Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?

20 Pages Posted: 26 Apr 2012 Last revised: 4 Jun 2013

See all articles by Amos N. Guiora

Amos N. Guiora

University of Utah - S.J. Quinney College of Law

Date Written: April 25, 2012


Ten years after the 9/11 terrorist attacks, questions remain regarding the relationship between human rights and counterterrorism. The historical track record of the Executive Branch, Supreme Court, and Congress in this vein is troubling. While the contradiction suggested in this Essay's title need not be the case it is, nevertheless, the persistent reality in American history.

This Essay assesses the current relationship between human rights and counterterrorism. In doing so, it reflects on wartime measures implemented by presidents throughout U.S. history and recommends a way forward that facilitates more effective protection of human rights without impinging on legitimate national security considerations. Many counterterrorism measures adopted in the aftermath of 9/11, including torture, rendition, indefinite detention, and denial of habeas corpus, reflect a fundamental denial of human rights. Furthermore, evidence that the circumstances do not justify such extraordinary measures illustrate that the tension between human rights and counterterrorism requires constant vigilance. This was recently highlighted when Attorney General Eric Holder suggested that individuals suspected of involvement in terrorism be denied Miranda rights. In recommending “ways forward” this Essay analyzes how operational counterterrorism measures can meet the recommended two-part test of respect for human rights and enhancing national security without unduly minimizing one at the expense of the other. It concludes that crisis points involving national security concerns are precisely when the Judiciary must engage in active judicial review in safeguarding basic rights.

Keywords: President Lincoln, President Wilson, President Franklin Roosevelt, President George W Bush, President Obama, civil liberties, military commissions, habeas corpus, 9-11, Miranda rights, judicial review, unitary executive theory, free speech, internment of Japanese-Americans, indefinite detention

JEL Classification: N40

Suggested Citation

Guiora, Amos N., Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows? (April 25, 2012). Georgia Law Review, Vol. 46, No. 743, 2012, University of Utah College of Law Research Paper No. 31, Available at SSRN: or

Amos N. Guiora (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-581-4295 (Phone)
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