The War on Terror and the Violation of Human Rights

Reece O'Bryan

Mr. Bradley

AP English III

5 – 23 – 2012
 Since the terrorist attacks of September 11, 2001, the United States has

embarked upon a policy that has been generally classified as “The War on Terror.”

According to the disastrous effects of these terrorist acts, the U.S. has adopted a

simultaneously political and military strategy of preventative operations. Since

terrorism is a clandestine act constituted by ambiguous terrorist “cells” that may or

may not have connections to various state governments, traditional political means

with which to deal with terrorists are obsolete. The terrorist is a radically anonymous

individual or group, and by definition, could exist anywhere. According to this

amorphous quality of the terrorist, following the logic of War on Terror a broadened

approach to uncovering potential terrorist actions is required. This can include the

arresting of individuals on the suspicion of terrorism. The clear problem with this

approach, however, is that it may violate some of our most fundamental human

rights. These human rights are furthermore represented in law, both on the national

level, in the form of the U.S. constitution, and on the international level, in the form of

the U.N: Universal Declaration of Human Rights. The War on Terror, according to the

particular approach it has taken to detaining suspected terrorists, is fundamentally in

opposition to these notions of human rights: individuals being held are detained

without any clearly legally documented evidence or without any notion of when they

will be brought to trial. Whereas the War on Terror clearly identifies the serious threat

of terrorism, the means by which it is combating this threat can perhaps turn into a

totalitarian apparatus that violates all conceptualizations of human rights, thus

bringing us back into an essentially medieval setting in which human life is unvalued.

In order to develop this argument it is crucial to present some of the practices

of War on Terror and how these practices may at the same time be considered to be

violations of our fundamental human rights. As Wilson notes, the basic extent of this
problem can be boiled down to “a present disjuncture between rights and security in

public and political discourse.” (3) In essence, it is a question of priorities that have

been established by both government and society. The emphasis on security means

that what is of fundamental importance is a secure state in which terrorist actions

cannot occur. However, because of the anomalous nature of the terrorist threat,

constituted by ambiguous figures without any traditional social or political role (i.e., a

potential terrorist may be a garbage man, a soldier, etc.,), the only way to halt

terrorist activities is by taking a pre-emptive approach. This means that policy

attempts to prevent terrorist actions before they occur. However, at the same time,

this means that security policy must be fundamentally on the offensive as opposed to

on the defensive, actively seeking out potential terrorists. This emphasis on security

is clearly a threat to human rights precisely because any individual potentially

becomes a terrorist suspect. Hence, as White notes, “the war on terrorism produces

an end of international human rights because anyone identified as a terrorist has no

rights.” (401) This is especially dangerous because as White also suggests, the War

on Terror uses a combination of thoughts about both war and law. In this approach,

“the new war model allows the use of lethal force, the forseen but unintended killing

of innocents, and the capturing and killing of suspected terrorsits. These are features

of war. But in traditional war, the enemy can legitimately fight back….The war on

terrorism rejects these features by appealing to a law model. Terrorsits are criminals,

so they cannot legitimately fight back.” (White, 403) The War on Terror’s combination

of legally and war-based arguments therefore is dangerous to human rights precisely

because it makes the state and the security of the state the primary concern of its

reign. Human rights are de-emphasized in favor of the simultaneous treatment of a

potential terrorist as both an enemy in a war and a criminal. This essentially allows
the state unlimited autonomy in doing whatever it wants in such a situation, an

autonomy that dangerously threatens individual autonomy. In short, the basic

structure that the War on Terror takes, as White suggests, combines legal and

military convention in a manner that stresses the power of the state and the

powerlessness of the individual.

One of the more clear manifestations of this new paradigm that has been

initiated by War on Terror and how it threatens human rights is shown in the National

Defense Authorization Act. This act signed into law by President Obama “greatly

expands the power and scope of the federal government to fight the War on Terror,

including codifying into law the indefinite detention of terrorism suspects without trial.”

