The Cost of Counterterrorism: Power, Politics, and Liberty

by Laura K. Donohue

• ISBN13: 9780521844444
• ISBN10: 0521844444
• Edition: 1st
• Format: Hardcover
• Copyright: 2008-04-21
• Publisher: Cambridge University Press

Summary

In the aftermath of a terrorist attack political stakes are high: legislators fear being seen as lenient or indifferent and often grant the executive broader authorities without thorough debate. The judiciary's role, too, is restricted: constitutional structure and cultural norms narrow the courts' ability to check the executive at all but the margins. The dominant 'Security or Freedom' framework for evaluating counterterrorist law thus fails to capture an important characteristic: increased executive power that shifts the balance between branches of government. This book re-calculates the cost of counterterrorist law to the United Kingdom and the United States, arguing that the damage caused is significantly greater than first appears. Donohue warns that the proliferation of biological and nuclear materials, together with willingness on the part of extremists to sacrifice themselves, may drive each country to take increasingly drastic measures with a resultant shift in the basic structure of both states.

Table of Contents

Acknowledgments	p. xi
The Perilous Dichotomy	p. 1
Security and Freedom within Constitutional Constraints	p. 4
The Shift in Power Among the Branches of Government	p. 6
The War Model Versus Criminal Law	p. 7
The Expansion of Executive Authority	p. 10
Legislative Failure: The Counterterrorist Spiral	p. 11
Limits on the Judiciary	p. 20
The Political, Social, and Economic Costs of Counterterrorist Law	p. 25
The Complexity of Rights and Security	p. 29
Indefinite Detention and Coercive Interrogation	p. 33
Controlling Violence in Northern Ireland	p. 35
Indefinite Detention	p. 36
Habeas Corpus Relief	p. 38
The Diplock Courts	p. 42
The End of Indefinite Detention	p. 47
Coercive Interrogation	p. 48
Torture in English Law	p. 48
Coercive Interrogation in Northern Ireland	p. 49
The Case of Ireland v. United Kingdom	p. 54
Aftermath	p. 56
Meeting the Islamist Threat in the United Kingdom	p. 57
Indefinite Detention Revived	p. 58
Torture Revisited	p. 61
Control Orders	p. 63
The Prevention of Terrorism Act	p. 66
US Detention of Foreign Nationals at Guantanamo Bay	p. 71
Suspending the Geneva Conventions	p. 75
The Legal Arguments	p. 76
Dissent Overruled	p. 80
Habeas Corpus and Judicial Review	p. 83
The Cases of Rasul and Hamdi	p. 83
The Executive's Response	p. 84
Congress and the 2005 Detainee Treatment Act	p. 85
The Case of Hamdan v. Rumsfeld	p. 86
Congress and the 2006 Military Commissions Act	p. 88
International Fallout and Its Effect on US Policy	p. 89
Coercive Interrogation and Torture in the Global War on Terror	p. 91
The Convention Against Torture	p. 93
Applying the New Standards	p. 95
Iraq and the Revision of Interrogation Standards	p. 97
Abu Ghraib	p. 100
Ghost Detainees, Black Sites, and Extraordinary Rendition	p. 103
The World Balks	p. 106
Congress Speaks: The 2005 Detainee Treatment Act Revisited	p. 110
Parallel Costs	p. 111
Domestic Political Power	p. 111
Innocent Victims	p. 114
The Psychological Effects of Indefinite Detention	p. 115
Minority Concerns	p. 116
International Repercussions and Foreign Policy Considerations	p. 120
Financial Counterterrorism	p. 122
Paramilitary Funding in Northern Ireland	p. 123
The State's Response	p. 129
Statutory Measures Before September 11	p. 130
Property Rights and Asset Forfeiture: Laying the Groundwork	p. 131
