The war on terror and international human rights: does Europe get it right?

• Author: Aronofsky, David

1. INTRODUCTION

   The global war on terror, spearheaded by the United States since September 11, 2001, has seen ongoing tensions between military, law enforcement and political expediencies on the one hand, and protection of basic international human rights law principles, including those reflected in national constitutions and statutes, on the other. Seldom has any regime ostensibly committed to rule of law as a core national value drawn more criticism outside its borders than the United States over the waging of this "war." (3) Images of Guantanamo detentions, military commissions with ambiguous jurisdictional authority, Abu Ghraib prisoner abuses, extraordinary renditions, erratic U.S. court decisions, U.S. government memoranda attempting to justify torture, and a U.S. administration that openly stated its disagreement with applying international laws (human rights and otherwise) to how this war is conducted, all combine to raise doubts about whether the U.S. commitment to the rule of law is real, imagined, or somewhere in-between. (4)

   In 2002, reflecting upon the September 11 tragedy just a year after its occurrence, Professor Aronofsky warned against arbitrary justice and making up our anti-terrorism laws as we go along, contrary to the American way. (5) Although the U.S. Supreme Court has, at least to a limited extent, mitigated some of the more egregious abuses of Guantanamo detainee legal rights, the Court's refusal to apply the full range of substantive and procedural legal protections characterized in both the U.S. Bill of Rights and in international human rights law treaties (modeled in no small part from the U.S. Bill of Rights) continues to treat meaningful rule of law values as undesirable annoyances. This is not to criticize or downplay the ferocious legal advocacy engaged in to date within the U.S. court system in defense of these legal protections, but instead to ask aloud here about how to make such advocacy more effective in redressing two serious ongoing problems as to the litigation of such U.S. cases: 1) the lack of viable causes of action, and 2) the insufficient opportunities for remedial redress.

   With the recent change in U.S. Administration, the question of how the U.S. will (and should) approach the ongoing problems in the coming years is to date unresolved. Although the present authors make no guess as to how the U.S. will proceed, the answer of how the U.S. should proceed may well lie in Europe's well-developed human rights jurisprudence. This article will survey a number of U.S. court decisions since September 2001, followed by an examination of the legal policy problems with the Bush administration's tactics and the accompanying U.S. litigation results, and conclude with a comparative examination of the European human rights law approach. It is the position of the present authors that the U.S. would be well served to, at the very least, examine Europe's relative success in fighting the war on terror, while at the same time preserving the rule of law, and incorporate the European experiences into the U.S. system of law.

2. INTRACTABLE PROBLEMS IN U.S. LITIGATION REGARDING THE WAR ON TERROR: THE LACK OF VIABLE CAUSES OF ACTION AND MEANINGFUL REMEDIAL REDRESS

   In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches.... There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. (6) Despite protections outlined in the Bill of Rights, as well as safeguards in both international customary and treaty law, many suspected terrorists detained in the United States have been denied fundamental due process prior to, during, and after trial. Included among such transgressions are "extraordinary renditions," insufficient "enemy combatant" status reviews, warrantless wire-tapping and searches, collaboration with non-U.S, human rights violators, and the elimination of guaranteed congressional safeguards, such as habeas corpus. (7) The lack of viable causes of action and meaningful remedial relief has left detainees in a world of limbo, in which they have suffered illegal treatment (sometimes as gross as torture), but have nowhere to turn for legal redress. This fact has only served to increase the already widespread criticism of the United States' response to terrorism, both inside and outside the country. This section highlights some of these failings.

