Alternative Law Journal
Will security measures recently introduced go beyond addressing terrorism to undermine the rule of law?
The September 11 attack on the United States and President Bush’s declaration of ‘war on terrorism’ probably represent the major global events of the new millennium. To quote Guy Rundle: ‘The US attack on Afghanistan and the prior destruction of the World Trade Centre and attack on the Pentagon have launched the world into a new historical period — this is true even though most of the newspapers say it is true’. The United States’ military attack on Afghanistan gained the immediate support of the Australian government and opposition along with majority support amongst the Australian population. Nevertheless in Australia and worldwide there has been a chorus of dissent and cautionary warnings. Objections include the morality of punishing the Afghan people for the sins of their rulers, the legality of the military assault under international law, and concern about the myopic or contradictory way in which terrorism is being defined. The wisdom and effectiveness of the military strategy is also being questioned.
The attack on Afghanistan and the inevitable civilian suffering and casualties are likely to fuel anti-western sentiment and may thus inspire further attacks of the type the war is said to be countering. With the volatility and urgency surrounding the international situation it is not surprising that relatively little attention has been paid to the fact that the ‘war on terrorism’ is being fought by the United States and its allies on two fronts — home and abroad. The war’s home front demands attention because it is set to have an enormous impact on the fundamental operation of the rule of law and the ability of people to live free of state terror. In addition, like the international strategy, it may be counter-productive to its stated objective of promoting security. This article examines new legislation and arrangements that have been implemented or proposed since September 11 and analyses their likely impact on civil society.
In the months since the attack on the United States a whole raft of new arrangements and legislation have been passed or foreshadowed in Australia, the United Kingdom, Canada and the United States. Measures implemented or seriously contemplated include indefinite detention without trial or judicial review, trial of terrorists by military tribunal, removal of the right to silence and legal representation, eavesdropping on lawyer–client communications, use of torture and drugs to force confessions, increased surveillance and reduced privacy protections, and vastly expanded resources to those sections of the military and paramilitary police involved in ‘homeland’ security.
In Australia, post the September 11 attack on the United States and prior to the federal election, the Howard government announced a raft of new measures to deal with terrorism. In particular the government proposed that the Australian Security Intelligence Organization (ASIO) will be able to detain people incommunicado for 48 hours purely for the purpose of seeking information. Under the proposals detention need not be based on suspicion of involvement in criminal activity and detainees will be held without access to legal advice or assistance. Detainees will not be afforded the right to silence and coercion may be used in order to gain answers to questions. These proposed new powers go way beyond those currently exercised by ASIO and beyond those possessed by any Australian law enforcement agency. In addition to the changes to ASIO, a new federal offence of terrorism will be created and the military’s commando unit responsible for domestic counter-terrorism, the Special Air Service, will be doubled in size.
The United Kingdom has had anti-terrorism legislation since the mid-1970s. Although originally passed as temporary legislation to deal with ‘Irish’ terrorism, the legislation has subsequently been extended a number of times. Provisions under the legislation previously provided the power to detain people without charge for up to seven days. Only weeks after the September 11 attack, further anti-terrorist legislation was announced to permit the indefinite detention of foreign nationals suspected of being a threat to ‘national security’. The provisions violate Article 5 of the European Convention on Human Rights by allowing for detention without trial. Other non-legislative measures include requiring customs, tax revenue officials and carriers to pass information to law enforcement agencies. United Kingdom terrorism legislation that came into force earlier in 2001 had already given the Home Secretary power to proscribe organisations ‘concerned with terrorism’. Any support for a proscribed organization — even wearing an item of clothing, such as a t-shirt, in a public place — is an offence punishable by fine or imprisonment.
