Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?

Ten years after the 9/11 terrorist attacks, questionsremain regarding the relationship between human rightsand counterterrorism. The historical track record of theExecutive Branch, Supreme Court, and Congress in thisvein is troubling. While the contradiction suggested inthis Essay's title need not be the case, it is, nevertheless,the persistent reality in American history.This Essay assesses the current relationship betweenhuman rights and counterterrorism. In doing so, itreflects on wartime measures implemented by presidentsthroughout U.S. history and recommends a way forwardthat facilitates more effective protection of human rights without impinging on legitimate national securityconsiderations.

Many counterterrorism measures adoptedin the aftermath of 9/11, including torture, rendition,indefinite detention, and denial of habeas corpus, reflect afundamental denial of human rights. Furthermore,evidence that the circumstances do not justify suchextraordinary measures illustrate that the tension betweenhuman rights and counterterrorism requires constantvigilance. This was recently highlighted when AttorneyGeneral Eric Holder suggested that individuals suspectedof involvement in terrorism be denied Miranda rights. Inrecommending "ways forward," this Essay analyzes howoperational counterterrorism measures can meet. therecommended two-part test of respect for human rightsand enhancing national security without undulyminimizing one at the expense of the other.

It concludesthat crisis points involving national security concerns areprecisely when the Judiciary must engage in activejudicial review in safeguarding basic rights.