Is Judicial Balancing Appropriate in The War on Terror? Contrasting Ordinary Times, Emergencies and Times of Stress

Is Judicial Balancing Appropriate in The War on Terror? Contrasting Ordinary Times, Emergencies and Times of Stress

Theme: Whether judicial balancing and proportionality analysis are appropriate in cases arising out of the war on terror depends on whether such a war can be conducted under ordinary conditions, or whether it calls for the deployment of emergency powers, or else, whether it calls for the adoption of an intermediate approach consistent with conditions of stress. To strike a proper equilibrium between liberty and security, judicial balancing in the war on terror must be fine-tuned to fit conditions of stress.

Summary: Some question whether it is appropriate to use judicial balancing to strike a proper equilibrium between liberty and security in the context of the war on terror. According to one position, the security needs that arise in the war on terror warrant the imposition of emergency powers and granting the executive exclusive powers to determine when, and to what extent, liberty rights must be curtailed to meet security needs. This position leaves no room for judicial balancing in the war on terror. At the other end of the spectrum, there is a position that holds that the war on terror does not warrant a skewing of security interests at the expense of liberty rights. According to this position, not only is judicial balancing appropriate, but also it ought to operate in the same way it does in ordinary times. A third position carves out some ground between the two preceding ones and holds that the war on terror brings about special conditions –conditions of stress– which require adjusting the balance between liberty and security. Such adjustments, however, can be fully achieved through judicial balancing, provided the proper legal paradigms are set in place.

In 2004, the highest court in three different countries, the US, the UK and Israel handed down decisions in war on terror cases, and all used judicial balancing. Because of failure to settle on the proper legal paradigm, the US court overemphasized security, the Israeli overemphasized liberty and the UK reached the right result more because of special circumstances than because of consistent use of judicial balancing. A critical review of these decisions reveals how judicial balancing ought to function in times of stress.

Analysis: Times of stress are neither ordinary times nor times of crisis. In the context of a crisis, be it military, economic, social or natural, the head of government may be entitled to proclaim exceptional powers and to suspend constitutional rights, including political rights. In an acute crisis, the polity is singularly focused on survival and all other political concerns and objectives recede into the background.[1] In contrast, in ordinary times, the polity can readily absorb the full impact of the give and take of everyday politics and constitutional rights ought to be protected to their fullest possible extent.

Times of stress differ from those of crisis primarily in terms of the severity, intensity and duration of the respective threats involved. The line between the two may be difficult to draw, but a less severe, less intense and more durable threat is likely to give rise to times of stress whereas a severe, intense, concentrated threat of relatively shorter duration is likely to provoke a crisis. For example, a foreign military invasion or a widespread domestic insurrection is likely to provoke a crisis. On the other hand, the aftermath of the terrorist attacks against New York City on September 11th 2001, which may involve threats, perceived threats, launching a “war on terror” fought mainly in far away countries, arrest and detention of potential terrorists, but no further terrorist attack on the United States as of the time of writing, has produced times of stress rather than times of crisis.[2]

The distinction between ordinary times, times of crisis and times of stress can be further elaborated consistent with a pluralist conception of the polity where politics looms as the ongoing confrontation between self and other. In a pluralist polity, different groups, ethnic, religious or ideological, and different interests, compete for power and scarce political goods. Such competitions, moreover, can be characterized as struggles between self and other. In ordinary times, conflicts between self and other do not threaten the unity of the polity and find resolution, or at least confinement, within the existing constitutional, institutional, and political framework. Thus, in spite of the fact that a number of struggles relating to individual or group identity and to the apportionment of benefits and burdens throughout the polity split the citizenry into a multiplicity of selves pitted against numerous others, the common self that binds all citizens to the unity of the polity remains glued together and shows no danger of unraveling. In ordinary times, neither self nor other may be fully satisfied with their fate and may be likely to struggle continuously to ameliorate their respective position. Neither of them, however, is likely to become so dissatisfied with his or her status or with the existing institutional framework for processing conflicts as to want to withdraw from the polity.

Times of crisis, in contrast, occur when the common identity or the very life of the polity are in imminent peril. The cause of the peril may be external, as in the case of a foreign war, or internal, as in the case of civil war or violent secession. In times of crisis, the conception of the good of self or other is so little integrated or accommodated within the polity that all possible institutional resolutions of the conflict between self and other will strike one or both of them as deeply insufficient, unsatisfactory and unjust.

