The news that President Obama plans to sign the National Defense Authorization Act (NDAA) permitting indefinite detention for Americans accused of supporting terrorism is a sad day for those who believe in basic civil and human rights. Equally, this move calls into question optimistic views about international norms and the power of human rights.
Glenn Greenwald and others cover the threat to basic freedoms in posts that are well worth reading. By comparison, the import for scholars of norms may seem minor but is nonetheless worth pondering.
Norms against indefinite detention have long been basic to human rights, along with prohibitions on torture and extrajudicial execution. Of course, we’ve seen those fall by the wayside too. National security, a norm backed by enormous material power, has made its dominance plain. However, in recent cases where the U.S. has engaged in torture or extrajudicial executions of American citizens, these actions have been purely executive, albeit with many a legislative, scholarly, and public cheerleader.
The NDAA, however, enshrines indefinite detention for American citizens in law passed by Congress and to be signed by the President. The magical incantation “terrorist” is all that’s been needed to throttle a core rights protection.
What has been the power of norms in this case?
It’s doubtless true that the human rights norms I’ve mentioned have more defenders than they once did. There are today many more NGOs who promote and support them than there were in the 1950s, the last time the U.S. passed similar laws (against the Communist menace, only to reverse them decades later after severe abuses). Today, there have been many voices, both domestic and international, raised against the indefinite detention provisions.
But in the end, these fell before trumped up security norms and terror fears. Many Americans appear all too willing to trade basic rights (and trillions of dollars) for an illusion of security against a minuscule threat. I am continually stunned when I hear American citizens saying we don’t need a judiciary to check the Executive in these cases because the President has sworn an oath to uphold the Constitution. So much for the judicial branch, so much for checks and balances, and so much for the power of centuries old domestic norms and laws.
Particularly striking in the debate over detention and the broader one over Obama’s civil liberties record is political opportunism. Many Democratic Party leaders who screamed that George Bush was acting unconstitutionally and illegally in the early years of the GWOT, have now fallen into line behind Obama’s continuation and expansion of Bush policies, including extrajudicial executions and now summary arrests. It’s striking too that we have seen so few resignations from top posts in the Obama administration even from those regarded as staunch defenders of basic rights. So much for the independent influence of norms.
More broadly, this suggests that other human rights norms are equally fragile and contingent achievements, with little if any independent strength. Of course, anyone witnessing the erosion of these rights over the last decade already knew that. All such norms exist at sufferance of state actors. To the extent states follow them, it is because the “norms” do not run contrary to their core interests, because a sufficiently large threat has not been invented to justify their subversion, or because the states are too weak to challenge them. Any real belief in state “habitualization” and the power of norms as such must be questioned.
Don’t get me wrong. I think it is important to promote and resurrect the crucial values and freedoms we have lost. But the only way to do so is through political organizing and activism–through material rather than normative means.