Law, Liberty, and the Pursuit of Terrorism
Law, Liberty, and the Pursuit of Terrorism

Law, Liberty, and the Pursuit of Terrorism

by Roger Douglas

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Roger Douglas compares responses to terrorism by five liberal democracies—the United States, the United Kingdom, Canada, Australia, and New Zealand—over the past 15 years. He examines each nation’s development and implementation of counterterrorism law, specifically in the areas of information-gathering, the definition of terrorist offenses, due process for the accused, detention, and torture and other forms of coercive questioning.

Douglas finds that terrorist attacks elicit pressures for quick responses, often allowing national governments to accrue additional powers. But emergencies are neither a necessary nor a sufficient condition for such laws, which may persist even after fears have eased. He argues that responses are influenced by both institutional interests and prior beliefs, and complicated when the exigencies of office and beliefs point in different directions. He also argues that citizens are wary of government’s impingement on civil liberties and that courts exercise their capacity to restrain the legislative and executive branches. Douglas concludes that the worst antiterror excesses have taken place outside of the law rather than within, and that the legacy of 9/11 includes both laws that expand government powers and judicial decisions that limit those very powers.

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Product Details

ISBN-13: 9780472900022
Publisher: University of Michigan Press
Publication date: 09/15/2014
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 334
File size: 1 MB

About the Author

Roger Douglas is Professor of Law at La Trobe University.

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Law, Liberty, and the Pursuit of Terrorism

By Roger Douglas

The University of Michigan Press

Copyright © 2014 University of Michigan
All rights reserved.
ISBN: 978-0-472-11909-7


The Specter of Terrorism

Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. But there are also unknown unknowns — the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult ones.

Donald H. Rumsfeld

Many of you may have seen recent press reporting about a ... survey that found people are now much less concerned about terrorism than they were after the London bombings. The decrease in public concern about terrorism, at one level, is not surprising. Public attention spans are often short and Australians tend to have an optimistic perception of the security environment. Over the last five years, the issue of terrorism has rarely been far from centre-stage in the media, but Australia has not experienced a recent attack on its soil. So it is almost inevitable that a type of "terrorism fatigue," if you will, would set in. Unfortunately, such complacency ... makes us vulnerable.

Paul O'Sullivan, director-general of the Australian Security Intelligence Organization, 2006

Civil libertarian critiques of responses to terrorism frequently assume that counterterror polices are distorted by exaggerated assessments of the seriousness of the terrorist threat, especially in the aftermath of spectacular terrorist attacks. This conclusion is defended partly on the basis of theory and partly on the basis of evidence suggesting that estimates of the threat are unwarranted by what is known about its "true" magnitude and that this is particularly likely immediately following terrorist attacks. This chapter develops and examines these arguments. It concludes that they are cogent but not conclusive. They depend on the optimistic assumption that the objective terrorist threat will continue to be slight, and while that assumption may be warranted, one cannot be certain of it. While poll data yields evidence of cognitive error, it also yields evidence to suggest that the political salience of the threat is small, notwithstanding that the perceived risk remains high.

Sources of Misperception

When people form opinions about the risk of terrorist attacks, they necessarily do so in a state of considerable ignorance as to terrorists' intentions. They are thrown back on a variety of cognitive shortcuts. One is known as "availability" ("the ease with which instances or associations can be brought to mind"). Typically, frequent events are more available than infrequent ones, but what terrorism lacks in frequency is made up by its visibility, reinforced by television footage of the aftermath of terrorist attacks in foreign countries and by periodical replays of the collapsing towers in New York, the red London bus with its top sheared off, or the smoke billowing from the Taj Mahal hotel in Mumbai. Given the generally accepted trope that terrorists aim for drama, their success will be reflected in an overassessment of the risk they pose. Availability will be highest immediately following terrorist attacks on symbols with which one can identify, but memories are likely to persist long after the attack.

