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Evaluate arguments that propose a tradeoff or balance between human rights and security

during times of emergency, providing examples from the post 9/11 era.

As America awakens to the reality of being at war – and permanently so – with an enemy

that has as yet no face and no name, it must ask itself what balance it should keep

between liberty and security in the battle with terrorism.1

As Michael Ignatieff observes, the tragedy of 9/11 and the ensuing “War on Terror” has fueled

debates about the relationship between human rights and security. As an advocate of the

“balance metaphor,” Ignatieff is one of many who justifies the sacrifice of certain rights in effort

to enhance security in times of emergency. With an “end justifies the means” mentality, men like

Ignatieff and former Vice President, Dick Cheney, among others, encourage and defend a

tradeoff between rights and security by noting how the “War on Terror” is a “quite literally a

war, and therefore cannot be fought according to law-enforcement rules.”2 Additionally, due to

the transnational nature of contemporary terrorist organizations like Al-Qaeda and the so-called

Islamic State (ISIS), the “War on Terror” is classed as a “new war,” ultimately requiring

unconventional methods and supra-legal tactics to ensure such travesties like 9/11 don’t happen

again in the US, nor in any other democratic nation or ally thereof.3 As Ignatieff argues, “to

defeat evil we may have to traffic in evils.”4

Unsurprisingly, notions of greater security of both the individual and the nation, have

tremendous appeal, no matter the means required to ensure it. With the rapid advancement of

both militaristic and technological ability in the past decades, terrorist organizations have not 1 Ignatieff, cited in Moeckli, Daniel. Human Rights and Non-Discrimination in the "War on Terror" New York: Oxford UP, 2008, p.1. 2 Pendas, Devin O. "Review: Interrogating Torture: Human Rights, the War on Terror, and the Fate of America." Journal of American Studies 44.2 (2010): 429-39. JSTOR. Web. 23 Mar. 2016, p.430. 3 Ibid. 4 Ignatieff, Michael. "Lesser Evils." The New York Times. The New York Times, 02 May 2004. Web. 1 May 2016.

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only carried out attacks with relatively greater ease and frequency, but have also acquired the

ability to televise and publicize the brutality of their attacks. Indeed, videos depicting violent

executions and online blogs expressing aggressive anti-Western sentiments have become

trademarks of expansive organizations like ISIS, among others. This has undoubtedly fueled the

desire for greater security, further adding to the appeal of the “balance metaphor” and trading off

certain rights in attempt to enhance security.

However, this paper contends that arguments which propose a tradeoff between human

rights and security are misplaced. This is so because they hold a simplistic view of security that

fails to recognize the double standards inherent in counterterrorism measures which employ such

tradeoffs, and they don’t consider the long term impact tradeoffs between rights and security

may have on the status of law, on human rights and on democratic principles of nations like the

US. Lastly, they engage in a slippery slope through the potential extension of such principles

from the noncitizen to the citizen, and through lack of stipulation regarding what constitutes a

state of emergency. These points will also form the structure of the essay; Section 1 will address

the complexities and subjectivity of security, while Section 2 will analyze the broader impact of

post 9/11 counterterrorism measures on the status of law, human rights and democracy. Finally,

Section 3 will address the threat of expansion of counterterrorism policies from noncitizens to

citizens, and will consider the concept of “emergency,” particularly how the “balance metaphor”

fails to provide any guiding principles regarding what embodies a state of emergency. Using a

moral and evaluative approach, this paper’s primary focus will be on the US, particularly

because it was the Bush Administration which declared the alleged “War on Terror,” a “state of

emergency” which has lasted 15 years and counting. The controversial policies which have been

introduced since 9/11 add further relevance to the “War on Terror,” particularly in regards to the

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relationship between human rights and security, as they have catalyzed much of the debate

regarding whether there should indeed be a tradeoff between the two.5

Section 1 – Subjectivity of Security and the Prevalence of Double Standards: “Their”

Rights for “Our” Security

No one who witnessed the terrorist attacks of September 11, even from the relatively safe

vantage point of the television set, will ever forget them. The attacks exposed the nation

and the world to a new sense of vulnerability. Polls taken after the attacks reported that

