The American Civil Liberties Union (ACLU) has filed a complaint against the government of the United States with the United Nations Working Group on Arbitrary Detentions. In their January 27 petition, the ACLU claims that thirteen people detained as part of the September 11 investigation were "simply non-citizens who had overstayed their visas or committed similar civil immigration infractions that, in the ordinary case, would not have led to detention at all." The ACLU petition states that "the Working Group should exercise its authority to rule on the arbitrary character of each of the Petitioners detentions and to address the legality of the policies described herein." In terms of relief sought, the ACLU asks that the "United States take all necessary steps to remedy the ongoing arbitrary detention of those Petitioners who remain detained and to bring its policies into conformity with international law."
Requests for a United Nations working group to "exercise its authority to rule," to "address the legality" and for the United States to "bring its policies into conformity with international law" beg a question of basic logic: when there is a discrepancy between American law and international law, why blame America first, automatically assuming that American law is in need of change?
International law based upon the United Nations' body of work adds significance to this question. Protection of civil liberties is very weak within the UN conventions cited in the ACLU's complaint. The ACLU complaint cites 2 conventions as the basis for the complaint, the 1948 United Nations Universal Declaration on Human rights (UDHR), and the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR). Article 29 (c) of the UDHR reads "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations."
By 1966, this concept had been promoted to a position preceding the enumeration of right to life. Article 5(1) of the ICCPR says, "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant."
Articles UDHR 29(c) and ICCPR 5(1) say that any and all freedoms enjoyed by individuals -- freedom of speech, freedom of the press, freedom of assembly, etc. -- are subject to limitation if those freedoms are used in pursuit of an improper aim. The UN reserves to itself the right to determine the impropriety of an aim.
For example, Article 19(2) of the ICCPR, "Everyone shall have the freedom of expression...in writing or in print" does not protect your right to publish a pamphlet in support of capital punishment if the UN decides that publishing the pamphlet is intended to limit the right to life. Article 20(1) of the UDHR, "Everyone has the right to freedom of peaceful assembly and association" does not protect your right hold a rally in support of the American Coalition's invasion of Iraq if the UN decides that the purpose of the rally is to work against the purposes and principles of the United Nations.
The blanket claim that no right is beyond regulation is a far cry from the "Congress shall make no law..." language of the First Amendment of the US Constitution. The US Constitution places certain inalienable rights beyond the reach of government. The UN places certain changes to its enumerated principles beyond the reach of your rights. Obviously, these two views towards the scope of individual rights cannot be easily reconciled. How do the law-abiding government officials and citizens of the world decide which set of principles is to be followed?
The first possibility is to declare that one set of principles overrides the other. An ACLU petition to the Working Group on Arbitrary detentions could be based on the idea that principles of international law trump any conflicting principles in American law. If this is the case, the very basis of civil liberties finds itself on the kind of slippery slope that the ACLU is usually keen to avoid. Clauses like UDHR 29(c) and ICCPR 5(1) permanently embed civil-liberty limitations into international law. Civil liberty protection granted today may be revoked in the future if the appropriate UN organ disapproves of how individuals use their liberty. Ultimately, allowing the United Nations as a final legal authority with regard to a particular end is the equivalent to asking a dictator to make the trains run on time.
If you think that this is either pedantic legalism, or a black-helicopter, fever-swamp hallucination, try this thought experiment. In fact, consider trying it for real. Write a letter to your local chapter of the ACLU. Ask the following question. In order to bring American law into conformity with international law, will the ACLU support a twenty-eighth amendment to the U.S. Constitution, modeled on Article 29 (c) of the United Nations Universal Declaration on Human Rights; the amendment will read "The rights and freedoms enumerated in this Constitution and its Amendments may in no case be exercised contrary to the purposes and principles of the United States." Would the ACLU consider this to be an acceptable expansion of the power of government? If the answer is no, why is at acceptable for the UN to reserve this kind of power to itself, but not the US?
There is a second interpretation of the ACLU petition to the Working Group on Arbitrary Detentions that allows one to simply ignore restriction of civil liberty allowed under UDHR 29(c) and ICCPR 5(1). This interpretation is that any petition to the working group is merely a request that an international panel of experts review the facts of a difficult case. This interpretation acknowledges that International law is not truly law; people are free to pick and choose the sections they would like to follow and the sections they would prefer to ignore. Since United Nations covenants are not really law, the use of UDHR and ICCPR sets no future precedent where 29(c) and 5(1) can be cited to justify the limitation of civil liberties.
For those who believe in protecting civil liberties and respecting international law neither explanation is satisfactory. The conventions of the United Nations relating to civil liberties contain prima facie limitations of those liberties. An ACLU appeal based on the authority of these conventions undermines the basis for civil liberties everywhere. Declaring that the inconvenient sections can simply be ignored erodes respect for international law. If the ACLU believes that international law created by the United Nations is truly universal, the ACLU has the responsibility to approach UN covenants as critically as it approaches American law.
In this case, it is clear that, to best protect the rights of individuals, international law must be brought into alignment with American law. To protect its credibility on matters relating to international law, the ACLU must work to have sections like UDHR 29(c) and ICCPR 5(1) revoked. This assumes, of course, that the ACLU has not abandoned its primary mission of civil liberties for everyone in favor of reactionary opposition to actions of the US government.
Carroll Andrew Morse is a Ph.D. physicist who now works as a statistical modeler developing anti-fraud and anti-money laundering systems. He last wrote for TCS about airport profiling's hidden controversy.