Human Rights and Counterterrorism: The American “Global War on Terror”

Abstract

After the September 11, 2001 terrorist attacks on New York and Washington D.C., the United States launched the “global war on terror,” a transnational military campaign against Al Qaeda and associated forces. In pursuit of its adversaries, the Bush administration, and to varying degrees, the subsequent Obama and Trump administrations, authorized numerous abusive practices including torture and cruel, inhuman, and degrading treatment of detainees, secret and indefinite detention without fair trial, extrajudicial killing that strains the standards set forth by the law of armed conflict, and mass surveillance without a warrant. While human rights violations are ubiquitous in irregular armed conflicts, the last two decades of US counterterrorism are notable for the extent to which American authorities have sought to legally justify their actions. Rather than overtly violate domestic and international legal norms, or rely solely on secrecy to evade detection of illegal programs, US policymakers have deployed lawyers to construct the plausible legality of “enhanced interrogation techniques,” targeted killing, and other controversial practices. This has successfully immunized perpetrators from prosecution while hollowing out legal rules, reducing the capacity of human rights law to constrain state violence.