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"Can Law Guide the War on Terror, or Can’t It? A Sad Question, a False Dilemma, and a New Way Around It"
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Secretary of Defense, or the President. Even if the “law is against” it,
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the Bush
administration (and likely successive administrations) is following a course that could over time make the law as it has been known and interpreted irrelevant, or at least
unworkable, given the inconvenience costs of the law as factored into the security calculus.
On top of all of this, there are related factors, more political than legal in nature,
which complicate the search for a common ground and bring into sharper focus the need
for a third way:
•
US policymakers do not necessarily consider the law first before making policies, as many had hoped when the Cold War was put behind us.
11
Rather, given what
we know about the work process of the Bush administration, officials are likely formulating policy, searching for or devising permissible rules, and demoting the rest. In other words, law is not driving policy, so we need to wonder what it means to ask whether the law is too restrictive or unrestrictive enough to accommodate said policy.
•
Public fear allows those doing the interpreting to take unprecedented action “to do what is needed” in the fight against terrorism. These actions include policies related to domestic spying programs and to the treatment of people in and rendered from US detention. That this war has the potential to continue indefinitely, and because terrorism is a very real threat capable of rearing its ugly head at any time, there is a certain degree of public tolerance for potentially illegal government behavior, and public dismissal of international legal (and municipal) rules that are perceived (and presented) as limiting and therefore part of the threat itself.
•
“Terrorism” and “terrorist” are ill-defined terms in international law, leaving plenty of room for interpretation and selective application of the laws. What has predictably developed and obtained since 9/11 is the “we know it when we see it” approach, authored by the United States, a corollary of which is “our gut feeling is that the people we have in detention are terrorists intent on harming the homeland.” In other words, the selective application and interpretation of categories related to terrorism and its suspects are at least in part a function of the law’s underdevelopment.
10
For a painstaking analysis of the laws relative to the status and rights of detainees, see Jordan J. Paust,
“Judicial Power To Determine the Status and Rights of Persons Detained Without Trial,” 44 Harvard International Law Journal 503 (2003). Relatedly, see Paust, “There is No Need to Revise the Laws of War in Light of September 11th,” ASIL Presidential Task Force on Terrorism Series (2002), at
www.asil.org/taskforce/paust.pdf
.
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Johnstone, in developing the idea of consensus-based interpretive community, echoes this hope: “Now
that the Cold War is over and international affairs, in all probability, will no longer be dominated by superpower conflict, a new era of collective security and international law may be upon us.” Ian Johnston, “Treaty Interpretation: The Authority of Interpretive Communities,” 12 Mich. J. Int'l L. 371 (1991).
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| | Authors: Abbassi, Jennifer. |
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Secretary of Defense, or the President. Even if the “law is against” it,
administration (and likely successive administrations) is following a course that could
over time make the law as it has been known and interpreted irrelevant, or at least
unworkable, given the inconvenience costs of the law as factored into the security
calculus.
On top of all of this, there are related factors, more political than legal in nature,
which complicate the search for a common ground and bring into sharper focus the need
for a third way:
•
US policymakers do not necessarily consider the law first before making policies,
as many had hoped when the Cold War was put behind us.
Rather, given what
we know about the work process of the Bush administration, officials are likely
formulating policy, searching for or devising permissible rules, and demoting the
rest. In other words, law is not driving policy, so we need to wonder what it
means to ask whether the law is too restrictive or unrestrictive enough to
accommodate said policy.
•
Public fear allows those doing the interpreting to take unprecedented action “to do
what is needed” in the fight against terrorism. These actions include policies
related to domestic spying programs and to the treatment of people in and
rendered from US detention. That this war has the potential to continue
indefinitely, and because terrorism is a very real threat capable of rearing its ugly
head at any time, there is a certain degree of public tolerance for potentially
illegal government behavior, and public dismissal of international legal (and
municipal) rules that are perceived (and presented) as limiting and therefore part
of the threat itself.
•
“Terrorism” and “terrorist” are ill-defined terms in international law, leaving
plenty of room for interpretation and selective application of the laws. What has
predictably developed and obtained since 9/11 is the “we know it when we see it”
approach, authored by the United States, a corollary of which is “our gut feeling is
that the people we have in detention are terrorists intent on harming the
homeland.” In other words, the selective application and interpretation of
categories related to terrorism and its suspects are at least in part a function of the
law’s underdevelopment.
10
For a painstaking analysis of the laws relative to the status and rights of detainees, see Jordan J. Paust,
“Judicial Power To Determine the Status and Rights of Persons Detained Without Trial,” 44 Harvard
International Law Journal 503 (2003). Relatedly, see Paust, “There is No Need to Revise the Laws of War
in Light of September 11th,” ASIL Presidential Task Force on Terrorism Series (2002), at
.
11
Johnstone, in developing the idea of consensus-based interpretive community, echoes this hope: “Now
that the Cold War is over and international affairs, in all probability, will no longer be dominated by
superpower conflict, a new era of collective security and international law may be upon us.” Ian Johnston,
“Treaty Interpretation: The Authority of Interpretive Communities,” 12 Mich. J. Int'l L. 371 (1991).
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