   1. Extraordinary Rendition: No Viable Legal Claim

      Although internationally condemned, the policy of "extraordinary rendition" has met with tacit acceptance by U.S. courts, which have avoided the issue either by reframing the question presented, or by excessively deferring to the discretion of Congress and/or the executive branch. Arar v. Ashcroft is a telling example. (8) After being removed in 2002 to Syria, where he was subjected to torture, Maher Arar, a dual citizen of Syria and Canada, brought action against the United States and several government officials, including Attorney General John Ashcroft. (9) Arar alleged violations under the Torture Victim Prevention Act (TVPA) (10) and the Fifth Amendment of the U.S. Constitution, claiming that after being detained and unlawfully mistreated in the U.S., he was removed to Syria for the purposes of interrogation and torture by Syrian authorities. (11) Despite acknowledging its obligation to accept the facts of the complaint as true (including the allegations of torture), (12) and to draw inferences in favor of the plaintiff, (13) the court found that Arar had no fight of action. It did so mainly by reframing a case of torture into one of immigration. (14)

      On September 26, 2002, Arar was detained at John F. Kennedy International Airport in New York, while travelling from Tunisia to Montreal. (15) Upon review by INS officials, Arar was deemed a member of Al Qaeda and therefore found to be inadmissible to the United States. (16) However, instead of removing Arar to his country of choice, Canada, as is customary under U.S. immigration law, Arar was removed to Syria. (17) There, he was interrogated and tortured by Syrian government officials. (18) Arar claimed that Attorney General Ashcroft, among others, was responsible for his mistreatment, both in the U.S. and in Syria, and that accordingly Arar should be given redress from the United States for the wrong he endured. (19) Such redress was denied.

      In denying a right of action for all of Arar's claims, the court made several puzzling findings. First, it relied upon the separation of powers, claiming that "the creation of civil damage claims is quintessentially a legislative function, and the protection of national security and the conduct of foreign affairs are primarily executive." (20) Although one cannot readily dispute the separation of powers argument per se, the court here misapplied the doctrine, combining "national challenge" rhetoric with illusive reasoning to avoid tackling the potentially serious due process problems that accompany "extraordinary rendition." (21) In one breath, the court states: "Congress did not intend to preclude [the federal courts'] consideration of removal-related claims that raise questions of law or allege constitutional violations, so long as they are properly before this [c]ourt." (22) In the next breath, the court proclaims its loathness to interfere with "the prerogative of Congress to determine the jurisdiction of the district courts," (23) leading to a holding finding no right of action.

      As there is a "long history of judicial review of executive and legislative decisions related to the conduct of foreign relations and national security," (24) the court's conclusion will undoubtedly lead the reader to ask what led the court to this seemingly contradictory conclusion. With regard to detention and torture in Syria, the court first seemed to accept the Government's assertion that the "INA places removal-related claims beyond the reach of a district court's federal question jurisdiction by creating an alternative-and exclusive-mechanism for resolving those claims," i.e. exclusive INA review pursuant to 8 U.S.C. [section] 1252(a)(5). (25) Again, the present authors have no argument with this process--i.e. Congressional determination of proper remedies. However, what is troublesome is the court's readiness to ignore (openly) the fact that the reason Arar was unable to exhaust this remedy was the fault of the defendants, not Arar himself. (26) The defendants denied Arar access to counsel, concealed his location from his lawyer, and removed him secretly before his lawyer could file a petition. (27)

      The court also faltered by refraining the issue of torture into one of immigration. (28) The court deemed Arar an unadmitted alien, (29) and therefore undeserving of the full protections of the Bill of Rights. (30) The court explained that the Attorney General was specifically authorized to remove Arar "'without further inquiry or hearing by an immigration judge' if the Attorney General, after reviewing the evidence establishing his inadmissibility, determined that a hearing 'would be prejudicial to the public interest, safety, or security.'" (31) Accordingly, the court found that Arar was not entitled to a hearing or counsel, as set forth in 8 U.S.C.A. [section] 1362 and reiterated in Montilla and Waldron. (32) In so doing, the court evades the ultimate cause of action. Arar was not merely seeking redress for improper removal, but for being subjected to torture.

      According to the dissent, the notion that Arar was not "physically present" in the U.S., and therefore not subject to the protections of the Constitution, is "a legal fiction peculiar to immigration law." (33) "Presence" is relevant...