Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?
Amos N. Guiora
University of Utah - S.J. Quinney College of Law
April 25, 2012
Georgia Law Review, Vol. 46, No. 743, 2012
University of Utah College of Law Research Paper No. 31
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.
Number of Pages in PDF File: 20
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
Date posted: April 26, 2012 ; Last revised: June 4, 2013