In the aftermath of September 11 the Patriot Act was passed in the United States. Like the United Kingdom legislation the act allows indefinite detention of non-citizens on the basis of allegations of risk to national security. Other provisions in the Act:
• minimise judicial supervision of federal telephone and internet surveillance by police;
• expand the ability of government to conduct secret searches, provide the power to designate domestic groups as terrorist organisations and deport non-citizens who belong to them;
• grant the Federal Bureau of Investigation wide access to sensitive business records about individuals without having to show evidence of crime; and
• allow expanded investigations of citizens for intelligence purposes.
President Bush has signed an Executive Order that allows for the trial of non-citizen terrorist suspects before military rather than civil tribunals. In addition, an Office of Homeland Security has been created to oversee the battle against terrorism on the United States home front.
Measures proposed or put in place since September 11 have in common the wholesale abrogation of the presumption of innocence. Even prior to the recent more extreme legislation, commentators argued that the United Kingdom anti-terrorist measures create a system with the potential to detain and interrogate anyone because there is no requirement of reasonable suspicion of any offence and thus no need for any evidence. Commenting on the power of the British Home Secretary to proscribe an organisation as terrorist, and the process of appeal against such a proscription, a member of the House of Lords commented that ‘there is something distasteful about a process which begins by convicting someone and then proceeds to inquire whether there is a case against them’. The human rights group Liberty calls the latest United Kingdom measures ‘a fundamental violation of the rule of law’. The American Council of Civil Liberties maintains that the Patriot Act continues a ‘trend to cut back on the checks and balances that Americans have traditionally relied on to protect individual liberty’.
The use of military courts rather than civil courts to deal with non-US citizen ‘terrorist’ suspects has built within it the assumption of guilt. A terrorist suspect will not be tried before a jury or independent judiciary and will not be dealt with by a process where the burden of proof on the prosecution is beyond reasonable doubt. The suspect will not have counsel of their choice and will not be entitled to access to all the evidence against them. A decision to try someone as a ‘terrorist’ as opposed to a criminal leads to the substantial erosion of due process protections and thus increases the likelihood of a guilty verdict. In a very real sense the verdict of ‘terrorist’ is arrived at prior to the process being commenced, given that the process is only invoked when someone is considered a terrorist.
On the war’s international front, evidence linking Osama bin Laden to the September 11 attacks has not been made publicly available. Requests by Afghanistan’s (former) Taliban rulers for the evidence against bin Laden before considering a demand to extradite him to the United States were refused. Trial before an international court has been rejected as an option for dealing with bin Laden and his al Qaeda network. Likewise on the war’s home front in the United States and amongst its allies, detention and prosecution of terrorist suspects will not be strictly evidence-based or require the state to bring a suspect before an open court. Suspicion, rather than investigation followed by open and fair trial, is the basis for detention and punishment and, in the case of the United States, even execution under domestic anti-terrorist arrangements.
Suspension of human rights protections and due process in the wake of September 11 has the flavour of a temporary emergency response in the face of an unexpected crisis. President Bush declared an ‘extraordinary emergency’ announcing the signing of the Executive Order allowing for military trials of terrorist suspects. History demonstrates, however, that once anti-terrorist measures are passed they become not only permanent, but also a foundation for future, even more repressive, measures. ‘Temporary’ ‘emergency’ anti-terrorist legislation, first introduced in the United Kingdom to deal with violence resulting from the conflict in Ireland in the mid-1970s, was made permanent and broader in scope in 2000, despite the Irish peace process and the decline in activity by the armed groups. As one British Member of Parliament put it, there is a long history of ‘anti-terrorism legislation being introduced in haste and repented at leisure’.
Some ‘anti-terrorist’ measures which have been announced after bombings, hijackings, and assassinations have been planned and even implemented — sometimes in secret — months and even years previously. In Australia in 1978, the Fraser government announced a range of counter-terrorist arrangements shortly after a bombing outside the Sydney Hilton where the Commonwealth Heads of Government were meeting. It later became obvious that many of the measures announced or foreshadowed had been implemented or planned in secret prior to the bombing. The first United Kingdom Prevention of Terrorism Act was passed within one week of the 1974 Birmingham pub bombings, which caused widespread public outrage and demands for greater action against the Irish Republican Army. The legislation that was subsequently passed, however, had already been prepared before the bombings. The United States Anti-Terrorist Act signed into law by President Clinton shortly after the 1995 Oklahoma City bombing (see below), had been prepared years previously but had not received presidential assent because it was considered too confronting to civil liberties and the US Constitution.