Times of stress stand halfway between ordinary times and times of crisis. In times of stress, there is less extensive and less successful accommodation and integration of significantly represented conceptions of the good. Self and other are less likely than in ordinary times to consider institutional processes of conflict resolution to be just or fair. The identity or unity of the common self that is supposed to bind together the citizenry is not disintegrating, but it is destabilized and under various pressures. Whereas a conventional war may cause a crisis, terrorism and the war on terror seem more likely to create stress. Indeed, unlike a military invasion, terrorist acts are likely to be sporadic and widespread causing more psychological than physical harm. Having terrorists hidden within the polity’s population is undoubtedly unnerving and can easily lead to overreactions, undue suppression of fundamental rights or exacerbation of ethnic or racial prejudice such that certain selves and the conceptions of the good they endorse may become increasingly unhinged. At some point, erosion of accommodation of certain conceptions of the good may place increasing strain on the working unity of the polity’s citizenry. In short, both the threat posed by the terrorist –be he or she a foreign or a domestic one– and the dangers posed by overreaction may fray the common glue that binds the polity together. Thus, the dangers looming on the horizon in times of stress may not be very different in nature to their counterparts present in times of crisis. Nevertheless, in times of stress, these dangers are markedly less imminent and less intense.

That the current war on terror gives rise to conditions of stress rather than of crisis is well captured in the following passage from Lord Hoffman’s opinion in the A(FC) case: “[The United Kingdom] is a nation that has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community”.[3]

Both ordinary criminals and soldiers in the armies of foreign enemies can pose threats to the lives and security of the members of a polity. The law, however, treats suspected criminals and captured enemy soldiers very differently. Following arrest, suspect criminals must be charged, tried, convicted and sentenced before they can be legitimately confined to prison for a determinate maximum period of time. Moreover, in constitutional democracies, such as the US for example, criminal defendants are afforded certain categorical constitutionally protected rights, such as the right against self-incrimination,[4] the right to counsel[5] and the right to confront witnesses that testify against them,[6] to secure an acceptable minimum of procedural fairness. Such rights as well as other norms and protections, such as the requirement that the state prove its case against the accused “beyond reasonable doubt”, frame the “criminal law paradigm”.

In contrast, captured foreign enemy soldiers who are not in violation of the laws of war can only be detained consistent with applicable norms of the international law so as to prevent them from further participation in the military conflict on the side of the captor’s foreign enemies.[7] Such prisoners of war must be treated humanely, are exempt from all but a minimum of clearly defined interrogation and are to be released without undue delay upon termination of hostilities.[8] In short, these as well as other legally binding norms that set the legitimate bounds for the treatment of prisoners of war in the context of conventional military hostilities among two or more nation-states circumscribe the “law of war paradigm”.

In addition to requiring neutralization of criminals and foreign soldiers fighting against their country’s armed forces, the security of the polity’s citizenry may require further restraints impinging on the citizenry as a whole or on some distinct groups within it. For example, a city plagued by rampant youth-gang violence may improve the security of its inhabitants by imposing a general curfew or one confined to all residents below a certain age. More generally, special security needs arising because of certain specific threats, such as those posed by terrorists, the spread of deadly contagious disease, a natural disaster, organized crime, etc., call for government measures for the protection of the citizenry that are bound to impinge on the protection or exercise of certain fundamental rights, such as freedom of movement or assembly, privacy, etc. In these circumstances, the constitutional state must seek to harmonize liberty and security through a balancing process. The legal-constitutional underpinnings of such balancing process as well as the specific legal norms it engenders give shape to the “police powers law paradigm”.

In its initial reaction to the 9/11 attacks, the Bush Administration could seemingly not make up its mind concerning whether the terrorists’ acts were acts of war by a transnational organized terrorist network sponsored and supported by a state or the criminal acts of Osama Bin-Laden and several dozen co-conspirators.[9] Similarly, the American and British war on terror judicial decisions do not appear consistent in their handling of the distinction between crime and war. Moreover, some of the judges involved treated issues arising out of the war on terror as falling under the criminal law paradigm while other judges tackled these same issues as if they fitted neatly within the law of war paradigm. Neither of these two paradigms is satisfactory for dealing with cases pitting liberty against security in the context of the war on terror.

