The Cost of Counterterrorism: Power, Politics, and Liberty

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  • Edition: 1st
  • Format: Paperback
  • Copyright: 2008-04-14
  • Publisher: Cambridge University Press

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What is included with this book?


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.

Author Biography

Laura K. Donohue is a Fellow at the Constitutional Law Center at Stanford Law School and at Stanford University's Center for International Security and Cooperation

Table of Contents

Acknowledgmentsp. xi
The Perilous Dichotomyp. 1
Security and Freedom within Constitutional Constraintsp. 4
The Shift in Power Among the Branches of Governmentp. 6
The War Model Versus Criminal Lawp. 7
The Expansion of Executive Authorityp. 10
Legislative Failure: The Counterterrorist Spiralp. 11
Limits on the Judiciaryp. 20
The Political, Social, and Economic Costs of Counterterrorist Lawp. 25
The Complexity of Rights and Securityp. 29
Indefinite Detention and Coercive Interrogationp. 33
Controlling Violence in Northern Irelandp. 35
Indefinite Detentionp. 36
Habeas Corpus Reliefp. 38
The Diplock Courtsp. 42
The End of Indefinite Detentionp. 47
Coercive Interrogationp. 48
Torture in English Lawp. 48
Coercive Interrogation in Northern Irelandp. 49
The Case of Ireland v. United Kingdomp. 54
Aftermathp. 56
Meeting the Islamist Threat in the United Kingdomp. 57
Indefinite Detention Revivedp. 58
Torture Revisitedp. 61
Control Ordersp. 63
The Prevention of Terrorism Actp. 66
US Detention of Foreign Nationals at Guantanamo Bayp. 71
Suspending the Geneva Conventionsp. 75
The Legal Argumentsp. 76
Dissent Overruledp. 80
Habeas Corpus and Judicial Reviewp. 83
The Cases of Rasul and Hamdip. 83
The Executive's Responsep. 84
Congress and the 2005 Detainee Treatment Actp. 85
The Case of Hamdan v. Rumsfeldp. 86
Congress and the 2006 Military Commissions Actp. 88
International Fallout and Its Effect on US Policyp. 89
Coercive Interrogation and Torture in the Global War on Terrorp. 91
The Convention Against Torturep. 93
Applying the New Standardsp. 95
Iraq and the Revision of Interrogation Standardsp. 97
Abu Ghraibp. 100
Ghost Detainees, Black Sites, and Extraordinary Renditionp. 103
The World Balksp. 106
Congress Speaks: The 2005 Detainee Treatment Act Revisitedp. 110
Parallel Costsp. 111
Domestic Political Powerp. 111
Innocent Victimsp. 114
The Psychological Effects of Indefinite Detentionp. 115
Minority Concernsp. 116
International Repercussions and Foreign Policy Considerationsp. 120
Financial Counterterrorismp. 122
Paramilitary Funding in Northern Irelandp. 123
The State's Responsep. 129
Statutory Measures Before September 11p. 130
Property Rights and Asset Forfeiture: Laying the Groundworkp. 131
Anti-Drug Trafficking and Counterterrorism: 1985-91p. 132
Racketeering in Northern Irelandp. 134
Counterterrorism and Anti-Drug Trafficking: 1993-2000p. 135
The Organized Crime Umbrellap. 139
Expansion of Counterterrorist Finance Law After September 11, 2001p. 141
The Effects of Expanding Lawsp. 145
Antiterrorist Finance in the United Statesp. 146
Measures Before September 11p. 147
Lists Under the International Emergency Economic Powers Actp. 148
Designated Foreign Terrorist Organizationp. 149
Money Launderingp. 151
Al Qaeda Fundingp. 153
Measures After September 11p. 158
The USA PATRIOT Act: Financial Provisionsp. 160
USA PATRIOT Act: Surveillance Provisionsp. 164
The International Emergency Economic Powers Actp. 166
The Erosion of Complex Rightsp. 168
The Elimination of Intentp. 171
Secret Evidence and Due Process Concernsp. 172
Stigmap. 175
The Political and Humanitarian Costsp. 175
Privacy and Surveillancep. 182
British Statutory Authority for Intelligence Gatheringp. 187
The Interception of Communicationsp. 187
Administrative Practice Before 1985p. 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 Datap. 201
Data Protectionp. 206
European Union Norms and Rulesp. 206
British Data Retention Lawp. 209
Surveillance in Public Spacep. 212
Port and Border Controlsp. 213
Closed-Circut Televisionp. 214
The American Surveillance Culturep. 218
Executive Excesses (1945-75)p. 223
Congress Responds: The 1978 Foreign Intelligence Surveillance Actp. 229
The USA PATRIOT Act and Its Surveillance Provisionsp. 233
Alterations to the Foreign Intelligence Surveillance Actp. 233
Delayed-Notice Search Warrantsp. 23
National Security Lettersp. 236
Surveillance Operations Under Other Auspicesp. 243
The Department of Defensep. 244
Attorney General Guidelines and FBI Surveillancep. 249
Citizen Reporting Programsp. 251
Watch Listsp. 254
US Data-Mining Operationsp. 256
British and American Oversight Comparedp. 261
The Political, Social, Legal, and Economic Consequencesp. 266
Terrorist Speech and Free Expressionp. 273
Political Speechp. 276
Sedition Versus Free Speech in the United Statesp. 276
Offenses Against the State and Public Order in the United Kingdomp. 283
Treasonp. 283
Unlawful Assembly and Public Orderp. 285
Seditionp. 290
The Media Banp. 293
The Glorification of Terrorismp. 294
Knowledge-Based Speechp. 296
Restrictions on Knowledge-Based Speech in the United Statesp. 298
Restrictions on Knowledge-Based Speech in the United Kingdomp. 307
The Secondary Effects of Other Counterterrorism Measuresp. 311
Privileged Speechp. 317
US Government Employment and Employees' Speechp. 317
The British Civil Service, Spycatcher, and the Official Secrets Actp. 322
Calculating Costsp. 330
Auxiliary Precautionsp. 333
Re-Empowering the Legislaturep. 336
Fostering a Culture of Restraintp. 336
Replacing Sunset Provisions with Obligatory Reporting Requirementsp. 338
Reinforcing Transparency and Accountabilityp. 341
Drawing Linesp. 345
Distinguishing Between Criminal Law and Counterterrorism: Financial Counterterrorism as an Examplep. 345
Distinguishing Between National Security Threats: Knowledge-Based Speech as an Examplep. 350
Resisting the Alteration of Judicial Rules and Executive Expansionp. 353
Beyond the Dichotomyp. 359
Notesp. 361
Indexp. 469
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