Anti-Drug Trafficking and Counterterrorism: 1985-91	p. 132
Racketeering in Northern Ireland	p. 134
Counterterrorism and Anti-Drug Trafficking: 1993-2000	p. 135
The Organized Crime Umbrella	p. 139
Expansion of Counterterrorist Finance Law After September 11, 2001	p. 141
The Effects of Expanding Laws	p. 145
Antiterrorist Finance in the United States	p. 146
Measures Before September 11	p. 147
Lists Under the International Emergency Economic Powers Act	p. 148
Designated Foreign Terrorist Organizations	p. 149
Money Laundering	p. 151
Al Qaeda Funding	p. 153
Measures After September 11	p. 158
The USA PATRIOT Act: Financial Provisions	p. 160
USA PATRIOT Act: Surveillance Provisions	p. 164
The International Emergency Economic Powers Act	p. 166
The Erosion of Complex Rights	p. 168
The Elimination of Intent	p. 171
Secret Evidence and Due Process Concerns	p. 172
Stigma	p. 175
The Political and Humanitarian Costs	p. 175
Privacy and Surveillance	p. 182
British Statutory Authority for Intelligence Gathering	p. 187
The Interception of Communications	p. 187
Administrative Practice Before 1985	p. 188
The Interception of Communications Act (1985)	p. 190
The Security Service Act (1989 and 1996) and the Intelligence Services Act (1994)	p. 192
The Regulation of Investigatory Powers Act (2000)	p. 195
Electronic Bugs and Encrypted Data	p. 201
Data Protection	p. 206
European Union Norms and Rules	p. 206
British Data Retention Law	p. 209
Surveillance in Public Space	p. 212
Port and Border Controls	p. 213
Closed-Circut Television	p. 214
The American Surveillance Culture	p. 218
Executive Excesses (1945-75)	p. 223
Congress Responds: The 1978 Foreign Intelligence Surveillance Act	p. 229
The USA PATRIOT Act and Its Surveillance Provisions	p. 233
Alterations to the Foreign Intelligence Surveillance Act	p. 233
Delayed-Notice Search Warrants	p. 235
National Security Letters	p. 236
Surveillance Operations Under Other Auspices	p. 243
The Department of Defense	p. 244
Attorney General Guidelines and FBI Surveillance	p. 249
Citizen Reporting Programs	p. 251
Watch Lists	p. 254
US Data-Mining Operations	p. 256
British and American Oversight Compared	p. 261
The Political, Social, Legal, and Economic Consequences	p. 266
Terrorist Speech and Free Expression	p. 273
Political Speech	p. 276
Sedition Versus Free Speech in the United States	p. 276
Offenses Against the State and Public Order in the United Kingdom	p. 283
Treason	p. 283
Unlawful Assembly and Public Order	p. 285
Sedition	p. 290
The Media Ban	p. 293
The Glorification of Terrorism	p. 294
Knowledge-Based Speech	p. 296
Restrictions on Knowledge-Based Speech in the United States	p. 298
Restrictions on Knowledge-Based Speech in the United Kingdom	p. 307
The Secondary Effects of Other Counterterrorism Measures	p. 311
Privileged Speech	p. 317
US Government Employment and Employees' Speech	p. 317
The British Civil Service, Spycatcher, and the Official Secrets Act	p. 322
Calculating Costs	p. 330
Auxiliary Precautions	p. 333
Re-Empowering the Legislature	p. 336
Fostering a Culture of Restraint	p. 336
Replacing Sunset Provisions with Obligatory Reporting Requirements	p. 338
Reinforcing Transparency and Accountability	p. 341
Drawing Lines	p. 345
Distinguishing Between Criminal Law and Counterterrorism: Financial Counterterrorism as an Example	p. 345
Distinguishing Between National Security Threats: Knowledge-Based Speech as an Example	p. 350
Resisting the Alteration of Judicial Rules and Executive Expansion	p. 353
Beyond the Dichotomy	p. 359
Notes	p. 361
Index	p. 469
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