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2 Notre Dame J. Int'l & Comp. L. 289 (2012)


The thesis of this article was inspired by the remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, at Harvard Law School on September 16, 2011. Brennan said: “I've developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It's an appreciation, of course, understood by President Obama.... That is what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.”

Brennan's position is backed up by considerable data and analysis from counter-terrorism experts. If the United States adheres to its values and the rule of law, security can be enhanced. He went on in the remainder of his talk to attempt to defend the U.S. record of compliance with American values and the rule of law. That record is poor; however, with respect to a number of fundamental principles U.S. officials claim to be in compliance with the law are too often referring to compliance with a mistaken, false, or distorted version of the relevant rules.

The remainder of this article aims at demonstrating the claim of poor U.S. compliance with the rule of law and the fundamental values the law seeks to implement in the counterterrorism context. The first evidence of poor compliance to be offered consists of a set of recommendations made to the Obama transition team in 2008. The recommendations were a set of priorities to get the United States into compliance with important international law obligations. To date, only one of the eight has been fully implemented-the principle aimed at ending the use of torture. The arguably more important recommendation, to end the so-called "global war on terrorism" has not been implemented. After reviewing what should have been done by the Obama administration, the article will move on to indicate what has been done, focusing on the use of the "global war" assertion to justify the targeted killing of persons outside armed conflict zones. The final part of the article will consider in some detail why the claim Brennan made at Harvard that the administration is complying with the rule of law in its counter-terrorism policy is inaccurate.



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