Antiterrorism and Counterterrorism Essay

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The 9/11 attacks by al Qaeda on the World Trade Center in New York City and on the Pentagon in Arlington, Virginia, across the Potomac from Washington, D.C., put terrorism at the center of the world stage. Post 9/11 there have been a number of specific terrorist bombings of civilians that have made international headlines, including in Bali in 2002, Madrid in 2004, London in 2005, Boston in 2013, and in various cities in India and Pakistan throughout this period. In addition, there have been ongoing terrorist attacks in a number of theaters of internecine war, including in Iraq, Afghanistan, Kashmir, and in the Israeli–Palestinian conflict in the Middle East. These specific and ongoing attacks have ensured that terrorism remains a major international concern.

However, the phenomenon of terrorism is not new. In 19th-century Russia there was the antistate terrorism of groups such as the Narodniki (e.g., assassination attempts on the czars), in the 18th century the state terrorism of the Committees of Public Safety and General Security during the so-called Reign of Terror in the French Revolution, and in the 20th century the anticolonialist terrorism in Africa (e.g., Algeria) and elsewhere.

The term antiterrorism is often used in relation to legislation enacted to combat terrorism, whereas the term counterterrorism is more commonly used in relation to the strategies and tactics used by security agencies to combat terrorism. Indeed, police and military counterterrorism strategy is a well-developed field of study. However, there are strategies used to combat terrorism, such as de-radicalization, which are neither legislative measures nor measures used by security agencies.

No one denies the reality and impact of terrorism in the contemporary world. Nevertheless, when it comes to defining terrorism there is much disagreement, including among philosophers and politicians, and among international lawyers and policy makers seeking to draft legislation so as to mobilize international support to combat terrorism. If al Qaeda is a paradigm of a terrorist network, what of the African National Congress (ANC) in the 1960s, 1970s, and 1980s? The ANC was branded a terrorist organization by the South African apartheid government. However, the ANC and its supporters claimed that they were not a terrorist organization, but rather a liberation movement engaged in an armed struggle. State actors, for example, the U.S. government, often deny the existence of state terrorism. Terrorism, they claim, is an activity undertaken only by nonstate actors. This is, of course, consistent with claiming, as does the U.S. government, for example, does, that some nation-states sponsor terrorist groups by providing them with weapons, finance, or safe havens. Some theorists, however, argue that state actors engage in terrorism and that there can be and have been terrorist states. For example, the Soviet Union under Joseph Stalin was, according to this view, a terrorist state. Certainly, Stalin routinely used a great many of the methods of terrorism.

Moreover, many allegedly nonstate terrorist groups claim that the state actors they are fighting against are the terrorists. Consider the Israeli–Palestinian conflict. On the one hand, many Israelis will argue that when Israeli forces engage in targeted assassinations of members of Hamas and the like, they are not engaged in terrorism but rather are using morally justified counterterrorist tactics. On the other hand, many Palestinians proclaim these and other acts of the Israeli state to be acts of terrorism perpetrated against the Palestinian people.

Historically, terrorist organizations and campaigns have been identified not simply by their political motivations but also by their methods. The methods they use to achieve their political ends are ones deployed in order to instill fear— quite literally, to terrorize. These methods include assassination, indiscriminate killing, torture, kidnapping and hostage taking, and ethnic cleansing. Here a distinction can be made between terrorist actions per se, such as indiscriminate killing of civilians, and acts that are related to terrorist acts but are not in themselves terrorist acts, for example, weapons procurement and passport forgery.

According to many influential accounts, what especially distinguishes terrorism from other forms of political violence is its favored method of the deliberate killing of innocent civilians by, for example, detonating bombs in crowded buses, trains, marketplaces, and the like. A complication here is that there are some categories of civilians, such as collaborators, who some have argued are legitimate targets in armed conflict and, therefore, deliberate killing of them might not constitute terrorism. Be this as it may, here as elsewhere, the existence of hard cases does not remove the fundamental distinction. It is plausible, therefore, that deliberately killing innocent children in the service of political ends should count as terrorism, but that deliberately killing enemy soldiers in self-defense should not count as terrorism.