Americans facing this newfound threat were more than willing to sacrifice their rights

and liberty for greater security.6

As is noted by David Cole, the destruction and horror of 9/11 fueled a wave of public

desire for increased security, even if the means required to achieve it involved giving up certain

civil liberties and human rights. Administratively, this was much the same, as is highlighted by

the sheer speed in which new policies were passed in the years following the attack on the World

Trade Center. The Patriot Act (2001), for example, was passed by Congress mere weeks after

9/11, on October 26.7 As JoAnn Sweeny remarks, it was “one of the swiftest moving bills in

federal history.”8 Furthermore, she reports that various members of Congress were disheartened

by the speed at which it was passed, but that the fresh memory of 9/11 and the potential threat of

further attacks made them feel they had no other choice;

5 Foot, Rosemary. "Exceptionalism Again: The Bush Administration, the "Global War on Terror" and Human Rights." Law and History Review26.3, Law, War, and History (2008): 707-25. JSTOR. Web. 23 Mar. 2016, p.707.6 Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: New, 2003, p.18. Emphasis/Italics added. 7 Sweeny, JoAnne M. "Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights." Pace Law Review 34.3 (2014): 1190-1239, p.1200.8 Ibid.

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…They had no idea what they were voting on, [and] were fearful aspects of the bill went

too far – yet voted for it anyway, lest there be a further terrorist attack and they be

accused of not having provided the government sufficient means to defend against it.9

Evidently, as Sweeny notes, the Patriot Act was not only passed with tremendous speed, but also

without the full understanding of those who helped to pass it. The seriousness of this is further

emphasized when considering the contents of the act. The Patriot Act effectively allows the

government to hold noncitizens suspected of terrorism without filing official charges and without

access to a judge to petition their detainment.10 Moreover, it grants the Attorney General the

ability to detain both legal and illegal immigrants indefinitely, provided he or she has

“reasonable grounds to believe” that said immigrant has engaged in terrorist activity.11 The

vagueness of constituent terms of the act, as is evident in the lack of stipulations regarding what

such grounds may entail further reveals how extensive this act is in denying certain human rights

to noncitizens. In effect, the act endows the Attorney General with the power to detain any

noncitizen he or she may suspect of activity related to terrorism, however concrete such

suspicions may or may not be. Moreover, as Clay Arnold remarks, the act not only grants the

Attorney General greater leniency, it bestows law enforcement agencies with new powers, many

of which violate rights of privacy, such as “powers to trap and trace email… surveil persons

without having to specify to a court the particular communication devices involved…”, to name

a few.12

Effectively, the rapid enactment of such acts suggests two important and connected

features. Firstly, the travesty of 9/11 induced a sweeping public and administrative desire to

9 Sweeny, op. cit., pp.1200-1201.10 Ibid, p.1201. 11 Ibid, p.1202. 12 Arnold, T. Clay. "Executive Power, The War On Terrorism, And The Idea Of Rights". Politics & Policy 34.4 (2006): 670-688. Wiley Online Library. Web. 12 Mar. 2016, p.676.

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increase security in aim to deter further attacks, no matter the cost such a strengthening of

security may have on human rights. Secondly, this suggests both public and administrative

political acceptance of the “balance metaphor,” which argues just that; that human rights can be

sacrificed for national security if desperate times require it.

However, what much of the public didn’t, and perhaps still doesn’t realize or

acknowledge is that such tradeoffs are inherent in bias.13 As is noted extensively by numerous

human rights activists and scholars, the rights that are sacrificed in the name of “national

security” are often of a selected minority, usually targeted based on racial, ethnic or religious

background.14 Therefore, arguments which encourage and defend a tradeoff between human

rights and security are misplaced because they often hold a simplified, unilateral view of security

by failing to realize the double standards such tradeoffs have entailed.

The complex and multilateral character of security is reflected by the differential impact

post 9/11 counterterrorism measures have had on citizens and noncitizens. David Cole

persuasively comments on this;

For the most part, the government has not asked American citizens to sacrifice their

liberty… The government has repeatedly targeted noncitizens, selectively denying them

liberties that citizens rightfully insist upon for themselves…15

This claim is supported when examining numerous counterterrorism measures adopted in the

aftermath of 9/11, including the aforementioned Patriot Act. In late 2001, for example, the

13 Cole, David. "Their Liberties, Our Security. Democracy and Double Standards." International Journal of Legal Information 31.2 (2003): 290-311. HeinOnline. Web. 18 Apr. 2016, p.292.14 Goold, Benjamin. “Privacy, Identity and Security.” Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007, p.46.

