Each argument contains some points worth considering, which are examined below. But
together they are so fiercely dichotomous that it is difficult to imagine their respective
proponents coming up with a workable consensus. It does not have to be this way. We –
legal scholars, political scientists, practitioners, officials -- need a new, third way that is
based on a more effective conceptual framework. Such a framework will need to strike a
finer balance between the letter and spirit of human rights law and the stated goals and
needs of US security strategy, each of which at the moment appears to be living in its
own universe.
The paper is an initial attempt to conceptualize that third way. The conclusions
are not necessarily worth celebrating and probably will not satisfy those on either end of
the spectrum. However, once we agree that powerful states, with the United States in the
lead, are not likely to ease up on “fighting terrorism mercilessly,” it becomes important to
consider what leverage a reconceptualized body of law can have in tempering the use and
abuse of state power.
The Argument for Flexibility
According to this argument, putting up an effective fight against terror requires
nimbleness. US officials in charge of drafting the blueprint for the war on terror probably
believe that, by following existing rules and norms, the country would be made
vulnerable to repeat terrorist attacks. The now famous quote by now-US Attorney
General Alberto Gonzales that provisions in the Geneva Convention are “quaint” reflects
the extent to which the administration is both unconvinced of the need for legal restraint
and floating in unchartered legal waters. This approach might conclude by saying the
administration is “erring on the side of caution.” While it is tempting to accuse the
United States of operating outside the rule of law, those who make and execute US war
on terror policies may actually believe that it is their job under these dire circumstances
to “readapt” the rules as they go along, rules that were not written with these new threats
This is a war, but not of the interstate variety; there are indeed enemies, but
they don’t wear uniforms or pledge allegiance to any particular state. And they don’t
obey the laws of war either, which casts much doubt on the international law notion of
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An experience the author had reflects this point. When, sitting in her neighbor’s living room on the
morning of September 11, 2001 and watching the second tower fall, the newscaster said, “This is an act of
war.” It was easy enough to fall back on well-known phrases, but war against whom, and in what sense?
These questions were troubling at the time and certainly remain open to scrutiny.
4
Convention