From time to time, the United Nations deploys human rights
experts-called "special rapporteurs"-to the United States and
elsewhere to report on alleged human rights abuses. Over the years,
the United States has tolerated the presence of these special
envoys to investigate human rights practices regarding various
issues, such as the death penalty, freedom of religion, violence
against women, and the right to education.In 2005, the now-defunct U.N.
Commission on Human Rights created a new special rapporteur
position based on the theory that counterterrorism operations were
resulting in grave violations of human rights.Finnish academic
Martin Scheinin was appointed to the position, and he will be
visiting the United States from May 16 to 25 to conduct research
for a report to the new U.N. Human Rights Council. In crafting his
report, Special Rapporteur Scheinin should take care to keep in
mind U.S. sovereignty, the American constitutional system, and that
system's basis in the consent of the governed and not forsake these
principles for ill-defined international norms to which the U.S.
has never acceded.
A Report on Rights
During his visit, Special Rapporteur Scheinin will meet with U.S.
officials from the Departments of State, Defense, Justice, and
Homeland Security, as well as other government officials and
non-governmental organizations.He has indicated that he
intends to explore a wide range of issues, including the Military
Commissions Act, the Patriot Act, "extraordinary" rendition,
"secret" CIA prisons, and immigration policy. Scheinin has said he
will review U.S. counterterrorism practices for compliance with
U.S. human rights treaty obligations, such as those enshrined in
the International Covenant on Civil and Political Rights and the
Convention Against Torture.
Scheinin plans to issue a report to the new U.N. Human Rights
Council in Geneva detailing his findings on the U.S. human rights
record. If it is to be credible, this report must reflect a deep
understanding of U.S. international treaty obligations and the
international legal framework of the war on terrorism. More
importantly, Scheinin's report will be credible and worthy of
consideration only if it reflects a fundamental appreciation of and
respect for American sovereignty and the nation's heritage and
tradition of protecting individual rights and freedoms even while
conducting armed conflicts and fighting terrorism. Despite what the
European Union and many internationalists seek to persuade the
American public and the rest of the world to believe, no nation has
a longer and more distinguished history of protecting the rights
that human rights advocates now consider essential than does the
Scheinin's Criticism of the Military Commissions
In Hamdan v. Rumsfeld, the U.S. Supreme Court, through
the application of convoluted logic and precedent, held that Common
Article 3 of the Geneva Conventions applies to the detention of
unlawful enemy combatants. The Court interpreted existing statutes
to require that any military commission used to try enemy
combatants conform (with the exception of certain practical
deviations) to the procedures of the Uniform Code of Military
Justice (UCMJ) and the Geneva Conventions.Congress responded to
Hamdan with the Military Commissions Act of 2006 (MCA),
which modeled the military commission process on the UCMJ.The MCA
provides crucial guarantees for fair trials, including the
presumption of innocence, the right to be informed of charges, the
assistance of counsel, the right to be present at trial, and the
privilege against self-incrimination.Rapporteur Scheinin
nevertheless lambasted the MCA in a sharply worded press release
issued shortly after its passage.Scheinin's criticisms ignore
the plain language of the MCA and do not accurately reflect the
treaty obligations of the United States.
For example, Scheinin's press release claimed that "a number of
provisions of the MCA appear to contradict the universal and
fundamental principles of fair trial standards and due process
enshrined in Common Article 3 of the Geneva Conventions." As an
example, it stated that, under the MCA, unlawful enemy combatants
do not have "the right to see exculpatory evidence if it is deemed
classified information…." The MCA, however, ensures
detainees the right to review exculpatory evidence-even if it is
classified-by providing them with a summary of the classified
information or a statement of the facts that the classified
information would establish.
The use of such substitutions or summaries of raw, classified
information is fair and reasonable, and it is consistent with U.S.
domestic law governing the use of classified information in U.S.
courts.Additionally, defense counsel for detainees
being tried by military commission may review and use classified
materials in preparing the detainee's defense and at trial, a fact
that is absent from Scheinin's press release.Contrary to
Scheinin's implied premise, unrestricted access to classified
information for terrorist suspects is not a "universal and
fundamental principle" of a fair trial. To maintain otherwise
misinterprets Common Article 3, which only requires that trials be
conducted while "affording all the judicial guarantees which are
recognized as indispensable by civilized peoples."To the extent that
there exists an acknowledged set of indispensable judicial
guarantees, unfettered access to classified information is not
Scheinin also stated that the U.S. violated its treaty
obligations under the International Covenant on Civil and Political
Rights (ICCPR) by enacting the MCA: "Further, in manifest
contradiction with article 9, paragraph 4 of the International
Covenant on Civil and Political Rights the [MCA] denies non US
citizens…in US custody the right to challenge the legality
of their detention by filing a writ of habeas corpus…."This statement assumes that the ICCPR
applies to the detainees held at Guantanamo, which it does not. The
ICCPR states that each party to the treaty "undertakes to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the present
Covenant…."The naval base at Guantanamo Bay, Cuba, is
on land that is leased from Cuba by the United States and is,
therefore, not "within" U.S. territory.
The territorial limitation clause in the ICCPR is no accident.
No less a figure than Eleanor Roosevelt insisted that the phrase
"within its territory" be added to the draft text of the ICCPR to
limit its territorial scope. She stated:
The purpose of the proposed ["within its territory"] addition
[is] to make it clear that the draft Covenant would apply only to
persons within the territory and subject to the jurisdiction of the
contracting states. The United States [is] afraid that without such
an addition the draft Covenant might be construed as obliging the
contracting states to enact legislation concerning persons, who
although outside its territory were technically within its
jurisdiction for certain purposes. An illustration would be
the occupied territories of Germany, Austria and Japan: persons
within those countries were subject to the jurisdiction of the
occupying states in certain respects, but were outside the scope of
legislation of those states.
