Preliminary draft – for discussion only
17 11 2012
3,200 words
Terrorism, the Constitution and the Law
By
Ismail Serageldin
Introduction:
A few years ago, before the 25 January 2011 Revolution, Egypt considered passing a “Terrorism Law” to replace the vast powers given to the state under the “State of Emergency” that was invoked and remained in place for thirty years. Such a law would have enshrined the sweeping coercive powers claimed by the executive under the Emergency into the regular laws of the nation. Inconceivable as it may seem, the old constitution of 1971 was amended by introducing article 179 in 2007 to formally declare that such future legislation would disregard the guarantees of constitutional rights given under articles 41, 44 and 45 of the same constitution.
While such nonsense must be rejected, and the constitutional guarantees of freedom and liberty must be upheld for all citizens at all times, societies must confront the issue of terrorism, which has become a fact of our global reality, and it is even practiced by some states in what may well be correctly termed “State Terrorism”. So, the manner in which our new constitution shall guarantee the fundamental freedoms and human rights of all citizens is of paramount importance, and so is the manner in which it constrains the use of exceptional measures such as the declaration of a state of emergency, the accountability of the executive during such a state of emergency and the limits to what is permissible in even these declared national emergencies. I do hope that these questions will be addressed in the debates that should precede the formulation and adoption of our constitution.
More importantly, it is essential that the issue of terrorism and how to deal with it should be broadly discussed in public. Do we need to formulate a new terrorism law, or do our current laws suffice to confront that menace? The public must be educated to recognize that terrorism against innocent civilians cannot be condoned, and that the terrorist acts must be seen for the criminal acts against fellow citizens which they are. This broad-based rejection of terrorism must be the result of open social debate and discussion, and it is essential to create the climate in which the legal actions can function. Laws that do not have the broad support of the population will not be observed. Actions which curtail the fundamental human rights of political dissidents cannot be countenanced and cannot be undertaken in the name of “fighting terrorism”. This public debate and the broad social consensus that it should produce, are the foundations on which the legal response to Terrorism can be built. This essay is one small contribution to this important public debate.
Ten Reasons why Terrorism can become more lethal:
The increasing damage that can be done by terrorists today is being enhanced by at least ten objective reasons. These account for the rising importance of global terrorism as a scourge of the new century:
• The increasing density of human settlements. With so many people in such small geographic areas, the likely impact of a terrorist act in terms of claiming lives and maiming people is considerably larger today than it was three decades ago.
• The increasing value of property, makes that comparable catastrophes a generation or two ago would cause much greater losses in monetary terms today. This is evident in the increasing value of the damage caused by hurricanes in the US and by floods in Japan.
• The availability of modern mass transport, both nationally and internationally, means that terrorists can move around much more easily and much less noticeably than they could half a century ago, and that the vehicles of such transport—planes, trains and underground rail—are themselves potent targets of terrorist attacks. This was sadly shown in 9/11, Madrid and London.
• The specific vulnerability of certain extremely important industries to disruption by terrorist acts. This includes petroleum exports (witness Iraq), Tourism (Bali and Egypt), and banking… for capital, honest capital, is notoriously cowardly: it moves away from perceived danger to safe havens elsewhere.
• Globalization and the information and communication revolution make it very easy for terrorists to plan their activities halfway around the globe, finance it from another part of the planet, assemble to strike somewhere and be gone to the four corners of the world within hours. The permeable world of the Internet, international mobile phones and 24 hours-a-day global financial transactions coupled with easy travel require an unprecedented level of cooperation between the police and intelligence agencies of the countries of the civilized world.
• The widespread availability of weapons and explosives of all types in enormous amounts for clandestine sale all over the world, especially following the end of the Cold War, makes it likely that terrorists with even moderate funding can acquire very lethal weapons indeed.
• The extreme effectiveness of small light weapons that can be moved easily against large unprotected civilian targets adds considerably to the risk of successful attacks. A shoulder fired Rocket Propelled Grenade (RPG) can easily hit a plane on take-off or landing. Well aimed, it is equally deadly against a bus or a train.
• New forms of terrorism such as cyber-attacks against our computers and data banks, the essential tissue of our hyper-digitized societies, keeps cyber-security experts in a constant race against the potentially lethal attacks of well-informed and well-placed terrorists. Chemical terrorism, such as the chemical attack using Sarin gas in Japan, is a possibility, and, despite the weakness of the anthrax attacks in the US, Bioterrorism, is a real possibility. A well-placed and well-timed release of an airborne lethal pathogen with a significant incubation period of even a few days makes its control very difficult. Old enemies such as smallpox and new deadly biological pathogens and the risk of epidemics or pandemics they can cause, cannot be ignored.
• Nuclear proliferation and the availability of large quantities of weapons grade material make the need for additional security measures on the stocks of such materials extremely important for global security.
