Anderson and Massimino on Terrorism and the Law

by Peter Spiro

When two keen observers cross the divide to agree on some basic propositions regarding anti-terrorism policies, we ought to pay attention. Ken Anderson and Elisa Massimino have this think piece out from the Stanley Foundation. (Ken will be known to readers of the blog and Elisa should be — she heads up the Washington office of Human Rights First. Here is Ken’s post with some background on the paper.) They don’t see eye-to-eye on everything, especially on the prescriptive side (Elisa sees much more relevance for applying international human rights here than does Ken), but they do agree, pretty emphatically, that counterrorism should not be conceived of as “war.” Strategically and metaphorically, perhaps, but not legally.

From that they critique the Bush Administration’s policies on detention, military commissions and the combatant status review tribunals, and torture. They agree that

the current legal situation is an unsatisfying and unworkable mish-mash of bits of highly contested international law combined with Bush administration policy decisions, Supreme Court opinions that are themselves bits of this and that, and narrow legislative fixes designed to satisfy minimum requirements of the case law.

So they call for legal clarification in a new paradigm, on the understanding that neither the war nor the law enforcement paradigms work here. They may not be the first to make that argument, but their analysis is particularly clear, well worth the read even for those who are already steeped in this stuff.

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