The University of New Hampshire Law Review
Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy
[Excerpt] “The Global War on Terror has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other. Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America’s image both at home and abroad. Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader.” The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional threat that can surrender or can be defeated in the traditional sense. Instead, this battle can only be won through legitimizing the rule of law and undermining the use of terror as a means of political influence.
Although a variety of political, economic, and security policies have negatively impacted the perceived legitimacy of the United States, one of the most damaging has been the detention, treatment, and trial (or in many cases the lack thereof) of suspected terrorists. While many scholars have raised constitutional questions about the legality of U.S. detention procedures, this article offers a psychological perspective of legitimacy in the context of detention.
I begin with a discussion of the psychology of terrorism. Next, I argue that the U.S. response to terrorism has been largely perceived as excessive, which has undermined global perceptions of U.S. legitimacy. I address this issue by drawing on a well-established body of social psychology research that proposes “a causal chain in which procedural fairness leads to perceived legitimacy, which leads to the acceptance of policies.” In other words, the fairness of the procedures through which individuals are detained and tried will significantly affect the perceived legitimacy of U.S. conduct in the War on Terror. In contrast to current detention policies, which have largely been implemented in an ad hoc manner, I suggest that procedural fairness can be increased through the establishment of a domestic terror court specifically designed to try detainees. Finally, I balance fairness with the competing values of effectiveness and efficiency to provide a framework through which U.S. legitimacy in the War on Terror can be enhanced.”
David Welsh, Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy, 9 U.N.H. L. REV. 261 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss2/8
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