Roughly speaking, terrorism is a political or military strategy that (1) consists in intentionally killing, maiming, torturing, or otherwise seriously harming, or threatening to seriously harm, civilians who are not themselves engaged in human rights violations; (2) is a means of terrorizing, individually and/or collectively, the members of some social or political group in order to achieve political or military purposes; and (3) relies on the killings—or other serious harms inflicted—receiving a high degree of publicity, at least to the extent necessary to engender widespread fear in the target political or social group.

By virtue of its being a violation of some of the most basic moral rights of citizens, notably the right to life, terrorism is, or ought to be, a crime. However, by virtue of its tactics and the fact that it is often an attack on the state as such, terrorism poses special ethical problems for security agencies. For one thing, should an investigation of terrorists and their acts of terrorism be entirely assimilated to criminal investigations, both in terms of allowable investigative methods and in terms of whether or not terrorists ought to enjoy the full panoply of moral and legal rights accorded to ordinary criminals (e.g., privacy and autonomy rights, custodial rights)? This problem is exacerbated by the essentially preventative—as opposed to reactive—function of many terrorist investigations; the point of the investigation is to prevent a terrorist attack rather than determine who performed it after the fact. For another thing, the investigation of terrorists often involves transjurisdictional issues; these are obviously legal, but they can also be ethical, for example, an Australian citizen being held for interrogation by U.S. authorities and, as such, subject to U.S. laws governing investigation and interrogation.

A further issue concerns the insulation of ordinary citizens from the (possibly legitimate) infringements of the rights of persons suspected of terrorism. In theory, in wartime, civilians are a separate category from combatants, and the rules of engagement with enemy combatants or the investigation of combatants suspected, for example, of war crimes do not pertain to noncombatants. However, terrorists typically operate within the civilian community, and so the investigation of those suspected of terrorism is, for all intents and purposes, an investigation of ordinary citizens. Accordingly, in the context of investigations of terrorist acts, it may be extremely difficult to suspend or reduce the rights of terrorists (e.g., longer than normal periods of detention without trial) without simultaneously suspending or reducing the rights of ordinary citizens. After all, in the context of an investigation, terrorists and ordinary citizens are in both cases simply ordinary citizens who are suspected, but not convicted, of terrorism.

The problem arises in a particularly acute form prior to the detention of suspects and arises in large part because of the dangers to ordinary citizens posed by terrorists—or at least by terrorists who are not in detention. Of course, in general the investigation of the crimes of dangerous persons raises important ethical issues not necessarily in play in other investigations and arises because of the threat to life and limb that these persons pose for those around them. However, the problem is greater in the case of terrorists, since they are typically an organized group that targets large numbers of people and does so indiscriminately; it is most evident in the case of suicide bombers.

The specific moral problem that arises in the investigation of suicide bombers arises from four considerations that do not normally obtain jointly: (1) the suspect has not yet committed the offense—there can be no such thing as a serial suicide bomber; (2) the suspect may well be walking around with a bomb that can be triggered instantly killing him/herself, the investigating officer(s), and others in the vicinity; (3) the suicide bomber is intent on killing him/herself as well as others and, therefore, the normal self-interested motive to live cannot be appealed to; and (4) the option of warning is not available since this will cause the terrorist to trigger the bomb. Accordingly, the option of detaining the dangerous suspect—as opposed to using lethal force—is ruled out at a certain point in the investigation of suicide bombers, notwithstanding that they have not committed the offense and might not even be in possession of a bomb.

On the model of terrorism-as-crime in the context of the well-ordered liberal democratic state, whereas terrorist acts should be treated as ordinary albeit very serious crimes, nonetheless, terrorist acts have additional destabilizing features that might reasonably call for a somewhat different mix of law enforcement tactics and strategies than those deployed against ordinary crime. The question is whether these tactics and strategies reasonably ought to involve an extension of police powers and, in particular, additional constraints—additional, that is, to the ones already in place to protect citizens from one another and from external threats—on the human, civil, and political rights that are constitutive of the status of a citizen in a well-ordered liberal democratic state. It needs to be stressed that these moral and legal rights are quite fundamental to liberal democracy; a polity in which they are not respected is not a liberal democracy. On the other hand, it also needs to be stressed that none of these rights is absolute, and none exists without some constraints (e.g., the right to self-defense is a constraint on the right to life of attackers). Therefore, it is very much a matter of determining whether the current threat posed by terrorism morally justifies additional constraints and, if so, which ones. To reiterate, the context in question is that of a well-ordered, liberal democracy at peace. Doubtless, matters are somewhat different in theaters of war or under a state of emergency.

