Fighting Terror with Law? Some Other Genealogies of Pre-emption

Counter-Terrorism, Human Rights and the Rule of Law: Comparative Studies of the Responses to Terrorism and the Crossing of Legal Boundaries (Aniceto Masferrer & Clive Walker, eds.), Edward Elgar Publishing, 2013

In offering our collection, we seek to provide a detailed and original study of an important and fast-developing field by adopting an innovative perspective which will be accessible for researchers in law and public policy. The decade of counter-terrorism experiences which sought to provide a risk-averse protective state has constantly and severely challenged traditional legal concepts and categories. Our approach to the questions raised by counter-terrorism is to relate the interaction of law with politics, history, and ethics and by drawing comparisons between civil law and common law traditions. Our remit is thereby much wider and more deeply analytical and critical than most existing commentaries on counter-terrorism. We shall consider as a recurrent theme the implications of counter-terrorism for a wide range of traditional legal responses, strategies of governance and modes of accountability. Its core refrain is that these developments in counter-terrorism have resulted in pressures to cross important ethical, organisational and legal boundaries with the result that new problems and tensions are reflexively created and that unexpected and often unwanted outcomes are thereby generated.

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures and implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms' law enforcement and conflict management. Part III moves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. The part offers a discussion of the 'extradite or prosecute' mechanism that lies at the heart of multilateral anti-terrorism conventions and a discussion of the bases of international criminal jurisdiction that provide a framework for domestic anti-terrorism statutes. It concludes with an analysis of the practice of apprehension of terrorists in international space, of which the U.S. has been a leading proponent, and offers a discussion of the complex legalities attendant to this controversial means. In Part IV, the article tackles the complexities and technicalities of the conflict management paradigm. It commences by examining the international legal uncertainties inherent in treating terrorists as combatants. The analysis moves on to cover the use of both limited lethal military force in the form of targeted assassinations and large scale military force in the form of pre-emptive strikes and retaliation. In a bid to highlight the transformation from the Cold War era to the post Cold War era, the part focuses on U.S. practice and world reaction both pre- and post-Cold War. The part concludes with an examination of the post-September 11 scenario and evaluates whether any perceptible changes in law or state practice are taking place following the military campaigns in Afghanistan ('Operation Enduring Freedom') and Iraq ('Operation Freedom Iraq').

This article looks at pre-crime in the context of counter-terrorism. Pre-crime links coercive state actions to suspicion without the need for charge, prosecution or conviction. It also includes measures that expand the remit of the criminal law to include activities or associations that are deemed to precede the substantive offence targeted for prevention. The trend towards anticipating risks as a driving principle in criminal justice was identifi ed well before 2001. However, risk and threat anticipation have substantially expanded in the context of contemporary counter-terrorism frameworks. Although pre-crime counter-terrorism measures are rationalized on the grounds of preventing terrorism, these measures do not fi t in the frame of conventional crime prevention. The article argues that the shift to pre-crime embodies a trend towards integrating national security into criminal justice along with a temporal and geographic shift that encompasses a blurring of the borders between the states ' internal and external coercive capacities. The counter-terrorism framework incorporates and combines elements of criminal justice and national security, giving rise to a number of tensions. One key tension is between the ideal of impartial criminal justice and the politically charged concept of national security. Pre-crime counter-terrorism measures can be traced through a number of interlinking historical trajectories including the wars on crime and drugs, criminalization and, more fundamentally, in colonial strategies of domination, control and repression. The article concludes by identifying a number of challenges and opportunities for criminology in the shift from post-crime criminal justice to pre-crime national security.

New Criminal Law Review: An International and Interdisciplinary Journal, 2017

Since the turn of the century, across North Atlantic countries, counterterrorism law has been an area of relentless, highly prioritized, legal production that often challenges rule of law principles. This article provides a general overview of United Kingdom counterterrorism legislation and, drawing from jurisprudence, state theory, and political philosophy, constructs an analytical framework to assess its implications for the broader shape, function, and logic of law. It starts by assessing the dynamic tension between authoritarian and democratic elements that constitutes modern law, thus setting the overall conceptual framework in which counterterrorism law pertains. It proceeds to analyze U.K. counterterrorism law, by juxtaposing it to its United States counterpart and by deciphering the key trends into which its provisions combine. Based on this account, the article considers the implications of counterterrorism law for the law-form, that is, for the articulation between legal content, logic, and institutionality. It finds that, although the content and logic of counterterrorism law are incompatible with rule of law principles, they are developed in an institutional framework adherent to the rule of law. To account for this paradox, the article concludes that counterterrorism law signals the advent of authoritarian legality, a reconfiguration of the rule of law where the latter holds its institutional shape, but comes to consist of, and be driven by, authoritarian content and purposes. The article outlines the main characteristics of authoritarian

Social Science Research Network, 2013

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20 th century criminal justice trends to the 21 st century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

2013

The Social Life of Anti-Terrorism Laws, 2008

Legal Studies, 2018

Contemporary British counter-terrorist legislation is dominated by ‘counter-law’ in Richard Ericson's terms: by using law against law, it systematically undermines the rule of law. This paper supports this proposition by developing a detailed ‘archetypal’ account of the rule of law considered as a critical ideal, drawing on Fuller's ‘morality of law’. The rule of law is identified with four tendencies in law – towards greater universality, knowability, followability and justifiability – and ‘counter-law’ with tendencies to block or reverse all of these. Counter-law tendencies in contemporary counter-terrorist legislation are discussed in detail, with particular reference to the proliferation of inchoate, preparatory and situational offences. This critique is also related to contemporary debates on law and counter-law; it is argued that critiques which relativise or historicise the liberal model of the rule of law fall short by failing to engage with it on its own terms, ther...

Incontestably the decade since 9/11 has been the pre-eminent age of terrorism. Or has it? In this lecture we consider terrorism as an object of government and of academic research. In arguing that law and criminology have been the pre-eminent disciplines attending to governmental responses to terrorism we note that their interventions have been significant in both their critical stance and in their impact in shaping discourse about the tactics and limits of counter-terrorism, particularly legislation and its uses. But what understanding of the broader role of government in responding to terrorism emerges from such a literature? And what histories are available to inform such an understanding? Existing historical accounts of Australian security and intelligence as a response to political violence and terrorism are for the most part dominated by Cold War politics and ideology, especially through their preoccupation with the politics of intelligence organisations. Increasing availability of security archives, together with a more international view of the context of Australian counter-terrorism histories, provide a sounder base for assessing the emergence of terrorism as an object of government attention since the 1970s.