ABSTRACT
As the tenth anniversary of the terrorist attacks in New York and Washington DC on 11 September 2001 approaches, our ability to assess the full extent of their impact only grows stronger. For many, the immediate shock and horror of that day has lessened over time, but we nevertheless continue to live with its consequences. The most obvious, in geopolitical terms, are the military conflicts in Afghanistan and Iraq to which 9/11 gave rise, and from which the Western powers involved have become increasingly intent on extricating themselves. This book is concerned, however, with a different dimension of our response to the
threat of terrorism over the first decade of the twenty-first century. It focuses on what might, in the now thoroughly discredited rhetoric of the ‘war on terror’,1 be called the home front. In the international arena, we have seen military deployments and shifts in diplomatic relations, as well as significant changes to the international legal framework. The interconnected nature of all aspects of a state’s commitment to the goal of effective counter-terrorism means that it is unsurprising that these international developments have frequently provided the impetus and the justification for the creation of counter-terrorism regimes at the domestic level. In particular, the effect of United Nations Security Council Resolution 13732 was to convert a likely expectation that counter-terrorism regimes would be created (or at least strengthened) in the aftermath of 9/11 into a binding commitment upon member states of the United Nations. Countries with a less than demonstrable commitment to the rule of law and
democratic governance are among the many that have implemented this commitment, and some of these have used the rubric of counter-terrorism for the further suppression of internal dissent. Opportunism of that sort was, perhaps, only to be expected. Even more significant though has been the approach taken by liberal democracies that have been regarded as the benchmark for good governance, transparency, due process and individual freedom. The sacrifices that these countries have been prepared to make to the liberty of their citizens in order to achieve, or, more accurately, pursue, security raises alarm bells about the health of the democratic project itself. Much has been written on these issues since 11 September 2001, including by
many of the contributors to this book. The primary focus has been upon the content
of the particular counter-terrorism laws and policies of the relevant nation as they have been unveiled. There is no doubt that such writings have been of great value to contemporary debates about the desirability and dangers of specific measures implemented in response to the threat of political violence. However, the immediacy, as well as the highly charged nature, of the political debates surrounding these measures has meant that attention to their further implications and effects has necessarily been limited. This is particularly so in respect of the ramifications which the emergence of a culture of security has had, and will have, beyond the counter-terrorism context. Scholars and non-governmental human rights organisations have highlighted
the potential for exceptional measures, such as those contained in domestic counterterrorism regimes, to become a ‘normal’ part of the legal and political framework of a nation. As we see it, there are two aspects to this normalisation. First, in the sense that measures devised as temporary responses to a presently
perceived threat acquire a permanent position in the legal and political consciousness. This is borne out by the unwillingness of many governments to embark on even a modest rollback or amendment of some of the more extreme measures introduced after 9/11. Even legislative attempts to prescribe the duration of counter-terrorism laws through the use of ‘sunset’ clauses have often proved ineffective. Such clauses have frequently been renewed as a matter of course without meaningful examination of whether the underlying law has been effective in preventing or responding to the terrorist threat or whether it remains necessary. Research and commentary has been successful in drawing attention to the seemingly entrenched nature of these laws. By contrast, fewer inroads have been made into the much larger task of examining
the second aspect of the normalisation of extraordinary measures, that is, the capacity of such measures to be used in response to other (and generally far less serious) threats than that of terrorism. The aim of this book is to begin to fill this gap in scholarship – among other things, to consider the ‘seepage’ of extraordinary legal measures developed in the counter-terrorism context into other areas of law and policy. It is too simplistic to suggest that exceptional tools emerge out of a vacuum. In many cases, they have legal antecedents. However, crises undoubtedly hasten the uptake of such measures and, what is more, in adapting existing mechanisms to respond to a severe threat such as the 9/11 terrorist attacks, governments are likely to diminish (rather than maintain) any safeguards which accompany those mechanisms. The more aggressive features of measures crafted at such a time can then have a tendency to be used for other law and policy problems facing the state – progressing these along a path they may not have journeyed had the original threat not arisen. Therefore, the central question which this book seeks to investigate is: how have the extraordinary legal measures to which liberal democracies have resorted in their ‘fight’ or ‘war’ against terrorism influenced the ordinary grain of law, justice and politics? To what extent has terrorism provided the impetus for such nations to create a ‘culture of control’ more broadly?3
