Abstract

One of the most visible symbols of the debate over human rights and national security in the context of the U.S. "War on Terrorism" has been the detainment of Taliban and Al Qaeda fighters at the U.S. naval base in Guantanamo Bay, Cuba, following the U.S. war in Afghanistan. The controversy concerning the fate of the nearly 600 prisoners demonstrates the emergence of new modes of democratic deliberation over how to strike the balance between rights and security. These new modes of deliberation involve nongovernmental organizations and individuals who function as norm entrepreneurs, by mobilizing public opinion through transnational networks of opinion-makers and policymakers. Transnational networks of norm entrepreneurs have emerged where traditional avenues for foreign policymaking in the U.S. have failed to create a space for meaningful consideration of human rights in the rights/security balance. These traditional avenues are envisioned in the Constitution, which gives the President authority regarding foreign affairs, bounded by checks provided to Congress and the courts. While the goal of the constitutional process is to bring these institutional players into a dialogue, Congress and the judiciary have failed to engage the President in a conversation regarding the balance between human rights and national security. In the absence of initiatives by the government, nongovernmental actors have used communication structures within transnational networks to promote what this Article calls a dialogic approach to enforcement of human rights law.