APPLYING HUMAN RIGHTS LAW AND HUMANITARIAN LAW IN THE EXTRATERRITORIAL WAR AGAINST TERRORISM: TOO LITTLE, TOO MUCH, OR JUST RIGHT?: FILLING THE VOID: PROVIDING A FRAMEWORK FOR THE LEGAL REGULATION OF THE MILITARY COMPONENT OF THE WAR ON TERROR THROUGH APPLICATION OF BASIC PRINCIPLES OF THE LAW OF ARMED CONFLICT

In 1961, the Supreme Court of the United States held in Mapp v. Ohion1 that the Fourteenth Amendment to the United States Constitution required imposition of the exclusionary rule for evidence improperly seized by State officials. In that case, the Court emphasized the significance of compliance with basic principles of legality when it noted "[N]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."n2 Although this case had nothing to do with the legal regulation of military operations, the concept expressed by the Court is, in the opinion of this author, at the core of the issues addressed by the Panel on which I participated at the recent International Law Weekend. This Panel was called upon to address the sufficiency of international humanitarian law to deal with the treatment of individuals detained during the War on terror, and whether the application of international human rights norms was essential to regulate such activities. Like the issue confronted by the Supreme Court in Mapp, the legal regulation of military operations related to the War on terror provides a profound example of the corrosive effect of adopting of policies that are inconsistent with the fundamental charter of an organization-in this case the armed forces. Unlike the domestic realm, this charter does not take the form of a constitution. Nor, in the opinion of this author, does it take the exclusive form the ...