15 Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, op. cit., p.21.

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Justice Department detained 5000 young immigrant men for questioning.16 They were detained

not as a result of any conducive evidence suggesting they were involved in terrorism, but were

detained based off country of origin and religious orientation; almost all of those interviewed

were Arab Muslims.17 Shortly after in 2002, the Justice Department reportedly organized the

deportation of 6000 noncitizens, once again selected through ethno-religious profiling rather than

through concrete evidence revealing them to be dangerous to US security.18 This trend continued,

with hundreds of Arab Muslims being mistreated, unjustly deported, and abused under

counterterrorism programs introduced since 9/11.19 On the other hand, only 7% of American

citizens felt they had sacrificed their own rights in the “War on Terror.”20 This effectively reveals

the double standards and bias inherent in tradeoffs between rights and security; noncitizens,

selected based on ethnic and religious origin, have had their right to legal counsel, to security of

person, to freedom of religion, to freedom from discrimination, among others, denied in the quest

for greater security.

Notably, advocates of the “balance metaphor” that do recognize the selectivity inherent in

tradeoffs between rights and security defend policies which enable these tradeoffs by what they

view is “logic.” Ultimately they claim that the terrorists of 9/11 were Arab Muslims, therefore

Muslims must be the prime targets of counterterrorism measures.21 Such an argument, however,

is guilty of racial stereotypes and ethno-religious profiling, both of which are condemned in

16 Ibid, p.49.17 Ibid.18 Ibid, p.50. 19 Pearlstein, Deborah. "Rights in an Insecure World; Why National Security and Civil Liberty Are Complements." The American Prospect 15.10 (2004): A7-A10. ProQuest Business Collection. Web. 1 Apr. 2016, p.A8.20 Cole, op. cit., p.18.21 Harcourt, Bernard E. "Muslim Profiles Post 9/11: Is Racial Profiling an Effective Counter-Terrorist Measure and Does It Violate the Right to Be Free from Discrimination." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007, p.73.

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widely accepted human rights conventions such as the Universal Declaration of Human Rights

(UDHR, 1948).22 Although there has been significant debate regarding the alleged universality of

the UDHR, its importance for the purpose of this essay lies in its status as the foundation for

contemporary international human rights law.23 Furthermore, the UDHR provides the basis for

widely popular human rights organizations like Amnesty International, further adding to its

relevance as an influential, international standard of human rights.24 In the Declaration, numerous

terms condemn discrimination based on ethnic, religious or racial grounds. The preamble, for

example, designates “all members of the human family” with “equal and inalienable rights.”25

Shortly after, Article 2 states that;

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without

distinction of any kind, such as race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status… no distinction shall be

made on the basis of the political, jurisdictional, or international status of the country…

to which a person belongs.26

Evidently, because counterterrorism acts which tradeoff certain liberties for greater security

abridge fundamental human rights selectively and with racial bias, they reject internationally

upheld human rights standards. Additionally, the US, as a member state of the United Nations,

has a responsibility to “achieve… the promotion of universal respect for and observance of

human rights and fundamental freedoms.”27 By violating the rights of selected minorities based

22 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

23 Delahunty, Robert J., and John C. Yoo. "What Is the Role of International Human Rights Law in the War on Terror?" DePaul Law Review59.803 (2010): 803-50. HeinOnline. Web. 18 Apr. 2016, p.816.24 "What Are Human Rights?" Amnesty International. Amnesty International, 7 Aug. 2015. Web. 1 May 2016.25 Universal Declaration of Human Rights, op. cit., Preamble.26 Universal Declaration of Human Rights, op. cit., Article 2. 27 Ibid, Preamble.

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off ethnicity, race or religious orientation, the US fails to do so and stains its own reputation as

the “land of the free.” Therefore, those who defend counterterrorism measures which engage

with the “balance metaphor,” fail to recognize the dangers racial profiling, however “logical”,

may have on the status of international human rights standards.

