The Cost of Counterterrorism

In the aftermath of a terrorist attack political stakes are high: legislators fear being seen as lenient or indifferent and often grant the executive broader authorities without thorough debate. The judiciary’s role, too, is restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at all but the margins. The dominant “Security or Freedom” framework fails to capture this dangerous aspect of counterterrorism: rapidly expanding executive authority that shifts the balance of power between the branches of government. This book recalculates the cost of counterterrorist law to the United Kingdom and the United States, arguing that the damage caused is significantly greater than first appears. Donohue warns that the proliferation of biological and nuclear materials may drive each country to take increasingly extreme measures, with a resultant shift in the basic structure of both states.

Laura K. Donohue is a Fellow at the Constitutional Law Center at Stanford Law School and at Stanford University’s Center for International Security and Cooperation. Currently a By-Fellow of Churchill College, University of Cambridge, she is the author of Counter-Terrorist Law and Emergency Powers in the United Kingdom, 1922–2000 (2001).

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The Cost of Counterterrorism

Power, Politics, and Liberty

       LAURA K. DONOHUE
       Stanford University

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CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Information on this title: www.cambridge.org/9780521605878

© Laura K. Donohue 2008

This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First published 2008

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data

Donohue, Laura K., 1969–
The cost of counterterrorism: power, politics, and liberty / Laura K. Donohue.
   p.    cm.
Includes bibliographical references and index.
ISBN 978-0-521-84444-4 (hardback) – ISBN 978-0-521-60587-8 (pbk.)
1. National security – Law and legislation – United States. 2. Civil rights – United States.
3. Terrorism – United States – Prevention. 4. National security – Law and legislation –
Great Britain. 5. Terrorism – Great Britain – Prevention. 6. Terrorism – Prevention –
International cooperation. Ⅰ. Title.
KF4850.D66   2008
343.73^′.01–dc22      2007041286

ISBN978-0-521-84444-4 hardback
ISBN978-0-521-60587-8 paperback

Cambridge University Press has no responsibility for
the persistence or accuracy of URLs for external or
third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such
Web sites is, or will remain, accurate or appropriate.

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Dedicated to
Tansel
Jasmine and
Ayla Rose

