The War on Terror and International Human Rights: Does Europe Get It Right?

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I. INTRODUCTION

The global war on terror, spearheaded by the United States since September 11, 2001, has seen ongoing tensions between military, law enforcement and political expediencies on the one hand, and protection of basic international human rights law principles, including those reflected in national constitutions and statutes, on the other. Seldom has any regime ostensibly committed to rule of law as a core national value drawn more criticism outside its borders than the United States over the waging of this "war." (3) Images of Guantanamo detentions, military commissions with ambiguous jurisdictional authority, Abu Ghraib prisoner abuses, extraordinary renditions, erratic U.S. court decisions, U.S. government memoranda attempting to justify torture, and a U.S. administration that openly stated its disagreement with applying international laws (human rights and otherwise) to how this war is conducted, all combine to raise doubts about whether the U.S. commitment to the rule of law is real, imagined, or somewhere in-between. (4)

In 2002, reflecting upon the September 11 tragedy just a year after its occurrence, Professor Aronofsky warned against arbitrary justice and making up our anti-terrorism laws as we go along, contrary to the American way. (5) Although the U.S. Supreme Court has, at least to a limited extent, mitigated some of the more egregious abuses of Guantanamo detainee legal rights, the Court's refusal to apply the full range of substantive and procedural legal protections characterized in both the U.S. Bill of Rights and in international human rights law treaties (modeled in no small part from the U.S. Bill of Rights) continues to treat meaningful rule of law values as undesirable annoyances. This is not to criticize or downplay the ferocious legal advocacy engaged in to date within the U.S. court system in defense of these legal protections, but instead to ask aloud here about how to make such advocacy more effective in redressing two serious ongoing problems as to the litigation of such U.S. cases: 1) the lack of viable causes of action, and 2) the insufficient opportunities for remedial redress.

With the recent change in U.S. Administration, the question of how the U.S. will (and should) approach the ongoing problems in the coming years is to date unresolved. Although the present authors make no guess as to how the U.S. will proceed, the answer of how the U.S. should proceed may well lie in Europe's well-developed human rights jurisprudence. This article will survey a number of U.S. court decisions since September 2001, followed by an examination of the legal policy problems with the Bush administration's tactics and the accompanying U.S. litigation results, and conclude with a comparative examination of the European human rights law approach. It is the position of the present authors that the U.S. would be well served to, at the very least, examine Europe's relative success in fighting the war on terror, while at the same time preserving the rule of law, and incorporate the European experiences into the U.S. system of law.

II. INTRACTABLE PROBLEMS IN U.S. LITIGATION REGARDING THE WAR ON TERROR: THE LACK OF VIABLE CAUSES OF ACTION AND MEANINGFUL REMEDIAL REDRESS

   In considering both the procedural and substantive standards used
   to impose detention to prevent acts of terrorism, the courts must
   accord proper deference to the political branches.... There are
   further considerations, however. Security subsists, too, in
   fidelity to freedom's first principles. Chief among these are
   freedom from arbitrary and unlawful restraint and the personal
   liberty that is secured by adherence to the separation of powers.
   (6)

Despite protections outlined in the Bill of Rights, as well as safeguards in both international customary and treaty law, many suspected terrorists detained in the United States have been denied fundamental due process prior to, during, and after trial. …