The mounting threat of terrorism poses a special challenge to democratic societies, which are torn between the need to defeat the terrorists at all costs and the desire to uphold democratic values and protect human rights. If pursued wholly outside the rule of law, the war on terrorism could end up not only tarnishing the image of the world's democracies but undermining the democratic system of government. Yet neither international law as currently constituted nor the domestic law of most democracies provides an adequate legal framework for contending with the new threat posed by international terrorism in the 21st century. For this reason, the Israel Democracy Institute (IDI), the Woodrow Wilson Center (WWC), and the Max Planck Institute for Foreign and International Criminal Law (MPICC) have decided to form an international group of leading experts to study the problem in a comparative fashion and come up with innovative proposals for a legal framework that will enable democracies to wage effective counterterrorism.
In the first phase of work, scheduled for 2009-2010, the group will focus on four key issues:
- Detention – examining, in particular, when resorting to preventive detention may be necessary and what institutional safeguards are required
- Interrogation – exploring the range of permissible preventive interrogation techniques, including the "ticking bomb" scenario, and the availability of legal defenses for practitioners of coercive interrogation
- Privacy – reviewing the lawfulness and propriety of a range of measures that compromise privacy, such as surveillance, body searches, profiling, disclosure obligations, etc.
- The Legal Framework Governing Counterterrorism – investigating the relevant interplay between national and international law and between different branches of each in order to clarify the appropriate legal contexts for prosecution of the war on terror. In particular, the group will investigate whether there is a need to adapt the laws of war so as to address the unique challenges posed by armed conflicts involving terror groups and map the conceptual problems such an adaptation would entail.
These efforts will result in an edited volume of papers to be published by the Woodrow Wilson Center.
The inaugural meeting of this group of world experts took place in Freiburg, Germany on 7 December, 2009. On November 12, 2010, the task force convened at the Woodrow Wilson International Center in Washington, DC,for two days of deliberation on detention of terrorist suspects and the use of classified Intelligence in legal proceedings. In December 2011, the group donvened for three days of closed-door meetings at IDI in Jerusalem.