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Contents

Acknowledgments		page ix
1	The Perilous Dichotomy	1
	Security and Freedom within Constitutional Constraints	4
	The Shift in Power Among the Branches of Government	6
	The War Model Versus Criminal Law	7
	The Expansion of Executive Authority	10
	Legislative Failure: The Counterterrorist Spiral	11
	Limits on the Judiciary	20
	The Political, Social, and Economic Costs of Counterterrorist Law	25
	The Complexity of Rights and Security	29
2	Indefinite Detention and Coercive Interrogation	33
	Controlling Violence in Northern Ireland	35
	Indefinite Detention	36
	Habeas Corpus Relief	38
	The Diplock Courts	42
	The End of Indefinite Detention	47
	Coercive Interrogation	48
	Torture in English Law	48
	Coercive Interrogation in Northern Ireland	49
	The Case of Ireland v. United Kingdom	54
	Aftermath	56
	Meeting the Islamist Threat in the United Kingdom	57
	Indefinite Detention Revived	58
	Torture Revisited	61
	Control Orders	63
	The Prevention of Terrorism Act	66
	US Detention of Foreign Nationals at Guantánamo Bay	71
	Suspending the Geneva Conventions	75
	The Legal Arguments	76
	Dissent Overruled	80
	Habeas Corpus and Judicial Review	83
	The Cases of Rasul and Hamdi	83
	The Executive’s Response	84
	Congress and the 2005 Detainee Treatment Act	85
	The Case of Hamdan v. Rumsfeld	86
	Congress and the 2006 Military Commissions Act	88
	International Fallout and Its Effect on US Policy	89
	Coercive Interrogation and Torture in the Global War on Terror	91
	The Convention Against Torture	93
	Applying the New Standards	95
	Iraq and the Revision of Interrogation Standards	97
	Abu Ghraib	100
	Ghost Detainees, Black Sites, and Extraordinary Rendition	103
	The World Balks	106
	Congress Speaks: The 2005 Detainee Treatment Act Revisited	110
	Parallel Costs	111
	Domestic Political Power	111
	Innocent Victims	114
	The Psychological Effects of Indefinite Detention	115
	Minority Concerns	116
	International Repercussions and Foreign Policy Considerations	120
3	Financial Counterterrorism	122
	Paramilitary Funding in Northern Ireland	123
	The State’s Response	129
	Statutory Measures Before September 11	130
	Property Rights and Asset Forfeiture: Laying the Groundwork	131
	Anti-Drug Trafficking and Counterterrorism: 1985–91	132
	Racketeering in Northern Ireland	134
	Counterterrorism and Anti-Drug Trafficking: 1993–2000	135
	The Organized Crime Umbrella	139
	Expansion of Counterterrorist Finance Law After September 11, 2001	141
	The Effects of Expanding Laws	145
	Antiterrorist Finance in the United States	146
	Measures Before September 11	147
	Lists Under the International Emergency Economic Powers Act	148
	Designated Foreign Terrorist Organizations	149
	Money Laundering	151
	Al Qaeda Funding	153
	Measures After September 11	158
	The USA PATRIOT Act: Financial Provisions	160
	USA PATRIOT Act: Surveillance Provisions	164
	The International Emergency Economic Powers Act	166
	The Erosion of Complex Rights	168
	The Elimination of Intent	171
	Secret Evidence and Due Process Concerns	172
	Stigma	175
	The Political and Humanitarian Costs	175
4	Privacy and Surveillance	182
	British Statutory Authority for Intelligence Gathering	187
	The Interception of Communications	187
	Administrative Practice Before 1985	188
	The Interception of Communications Act (1985)	190
	The Security Service Act (1989 and 1996) and the Intelligence Services Act (1994)	192
	The Regulation of Investigatory Powers Act (2000)	195
	Electronic Bugs and Encrypted Data	201
	Data Protection	206
	European Union Norms and Rules	206
	British Data Retention Law	209
	Surveillance in Public Space	212
	Port and Border Controls	213
	Closed-Circut Television	214
	The American Surveillance Culture	218
	Executive Excesses (1945–75)	223
	Congress Responds: The 1978 Foreign Intelligence Surveillance Act	229
	The USA PATRIOT Act and Its Surveillance Provisions	233
	Alterations to the Foreign Intelligence Surveillance Act	233
	Delayed-Notice Search Warrants	235
	National Security Letters	236
	Surveillance Operations Under Other Auspices	243
	The Department of Defense	244
	Attorney General Guidelines and FBI Surveillance	249
	Citizen Reporting Programs	251
	Watch Lists	254
	US Data-Mining Operations	256
	British and American Oversight Compared	261
	The Political, Social, Legal, and Economic Consequences	266
5	Terrorist Speech and Free Expression	273
	Political Speech	276
	Sedition Versus Free Speech in the United States	276
	Offenses Against the State and Public Order in the United Kingdom	283
	Treason	283
	Unlawful Assembly and Public Order	285
	Sedition	290
	The Media Ban	293
	The Glorification of Terrorism	294
	Knowledge-Based Speech	296
	Restrictions on Knowledge-Based Speech in the United States	298
	Restrictions on Knowledge-Based Speech in the United Kingdom	307
	The Secondary Effects of Other Counterterrorism Measures	311
	Privileged Speech	317
	US Government Employment and Employees’ Speech	317
	The British Civil Service, Spycatcher, and the Official Secrets Act	322
	Calculating Costs	330
6	Auxiliary Precautions	333
	Re-Empowering the Legislature	336
	Fostering a Culture of Restraint	336
	Replacing Sunset Provisions with Obligatory Reporting Requirements	338
	Reinforcing Transparency and Accountability	341
	Drawing Lines	345
	Distinguishing Between Criminal Law and Counterterrorism: Financial Counterterrorism as an Example	345
	Distinguishing Between National Security Threats: Knowledge-Based Speech as an Example	350
	Resisting the Alteration of Judicial Rules and Executive Expansion	353
	Beyond the Dichotomy	359
Notes		361
Index		469

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Acknowledgments

This research began six years ago with a grant from the Carnegie Corporation of New York. I am grateful to Dorothy Zinberg for her nomination to the Carnegie Scholars program, to Vartan Gregorian for funding Security and Freedom in the Face of Terrorism, and to Patricia Rosenfield for her encouragement throughout the project.

