The Cost of Counterterrorism

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

Details

Power, Politics, and Liberty

Laura K. Donohue

Stanford University, California

Paperback

For price and ordering options, inspection copy requests, and reading lists please select:

Contents

Quick search

Related areas