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Home Thoughts From Abroad
Virginia Brown Keyder
Lecturer in Law, Bilgi University
Istanbul, TURKEY
JURIST Chief Correspondent

Last week I had the opportunity to meet members of a delegation to Turkey composed of US judges, diplomats and bureaucrats, drawn together for the purpose of promoting human rights, and in particular the right to freedom of expression and freedom from torture, in Turkey. This is not a new endeavor, though events of the past few months have had the effect of emphasizing the importance of the relationship Turkey has with the US, given its 'geopolitics', its good relations with Israel, and the status it enjoys in the US as a democratic Islamic country surrounded by fundamentalism and dictatorship.

Like many countries, Turkey is engaged in a program of judicial reform. The problem of modernizing the training of judges is particularly acute here, because Turkey is a candidate for membership in the European Union. The task of digesting the body of law required to meet the Copenhagen Criteria in terms assuring judicial recognition of citizens' rights against a strong state unaccustomed to even acknowledging such rights is huge. Further, the job of incorporating the entire body of European Community law into local law and planting it in the minds of an already undertrained and understaffed judiciary would be daunting to the most well endowed European country. It still remains beyond the capacity of many current members of the EU, who got in while it was sufficient to commit to future change, rather than, as is required of the current roster of members, to achieve it as a price of admission. It is no surprise then that the Turkish judiciary appears, for the most part, to be open to all the help it can get.

The task this delegation set for itself involves the possibility of organizing seminars around the country to acquaint judges, both current and future, with what is basically a new mandate - that of recognizing freedom of expression even if the content of what is expressed is critical of the state, and of enforcing existing laws which prohibit torture and mistreatment of prisoners and suspects by the police and other men in uniform. The US feels, and rightly so, that its own interests cannot adequately be served by a state which ignores human rights, and which might risk being kept out of the EU on these grounds. More importantly, perhaps, to the US, is the fact that its globalizing efforts, and in particular, the desire to turn the world into a functioning market for US companies and goods, requires a world composed of national legal systems that are, and that appear to be, free of arbitrary, isolationist rejection of the rule of law.

Arguably, the US is in a good position to foster such goals. As the proud owner of the oldest constitution in the world, and the first to set out in no uncertain terms, the rights of individuals against arbitrary and excessive power of the state, it has the most experience in assuring that the fruits of these rights are delivered intact. Though hindered considerably in its influence and reputation by the lawlessness of the Cold War era, domestic events of the past ten years and in particular of the past year, up until September 11, when it was attacked by as yet unidentified mass murderers (considerable evidence exists to the effect that many of the named suspects reported to have perished in the flames are still alive and well, hence the use of 'unidentified') have done much to reinforce its reputation as a society characterized by a fundamental belief in civil, if not always human, rights.

So when approached as a "local foreigner" or "foreign localer" (I think both I and my interlocutor would dissolve in the illustrious pool of laughter if I were ever called an "alien") for an opinion, based on long years of living and teaching and writing about law in Turkey, I was delighted to offer my meager reflections to such a distinguished, well intentioned and generally good group of people.

As an "if truth be told" starter, however, I felt compelled to state that the US had, in my opinion and in the opinion of many in Turkey, and in fact throughout the world, lost much of the good will, admiration and respect it once enjoyed, due to the conduct of President Bush's war on Afghanistan, his fundamentalist Christian rhetoric and the blatant violation of the rights not only of those of questionable status in Cuba, but also of the hundreds of still unnamed detainees held in US jails. Add to this to the Patriot Act and other laws designed to by-pass the constitutional protections afforded to a wide range of suspects and detainees, citizen and non-citizen alike, and one begins to understand globalized skepticism. The military tribunals and other legal fantasies have resulted in America's only real ally, Britain, asking that its citizens be tried at home rather than being subjected to American justice. France has offered to send legal assistance to its citizen on trial in connection with September 11, for fear that he won't have access to a serious legal defense in the US. One Afghan warlord named Zahir told The Financial Times (as reported on December 18) that he is following the Geneva Conventions to the letter regarding rights of prisoners of war in order to draw a distinction between his behavior and that of the US. Cap it off with the official and unofficial twitterings about whether torture is actually OK under some circumstances after all, and it is not hard to understand how the US has gone from being a country respected for its legal structure by aspiring democracies to one respected for jettisoning a troublesome constitution by dictators saying I told you so.