Furthermore, a defense of racial profiling as it is practiced in tradeoffs between rights and

security, assumes the inability of terrorist organizations to adapt. Bernard Harcourt accurately

summarizes the ineffectiveness of racial profiling as a counterterrorism method as such;

Racial profiling… assumes that terrorists are not going to adapt to changing

circumstances and, as a result, puts the police one step behind the enemy. Racial profiling

focuses on an "unstable" trait - a trait which can be easily switched.28

Markedly, racial profiling has the potential to endanger the overall progress of the “War on

Terror” due to its focus on physicality, which as Harcourt remarks, is a flexible trait. Moreover,

because racial profiling presumes terrorists come in one physical form, it ultimately allows those

who don’t fit the established profile to slip under the radar. Additionally, racial profiling

overlooks the possibility of active substitution, in which terrorist organizations, fully aware of

the physical stereotypes associated with them, deliberately select members who do not fit the

profile to carry out further attacks and infiltration.29 All of these elements have the potential to

jeopardize any progress in the “War on Terror,” therefore indicating the inadequacy of racial

profiling as a counterterrorism measure.

Clearly, “security is a fluid concept and anything but a neutral one.”30 Arguments which

propose tradeoffs between rights and security are inadequate and misplaced because they fail to

28 Harcourt, op. cit., p.74. 29 Harcourt, op. cit., pp.86-87. 30 Van Kempen, P. H. "Four Concepts of Security--A Human Rights Perspective". Human Rights Law Review 13.1 (2013): 1-23. Oxford UP. Web. 15 Mar. 2016, p.2.

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understand, or perhaps just to acknowledge, that security is anything but simplistic and

unilateral. Post 9/11 counterterrorism measures like the Patriot Act, which have engaged with

tradeoffs of certain rights for security have primarily derogated the rights of a minority, selected

through ethno-religious and racial profiling. This exposes how arguments that defend tradeoffs

as such fail to understand that security for some does not mean security for all. Those who have

been targeted by these counterterrorism measures not only have had selected rights abridged, but

have had their own security belittled through invasions of privacy and through stereotyping. This

effectively contradicts the original aim for such tradeoffs, which is to enhance security. When

such arguments do acknowledge the racial and ethnic bias inherent in such tradeoffs, their

defense is guilty of rejecting widely accepted human rights standards and of overestimating the

effectiveness of racial profiling.

Section 2 – Counterterrorism Measures and the Status of Law, Human Rights and

Democracy

As was aforementioned in Section 1, since the “War on Terror” was declared in 2001,

there have been multiple policies enacted in the US with the primary aim of deterring further

domestic attacks by increasing civilian and national security. The success of such policies in

preventing more attacks has been debated. While some argue the lack of any domestic attack as

vast as 9/11 since then is due mainly to post 9/11 counterterrorism measures, others rightfully

argue it is impossible to prove a negative; in other words, to explain why something did not

occur.31 31 Pendas, op. cit., p.429.

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Regardless of whether post 9/11 counterterrorism measures are to be credited for

preventing further attacks, arguments which defend these measures, and effectively defend the

accompanying tradeoff between human rights and security, fail to consider the broader, long

term impact thereof on the status of law, on the status of human rights as moral rights to which

everyone has claim, and on the democratic principles traditionally upheld by nations like the

US.32

In regards to the status of law in times of emergency, there exist two primary, opposing

camps. One side essentially argues against the notion of the law as inflexible, and that “abuses of

power,” in the form of trading off certain rights in the name of national security, are likely

inevitable in times of emergency.33 On the other hand, there are those that view firmness and

concreteness as defining characteristics of the law. Victor Ramraj summarizes the former

approach as such;

At the pragmatic end of the spectrum, we find acceptance of the inevitability of abuses of

power and the inability of the law to contain them; we also find efforts to restrain state

power by non-judicial means, namely political checks.34

Reminiscent of John Locke’s “Prerogative Power,” the pragmatists, as Ramraj calls them, accept

the necessity of the executive to be granted greater power in times of emergency, even if this

results in tradeoffs between human rights and security.35 An essential element of this approach is

executive motivation. Locke, for example, declares the endowment of “prerogative power” is

