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An Open Letter to Kenneth Roth

The Revolving Door at Human Rights Watch

by MAIREAD MAGUIRE, ADOLFO PEREZ ESQUIVEL, RICHARD FALK, HANS von SPONECK & KEANE BHATT

Dear Kenneth Roth,

While we welcome your stated commitment to Human Rights Watch’s independence and credibility, we are dismayed by your rejection of our common-sense suggestion for strengthening them: bar those who have crafted or executed U.S. foreign policy from serving as HRW staff, advisors or board members—or, at a bare minimum, mandate lengthy “cooling-off” periods before and after any associate moves between HRW and the foreign-policy divisions of the U.S. government.

Before addressing your letter’s objections to the three instances of HRW’s advocacy that suggest a conflict of interest, we would like to reiterate that they were “limited to only recent history,” and that other cases could have been raised as well. One obvious example of HRW’s failure to appropriately criticize U.S. crimes occurred after the 2004 coup d’état against the democratically elected government of Haiti. The U.S. government essentially kidnapped Haiti’s president; thousands of people were killed under the ensuing coup regime; and deposed officials of the constitutional government were jailed.

In the face of what were likely the worst human rights abuses of any country in the Western hemisphere at the time, HRW barely lifted a finger. HRW never hosted a press conference criticizing the coup or post-coup atrocities. In contrast to HRW’s appeals to the Organization of American States’ Inter-American Democratic Charter for Venezuela and Cuba, HRW never publicly invoked the Charter in the case of Haiti, even as Articles 20 and 21 afforded multilateral measures “in the event of an unconstitutional alteration of the constitutional regime.” HRW never placed an op-ed about the overthrow in a prominent newspaper. (In 2004 The New York Times alone published at least five HRW opinion pieces and four HRW letters on other subjects.) It is reasonable for outside observers to question whether this lack of response from HRW to such large-scale human rights violations had anything to do with U.S. foreign-policy priorities.

The very existence of such questions regarding HRW’s advocacy should be reason enough to impose sharp restrictions on HRW’s close ties to the U.S. government. Given the impact of global perceptions on HRW’s ability to carry out its work, simply the appearance of impropriety can impede HRW’s effectiveness. Closing HRW’s revolving door would be an important first step to allaying or preempting concerns that HRW’s priorities are compromised.

Concrete evidence of a revolving-door phenomenon between HRW and the U.S. government renders crucially incomplete your admission that “it is true that some served in the US government before or after their involvement with Human Rights Watch.” We provided examples of those who served in the U.S. government both before and after their involvement with HRW, a norm widely recognized to generate perverse incentives and undermine an institution’s reputation for independence.

For instance, you may disagree with our view that a former official of the Central Intelligence Agency—one of the world’s greatest institutional human rights violators over the past half-century—has no standing to advise on human rights issues for your organization. Surely you must concede, however, that a conflict of interest was raised when Miguel Díaz, the ex-CIA analyst in question, exploited the eight years of experience and relationships he accumulated within HRW’s advisory committee for his subsequent role as the U.S. State Department’s “interlocutor between the intelligence community and non-government experts.”

Your colleague, HRW Counsel and Spokesperson Reed Brody, seemed to misunderstand the nature of our proposal, arguing in a June 11 debate on Democracy Now! that “Miguel Díaz never worked at Human Rights Watch,” and that the organization is “a big tent—we’ve got people on the right; we’ve got people on the left.” In fact, our letter suggested prohibitions or cooling-off periods for “any associate,” including advisory-committee members like Díaz. Secondly, our proposals would not impact political diversity; rather, they would make it more difficult for those previously employed by human rights-abusing organizations like the CIA from adversely influencing HRW’s priorities or damaging HRW’s reputation.

It is important to further clarify our request, as Brody made two mutually irreconcilable claims: that “there is no revolving door,” and that “this revolving-door policy, if we implemented it, would have changed one person at Human Rights Watch.” Both statements are untrue. A cooling-off period, which all HRW associates would accept, would have prevented both Díaz and former HRW Washington director Tom Malinowski from almost immediately entering the U.S. State Department (Malinowski is now Assistant Secretary of State for Democracy, Human Rights, and Labor), and would have also applied to Nik Steinberg, a senior researcher in HRW’s Americas division as of May 2014.