(Kane, 2001) This, however, is also relevant to U.S. citizens as “under the new law

the U.S. military has the power to carry out domestic anti-terrorism operations on

U.S. soil.” (Kane, 2001) This is clearly an explicit violation of any type of human rights

according to the U.S. constitution. The detainment of all U.S. citizens as potential

terrorists without any trial means that individuals may be held in U.S. custody for any

period of time. This is in clear violation of constitutional law that is intended to protect

the individual, in particular the Sixth Amendment. As Emanuel summarizes this law,

“The Sixth Amendment provides that ‘in all criminal prosecutions, the accused shall

enjoy the right to a speedy…trial.” This right applies directly to federal prosectuoins,

but also applies to state prosecutions.” (366) Accordingly, the speedy trial

amendment is directly violated by the new NDAA and its explicit emphasis on

indefinite detention. How can this clear contradiction and violation of individual

liberties be explained? It appears to follow no logic, but rather represents the

aforementioned emphasis placed unto security over individual liberty. The

consequences of the NDAA are clearly potentially catastrophic for U.S. citizens, as
their detainment as terrorists under the NDAA offers no hope for justice and legal

resolution to their problems. Certainly, those in favor of these draconian measures

will argue that if one is not a terrorist, one has nothing to fear. But the NDAA provides

no clear definitions as to who a terrorist is and what does it mean to be suspected of

being a terrorist. This essentially totalitarian law provides a clear transgression of

individual liberties that are supposedly protected under the U.S. constitution.

But the human rights violations of the War on Terror are not only manifested in

the United States. At the Guantanamo Bay camp located on the United States Navel

Base in Cuba, as Hellen Duffy notes, “The United States, assisted by its allies, began

detaining persons in Afghanistan and elsewhere ‘for reasons related to the conflict.’”

(379) What is immediately important regarding this definition is the obscurity of the

term “reasons related to the conflict.” At the same time, as Duffy also remarks, the

very location of the detention facility outside of U.S. soil seems to have a clear

reason: “The location of the detention centre on Guantanamo Bay, which the United

States authorities claim is beyond US sovereign terrirtory, is an apparent attempt to

circumvent the application of human rights protections in the United States

constitution and access to United States courts.” (379) There is thus a deliberate

attempt to hold these detainees in a situation in which any recourse to human rights

as a form of protection during their custody may be completely ignored. Whereas the

standard argument in favor of this type of detention is once again the notion that

those detained are terrorists, this argument presupposes that we can clearly define

who is a terrorist and moreover that we can clearly define a particular case of terrorist

activity. The very fact that the Guantanomo Bay detention camp is located at a place

that occupies a no-man’s land in regards to both U.S. and international law suggests

that its primary objective is primarily to prevent issues of human rights getting in the
way of national security. But this very act clearly underscores an emphasis that has

been made in the War on Terror on national security over human rights. In other

words, the foremost victim of the emphasis on national security is these very human

rights. This is why Guantanamo Bay has been compared to a legal “black hole.” As

Matthew writes, “the analogy of the black hole was first employed as a description of

Guantanamo Bay by Lord Steyn…in order to describe the right-less vacuum into

which the US sought to palce the detainees in Guantanamo Bay.” (160) Here, it is

important to underscore that human rights themselves can be only guaranteed by the

law. There is no essential state of nature that says we should all have rights. These

are only protected by the law. But the War on Terror has shown a deliberate attempt

to circumvent these laws that protect human rights. Accordingly, War on Terror policy

has demonstrated its profound antipathy to any human rights issues.

Terrorism is certainly a legitimate threat to states all around the world.

However, who are the victims of terror? These victims are primarily civilians. The fight

against terror from this perspective could be viewed as a protection of human rights.

But what occurs when the war on terror also violates these same human rights? It

becomes nothing less than equivalent to the terrorist organizations it claims to fight.

The clear violation of both international and U.S. law in regards to human rights and

the attempt to emphasize state security over human rights become the clear

objective of this policy. The War on Terror has not become a war for civilization, but a

war to defend an existing political and government body, a war to protect its security

at whatever negative cost this may ultimately bring to the individual citizen and his or

her fundamental liberties as protected by the law.

 Works Cited

Duffy, Helen. The War on Terror and the Framework of International Law.

Cambridge, UK: Cambridge University Press, 2005.

Emanuel, Steven L. Criminal Procedure. New York: Aspen, 2009.

Kain, E.D. “President Obama Signed the National Defense Authorization Act – Now

What?” Forbes Magazine. January 1, 2012.

Matthew, Penelope. “Black Holes, White Holes and Worm Holes: Pre-emptive

Detention in the ‘War on Terror.’ In M. Gani and P. Matthew (eds.) Fresh

Perspectives on the ‘War on Terror’. Canberra, AUT: ANU E Press, 2008. pp.

85-108.

White, James E. Contemporary Moral Problems. New York: Thomson-Wadsworth,

2009.

Wilson, Richard Ashby. Human Rights in the 'War on Terror'. In R.A. Wilson (ed.)

Human Rights in the 'War on Terror.' Cambridge, UK: Cambridge University

Press, 2005. pp. 1-36.