Perception of low-risk high-intensity threats is also likely to be distorted by worst-case fears (which become serious when compounded with failure to discount for improbability). Worst-case reasoning shares something in common with availability. Actual "very bad" cases stand out more than not-so-bad ones, and warnings of "worst cases" are likely to receive more publicity than warnings of minor attacks. Worst-case reasoning is aggravated by the difficulties most people have with probabilities. As probabilities decrease, people find it increasingly difficult to distinguish between the implications of small and very small probabilities, and they make their assessment of the danger on the basis of the nature of the threatened outcome rather than on its likelihood. Sunstein reports studies finding that perceptions of riskiness do not vary when the risk is 1/100,000 rather than 1/1,000,000 and that perceptions even vary little between risks of 1/650, 1/6,300, and 1/68,000. Assume that an honest and infallible oracle has helpfully provided the information that within a given country and a given period, there is a 1/1,000,000 chance of a terrorist attack, which, if it takes place, will kill 100,000 people and cost $500 billion in property damage. A coldhearted insurer would require a premium based on the value of a tenth of a life and aggregate premiums of a little more than $500,000 to insure against the risk. But the risk assessor in the street would assess the risk at a considerably higher level. This suggests that perceptions of the threat of terrorism may be heavily influenced by remote possibilities of really serious attacks.

Moreover, even after controlling for the "objective" seriousness of the threat, people appear to be willing to pay far more to reduce the likelihood of a threat from 1 percent to zero than they are to reduce it from 2 to 1 percent. Where the threat also arouses a high level of emotion, the price people are willing to pay for its elimination is even higher, and it is also even less dependent on perceived probabilities. Given that terrorism involves low probabilities and that the threat is likely to arouse strong emotions, one would expect that even small threats would be accompanied by willingness to make considerable sacrifices in order to minimise or eliminate the likelihood of their eventuating.

One interpretation of these findings is that they indicate that people are likely to overreact to low-probability high-cost threats. However, there are several problems with this analysis. First, the existence of overreaction is ultimately dependent on what the objective threat actually is. Availability considerations may affect the likelihood of a threat being overestimated rather than underestimated, but the extent to which it does so is ultimately dependent on whether the threat actually is large or small. To state the obvious, if someone who saw the first of the 9/11 attacks had fallen victim to availability reasoning and concluded that the risk of further attacks was much higher than they had previously thought, they would, in fact, have been correct, at least in relation to the next few hours. Second, the analysis assumes that if we know the likelihood of an event and its effects (measured in dollars and lives), we can determine its "expected value." While we might have a good start at making such determinations, the analysis makes some arbitrary assumptions. It discounts emotions and their implications, a particularly egregious omission in an age where keeping a stiff upper lip is no longer de rigueur. That people are willing to pay a certain amount to halve a risk and three times that amount to eliminate it might seem irrational, but it might simply reflect awareness that the cost of halving a risk can be far more than double the cost of eliminating the risk altogether, coupled with a subjective preference for certainty.

There is no reason to assume that civil libertarians are immune to such biases. While infringements of civil liberties are often relatively invisible, availability and worst-case reasoning can be mobilised to support civil libertarian as well as authoritarian arguments. The left's success in conflating anticommunism with McCarthyism highlights the use that can be made of highly visible threats to liberty (availability). Roach and Trotter have argued, "Claims of wrongful conviction are a potent political force; miscarriages of justice are public problems that can go to the top of the political agenda and command attention across the political spectrum." Civil libertarian responses to repressive measures typically include what generally turn out to be exaggerated claims for what governments might do with added powers (worst-case reasoning). In short, we have some evidence of what Vermeule calls "libertarian panics." However, the examples of the costs of repression tend to achieve visibility gradually and too late to make an impact on the passage of the legislation (if any) that prompts them.