Just one week after you received our May 12 letter, Mr. Steinberg announced that he was leaving HRW to take a position with U.S. Ambassador to the United Nations Samantha Power, which he described as an “extraordinary opportunity.” This is disturbing from a human rights perspective, because Ms. Power’s July 17, 2013 confirmation hearing was riddled with provocative comments, including her evidence-free claim of an Iranian “nuclear weapons program,” her promise to “never apologize for America,” and her commitment to “work tirelessly to defend” Israel. After assuming her post, she advocated in favor of a U.S. strike against Syria in 2013, defending it as “legitimate” while tacitly acknowledging its illegality. She later declared that the United States has “nothing to apologize for” in Afghanistan, despite its record of numerous atrocities. Most recently, Ms. Power engaged in a coordinated media event with Henry Kissinger, whom Mr. Brody once referred to as a war criminal.

HRW’s proximity to Ms. Power damages HRW’s stated independence in light of her declarations that “the United States is the greatest country on Earth,” “the leader in human rights,” and “the leader in human dignity.” Shortly after leaving HRW, Malinowski similarly lauded the “bipartisan consensus for America’s defense of liberty around the world” and the “exceptional” nature of the United States at his own September 24, 2013 confirmation hearing.

Mr. Roth, we are deeply worried that Mr. Steinberg’s announced transition to Ms. Power’s office—a week after your receipt of our letter—is just one of many more revolving-door episodes that will continue to create perverse incentive structures within the organization. How can we expect HRW associates to be completely unafraid to hold human rights violators in the U.S. government accountable for their offenses and crimes when they are hoping to work for some of these very same functionaries immediately upon leaving HRW? That is the question that you must answer, Mr. Roth, in light of the transitions of Malinowski, Díaz and Steinberg to the U.S. State Department.

If you nevertheless object to prohibiting the involvement of U.S. foreign-policy officials at HRW or instituting cooling-off periods for them, we suggest, in parallel, an even narrower proposal: bar the participation at HRW of those who bear a direct responsibility for violating international humanitarian law. Javier Solana, currently a member of HRW’s board of directors, served as the North Atlantic Treaty Organization’s Secretary General during its 1999 military campaign in Yugoslavia. NATO’s use of cluster munitions and its bombing of civilian targets in Yugoslavia led HRW itself to conclude that the organization “committed violations of international humanitarian law.”

Solana is therefore a poor choice for HRW’s board of directors. His removal from your board would signal HRW’s good-faith effort to bolster its independence and credibility as an advocate for human rights. When Mr. Brody was asked on Democracy Now! to respond to the argument that “those who bear direct responsibility for human rights violations should not be on the board of directors of an independent human rights organization,” Mr. Brody said, “I would agree with that.” We hope you concur with your colleague.

We will now address in turn your responses to the three cases of problematic HRW advocacy mentioned in our letter:

First, you objected to our concerns over the 2009 statements made by Tom Malinowski as HRW’s Washington director to the LA Times. He contended that “under limited circumstances” there was a “legitimate place” for renditions. You argue that our letter “mistakenly claims he was supporting unlawful CIA renditions,” and that “Malinowski was certainly not endorsing the CIA’s illegal rendition program, which entailed transferring individuals without due process protections to countries where they faced torture.” You further define renditions as simply “the transfer of a person in custody from one jurisdiction to another, which is legal under certain circumstances,” and cite extraditions as a legitimate form of rendition.

We appreciate your attempt to clarify Malinowski’s statement, which at the time provoked public consternation from law professors specializing in constitutional law and international law, such as Darren Hutchinson and Kenneth Anderson. This reaction arose because the LA Times article in question focused exclusively on CIA renditions and President Barack Obama’s executive order, which preserved them through a redefinition that allowed the transfer of suspects on a “short-term, transitory basis.” All CIA renditions, whether long- or short-term, whether they lead to torture or not, deny suspects the right to legal proceedings in which they can challenge their transfer from the country in question. Unlike commonplace extraditions, CIA renditions—extraordinary or otherwise—do not guarantee the detainees’ right to legal counsel or access to the court system of the country where they are seized.

