Legislating Against Terrorism I: The Context
[This is the first of two briefings on legal responses to terrorism - the next focuses on the Terror Bill
considered by Parliament, autumn 2005]
1. ‘They who would give up an essential liberty for temporary security, deserve neither liberty or security’.
Benjamin Franklin
2. ‘Extreme measures, like torture, preventive detention, and arbitrary arrest, typically win the battle but
lose the longer war’.
Michael Ignatieff,
The Lesser Evil, Edinburgh University Press, 2005.
3. ‘Islam is the only civilization which has put the survival of the West in doubt, and it has done so at least
twice’.
Samuel P Huntingdon,
The Clash of Civilizations and the Remaking of the World Order, Touchstone books, 1996.
Introduction
The key word in the first quotation above is ‘temporary’. Franklin must have realised that all governance is
based on some surrender of liberty in order to achieve security. Maybe Hobbes exaggerated the chaotic
state of nature of ‘war of all against all’ which would exist outside governed societies, but we can all
understand that any civilised society entails a tacit agreement by members to inhibit their passions - and
concomitant desires to indulge them - in the interests of living free of harm from the passions of others.
Early political theorists imagined or predicated a ‘social contract’ in which citizens in a state of nature
surrendered some freedoms for the reward of permanently peaceful conditions in which to live their lives.
In Western Europe, after many failed and bloody attempts, we like to think we have evolved systems of
government which strike that crucial balance between security and liberty. In Britain, the story probably
began with Magna Carta in 1215, which guaranteed certain fundamental liberties, continued with the
development of the common law and then the passing of the act of Habeas Corpus in 1679 and was brought
up-to-date by the Human Rights Act in 1998. The relevance of this discussion to the present day is clear,
as is its warning: shoring up our safety by means of hastily passed restrictive laws will in time rob our
society of its freedom without increasing its safety.
Provenance of Terror as a Political Instrument
There is a tendency to think that terrorism is a modern phenomenon but it is as old as human society itself.
It is, essentially, the winning of compliance through the threat or reality of severe physical harm. It follows
that war is nothing more than government sanctioned terrorism, whereby citizens of one country are forced,
by fear of injury or death, to comply with the demands of another. That is the macro level, if you like,
but terrorism exists on different levels: the micro level of crime - trafficking of women, protection rackets;
or within states - the campaign waged by the IRA to achieve a unified Ireland or the recent ‘ethnic
cleansing’ of communities in the countries comprising the former Yugoslavia. In all of these cases,
people faced the threat of severe injury or death unless they complied with the people exercising terror.
However, the use of the word ‘terror’ is not usually associated with war between countries, nor with crime,
which we seek to control through a network of domestic law. It is more often the in-between level of
groups seeking political goals through this means within states which attracts such a description, though,
of course, many terrorist groups either have international extensions or, like al-Qaeda, are essentially
international in character and purpose.
The word ‘terror’ has another characteristic: it is flexible and dependent on the prism through which it is
viewed. So, governments might condemn secessionist groups using violence as ‘terrorists’, as the British
did with so many freedom movements while their Empire was in decline. But once the British had accepted
the inevitable and wished to minimise the offence of such liberation struggles to subsequent diplomatic
relations, these ‘terrorists’ - think of Kenyatta, Nyrere, Kaunda - became ‘fathers’ of their nations,
welcomed to Buckingham Palace by an admiring Queen Elizabeth. True, Gandhi, achieved this status
without advocating force but few have followed his non-violent teachings in practice. Moreover, we saw
Margaret Thatcher’s government describing Nelson Mandela and the ANC as ‘terrorists’ only for the term
to be hastily forgotten by Conservatives once his near canonisation took place after the whites had fled the
scene. It would be fair to say that the distinction between ‘terrorist’ and ‘freedom fighter’ is lost as soon as
the new tenants move into the presidential palace.
