Abstract
In the aftermath of the attacks on September 11, 2001 (hereinafter 9/11), the members of the United Nations (UN) developed a common front against international terrorism through the widespread adoption of 16 international counter-terrorism legal instruments and a pledge to foster inter-state cooperation. However, differences soon re-emerged in the implementation phase. While the government of the United States favored an exceptional or “war” approach to counter-terrorism, its European Union (EU) counterparts opted mainly for a rule of law or criminal justice approach. To assess the impact of these two approaches on international human rights, I examine counter-terrorism in the United States after 9/11, Spain after March 11, 2004 (hereinafter 3/11) and the United Kingdom (UK) after July 7, 2005 (hereinafter 7/7), with a focus on the right to due process and the right to be free from torture. Based on these case studies, I conclude, first, that since none of the three states has suffered another successful attack, the rule of law approach is at least as effective as the “war” approach. Second, States that follow the “war” approach are more prone to violations of human rights. And third, that upholding the rule of law fosters relevant counter-terrorism cooperation between the United States and Europe.
Preliminary research for this chapter started at the 2006 NEH Human Institute on “Human Rights in Conflict: Interdisciplinary Perspectives” (New York City, June 26–July 28). However, any views, findings, conclusions, or recommendations expressed in this publication do not necessarily reflect those of the National Endowment for the Humanities.
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Notes
- 1.
UNSCR 1373 (2001) made international counter-terrorism legislation legally binding on all the members of the UN immediately after 9/11.
- 2.
Currently there are sixteen international instruments (13 Conventions) on terrorism and “some two-thirds of UN Member States have either ratified or acceded to at least 10” (Counter-Terrorism Committee, 2009, September 18).
- 3.
According to the doctrines of humanitarian intervention (HI) and, more recently, of the Responsibility to Protect (R2P) the use of force is legitimate when a State is accused of genocide or crimes against humanity (Wheeler 2000, and International Coalition for the Responsibility to Protect (n.d)).
- 4.
“[T]he enemy is not just ‘terrorism,’ some generic evil…. It is the threat posed by Islamist terrorism – especially the al-Qaeda network, its affiliates, and its ideology” (The 9/11 Commission, 2004, p. 362).
- 5.
Transnationalism is a question of degree because “[m]any terrorist organizations (such as the PLO, IRA, and ETA) have operated and trained across jurisdictions [in the past]” (Gross and Ní Aoláin, 2006, pp. 379–380).
- 6.
“[T]he perpetrators, victims, or audience are from two or more [States]” and/or “the attacks occurred in two or more States” (Sandler and Arce 2008, March 6, p. 9).
- 7.
Some argue that the lethality of these cells can be overstated, with negative effects for human rights protection (Matthew and Shambaugh, 2005, p. 617).
- 8.
The president of the United States, and the prime ministers of Spain and the UK met in the Azores where they agreed to a common front against terrorism in Iraq (BBC News 2003, March 16).
- 9.
International humanitarian law or the laws of war are not the focus here, but are mentioned when relevant.
- 10.
Prior to 9/11, the United States criminally prosecuted Islamist terrorists. For example, those accused of the February 26, 1993, bombing of the World Trade Center (The 9/11 Commission, 2004, p. 72). In the rule of law approach, the military is used sparingly and as a last resort.
- 11.
After 9/11 and prior to the Madrid and London bombings, successful attacks included Indonesia, Morocco, and Turkey (Shuster 2005, July 7).
- 12.
For example, the military regimes in Argentina and Chile during the Cold War effectively curtailed habeas corpus and no judicial control favored the systematic practice of torture and disappearances.
- 13.
Convention Against Torture, Cruel, Inhuman and Degrading Treatment (CAT). In G.A. Res. 39/46, 39 UN GAOR, Supp. (No. 51), UN Doc. A/39/51, at 197 (1984). The Convention Against Torture was adopted on December 10, 1984, and entered into force on June 26, 1987. Spain (October 21, 1987), the UK (December 8, 1988) and the United States (October 21, 1994) are parties to it (see dates of ratification between parentheses) and to the monitoring of the Committee on Torture.
- 14.
