printable versionWar on terror undermines moral legitimacy, human rights
BY DEBORAH L. RHODE
Deborah Rhode
It is difficult to find any expert in a university like Stanford who does not believe that "mistakes were made" in the war on terror and the intervention in Iraq. So it came as no surprise that four leading Stanford professors agreed on that point during a panel discussion Nov. 1 on terrorism, security and civil liberties. The event was sponsored by the Stanford Center on Ethics.
But what was uniquely useful about the discussion, particularly as doubts about military policy continue to escalate, was the breadth of the indictment. The public urgently needs a deeper understanding of the threat posed not only by terrorism but also by the tactics being used to combat it. The current administration's approach, in its reliance on unilateralism and disregard of international law governing war and human rights, is part of the global threat to long-term peace and security.
Political scientist James Fearon, who holds the Theodore and Frances Geballe Professorship in the School of Humanities and Sciences and is an affiliate of the university's Center for International Security and Cooperation (CISAC), made clear the challenges posed by new technologies of warfare. "Mass casualty terrorism" is a long-term risk that will outlast religious fundamentalism and groups like al-Qaida. Even if the major powers develop reasonably effective means of controlling nuclear proliferation, the rapid evolution of biological weapons will give more and more fringe groups a capacity of mass destruction. Unlike other wars, the war on terror is likely to remain a permanent condition, unbounded by time and geography. The threats come from everywhere, all the time. They require new strategies of monitoring and prevention that may require new tradeoffs between security and civil liberties. To strike a defensible balance, Fearon noted, we need to move beyond the partisan, polarized rhetoric that characterizes much of the current political debate.
Allen Weiner, the Warren Christopher Professor in the Practice of International Law and Diplomacy, took up the question of whether the war on terror was a war in more than a metaphorical sense. As Weiner noted, President Bush has claimed that he is not using the term as simply a "figure of speech," as in prior declarations of war on crime, drugs and poverty. Rather, this administration has asserted powers consistent with a state of war in the international legal sense, such as rights to invade sovereign nations and kill or indefinitely detain adversaries. Yet while the commander in chief has claimed powers granted by international laws of war, he has not respected the constraints of those laws in matters such as the treatment of adversaries and enemy combatants. The result has been to compromise respect for the rule of law and America's commitment to human rights.
Stephen Stedman, director of the Ford Dorsey Program in International Policy Studies and of CISAC's undergraduate honors program, criticized the administration's security policies on similar grounds. Having served as research director of the United Nations' High-Level Panel on Threats, Challenges and Change, Stedman said it is clear that, outside the United States, most people view American unilateralism as one of the major threats. A widespread perception is that the United States' commitment to the rule of law "ends at its water's edge." Our intervention in Iraq and treatment of prisoners at Guantanamo and Abu Ghraib have seriously undermined our international reputation, as well as international institutions and legal principles that we struggled to establish. We are less safe as a result. A common metric for assessing security efforts is whether the number of terrorists killed or captured is greater than the number recruited as a result of antiterrorist tactics. By that measure, Stedman noted, American policy has been a disaster.
Similar observations were shared by Jenny Martinez, an associate professor of law who argued a recent Supreme Court case seeking to clarify the constitutional protections available to post-9/11 enemy combatants. Martinez offered three criteria for striking a defensible balance between liberty and security. First, the system should include checks and balances, building on a separation of powers: No single branch of government should have exclusive authority to determine the right tradeoff between civil liberties and counterterrorism efforts. Second, there should be clear standards by a law-making authority for evaluating government conduct. And third, there should be baseline protections for fundamental human rights. Certain infringements, like torture as defined by international law, should be off limits.
By these criteria, Martinez noted, this administration's policies fall far short. On issues such as the scope of surveillance, the definition of torture and the detention of enemy combatants, the president has asserted unilateral authority to define the permissible exercise of government power, without establishing clear standards or an effective system of checks and balances. The unprecedented reach of the administration's asserted authority emerged clearly in a recent District of Columbia federal trial court argument. In defending the president's definition of an enemy combatant, the government's attorney acknowledged that it was broad enough to include a little old lady in Switzerland who sent a contribution to a Middle East orphanage that, unknown to her, channeled money to terrorists.
If anything positive can be extracted from our mismanagement of the war on terror, it is that Americans will come to realize the limits of their international influence, the extent of their global interdependence and the necessity of basic human rights protections. We urgently need to regain the moral legitimacy we have squandered in our recent antiterrorist efforts. And experts at institutions like Stanford have a crucial role to play in educating the public about what will promote our long-term interests in peace, security and freedom.
Deborah L. Rhode is the Ernest W. McFarland Professor of Law and the director of the Stanford Center on Ethics.