   Christopher Chyba and Scott Sagan, the Co-Directors at Stanford University’s Center for International Security and Cooperation, provided me with the opportunity to take up the Carnegie project at Stanford. I appreciate the support they have given my work from that time forward. At the Institute for International Studies (later the Freeman-Spogli Institute), my colleagues – particularly Fiona Adamson, Coit Blacker, George Bunn, Lynn Eden, Jim Fearon, Deborah Gordon, Ron Hassner, Sig Hecker, David Holloway, Gail Lapidus, Michael May, Michael McFaul, Khalid Medani, Norman Naimark, Charles Perrow, William Perry, Jake Shapiro, Helen Stacy, Stephen Stedman, and Dean Wilkening – challenged and encouraged me. I have learned a tremendous amount from them and FSI’s vibrant intellectual community. I also am grateful to Byron Bland and the Stanford Center on International Conflict and Negotiation for providing me with a fellowship in 2005–06, during which I further developed my ideas.

   In the course of writing this book, I worked out various portions of the legal history and arguments in a handful of shorter articles. Barbara Babcock, Mariano-Florentino Cuéllar, George Fisher, Barbara Fried, Conor Gearty, Jennifer Granick, Tom Grey, Anthony Kennedy, David Luban, Eugene Volokh, Clive Walker, and Allen Weiner provided thoughtful critique on these pieces. The editors of the Cardozo Law Review, the Journal of Criminal Law and Criminology, Michigan Journal of International Law, Stanford Law Review, and Terrorism and Political Violence, as well as the edited volumes Democratic Responses to Terrorism and Terrorism and Counterterrorism, provided permission for me to revisit some of my earlier work in the ensuing text.

   Paul Lomio, the Director of the Robert Crown Law Library at Stanford Law School, and the law librarians – particularly Sonia Moss, Erika Wayne, Kate Wilko, and Naheed Zaheer – have, for the past five years, provided research space, helped locate important documents, and alerted me to new sources of information. Christine Su, my research assistant, helped obtain materials used in the text. Diana Jansons-Quihuis, Joyce Jiawan, and Mary Ann Rundell kindly provided administrative assistance. In addition, I thank my editors – John Haslam at Cambridge University Press, and Phoebe Hoss – for their suggestions and patience throughout this process.

   In October 2006 a number of friends and colleagues held my feet to the fire in a final manuscript review. David Ball, Farah Brelvi, Martha Crenshaw, Lynn Eden, Tom Grey, Ron Hassner, David Holloway, Matt Kramer, Richard Rhodes, Derek Shaffer, Peter Stansky, Kathleen Sullivan, Eugene Volokh, and Clive Walker offered sound critique. Robert Weisberg not only participated in the review, but provided advice throughout the book project. I am grateful to him and to Barbara Fried and Larry Kramer, who helped me to secure summer funding to complete the first draft. Additionally, Gerhard Casper and Lord Lloyd of Berwick kindly read the manuscript and provided valuable suggestions.

   It was as a Fellow at Stanford Law School’s Constitutional Law Center that I completed the book. Kathleen Sullivan has been unfailingly supportive, challenging my ideas and giving me the opportunity to delve into new areas. It is because of Peter Bing’s generosity that I was able to take up the fellowship and finish this volume. I sincerely thank him for his advice, guidance, and friendship.

   Finally, I could neither have done the research nor written this book without Tansel Ozyar’s support. Jasmine Aileen and Ayla Rose give meaning to life, and it is to them, and to Tansel, that I dedicate this work.

Laura K. Donohue
Stanford, California
December 10, 2007