Human Rights and Counter-terrorism in America's Asia Policy

Rosemary Foot

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781136055768
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This book examines the effects of the terrorist attacks on New York and Washington of 11 September 2001 on America's human rights and counter-terrorism policies towards a number of countries in Asia. Five countries have been chosen for examination, divided into two front-lines states (Pakistan and Uzbekistan), two second-front countries (Indonesia and Malaysia), and a third-front country, China. The paper also looks at changes in US domestic legislation and its treatment of prisoners at Guantanamo Bay and elsewhere in order to analyse the extent to which the US promotion of an external human rights policy might also have been compromised by its own legislative changes as a result of the struggle against terrorism.

The paper concludes that the attacks on US territory, overall, have constrained America's willingness and capacity to promote an external human rights policy with respect to these five countries. However, some attention - especially at the rhetorical level - to these countries' human rights records has been retained to differing degrees among the five states. This degree of difference is not explained entirely in reference to a country's perceived centrality to the struggle against terrorism. It depends on the extent to which the US executive and legislative branches are united - either singly or in combination - in their disapproval of a state's record, or in their understanding about how best to reach the policy goals that are sought.

Chapter 1
US Foreign- and Domestic-policy Realignments After 11 September

The US response to the events of 11 September has been notable for its comprehensiveness. Budgetary, bureaucratic and legislative changes, each with far-reaching ramifications, have been made with remarkable speed. The military budget, in particular, has risen substantially. Set at $296.2 billion for Fiscal Year (FY) 2001, the request for FY03 was for $396.8bn - the largest annual increase since US President Ronald Reagan entered office in 1981 - with the expectation that it will grow to $469.8bn by FY07.¹ Whereas in 2000, the US spent as much on its military as the next eight countries combined, in 2001, that had broadened to the next 15, and, in 2002, to the next 20.² Within six weeks of 11 September, the US Congress had passed a USA Patriot Act that gave sweeping new powers to various US governmental agencies in the areas of surveillance, intelligence and detention. The congressional bill, passed in November 2002, that created a Department of Homeland Security, has brought together some 170,000 US employees from 22 federal agencies, representing most of the main elements of domestic security.³

Foreign policy

The US decision to take the fight against al-Qaeda to Afghanistan and to overthrow the Taliban regime led it to forge new alignments in Central Asia, most notably with Pakistan and states such as Kyrgyzstan and Uzbekistan. These countries provided much vital assistance for that military campaign and were quickly rewarded with economic aid - directly or via the IFIs - and military cooperation. Whereas before 11 September, the Department of Defense had no military bases in Central Asia, some six months later it had access to over a dozen. The requirements of intelligence sharing, assistance with freezing terrorist assets, and the need for coordinated policing resulted in a deepening of exchanges with many other governments in Asia, including China, Indonesia, Malaysia and the Philippines.

Singapore also proved to be an important source of intelligence on active trans-regional terrorist groupings - actually foiling a plot in December 2001 to launch attacks on US and other Western targets. In addition, it provided practical assistance in facilitating air-to-air refuelling and offered port facilities to US carrier battle groups as American forces took on the Taliban and al-Qaeda.

Well beyond these practical requirements of the counterterrorist struggle, the US has found support from such states, especially those with large Muslim populations, potentially useful in trying to project this war as one not against Islam but solely against terrorism. Moreover, China and Malaysia are also important for political and institutional reasons. China, as a permanent member of the United Nations (UN) Security Council, voted in favour of Resolution 1368 under Chapter VII of the UN Charter, which legitimated the US attack on Afghanistan - the first time that Beijing had voted in favour of the potential international use of force. China also happened to be hosting (in Shanghai) the October 2001 Asia-Pacific Economic Cooperation (APEC) Summit, an occasion that allowed support to be voiced for the US in its hour of need. For several months after 11 September, Malaysia was projected in the US as a successful, moderate Muslim nation that has been a beacon of stability in Southeast Asia. Knowing that Malaysia would be the incoming head of the countries that make up the Organisation of the Islamic Conference (OIC), Washington became keener still to improve relations with Kuala Lumpur.