Some of the fundamental moral and legal rights in question include the right to freedom of speech and thought (infringed by laws against sedition), right to freedom of action (infringed by laws enabling preventative detention and/ or prolonged periods of detention without being charged with an offense and brought to trial), right not to self-incriminate (infringed by laws curtailing right to silence), right to privacy (infringed by laws enabling intrusive surveillance), right not to be tortured (infringed by legalized torture warrants), and right to life (infringed by laws enabling the shooting of fleeing suspects).

Of these, infringements by the United States, Israel, and other liberal democratic states of the right not to be tortured has perhaps been the source of the greatest and most sustained international attention and concern. In the wake of 9/11, the George W. Bush administration sanctioned the use of torture (or at least so-called torturelite) by its security agencies as a counterterrorism measure against the international terrorism perpetrated by al Qaeda, in particular.

An important feature of counterterrorism strategies pertains to the context in which the terrorist activities are taking place. In the context of a well-ordered, liberal democratic state, counterterrorism measures surely ought to be accommodated within, and constrained by, a terrorism-as-crime framework. In the context of a theater of war matters are somewhat different. Consider, for example, areas of Afghanistan in which military combat takes place between U.S. armed forces and the armed forces of the Taliban or al Qaeda. Here it seems entirely appropriate to revert to the terrorism-as-war framework and treat armed militants as combatants. Accordingly, it is arguably morally and presumably legally justified to have a shoot-on-sight policy, to engage in ambushes, targeted killing, and the like.

Notwithstanding that it might be appropriate to apply the terrorism-as-war framework and, therefore, counterterrorist strategies consistent with that framework, in theaters of war, the terrorism-as-crime framework is presumably to be preferred, assuming it is feasible. Accordingly, perhaps the terrorism-as-crime framework—as opposed to the terrorism-as-war framework—ought to be the default framework for liberal democracies suffering terrorist attacks. If so, arguably the terrorism-as-war framework should be applied only under the following conditions: (1) terrorism-as-crime framework cannot adequately contain serious, ongoing terrorist attacks; (2) terrorism-as-war framework is likely to contain the terrorist attacks; (3) terrorism-as-war framework is proportionate to the terrorist threat; (4) terrorism-as-war framework is applied only to an extent, (e.g., with respect to a specific theatre of war), and over a period of time, that is necessary; and (5) terrorism-as-war framework will have better overall consequences (e.g., regarding security) than the available alternatives.

Notwithstanding the above, problems remain including the standard ones associated with war in general (e.g., unintended death of innocent civilians and war crimes). The use of drones by the United States in Afghanistan and the tribal areas of Afghanistan raises this issue in an acute form.

Another kind of problem is that of large-scale, one-off, lethal terrorist attacks by nonstate actors against, and within territorial jurisdiction of, a well-ordered, liberal democratic state during peacetime, as in the 9/11 attack in which approximately 3,000 people were killed. Such large-scale attacks contrast with ongoing, small-scale, terrorist attacks, for example, those by the Red Brigades in Italy in the 1970s. Small-scale terrorist attacks can be accommodated within the terrorism-as-crime framework. Arguably, large-scale terrorist attacks (e.g. chemical, biological, radiological, and/ or nuclear terrorist attacks) are similar to disasters such as the Indian Ocean tsunami in 2004 in which approximately 200,000 people died. Naturally, a key difference between many disasters and large-scale terrorist attacks is that the latter are intentionally (and culpably) brought about by criminals. However, perhaps large-scale, one-off, lethal terrorist attacks by nonstate actors against, and within territorial jurisdiction of, a well-ordered, liberal democratic state during peacetime should be regarded as disasters and, therefore, treated under state of emergency provisions, that is, a legally circumscribed, geographically, and time-limited state of emergency should be imposed.

On the other hand, if there is an ongoing series of large-scale terrorist attacks from within a state, then that state is no longer well-ordered and a de facto state of internal war exists (e.g., terrorism in Kashmir). This presumably calls for military involvement, assuming the state is a morally legitimate one and its terrorist protagonists are illegitimate in relation to their political purposes.

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