Taking the (ir)responsibility for Western wrongs: what the West owes humanity

Among all this political correctness, political lies and widespread citizens’ apathy and moral stagnation, it sometimes feels good to hear a provocative voice that, if it cannot shake up the establishment, might at least be able to shake up a bit the public debate. Today that a first series of articles went online commemorating the approaching 10^th year anniversary of 9/11, I want to be this provocative voice: It is time for the West to stop pretending as if we were the only victims of 9/11 and that non-Western lives are worth less than Western ones. And as a first step of this enlightenment, Guantanamo has to go.

Policy options are simple: Give every Guantanamo detainee that you cannot legally convict of a crime in a US federal court based on untainted evidence obtained according to criminal justice standards acceptable for a liberal democracy a “US Greencard”. Yes, the right to permanently live on US soil among US citizens with the prospect of one day acquiring US citizenship. You think I am joking? Hardly. How to transfer the detainees in the absence of budget allocated by Congress to such an action? Have Europeans pay for the transfer of detainees to the US mainland. Paying is what we seem to be capable of best anyway! Too ambitious? Well, alternatively I could suggest have Europeans accept the transfer of Guantanamo detainees to European soil granting them a right to live there freely if we cannot legally detain them subject to the condition that the US accepts the institution of an effective UN Special Tribunal for the US War on Terror to try low-level and high-level US citizens suspected of having committed War Crimes and Crimes against Humanity and subject to the condition that the US agrees to fully cooperate with such a tribunal.

Why am I suggesting this? Because. Because the cheering and chanting of Americans in the streets of Washington DC and New York on May 1 to celebrate the death of Osama Bin Laden shows a twisted sense of justice. Because in mid April 2011, the Red Cross released a Survey that found that 59% of Americans between the age of 12 and 17 “believe there are times when it is acceptable to torture the enemy.” The survey was released just about a week after it was known that the Obama administration would fail to try the alleged conspirators of the 9/11 attacks in a civilian court and that trials are now due to start at the disgraced US military detention facility at Guantanamo Bay, Cuba, instead. At the same time and related to this, news confirmed the Obama administration’s intention to close disgraced GITMO not by relocating the detainees to US soil, but by convincing other States to take them in in return for other favors such as money, the lifting of visa bans and others. It seems ironic that almost at the same time new secret documents were released by Wikileaks that show the unprofessionalism with which US interrogators tried to gain valuable intelligence from Guantanamo detainees by using techniques tantamount to torture that would be considered invalid if submitted for scrutiny to a civilian court.

Finally, another blow to justice was given by the US Supreme Court’s refusal to hear an appeal from Chinese Muslims whose detention at Guantanamo could not be ended due to a lack of an agreement on where to settle them. But note, this despite the fact that their detention was recognized as being “without lawful cause.” Confronted with these defeating news one has to conclude that Guantanamo detainees are apparently relegated to a desperate fate in limbo in the absence of countries willing to take them in. They are going to stay on the infamous military base. Not only that, but with US President Obama’s determination to “look forward, not backwards”, they do not even have a chance of ever seeing their alleged torturers be prosecuted let alone condemned if found guilty since no one in the US who is in a meaningful position seems to advocate for putting US soldiers and high-ranking ex-Bush administration officials on trial for having engaged in and promoted what has been euphemistically renamed “enhanced interrogation techniques”. At the same time, the consensus of the political elite to look forward is not even countered by anything that could be defined as an American public eager to look backwards.