32 Orend, Brian. Human Rights: Concept and Context. Peterborough, Ont.: Broadview, 2002, p.33. 33 Ramraj, Victor. "Between Idealism and Pragmatism: Legal and Political Constraints on State Power in Times of Crisis." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007, p.186. 34 Ramraj, op. cit., p.186.35 Neocleous, Mark. "Security, Liberty and the Myth of Balance: Towards a Critique of Security Politics." Contemporary Political Theory 6.2 (2007): 131-49. Palgrave Macmillan Ltd. Web. 19 Mar. 2016, p.135.

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just so long as it is for the “public good.”36 Similarly, contemporary academics like Oren Gross,

who argue for the pragmatist camp and, in effect, defend the “balance metaphor,” engage in an

“end justifies the means” mentality which validates emergency powers provided they help the

public through instating greater security and stability in the long run.37 Specifically, Gross calls

this an “extra-legal measures model.” He summarizes it as follows;

[It] calls upon public officials having to deal with catastrophic cases to consider the

possibility of acting outside the legal order while openly acknowledging their actions and

the extra-legal nature of such actions.38

Evidently, Gross employs a notion of “checks and balances” through suggesting public

ratification of any extra-legal measures, ultimately to ensure such measures are not overly-

abused by the executive. This concept is not unique to Gross, and is engaged with by many

advocates of the “balance metaphor” in attempt to quell fears of the potentiality of emergency

powers in becoming unrestrained and unlimited.

While Gross’ argument certainly has merit, particularly when it appears the law has

hitherto been unable to stop terrorism, it has two fatal flaws. Firstly, Gross and the like

overestimate the sincerity of the executive and of the courts. As was previously mentioned,

Gross necessitates public disclosure of any extra-legal activity as a way to avoid drastic abuses

of power without public ratification. As Ramraj notes, this is surprisingly idealistic because it

assumes officials will be motivated to disclose any extra-legal conduct in the first place.

Secondly it fails to recognize how the consistent use of extra-legal measures will potentially

damage the status of law in the long run. This is where the main argument for the opposing

camp, the idealists, as Ramraj calls them, is rooted. They rightfully argue that the law remains

36 Ibid, pp.135-137.37 Ramraj, op cit., p.186.38 Gross, cited in ibid, p.190.

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legitimate only so long as it is upheld and respected as a concrete and firm institution.

Counterterrorism measures which consistently step out of the law set a bad example; if

administrative powers can use extra-legal measures then why can’t civilians? Effectively, extra-

legality as is practiced by numerous counterterrorism measures which tradeoff certain rights for

security belittle the law and imply it can be broken without consequence.

Additionally, the danger of tradeoffs between human rights and security lies not only in

their potentially negative impact on the law, but also on their impact on human rights. The

International Covenant on Civil and Political Rights (ICCPR, 1966), specifies that rights may be

derogated in cases of “public emergency.”39 The “balance metaphor,” and contemporary

counterterrorism measures which engage with it, employ such derogations. Although the ICCPR

permits it, counterterrorism measures endanger the status of human rights by hierarchizing

certain rights over others, which misunderstands the character of human rights overall. The rights

that are derogated in post 9/11 policies like the Patriot Act, essentially imply that these rights are

of less importance than those that aren’t violated. This has the potential of gravely affecting the

international standard and importance of human rights. Andrew Ashworth questions this by

asking whether some rights are really more fundamental than others, as is suggested by the

“balance metaphor.”40 According to the numerous rights conventions like the UDHR and the

Vienna Declaration (1993), rights are indivisible and should be treated equally, which clearly

rejects any notion of hierarchy.41 Moreover, human rights activists persuasively note that creating

39 Feinberg, Myriam. "International Counterterrorism – National Security and Human Rights: Conflicts of Norms or Checks and Balances?" The International Journal of Human Rights 19.4 (2015): 388-407. Taylor & Francis. Web. 24 Mar. 2016, p.389.40 Ashworth, Andrew. "Security, Terrorism and the Value of Human Rights."Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007, p.210. 41 Ibid, p.212.

