Jennifer Mason McAward is associate professor of law at the University of Notre Dame and director of the University’s Center on Civil and Human Rights.
I’m often asked what the difference is between civil and human rights. My response is that they are, in large part, overlapping concepts and the difference is context. The treatment of Muslims and immigrants in the United States, for example, is both a civil and human rights issue that plays out against the backdrop of American law and politics.
What about other human rights issues? Recently, a Russian state TV anchor praised President-Elect Trump, pointing out that words like “democracy” and “human rights” were “not in his lexicon.” Certainly, though, human rights-related issues were discussed in the presidential campaign even if President-Elect Trump did not label them as such. We don’t know whether the rhetoric of the campaign will become operationalized, but there are a number of human rights issues that deserve consideration as we move forward.
The President-Elect’s approach toward human rights is evident in his statements regarding torture and the treatment of the families of terrorists. Trump has proposed bringing back waterboarding and “a hell of a lot worse.” He has also stated that “you have to take out” the families of suspected terrorists.
These ideas, particularly with respect to waterboarding and other interrogation techniques, have found traction among some national security nominees. In July, Michael Flynn, Trump’s choice for national security advisor, said that “we must maintain all options,” including waterboarding and other enhanced interrogation techniques. The nominee for CIA Director, Mike Pompeo, also has communicated an openness to such techniques.
Acts of torture and collective reprisal are prohibited by international humanitarian law. The prohibition against torture is firmly embedded in customary international law and international treaties. The Geneva Conventions forbid intentional targeting of civilians. During the (second) Bush administration, some questioned whether waterboarding and other enhanced interrogation practices constitute torture. Ted Cruz argued during the primaries this year that waterboarding is not illegal. However, the International Committee of the Red Cross, which oversees the Geneva Conventions, has stated definitively that waterboarding qualifies as torture and is prohibited.
A ban on torture is also now contained in U.S. law. The National Defense Authorization Act passed by Congress and signed by President Obama in 2015 uses the U.S. Army Field Manual as its touchstone and effectively bars all forms of torture, including waterboarding. This law applies to all U.S. government personnel and contractors, including the CIA. It will also be binding on the new president.
Of course, Congress could repeal the Act. Or, upon inauguration, President Trump could instruct his commanders to violate federal law, which would be problematic in its own right. At the very least, though, it is clear that the President-Elect would encounter substantial institutional hurdles if he indeed tried to reinstitute enhanced interrogation techniques.
Another way to assess President-Elect Trump’s stance on human rights is to consider his likely inactive stance on human rights abuses outside our borders.
The leaders of a number of regimes engaged in human rights abuses – Sissi of Egypt, Assad of Syria, Erdogan of Turkey, and Putin of Russia, to name a few, welcomed Trump’s victory, presumably seeing in him an ally who will not be concerned about human rights abuses in their countries.
As a candidate, Trump gave them reason to think that would be the case. In September, for example, President Sissi of Egypt met with both Trump and Hillary Clinton. Trump reflected on the meeting by calling Sissi “a fantastic guy” while Clinton took the opportunity to emphasize the importance of respect for human rights.
In a July interview with the New York Times, when asked about Mr. Erdogan’s arrest of tens of thousands of domestic opponents in Turkey, Trump articulated what sounded like a doctrine of non-interference, saying, “I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country.” Under the new president we are not likely to see the United States actively encouraging other international actors to respect human rights.
We cannot be certain what President-Elect Trump’s actual human rights policy will be, but from his campaign statements and the views of some of the people he has appointed, we are unlikely to see the vigorous pursuit of human rights issues in U.S. foreign policy.