Countering terrorism and crossing legal boundaries – by Aniceto Masferrer and Clive Walker

24th Marine Expeditionary Unit supporting the war against terrorism.

photo credit: mashleymorgan via Flickr cc

The decade 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 London 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. The label has fallen from favour and has narrowed in focus, but military action beyond the bounds of recognised international humanitarian law is palpable in the forms 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 proliferating counter-terrorism laws.

There are many ways of analysing the legal responses to terrorism. 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.

Adding something original to the voluminous discourse on terrorism and the law is not easy, but the authors seek to add a new emphasis, reflected in our recent book, Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar, 2013). Our understanding is that the new codes of counter-terrorism laws have constantly and often 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. Our book identifies the new tensions and analyses and criticises 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 9/11 involved fundamental questions about whether the appropriate 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’.

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 process in order to modify its transaction so as to deliver the ‘right’ result.

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.

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. However, the expanding boundaries and coverage of national security into everyday life, as well as the functional and institutional melding between policing and spying, have 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.

Aniceto MasferrerAniceto Masferrer is Professor of Legal History and teaches legal history and comparative law at the Faculty of Law, University of Valencia. He is the author and editor of numerous books, and has authored more than fifty articles published in Spanish, European and American law journals. 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), and Visiting Professor at the University of Tasmania (2010). He has lectured at universities in several countries (France, Germany, Belgium, The Netherlands, Malta, United Kingdom, Sweden, Norway, USA, Canada, Australia and New Zealand). He is a member of the advisory board of several Spanish, European, Anglo-American and Asian law journals, and the Chief Editor of GLOSSAE, European Journal of Legal History. He is a member of the American Society for Legal History, the current president of the European Society for Comparative Legal History, and vice-president of the Fundación Universitas. He is also the Director of the Institute for Social, Political and Legal Studies, member of the Spanish Royal Academy of Jurisprudence and Legislation, and board member of the Valencian Committee for European Affairs, a consultative body in charge of advising on and realising studies and proposals to improve participation in European issues and for planning strategic actions of the Valencian Autonomous Community.

Clive Walker photoClive 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, with a PhD (University of Manchester, 1982), and numerous published books and papers not only in the UK but also in several other jurisdictions. He has been a visiting professor at many universities, including George Washington and Stanford Universities in the USA, and Melbourne and New South Wales in Australia. 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.

'Counter-Terrorism, Human Rights And The Rule Of Law' book coverTheir co-edited book, Counter-Terrorism, Human Rights and the Rule of Law, has just been published by Edward Elgar.

Also available as an eBook for subscribing libraries on elgaronline

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2 Comments on “Countering terrorism and crossing legal boundaries – by Aniceto Masferrer and Clive Walker”

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  1. “Legal History Chose Me”: Aniceto Masferrer’s Route to Legal Scholarship | A Legal Miscellanea - November 29, 2015

    […] Legal Emergency: Security and Human Rights in Countering Terrorism (Springer, 2012), co-edited Counter-Terrorism, Human Rights, and the Rule of Law: Crossing Legal Boundaries in Defense of the St…, and others which will appear next year (Comparative Legal History, by Edward Elgar Publishing; […]

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