The rule of law, human rights and proportionality as components of the war against terrorism: is the US judiciary in self‐imposed exile?
| DOI | https://doi.org/10.1108/13685200410809931 |
| Published date | 01 July 2004 |
| Date | 01 July 2004 |
| Pages | 218-253 |
| Author | Fletcher N. Baldwin |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control Ð Vol. 7 No. 3
The Rule of Law, Human Rights and Proportionality as
Components of the War against Terrorism: Is the US
Judiciary in Self-Imposed Exile?
Fletcher N. Baldwin, Jr
PREFACE
`The world is his, who can see through its preten-
sion. What deafness, what stone-blind custom,
what overgrown error you behold, is there only
by suerance Ð by your suerance. See it to be a
lie, and you have already dealt it its mortal blow.'
(Ralph Waldo Emerson, The American Scholar;
An Oration Delivered before the Phi Beta Kappa
Society, at Cambridge, August, 1831.)
It is the purpose of this paper to expand upon an earlier
eort analysing the USA Patriot Act.
1
This paper
revisits the earlier work and in doing so expands
upon the question of whether nations adhere to inter-
national laws and customs out of a sense of obligation
coupled with the expectation that in return other states
will adhere out of a similar sense of obligation or
whether states capable of doing so, act unilaterally out-
side legal constructs with complete impunity. It is the
thesis of this paper that the legitimacy of international
law depends upon states performing their inter-
national relations in accordance with the principle of
pacta sunt servanda (pacts shall be respected).
There are those who believe that international law is
not really law because governments comply with its
rules and norms as a matter of convenience and reject
mandates when those rules no longer suit an individual
state's interests. The absence of an international voice
facilitates the reinforcement of this view.
This paper reviews these issues within the broad
context of self-preservation, proportionality and
human rights. These concepts suggest three questions:
(1) Under what circumstances does pre-emptive
action, without United Nations Security Council
approval, violate the international rule of law
known as jus ad bellum thereby constituting an
aront against international peace?
(2) In the absence of Security Council approval,
when is jus in bello justi®ed by the principle of
necessity? When is action justi®ed by principles
of humanitarian intervention?
(3) At what point does a Chief Executive exercising
extraordinary powers in the name of national
security obtain domestic legitimacy?
The narrow focus of question 3 will be upon an anal-
ysis of the US Constitution and the role that document
plays in a `war on terrorism'.
To do so requires a review of the domestic doctrine
of separation of powers within the context of national
security. If separation of powers is non-existent, then it
is dicult to analyse the legitimacy of claims asserted
by the USA to justify a military act and a USA Patriot
Act. The doctrine of separation of powers is histori-
cally the hallmark of US constitutionalism.
2
INTRODUCTION
One of the many collateral victims of the 11th
September, 2001 terrorist attack has been the rule of
law. It is learnt in law school that the rule of law is
representation coupled with the nuances of relation-
ships, customs, opinions, beliefs and rules. In order
for the rule of law to serve a legitimate function
within society, it must re¯ect that society's perceptions
and beliefs in tandem with the society's willingness to
acquiesce to it (ie laws regulating speed limits, use of
illegal drugs, insider trading, etc). If the rule of law is
to be accepted as legitimate and representative, it
must in turn lend itself to the will of the society,
including its advocacy for change, overthrow or
rebellion. Both formal and informal rules, agreements
and obligations within a democracy facilitate order
through expectations; this makes it possible for the
society to organise itself in a predictable, peaceful
and secure fashion.
3
It is further learnt in law school that international
agreements serve a similar function; they establish
procedures and rules intended to provide peace and
security among states. For the most part, international
laws deal directly with state entities. However, inter-
national laws may, and often do, have a direct
and/or indirect eect upon individuals, groups and
Page 218
Journalof Money Laundering Control
Vol.7, No. 3, 2004, pp. 218± 253
#HenryStewart Publications
ISSN1368-5201
cross-border transnational governmental exchanges
that operate within and between states.