Commenting on the ‘new’ measures proposed in the European Union following the recent attacks in the United States, civil liberties group, Statewatch, points out that ‘the “anti-terrorism” program amounts to little more than the fast-tracking of a raft of law enforcement legislation that was already on the EU’s agenda and goes well beyond the investigation and prosecution of terrorism’. At the very least, the measures introduced after terrorist incidents fit comfortably with government policy direction and demands for greater powers and resources by police, military and security agencies. The public fear and anxiety that naturally and understandably attends appalling and inexcusable acts of violence like September 11 has sometimes been exploited by governments to announce changes that would otherwise be rejected by many as too draconian. Chris Maxwell QC, President of Liberty Victoria characterises the proposed anti-terrorist measures announced by the Howard government as ‘intellectually dishonest’ arguing that ‘[h]ere is a government that has already exploited cynically and disingenuously, people’s fears about asylum seekers. Now it seeks to exploit their anxiety about terrorism by introducing laws that have not and could not be justified’.
In police, military and security circles notions of terrorism are not confined to violent and extreme acts but include protest and political and industrial activism of all kinds. According to counter terrorist theory, it is ‘but a short step from a march to a bomb’: terrorism and political activism are seen as part of a continuum. The perceived links between protest and terrorism need to be understood in the context of the links between counter terrorist doctrine and counter-insurgency theory. Counter-terrorist doctrine grew out of counter-insurgency theory that was first developed by the French and British military in the face of nationalist struggles to overthrow colonial rule. As Hocking says: ‘The importance of this theoretical link between counter-terrorism and counter-insurgency writings is that counter-terrorism has provided a domestic, peacetime adaptation of strategies developed to deal with the essentially wartime exigencies of a colonial power’. Counter-insurgency theory and practice concerned itself with the protection of the existing regime or social order, no matter how unjust, from popular movements seeking social change.
Writing in the early 1970s, Frank Kitson, an influential former high ranking officer in the British Army, defined subversion as ‘all measures short of the use of armed force taken by one section of the people of a country to overthrow those governing the country at the time, or to force them to do things which they do not want to do’. This definition is broad enough to cover a whole range of social movements that include among their aims impacting on government policy. Insurgency, the use of armed force against the government, is seen to follow naturally in the footsteps of subversion. Thus from the viewpoint of the counter-insurgent, and by extension the counter-terrorist, all social movements are suspect because they present a developmental stage on the road to armed struggle or terrorism.
Given the origins of counter-terrorism it is not surprising that the latest round of ‘anti terrorist’ measures are broad enough to capture a whole range of activities not popularly conceived of as terrorism but that fit comfortably with Kitson’s definition of subversion. The US Patriot Act defines domestic terrorism as any dangerous or unlawful activity that is intended ‘to influence the policy of a government by intimidation or coercion’. The definition is broad enough to encompass the activities of anti-globalisation protesters and groups like Greenpeace. The Canadian Labour Congress maintains that the government’s proposed anti-terrorist legislation ‘could allow authorities to define a picket or a work stoppage as ‘terrorist activity’’. Statewatch argues that the United Kingdom ‘anti terrorist’ legislation has the ‘inevitable consequence of criminalising dissent and extra-parliamentary politics’.