Listed in Art. 4 (2) of the International Covenant on Civil and Political Rights (ICCPR). They include the right to life (Art. 6), the right to be free from torture (Art. 7 of the ICCPR), the right to be free from slavery and servitude (Art. 8), nonretroactivity of criminal law or nullum crimen sine lege (Art. 15), recognition as a person before the law everywhere (Art. 16), and freedom of thought, conscience, and religion (Art. 18). The ICCPR was adopted on December 16, 1966, and entered into force on March 23, 1976. For its complete text, see G.A. Res. 2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS 171, reprinted in 6 ILM 368 (1967). Spain, the UK, and the United States are parties to the ICCPR. The dates of ratification of the three are as follows: Spain (April 27, 1977), the UK (May 20, 1976) and the United States (June 8, 1992). For wartimes, common Article 3 of the Geneva Conventions lists non-derogable rights. See footnote 41 below.For an in-depth analysis of states of emergency with a focus on terrorism, which is beyond the scope of this chapter, see Gross and Ní Aoláin (2006, Chap. 7).
- 15.
Hereinafter, “war” and “exceptional” are used as synonyms.
- 16.
Hereinafter, “criminal justice,” “rule of law,” and “law enforcement” are used as synonyms.
- 17.
On the morning of 9/11 four teams of suicide terrorists (three teams of five and one of four) hijacked four American planes with transcontinental routes – American 11 and United 175 departing from Boston, American 77 departing from Washington, DC, and United 93 departing from Newark, NJ. The terrorists flew the first two planes into the World Trade Center in New York City causing close to 3,000 civilian deaths and numerous injuries (The 9/11 Commission, 2004, Chap. 1). The third plane was flown into the Pentagon in Arlington (VA) killing 189 individuals – 64 civilians on board and 125 people in the Pentagon, of which 55 were military personnel – and injuring over 100 (The 9/11 Commission, 2004, p. 314). United 93 did not reach its objective because the passengers forced the four terrorists to crash it in Shanksville, PA. A total of 33 passengers, 7 crew members and the 4 terrorists died (The 9/11 Commission, 2004, p.14).
- 18.
For example, the government closed our national airspace. “For the first time [in the nation’s history] all nonemergency civilian aircraft in the United States were grounded” (The 9/11 Commission 2004, p. 326).
- 19.
In the United States, as a rule, convictions are based on charges of material support to terrorism (Zabel and Benjamin 2009, July, Preface).
- 20.
The adoption of the ongoing war in Afghanistan was the least problematic of these measures because according to international law – the UN allows the use of force in self-defense (Art. 51 of the Charter of the UN) – the US had the right to strike back against the country that, at a minimum, harbored al-Qaeda. The “Enduring Freedom” operation against the Taliban started at the end of September 2001.
- 21.
An important supporter of this view is David S. Addington, Chief-of-Staff of the Vice-President (Dick Cheney) and responsible for “the New Paradigm, [a] strategy [that] rests on a reading of the Constitution that few legal scholars share – namely that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it” (Mayer 2006, July 3, p. 44).
- 22.
In the United States, past limitations to due process include President Abraham Lincoln’s (1861–1865) suspension of the writ of habeas corpus to save the Union during the Civil War and President Franklyn D. Roosevelt’s (1933–1945) forced internment of any person of Japanese ancestry living in the mainland during WW II.For a detailed history of military commissions in the United States, see Louis Fisher (2005).
- 23.
Pious briefly comments on crucial Supreme Court precedents. For example, Ex Parte Milligan and Ex Parte Endo which affirmed that although the elected branches can suspend habeas corpus, the judiciary has jurisdiction to hear cases involving such suspension (Pious, 2006, pp. 125–26).
- 24.
The acronym stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (2001, October 26). 115 STAT. 272, Public Law 107–156. Act signed into law by President George W. Bush on October 26, 2001 after it passed the House of Representatives (October 24) and the Senate (October 25). Hereinafter referred to as the Patriot Act.
- 25.
Justified in “Memorandum for General Counsel William J. Haynes, II, U.S. DoD” (Philbin and Yoo, 2001, December 28, p. 29). The Patriot Act also interferes with the right to privacy of the Fourth Amendment to the U.S. Constitution. In addition, it broadens the definition of terrorism to include domestic terrorism (ACLU 2002, December 6).
- 26.
