an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Legal Mistakes in Reporting on the International Anti-Terrorism Campaign
Kim Lane Scheppele
The bombs that exploded through London on Thursday heralded unseemly gloating in the American press about America’s current legal superiority in the war on terrorism. Europe has been portrayed as too attached to the “crime model” for dealing with terrorism, and too attached to its civil liberties to be effective in preventing terrorist attacks. Now Europe has seen what it’s like – the American press says – they will surely come to the same conclusion that America has: it is necessary to trade-off liberty for security. Europeans now have to get tough on terrorism, because they have not been before now.
That might be persuasive if it were true. But it is not. Let me illustrate the problems in American press coverage with two examples from the New York Times, though there are plenty of other examples around.
For example, when the [British] Parliament considered a bill in March that would have allowed the government to impose tough controls on terror suspects - like house arrests, curfews and electronic tagging - some legislators objected, saying it would erode civil liberties. "It does not secure the nation," William Cash, of the House of Commons, said of the bill. "It is liable to create further trouble and dissension among those whom we are seeking to control - the terrorists." The measure is still pending.
Wrong. The bill – called the Prevention of Terrorism Bill 2005 -- not only passed, but it fixed a “problem” referred to elsewhere in the Sciolino and van Natta article. As they reported:
After Sept. 11, the government passed legislation that allowed indefinite detention of terrorism suspects. But last year, it was overturned by Britain's highest court, the Law Lords, as a violation of human rights law.
True, as far as it goes. But it leaves the wrong impression. The Law Lords did declare part of the 2001 anti-terrorism law to be incompatible with a part of the European Convention on Human Rights from which Britain did not derogate after 9/11. But the Prevention of Terrorism Bill 2005 was rushed through the Parliament precisely to allow the British government to keep in indefinite detention all the suspected terrorists who had been detained under the impugned law. As a result, the Law Lords decision resulted in not a single suspected terrorist actually being released. And it was clear from Law Lords’ judgment that that would be the case because the decision gave the British government numerous ways to fix the law without actually letting any of the suspected terrorists go free. Far from being irresponsible civil libertarians who didn’t seem to realize that there was a war going on, the Law Lords upheld Britain’s declaration of a state of emergency and Britain’s derogation from the right to liberty under the European Convention. Britain can still detain suspected terrorists indefinitely – it just cannot detain aliens indefinitely while leaving equally dangerous citizens to roam free.
Britain was not being soft on terrorists before 7/7. Britain had some of the most draconian anti-terrorism policies in place of any democracy in the world.
From the 9/11 attacks through the Madrid bombings, Europeans have refused to sacrifice civil liberties in the fight against terrorism, sharply criticizing the United States for restricting its citizens' rights for the sake of security. Even with the London attacks, there is little indication that this philosophical divide is narrowing. . . .
European countries have passed no equivalents of the Patriot Act. . .
Wrong. In fact, most countries in the world did pass something like a USA Patriot Act after 9/11, if one looks narrowly at what the Patriot Act actually does. While the US debate over the Patriot Act never mentioned this, the Patriot Act brought the US into compliance with UN Security Council Resolution 1373, a resolution that required all UN member states to change their laws to a) criminalize terrorism, b) stop the flow of money to terrorists, c) prevent terrorist attacks from occurring, 4) share information with other countries about terrorism suspects and 5) prevent the immigration, asylum and refugee system from being used by terrorists.
Actually, the UN Security Council Resolution was probably drafted to look like the legislation America was preparing right after 9/11, rather than the other way around. But because the general shape of the USA Patriot Act corresponds to the contours of Resolution 1373, most other countries in fact do have something like it. In fact, any country bringing itself into compliance with Resolution 1373 will necessarily have a law that looks a lot like the Patriot Act.
Britain’s own Anti-terrorism, Crime and Security Bill 2001 in fact tracks the USA Patriot Act in many particulars, including detailed provisions to prevent financial flows from going to terrorists. Britain already had strong anti-terrorism legislation on the books, legislation far more draconian than anything the US had contemplated before 9/11. Germany passed two security law packages in fall 2001 as part of their compliance with Resolution 1373, giving German law many features in common with the USA Patriot Act. France already had strong anti-terrorism legislation in place before 9/11. Nonetheless, even France modified its laws to comply with the UN Security Council Resolution, down to the point of creating a rather vaguely defined crime of “pimping for terrorism” in a law passed on 18 March 2003. Someone can be convicted of “pimping for terrorism” if they are proven to know suspected terrorists and are in possession of large amounts of cash that they cannot explain. Even the US doesn’t go that far in criminalizing terrorism.
From these two examples in the New York Times, however (and, as I have said, the examples could be multiplied from other news outlets), one can start to see that the general narrative taken for granted in some of America’s press – that the US is willing to trade liberty for security while the Europeans are not – is simply not true. In many cases, strict European anti-terrorism laws were already in place before 9/11 so that they did not have to be newly enacted after 9/11, as many of America’s laws were. In cases where European countries did not have aggressive anti-terrorism laws in place before 9/11, they changed their laws to comply with UN Security Council Resolution 1373.
Yes, there is still a difference between Europe and America in the way that they are waging the anti-terrorism campaign. But it is not the case that Europe has failed to enact tough domestic anti-terrorism laws. Much of Europe, however, believes that international law binds them too. Posted
by Kim Lane Scheppele [link]
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