Doc. 11302 Report 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. 67