Visiting Scholar Jack Landman Goldsmith

A senior government official, discussing the possibility of using targeted killings, combatant detentions and aggressive computer surveillance to fight terrorism, recently said: "The old categories no longer apply. The fight against international terrorism cannot be mastered by the classic methods of the police. . . . We have to clarify whether our constitutional state is sufficient for confronting the new threats."

Bold, controversial stuff--the sort of comments that human rights groups have come to expect from Dick Cheney, the U.S. vice-president, and Alberto Gonzales, attorney-general. Except that the speaker was neither man. He was not even American. He was the German interior minister, Wolfgang Schauble, speaking recently to Der Spiegel.

Mr. Schauble's ideas have a long way to go before being adopted. But the very fact that a European leader can float them is remarkable. For six years, Europeans have criticised America's "military" approach to the detention and trial of terrorists as inconsistent with western rule-of-law traditions and international law, and Americans have derided Europe's stuck-in-the-past "law enforcement" approach as inadequate to thwart Islamist terrorism. Mr. Schauble's comments are one of a growing string of implicit acknowledgments by both sides about the possible virtues in the other's positions.

European governments, for example, have begun to recognise that the traditional criminal process of trial and punishment will not suffice for dealing with Islamist terrorists. Mr. Schauble raised the possibility of treating them "as combatants" and interning them. Last week Gordon Brown's government proposed doubling the time from 28 to 56 days for detaining suspected terrorists without charge, a period that had been doubled from 14 days just last year. Spain and France already permit up to four years of pre-trial detention for terror suspects.

The shift reflects the recognition that terrorist plots take more time to investigate. The evidence is often thin or uncertain, not necessarily because there is no plot, but because the plot must be thwarted early before the evidence fully develops for fear of letting it come too close to fruition. Terror investigations also typically involve evidence trails in other countries that require the co-operation of other governments. Beyond this, sometimes the government simply lacks enough evidence to convict a terrorist even though clear evidence shows that the terrorist is a danger to society. The rationale for detention--prevention of possible future harm to society--is the same as traditional non-criminal detentions for the mentally incompetent and people with infectious diseases.

Detentions are not the only area where Europeans are acknowledging possible merits in U.S. counter-terrorism positions. They also believe more and more that the Geneva conventions system designed for interstate warfare between professional state militaries is inadequate for 21st century warfare against lethal non-state military forces that structure their operations to flout the laws of war. This year the foreign affairs committee of the House of Commons urged the government to recognise that the Geneva conventions "lack clarity and are out of date," and to "update the conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees." The special rapporteur on Guantanamo for the Organisation for Security and Co-operation in Europe made a similar recommendation last year.

The U.S. is moving in the other direction. For a while the Bush administration has acknowledged the inadequacy of its early post-September 11, 2001, position that terrorist detainees had few enforceable legal rights. While the U.S. still maintains the power to detain enemy combatants under a war powers rubric, it has ramped up the procedures for determining who is an enemy combatant and made these determinations subject to judicial review by civilian courts. And there is a growing consensus across party lines for even more elaborate procedures before an alleged terrorist can be detained without trial.

The U.S. has also established a separate process for determining when detainees are no longer dangerous and can thus be let go--a process that has resulted in the release or transfer of hundreds of detainees from Guantanamo. And after the Supreme Court invalidated the Bush administration's initial effort at military commissions, the U.S. Congress created one that provides nearly all traditional civilian court protections, including judicial review in the Supreme Court. These detention and trial institutions provide alleged terrorists with rights far beyond anything contemplated by the Geneva conventions.

These developments reflect a recognition on both sides of the Atlantic that the pre-9/11 trade-off between liberty and security must be adjusted to reflect the novel dangers posed by terrorism. They also reflect the belief that this adjustment must be embedded in durable institutions that uphold western conceptions of justice. How far this convergence goes will depend on many unknowns, including the location and scope of the next terror attack. But it is wrong to think of the gap as unbridgeable. Quietly, almost unnoticed, the blueprint for the bridge is coming into focus. For the sake of transatlantic collective security, our politicians should recognise this fact and succour it. Exaggerating these differences for political reasons will only undermine the joint fight.

Jack Landman Goldsmith is a visiting scholar at AEI.