CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, July 27, 2020

McCall-Smith on Fundamental Rights and US Counterterrorism

Kasey L. McCall-Smith (University of Edinburgh School of Law) has posted Us Counterterrorism and the Denial of Fundamental Rights from Torture to Fair Trial (K McCall-Smith, A Birdsall and E Casanas Adam (eds), Human Rights in Times of Transition: Liberal Democracies and the Challenges of National Security (Edward Elgar), Forthcoming) on SSRN. Here is the abstract:
Despite the Universal Declaration of Human Rights (UDHR) exhortation that ‘all human beings are born free and equal in dignity and rights,’ the post-9/11 assault on fundamental human rights has proved that this cosmopolitan ideal is under threat. Of the wide-ranging human rights that have been degraded in the name of protecting civilians in the so-called ‘war on terror’, the right to a fair trial is among the most crucial. However, the precursor to its demise was the ejection of the absolute prohibition against torture in the name of protecting the human rights to liberty and freedom, often described as the right to national security. This chapter explores how the US’s co-option of human rights language as a rhetorical tool to eject certain human rights in relation to specific individuals or groups of individuals underpins the growing challenges presented by national security discourse in liberal democracies. In particular it examines the way in which the US response to 9/11, both in the immediate aftermath and almost two decades on, must be addressed and the relationship between individual liberty and national security reconciled if we are to progress toward a more equal, rather than divided, world. The analysis focuses on the current military commissions taking place in Guantánamo where five men are on trial for terrorism and war crimes in relation to the planning and execution of the 9/11 attacks on the US in US v Khaled Sheikh Mohammad et al. The chapter specifically considers the right to trial without undue delay, the right to a public trial and the right to effective remedy for human rights breaches. Finally, the chapter concludes with some observations about how to address the ejection and co-option of human rights in counter-terrorism efforts.

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