4
Terrorism by its very nature disrupts international
peace and security through premeditated, political
violence.
5
The 11th September attacks on the World
Trade Center and the Pentagon disrupted the global
economy.
6
The attacks spawned and facilitated wide-
spread personal fear, panic and economic dislocation.
7
According to the United Nations Security Council,
one of the objectives of the terrorists was to create a
state of global anarchy by means of in¯uencing the
conduct of government's vis-a
Á-vis intimidation and
coercion.
8
The institution of the UN serves as an international
conduit whose goals include not only preventing
terrorism but also preventing, eliminating and/or
eradicating genocide, famine and other humanitarian
concerns. Thus, it is the responsibility of every
member state according to its ability to contribute
aid and resources (either economically, or through
social transnational rehabilitation, or both) in order
to elevate the global stature of the UN. This in turn,
improves the UN's ability to conduct its international
functions in a more ecient and eective manner to
the bene®t of all member states. The UN's inter-
national political stature and global ®eld of in¯u-
ence can be embraced with the full understanding
that such support does not negate a state's legiti-
mate right of self-defence and, therefore, support
of state and UN are not at all mutually exclusive
concepts.
While nation states recognise that law is a necessary
and important component of social control, such
social control is to be employed with an understanding
that its legitimacy is intricately linked with the concept
of governance.
9
The principle of proportionality in
general compliments the notion of governance that
expects and requires that punishment of wrongdoers
be based upon the comparison of the gravity of the
oence against the state to the severity of the punish-
ment.
10
On balance, how must proportionality oper-
ate within the context of organised terrorist activities?
Terrorists intend their results to accomplish social and
economic disintegration by disrupting lawful control
and muting the notion of governance. The type,
time or consequences of attacks cannot be predicted
with any degree of certainty; however, some of the
intended consequences can be predicted. As the
United Nations Security Council Resolution 1373
noted, a nation state has the legitimate right of self-
defence when threatened by the acts of terrorists
bent upon economic, social and political destabilisa-
tion because the destabilisation can lead to the collapse
of legitimate governance. Governance implies policy,
which in turn implies choice and decisions, expec-
tations and opportunity; however, it excludes terror-
ism and anarchy.
11
Knowledge of the rules and
expectations, and the opportunity to have input in
the development and revision of the rules are major
factors. Expectations and political participation are
within this citizen's frame of in¯uence and are
generally translated into democratic rule.
12
Historically, non-democratic traditional societies
have a dierent focus, though probably similar aspira-
tions. Their governors possessed sole control with a list
of `shoulds' for those being controlled. `Rights' were
an entity belonging to the governors; the common
run of human kind had limited access to those
`rights'.
13
The sense of constitution as it has developed pro-
vided nature, functions and limitations upon govern-
ment as well as articulated rights and liberties of the
citizenry. The constitution also facilitates control,
security, direction and development. A constitution,
in theory, assures change from within. When the
changes are imposed from without, the legitimate
constitutional government has a right to self-defence.
What, however, is the degree or extent of degree of the
right of self-defence? The doctrine of proportionality
requires controlled, proportional responses; otherwise
the concept of rule of law gives way to anarchy.
THE CONCEPT OF THE RULE OF LAW
In what manner can law become a collateral victim?
Within an emerging concept of law, there are also cer-
tain moral and social standards that must take hold.
For example, certain acts by persons within a given
society are labelled taboo. If accepted as such, they
are positioned by the society beyond toleration. In
order for a democratic society to survive, it has a
right and duty to implement and enforce rights and
responsibilities through its institutions; at the same
time it is factoring in the rights of the minority in
order to avoid tyranny of the majority (ie mob
rule).
14
What, in part, dierentiates legitimate
societies in the diering views of the purpose of
society? For many nation states, maximising freedoms
has become synonymous with maximising individual
freedoms as long as that is consistent with the integrity
of that society.
