From the end of World War II to the start of the "global war on terror," international law provided crucial support for the promotion of human rights around the world. But the response to the September 11 attacks has had a profound and little-appreciated impact on international law with devastating global consequences for human rights, democracy, and constitutionalism. The Bush administration did not just persuade Congress to pass the USA Patriot Act, eliminating critical civil-liberties protections against excessive governmental powers. U.S. officials also mobilized the United Nations Security Council to require all U.N. member states to enact their own domestic versions of the Patriot Act, and many of those governments have used the new globally mandated security program to restrict rights, concentrate power, and suppress political dissent.
George W. Bush was certainly no fan of international law. Whenever it became inconvenient, his administration lawyered around it. Officials established an "enhanced interrogation" program that redefined universal legal restrictions against torture and set up "black sites" outside the law to carry it out. The president even joked about his administration's apparent disdain for international law. Asked at a press conference on December 11, 2003, whether his Iraq policy was consistent with international legal doctrine, Bush chuckled, "International law? I better call my lawyer -- he didn't bring that up to me."
Nonetheless, the Bush administration has left a major legacy in international law by redirecting it from the protection of human rights to the promotion of international security. While the Twin Towers still smoldered in Lower Manhattan, administration officials sought United Nations' cooperation. The day after the attack, the U.N. Security Council pronounced itself "determined to combat" the new threat "by all means" and, at American urging, soon rolled out an extensive plan for fighting terrorism. On September 28, using its authority under the United Nations Charter to create a program binding on all member states, the Security Council passed Resolution 1373, requiring governments to join an ambitious new anti-terrorism campaign. For the first time in its history, the Security Council legislated on behalf of the global community.
Resolution 1373 reaches deep into areas of domestic law that had long been thought sovereign territory. It requires states to criminalize terrorism and such related offenses as aiding, abetting, conspiring to, providing material support for, and (in a later resolution) inciting terrorism. Resolution 1373 mandates that states change their laws so that the financial transactions of suspected terrorists can be blocked without prior notice to suspects and without creating a process to allow them to challenge the freezes after the fact. This provision requires states to make formerly private financial transactions visible to the state in real time.
The resolution also tramples on protection for personal privacy. With the Security Council's encouragement, communications-interception technology and old-fashioned spying have saturated the world. Required to share information about threats with other governments, states have predictably sought to consolidate and coordinate intelligence activities, removing legal safeguards that had been put in place to prevent the concentration of information about individuals in one state agency. In addition, the Security Council mandates that states step up border controls, create more secure travel documents, and implement higher hurdles for refugee and asylum claims. International travel has come under scrutiny and become easier to restrict.
Finally, the resolution requires states to take "the necessary steps to prevent terrorism." A wild card dealt to dictatorships and democracies alike, this general exhortation has pushed states to launch ambitious new anti-terrorism programs while allowing them to say that international law made them do it.
Although Resolution 1373 was novel for the United Nations, this "to do" list would soon look familiar to Americans. It was precisely the program introduced the next month by the USA Patriot Act.
Resolution 1373 -- in effect, a global Patriot Act -- fanned outward from the Security Council. Regional bodies joined the effort, adding action plans and treaties to carry out the new policies. The European Union, the African Union, the Organization of American States, the Organization for Security and Cooperation in Europe, the Association of South East Asian Nations, the Arab League, and other organizations supported the Security Council plan and required their member states to comply with it.
Could this ambitious new program really take root in countries around the world on command from above? International law famously has problems obtaining compliance. But after the Security Council adopted Resolution 1373 and regional bodies lent their weight to the effort, national governments sprang into action. All 192 member states of the United Nations filed reports with the Security Council, and almost all indicated that they had changed their domestic laws to fight terrorism according to the global plan. Within five years, the Security Council reported that "most states" had fully complied with the resolution.
Internationalists cheered. International law had risen to the challenge of a worldwide crisis. But the new plan came with dangers.