For example, Yaser Esam Hamdi, José Padilla, and Ali Saleh Kahlah al-Marri are all American citizens.
- 27.
3 C.F.R. 918 (2001 comp.); 66 Fed. Reg. 57833 (Nov. 16, 2001). This Order establishes military tribunals (Section I.e) without the protection of “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (Section I.f).
- 28.
See: Sec. IV.c.(8) and Sec. VII.a.(2) of the Military Order on “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.
- 29.
- 30.
MCA (2006, October 17). Pub. L. No. 109–336, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.). For a brief critique of the MCA, see Center for Constitutional Rights (n.d.).
- 31.
A former CIA agent, Robert Baer, explained: “If you want them to be tortured, you send them to Syria. If you want someone to disappear…you send them to Egypt (Human Rights Watch 2006, November, p. 33). See also The Committee on International Rights (2005, p. 13). In addition, “President Bush decided on 6 September 2006 to reveal the existence of the covert programme implemented by the CIA to arrest, detain, and interrogate overseas high-value terrorist suspects” (Council of Europe 2007, June 7, paras. 22 & 25). Art. 3 of the 1984 CAT forbids extraordinary renditions or réfoulement.
- 32.
Hamdi v. Rumsfeld 542 U.S. 507 (2004), decided June 28. Plurality decision with three dissents.In Rumsfeld v. Padilla 124 S. Ct. 2711; 159 L. Ed. 2d 2729 (2004), June 28, the Supreme Court (by 5 to 4) rejected the ruling of the Court of Appeals – Padilla v. Rumsfeld, 352 F.3d 695 (2003, December 18) – based on a procedural issue, i.e., use of the wrong court. Afterwards, “[o]n November 22, 2005, the Bush administration switched its legal strategy of dealing with citizen detainees. It indicted José Padilla” (Pious 2006, p. 141).
- 33.
Boumediene v. Bush 128 S. Ct. 2229 (2008), decided 5–4 on June 12, 2008. Litigation in U.S. federal courts is allowed to those detained at Guantánamo.
- 34.
Rasul v. Bush 542 U.S. 466 (2004). Decision of 6–3 on 28 June 2004. As a response to this ruling, the Bush Administration created the Combatant Status Review Tribunal (CSRT) to determine the legality of individual detentions in Guantánamo.
- 35.
Hamdam v. Rumsfeld 548 U.S. 557 (2006). Decision of 5–3 on June 29, 2006. The case refers to a non-citizen in custody in Guantánamo since 2002. For Justice Alito (dissenting opinion) the commissions are “regularly constituted courts.”The Court also declared that it retains its judicial power and that “Guantánamo Bay is neither enemy-occupied territory nor under martial law.”
- 36.
Art. 5 of the UDHR and Art. 7 of the ICCPR.
- 37.
See Third Geneva Convention, Relative to the Treatment of Prisoners of War, Aug. 12, 1949 [1955] 6 U.S.T. 3316, 3320, T.I.A, S. No. 3364. Common Article 3, bans “mutilation, cruel treatment and torture” (a) and “outrages upon personal dignity, in particular humiliating and degrading treatment” (c).
- 38.
Art. 1(1) of the CAT defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Art 2 (1) imposes the duty on “[e]ach state party…to take effective [measures]…to prevent acts of torture in any territory under its jurisdiction.” Art. 2 (2) bans any derogation of this prohibition. And Art. 2 (3) denies the validity of following orders to eliminate individual responsibility for torture.
- 39.
The government has to comply with these laws according to the supremacy clause of Art.VI of the Constitution. J. E. Alvarez (2006) summarizes the main international rules violated.
- 40.
“He handed us a piece of paper called an IROE (Interrogation Rules of Engagement). It listed the things that the Pentagon said were acceptable to use during interrogations, but it was also sort of an open-ended document – it encouraged the interrogator to be creative” (Conroy 2007, March 2, p. 14).The International Committee of the Red Cross was in Iraq between March and November 2003 (ICRC 2004, February). In a later report, “the ICRC clearly considers that the allegations of the fourteen include descriptions of treatment and interrogations techniques – singly or in combination – that amounted to torture and/or cruel, inhuman or degrading treatment” (February 2007, p. 5).
- 41.
