Taking Liberties

Taking Liberties

To all the arguments lodged against gay marriage, add this one–it’s a matter of national security.


To all the arguments lodged against gay marriage, add this one–it’s a matter of national security. So argued a woman interviewed recently by NPR at the National Association of Evangelicals convention in Colorado Springs. Her reasoning: By breaking down the family, we’re not having enough kids, while “other countries” with an agenda to hurt America are having boatloads of babies. If we legalize gay marriage, the terrorists will eventually outnumber us.

One might be tempted to dismiss this as a desperate rant if it weren’t so close to arguments the Bush Administration itself has been making. As the election campaign gets under way, national security has become the ultimate all-purpose trump card. The Bush crowd will play it anywhere.

Consider Attorney General John Ashcroft’s justification for a ruling last year that all Haitians seeking refuge here should be detained. In Ashcroft’s view, national security warranted locking them all up, not because any of them posed a threat to national security but because detaining them all would deter other Haitians from seeking refuge here, and that would save money that could then be deployed elsewhere to protect our national security. On this theory, any initiative that reduces government expenditures–from welfare reform to cutting spending on environmental protection–is warranted by national security, because those funds can then be used to fight terrorism.

More recently, the Administration has invoked national security in appealing a landmark human rights case to the Supreme Court. In Sosa v. Álvarez-Machain, the Administration contends that court enforcement of human rights protections might cramp its style as it fights for our security. The case involves a 1789 statute, the Alien Tort Claims Act, that human rights victims have used to hold perpetrators liable for their crimes against humanity. The law is a beacon in the human rights field because it provides a critical vehicle for developing and enforcing human rights law in individual cases.

This time, however, the case implicates human rights violations by the United States. The case challenges the abduction and kidnapping of a Mexican doctor at the behest of Drug Enforcement Administration officials to stand trial here for alleged complicity in the killing of a DEA agent in Mexico. Dr. Álvarez-Machain was acquitted at his criminal trial, then turned around and sued his abductors, obtaining a judgment against them for international human rights violations in his cross-border abduction.

Urging the Supreme Court to overturn the judgment, the Bush Administration has again played the national security card, arguing that if federal courts enforce international human rights norms, their decisions might interfere with the government’s prerogatives in the war on terror. But of course the whole point of international law is to limit the prerogatives of nations, at least when it comes to fundamental rights owed to all persons.

The most recent development along these lines is a Congressional resolution introduced by Republican Representative Tom Feeney, maintaining that the Supreme Court should not look to foreign law at all, much less human rights law, in deciding constitutional cases. The resolution was apparently prompted by recent Supreme Court decisions, including last year’s ruling invalidating sodomy laws, that have looked to other countries’ judicial decisions for guidance in resolving similar disputes here. It is commonplace in many countries to consider the decisions of other nations’ courts, but it is apparently anathema to those who contend that we can and should write our own rules, regardless of what the rest of the world thinks. It is no coincidence that the resolution has surfaced at a time when the Supreme Court is about to address the detentions at Guantánamo Bay, a practice that many foreign and international legal experts have condemned as lawless.

The irony is that when we lock up people without evidence that they are dangerous, treat human rights as mere obstacles to our political prerogatives and dismiss other nations’ laws and decisions as entirely irrelevant to our resolution of fundamental issues of justice, we make ourselves less, not more, secure. A Pew Charitable Trust poll recently found that anti-Americanism is at an all-time high around the world. Much of the resentment stems from our claim that we can bypass any principle of international law that we deem inconvenient.

In the long run, it is this rising tide of anti-Americanism that poses the greatest threat to our security. The true path to safety lies in respect for human rights and the views and experiences of others, not in asserting, in the name of national security, unilateral authority to be a law unto ourselves.

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