An alternative argument contends that overestimation in risk perceptions is exaggerated because those with the capacity to influence perceptions have an interest in exaggerating the risk. Mueller provides considerable evidence of patently untenable claims in relation to the post-2001 terrorist threat and argues that at least some of these claims were knowingly dishonest and that others reflected the makers' economic and personal interests. He contends that the success of some claimants in securing currency for their untenable claims accounts for why threat perceptions are exaggerated. Exaggerated claims do indeed seem to have been made. Whether they were made sincerely or insincerely is probably unknowable and is largely irrelevant to the question of whether they were misleading. What matters is whether exaggerated views are particularly likely to receive currency, and they may well have been. Mueller reports evidence to the effect that media were far more likely to report news suggesting that the threat was serious than news suggesting that it was not, thereby enhancing the availability of material consistent with terrorism as a serious threat. But threat entrepreneurs are not the only people in the business of threat perception. A comprehensive study of the social creation of the perception of the terrorist threat would also require an analysis of the role of civil libertarians in contributing to countervailing fears that freedoms were under threat.

How Serious Is the Threat?

National Experiences of Terrorism

Terrorist Attacks

To judge from the past, the threats posed by terrorism are manageable. Terrorist attacks occur, but they are rare; and when they occur, they rarely involve more than one death. However, far more devastating attacks do take place, and most of the deaths attributable to terrorism are attributable to a handful of attacks. If past patterns were to continue, terrorism would constitute a relatively trivial threat, even allowing for the rare devastating attacks.

While the United States has had a history of political violence and continues to have a relatively high homicide rate, terrorist attacks on American soil are exceptional. Paul Wilkinson estimated that there were only 20 terrorism-related deaths in the United States between 1985 and 1994. The 1995 Oklahoma bombing, in which 165 people were killed, represented an attack of a completely different order, but it was an exception. The Global Terrorism Database lists only 11 other fatal terrorist attacks during the years 1995–2000, resulting in a total of 12 deaths.

The 9/11 attacks were unparalleled in terms of both loss of life and economic loss, but despite apocalyptic fears, the post-9/11 period has been remarkably free of fatal terrorist attacks. One candidate for a terrorist attack was the posting of letters laced with anthrax spores to various targets, including politicians and journalists, but the motive for this attack was unclear. Almost all attacks appear to have been the work of lone offenders or small groups. Two involved attacks on Jewish targets, apparently intended to express opposition to Israel and to US support for Israel. Others involved attacks on abortionists, Unitarians, the IRS, the media, and a military recruiting station, and involved only one or two deaths. The 2009 massacre of 12 fellow soldiers and a civilian by a Muslim army psychiatrist was far more serious.

In a typical year, Americans are somewhat more at risk of being killed in terrorist attacks when outside the United States. Some of these deaths have been incidental to foreign terrorist attacks; others have targeted Americans. Some guidance as to the level of "foreign" attacks on US citizens is provided by the US State Department's annual reports on global terrorism and the subsequent Country Reports on Terrorism and data from the National Counterterrorism Center but fatalities there attributed to "international terrorism" include attacks by international terrorists on targets located in the United States. Figures for 2001 reflect the 9/11 attacks. Since 2001, the number of such deaths from foreign attacks — 27 (2002), 35 (2003), 56 (2005), 28 (2006), 19 (2007), 33 (2008), 9 (2009), and 15 (2010) — has far exceeded the number of terrorism-related deaths within the United States.

Canada has experienced few lethal attacks since Laporte's assassination in 1971. There were three fatal attacks on Turkish diplomats by Armenian terrorists in 1984–85, and the Global Terrorism Database lists two more attacks whose motivation is unclear. There is one dramatic exception to this record: in 1985, Sikh extremists placed bombs on Air India flights from Toronto and Vancouver. The flight from Toronto exploded over the Irish Sea, killing all 329 passengers and crew. That from Vancouver exploded after being unloaded, killing two baggage attendants. Since then, Canada has remained free of major terrorist attacks, and minor incidents noted by the Canadian Security Intelligence Service (CSIS) have involved property damage but no loss of life or physical injury. Canadians have, however, been killed in foreign attacks. Twenty-four Canadians died in the 9/11 attacks, two in the 2002 Bali bombings, and another two in the 2005 London bombings. A Canadian diplomat died in a 2006 suicide bombing in Afghanistan.

