The National Defense Strategy of the United States of America," March 2005, at http://www.comw.org/qdr/fulltext/0503nds.pdf (accessed 30 Dec. 2006).
16. For one of many discussions of this, see Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules (London: Allen Lane, 2005), esp. chap. 7.
17. International Herald Tribune (18 Sept. 2006), 8, editorial.
18. David Luban, "Liberalism, Torture, and the Ticking Bomb," in Virginia Law Review 91 (2005): 1425-61.
19. For other examples, see Foot, "Torture," esp. 138.
20. Sands, Lawless World, 205.
21. See Rosemary Foot, "The United Nations, Counter-Terrorism, and Human Rights: Institutional Adaptation and Embedded Ideas," Human Rights Quarterly 29.2 (May 2007): 489-514.
22. Adarn Roberts, "Human Rights Obligations of External Military Forces," in The Rule of Law in Peace Operations: Recueil of the International Society for Military Law and the Law of War, 17th International Congress, Scheveningen (16-21 May 2006), ISMLLW, Brussels, 2006, 433.
23. For a fuller discussion of occupation law, see his "Transformative Military Occupation: Applying the Laws of War and Human Rights," American Journal of International Law 100.3 (July 2006): 580-622.
24. Roberts, "Human Rights Obligations" 435.
25. John L. Gaddis, Surprise, Security, and the American Experience (Cambridge: Harvard University Press, 2004), 13.
26. Walter Russell Mead, Power, Terror, Peace, and War: America 's Grand Strategy in a World at Risk (New York: Vintage Books, 2004), 115.
27. Robert Jervis, American Foreign Policy in a New Era (London: Routledge, 2005);
28. Peter J. Katzenstein, "Same War-Different Views: Germany, Japan, and Counterterrorism," International Organization 57 (Fall 2003): 740-41.
29. Bush quoted in Anatol Lieven, America Right or Wrong: An Anatomy of American Nationalism (London: Harper Perennial, 2005), 52.
30. Richard Crockatt, America Embattled (London: Routledge, 2003), 9.
31. Steven C. Poe, C. Neal Tate, and Linda Camp Keith, "Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993," International Studies Quarterly 43.2 (1999): 291-313.
32. Julia Sweig comments on some of these instances in Friendly Fire: Losing Friends and Making Enemies in the Anti-American Century (New York: Council on Foreign Relations, 2006), 17 and 26.
33. See also Stephen Kinzer, Overthrow: America's Century of Regime Change from Hawaii to Iraq (New York: Times Books, 2006).
34. "Detention and Interrogation of Captured 'Enemies': Do Law and National Security Clash?" transcript prepared from a tape recording, the Brookings Institution, http://www. brookings.edu/com/events/20051212judicial.htm (12 Dec. 2005), 13-21.
35. For the views of a powerful voice within the OLC between 2001 and 2003, reflective of Berenson's perspective, see John Yoo, War by Other Means: An Insider's Account of the War on Terror (New York: Atlantic Monthly Press, 2006).
36. Vice-President Cheney quoted Roosevelt as stating during WW II: "Modern warfare against treacherous enemies is a dirty business. We don't like it-we didn't want to get in it-but we are in it and we're going to fight it with everything we've got." Remarks at the Veterans of Foreign Wars National Convention (28 Aug. 2006) at http://www.whitehouse. gov/news/releases/2006/08/20060828-4.html.
37. This phrase is typical of the language used in major Bush administration speeches. This one is taken from Bush's address to the American Legion National Convention, Salt Lake City (31 Aug. 2006) at http://www.whitehouse.gov/news/ releases/2006/08/20060831-l. html. Secretary of State Colin Powell argued against the Gonzales claim that Geneva did not apply. See Sands, Lawless World, 154.
38. Sweig, Friendly Fire, 27 and 160. Paul Wolfowitz, then deputy secretary of defense, reflected this myopic point of view when he said in February 2003, "we're not talking about the occupation of Iraq. We're talking about the liberation of Iraq . . . therefore, when that regime is removed we will find [the Iraqi population] . . . basically welcoming us as liberators." Quoted in Roberts, "Transformative Military Occupation," 608.
39. Kathryn Sikkink, Mixed Signals: U.S. Human Rights Policy and Latin America (Ithaca: Cornell University Press, 2004), 113, quoting the memoirs of former US Secretary of State Henry A. Kissinger.
40. Peter J. Katzenstein, "Same War-Different Views," 740-41.
41. Audrey Kurth Cronin, "How al-Qaida Ends: The Decline and Demise of Terrorist Groups," International Security 31.1 (Summer 2006): 7, 39, and 46-47.
42. Cronin, "How al-Qaida Ends," 45.
43. What the existence of this Convention can mean for signatory states, at least those that have developed national legislation based on the Convention, is illustrated by the Al-Skeini case, heard before the UK Court of Appeal in December 2005. Baha Mousa died in UK custody in Basra, and the family accused British troops of having violated the European Convention on Human Rights and the UK Human Rights Act. The Court of Appeal concluded that because the UK was "exercising extraterritorial jurisdiction" the case could come before a UK court. See Roberts, "Transformative Military Occupation," 598-99.
44. Julie A. Mertus, Bait and Switch: Hitman Rights and U.S. Foreign Policy (London: Routledge, 2004), 211-14.
45. Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1993), 268, n. 9.
46. Dunne, '"The Rules of the Game Are Changing,'" 271.
47. See in particular, Elizabeth Borgwardt, A New Deal for the World: America's Vision for Human Rights (Cambridge, Mass.: Belknap Press, 2005), Intro. and chap. 1.
48. Foot, "Human Rights in Conflict," Survival 48.3 (Autumn 2006): esp. 115-19.
49. A point made in Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge: Harvard University Press, 1995), 25-26.
50. Human Rights Watch 2006, quoted in Dunne, '"The Rules of the Game Are Changing,"'281.