For their part, the two Israeli cases deal with restrictions on the liberties of the civilian populations in the occupied territories in the West Bank and Gaza. These restrictions were meant to enhance the security of the Israeli citizenry against acts of terror, by means of both defensive –the building of a separation barrier involving walls, fences, etc, in the West Bank– and offensive –chasing terrorists and destroying homes to frustrate arms smuggling from Egypt in Gaza– military operations. Notwithstanding that these operations were military in nature and that they were conducted in the context of the war on terror, the Israeli Supreme Court treated the two cases it decided as if they belonged to the police powers law paradigm. As will be explained below, this paradigm is unsatisfactory from the standpoint of balancing liberty and security in the context of the effect of military actions on civilian bystanders in the theatre of the war on terror. Ultimately, all three paradigms used in the six cases under consideration are wanting in the context of the war on terror, hence calling for the articulation of a new paradigm as argued below.

Review of the six relevant cases reveals that American balancing is too narrow, Israeli balancing too broad and British balancing difficult to gauge given that other factors were crucial to the judicial disposition of war on terror issues.

An important difference between the three jurisdictions relates to how they respectively chose to place issues arising out of the war on terror within one of the three legal paradigms identified above. The American justices in the Hamdi case[10] (the only one that considered “enemy combatant” claims on the merits) were divided into different legal positions ranging from the paradigm of war to that of criminal law. The position of the four justices in the controlling plurality opinion is best viewed as almost fitting completely within the paradigm of the law of (conventional) war. Indeed, the plurality agreed to the legitimacy of the detention of enemy combatants for security reasons for the duration of the hostilities. Its only concession to the unconventional nature of the war on terror was that it recognized that given the unusual nature of the enemy and the extraordinary difficulty in pinpointing the end of such a war, the risks of mistaken detention, and of the latter remaining unnoticed, were much greater than in the context of ordinary war. Accordingly, the plurality concluded that detainees ought to have a right to challenge their status. But because the plurality was essentially working from a paradigm of war, it granted procedural due process rights adequate in the context of alleged deprivations of liberty or property in the realm of civil, not criminal, law. For anyone who regards Hamdi’s two year detention, which could have plausibly extended for decades, as better fitting within a criminal law paradigm, however, the procedural rights carved out by the plurality are bound to seen inadequate and disproportionate.

The Israeli Court perceived itself as firmly grounded in a war paradigm, and was quite explicit that it was applying the law of war and of belligerent occupation in the two cases it decided –one concerning the separation fence built on the West Bank,[11] the other a military incursion into Gaza to stem the flow of smuggled weapons from Egypt[12]–. This notwithstanding, the Israeli Court actually gave little deference to the military. Moreover, although the Court specified in both cases that the challenged military actions involved were directed against Palestinian terrorism, nothing specific to the war on terror seems to figure in either the paradigm explicitly embraced by the Court or in its actual decisions.

There is an incongruity between the Israeli Court’s unanimous embrace of the law of war paradigm and its seeming under-weighing of the military security objectives at stake in both its cases. Whereas these cases concern the rights and interests of Palestinian civilians, the Court also stressed that both in the West Bank and Gaza terrorists often mingle with the civilian population, thus posing a constant hidden and unpredictable danger.[13] Under these circumstances, the under-weighing of, or lack of sufficient deference to, military security objectives is puzzling unless one hypothesizes that alongside or underneath the war paradigm lies a different paradigm.

This second paradigm is the police power paradigm. The occupying Israeli military administration is indeed the guarantor of public order and rights in those portions of the occupied territories that it controls or substantially affects. From the standpoint of this second paradigm, moreover, the Israel Defence Forces (IDF) are exercising what amounts to police powers vis à vis the Palestinian civilians affected by its activities in the West Bank and Gaza. Just as any state bears responsibility for maintaining order and providing essential services to its citizenry, the IDF as military occupier had similar obligations toward Palestinian civilians over whose lives it exercised substantial control.