Counter-terrorist theory maintains that community, non-government, and activist organisations frequently — knowingly or otherwise — serve as fronts for terrorist organisations. Writing recently, Christopher Pearson, editor of the Adelaide Review quotes a terrorism expert as warning that ‘[t]hey [terrorists groups] operate through front organisations and sympathetic organisations, taking the face of human rights and humanitarian groups’. Beyond this, security organisations are prone to viewing any group to the left of some arbitrary centre line as subversive and, by extension, potentially terrorist in nature. The Hope Royal Commission on Intelligence and Security in Australia in the 1970s reported that ASIO had a ‘tendency to think of anyone they chose to call ‘left wing’ as subversive’. The same distorted political lens will no doubt be applied to the selection of ‘terrorist’ suspects to detain under ASIO’s proposed new powers. Paddy Hillyard’s research on the United Kingdom Prevention of Terrorism Acts found that a person’s politics had a bearing on the decision to detain them and that a number of arrests appeared to be aimed at gathering information on political activity. Terrorism provides a pretext for spying on, harassing and detaining people engaged in doing things that many take for granted as rights available to citizens in a democracy. As Jenny Hocking maintains: ‘The misconception of our security services as to the nature of a liberal democracy and the integral role of public dissent within it, one which readily confuses a practical expression of democratic politics with ‘subversion’, is central to any discussion of the role of security services in their more recently developed counter-terrorism functions’.
Counter-terrorism has provided a vehicle for the militarisation of police and the integration of the military into ‘internal security’. In Australia, consistent with developments in other English-speaking countries, paramilitary police units, set up to counter terrorism in the mid-1970s, have been progressively integrated into everyday policing with the result that the paramilitary tactics and weapons used by such units have become part of a normal police response. The paramilitary police units train with the military and use a range of military weapons and equipment, undermining the traditional distinction between the police and the military. Amendments to the Australian Defence Act, passed in the lead-up to the Sydney Olympics open the way for the federal government to call out the troops in the case of political demonstrations or industrial disputes. Michael Head argues that although the amendments were promoted in terms of terrorist threats surrounding the Olympics they delivered permanent military power over civilian unrest. The Australian military have contingency plans to ‘aid the civil power’ in the event of threats posed by ‘mass demonstrations’, ‘industrial political and social disturbances’ or ‘terrorism’.
Traditionally the police and military have had separate roles, with police involved in domestic law enforcement and peace keeping and the military confined to use against external enemies in times of war. This separation is important because the military engaged in war operate under a philosophy of maximum force aimed at killing and defeating an enemy, whereas police are duty bound to use only minimum force against individual suspects protected by due process rights. Both the use of the military against citizens and the existence of a close ideological and operational alliance between the police and military are usually associated with repressive regimes.
Human rights, due process and civil liberties are portrayed as unaffordable luxuries in the light of the security threat posed by terrorism. British Home Secretary David Blunkett dismissed the criticism of civil libertarians over recent anti-terrorist legislation saying: ‘We can live in a world with airy-fairy civil liberties and believe the best in everybody — and then they destroy us … That’s not the world we live in’. A former US Federal Attorney-General said recently, in relation to terrorist suspects, that due process sometimes ‘strangles us’. The idea that human rights, due process and civil liberties exist only in inverse proportion to security rests on a number of assumptions. The first is that anti-terrorist laws will be effective in targeting those likely to engage in extreme acts of violence. This seems unlikely in the light of what we know about the way security and law enforcement agencies behave. It is now well established that internment without trial in Northern Ireland in the early 1970s resulted in the detention of political activists and not those engaged in armed struggle or terrorism. Research on the operation of United Kingdom Prevention of Terrorism legislation between the mid-1970s and early 1990s found that in 86% of cases those detained were released without any action being taken against them, that is, no evidence was found of any illegal let alone terrorist activity. Anti-terrorist legislation is rarely used against terrorists but is instead used against dissidents and non-terrorist offenders.
