Volume 5, Issue 1 - Liberty, Equality, Security

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.

One of the most visible symbols of the debate over human rights and national security in the context of the U.S. "War on Terrorism" has been the detainment of Taliban and Al Qaeda fighters at the U.S. naval base in Guantanamo Bay, Cuba, following the U.S. war in Afghanistan. The controversy concerning the fate of the nearly 600 prisoners demonstrates the emergence of new modes of democratic deliberation over how to strike the balance between rights and security. These new modes of deliberation involve nongovernmental organizations ("NGOs") and individuals who function as norm entrepreneurs, by mobilizing public opinion through transnational networks of opinion-makers and policymakers. Transnational networks of norm entrepreneurs have emerged where traditional avenues for foreign policymaking in the U.S. have failed to create a space for meaningful consideration of human rights in the rights/security balance. These traditional avenues are envisioned in the Constitution, which gives the President authority regarding foreign affairs, bounded by checks provided to Congress and the courts. While the goal of the constitutional process is to bring these institutional players into a dialogue, Congress and the judiciary have failed to engage the President in a conversation regarding the balance between human rights and national security. In the absence of initiatives by the government, nongovernmental actors have used communication structures within transnational networks to promote what this Article calls a dialogic approach to enforcement of human rights law.

The codification of international human rights law and international humanitarian law, and the accession to those treaties by a large majority of states, does not at first glance seem to have any significant effect upon states' behavior in situations of crisis. Any understanding of the prospects for such law in these situations requires an appraisal of both the motivations of states in concluding these treaties and the pressures on them to ignore them. This paper analyzes those motivations and temptations through the framework of precommitment theory, a component of rational choice theory, originally articulated by Jon Elster and Thomas Schelling. The metaphor of Ulysses offers a useful way to address three different dimensions of the purposes that states join treaties: (1) beliefs, i.e., the state's attitude toward the norms in the treaty; (2) predictions, the state's concerns about its own future behavior; and (3) interactions, i.e., the extent to which the state is trying to influence or bind other states. And it permits linking those motivations to the propensity of states to comply at a later time. The paper offers a four-part typology for why states commit to such treaties, contrasting it with notions from contemporary international relations theories. It then explores the contrasting approaches of compliance theories and international law doctrine to the temptation of states to violate treaties and elaborates the contributions of the precommitment framework. Building upon that framework, it proposes a set of strategies that those concerned with compliance might explore for making international law more relevant when governments seem most inclined to discount it.

According to the traditional view, preventive uses of force between states and preventive killings of individuals, to be legal, have one basic requirement in common, namely, the requirement of the immediacy of the threat posed. The U.S. National Security Strategy of September 2002, the so-called Bush doctrine, and the so-called Israeli policy of "targeted killing" challenge precisely this core requirement for the preventive use of force against states and against individuals. The author argues that abandonment of the traditional standard is unwarranted, even when taking into account the new kinds of threats that have arisen in recent times. Such abandonment, he argues, would risk transforming indispensable foundations of the international law on the use of force and on human rights.

One of the main characteristics of this phase of the Israeli-Palestinian conflict is the resort by Palestinian groups to suicidal terror. This paper focuses on the unique nature of suicidal terror, since, I believe, it is this kind of terror that presents the most immanent threat to the foundations of politics and law in the free world. The article begins with a phenomenological exploration of the effect of suicidal terror on politics in Israel, inspired by the work of Hannah Arendt. It presents the various manifestations of the suicidal terror as a new Paradigm of Violence. This new paradigm poses a great threat on politics: as the terrorists waive their effort to stay alive, deterrence becomes useless; the Israeli politics, in response, redraws the boundaries of the collective according to demographic lines; the feelings of helplessness reduces politics to personal tragedies giving up on normative arguments and long term policies. Compassion replaces persuasion. The attempt of an organized army to respond effectively to suicidal terror is ridden by the dilemma of effectiveness-legitimacy, that is, the more the response is effective, the more difficult it becomes to retain the distinction between the actions of the army and the actions of the terrorist. Moreover, during the attempt to bring the actions of the army to the review of the court, the legal system itself is infected by the same dilemma. The article examines the response of the Israeli Supreme Court to several petitions that questioned the legality of the means employed by the IDF in its fight against terror. These cases provide a unique opportunity to examine the way in which terror infiltrates into the very legal system that is called upon to respond to it, mainly by changing the legal language. The question that guides my discussion is what effect terror exerts on politics and law, and can law provide a way to resist the destructive influence of terror on the political system.

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.

The purpose of this paper is to provide a philosophical defense for targeted killings in the wars against terror. The paper argues that if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what are soon to be called "old-fashioned")wars, one cannot object - on moral grounds - to the targeted killing of terrorists in wars against terror. If one rejects this legitimacy, one must object to all killing in war, targeted and non-targeted alike, and thus not support the view, which is criticized here, that targeted killings are particularly disturbing from a moral point of view.

Universal jurisdiction has entered upon a dramatic and turbulent period of its long and generally stable history. Once associated primarily with prosecution for piracy or slave trading, it now figures in state-court prosecution of persons accused of international crimes that have been incorporated into state law, particularly genocide, crimes against humanity and war crimes. This new direction has generated serious interstate conflicts, particularly when the acts for which defendants are charged are viewed by some states or regions as criminal and by others as heroic and when the actual or proposed defendants are citizens of a major power. The critical current task is to engage in broad public discussion of these issues in order to build some consensus among many states about the legitimate uses and potential abuses of universal jurisdiction.