15
A generalisation to be sure! Lord Patrick Devlin
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The Rule of Law, Human Rights and Proportionality
argued that a society has a right to protect its own
existence provided it is following given moral convic-
tions and is attempting, in its defence, to protect its
structural, social, economic and legal environment.
16
To concede Lord Devlin's point, which assuredly dif-
fers from that of John Stuart Mill,
17
one must go a step
further and ask: did Lord Devlin intend that public
condemnation alone be sucient to justify making
an act a crime? Certainly not!
The late Professor Lon Fuller clari®ed the answer by
proposing that there are moral principles and moral
standards which a society has every right to place
beyond toleration and to impose sanctions upon
those who dissent.
18
Child pornography immediately
comes to mind. However, Fuller also notes that
majority rule in a democratic society is also a moral
conviction stripped of emotional reaction (prejudice).
How does a society know when a threat is directed
towards the very existence of that society? When is
there sucient clear and present danger to justify
immediate reaction? And is the reaction free from con-
stitutional restraints? Many who are drawn to terror-
ists' encampments reject as myths most, if not all,
functions of a democratic society; again Professor
Fuller:
`In a democratic society:
(a) Decisions must be made in the public interest;
(b) Decisions must be made objectively on the basis
of shared values and shared facts;
(c) Decisions of Governm ent must be fair;
(d) Punishment can neither be cruel and unusual
nor excessive.'
19
`The question whether an act, repugnant to the consti-
tution, can become the law of the land is a question
deeply interesting to the United States; but happily,
not of an intricacy proportioned to its interests.'
20
Would Chief Justice Marshall of 1803 respond in
like kind in the year 2004? Some would argue that
the democratic philosophy is an illusion that is su-
cient for the disillusioned to rise against the society.
Our courts have concluded that an active response
requires sucient evidence of clear, illicit governmen-
tal takeover outside of constitutional mandates.
The question for the anti-terrorists must be: how
does one go about the process of social change? Are
there constitutionally recognised means available to
dissenters? If there is, then society can protect itself
against terrorists' acts, which occur without consti-
tutional support.
21
A democracy is a good and proper instrumentality
with which to serve people.
22
The problem has been
that although democracies deal with popular control
of power sharing, who or what institution deals
with terrorists and/or organised crime bent upon
social change? Have our institutions been successful
in changing the rules to meet rapid attacks upon
social and economic institutions? Professor Fuller
argues that by asking the questions, the answers
become clearer. He notes that ®rst and foremost the
society must adhere to a rule of law. According to
Fuller, there are eight conditions that exist in order
for a society to claim its existence is based upon a
rule of law. If the following eight conditions are
met, neither terrorism nor anarchy is an option.
23
1. Laws are to be generalised as rules.
2. Laws are to be made known (transparent).
3. Laws are to impose liability for acts prospectively
and not retroactively.
4. Laws should be suciently clear to serve as stan-
dards for decisions made in their name.
5. Laws are to avoid practical contradictions.
6. Laws ought not to require what is impossible.
7. Laws are to be suciently constant to enable
reliance on them.
8. Laws are to be implemented according to their
terms.
24
What instrument confers the authority de®ned by
Fuller? Do the eight principles provide a procedure
for arguing against any particular condition?
In Dr Bonham's Case, Lord Coke said:
`[A]nd it appears in our books, that in many cases,
the common law will control Acts of Parliament,
and sometimes adjudge them to be utterly void:
for when an Act of Parliament is against common
right and reason, or repugnant or impossible to be
performed, the common law will control it, and
adjudge such Act to be void.'
25
In the USA, constitutional framers understood Lord
Coke to mean the doctrine of judicial review. There
must be an institution established that determines
justi®cation for the proposal of other principles and
for the identi®cation of fundamental conditions.
That institution is found in Art. III.
26
In an un-
published paper co-authored by this writer and a
Page 220
Baldwin
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