Does terrorism work? One could argue, not; the IRA have not achieved the unification of their country and
do not seem likely to. Similarly, ETA has not achieved independence for the Basques. But it has to be
allowed that:
i)
It was terrorism which won Adams and McGuinness places around the Good Friday table and the
threat of it which led Mo Mowlam to visit terrorist leaders in the Maze Prison in 1998 to seek their
support. Most people are moved by threats to the life and limb of themselves and their loved ones
and the IRA have shown that substantial political benefits can be won through making such ruthless
threats.
ii) Violence of some kind has attended the inception of most countries in the world. Think of the USA,
Israel, Algeria, and Russia. Even Australia’s founding entailed the slaughter of hundreds of
aboriginals.
iii) Terrorism wore away the foundations of the imperial powers and persuaded them to accept the
inevitability of losing their colonies.
iv) Violence in formation has often coloured the nature of the resultant state: the USSR was the product
of a small ideological faction which went on to impose its unwelcome thoughts upon a resisting
population and repress with great savagery anyone who objected. Something similar might be said
about Saddam Hussein’s Iraq. Even the history of Northern Ireland after 1922 could be attributed,
according to one view, to the violence of its inception. The use of terror breeds more terrorism in
other words.
Huntingdon’s ‘Clash of Civilizations’
Samuel P. Huntingdon’s brilliant and uncannily prescient study, The Clash of Civilizations, in the view of
many, defines the world as we have come to be at present. Islam took Constantinople in 1453 and besieged
Vienna in 1529, reversing much of the ground won by the Crusades in the 13th century. But then,
the Christians fought back and Islam began a long retreat after its failure to take Vienna again in 1683;
a retreat which continued throughout the 19th century and concluded in the 20th with Turkey the ‘Sick man
of Europe’, whose wider area of influence was dominated by Britain, France and Italy. Then it was the
West’s turn to retreat, their empires in decline culminating with the implosion of the USSR, which itself
opened up a number of newly minted countries to the appeal of Islam.
Anatomy of the Conflict
1. The truth is that both religions are not dissimilar: both posit an ‘us and them’ view of the world; neither
are polytheistic in that they can embody other creeds into their own; and each seek to convert nonbelievers to the ‘true’ word. Both have shown a missionary zeal. The result has been a millennium of
violent conflict which continues unabated.
2. Muslim countries have been more fertile in producing population - many of them under-employed
and volatile. Millions have migrated to the West in search of material prosperity. Both these home and
emigrant groupings have provided fertile soil for those who argue the fundamentalist version of Islam.
3. The mingling of both creeds have highlighted differences between the restrictive norms of Islam and the
more liberal, diluted versions of Christianity which characterise the West. Both cultures assume theirs is
the superior and tend to regard the other with a degree of contempt. Muslims particularly dislike the
West, not for its Christianity, but for its lack of religious piety: ‘the godless West’. Western culture is
seen as corrupt, decadent but also as seductive, a devilish snake to be resisted; no surprise the USA is
described as ‘The Great Satan’.
4. Muslims feel humiliation at the technological accomplishments of the West compared with their own
culture. This tends to reinforce for us the idea of a religion and culture left in the past. Fatima
Mernissi’s Islam and Democracy (1992), by no means the view of a bearded ayatollah, called for Islam
to ‘liberate itself from this subservience’, to train its own engineers and scientists, and build its own
weapons. Islam must free itself, she argued, of dependence on the military power of the West.
5. In the immediate aftermath of colonial status, Muslim countries tended to be pro Western. But one
by one they shifted to a hostile position: Iraq, Libya, Yemen, Sudan, Lebanon, and Afghanistan.
Less hostile, but still unfriendly, were Tunisia, Indonesia and Malaysia. Turkey and Pakistan were
friendly but bitterly assailed by Muslim critics at home and abroad. Kuwait was the most pro Western
state in the early nineties; virtually a ‘satellite’ state of the West, whose liberation in 1991 was bitterly
resented by Muslim states, not to mention the ongoing occupation of Palestinian lands by the US
backed Israel. Muslims in most of the world’s countries now tend to be anti West and to have some
sympathy at least with terrorist activities. But there are thousands who do not share such views and
abominate terrorist activities.
