Academic

McGuinness on Counterterrorism, Presidential Power, and Internationalism

By Lawrence Solum

Margaret E. McGuinness (University of Missouri School of Law) has posted The President, Congress and the Security Council: Counterterrorism and the Use of Force Through the Internationalist Lens (Willamette Law Review, Vol. 45, p. 417, 2009) on SSRN. Here is the abstract:

This contribution to the 2008 Willamette Law School symposium, ?Presidential Power in the 21st Century,? addresses the question of presidential powers to carry counterterrorism policies - in particular the use of force against terrorist groups - through an internationalist lens. Viewed through that lens, domestic constitutional understandings of appropriate democratic constraints on presidential counterterrorism powers can be seen as interacting with international institutional understandings of democratic accountability for the use of force. This intersystemic process can be engaged to address ?democracy deficits? at both the international and domestic level and to promote reform at international organizations.

Part I of the article explains that U.S. counterterrorism policy post-September 11, 2001 has been more multilateral in its orientation than is generally assumed, and that counterterrorism policy going forward is likely to rely more, rather than less, on multilateral institutions. Part II examines the question of U.S. constitutional practice where the war powers have been exercised through international institutions. Part III argues that international institutional legitimacy should be more explicitly invoked as a rationale for closer consultation with and participation by Congress in counterterrorism use of force decisions. A more explicit acknowledgment of the dynamic, dialectical interaction between domestic democratic accountability for a state?s participation in U.N. counterterrorism programs and the international and domestic accountability for the action taken by the U.N. offers several advantages. Open embrace of more robust congressional participation in U.S./U.N. counterterrorism practice can contribute to overcoming the democracy gaps at home and within the U.N. by: (1) strengthening democratic accountability domestically; (2) modeling ?best practices? for nascent democracies and regimes in transition; (3) promoting procedural legitimacy within the Council; (4) promoting legitimacy of emerging international legal norms concerning the use of force against terrorists and terrorist groups; (5) harmonizing U.N. counterterrorism programs with international human rights protections; and (6) clarifying the role of judicial review (at the domestic and international level) of Security Council actions.

Full post as published by Legal Theory Blog on June 24, 2009 (boomark / email).