Part I addressed the ECHR ruling in the case of Khaled el-Masri, why the case is a milestone in applying the rule of law and protecting human rights in response to abuses in the so-called war on terror, and how the European Court’s judgment sets it apart from the US Supreme Court and places Europe at the forefront of protecting human rights today. The ruling was a blow to the impunity which had been afforded state actors who broke the law in the name of combatting terror. Impunity is antithetical to justice.

Rule of Law (RoL) principles provide the basis for western democratic governance. RoL in essence means that no one is above the law. The Roman-German and Anglo-American legal traditions are the root of Western jurisprudence. Historically, the Roman-German system handles rights and duties between people, while the Anglo-American system emphasizes rights and duties between people and the state.

Both the US Bill of Rights and the European Convention on Human Rights are aimed at protecting individual liberty from being violated by the state, but there are noteworthy differences. Whereas the Bill of Rights prohibits state action which violates individual liberty, the European Convention on Human Rights is more affirmative – guaranteeing every individual the right to life, liberty and security. And, unlike the US Constitution, European law prohibits torture, slavery, forced labour and capital punishment.

The origins of the rule of law can be found in Greek philosophy and the development of Roman law, primarily the teachings of Plato, Aristotle and Cicero. Aristotle developed the concept of natural law rooted in universal morality. Cicero saw natural law as the necessary foundation for all valid law. John Locke highlighted natural law in his 17th century political philosophy, whereby the legitimacy of government was derived from the consent of citizens. RoL aims to align law with ethics.

England’s 1215 Magna Carta (Great Charter) established rights of citizens, including habeas corpus, and constraints on monarchy. All are bound by law, even the King. Barons, angry at abuses of power by King John, demanded MC. Magna Carta (MC) was vital to the historical process of developing the rule of constitutional law. MC has greatly influenced national constitutions all over the world, e.g., Canada, Britain, France, Czech, South Africa, Chile, India, and the US (such as the 5th and 14th Amendment prohibition of depriving a person of life liberty or property without due process of law).

MC has also influenced international law. When the Universal Declaration of Human Rights was signed Eleanor Roosevelt called it “a magna carta for all mankind.” The Nuremberg trials of Nazi war crimes further developed universal standards of accountability for lawless conduct, and the creation of the International Criminal Court in 2002 marked further progress toward a world committed to equal justice under the law for all.

Basic Rule of Law (RoL) principles include:

 supremacy of law – all persons are subject to law; no one is above or below it
limited government power; individual liberties
due process (writ of habeas corpus; right to a fair public trial without undue delay; basic fairness in legal proceedings; presumption of innocence of the accused; no coerced confessions)
separation of powers; checks and balances  oversight
an independent judiciary and legal profession are vital
protection of minority rights against ‘tyranny of the majority’/mob rule
access to information  transparency
blind justice  accountability
concept of justice; there is an underlying moral basis for all law
doctrine of judicial precedent; common law methodology
restrictions on the exercise of discretionary power
legislation is prospective, not retrospective
a rational and proportionate approach to punishment

The reader examining the above checklist can readily note the discrepancy between these principles and the practices of Western governments acting in the name of combating terrorism. Are predator drone strikes proportional? Guantanamo Bay, secret prisons, kidnapping, and torture clearly violate RoL principles. The same is true of the entire saga of Khaled el-Masri until the ECHR judgment of Dec. 13.

In his inaugural address on Jan. 20, 2009, President Obama declared: “As for our common defense, we reject as false the choice between our safety and our ideals.” Yet the following year he decided against investigating CIA abuse allegations, saying “We must look forward, not backward.” Despite his lofty prose about liberty, President Obama has largely adopted the Bush 43 war on terror framework. In fact, he has been much tougher on leakers/whistleblowers than on torturers, having even brought criminal charges yielding a 30-month sentence against a CIA leaker who “was the first C.I.A. officer to speak about the procedure [waterboarding], considered a notorious torture method since the Inquisition but declared legal by the Justice Department in secret opinions that were later withdrawn.” “Ex-Officer is First from CIA to face Prison for a Leak,” The New York Times, Jan. 5, 2013. This was the first ever prosecution of a CIA agent for leaking information to the news media, by the same Obama Justice Dept. which quashed criminal investigations of those CIA agents implicated in torture. (See, e.g., Attorney Glenn Greenwald’s reporting, such as at here). “To me, the irony of this whole thing is, very simply, that he [John Kiriakou] is going to be the only CIA officer to go to jail over torture,” even though he publicly denounced torture, former CIA agent Bruce Riedel said. “It’s deeply ironic under the Democratic president who ended torture.”

Obama has brought an unprecedented six criminal prosecutions for leaking information to the news media. Transparency and accountability are core RoL values on which Obama’s Justice Dept. has come down on the wrong side in its handling of CIA conduct. Critics assert that the Obama administration has pursued a policy of excessive secrecy which has hurt the legitimacy of its counterterrorism efforts as well as the rights of individuals.

Relevant to the Masri case, Obama has not formally repudiated extrajudicial rendition of suspects. The Center for Constitutional Rights conducted a 2010 assessment of Obama’s record on war on terror issues taking issue with ongoing: abuse of executive authority; ghost detentions; material support convictions; indefinite detention of suspects at Guantanamo and elsewhere; habeas corpus denial; renditions; violation of individual civil liberties; lack of accountability for past crimes; abuse of the state secrets privilege; and human rights abuse by military contractors.

Regarding the war on terror, besides the ECHR Masri ruling, Europe has also done a far better job than in America in investigating abuses, acknowledging wrongdoing and acting to right wrongs. The Council of Europe and national governments have investigated and issued reports condemning many abusive war on terror tactics including secret prisons, torture, unlawful renditions/abductions, and indefinite and incommunicado detention in violation of the Geneva Conventions and other applicable law. Italian prosecutors brought criminal charges against those responsible for the kidnapping and abuse of an Egyptian cleric in Milan and obtained convictions of its own police and, in absentia, CIA agents. Germany issued arrest warrants in connection with the Masri case, but succumbing to political pressure by the Bush administration did not serve the warrants. In Part III of this series we will see that Europe leading on human rights is unsurprising when we look at trends over the past decades.

The Masri case resonates because of its universality and the horror his Kafkaesque plight stirs in people everywhere. It shocks the conscience that this really happened today, not under Stalin. This was a case of mistaken identity, which could happen to any of us. Masri was held because his name resembled that of an al-Qaeda suspect. Alarmingly, the authorities knew that had the wrong guy early on, but did not act to free him. The national security people did not care enough about the abuse of an innocent man to arrange for his release. Our democratic safeguards failed us.

We all have a stake in Mr. Masri’s struggle for justice. If we do not want to live in fear of a knock on the door in the middle of the night, we must speak out. Part III will look at the way in which the respective histories of the US and Europe inform their divergent political culture and philosophy, looming federalism and other constitutional challenges, their divergent judicial responses to torture and other post-9/11 abuse, the critique of ‘American exceptionalism’, why Americans hold so firmly to that ideological holy grail, and how it impedes global progress.

About the author:

The author, an attorney and constitutional law scholar, has written for TNP since 2006. He currently lectures at University of New York in Prague on law, ethics and critical thinking. His “Degradation of the rule of law in response to terrorism: a failed approach,” was published by Palgrave-Macmillan in 2011.