The second assumption that underlies the ‘more liberty, less security argument’, is that the danger posed by individuals or groups involved in terrorist violence is greater than the danger posed by state violence. State terrorism is far more prevalent and significant than that of non-state actors. After the military regime was ousted in Argentina in the early 1980s a commission of inquiry concluded that the ‘terrorism’ of the military regime was ‘infinitely worse’ than the terror they were allegedly combating. The first person arrested under the United Kingdom’s Prevention of Terrorism Act was Irish national Paul Hill, one of the Guilford Four. After enduring psychological and physical violence he and three others confessed and were convicted of bombings they didn’t commit. They spent a total of 60 years in prison before being released. This was only the first in a series of miscarriages of justice against Irish Catholics facilitated by the legislation. Counter-terrorism is frequently a Trojan horse for state terror in the form of police violence, torture, sexual assault, illegal arrest and detention, and legal arrest and detention based on ethnicity, race, religion or class background. States, through the military and the police, have enormous capacity to coerce citizens and inflict violence on individuals: it should not be assumed that this power will be used benevolently.
Apart from being a source of terror itself, counter-terrorism can inspire the type of terror it is meant to be preventing. The repression of dissent involved in ‘anti-terrorism’ may turn people away from social activism and more peaceful forms of political protest towards more violent expressions of dissent and dissatisfaction. Research on the conflict in Northern Ireland found that the introduction of internment without trial in 1971 was a significant variable in a shift amongst supporters of Irish nationalism away from peaceful protest towards political violence. The military’s tactics in Northern Ireland, directed at ‘getting the hard men’, created ‘more hard men to get’. Beyond this, the escalation of state violence associated with ‘counter terrorism’ may inspire revenge attacks and an escalating spiral of violence involving attack and counter-attack.
In 1995, on the second anniversary of the death of more than 80 people, including 27 children, at Waco, Texas in an assault by the FBI, Timothy McVeigh blew up a federal building in Oklahoma City, killing 168 men, women and children. In a letter to Gore Vidal, McVeigh explains that:
Foremost, the bombing was a retaliatory strike: a counter-attack … From the formation of such units as the FBI’s ‘Hostage Rescue’ and other assault teams amongst federal agencies during the 80s, culminating in the Waco incident, federal actions grew increasingly militaristic and violent, to the point where at Waco, our government — like the Chinese — was deploying tanks against its own citizens … For all intents and purposes, federal agents had become ‘soldiers’ (using military training, tactics, techniques, language, dress, organization and mindset) and they were escalating their behaviour.
Since the mid-1970s, and particularly post-Cold War, terrorism — along with the ‘war on drugs’ and organised crime — has provided the main rationale for major changes to national security arrangements in English-speaking democracies. These changes have seen sections of the military increasingly integrated into ‘internal security’, the militarisation of police, and the granting of more resources and powers to agencies involved in gathering intelligence on citizens. The ‘war on terrorism’ marks an escalation and intensification of the militarisation of law enforcement and the decline in civil liberties and human rights. According to the rhetoric, the war on terrorism is being fought by those who ‘believe in progress, pluralism, tolerance and freedom’ against ‘the enemies of freedom’ who ‘hate our freedom to vote and assemble and disagree with each other’. It is ironic then that on the war’s home front the casualties include the very things that protect individuals from the tyranny of arbitrary state power. The suspension of legal rights associated with anti-terrorism is more in keeping with the martial law of militarised and totalitarian states than the rule of law that operates in the civil societies of democratic states. Those of us who value the freedoms provided by the rule of law now need to be ready to exercise some of the ‘eternal vigilance’ that is said to be its price.
[*] Jude McCulloch teaches Police Studies at Deakin University.email: firstname.lastname@example.org© 2002 Jude McCulloch
 Rundle, G., ‘In Terror and Hope’, (2001) 55 Arena Magazine 2.
 See President Bush’s remarks ‘President Signs Anti-Terrorism Bill’, 26 October 2001 <www.whitehouse.gov/news/release/2001/10/ 20011026-5.htm>.
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 Lawson, D., ‘The Government goes to war’, (2001) 55 Arena Magazine 43-4.
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 See, President Bush Address to Joint Session of Congress and the American People, 20 September 2001 <www.whitehous.gov/news/ release/2001/09/20010920-8htm>.