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346. In view of the importance and the complexity of terrorism, it seems indispensable to attempt to form an
international consensus on its precise nature and scope, as well as on the means to fight against it. Since the
United States Government continually re-emphasises that its “war on terror” is for the good of citizens of the
wider free world, and Europeans in particular, then it is imperative that we agree upon the principles and legal
standards that govern it.299
347. We must further ensure that we do not allow our collective vision and judgment to be clouded on issues
such as detainee treatment, which I have addressed here through the lens of interrogation techniques.
348. As I conclude this inquiry, my overwhelming conviction is that clearer and fairer terms of engagement
can only result from our finding consensus on how to react. It is also indispensable to take into account
political considerations which foster terrorism and the means of modifying them.
9.1. Towards consensus definitions of phrases used in the “war on terror”
349. I believe that three definitions in particular are in urgent need of clarification. The first of these is the
notion of a “war” against international terrorists. The policy of the Bush administration characterises “war” in
unfeasibly broad terms. It is easy to see why the metaphor of “war” plays a formidable political role in rallying
American support for United States foreign policy, but it also serves to weaken and destabilise the essential
framework upon which the “laws of war” are based.
350. In the context of my inquiry, I have analysed United States “programmes” that President Bush has
placed squarely under his “war on terror” metaphor: primarily the “high-value detainee” or HVD programme,
and the “rendition” programme. Yet these activities rarely resemble war as we know it in the classic military
sense. Accordingly I agree with the following assessment of two prominent American commentators:
“In so far as counter-terrorism policy requires all of the tools of government, most of these tools will not
in fact be the tools of war in the actual meaning of armed conflict. Instead they will involve surveillance,
interdiction of terrorist financing, intelligence gathering, diplomacy and other methods. Thus the
language of global war is necessarily metaphorical.”300
351. The second ill-conceived expression is that of the “enemy,” the present definition of which is an affront
to international human rights and, in particular, to our notions of equality before the law. From as early as
President Bush’s Military Order of 13 November 2001,301to as recently as the Military Commissions Act of
2006,302notions of “otherness” – particularly foreign nationality – have been at the heart of United States
policy on detaining terrorist suspects.
352. I firmly believe that the same basic human rights standards should be applied equally regardless of
whether a detainee is American or non-American, whether ally or adversary, whether of the highest or lowest
“value”, whether targeted by the CIA, the DoD or the FBI, and whether held on the territory of the United
States or overseas. By acting otherwise in its practice and its legislation, the United States Government has
instituted a form of legal apartheid, where human rights and legal protections are applied to detainees in
lesser or greater measure on an entirely discriminatory basis.
353. Nowhere has this legal apartheid been more apparent than in the subject matter of this report – the
CIA’s covert programme to hold foreign “enemy” HVDs in secret detention overseas, including on the territory
of Council of Europe member states. It is high time that we end this untenable discrimination – and with it we
must banish forever the Bush administration mindset that effectively says “if it is illegal for us to use such a
practice at home or on our own citizens, let us export or outsource it so we will not be held to account for it.”
299. I do not intend, in this brief section, to repeat my comparative analysis of “legal perspectives” in the United States and
the Council of Europe contained in my report last year, as I feel that it remains just as pertinent today: see the Marty report
2006, supra note 6, at Section 10, pp. 54 -59, paragraphs 265-279.
300. See Anderson and Massimino, “Resolving Ambiguities in Detainee Treatment”, supra note 214, at p. 3. The authors
also state, at p. 14: “The counterterrorism policies of any new [United States] administration or new Congress … must start
from the view that counterterrorism operates across a wide range of activities. At one end is law enforcement … at the
other end is war … The real action against terrorists themselves takes place in a zone between those two extremes.”
301. See Office of the Press Secretary, The White House, “President Issues Military Order: Detention, Treatment and Trial
of Certain Non-Citizens in the War Against Terrorism”, 13 November 2001, full text available at http://
www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html.
302. See Military Commissions Act of 2006, http://www.loc.gov/rr/frd/ Military_Law/MC_Act-2006.html. The Act makes
explicit distinctions between United States citizens and non-citizens, or “aliens”, as grounds for affording lesser legal
protections (including denial of habeus corpus rights) to the latter category.
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