Quasi-war
6. Given that Muslims now comprise 1.6 billion people and stretch from Indonesia to Muslim
communities in Western Europe, it was almost inevitable that once the USSR was removed as the
West’s principal opponent, Islam would be substituted. Opinion polls in the US and Europe reveal
Islam being perceived as the major threat. Huntingdon argues a ‘quasi-war’ has been in progress for
some time in the Middle East. It has been fought with limited means: aerial attack; sanctions and covert
action by the West; car bombs and terrorism by Islamic groups.
7. The West’s attempts to intervene in the Islamic world for power or economic reasons - cold war
reasons, oil - have caused immense resentment among Muslims. This has spawned groups like Hamas,
Fatah, al-Qaeda and others, determined to expel the new ‘Crusaders’ from their lands and inner
counsels. Hence, we saw the tragedy of the Twin Towers on 11 th September 2001, the attacks in
Madrid, and our own attacks in London on 7th and 21st July. Unlike the conflicts of old, the current one
is not conducted via conventional armies facing each other - in that contest the West would surely win
every time - but between the unwieldy armies of the West clashing blindly with a foe which has been
recruited with the help of the Internet, trained, maybe in Pakistan, Palestine or Iraq itself and alert to the
globalisation which makes an explosion in Baghdad reverberate around the world. But the cruelest
innovation is perhaps the most baffling. It seems scores, maybe hundreds or even thousands of young
Muslims are prepared to sacrifice themselves in the cause of their religion. How can one deter those
who have no fear of death and may actually will it? Experience and reason tells us residents of liberal
democratic states that such actions must at root cause be the result of something harmful: poverty;
deprivation; and/or lack of education? But the evidence often says otherwise - suicide bombers are often
middle class educated Muslims, like Mohammed Atta, who led the attack on the Twin Towers.
UK Attacks
The extraordinary aspect of these attacks for British people was that these suicide bombers were British
citizens, raised in a northern city and imbued with a love of British sport and many other aspects of our
culture. An opinion poll in The Guardian, 26th July 2005, revealed the chilling fact that 5% of our 1.6
million Muslims - some 80,000 people and 7% of those under 35 - thought that further attacks by British
suicide bombers would be ‘justified’. The editorial grimly commented: ‘If you were unfortunate enough to
die in such a bombing in other words, tens of thousands of your fellow citizens would justify your death to
themselves.’
Michael Ignatieff’s ‘Lesser Evil’ Argument
Ignatieff’s book addresses the subject of values and fighting terror, and comes up with something like a set
of criteria by which to judge measures designed to combat terror. His starting point is that terrorists have
rights too, even though they have exploited the openness of our liberal societies to inflict their politically
inspired damage. There are international agreements - the Geneva Convention, the Torture Convention which articulate these rights and which even those governments attacked by terrorists, should endeavour to
recognise even in the darkest of times. Because democracy cares about individuals, their rights - even those
of terrorists - have to be seen as part of the end purpose of the exercise. But, Ignatieff agrees, this does not
mean recognition of such rights, embedded in the law, have to be seen as inviolable and wholly permanent.
They can be withdrawn in some cases if deemed necessary.
But it is what replaces them which causes the anguish. Where is the line of legislation which deters further
transgressions without alienating the wider group from which the transgressors have emerged? This is
made even more difficult by our lack of knowledge regarding future intentions of the terrorists nor of the
impact - benign or adverse - of any new measure. It could be that a further tightening of the law will cast
many more recruits into the calculating intimacy of terrorist cells. No one knows; we blunder forward in
the dark. Ignatieff seeks to cast some light however, by arguing that:
a) We should have no illusions regarding the ‘evil’ of any new restrictions of civil rights thought to be
necessary. Totalitarian governments have no scruples about using force, torture, imprisonment without
trial, but our democratic forms of government won their liberties by fighting such perversions of human
governance.
b) We should only introduce such measures as a last resort, having honestly tried everything else.
c) We should ensure they affect the smallest possible number of people.
d) We should subject such measures to the cleansing test of constant adversarial democratic debate.
e) We should continuously review the necessity for continuing with such measures and remove them when
safe to do so.
Bill Jones, 18 October 2005