In our previous letter to you, we cited Obama’s “preservation of renditions” as a serious human rights concern, and hyperlinked to a widely cited Open Society Justice Initiative report from 2013 which observed that Obama’s 2009 “executive order did not repudiate extraordinary rendition,” and that “it appears that the Obama administration did not end extraordinary rendition.” In light of this and the fact that the LA Times solely focused on an executive order pertaining to CIA renditions, Malinowski’s comment on their “legitimate place” was troubling and remains so, especially given his now-senior position within the Obama administration. Controversy around the practice persists, as exemplified by the headline of a 2013 Washington Post news article: “Renditions continue under Obama, despite due-process concerns.”

Malinowski’s subsequent statement to the LA Times was perhaps even more dubious, for additional reasons. As HRW’s Washington director, he paraphrased the Obama administration’s claim that designing an alternative to “people being sent to foreign dungeons to be tortured” was “going to take some time,” without questioning whether a gradual approach to ending such abuses was justifiable or even legal. For an organization that operates under the principle that human rights are absolute rights, not rights to be traded away for expediency or other political goals—which is the only way that a credible human rights organization can or should operate—such a statement should be deeply alarming. In fact, the Obama administration did proceed to “take some time,” sustaining the use of such “foreign dungeons” for years—likely up to the present day.

Numerous eye-witness testimonies led to articles by Der Spiegel in 2009 and the BBC in 2010 that reported on torture conducted under Obama’s presidency at Bagram Air Base in Afghanistan, where detainees have had no right to habeas corpus. A 2011 Nation investigative piece detailed the conditions of an underground “secret prison” in Somalia used by the CIA, which serves as a destination for U.S.-assisted renditions. U.S. officials are said to conduct joint “debriefings,” or interrogations, at the site. The report’s author, Jeremy Scahill, found that the prisoners were unable to be seen by the Red Cross, and “they are not ever presented with charges.”

We note with interest that none of the HRW reports on rendition that you listed and hyperlinked to in your letter refer to torture, CIA renditions, or long-term detention without due process that have occurred under the Obama administration. While we welcome HRW’s call for criminal investigations regarding Bush-era human rights abuses, it appears that HRW has not advocated for criminal investigations into any of these Obama-era abuses. In fact, two HRW researchers have publicly fretted over the U.S. handover of the Bagram base to the Afghan government due to concerns over Afghanistan’s use of torture, without ever mentioning Obama-era, U.S.-directed torture at the same base. There may be some legitimate reason for HRW’s very different positions regarding the two administrations, but combined with the existence of HRW’s revolving door, they reinforce a reasonable suspicion that Malinowski’s inappropriate comments in 2009 as an HRW employee were influenced by his intention to serve in the Obama administration, and that HRW’s decidedly more muted position today on Obama’s policies is perhaps related to its ties to the administration.

Your second point pertains to our argument that in light of HRW’s 2012 letter to President Hugo Chávez of Venezuela questioning the country’s suitability as a candidate for the UN Human Rights Council, HRW had reason to write a similar letter to President Obama expressing reservations over the U.S. position in the same council. In our previous letter to you, we cited the U.S. record of human rights abuses that include a secret, global assassination program and the illegal detention of individuals at Guantánamo Bay. You have countered by avoiding a discussion of comparative abuses between the two countries, and have instead argued that for HRW, a “central concern on council membership is whether a government takes the council and its special procedures seriously,” and that Venezuela, unlike the United States, does not.

However, under no objective standard was this a “central concern” of the 2012 letter to Chávez signed by your colleagues José Miguel Vivanco and Peggy Hicks that we originally cited. After asserting in their introduction that “Venezuela currently falls far short of acceptable standards” in “promoting and protecting human rights,” Vivanco and Hicks outlined specific “policies and practices of [the Chávez] administration” and argued for their reversal. Their letter then dedicated the next 10 paragraphs to arguing that Venezuela has failed in the areas of judicial independence, media freedom and civil society. Before concluding their letter, Vivanco and Hicks devoted only one paragraph to “cooperation with the Human Rights Council.”

