Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law

Abstract:     
Following the 9/11 terrorist attacks, those arguing that international law cannot serve as an effective tool in the fight against terrorism have grown. The ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite, has swelled. In November 2001, President Bush issued an executive order asserting the authority to use military commissions to try individual terrorism suspects captured by the United States. Such commissions would be conducted unilaterally and would not be required to include procedural safeguards to protect the rights of the accused.

This crisis has forced us to revisit the question of what the rule of law gets us as a nation and as a people. This article argues that the Administration's treatment of detainees and the military commissions run counter to the rule of law - both domestically, by violating American constitutional protections, and internationally, by flouting established principles of international law. Far from being a straight-jacket that threatens our security, respect for legal process values and international law, will actually best serve our long-term strategic interests in containing terrorism. This article also considers how an international tribunal process could be initiated expeditiously and two alternative "quasi-international" models that have received insufficient consideration thus far. The law skeptics' perspective is also addressed at a more theoretical level, offering some tentative observations about the importance of fair adjudicatory processes despite the fact that societies are always to some degree riven by conflict.

Keywords: terrorism, international law, international tribunals

Accepted Paper Series