The rule of law, human rights and proportionality as components of the war against terrorism: is the US judiciary in self‐imposed exile?

Abstract

Argues in this wideranging paper that the legitimacy of international law depends on the principle that pacts should be respected, reviewing the issues of self‐preservation, proportionality and human rights in relation to this. Focuses on the economic war against terrorism by the USA preeminently, as expressed in the PATRIOT Act and the International Emergency Economic Powers Act and the Anti‐Terrorism and Effective Death Penalty Act. Concludes that the Patriot Act and the Homeland Security Act give the Executive branch of government extraordinary and warlike powers: but wars have an end whereas terrorism does not. Looks at the role of the US Federal courts in the context of national security, proportionality and human rights concerns, and finds them deficient; reports specific cases concerning Iranian resistance movements and their status as regards terrorism, and the Bajkajian, Austin and Alexander cases as regards proportionality.