• Above all, there is the ideological fervor of the suicide bomber. It is far harder to guard against the danger of a killer who kills himself with his victims than it is to guard against one who is planning to escape the scene of the crime. This phenomenon, needs tackling at the base of the recruiting and indoctrination that feeds the terrorist ranks as much as at the stage of the attempted terrorist actions.
Why we need special tools
Even acknowledging these enormous dangers, the question remains why the current set of criminal laws are not considered adequate to deal with terrorism? In fact, some of the existing legal tools can be deployed, others may have to be broadened somewhat, such as a systematic way of tracking financial flows in an increasingly interconnected and fluid international financial system; still others may have to be invented, such as the provision of safety on the Internet.
In general, the features of a terrorist act, other than when it is the deranged action of a lone individual, involves: conspiracy, disciplined Para-military organization, and an attack on the foundation of the State, and is on a different scale compared with more usual aberrations, such as a crime for profit.
The perceived need to pre-empt the act before it is committed usually conflicts with the established premise that thinking about an act, but not committing it, does not constitute a crime. Furthermore, if security forces are to prevent a terrorist act they will need to move on far lesser evidence that would normally be required in the conventional legal process which—quite rightly—not only puts the full burden of proof on the accuser, but also provides a battery of guarantees for the human right of the accused, and a formal due process in arrest and prosecution, and demands a certain quality of evidence before conviction.
Why Terrorism is different from War
In the wake of the horrendous monstrosity of the attacks of 11 September 2001, the political response of the US Government was to wage a “War on Terror”, and to argue that terrorists were enemy combatants not subject to normal criminal legal procedure. The Government could therefore designate a person as an “undeclared enemy combatant” and arrest them and deprive them of the due process of law guaranteed by the American Constitution. This political terminology that attempted to find parallels in the treatment of prisoners of war in other wars, was tortuous and faulty.
For one thing, where enemy soldiers captured in a battlefield of a conventional war do not normally deny their affiliation (they even declare it by wearing military uniforms), the clarity of distinguishing between a terrorist and an innocent bystander is more akin to distinguishing between a criminal and a member of the public at large.
For another, conventional wars are expected to have logical ends with an opposing army vanquished or a negotiated peace between the parties that usually involves an exchange of prisoners. What form would the end of the war on terror take? With whom would such an ending be negotiated? In the absence of clarity on such issues, would that result in such prisoners being held indefinitely without trial? How would such an outcome be in any way compatible with any definition of the rule of law and of democratic governance?
The basic context
It seems to me that the fundamental issues in developing a legal response to terrorism in a democratic society is to find the right balance between two fundamental duties of a government: the provision of safety for the citizens and the protection of their liberties. The provision of safety in the presence of a terrorist threat is seen by some people to require the curtailment of some of the rights and liberties that have generally been guaranteed in every constitutional regime, and considered inalienable rights that should not be curtailed by any law. Scholars such as Richard Posner in the US have cogently argued that case, quoting the famous phrase that “The Constitution is not a suicide pact”! i.e. you cannot in the name of the Constitution expect the State to “commit suicide”, and lead to anarchy, or, worse, to the dictatorship of terrorists.
However, others have specifically argued that the protection of liberty and of the rights of citizens to exercise their fundamental rights is especially important in such periods of tension and risk, for that is when these rights are in danger of being contravened. It would be foolish to protect these rights only in the times when they are not under threat, to abandon such protection at the times when they are at risk. These rights (free speech, freedom of assembly, the right to petition, the right to organize, the right to strike and the right to privacy, to be safe from unreasonable search and seizure, etc.) are what all citizens consider an essential part of being a citizen in a modern democratic state. The presumption of innocence and the right to refrain from self-incrimination, and of Habeas corpus in the Anglo-Saxon system, are equally fundamental rights that are constitutionally protected.
Arguments about positive and negative rights do not add that much here. For on closer scrutiny, such definitions are found wanting in practice. Negative rights, so designated as requiring the State or individuals to refrain from doing something to block the right of others to enjoy this right, do require positive action, such as laws and courts and police power to ensure that such blockages do not occur, or if they do occur, to unblock them as rapidly as possible.
Sloppy legislation in the name of overt legal action against terrorism, based on prevention as much as ex-post pursuit and prosecution, can lead to measures that threaten fundamental rights of free speech, assembly, privacy, search and seizure, and due process. Advocates of undertaking such actions argue from fear of the consequences of delayed action, the need to move swiftly under conditions of imperfect knowledge, and the enormous cost of trying to deal with terrorism exclusively on the basis of ex-post prosecution.
Some examples from the history of the United States:
If we look to the USA, we will find that from the beginning there was a strong commitment to strengthen the constitutional commitment to a “Bill of Rights”. This was introduced as the first ten amendments of the Constitution in 1790. Obviously the “inalienable rights” already described in the declaration of independence, were intended for white men only, as slavery, action against the Native Americans, and systematic discrimination against women and non-whites continued for a very long time. Generally, one can see the history of the US as a gradual movement of emancipation (except for the Native Americans) and the adoption of universal suffrage.