The memos positioned the president above the law. For example, Attorney General Alberto Gonzales stated in early 2005: “I guess I would have to say that hypothetically that authority [of the President to violate the ban on torture] may exist” (Lichtblau 2005, January 7).
- 42.
This definition is in violation of Art. 1 of the CAT. See note 42.
- 43.
G.W. Bush. “Memorandum on Humane Treatment of al-Qaeda and Taliban Detainees” (p. 135). The Director of Central Intelligence and the Chairman of the Joint Chief of Staff were among the addressees of this memo.
- 44.
The techniques are classified into three categories of increased duress, including, for example, “[s]tress positions (like standing) for a maximum of four hours” (Category II, (1)); “isolation…up to 30 days [renewable]” (Category II (3)); “deprivation of light and auditory stimuli” (Category II, (5)); “[u]se of a wet towel and dripping water to induce the misperception of suffocation” (Category III (3)) [waterboarding] (Phifer, 2002, October 11).
- 45.
He finally signed the bill with an amendment that “prohibit[s] the ‘cruel, inhuman, or degrading’ treatment of any detainee in U.S. custody anywhere in the world.” (White 2005, December 16).
- 46.
In England through the Good Friday Agreement of April 10, 1998. ETA has been operationally weak since at least the late 1990s. See “Speech of Miguel Linán Macías, Representative from the Spanish Ministry of Defense, Before a NATO Seminar on Terrorism,” in Warsaw, Poland on February 22, 2002 (pp. 118, 122).
- 47.
- 48.
“[B]etween 1983 and 1987, the Antiterrorist Liberation Groups (GAL) which were death squads financed by secret funds of the Interior Ministry, killed 28 people, a number of whom later turned out to be unconnected to ETA” (Human Rights Watch 2005, January 27, p. 14). Central figures of the GAL were prosecuted and sentenced to prison terms (Gordillo 2003, December 6).
- 49.
After the 2005 terrorist attacks the “war” paradigm lost its full strength in the UK (Transnational Terrorism, Security, and the Rule of Law 2008, November 12, pp. 6, 37–38).
- 50.
The 3/11 terrorist attacks occurred only 3 days before the Spanish national elections, but I focus on Spanish counter-terrorism strategy. The debate continues on the impact of the bombings on the Spanish electorate (Lago and Montero 2006, July, pp. 13–36).
- 51.
Some believe that Prime Minister Aznar intentionally misled the country to avoid the electoral defeat of his party in the upcoming elections (Rodríguez 2005, June 23).
- 52.
Or Centro Nacional de Coordinación Antiterrorista (CNCA) in Spanish. It followed the example of the U.S. Department of Homeland Security.
- 53.
- 54.
The definition of a terrorist in Art. 571 of the November 23, 1995, Spanish Penal Code (modified in 2003) is specific and includes an objective element, either destruction or arson apart from “the goal of subverting the constitutional order or seriously alter the public peace” [my translation from Spanish]. The punishment is of “15 to 20 years of deprivation of freedom in addition to the punishment reserved to [any physical or material harm caused].” Nobody can serve more than 40 years in prison in one conviction (Art 76 (1)c).For the Code’s text in Spanish, see: Ley Orgánica 10/1995, de 23 Noviembre, del Código Penal, BOE núm. 281, de 24 de noviembre; corrección de errores en BOE núm. 54, de 2 de marzo de 1996. The modifications can be checked in BOE no. 283 (26 November 2003), no. 65 (16 March 2004), no. 80 (2 April 2004) and no. 309 (26 December 2003). The BOE is the Spanish Official Gazette, where laws have to be published to have legal effects.
- 55.
According to Cándido Conde-Pumpido Tourón, the Fiscal General del Estado or Spain’s chief prosecutor, those accused of the 3/11 ‘were imprisoned by ‘an ordinary court with professional judges, without using any exceptions [or] shortcuts or making any legal changes’ [my translation from Spanish] (Conde-Pumpido afirma 2008, May 29).
- 56.
Mitigating circumstances were applied to José Emilio Suárez Trashorras due to his mental condition. No mitigation circumstances were applied to either one of the others.
- 57.
The office of the prosecutor, the defendants and associations of citizens appealed the verdict.
- 58.