Viewed from the standpoint of the police powers paradigm, most of the claims of the Palestinian civilians in both cases[14] ought to have been treated by the Israeli Court as requiring a balancing between what are essentially IDF police power claims[15] and what substantially amount to Palestinian civilians’ constitutional rights claims. Consistent with this, the Israeli Court would be in the same position as any court confronting constitutional cases presenting a conflict between the exercise of state police powers and the vindication of fundamental individual rights.

The UK Law Lords in the A (FC) case much like the American Court seem to straddle between the law of war paradigm and the criminal law paradigm. Those Law Lords who agreed that terrorists threatened the life of the UK would undoubtedly have agreed to indefinite detention of suspected terrorists were it not for the fact that the UK government had chosen blatantly discriminatory means to achieve their objectives.

Unlike in the American cases where the war paradigm may have been misused, but where there was an actual foreign war being fought in Afghanistan, in the UK the war paradigm appears to emerge out of context. The suspected terrorists detained in the UK had no known connection to any conventional war; only a supposed connection to a loose and ill defined network of terrorists. Moreover, the war paradigm is usually only appropriate in times of crisis. In contrast, A (FC)puts into question whether the UK’s war on terror is being fought under conditions of crisis. Assuming, consistent with some views among the Law Lords, that it is not, is the law of war paradigm still appropriate?

Conclusions: Judicial balancing should not be eliminated in cases arising from the war on terror, but it must be structured so as to minimise unsatisfactory outcomes. Moreover, the legal issues that emerge from the war on terror do not fit neatly within any of the three existing legal paradigms discussed throughout this paper. Consistent with this, it seems appropriate to adopt a new paradigm, the ‘war on terror paradigm’. This new paradigm incorporates aspects of the three other paradigms but recasts the relationships among them. The war on terror paradigm also accounts for the tensions that pit conditions of stress against conditions of crisis.

The war on terror paradigm is conceived as a dynamic one evolving and adapting to the needs and problems of the war on terror. Its contours are defined by the contextual shifts produced by contemporary terrorism and by the reactions mounted against it. The war on terror is in many ways different from ordinary war. It is different in terms of the enemy, of how it is fought, of the dangers it poses and of its duration. Whereas conventional wars are generally limited in duration, the war on terror must be conceived as a war without end. This, in turn, should have a strong bearing on how extraordinary powers are conceived and institutionalized in the context of the war on terror. In the context of a conventional war of limited duration, emergency powers can be conceived and implemented as temporary extraordinary measures. In the war on terror extraordinary measures must be conceived as permanent, and as such require a different and more careful balancing of security and rights –one that is tailored to the concerns of times of stress rather than to the exigencies of times of crisis–.

By its very nature terrorism is intended to cause fear, panic and insecurity to a degree that is often out of proportion to the damage inflicted or the real danger posed.[16] To be sure, some of the imaginable acts of terrorism, such as dirty bombs, biological or chemical contamination could cause mass disasters. Others, such as suicide bombings or truck bombing incidents may cause only dozens of casualties, certainly an unacceptable toll and nothing to be taken lightly, but something much smaller than the casualties suffered in conventional wars.[17] It is important for the institutions of government, including the judiciary, not to be swayed by the most frightening imaginary scenarios without first inquiring into the feasibility or probability of particular kinds of acts of terror.[18] Otherwise, both inter-institutional and judicial balancing will inevitably become skewed.

The Israeli cases underscore the importance of including elements of the police power paradigm into the war on terror paradigm. Whereas it is true that the Israeli situation is unique given its occupation of Palestinian territory, to the extent that the problems raised by the separation barrier and aspects of the military occupation in Gaza can be genuinely regarded as “internal”, its implications are quite far reaching. Indeed, the war on terror seems often bound to require imposing restrictions and burdens on a country’s own citizens. And often, as in the case of the Arab-American community in the United States after 9/11, such burdens fall disproportionately on particular minorities.[19] It is accordingly important to remember that even in countries like the US and the UK where terrorism is not connected to a conventional war or boundary dispute, the war on terror does not merely fall within the war and criminal law paradigms.

