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Publication Date

2012

Abstract

Ten years after the 9/11 terrorist attacks, questions
remain regarding the relationship between human rights
and counterterrorism. The historical track record of the
Executive Branch, Supreme Court, and Congress in this
vein is troubling. While the contradiction suggested in
this Essay's title need not be the case, it is, nevertheless,
the persistent reality in American history.
This Essay assesses the current relationship between
human rights and counterterrorism. In doing so, it
reflects on wartime measures implemented by presidents
throughout U.S. history and recommends a way forward
that facilitates more effective protection of human rights

without impinging on legitimate national security
considerations. Many counterterrorism measures adopted
in the aftermath of 9/11, including torture, rendition,
indefinite detention, and denial of habeas corpus, reflect a
fundamental denial of human rights. Furthermore,
evidence that the circumstances do not justify such
extraordinary measures illustrate that the tension between
human rights and counterterrorism requires constant
vigilance. This was recently highlighted when Attorney
General Eric Holder suggested that individuals suspected
of involvement in terrorism be denied Miranda rights. In
recommending "ways forward," this Essay analyzes how
operational counterterrorism measures can meet. the
recommended two-part test of respect for human rights
and enhancing national security without unduly
minimizing one at the expense of the other. It concludes
that crisis points involving national security concerns are
precisely when the Judiciary must engage in active
judicial review in safeguarding basic rights.

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