Rabei Osman el Sayed, known as The Egyptian, was acquitted in the Audiencia Nacional due mainly to double jeopardy (U.S. Department of State 2009, April, p. 98).
- 59.
For example, Hamid Ahmidan was sentenced to 12 years in prison for belonging to a terrorist organization and Kenneth Odey Agi was recognized as a victim with a right to compensation and Dumitri Amariei was awarded a higher amount of compensation (Tribunal Supremo, 2008, July 17, Verdict).
- 60.
The failed terrorist attack of July 21, 2005, reinforced the need for change.
- 61.
On August 5, 2005, Prime Minister Tony Blair affirmed: “The rules of the game are changing” (2005, August 5). Moreover, Mr. John Reid, Interior Minister in 2006 emphasized that “we may have to modify some of our freedoms in the short term in order to prevent their misuse and abuse” (BBC News 2006, August 9).
- 62.
Those responsible for this excess remain unpunished. A new review by the Independent Police Complaints Commission (IPCC) concluded in October that is “standing by their original decision not to recommend disciplining the officers” (BBC News 2009, October 2).
- 63.
Laborist Foreign Secretary David Miliband affirmed: “the idea had unified disparate ‘terrorist groups’ against the West. He said the right response to the threat was to champion law and human rights – not to subordinate it” (BBC News 2009, January 15). The current British Prime Minister, the Laborist Gordon Brown (2007–present), on the eve of the approval of a new counter-terrorism strategy in March 2009 stated his absolute stance against torture (2009, March 22).
- 64.
- 65.
The 2005 Prevention of Terrorism Act allowed the home secretary to issue control orders to limit a person’s freedom. Control orders are problematic from a human rights perspective because of their unlimited duration (issued for periods of 12 renewable months) and limited judicial oversight. Currently 17 individuals – including 8 foreigners – are under control orders (Travis 2009, May 21).
- 66.
It is contrary to the jurisprudence of the ECtHR. See Soering v. United Kingdom, Judgment of July 7, 1989. Alleged torture by British troops in Iraq is beyond the scope of this chapter. The broad definition of terrorism of the 2006 Terrorism Act, which includes encouragement of terrorism, exacerbates the negative effects of these violations.
- 67.
“[I]ts plans to extend pretrial detention, the use of control orders and the policy of deportation of terrorist suspects, [are based on]…its position…that terrorism undermines fundamental human rights…. At present, all detention beyond 48 hours must be authorized by a judge and the person concerned can…be legally represented. Continued detention is agreed only if the detention is still judged to be necessary and the investigation is being carried out diligently and expeditiously” [emphasis added] (UN General Assembly 2008, May 23, para. 8).
- 68.
Although “[i]n his May 21, 2009 speech at the National Archives, President Obama indicated that the administration may suggest a more formalized approach to the detention of dangerous individuals who cannot be prosecuted but who ‘in effect, remain at war with the United States;’” de facto, the “war” approach continues to dominate (Obama 2009, May 21). However, it may change because John Brennan, the White House’s Counter-terrorism Chief disagrees not only with the terminology (“war”) but also with its tactics (focus on the use of the military, torture techniques and unlimited detention) (Kelly 2009, August 6).
- 69.
See Art. 29.2 and 30 of the Universal Declaration of Human Rights (UDHR) adopted December 10, 1948, G.A. Res. 217A (III), UN Doc. A/810, at 71 (1948).
- 70.
Art. 4 (1) of the ICCPR. In addition, the limitations have to respect other treaty obligations and the principle of nondiscrimination.
- 71.
According to the Office of the High Commissioner for Human Rights (OHCHR), “[t]he purpose of security measures is, fundamentally, to protect freedom and human rights” (Office of the High Commissioner 2002, September 23).
- 72.
Even when confronted with national security interests.
- 73.
“The U.S. policy on treating detainees is undermining the war on terrorism by tarnishing America’s reputation as a moral leader, says a report released Monday by former members of the bipartisan commission that investigated the 9/11 terrorist attacks” (Slavin 2005, November 15).
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Pérez-Ríos, M.V. (2011). Divided We Stand? American and European Perspectives in the Fight Against Transnational Terrorism. In: Andreopoulos, G., Barberet, R., Levine, J. (eds) International Criminal Justice. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-1102-5_6
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