While feeling sorry for all those Americans that look at the above-mentioned developments with the same disgust as I do, I cannot help but to feel that at some point in time American political culture must have gone completely morally bankrupt. How can a presumed-to-be enlightened people tolerate injustices they would never allow to happen to their own kind? As I hinted at in a post commenting on Osama bin Laden’s death, it seems as if the American people has become completely self-absorbed by an antagonizing civic religion that foments an uncritical image of an unjustified war perceived to be launched by the evil “them” against the good “us”. This has to stop. Americans need to understand that crimes against humanity are being perpetrated also in their name. They have to recognize that justice requires them to make up for it and pay the consequences for their country’s action. They should understand that Americans too, have to submit to the laws and recognize that even non-Americans and non-Whites deserve respect for their lives and dignity as human beings. And it is time for the world, and especially America’s Western allies to get this message across to them to cause a course correction. If we fail to do so, I provocatively dare to say, we can unfortunately only expect worse to come from the other side of the Atlantic now that it’s suffering from what some have called “imperial overstretch, perpetual war, and insolvency” and a polarization of their political landscape.

Admittedly, I have been particularly harsh here and this is not to say that Europeans are saints. On the contrary, our absolute and unquestioned allegiance to the Unites States, our cowardness to find our own European ways made us partake in US actions for which also Europe should seek moral redemption. It is time for Europe to show the world that we are not just good at symbolically and hypocritically condemning American wrongs that we in the best case condoned, in the worst case outright welcomed. Indeed, Europe made itself a complicit when it pretended not to see the secret US flights and black sites on European soil, used Guantanamo detainees as a bargaining chip, and failed to act in diplomatic protection of its own citizens illegally detained there, when some European countries (e.g. Spain, or Germany) backed off from prosecuting American war criminals and torturers or to otherwise try to force the US to close the detention facility as well as reinstate the rule of law. With this Europe bears a share of the guilt for the crimes committed against Guantanamo detainees, at least some guilt for willful blindness and acquiescence. And as such Europe too should pay – not just with its money but with a commitment to make the right choices in the future, to call the US up on its actions by offering constructive though outrageous policy solution, even if this sets us on a path of confrontation with our closest ally. If you take the time to think about it, a feared but unlikely-to-really-happen deterioration of our strategic transatlantic partnership is a little price to pay in exchange for at least a tiny little bit of more global justice.

More entries to follow-up on this more in detail will follow soon.

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Misunderstanding Arizona: II) the unfree foreigner

As mentioned in my earlier post, Arizona has enacted a new law, the SB1070, which requires foreigners but not US citizens to always carry an ID card on them as failure to do so constitutes a crime, and which allows any law enforcement officer during a legitimate stop of a person to check that person's immigration status if there is a "reasonable suspicion" that he or she is in the country illegally. The law has created an intense debate and several lawsuits. One of the main issues heatedly debated by the American public opinion has been the question of what constitutes a "reasonable suspicion", and how this cannot not result in racial profiling and in hassles especially for foreign-looking Americans. In that sense the SB1070 has been accused of being a racist law. The law - opponents claim - will deny (irregular) immigrants the "equal protection of the law" as mandated by the US constitution and make communities unsafer rather than safer. Regardless of the merits that this criticism might have, unfortunately no one seems to elaborate it enough or to bring the charge of racism or hostility towards foreigners (which seems to be a more appropriate term) against the very idea that underlies the law, namely that only a certain part of the population has to carry an ID card on them at all times lest to commit a crime. No one of the public opinion seems to question the basic fact that only foreigners be imposed such a burden. (Actually I came across one interesting and read worthy exception even though the author's reasons might be more connected to the effectiveness and racial profiling arguments, which I explored in my earlier post.) Could the reason for this be that SB1070 in many parts just repeats federal law? Indeed, many parts that SB1070 is criticized for are not that different at the federal level. So maybe rather than criticizing SB1070 it would be better to first examine what the federal law says before accusing Arizona of racism.

In the US, US citizens are not required to have or carry an ID card, and a national ID card system does not even exist. In the meantime, for foreigners, the Immigration and Nationality Act Section 264 (INA §264), as consolidated by 8 USC 1304 (e) and which goes back to the Alien Registration Act of 1940, (for an explanation, see here), foresees that:

"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."