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a hierarchy of rights “is the beginning of a slippery slope” and may lead to the permanent

discarding of “weaker” rights, rather than just temporal derogations in times of emergency.42

Equally important to consider is the slippery slope in which more and more rights are

derogated in the name of security. As the recently released exposé of the CIA has shown,

officials have not been afraid to use torture as an interrogation method.43 This directly and

drastically violates the right to be free from bodily harm and completely contradicts the “civil”

world we pride ourselves for living in. If even rights which ensure physical safety can be

abridged, how are we to be sure other rights, like the right to life, won’t be derogated in the quest

for greater security?

The importance of human rights arguably lies in what it expresses; a moral right to which

every human has claim and an international standard to which governments should comply to

provide decent living and security of person. This is endangered by tradeoffs between rights and

security by exposing the fragility of such claims. What is the limit? If detainees suspected of

terrorism (note; suspected not proven) can be held indefinitely and can even be subjected to

torture, where should the line be drawn? Rights become seen as disposable rather than as a

guarantee of a certain securities. As Orend notes, human rights as moral claims “sometimes find

legal expression and protection, [and] sometimes not… [but] the legal variability does not

undermine the existence and firmness of the moral right…”44 While he is right to claim that

“legal variability does not undermine the existence and firmness” of rights, a consistent tradeoff

of certain rights for greater security may undermine the claim to those rights, ultimately rejecting

the alleged universality and indivisibility of rights overall.

42 Ibid.43 "Exposed: Torture and the CIA." Amnesty International. Amnesty International, 10 Dec. 2014. Web. 2 May 2016.44 Orend, op. cit., p.33.

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Lastly, policies and counterterrorism measures which employ tradeoffs between rights

and security endanger the status of democracy and the democratic principles of nations engaging

with such policies. Even the US, traditionally prided for its democratic strength and persistence,

is not immune to being accused of anti-democratic tendencies in its post 9/11 counterterrorism

methods. Racial profiling, discrimination based on religious orientation or ethnic origin,

unlawful detainment and invasions of privacy all contradict the spirit of democracy and

therefore, unsurprisingly, damage the US’ reputation as the pioneer and upholder of democracy.

In fact, the mistreatment and rights violations exhibited in Guantanamo Bay and elsewhere have

drastically damaged the US’ global image as a liberal, democratic power.45 As David Cole notes,

“excluding people for their ideas is contrary to the spirit of political freedom for which the

United States stands.”46

Fundamentally, arguments which propose forgoing certain rights in the name of security

fail to grasp the severe impact such tradeoffs already have had and will continue to have on the

status of law as a firm institution which inhibits abuses of power, on human rights as moral and

universal claims which everyone should have access to, and on the democratic principles upon

which the contemporary US was found and for which it prides itself.

Section 3 – A Slippery Slope: From Noncitizen to Citizen, From “State of Emergency” to

Permanency

Lastly, arguments which propose a tradeoff between human rights and security are not

only misplaced due to the reasons outlined in Sections 1 and 2, but are also incomplete due to the

45 Foot, op. cit., p.723.

46 Cole, "Their Liberties, Our Security. Democracy and Double Standards," op. cit., p.297.

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relative lack of any framework for what constitutes an emergency. Essentially, what’s the limit?

With no stipulations addressing the temporal boundaries which constitute an emergency,

tradeoffs between human rights and security have the potential to become permanent features of

contemporary politics. Concerns such as these are not ill-found. The “War on Terror,” for

example, was declared as a state of emergency in the immediate aftermath of 9/11. Fifteen years

later, it is still ongoing, and the policies enacted in direct response to the tragedy of 9/11 still

remain in full bloom today. Guantanamo Bay, for example, still houses over 90 prisoners without

legal access nor contact with the outside world.47 As Neocleous remarks, emergency powers and

accompanying tradeoffs between rights and security have become “so fundamental to the

political administration of capitalist modernity that they have, to all intents and purposes,

become a permanent feature of liberal democratic polities.”48

Furthermore, with the introduction of international counterterrorism measures like the

UN sanctioned Resolution 1373 (2001), the danger of permanency becomes all the more real.