When it passed Resolution 1373, the Security Council failed to link global security law with human rights. For two years, the council's website pronounced that it was other international agencies' business to monitor rights since the Security Council was only in the security business. Countries as diverse as Germany, Vanuatu, Thailand, Russia, Canada, and Ethiopia and more than 100 others adopted comprehensive anti-terrorism laws to comply with Resolution 1373. Although these countries were all following the same instructions, their anti-terrorism laws differed substantially. By the time the Security Council officially expressed concern about the dire human-rights implications of the policies some governments adopted, it was too late. The measures were already enacted.
The Security Council's failure to define terrorism opened the door to abuse; in fact, no definition exists in international law, so states had to improvise without direction. From Russia, which calls terrorism "an ideology of violence," to Vietnam, which says that terrorism is anything that disrupts the people's order, definitions of terrorism reflect the political programs of the individual states. Ethiopia labels crimes as terrorist when they are carried out "for the purposes of advancing a political, religious, or ideological cause." France created a crime of "pimping for terrorism," which applies to a person possessing large amounts of unexplained cash when the government believes the person's friends are terrorists. Not only are these definitions dangerously broad but many also blur the distinction between legitimate activity and serious threats.
Because terrorism can mean whatever government leaders want it to mean, terrorism prosecutions often have nothing to do with the kind of terrorism associated with September 11. When red-shirted protesters attempted to raise a peaceful challenge to Thailand's government in 2010, loyalist troops attacked them, and the protesters who survived were charged with terrorism. In Pakistan, a new anti-terrorism court expedites terrorism prosecutions, which have featured charges against former government officials and political plots based on weak evidence. The Saudi and Moroccan governments have used anti-terrorism laws against their political opponents. This year, the Arab Spring protesters in Egypt demanded that the government halt a state of emergency that had lasted for decades and had given the government broad powers to curtail opposition, but ending the state of emergency made no difference. In 2007, President Hosni Mubarak had inserted an anti-terrorism provision into the constitution that gave him all the powers he needed to imprison opponents.
Anti-terrorism measures often violate basic rights such as the right of the accused to contest charges made against them. People whose assets are frozen under the Security Council's blacklist become stuck in a Kafkaesque legal limbo. They cannot challenge the freezes in court because the states that freeze their assets at the request of the Security Council don't have the information that caused the assets to be frozen in the first place. As a result, the courts cannot offer any legal process to allow the person affected to refute the evidence against him. While some courts -- most notably the European Court of Justice and the U.K. Supreme Court -- have found that these freezes violate due-process protections, property rights, and other constitutional constraints, the new regulations written in response to these court judgments provide little improvement. The Security Council still requires states to comply with the blacklist.
All over the world, global security law has concentrated powers in the hands of executives, strengthening them at the expense of parliaments and courts. In Indonesia and Romania, the required anti-terrorism programs were first enacted by executive decrees in the absence of legislation. In both the United States and the United Kingdom, where chief executives can carry out binding Security Council resolutions with executive orders, the asset-freeze regulations bypassed the legislatures. Where courts have ruled that parts of the anti-terrorism program are unconstitutional, as they have in Peru and in Colombia, the Security Council inquired what those states were planning to do to ensure that the program could continue, even though the courts had objected. Resolution 1373 has given executives powerful legal ammunition to use in battling domestic courts and legislatures that object to anti-terrorism measures.
The dangers of global security law could have been predicted by anyone familiar with the history of state efforts to control political opposition. For the past ten years, long-established constitutional democracies have been seized by an anti-terrorism panic, and fragile new democracies have tipped back toward the anti-democratic policies they so recently abandoned. Repressive states have used these dramatic new powers to further repress. The Security Council and other global actors have cheered their own success in deploying global anti-terrorism measures without taking responsibility for the resulting harm to human rights.
Global security law has undermined human rights even more than did the U.S. program of rendition, detention, and torture. That was outlaw behavior, now generally recognized as such. But the "global patriot act" is still effective law, and there is no sign it is going away.