Human rights: where are we heading?

The third layer of shame concerns America's judicial system and its buck passing with the executive and between its constituent courts, to deny vindication to victims of illegal conduct including torture.

A Call to Couragechronicles three examples. The first is Khaled El-Masri, a completely innocent victim of a CIA kidnapping in Macedonia who was rendered to Afghanistan, tortured for several months and then released without explanation. The Executive said the courts were the proper place for compensation. The courts said, at the behest of the Executive, that they had no jurisdiction and the remedy lay with the Executive. And, of course, the Executive has since remained aloof.

Five other victims of the CIA's extraordinary rendition program were denied jurisdiction to sue the government contractor who had knowingly profited from arranging their flights to torture. The courts again said look to the executive.

The third example is Jose Padilla, a US citizen, who was kidnapped by the military from a New York jail and declared an enemy combatant by the President. He was held in a naval brig in Charleston, South Carolina and subjected to three years of sensory deprivation and total isolation. After three years, he was returned to the civilian justice system and prosecuted for crimes unconnected with his dubious status as an enemy combatant.

Padilla's action for one dollar in damages and a declaration that his rights had been violated was refused, inter alia, on the basis that he should have raised it in his criminal proceedings. Except that he had, and the judge in the criminal proceedings had said that there was ample opportunity to raise the issues in a civil claim for damages.

This buck-passing of the highest order, that leads to impunity for wrongdoing.

These are but a few of the matters chronicled by A Call to Courage. The ACLU slim report is but the merest of sampling of the resort to illegal conduct by the US government since 11 September 2001 and the impunity that has been extended by the courts, the Executive and the Congress to the perpetrators. These few examples are typical.

It is a depressing read for one who would like to think the international instruments that purport to protect human rights, are making progress against those base human instincts that would seek to obliterate them.

And yet there is, even in A Call to Courage, signs that the values of the rule of law; the prohibition of torture; and the right without discrimination to the protections laid down in such instruments, still have life and an inability even to defy the might of the US military and political establishment.

At page 13, A Call to Courage points out that the NATO allies of the United States, themselves aware of the international norms being breached by the US, were unprepared to pass captured prisoners to the US for fear that they would be tortured and detained indefinitely without trial.

Australia, of course, has been duplicitous, pretending that every prisoner that fell into the hands of Australian defence teams had been captured by the sole US soldier that the Australians kept in their back pocket for that very purpose.

And at page 19, A Call to Courage refers to the US as an island of impunity while foreign courts attempt to clean up the legal mess. International jurisdiction for war crimes and crimes against humanity is increasingly becoming a characteristic of a number of legal systems in Europe and elsewhere.