The invocation of the Bible, the themes of evil, good, and freedom would constitute the underlying rhetoric during the period when the international community was taking the most significant decisions. The implicit attack on Christendom became explicit as religion came out of the closet with proclamations that the war is not only against the terrorists but against all those who are “not with the war against terrorism.” It was also a moment, however, when the temperate language of law was insufficient to capture the “diabolical” image conjured up by the rhetoric on terrorism. Within 10 days of the attacks, Bush delivered an ultimatum to the world: “Every nation in every region now has a decision to make. Either you are with us or you are with the terrorists.”

The rhetoric has served to bring even states such as Pakistan to side with the United States, discourage dissent, and justify extraordinary legal measures in the domestic arena that bypass international legal institutions and ignore both human rights and due process. The most controversial example of this is found in the executive order of November 13, 2001, that authorizes Bush to set up military tribunals to try the “foreign terrorist.”

What has been described as a power grab by the Bush administration is being unmasked at both the international and the domestic levels. Many authors have cautioned against a mood that favored a military operation to extract the “cancer” of terrorism. Instead, a slower, deliberate, and more thoughtful “diagnosis and cure” approach that remained within the bounds of just legal restraints was appropriate. The course actually adopted led to civilian casualties on a grand scale. The cost to international law’s legitimacy, however, goes beyond this single violation. As Richard Falk has argued, resorting to “cruel high-tech military tactics while shielding one’s own forces from serious risk of casualty confirms the worst images of the United States’ role in the world, especially in the Islamic portions of the Third World.”

The most explicit discussion about the international and domestic power grab was set out in the New York Times, which accused the Bush administration of building a parallel criminal justice system overnight. Its critique was directed partly at the power grab in the international arena that evades the institutional legal mechanisms and precedents that are available to try such cases. The proposal is distinct from previous military tribunals, such as the Nuremberg tribunals, which were public, gave defendants the right to review all the evidence presented against them, and withheld the death penalty barring a unanimous decision by the judges. Previous military tribunals also recognized a right to appeal.

In striking contrast, the executive order authorizes the United States to conduct trials in secret at an undisclosed destination, withhold evidence from the defendants, and order executions with the support of two-thirds of the judges. Non-citizens present in the United States are subject to the jurisdiction of these tribunals, and the power to determine who is a terrorist rests with the president.

This unilateral act has raised doubts and suspicions elsewhere, with Spain among the first countries to refuse to hand over suspected terrorists. Spain fears the breadth and scope of the power vested in the US president and in the US application of proceedings that have bypassed the US Congress as well as consultation with the international legal community. The fact that this and other initiatives are based on the distinction between the insider and the outsider is cause for concern in a country with almost 20 million non-citizens. It is a line drawn precisely according to the rhetoric that Bush declared at the outset of the war against terrorism—a line between “us” and “them,” between the civilized, who are entitled to liberty, and the uncivilized, who are not.

Some of the most important doctrines and principles of international law have been born in moments of crisis. The modernist narrative of international law as a liberating tool, one that has emancipated backward cultures and societies, has been challenged by post-colonial scholars and those who have been on the receiving end of international legal doctrine. At the same time, despite the continuous tensions and ruptures that give birth to international law and doctrine, there is an unrelenting assumption that the resort to some notion of the rule of law is essential to prevent the world from slipping into carnage and the rule of violence. It is a simple argument at one level that may not be obvious to those who take for granted rights and liberties without questioning how they are protected, sustained, and promoted. But for those who have been excluded from the regime of rights and humanity, it is indeed a radical proposition. To compromise on this principle, or to use it for what is gradually being unmasked as an imperial and domestic power grab, is to undermine the potential for the effective deployment of legal principles and institutions that are the minimum ingredients for countering the rule of terror. Historically, international law has displayed a vulnerability to institutional capture and has been used as the anvil on which to fashion tools of prejudice and intolerance. Let us not allow these tools to become weapons that threaten to topple the rule of law and replace it with a rule of terror.