By Aniceto Masferrer and Clive Walker

Terrorist attacks in the last decade have profoundly altered and reshaped the priorities of many legal systems. Below, Aniceto Masferrer and Clive Walker suggest the important theme of crossing legal categories represents a recurrent issue which underlies counter-terrorism laws, and argue that boundary-crossing must be considered carefully, without any expectation that it will deliver greater security.

The decade’s worth of counter-terrorism legal responses since 9/11 provides a suitable waypoint at which to take stock. Those terrorist attacks in the United States, followed by atrocities such as the Madrid train bombings of March 2004, and the July 2005 killings in the London transport system have profoundly altered and reshaped the priorities of many legal systems. The ‘new’ terrorism has even been perceived at times as threatening the lives of democratic nations, resulting in a declaration of ‘the war on terror’ by US President George W Bush.  The depth of the crisis is revealed by the fact that the US ‘war on terror’ persists today in law and action, even under the rhetorically less bellicose Obama administration. Under that regime, the ‘war’ label has fallen somewhat from favour and has narrowed in focus, with the prospective withdrawal from Afghanistan in 2014 marking a significant drawdown of resources devoted to the campaign. Yet, even that signal event may not be a decisive turning point which marks the end of the ‘war on terror’, leaving aside whether any US President would be brave enough to declare a victory. In this way, military action beyond the bounds of pre-existing laws of war is set to remain palpable in the guise of military detention and trials at Guantánamo Bay and an increasing reliance on lethal force against the enemies of the state as delivered from unmanned aerial vehicles (drones).

Though the United States is an outlier amongst Western states because of the dominance of its military response, almost all other jurisdictions have taken heed of the United Nations calls for action against terrorism by strengthening domestic counter-terrorism laws. The trend first came through the promulgation of UN Security Council Resolution 1368 on 12 September 2001, which ‘Calls … on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions…’. The follow-up involved the establishment of the UN Counter-Terrorism Committee by Security Council Resolution 1373 on 28 September 2001 in order to conduct periodic reviews of the activities of every country. As a result, no country can now view itself as immune from the threat of terrorism or from the international law duty to combat terrorism by law.

There are many ways of analysing the multitude of national legal responses to terrorism which have emerged since September 2001. Approaches adopted include national and comparative detailed and thematic analysis and critique, philosophical, political and historical groundings, and the application of qualitative and quantitative methodologies in order to assess impacts. Unfortunately, much of the legal academic discourse in the past decade has been produced by authors who have lacked the appreciation that all these different perspectives are necessary for a sound appreciation of terrorism and counter-terrorism. As a result, they regularly fail to understand that counter-terrorism did not commence for many jurisdictions on 9/11 or that most terrorism activity remains grounded in ethnic or nationalistic causes rather than jihadi doctrines associated with al-Qa’ida.

Military action beyond the bounds of pre-existing laws of war is set to remain palpable in the guise of military detention and an increasing reliance on lethal force against the enemies of the state as delivered from unmanned aerial vehicles (drones).
Adding something original to the voluminous academic and political discourse on terrorism and the law is not easy. Many analyses have been constructed around notions of ‘balance’ between security and liberty, with the crude thesis being that liberty is inevitably sacrificed as a luxury for the sake of greater security against terrorism. Questions then arise in terms of which liberties are to be sacrificed, in what ways, and by how much? Many examples can be given along these lines. Individual privacy rights may be infringed by laws which allow body scanners to operate at airports or by mass surveillance of communications or financial transactions. Such laws have been in place for some years in the UK, US, and the European Union. Our leaders were seemingly happy to trade their citizens’ liberties in this way until, recently, Angela Merkel realised that her mobile phone was also included in the deal. As well as privacy trade-offs, liberty is restricted when some suspects are subject to curfews, relocation or even detention without trial, all without any proof of criminal wrongdoing. Freedom of expression is also curtailed; any hint of the indirect encouragement of terrorism or any reproduction or collection of terrorist-related materials becomes liable to prosecution.

Despite the prevalence of the discourse of ‘balance’, the arguments are often confused and misleading. The underlying assumption that security and liberty can be ‘balanced’ in a causal relationship – less of one automatically means more of the other – is not factually correct, especially as security is a value for liberty, and liberty is a value for security. Both are important to our lives and have been described metaphorically as core ingredients in the recipe for life or as strands which strengthen a cord; changing any ingredient or weakening one strand does not help to attain the desired outcome. The balancing process also incurs profound difficulties in terms of measurement – what is the scale to be imposed, is it common to both security and liberty, and can we trust ourselves when in a state of terror in the short-term to measure accurately for the long-term? Furthermore, consequentialist arguments are of dubious validity when weighing deontic values which cut across both liberty and security. In short, it is better to eschew any simplistic balance between security and rights and to develop more intellectually rational, structured, and finely attuned mechanisms for choice even if there remains ultimately a ‘tragic choice’ between values.