Given the broad scope of the content and priorities of HRW’s letter to Chávez, HRW simply has no tenable justification for its continued support of the U.S. presence on the UN Human Rights Council. Aside from its far grimmer human rights record than Venezuela, “[t]he United States is the only country to vote against all the Council’s resolutions focusing on the human rights situation in Palestine and other occupied Arab territories,” admits HRW. “The US rejection of any resolution focusing on Israel and the [Occupied Palestinian Territories] and Israel [sic] exposes its double standards.” HRW’s own finding, coupled with the U.S. role in blocking the implementation of the Council’s recommendations of the Goldstone Report on Israeli war crimes during the Gaza attack of 2008-09, certainly weakens your letter’s claim that “on balance, the United States has played a constructive role at the Human Rights Council.”

It is not too late for HRW to demonstrate its independence from the U.S. government by writing a letter to President Obama outlining the most egregious U.S. human rights violations that should be reversed in order for the country to serve as a credible member of the UN Human Rights Council. HRW’s letter could demand an end to the Obama’s extrajudicial “kill list,” an authoritarian U.S. policy for which a Venezuelan analogue is nonexistent and inconceivable, and the letter could also condemn U.S. intransigence within the Council, particularly toward Palestinian human rights.

Our third and final example questioned HRW’s lack of opposition to Obama’s consideration of a missile strike on Syria in 2013—a violation of the UN Charter’s prohibition on the unilateral “threat or use of force” in international affairs. We appreciate your clarification of HRW’s mandate, “which is to monitor governments’ adherence to international human rights and humanitarian law.” We would urge HRW to consider expanding its purview to adopt the UN Charter as a foundation for its legal determinations due to the inevitable human rights violations that occur as a result of a war of aggression, considered the “supreme international crime” by the Nuremberg Tribunal.

We express our concern, however, that HRW’s stated neutrality on matters of war and peace is compromised by your public statements of questionable judgment. At the height of intense pressure for a U.S. bombing campaign on Syria in late August of 2013, you all but advocated military intervention on social media, while maintaining plausible deniability in the context of a climate of warmongering. A sampling of your tweets include:

* To justify #Syria inaction, top US general trots out age-old ethnic animosities line. Heard that B4? Bosnia. Rwanda. trib.al/qSzrz1N

* Top general suggests US is more interested in a geopolitical partner in #Syria than saving civilians from slaughter. trib.al/WElNRGM

* It took chemical attack to convince Obama/Kerry that Assad isn’t interested in negotiated solution!? No more excuses. trib.al/viu2scd

* If the appalling slaughter in #Syria won’t get Obama to act, maybe ridicule will: trib.al/gp7HDo1

* If Obama decides to strike #Syria, will he settle for symbolism or do something that will help protect civilians? trib.al/hl6QhA1

Such behavior is unbecoming for the head of a major human rights organization and runs counter to the spirit of HRW’s official neutrality toward the impending intervention in Syria. We encourage you to demonstrate greater tact and responsibility in light of the near-inevitability that U.S. missile strikes would have led to violations of international humanitarian law, including the killing, maiming, and displacement of many innocent civilians—as shown by the U.S. bombings of Yugoslavia in 1999, and of Iraq during the 2003 invasion and subsequent years of war.

HRW’s official abstention from endorsing or opposing wars also appeared to be broken by Tom Malinowski’s March 27, 2011 article in The New Republic on NATO’s Libya intervention. The piece was originally titled “Why Isn’t Obama Getting Credit For Stopping An Atrocity?” and contended that “NATO acted more quickly [than in Bosnia] to stop atrocities in Kosovo.” In the case of Kosovo, “we could see and feel the difference Clinton and NATO had made.” Malinowski then celebrated NATO’s intervention in Libya as “the most rapid multinational military response to an impending human rights crisis in history” for which “we should be grateful.”

As Washington director for HRW at the time of the article, Malinowski offered no disclosure of his previous responsibilities in foreign-policy speechwriting as the Senior Director of the White House’s National Security Council during Clinton’s bombing of Yugoslavia in 1999. Nor did his sanitized portrayal of those actions include his own organization’s inconvenient conclusion that “NATO committed violations of international humanitarian law.” Malinowski’s piece also omitted the clearly unconstitutional nature of Obama’s military intervention in Libya. Furthermore, he excluded evidence that the NATO coalition quickly had moved away from the scope of the civilian-protection mandate provided in UN Resolution 1973 and toward the aim of regime change, which conformed with Obama’s comments weeks prior that “it’s time for Qaddafi to go.”