The Resolution, which calls upon UN member states to act against terrorism, does not provide

any competent form of framework regarding the temporal, political, or legal boundaries of the

counterterrorism acts for which it calls.49 The lack of provisions which set clear temporal bounds

indirectly sanctions timelessness of counterterrorism measures, further revealing how such

measures, including those which tradeoff rights for security, have already started becoming

permanent features of contemporary politics.

47 Schuppe, Jon. "Who Are the Detainees Left at Guantanamo Bay?" NBC News. NBC, 23 Feb. 2016. Web. 2 May 2016. 48 Neocleous, op.cit., p.14349 Roach, Kent. "Sources and Trends in Post-9/11 Anti-Terrorism Laws." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007, pp.230-231.

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While the danger of this might be overlooked by those who, as of yet, have not been

directly affected by post 9/11 counterterrorism measures, the lack of definitive temporal limits

for such measures is a threat that should not be underestimated. Indeed, there has already been an

extension of counterterrorism measures from the noncitizen to the citizen, so there is certainly

reason to be wary of the lack of any established temporal bounds for “emergency” powers. For

example, David Cole remarks how the ability to indefinitely detain a suspected terrorist has

already extended from the noncitizen to the citizen.50 This is evident with both Jose Padilla and

Yasser Hamdi, both of whom are US citizens and both of whom have been treated as noncitizens

have who have also been accused of terrorist activity.51 Clearly, the transition from noncitizen to

citizen is already happening. Effectively, as Cole observes, “all of our rights are at stake in how

we treat foreign nationals in the war on terrorism.”52 Therefore, arguments which propose a

tradeoff between human rights and security are also misplaced due to their inability to set

temporal bounds and due to their potential in negatively affecting the citizen as much as the

noncitizen.

Conclusion:

As Bertrand Ramcharan correctly observes, “It is a challenging time for human rights. It is a time

when the relationship between freedom and security is being tested as never before.53 The

counterterrorism measures introduced since 9/11 illustrate how the relationship between rights

and security are indeed “being tested as never before.” This paper has addressed arguments 50 Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, op. cit., p.178.51 Cole, op. cit., p.178.52 Ibid, p.179.53 Ramcharan, B. G. Human Rights and Human Security. The Hague: Kluwer Law International, 2002, p.7.

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which defend such measures by justifying a tradeoff between human rights and security as

necessary in times of emergency. Fundamentally, this paper has argued that such arguments are

misplaced and inadequate because they simplify the very complex and multilateral character of

security by ignoring or failing to acknowledge the double standards and racial bias that have

accompanied counterterrorism measures which employ such tradeoffs. Equally, tradeoffs which

sacrifice rights in the name of security do not consider the long term impact this may have on the

status of law, of human rights and of democracy. Lastly, as Section 3 has indicated, advocates of

the “balance metaphor” largely fail to stipulate and define what constitutes a “state of

emergency,” therefore rendering arguments which propose such tradeoffs as incomplete, further

revealing them to be misplaced. All of these factors expose the “balance metaphor” to be

ineffective and counterproductive, with the racial bias and degradation of human rights and the

law spurning a vicious cycle by fueling anti-American rhetoric, which formed the basis, however

unjust, for the 9/11 attacks in the first place. Not only that, such tradeoffs misrepresent and

underappreciate values which the US, as the leading “liberal” power, traditionally prides itself

for upholding. As former US senator McCain persuasively contends;

…We hold ourselves to humane standards of treatment of people no matter how evil or

terrible they may be. To do otherwise . . . undermines our security, but it also undermines

our greatness as a nation. We stand for something more in the world - a moral mission,

one of freedom and democracy and human rights at home and abroad... The enemy we

fight has no respect for human life or human rights . . . But this isn't about who they are.

This is about who we are.54

The “War on Terror” is indeed a pivotal time for both “us” and “them,” and by denying

fundamental rights to selected minorities while simultaneously using other apprehensible

methods in an uninsurable attempt to enhance security, the “liberal” character for which the US

54 McCain, cited in Foot, op. cit., pp.724-725.

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is often known is undermined and belittled, further proving the ineffectiveness of the “balance

metaphor.” Indeed, as McCain claims, terrorist attacks and consequent governmental action are

not just defining moments for terrorist organizations, but also for those determined to stop them.