Australia has not experienced a lethal domestic terrorist attack since 1980, when the Turkish consul general was assassinated in Sydney. However, Australians have suffered heavy casualties in foreign attacks. Of the 202 killed in the 2002 Bali bombings, 88 were Australians, as were four of the 20 killed in the 2005 Bali bombings. Fifteen Australians died in the 9/11 attacks. Three Australians were killed in the July 2009 attack on the Marriott Hotel in Jakarta. Australians were also among those killed in the 2003 Riyadh attack (one), the 7 July 2005 London bombings (one), and two Iraq bombings.

New Zealand has experienced only two fatal terrorist attacks. In 1984, a caretaker was killed by a bomb left in the foyer of the Wellington Trades Hall, and the following year, a French agent planted two bombs intended to destroy the Rainbow Warrior, a ship that the organisation had been using to protest against French nuclear testing in the Pacific. After the first bomb, a photographer who had been on the dockside went on board to recover his photographic equipment before the Rainbow Warrior sank. He was killed when the second bomb exploded. The Global Terrorism Database lists only one fatal terrorist incident in New Zealand (involving an unknown assailant). There have been no post-9/11 attacks there. However, at least seven New Zealanders have been killed in foreign attacks: two in the World Trade Center, three in the 2002 Bali attacks, one in the 2005 London bombing, and one in the 2009 Jakarta attack.

The United Kingdom's experience has been different. In Northern Ireland, terrorism has been a real threat for much of its history, culminating in a 30-year war that began in 1969 and peaked in 1972, when 467 died in Northern Ireland as a result of violence associated with the conflict over whether Northern Ireland was to remain part of the United Kingdom. Of those that died, 321 were civilians, with the remainder being soldiers (103), members of the Ulster Defence Regiment (26), and police (17). Between 1969 and 1994 (after which the annual death rate fell sharply), there were 3,159 terrorism-related deaths in Northern Ireland. Most of the casualties (2,216) were civilians; the others were soldiers in the British Army (445), members of the Ulster Defence Regiment or its successor (197), or members of the Royal Ulster Constabulary (194) or the Royal Ulster Constabulary Reserve (101). Civilian casualties included both Catholics and Protestants, in proportions roughly similar to their proportion of the population. Between 1995 and 2000, there were another 131 terrorism-related deaths, and 121 of the dead were civilians (including 38 members of Republican or loyalist paramilitaries). The post-9/11 period coincided with a continuing decline in Irish violence. According to one source, there were 16 conflict-related deaths in Northern Ireland in 2001, 11 in 2002, 10 in 2003, 4 in 2004, 8 in 2005, 3 in 2006, 2 in 2007, and none in 2008. There were at least three conflict-related deaths in 2009.

Northern Ireland bore the brunt of the conflict, but there were frequent attacks on targets in England (most of which were not lethal). Among the casualties were English politicians, including the secretary of state for Northern Ireland who was killed by a car bomb in 1979. Less-discriminating bombings caused considerable civilian casualties and included the 1974 bombings of two pubs in Birmingham, which took at least 21 lives; bombings earlier that year that killed 17; and a 1994 bombing at Warrington, which killed two. According to the Global Terrorism Database, Irish Republican groups were responsible for 51 fatal terrorist attacks on the British mainland (173 deaths) between 1971 and 1980, 32 (135 deaths) between 1971 and 1980, 12 (39 deaths) between 1981 and 1990, and 7 (10 deaths) between 1991 and 2000.


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Table of Contents

Preface and Acknowledgments ix

Abbreviations xiii

Introduction 1

1 The Specter of Terrorism 12

2 Responding to the Threat 34

3 What is Terrorism? 46

4 Gathering Information 62

5 Protecting Government Secrets While Protecting Due Process? 100

6 Guilt by Association 128

7 Terrorism Offences 149

8 Detention without Conviction 170

9 Torture and Coercive Questioning 195

Conclusion 217

Notes 235

Bibliography 279

Index 303

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