Scheinin's press statement thereby disregards the plain language
and history of the ICCPR. Scheinin either does not understand those
concepts or has decided that the ICCPR somehow applies to the
detainees at Guantanamo in spite of the facts and the law. If the
latter, Scheinin would be effectively foisting a treaty obligation
upon the United States that it has not consented to, namely the
extraterritorial application of the ICCPR to persons outside of
Scheinin's error is not original. A 2006 report on the status of
detainees held at Guantanamo written by a team of U.N. special
rapporteurs similarly ignored the law as well as the actual treaty
obligations of the United States.As set forth in the
official U.S. reply to that report, the rapporteurs sought to spin
treaty obligations out of thin air and then contend that the United
States was in violation of those very same obligations.
Recommendations to Rapporteur Scheinin
Several statements in Scheinin's October 2006 press release
regarding the MCA require revision, and in his final report, he has
the opportunity to set the record straight. To the extent that his
final report addresses Guantanamo Bay, it should make clear that
international humanitarian law (the law of armed conflict), and not
international human rights law, applies to the detainees held
there. If Scheinin's report repeats the mistaken conclusions of the
earlier U.N. special rapporteurs' report on Guantanamo, its
credibility, as well as Scheinin's, will be thrown into
Despite his press release regarding the MCA, Scheinin should be
given the benefit of the doubt. It is unlikely that he has yet
gained the necessary expertise in the American constitutional
system and familiarity with the details of complex legislation such
as the MCA and the Patriot Act. After he has had the opportunity to
meet with U.S. officials and thoroughly review U.S. legislation and
constitutional law, however, Scheinin must ensure that his report
reflects a deep and thorough understanding of U.S. treaty
obligations within the context of the ongoing war on terrorism. A
final report that disregards the letter of the law or the plain
language of treaties would smack of willful blindness or, worse,
the existence of a biased agenda.
Claims that the United States has violated its international
treaty obligations merely because Congress or the President has not
implemented a treaty in the same manner as the European Union are
elitist and demonstrate a fundamental disrespect for U.S.
sovereignty and the American system of constitutional government.
According to the principles of this nation's founding, the people
themselves are sovereign and the government derives its powers from
their consent. Thus the American constitutional system was crafted,
adopted, and ratified by the founders of this nation and the people
of the United States. Most international laws and purported
international norms were not. Even international treaties that the
United States has ratified, such as the Geneva Conventions and the
ICCPR, are subject to interpretation and implementation by U.S.
Ignoring these principles, many in the international human
rights establishment refuse to credit U.S. protections of
individual rights unless they conform to their conceptions of
international legal norms. But Special Rapporteur Scheinin should
not succumb to this fallacious notion. He should issue a report
that respects the legal history and traditions of the United States
and reflects the challenges faced by the U.S. government and armed
forces in prosecuting the war on terrorism.
Steven Groves is
the Bernard and Barbara Lomas Fellow in the Margaret Thatcher
Center for Freedom, a division of the Kathryn and Shelby Cullom
Davis Institute for International Studies, at The Heritage
 United Nations Office of the High
Commissioner for Human Rights, Commission on Human Rights
Resolution 2005/80, "Protection of human rights and fundamental
freedoms while countering terrorism," April 21, 2005.
 Rapporteur Scheinin met with a delegation
from The Heritage Foundation on May 21. The discussion covered a
wide range of issues relating to the U.S. legal system, the MCA,
the Patriot Act, the REAL ID program, and other policies and
practices relating to the war on terrorism.
 Hamdan v. Rumsfeld, 126 S.Ct. 2749
 Military Commissions Act, P.L. 109-366,
120 Stat. 2615.
 Military Commissions Act, P.L. 109-366,
120 Stat. 2615, 10 U.S.C. §§ 949l, 948q, 948s, 948k,
949c(b)(3), 949d, 949a(b)(1)(B), and 948r.
 Military Commissions Act, P.L. 109-366,
120 Stat. 2615, 10 U.S.C. § 949j(c), (d). During the meeting
with Rapporteur Scheinin, the Heritage delegation inquired whether
there were any misstatements in the October 2006 press release.
Rapporteur Scheinin replied only that the statement regarding the
use of classified, exculpatory information may require further
 See Classified Information Procedures
Act, P.L. 96-456.
 Military Commissions Act, P.L. 109-366,
120 Stat. 2615, 10 U.S.C. § 949c(b)(4).
 Geneva Convention Relative to the
Treatment of Prisoners of War, Article 3, August 12, 1949.
 Office of the United Nations High
Commissioner for Human Rights, "UN Expert on Human Rights and
Counter Terrorism Concerned That Military Commissions Act is Now
Law in United States."
 International Covenant on Civil and
Political Rights, Art. 2(1).
 U.N. ESCOR Hum. Rts. Comm., "Summary
Record of the Hundred and Thirty-Eighth Meeting," 6th Sess., 138th
mtg at 10, U.N. Doc. E/CN.4/SR.138 (1950) (emphasis added). As a
specific example of what would not be included within the
ICCPR's jurisdiction, Mrs. Roosevelt cited territories that one
nation had leased from another. Such is the case here where the
United States leases the territory encompassing Guantanamo Bay from
 "Reply of the Government of the United
States of America to the Report of the Five UNCHR Special
Rapporteurs on Detainees in Guantanamo Bay, Cuba, March 10, 2006,"