Suggesting ways to circumvent the danger of judicial overreaching seems particularly difficult. It is clear that judicial intrusions into military policy and action, even if not absolutely barred, ought to be few and far between. The Israeli Court’s intervention was seemingly inevitable as it was prompted by the need to avoid leaving a legal vacuum.[20] Under different circumstances, however, it seems preferable to curtail the scope of judicial balancing either through the administrative process, if the military carry out law and order functions, or through legislation, if civilian authorities do so.

Some of the tasks necessary for purposes of better approximating optimal outcomes, are better left to legislators. Others can be entrusted to judicial balancing as properly circumscribed within the emerging paradigm of the war on terror. This will inevitably involve some experimentation and some discretion to choose among various open paths. We are at the beginning of this process, and it is to be hoped that the development of the new legal paradigm of the war on terror will provide useful tools to handle these novel, constantly changing and always daunting challenges.

Michel Rosenfeld

Justice Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of Law, New York City, USA

[1] The grant and duration of exceptional emergency powers are problematic not in relation to their proper use as means to combat threats to the life of the polity, but in relation to the potential for abuse in the invocation or prolongation of such powers. See Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1040 (2004).

[2] It is important, however, to distinguish the long-term aftermath from the immediate impact and short-term consequences of a terrorist attack. For example, the day of the September 11 attacks which resulted in around 3,000 deaths, and subsequent days in which the American nation had to cope with the shock of the sudden and unexpected attacks and with the prospect of imminent future attacks can be characterized fairly as a time of crisis. The long period of disquiet that followed those first few weeks, however, seems better described as one of stress than of crisis.

[3] A(FC)et al. v. Secretary of State for the Home Department [2004] UKHL56 (House of Lords), at para. 96 (Lord Hoffman, concurring).

[4] See US Const. Amend. V.

[5]Id., Amend. VI.


[7]See, generally, the 1949 Geneva Convention relative to the Treatment of Prisoners of War.

[8]Id., Arts. 13, 17 and 118.

[9] Cf. George Fletcher’s observation that following September 11, 2001, the Bush Administration could not decide whether the attacks in New York and Washington amounted to a “collective crime of al-Qaeda and the Taliban, in which case a war is the proper response, or the individual crime of Osama bin-Laden and others… in which case criminal prosecution is the correct action”. American Prospect, January 1, 2002, at 26.

[10] Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004).

[11]BeitSourikVillage Council v. The Government of Israel, HCJ 2056/04 (2004).

[12] Physicians for Human Rights v. Commander of the IDF Forces in the Gaza Strip, HCJ 4764/04 (2004).

[13] The very purpose of the separation barrier was to contain terrorism by separating the Palestinian population in the midst of which terrorists were easily concealed from the Israeli population which they targeted. See Beit Sourik, supra.

[14]The claims arising directly out of military combat, such those pertaining to evacuation of the wounded in the Physicians For Human Rights cases, at paras. 21-23, do not fit within the police powers paradigm.

[15] In a democracy, police powers are used to foster collective goals that are majoritarian in origin. In an occupation, in contrast, the collective goals involved are not majoritarian, but instead imposed by international law. Nevertheless, in terms of the content of these goals and of their clashes with individual rights, the two situations are largely equivalent and hence the police power legal paradigm can extend to both.

[16] Even schemes involving dirty bombs, poisoning water supplies, biological and chemical warfare and other horrors frequently associated with terrorism would not cause any danger comparable to mutual nuclear annihilation. Yet because of the random, arbitrary and unpredictable quality of terrorism, it is prone to causing greater panic than the constant nuclear threat did during the Cold War.

[17] In the Yom Kippur War fought during seventeen days Israel suffered 2,523 casualties –seePeter Colon, The Yom Kippur War: A Nation Caught by Surprise– compared with the 900 it suffered from terrorism from 2000 to April 2004.

[18] See Chemical, Biological, Radiological and Nuclear (BRN) Terrorism, The Wednesday Report, (stating that ‘popular scenario involving poisoning the water supply of a major metropolitan area does not appear very feasible’ and that use of many chemical or biological agents would depend on a perfect combination of various atmospheric conditions to be successful).

[19]See, eg, Muslims, Arabs Bracing for Discrimination, Religion Link, February 24, 2003.

[20] Indeed, in the absence of intervention by Israeli courts, aggrieved Palestinian civilians would, as a practical matter, have no legal recourse for violations of their humanitarian rights.