Not only foreigners have been targeted in the new environment. Young people are especially hard hit as well. The silent introduction of a bill to reintroduce military conscription (H.R. 3598, which, by the way, still requires religious membership or belief - no atheists who just happen to oppose killing need apply), and the especially nasty treatment meted out to immigrant youth who would fall within the bounds of the draft law while suffering a dramatic loss of rights in civilian life only emphasize a disregard for youth, which has in general come to characterize American society. In a world where a substantial portion of the population (except for developed countries, whose population will be heavily dependent on their dwindling youth population in a few short years) is under the age of 20, this is not good policy.

Similarly, the number of foreign students who have left the US, out of fear and intimidation, both from other students and from a government who treats them like criminals, has yet to be counted. Targeted as ungrateful recipients of American generosity, the skills and excellent preparation of these students, often far above that of their US counterparts, and the contribution they have made to higher education (where they form the majority of graduate students in many fields) has been quickly forgotten. One student home here for the holidays, described how in early October a classmate at an Ivy League school blithely remarked in class that the US should bomb Afghanistan in any case because it was simply no of use to America. These students, once recognized as tomorrow's world leaders, diplomats, scholars and industrialists have overnight become potential criminals abusing America's kindness. This too is not good policy.

Leaving nothing to chance regarding the US view of international law, the American Servicemembers Protection Act (ASPA) adopted by the Senate on December 7, 2001, is designed to thwart any possibility of the International Criminal Court (when it comes into effect, as indeed it will), having any effect (I'm not one for curling up with a juicy piece of legislation, but for sheer extraterritoriality, this is a must read).

And neither last nor least was the pitiful attempt to cast the anthrax debacle as an act of foreign terrorism, and the abandonment of the entire issue once it was fairly well established that it was an inside job (a Texan inside job at that - see "Anthrax tied to Texas, not Iowa" by Joby Warrick of the Washington Post). No terrorism please, we're Americans.

To this unfortunate state of perception, the Enron affair has become the frosting on the cake, particularly in light of the almost comical greed it evinces, but which the world has become accustomed to, the oil connection (documented exhaustively elsewhere), the human rights violations, particularly in India, the energy scandals in the US, and the special agreement tiptoed into last year between the US and the Cayman Islands. While money laundering statutes were imposed on all countries who would hide funds of criminals, dictators, drug lords and bribe takers, the Cayman Islands, home to the money of Enron and its ilk (to the tune of $800 billion of Americans' deposits, according to the Federal Reserve (New York Times (Dec. 8, 2002), was subject to a voluntary agreement to cooperate with US tax officials by 2004, if you please.

So I had to tell my new friends it didn't look good, and if they wished to be taken seriously, they had to be straight. Judges are no dummies. In fact, with the internet, (and I must make a plug here for my favorite sites, after JURIST of course: www.cursor.org, www.zmag.org, www.commondreams.org, www.whatreallyhappened.com, www.buzzflash.com, www.findlaw.com [excellent commentaries] www.law.com) nobody is a dummy any more unless they want to be. Ever practical, the response was, "So, then what can we do, assuming we have, as you say, 'lost credibility'". I thought about this, and with embarrassing esprit de l'escalier, I came up with the following: Come clean. Talk about what you still have, talk about how the system works, ideally, and in practice. You may not be popular with repressive states (well, you may be less popular), but what have you got to lose.

Two distinct legal developments over the past year come to mind of which those Americans who value their constitutional traditions may well be proud: first (and I have to admit here to an abiding admiration of the federal judiciary as the hope of the country, possibly alongside Medecins sans frontiers even the salvation of humanity) there are the federal court decisions enforcing constitutional protections against all odds, and secondly, the availability of legal remedies for those who suffer from arbitrary measures carried out in the name of this "war on terrorism". In the first category is the protection to non-citizens that the federal courts continue to affirm. This is of crucial importance as the executive branch increasingly targets this group. In February of 2001, Judge Leonard Sand in the Federal District Court in Manhattan, ruled that foreign suspects interrogated abroad (and this was in connection with the embassy bombings in Africa) are entitled to the protection of the Fifth Amendment and that Miranda warnings must be given to foreign suspects interrogated abroad by American agents (see NY Times, Feb. 17, 2001). In December, a federal appeals court in Philadelphia, relying on a June 28, 2001 USSC decision (Zadvydas v. Davis, No. 997791), held in Patel v. Zemski, No. 01-2398) that 'aliens' are protected against unlawful detention in the US. These decisions send to the world the important message that, contrary to widely publicized procedures outlined in connection with President Bush's 'military tribunals' and provisions of the USA Patriot Act, civil liberties are alive and well in the US. Perhaps even more importantly, at a time when freedom of expression has fallen under the dark shadow of self-censorship to a degree rarely seen in American history and presidential requests for secrecy uber alles are at an all-time high, these decisions are an affirmation that law and reason are still capable of sheltering suspects from the irrationality of religious fundamentalism and ultra-nationalism, and the relentless sloganeering backed by bans on actual information upon which both rely. These two decisions are illustrative of what citizens around the world have come to expect from the country with the oldest constitutionally protected human rights regime in the world.

