Law and Terrorism

Legal Strategies and Counterterrorism

There are three dominant legal stances taken by states facing a terrorism problem. One is to do nothing. Before the attacks of September 11, 2001, this stance was adopted by many states. In this approach, terrorism is viewed as simply a form of organized crime, and while more threatening than common thefts or assaults, the view is that a [Page 344]robust criminal law and criminal justice system can handle terrorism.

At the other end of the scale, a state may perceive terrorism as an existential threat—a threat to its fundamental constitutional values or its territorial integrity. In these circumstances, a military response will be considered, with the purpose being to apply maximum force and eradicate the enemies of the state. The adoption of this stance was evident in the declaration on September 16, 2001, by President George W. Bush of “the first war of the twenty-first century.” Generally, however, a military response is avoided within the domestic sphere because of fears that the military will exert a dominant political influence, and because of the inevitable brutality of military operations (such as the 1972 attack on unarmed protesters in Northern Ireland known as Bloody Sunday).

Powerful states, such as the United States, France, and the United Kingdom, tend to adopt a third approach that mixes the foregoing themes. On the one hand, their prime reliance is on criminalization, to be achieved not only by reliance on existing laws but also by adaptations that produce a legal code geared to battling terrorism. This approach, which was adopted in the United Kingdom as long ago as the Diplock Report in 1972, is likely to predominate within the domestic sphere. However, these nations are also willing to commit their military forces, especially outside their own borders, and to apply all elements of national power, including diplomatic, intelligence, and economic resources.

This entry principally examines specialized counterterrorism laws, which represent the most prominent and important trend in the domestic sphere. The sections below analyze the justifications for distinct counterterrorist laws and the necessary safeguards, as well as typical examples of their content.

Principles and Policies for “Special” Counterterrorism Laws

Implicit in legislation such as the UK's Terrorism Act 2000 and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercepting and Obstructing Terrorism Act (USA PATRIOT Act) of 2001 is the assertion that legislation against political violence is needed now and forever. Sunset clauses may attach to some provisions, but they are often extended and much of the legislation (including the Antiterrorism and Effective Death Penalty Act of 1996) has no expiration date. This resort to an ongoing and distinct anti-terrorist code within a “militant” democracy can be justified at three levels.

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