Word Count: 5180

Bibliography

Primary Sources:

Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

Secondary Sources:

Arnold, T. Clay. "Executive Power, The War On Terrorism, And The Idea Of Rights". Politics & Policy 34.4 (2006): 670-688. Wiley Online Library. Web. 12 Mar. 2016.

Ashworth, Andrew. "Security, Terrorism and the Value of Human Rights."Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007. 203-26. Print.

Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: New, 2003. Print.

Cole, David. "Their Liberties, Our Security. Democracy and Double Standards." International Journal of Legal Information 31.2 (2003): 290-311. HeinOnline. Web. 18 Apr. 2016.

Delahunty, Robert J., and John C. Yoo. "What Is the Role of International Human Rights Law in the War on Terror?" DePaul Law Review59.803 (2010): 803-50. HeinOnline. Web. 18 Apr. 2016.

Foot, Rosemary. "Exceptionalism Again: The Bush Administration, the "Global War on Terror" and Human Rights." Law and History Review26.3, Law, War, and History (2008): 707-25. JSTOR. Web. 23 Mar. 2016.

Feinberg, Myriam. "International Counterterrorism – National Security and Human Rights: Conflicts of Norms or Checks and Balances?" The International Journal of Human Rights 19.4 (2015): 388-407. Taylor & Francis. Web. 24 Mar. 2016.

Goold, Benjamin. “Privacy, Identity and Security.” Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007. 45-71. Print.

18

CandNo: 144457

Harcourt, Bernard E. "Muslim Profiles Post 9/11: Is Racial Profiling an Effective Counter-Terrorist Measure and Does It Violate the Right to Be Free from Discrimination." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007. 73-97. Print.

Ignatieff, Michael. "Lesser Evils." The New York Times. The New York Times, 02 May 2004. Web. 1 May 2016. <http://www.nytimes.com/2004/05/02/magazine/lesser-evils.html?_r=0>.

Moeckli, Daniel. Human Rights and Non-Discrimination in the "War on Terror" New York: Oxford UP, 2008. Print.

Neocleous, Mark. "Security, Liberty and the Myth of Balance: Towards a Critique of Security Politics." Contemporary Political Theory 6.2 (2007): 131-49. Palgrave Macmillan Ltd. Web. 19 Mar. 2016.

Orend, Brian. Human Rights: Concept and Context. Peterborough, Ont.: Broadview, 2002. Print.

Pendas, Devin O. "Review: Interrogating Torture: Human Rights, the War on Terror, and the Fate of America." Journal of American Studies44.2 (2010): 429-39. JSTOR. Web. 23 Mar. 2016.

Ramcharan, B. G. Human Rights and Human Security. The Hague: Kluwer Law International, 2002. Print.

Ramraj, Victor. "Between Idealism and Pragmatism: Legal and Political Constraints on State Power in Times of Crisis." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007. 185-202. Print.

Roach, Kent. "Sources and Trends in Post-9/11 Anti-Terrorism Laws." Security and Human Rights. Ed. B. J. Goold and Liora Lazarus. Oxford: Hart, 2007. 227-56. Print.

Schuppe, Jon. "Who Are the Detainees Left at Guantanamo Bay?" NBC News. NBC, 23 Feb. 2016. Web. 2 May 2016. <http://www.nbcnews.com/news/us-news/guantanamo-bay-who-are-detainees-left-prison-facility-n524196>.

Sweeny, JoAnne M. "Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights." Pace Law Review 34.3 (2014): 1190-1239. Print.

Van Kempen, P. H. "Four Concepts Of Security--A Human Rights Perspective". Human Rights Law Review 13.1 (2013): 1-23. Oxford UP. Web. 15 Mar. 2016.

"Exposed: Torture and the CIA." Amnesty International. Amnesty International, 10 Dec. 2014. Web. 2 May 2016. <https://www.amnesty.org.uk/exposed-torture-and-cia>.

"What Are Human Rights?" Amnesty International. Amnesty International, 7 Aug. 2015. Web. 1 May 2016. <https://www.amnesty.org.uk/what-are-human-rights?gclid=CMmTgtm448wCFa8W0wodfDcNUQ>.

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