Instead of the ‘balance’ motif, our prism for understanding is that the recent codes of counter-terrorism laws have constantly and acutely challenged traditional legal concepts. The emergent counter-terrorism legal catalogue thereby transcends traditional ethical, legal and organisational boundaries of legal categorisation and poses fundamental questions about the values at the heart of each affected legal system, both in domestic and international law. In a recent book, we seek to identify and explore the new tensions and analyses and to criticise the often unwanted outcomes within common law, civil law and international legal systems.

These challenges of crossing boundaries can be seen at every turn and at every time. The initial responses to the 9/11 attacks involved fundamental questions about whether the appropriate overall juristic categorisation should be ‘war’ or ‘crime’, a controversy which should have entailed deep reflection upon the very concept of ‘terrorism’ and the goals behind its ascription. The implementation of counter-terrorism law has further been infused with discourse about the boundaries between conflicting political and social values. This discourse is usually depicted as a struggle between state security and the liberties and freedoms of the individual citizens of the state. It leads to the advocacy of the prioritisation of one value over the other (usually of security over rights) or of the reconciliation of security within the paradigm of human rights (by way of claims to security from external threats and the maintenance of civil peace and the sanctity of life) or even an ultimate synthesis within the promotion of what was once radically called the ‘commonwealth’ and now more often takes the indistinct yet Promethean guise of ‘human security’.

Security is a value for liberty, and liberty is a value for security. Both are important to our lives.
These dichotomies in turn generate deep-seated debates within individual legal systems. They include the proper roles of lawyers and courts and how they can be effective in circumstances of secrecy, subterfuge and emotion. They include the legitimate boundaries of crimes, challenged by the enactment of a far-reaching set of counter-terrorism laws which have brought into existence a range of ‘terrorism offences’ by which a conviction can be sustained even in the absence of violent action or intent. A related issue is the extent to which counter-terrorism should infiltrate (some might say infect) regular criminal processes in order to modify its transaction in order to deliver the ‘right’ result. Thus, the state claims the right to close off areas of legal litigation by means of public interest immunity or to subject them to special secret processes involving the presence of ‘special advocates’ appointed by the state rather than the defendant and the defendant’s legal team.

Next, there is the boundary between international law and national enforcement. Even without distinct international normative standard-setting around the concept of terrorism, the attacks of 9/11 propelled the UN Security Council to signal significant international demands in terms of legal compliance, though, at the same time, that compliance encouraged rather than replaced the exercise of national security sovereignty.

Instead of the ‘balance’ motif, our prism for understanding is that the recent codes of counter-terrorism laws have acutely challenged traditional legal concepts.
There are also important changes to institutional boundaries. ‘National security’ was often used prior to 9/11 as an incantation to place off limits any forms of transparency or accountability, whether legal or political. When each State’s secret agents were chasing each other, perhaps the lack of public accountability was just about tolerable. Whilst hugely entertaining, the actions of James Bond against the KGB (or vice versa) hardly impacted on everyday life. However, the expanding boundaries of the national security agenda into everyday life, as well as the functional and institutional melding between policing and spying, have rightly encouraged a reaction on the part of judges to judicialise counter-terrorism and on the part of politicians to politicise counter-terrorism. The current era thus stands in contrast to previous eras when non-justiciability and political party consensus ruled the treatment of terrorism issues. For all these reasons, institutional boundaries have been redrawn – not just between police and security agencies but also between the executive, legislature and judiciary.

In summary, this important theme of crossing legal categories represents a recurrent issue which underlies, pervades and bedevils counter-terrorism laws. As a result, this commonly patterned impact of counter-terrorism since 9/11 should be viewed as a fundamental paradigm for the future analysis of counter-terrorism laws. Each layer of boundary-crossing must be considered carefully, without any expectation that boundary-crossing is desirable or will deliver greater security.

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About the Authors

Aniceto Masferrer is Professor of Legal History and teaches legal history and comparative law at the Faculty of Law, University of Valencia. He has published extensively on criminal law from a historical and comparative perspective, as well as on the codification movement and fundamental rights in the Western legal tradition. He has been fellow researcher at the Institute Max-Planck for European Legal History (2000–2003), Visiting Professor at the University of Cambridge (2005), Visiting Scholar at Harvard Law School (2006–2007) and at Melbourne Law School (2008), Visiting Professor at the University of Tasmania (2010) and Visiting Scholar at Louisiana State University (2013).

Clive Walker is Professor of Criminal Justice Studies at the School of Law, University of Leeds, where he has served as the Director of the Centre for Criminal Justice Studies (1987–2000) and as Head of School (2000–2005, 2010). He has written extensively on terrorism issues. His recent publications include: Terrorism and the Law (Oxford University Press, Oxford, 2011) and Free Speech in an Internet Era (Carolina Academic Press, Durham, NC, 2013). He is currently the special adviser to the Home Office’s Independent Reviewer of Terrorism Legislation and has served as a special adviser to the UK Parliamentary select committee which scrutinised what became the Civil Contingencies Act 2004. A book commentating upon that Act, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006. He has also been a witness before various inquiries on terrorism in Australia, Canada, and the US.

Their co-edited book, Counter-Terrorism, Human Rights and the Rule of Law, has just been published by Edward Elgar.

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