In the second category is the timid beginning of what promises to be a tide of actions for damages suffered by those targeted by recent government actions carried out in the name of national security, but basically built on that bugaboo of American political life: fear of foreigners. The Egyptian student arrested in San Diego and recently released might have the honor of being the first individual to sue for damages (New York Times, January) based on being held in detention based on "strong evidence", which evaporated upon closer scrutiny. .

More recently is the first action filed by an organization, the Muslim charity Global Relief Foundation, against the U.S. government in U.S. District Court in Chicago, for violation of constitutional rights by freezing its assets and seizing its records (Chicago Tribune, January 29, 2002). This charity, one of the 168 individuals and organizations whose asset have been frozen, denies any link to terrorists. The lawsuit names five top federal officials in charges which include conducting an unreasonable search and seizure and conducting a "smear campaign" in the press.

The actions of the ACLU are also of crucial importance in maintaining America's image abroad. Countering the 'secret government' that President Bush seems to want more than anything to create, the action filed on December 5, 2001 by the ACLU, the American-Arab Anti-Discrimination Committee and other organizations demanding information concerning the identity and location of the detainees is a beacon to all those who would like to believe the American justice system is still intact .

Also of relevance to any US efforts to foster freedom of expression is the January 29, 2002 decision by US. District Judge Ronald Whyte in California to the effect that two Santa Cruz women have rights under the Constitution to hang banners saying "At What Cost?" next to American flags an overpass. The action was opposed by the California Department of Transportation.

Finally, we have the unprecedented decision by the General Accounting Office to sue the White House for access to documents on the President's energy task force which may shed some necessary light on what looks to be the nemesis of the adminstration.

This is law at work and these examples are, I hope, only the tip of the iceberg. Whatever else globalization has or has not achieved, it has created a network of legal information, and a cadre of law-savvy journalists. What happens in the US is known instantaneously around the increasingly English-understanding world. Everyone follows legal developments in the US, for better or for worse. It is the potential for justice and the belief in and protection of individual rights evinced in these actions, news of which is available throughout the world, that has made America the envy of the world. And it is the same network that could render its reputation in the world of justice unsalvageable.

None of this is meant to slight in any way the terrible crimes that took place on September 11, and I personally believe this was in fact a series of terrible crimes, having nothing, yet, to do with the concept, legal or otherwise, of war. It's hard to conceptualize a war where there is both no state on the other side and where there are virtually no 'lawful combatants'. Similarly, and international law seems fairly clear on this, the attacks on Afghanistan have scant legal justification as self-defense. Remember The Caroline? Daniel Webster? The requirement that self-defense be "instant, overwhelming, leaving no choice of means, and no moment of deliberation"? Given that the war rhetoric appears to have considerable sticking capacity, however, it is at least hopeful that Colin Powell's suggestion to accept the application of the Geneva Conventions may yet get the audience it deserves.

Whatever we believe, and hope to know in the near future, about what happened on September 11, it is important to remember that a nation, like an individual, is characterized by how they respond to such an event, not by the fact that they have been a victim. Revenge and reciprocal crimes designed to defend one's honor have no place in a "civilized" country devoted to the rule of law - the very concept of law has developed in an effort to eliminate revenge and honor crimes from contemporary society.

It's hard to say that we will ever, as a nation, regain the moral high ground we may once have had. We had it because people around the world wanted what we had - not material goods, though yes, they might have been nice too, but rights enforceable at law. Things seem to be going from bad to worse however, and that the American people find President Bush's antics OK by them will, contrary to popular belief, do nothing to restore the honor lost in the aftermath of September 11. As a concept, honor has at least as much to do with how people perceive you as it does with how you perceive yourself. Whatever the president says, it is our Constitution that defines us as a people. As Americans, the Constitution is who we are when we're at home, and when we're abroad. Without it, we begin to look like thugs. People will fear Americans. They have already begun to fear Americans as their list of potential targets sways from east to west according to Washington's whim, but fear and respect are simply not the same thing. Fear is useless when you want to influence people. Any school child knows that brutality breeds brutality, and any grown-up should know that no "war on terrorism" can ever be successful. Those we call 'terrorists' have made it amply clear that they feel they have nothing to lose.

February 1, 2002

Virginia Brown Keyder, a New York lawyer, is currently a law lecturer at Bilgi University, Istanbul, Turkey.

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