A further consequence of the globalised threat of terrorism has been the dispatch around the world of many thousands of US troops, mostly members of the Special Forces. In the Philippines, for example, more than 1,000 US military troops were deployed in early 2002 to provide support for search-and-destroy operations directed against the Abu Sayyaf Group. Manila has also been the recipient of some $356 million in US security-related assistance for 2003 and 2004, and, in November 2002, it signed a Mutual Logistics Support Agreement with Washington allowing the US enhanced access to air and naval bases in the country. This is an unanticipated turnaround from its decision of the early 1990s not to renew the US basing agreements at Clark and Subic Bay. These two former bases are now being used as transit points for US matériel and personnel involved in counterterrorist operations in the Philippines.⁴

The Bush administration has also offered to provide training in the US in counter-terrorism techniques. Members of the military of Indonesia, among other countries, have been offered counterterrorism fellowships. In July 2002, Washington also requested Malaysia's help in establishing a regional counter-terrorism centre in Kuala Lumpur.

Such developments have drawn the US into closer contact and more cooperative relations with states that, in the past, had often been subject to official US criticism on account of their human-rights records. For instance, the seizure of power in October 1999 by General Pervez Musharraf of Pakistan from an elected civilian leadership led to the final cutting off of all US aid, already severely curtailed following Pakistan's nuclear tests in 1998. Shortly after Pakistan had agreed in September 2001 to offer US armed forces an air corridor into Afghanistan, most of those sanctions were suspended and Washington helped to assemble International Monetary Fund (IMF) and World Bank loans and to restructure Islamabad's bilateral debt. As these examples show, sometimes there are material reasons for closer alignment between the US and Asian states - the military, political and intelligence support that these nations have offered. In other cases, there are additional, important, symbolic reasons for seeking their support.

Domestic legislative changes and their effects on civil liberties in the US

Within one week of the 11 September attacks, US Attorney General John Ashcroft brought the USA Patriot Act before the US Congress. The act amends 15 different federal statutes and awards sweeping new powers to law-enforcement and intelligence agencies. Areas of law affected include those relating to immigration, surveillance and intelligence sharing. Although Congress ultimately took six weeks to pass this bill into law (on 26 October 2001), rather than the three days that Ashcroft asserted it would require, little time was available for due deliberation of its provisions or for much in the way of public hearings.⁵

The consequences that have flowed from the enactment of some elements of the USA Patriot Act, or from new interpretations of earlier legislation, have been disturbing. Some 1,200 non-citizens, mostly Muslim men, were detained in the US immediately after the 2001 terrorist strikes, with estimates of above 5,000 in US custody as of May 2003.⁶ As the Department of Justice's Office of the Inspector General concluded in a report released on 2 June 2003, these men were held in harsh confinement, often without access to lawyers, and denied all chance of bail. Some at a facility in Brooklyn, New York, were held in highly restricted 23-hour 'lockdown' conditions, only being allowed to move outside of their cells once they had been handcuffed or strapped with leg irons and heavy chains. Seven hundred and sixty two were found to be illegal immigrants, and most were eventually deported, but none were charged as terrorists.⁷

In November 2001, Bush authorised the use of special military commissions to try non-citizens accused of supporting or engaging in terrorist activity. Although the worst of the abrogations of due process were corrected in new regulations issued in March 2002, the special military tribunals nevertheless reinforced the perception that it had become acceptable for a number of US due-process safeguards to be set aside. In Bush's view, it was simply 'not practicable' to try terrorists under the 'principles of law and the rules of evidence' to which Americans had become accustomed within their own criminal-justice system.⁸

The Department of Justice also drew on earlier legislation to water down the rules of evidence required to prove intent to engage in or to further terrorism. The Antiterrorism and Effective Death Penalty Act, passed in 1996, and rarely employed before 11 September 2001, has made it a criminal offence to provide material support to any group that has been designated as 'terrorist', whatever the intention behind that support. Two US citizens described by Bush as 'enemy combatants' have been held for two years without charges being filed; only in December 2003 is one being given access to counsel - according to the Department of Defense 'as a matter of discretion' and not a requirement in law. The US government has claimed that its actions are consistent with the laws of war, but that designation of 'enemy combatant' has been challenged in the US courts and by non-governmental human-rights organisations.⁹

According to former Assistant Secretary of State for DRL, the international lawyer and scholar Harold Hongju Koh, legislation of this kind serves to reject three principles by which the US has balanced national security and civil liberties since the Second World War:

1. the separation of the domestic and foreign realms in order to prevent the government from spying on Americans and to protect rights guaranteed under the US Constitution;
2. the granting of civil rights to lawfully admitted 'aliens', comparable to those of other citizens, thus ruling out the notion that 'foreign born Americans or immigrants have only second class rights'; and
3. the acknowledgement of the executive branch's lead on national security issues, while insisting that 'its actions be subject to congressional oversight and judicial review'.¹⁰

Prisoners of the war in Afghanistan

Another major area of controversy concerns the 625 or so prisoners picked up as a result of the fighting in Afghanistan and since held at the US naval base at Guantanamo Bay, Cuba. They have not been accorded prisoner-of-war status, although the White House eventually announced that the principles of the third Geneva Convention would be applied to them. None has been charged. And while about 35 were released in March and May 2003 (including a juvenile), they were replaced by around two dozen shortly thereafter.¹¹ Controversy surrounding their status under international law has been seriously compounded by photographs distributed around the world of these prisoners in orange overalls crouching before US marine commanders, blindfolded and shackled.¹²

Allegations made in December 2002 that prisoners held at the US-occupied Bagram air base in Afghanistan have been tortured while in US custody, or as a result of being sent to third countries for further interrogation where torture is routinely practiced, have lent support to the argument that the Bush administration regards 11 September as a major watershed in its attitude towards adherence to human-rights norms. According to a Washington Post article: 'national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view'. As one official supervising the capture and transfer of alleged terrorists told a Washington Post reporter: 'If you don't violate someone's human rights some of the time, you probably aren't doing your job'.¹³ Finally, over three months after the publication of that article, the General Counsel of the Department of Defense, William J. Haynes, wrote to the Executive Director of Human Rights Watch, Kenneth Roth, underlining that the US government 'condemns and prohibits torture' and, if enemy combatants are detained in other countries on behalf of the US, 'appropriate assurances that such enemy combatants are not tortured' are sought. Human Rights Watch noted that the letter did not 'acknowledge that the United States has a legal obligation to refrain from cruel, inhuman or degrading treatment' and ignored the reports regarding the use of 'stress and duress' techniques.¹⁴

Chapter 2
The Place of Human Rights in US Foreign Policy

These developments appear to have constrained the prospects for a human-rights dimension to US foreign policy. They offer political cover, too, for abusive governments to take advantage and crackdown on those individuals and groups that they would like to silence for reasons other than their potential links with terrorism. Asian governments have claimed parallels between internal security acts in their own countries and the USA Patriot Act, have passed new or expanded legislation that has given police new powers of arrest and detention, and have taken note of the possible US use of torture against prisoners held incommunicado in various overseas facilities. When Mary Robinson signed off as United Nations High Commissioner for Human Rights in September 2002, she recorded her apprehensiveness about the impact of 11 September on human rights. At a meeting in Geneva, Switzerland, she noted that many of the special rapporteurs and chairs of various treaty bodies had warned of the 'erosion of civil liberties' around the world in the 'guise of combating terrorism'.

Robinson, however, also stated what has become a noted trend since the 1980s: that human rights had become 'the dominant moral vocabulary in foreign affairs'.¹ As Robinson put it, human rights are 'now firmly on the agenda of the international community'. She continued: 'If one thinks back twenty years to arguments about whether human rights were universal, whether they could be made operational, whether they have a serious place in the conduct of international relations, one would have to conclude that human rights have indeed come a long way ... There is much greater recognition now of the centrality of human rights and the immense benefits a rights-based approach brings'.² This is a view that has also been expressed in the academic literature on the subject. As Jack Donnelly wrote in 1998: 'In contrast to the 1970s and early 1980s, when debate often focused on whether human rights should be an active foreign policy concern, today the question is usually which rights to emphasize in which particular cases'.³

It is undeniable, furthermore, that the human-rights idea has become embedded in US legislation, in the country's self-image, and within its bureaucracy. For many years, the US government has played a major, if inconsistent, role in maintaining a ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Introduction
• Chapter 1 US Foreign- and Domestic-policy Realignments After 11 September
• Chapter 2 The Place of Human Rights in US Foreign Policy
• Chapter 3 Pakistan and Uzbekistan: the Frontline States
• Chapter 4 Southeast Asia: the Second Front
• Chapter 5 China: a Third Front?
• Conclusion
• Notes