Hence, be it according to federal law, be it according to the Arizonan law, the situation that is of our interest here is the same: Whereas US citizens under both legislations do not have the duty to have, let alone carry along an ID card, aliens do not only need to have an ID card, but they have to have it in their own personal possession at all times. More importantly, failure to do so does not just constitute a civil infraction sanctioned by some administrative fine, such as crossing a red light or speeding, but constitutes a misdemeanor, i.e. a crime. As such, I assume, it will result in an entry in the alien's criminal record. This seems like a huge imbalance of rights in favor of US citizens and like an obviously unequal treatment. I assume few people would disagree. Yet, can this sort of discrimination really be called racism?

People all over the world seem to accept the notion that foreigners be granted less rights than citizens in certain aspects. In that sense, few people would think that restricting voting rights to citizens constitutes racism. Yet, the reason for this is because the rights in question are political rights which by their very definition are reserved to people belonging to a certain group. But the problem with the Arizonan law and the US federal law that the former replicates is that none of them is about political rights. They are about rights that in American belief should safeguard an individual's life from undue interference from the government, and ensure that one be free to live his or her life. They are about privacy rights. This is also something that the German Minister of Interior Thomas de Maiziere explained to the European public when defending the US commitment to privacy protections. He was cited as explaining that:

"While Germans are perfectly comfortable with showing their ID cards with all personal data to a police officer, [...] the very idea of such a document is outrageous to Americans and Britons." (emphasis added)

And the engrained link between privacy rights and the opposition to ID cards was also confirmed by the US ambassador to the EU William Kennard when he explained in an interview,

"America is seen by some as not caring about privacy as much as those in Europe. But this portrayal is a caricature [..] When I arrived in Belgium a few months ago I was told that I had to have an identity card and that I would have to carry it with me everywhere. This is something that would be unthinkable in the US." (see page 7; emphasis added)

Yet, it is not unthinkable – not if you are non-American. And this is where the charge of racism comes in: Privacy rights and fundamental freedoms are conceived of as human rights and have their roots in the Enlightenment tradition that continues to shape both Europe and the US. As such, there is no legitimate distinction that can be made between citizens and non-citizens: If Americans don't want to be obliged to carry along an ID card as this might expose them to governmental tyranny and infringe on their fundamental freedom, then why do their representatives impose this on others? This is also in contradiction to the "Golden Rule", widely accepted by all major civilization as a compass to what can be considered moral, and which in its negative formulation states: "Do not do to others as you would not have them do to you." In that sense, it is precisely because of the very meaning Americans themselves attach to ID cards, whose rejection is perceived as a guarantee of their fundamental freedoms, that the Arizonan and the US legislation can be accused of racism: Why should foreigners not be allowed to lead a life free from undue governmental interference? Why is their private and undisturbed life not worthy of protection? Civil and privacy rights might be conceived of differently in different places, but they can't differ on the basis of what type of human being you are. Yet, this is what the current legal framework in the US – be it SB1070 or the INA §264 – does, and why it appears to be racist: it constitutes an illegitimate discrimination insofar as it restricts certain human rights to a certain category of human beings only. That such a discrimination has no foundation was also recently recognized by U.S. District Judge Susan Bolton when she blocked parts of the SB1070 before they could enter into effect, when she judged that the law "burdens lawfully-present aliens because their liberty will be restricted while their status is checked."

So let's be clear, defenders of Arizona are right when they say that for the most part, SB1070 just repeats federal law and that the harsh way in which Arizona is currently criticized is unjust. I agree, and I want to defend Arizona: its legislation might be considered racist, but we shouldn't apply double-standards. Everyone who accuses Arizona's legislation of racism, should also pick a bone with the related US legislation. It is a burden to have to carry an ID card on you at all times under the threat of criminal punishment, and it is not clear why this burden should be imposed only on a certain part of the population (especially since only an indiscriminate application of that law to everyone would make the law an effective tool for national security and in the fight against illegal immigration as seen in my earlier post).

Maybe some of you can find some reasons or don't think it is a burden to carry an ID card around, but in any case some people have the choice, while others don't. It is a pity that in the proud land of the free, some people are simply freer than others.