In general, the suspension of any of the rights spelled out in the Bill of Rights was usually considered an exceptional measure and was introduced in periods of national crisis and perceived fear for national security. Four such historic cases stand out from the record. With historical hindsight, three of the four cases appear to have been excessive, the exception being Lincoln’s suspension of Habeas corpus during the Civil War.
In the early days of the nascent republic, the alien and sedition acts of 1798/99 introduced under the administration of John Adams, allowed the incarceration of nationals and the deportation of aliens in response to the fear that their exercise of free speech was pushing the country to war. Inevitably, it led to the Government incarcerating many of its critics. Upon the election of Jefferson in 1800, the prisoners were freed and pardoned. The country did not go to war. The laws were allowed to lapse without renewal, except for the one granting the President the right to deport undesirable aliens which is still on the books and still in force.
Lincoln suspended Habeas corpus during the Civil War. He argued that this power was needed to prosecute the war, and that its absence would lead to all laws being broken save one (Habeas corpus). Ultimately it was debated and approved by a majority in Congress, even though it is clearly stated in the US Constitution:
The Privilege of the Writ of Habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
—US Constitution (Section 9, Clause 2)
The third case was after Pearl Harbor. The US was formally at war with Japan, and Roosevelt issued Executive Order 1099 which rounded up American citizens of Japanese descent and interred them in concentration camps. The courts refused to sanction this action, one judge pointing out that there was a difference between what the military governor of California would do in a time of war and the courts providing a legal sanction for an act that was blatantly unconstitutional.
No crime or evidence of crime was ever found against them. It was a racially motivated response to the fear of invasion and the US Government finally admitted its error and apologized sixty years later.
Finally, more recently, the US passed the Patriot Act in the wake of 9/11. It led to excesses of “undeclared enemy combatants” and Guantanamo, Bagram and Abu Ghraib, rendition, torture and other abuses.
Those who argue that these actions are constitutional have to be able to provide answers to simple questions, such as:
• How can one relate preventative detention to the presumption of innocence, the fundamental legal principle in every civilized code of justice from Islamic Sharia law (Omar’s letter to the Qadi in the 7th century) to contemporary civil codified law or case-law and as specified in the Fifth Amendment of the US Constitution?
• How can one justify torture when the constitutional “right to silence”, the right against self-incrimination, is clear in the Fifth Amendment of the US Constitution? Not to mention that torture is clearly an “excessive and inhuman punishment”…
• How can one relate such actions to the due process of law guaranteed to all citizens in the USA?
Finding the right balance
Ultimately, the issue of balance remains fundamental. The twin objectives of government by the people, for the people, and of the people, must be observed: protection of liberty and human rights and provision of safety. That is the essence of political security. And it is worth remembering this warning from Benjamin Franklin: “Those who would give up liberty to get security will lose both and deserve neither!”
So how do I personally propose to find the right balance that I have spoken of so many times? I believe that, in legal terms, we must tighten both Surveillance and Due Process.
Surveillance: Experience shows that, contrary to libertarians who see in every increased surveillance a danger, increasing the number of monitoring cameras in public places (thus still protecting privacy) is feasible. In the UK, an enormous increase has been recorded in the cameras covering public places and the UK citizens do not seem unduly disturbed by that in their daily lives. Expansions of surveillance must be either through clear public mandate of an informed electorate (such as cameras in public spaces) or in more covert cases (such as wiretapping or its more recent equivalents) with the formal approval of a judge. Financial tracking also must be through the order of a judge.
Due Process is essential. The presumption of innocence is fundamental. Preventative detention must be kept to an absolute minimum and subject to strict judicial review. There can never be any justification for torture. The rules of evidence must be observed. The constitutional guarantees of a speedy trial in an appropriate court—civilian for civilians, military for military personnel—must be guaranteed with a right to counsel for the accused and with the burden of proof on the accuser.
Conclusions:
Social values are more important than legislation, but legislation is still important. Martin Luther King said:
“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart but they can restrain the heartless.”
The protection of fundamental Human Rights is ultimately the basis of a humane society. While each society will have its own specificity, none can claim to ignore the fundamental Charter of the UN’s Universal Declaration of Human Rights and still claim to be part of the civilized conclave of nations. There is no claim to specificity that would justify the oppression of women or the mutilation of girls. There is no possible argument for the persecution of minorities or the enslavement of the young. Likewise, it is essential that the framework for a legal response to terrorism should be in a manner that does not infringe on our fundamental human rights in a society that still protects our security as well as our rights.
That brings me back to the importance of a thoughtful and prolonged debate that any informed citizenry must have about the unavoidable reality of terrorism in our times. Only an informed citizenry and its responsible elected representatives can tackle this issue effectively. For ultimately it is up to the legislators to craft the laws that will govern the restraints on State action as much as on wayward individuals in the right balance that will respond to both security and the protection of our rights. In so doing they would indeed be performing that great calling to:
“Go forth and fashion the wise constraints that make people free.”