More egregiously, the following year—months after your organization’s report, “Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya,” examined eight NATO strikes that killed 72 civilians—Malinowski offered unalloyed praise for the NATO intervention. He argued that “Barack Obama’s administration made its most unequivocal stand on behalf of an Arab Spring uprising” in Libya, where the destabilizing consequences of the administration’s support in arming rebel forces continue to be felt. Completely ignoring the issue of civilian deaths at the hands of NATO (confirmed by HRW itself), Malinowski claimed in this October 2, 2012 Foreign Policy article that “recent events have reinforced, not weakened, the rationale for supporting political change in the Arab world.”

Advocacy divorced from HRW’s own empirical findings, unconditionally applauding U.S.-NATO military actions in Libya and endorsing their suitability elsewhere, is a predictable outcome for a former Clinton official who became HRW’s chief lobbyist in Washington, and who may have aspired to a position in the Obama administration as he wrote such statements. However, such advocacy is unhelpful to HRW’s stated concerns over NATO’s airstrikes and its failure “to acknowledge these casualties or to examine how and why they occurred.”

We are heartened, Mr. Roth, by your expressed willingness to “speak out, as we have done” in Kosovo and elsewhere. But HRW’s track record for holding NATO accountable for its violations of international humanitarian law is wholly inadequate. Javier Solana initiated a war in violation of the UN Charter in 1999 and presided over the deliberate NATO bombing of a Serbian television station, a war crime that killed 16 civilians including a make-up artist, a cameraman, an editor, and a program director.

In your May 1999 letter to Solana, which mentioned that bombing, you urged that “these issues be scrutinized promptly and rigorously,” and that “disciplinary or criminal investigations be launched.” NATO implemented none of your suggestions and has held no one to account for that atrocity or for any other crime in Yugoslavia. And yet Solana was awarded a position on HRW’s board in 2011. It is hard to escape the conclusion that HRW’s admonishments of NATO’s behavior are toothless, and that Solana’s subsequent leadership role at HRW signals to former and future NATO leaders who violate international law that they should be undeterred by HRW’s objections and inquiries.

Finally, you responded to our emphasis on HRW’s ties to the United States by mentioning the involvement of former government officials of Mexico, Peru, South Africa, and other countries at HRW. But our focus is HRW’s ties to the foreign-policy divisions of the U.S. government, which, unlike the foreign-policy arms of many of the governments you cite, are continuously engaged in massive human rights abuses. This is a consequence of the status of the United States as the world’s sole military superpower, which frequently violates international law with impunity, and, as in the case of its invasion of Iraq, is responsible for the deaths of hundreds of thousands of people. As a recent poll showed, the rest of the globe sees the United States as “the greatest threat to peace in the world today” by a wide margin, so HRW’s unabashed closeness to that government is understandably viewed as an extremely political decision.

One of us would be delighted to meet with you whenever convenient at your New York offices to discuss these matters further and to personally deliver a petition signed by over 15,500 people so far, along with their individual comments in support of the following demand:

The credibility of a global human-rights organization depends on its independence. Human Rights Watch has done important, critical work, but it can do better. It should implement at least a five-year “cooling-off” period before and after its associates move between HRW and the U.S. government’s foreign-policy divisions. Human Rights Watch associates should concentrate on protecting human rights. They should not have conflicts of interest with past or future careers in branches of the U.S. government that may themselves be involved in human-rights violations.

We eagerly await your reply, and believe that HRW’s implementation of cooling-off periods for its associates and its removal of Solana from its board of directors will represent valuable first steps toward greater independence. Thank you for engaging with us on issues that we believe are essential to the pursuit of human rights throughout the world.

Sincerely,

Mairead Maguire – Nobel Peace Prize Laureate (1977)

Adolfo Pérez Esquivel – Nobel Peace Prize Laureate (1980)

Richard Falk – United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (2008-14)

Hans von Sponeck – United Nations Assistant Secretary General (1998-2000)

Keane Bhatt – activist, writer